NEGLIGENCE Unit 31. Preview Tort vs. contract Tort vs. crime Negligence: definition Claim of negligence Objective test Legal terms Exercise

NEGLIGENCENEGLIGENCEUnit 31Unit 31

PreviewPreview

Tort vs. contractTort vs. contract Tort vs. crimeTort vs. crime Negligence: definitionNegligence: definition Claim of negligenceClaim of negligence Objective testObjective test Legal termsLegal terms ExerciseExercise Case study: Donoghue v StevensonCase study: Donoghue v Stevenson

Law of tort vs. Law of contractLaw of tort vs. Law of contract

Difference: Difference: Law of tort defines what sort of behaviour Law of tort defines what sort of behaviour

is wrongfulis wrongful Law of contract – the contractual Law of contract – the contractual

agreement lays down what will be seen as agreement lays down what will be seen as wrongful behaviourwrongful behaviour

Liability for breach of contract and tortious Liability for breach of contract and tortious liability may arise from the same factsliability may arise from the same facts

Law of tort vs. Criminal lawLaw of tort vs. Criminal law

Many torts are also crimes, e.g. assaultMany torts are also crimes, e.g. assault Law of tort and criminal law – different Law of tort and criminal law – different

purposespurposes Law of tort gives a personal remedy to Law of tort gives a personal remedy to

individuals for any wrong they have individuals for any wrong they have sufferedsuffered

Criminal law - concerned with the Criminal law - concerned with the protection of the public at large and will protection of the public at large and will punish offenderspunish offenders

Parties Parties

The claimant or defendant in a tort case: The claimant or defendant in a tort case: either a natural or a legal personeither a natural or a legal person

Sometimes the defendant is not the one Sometimes the defendant is not the one who actually carried out the wrongful who actually carried out the wrongful behaviour, but the law holds him behaviour, but the law holds him responsible for the acts of the one who did responsible for the acts of the one who did cause the harm (parents, employers)cause the harm (parents, employers)

NegligenceNegligence

Carelessness amounting to a culpable Carelessness amounting to a culpable breach of duty: failure to do or recognise breach of duty: failure to do or recognise sth that a reasonable person would do or sth that a reasonable person would do or recognize, or doing sth that a reasonable recognize, or doing sth that a reasonable person would not doperson would not do

Negligence may be an element in a few Negligence may be an element in a few crimes, e.g. careless drivingcrimes, e.g. careless driving


A tort consisting of the breach of a duty of A tort consisting of the breach of a duty of care resulting in damage to the claimantcare resulting in damage to the claimant

Can be used to bring a civil action when Can be used to bring a civil action when there is no contract under which there is no contract under which proceedings can be broughtproceedings can be brought

Claim of negligenceClaim of negligence

In order to succeed in a claim of In order to succeed in a claim of negligence, a claimant must show that:negligence, a claimant must show that:

The defendant owed him a duty of careThe defendant owed him a duty of care There was a breach of the duty of careThere was a breach of the duty of care The harm suffered was caused by the The harm suffered was caused by the

breach of a duty of carebreach of a duty of care

Neighbourhood principleNeighbourhood principle

Neighbourhood principle : whether there is Neighbourhood principle : whether there is a duty of care depends on whether the a duty of care depends on whether the claimant is a neighbour in the legal senseclaimant is a neighbour in the legal sense

A person is a ‘neighbour’ if what you do A person is a ‘neighbour’ if what you do will directly affect himwill directly affect him

Duty to take reasonable care to avoid acts Duty to take reasonable care to avoid acts or omissions ‘which you can reasonably or omissions ‘which you can reasonably foresee would be likely to injure your foresee would be likely to injure your neighbour’. neighbour’.

Donoghue v. Stevenson (1932)Donoghue v. Stevenson (1932)

On 26 Aug. 1928, Mrs May Donoghue of On 26 Aug. 1928, Mrs May Donoghue of Glasgow left her home to make the short Glasgow left her home to make the short journey into Paisley, a neighbouring town. journey into Paisley, a neighbouring town. There she met a friend at Minchella’s cafe There she met a friend at Minchella’s cafe at 1 Wellmeadow Street. Her friend at 1 Wellmeadow Street. Her friend ordered and paid for an ice-cream and a ordered and paid for an ice-cream and a bottle of ginger beer.bottle of ginger beer.


The ginger was manufactured by Mr David The ginger was manufactured by Mr David Stevenson of Paisley. It came in an Stevenson of Paisley. It came in an ‘opaque’ bottle, so no one was able to see ‘opaque’ bottle, so no one was able to see what was in the bottle.what was in the bottle.

’’..


When Mrs Donoghue’s friend was pouring out When Mrs Donoghue’s friend was pouring out the contents of the bottle, they saw floating out the contents of the bottle, they saw floating out of the bottle what seemed to be partly of the bottle what seemed to be partly decomposed remains of a snail. Mrs Donoghue decomposed remains of a snail. Mrs Donoghue claimed she was made ill by what she had seen. claimed she was made ill by what she had seen. She had medical treatment three days later for She had medical treatment three days later for gastro-enteritis, and again three weeks later, at gastro-enteritis, and again three weeks later, at the Glasgow Royal infirmary. She also claimed the Glasgow Royal infirmary. She also claimed that she had suffered from ‘nervous shockthat she had suffered from ‘nervous shock


There was no contractual relationship There was no contractual relationship between Mr Minchella and MRS between Mr Minchella and MRS Donoghue. The only person she could sue Donoghue. The only person she could sue was David Stevenson, the manufacturer of was David Stevenson, the manufacturer of the ginger beer. The question was, on the ginger beer. The question was, on what grounds?what grounds?


Mrs Donoghue’s solicitor, Walter Leechman, Mrs Donoghue’s solicitor, Walter Leechman, decided to proceed with the case, even though decided to proceed with the case, even though there was no legal precedent for such an action. there was no legal precedent for such an action. The basis of the claim was that any The basis of the claim was that any manufacturer of a product intended for human manufacturer of a product intended for human consumption must be liable to the consumer for consumption must be liable to the consumer for any damage resulting from a lack of reasonable any damage resulting from a lack of reasonable care to ensure that the product is fit for care to ensure that the product is fit for consumption.consumption.


The case proceeded through various The case proceeded through various appeals to the House of Lords. The Lords appeals to the House of Lords. The Lords decided in favour of Mrs Donoghue, a decided in favour of Mrs Donoghue, a new precedent was established and a lady new precedent was established and a lady who said she was ‘not worth five pounds in who said she was ‘not worth five pounds in all the world’ became the reason why, all the world’ became the reason why, these days, millions of pounds have been these days, millions of pounds have been won by claimants based on the tort of won by claimants based on the tort of negligence.negligence.

Donoghue v. Stevenson (1932)Donoghue v. Stevenson (1932)JudgmentJudgment

Lord Atkin: “Lord Atkin: “The rule that you are to love your neighbour The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my persons who are so closely and directly affected by my act that I ought reasonably to have them in act that I ought reasonably to have them in contemplation as being so affected when I am directing contemplation as being so affected when I am directing my mind to the acts or omissions which are called in my mind to the acts or omissions which are called in questionquestion””

Recognized duties in lawRecognized duties in law

Highway (also: railways, shipping at sea, Highway (also: railways, shipping at sea, canal navigation)canal navigation)

Employer’s liability (safe system of work, Employer’s liability (safe system of work, safe machinery, competent fellow safe machinery, competent fellow employees)employees)

Professional persons(doctors, dentists, Professional persons(doctors, dentists, solicitors)solicitors)

Recognized duties in lawRecognized duties in law

Carriers (duty of care to passengers and Carriers (duty of care to passengers and goods)goods)

Schools (duty of care to children and to Schools (duty of care to children and to third parties injured by children)third parties injured by children)

Police (duty of care to general public)Police (duty of care to general public)

Cases: Pape v. Cumbria c.c. Cases: Pape v. Cumbria c.c. (1992)(1992)

It was held that employers had not It was held that employers had not discharged their duty of care towards their discharged their duty of care towards their employee cleaner, who contracted employee cleaner, who contracted dermatitis, by mere provision of rubber dermatitis, by mere provision of rubber gloves; they should have instructed and gloves; they should have instructed and encouraged her to wear the gloves at all encouraged her to wear the gloves at all timestimes

Cases: Smoldon v. Whitworth Cases: Smoldon v. Whitworth (1996)(1996)

S. a rugby player, was injured by an S. a rugby player, was injured by an opposing player during a scrum in a match opposing player during a scrum in a match and W, the referee, had not taken a tight and W, the referee, had not taken a tight grip on the general lines to be expected of grip on the general lines to be expected of a reasonably competent referee. The a reasonably competent referee. The referee was held to owe a duty of care to referee was held to owe a duty of care to the players to protect them from the the players to protect them from the unnecessary and dangerous aspects of unnecessary and dangerous aspects of the gamethe game

Margereson v. J.W. Roberts Ltd; Margereson v. J.W. Roberts Ltd; Hancock v. J.W. Roberts Ltd (1996)Hancock v. J.W. Roberts Ltd (1996)

M’s late husband and H played together M’s late husband and H played together as children in the loading bays of a factory as children in the loading bays of a factory where the level of asbestos contamination where the level of asbestos contamination was very high, and as adults they was very high, and as adults they developed mesothelioma. The company developed mesothelioma. The company was held to have breached a duty of care was held to have breached a duty of care as they ought to have reasonably foreseen as they ought to have reasonably foreseen a risk of pulmonary injury to the childrena risk of pulmonary injury to the children

Duty of careDuty of care

If there is no duty of care, there is no If there is no duty of care, there is no breachbreach

If there was a breach, was the harm that If there was a breach, was the harm that the claimant suffered reasonably the claimant suffered reasonably foreseeableforeseeable

If it was not reasonably foreseeable – If it was not reasonably foreseeable – remote damageremote damage

Proof of damageProof of damage

Some torts require proof of damage – the Some torts require proof of damage – the claimant must prove that the defendant’s claimant must prove that the defendant’s conduct caused harmconduct caused harm

Some torts (e.g. libel) actionable per se – Some torts (e.g. libel) actionable per se – the claimant does not need to provide the claimant does not need to provide proof of damage; the fact that the proof of damage; the fact that the defendant committed the tort is enough for defendant committed the tort is enough for the claimant to be entitled to redressthe claimant to be entitled to redress

Breach of dutyBreach of duty

If the defendant owed the claimant a duty If the defendant owed the claimant a duty of care, the next step is to prove that the of care, the next step is to prove that the defendant breached that duty of caredefendant breached that duty of care

The test: objectiveThe test: objective The standard: reasonablenessThe standard: reasonableness

The standard of careThe standard of care

Standard of care – that of an ordinary Standard of care – that of an ordinary prudent personprudent person

The care which a reasonable person would The care which a reasonable person would use in the circumstancesuse in the circumstances

Where serious consequences may follow Where serious consequences may follow from carelessness, the greater degree of from carelessness, the greater degree of care must be exercised (more care needed care must be exercised (more care needed in handling a loaded gun than handling a in handling a loaded gun than handling a walking stick)walking stick)

Dorset Yacht Co. v. Home Dorset Yacht Co. v. Home Office (1969)Office (1969)

Some boys escaped from a borstal institution Some boys escaped from a borstal institution and set adrift and damaged a motor-yacht in and set adrift and damaged a motor-yacht in Poole harbour. The Yacht Co. (owners) sued the Poole harbour. The Yacht Co. (owners) sued the Home Office as the Government department Home Office as the Government department responsible for prisons and borstalsresponsible for prisons and borstals

Held: Home Office was liable for damage done Held: Home Office was liable for damage done by persons who escaped from custody or while by persons who escaped from custody or while on parole if the escape was due to the on parole if the escape was due to the negligence of prison or borstal officersnegligence of prison or borstal officers

Smith & Others v. Littlewoods Smith & Others v. Littlewoods Organisation Ltd (1987)Organisation Ltd (1987)

Vandals started fire in the defendant’s Vandals started fire in the defendant’s empty building which damaged adjoining empty building which damaged adjoining property. property.

Held: occupier’s duty did not extend to Held: occupier’s duty did not extend to preventing deliberate acts of third party preventing deliberate acts of third party vandals in these circumstancesvandals in these circumstances

Yachuk v. Oliver Blais Co. Yachuk v. Oliver Blais Co. (1949)(1949)

A boy of nine persuaded a garage attendant to A boy of nine persuaded a garage attendant to let him have a tin of petrol by a false tale that his let him have a tin of petrol by a false tale that his mother’s car had run out of petrol some distance mother’s car had run out of petrol some distance from the garage. The boy poured the petrol over from the garage. The boy poured the petrol over some timber and then set it alight. The fire some timber and then set it alight. The fire caused and explosion and the boy was seriously caused and explosion and the boy was seriously injured.injured.

Held: it was negligence on the part of the garage Held: it was negligence on the part of the garage attendant to entrust the child with such a attendant to entrust the child with such a dangerous commodity as petroldangerous commodity as petrol

CausationCausation

Even if the claimant can show that the Even if the claimant can show that the defendant owed him a duty of care and he defendant owed him a duty of care and he breached it, he must show that the breached it, he must show that the defendant caused his injuries – i.e.to defendant caused his injuries – i.e.to establish causation: there has to be a establish causation: there has to be a clear link between the claimant’s loss and clear link between the claimant’s loss and the way the defendant behavedthe way the defendant behaved

Contributory negligenceContributory negligence

Even if a claimant has proved a duty of Even if a claimant has proved a duty of care, a breach of that duty and causation, care, a breach of that duty and causation, the defendant could still have a defence: the defendant could still have a defence: contributory negligencecontributory negligence

The claimant’s injury was only partly The claimant’s injury was only partly caused by the defendant’s conduct; the caused by the defendant’s conduct; the claimant himself is also at fault and partly claimant himself is also at fault and partly to blame for his injuryto blame for his injury

Sayers v. Harlow U.D.C. (1958)Sayers v. Harlow U.D.C. (1958)

The plaintiff, a woman, entered a public lavatory owned The plaintiff, a woman, entered a public lavatory owned and operated by defendants. Owing to a defective lock and operated by defendants. Owing to a defective lock without a handle, she could not get out of the cubicle. without a handle, she could not get out of the cubicle. Her bus was due to leave, and she tried to climb over the Her bus was due to leave, and she tried to climb over the door. She placed her foot on a revolving toilet roll, fell to door. She placed her foot on a revolving toilet roll, fell to the ground and injured herself. She sued the local the ground and injured herself. She sued the local authority. authority.

Held: (1) the defendants were negligent; (2) the plaintiff Held: (1) the defendants were negligent; (2) the plaintiff was guilty of contributory negligence in trying to balance was guilty of contributory negligence in trying to balance on a revolving object. Her claim would be reduced by on a revolving object. Her claim would be reduced by one-quarterone-quarter

Froom and others v. Butcher Froom and others v. Butcher (1976)(1976)

B. drove a car negligently on a road and B. drove a car negligently on a road and collided with F’s car injuring the driver, F, collided with F’s car injuring the driver, F, who was not wearing a seat-belt. The who was not wearing a seat-belt. The accident was solely caused by B. accident was solely caused by B.

Held: F’s claim for damages was reduced Held: F’s claim for damages was reduced by 25% because F was contributorily by 25% because F was contributorily negligent in not wearing the seat-beltnegligent in not wearing the seat-belt

SummarySummary

Negligence: definitionNegligence: definition Duty of care (neighbourhood principle)Duty of care (neighbourhood principle) Breach of the duty of care (test of Breach of the duty of care (test of

reasonableness )reasonableness ) CausationCausation

Legal termsLegal terms

The party owing a duty of care has failed The party owing a duty of care has failed in the performance of that dutyin the performance of that duty

Breach of a duty of careBreach of a duty of care There must be a link between the damage There must be a link between the damage

suffered by the claimant and the suffered by the claimant and the defendant’s act or omission.defendant’s act or omission.

CausationCausation


A defence to a negligence claim. The A defence to a negligence claim. The defendant shows that the claimant failed to defendant shows that the claimant failed to take proper care and was therefore partly take proper care and was therefore partly to blame for the injury he suffered. The to blame for the injury he suffered. The damages the claimant can recover will be damages the claimant can recover will be less.less.

Contributory negligenceContributory negligence


Financial compensation for the claimant Financial compensation for the claimant for the harm sufferedfor the harm suffered

DamagesDamages A duty binding on one party to avoid acts A duty binding on one party to avoid acts

or omissions which could reasonably be or omissions which could reasonably be foreseen as likely to injure the other partyforeseen as likely to injure the other party

Duty of careDuty of care


This is an artificial, legal construct. An This is an artificial, legal construct. An abstract entity, for example a registered abstract entity, for example a registered company, is a separate person in lawcompany, is a separate person in law

Legal personLegal person This is a human being rather than an This is a human being rather than an

artificial legal constructartificial legal construct Natural personNatural person


In legal terminology, this is more than In legal terminology, this is more than mere carelessness. It requires that the mere carelessness. It requires that the defendant has breached a duty of care defendant has breached a duty of care owed to the claimant, and as a result the owed to the claimant, and as a result the claimant has suffered harmclaimant has suffered harm



The test in negligence for breach of a duty The test in negligence for breach of a duty of care is not whether this particular of care is not whether this particular defendant has acted unreasonably but defendant has acted unreasonably but whether a reasonable person would have whether a reasonable person would have acted in this wayacted in this way

Objective testObjective test


In a negligence claim, a major factor that In a negligence claim, a major factor that must be taken into account in establishing must be taken into account in establishing a duty of care is whether the defendant a duty of care is whether the defendant could reasonably foresee that his could reasonably foresee that his behaviour would lead to the claimant being behaviour would lead to the claimant being injured.injured.

Reasonable foreseeabilityReasonable foreseeability


The test for determining whether there has The test for determining whether there has been a breach of a duty of care is been a breach of a duty of care is objective. The standard is one of objective. The standard is one of reasonableness: whether the defendant reasonableness: whether the defendant has acted as a reasonable man would has acted as a reasonable man would have acted in this situationhave acted in this situation

Reasonable man/personReasonable man/person


A private or civil wrong, resulting from a A private or civil wrong, resulting from a breach of a legal duty. The law of __is a breach of a legal duty. The law of __is a collection of different sorts of ___, as there collection of different sorts of ___, as there is no general principle of liability for is no general principle of liability for causing harm to another personcausing harm to another person

TortTort The adjective referring to tortThe adjective referring to tort TortiousTortious

CollocationsCollocations

To To establishestablish negligence negligence To To suffersuffer damage damage To To allegeallege negligence negligence The The causecause of damage of damage A A chainchain of causation of causation Reasonably Reasonably foreseeableforeseeable

PrepositionsPrepositions

To act To act inin a way a way Your client acted in a particular way that Your client acted in a particular way that

caused harm to my clientcaused harm to my client In order to do somethingIn order to do something InIn order to establish negligence we must order to establish negligence we must

show that the defendant breached his duty show that the defendant breached his duty of care to you.of care to you.

PrepositionsPrepositions

Foreseeable Foreseeable byby someone someone The damage was reasonably foreseeable The damage was reasonably foreseeable byby our client our client

To be guilty To be guilty ofof something something The defendant was guilty The defendant was guilty ofof committing committing

this tortthis tort

Fill in the gaps with the followig: breached, care, Fill in the gaps with the followig: breached, care, damages, deterrent, distress, incurred, proof, damages, deterrent, distress, incurred, proof,

redress, remedy, wrongedredress, remedy, wronged What is the purpose of the law of tort? Many What is the purpose of the law of tort? Many

lawyers describe this as the most disorganised lawyers describe this as the most disorganised area of law. It has even been described as ‘the area of law. It has even been described as ‘the dustbin of law’. Meaning that it is the place dustbin of law’. Meaning that it is the place where all of the problems that other areas of law where all of the problems that other areas of law cannot deal with will eventually arrive.However, cannot deal with will eventually arrive.However, the principal purpose of the law of tort is to the principal purpose of the law of tort is to provide a____to those who have been___ by provide a____to those who have been___ by others. Some of these wrongs might be covered others. Some of these wrongs might be covered by criminal law or by contract law as well as by by criminal law or by contract law as well as by the law of tort, but some might not be.the law of tort, but some might not be.

breached, care, damages, deterrent, distress, breached, care, damages, deterrent, distress, incurred, proof, redress, remedy, wrongedincurred, proof, redress, remedy, wronged

However, people are not liable for wrongs However, people are not liable for wrongs to others in every situation in life. Let’s say to others in every situation in life. Let’s say that person A harms person B in some that person A harms person B in some way. Is person B entitled to what lawyers way. Is person B entitled to what lawyers call____? It is certainly not automatic that call____? It is certainly not automatic that person B can make a claim against person person B can make a claim against person A according to the law of tort. It depends A according to the law of tort. It depends on the type of harm that has been caused on the type of harm that has been caused and under what circumstances.and under what circumstances.

breached, care, damages, deterrent, distress, breached, care, damages, deterrent, distress, incurred, proof, redress, remedy, tortious wrongedincurred, proof, redress, remedy, tortious wronged

The law of tort is based upon principles The law of tort is based upon principles that have developed over many years. that have developed over many years. These principles explain what lawyers These principles explain what lawyers refer to as ‘____liability’. This is where one refer to as ‘____liability’. This is where one person or organisation has a duty in the person or organisation has a duty in the eyes of the law not to harm another in any eyes of the law not to harm another in any way. This duty is called duty of ____.way. This duty is called duty of ____.


To make a successful claim against someone To make a successful claim against someone according to the law of tort, you must first of all according to the law of tort, you must first of all establish that:establish that:

The person who has harmed you owed a duty of The person who has harmed you owed a duty of care to you, andcare to you, and

The duty of care was____.The duty of care was____. In some cases you also need to provide the In some cases you also need to provide the

court with___of harm, but in other cases just court with___of harm, but in other cases just proving that the duty of care was breached is proving that the duty of care was breached is enough.enough.

breached, care, compensate, damages, deterrent, breached, care, compensate, damages, deterrent, distress, incurred, proof, redress, remedy, distress, incurred, proof, redress, remedy,

wrongedwronged

The main objective of the law of tort is not The main objective of the law of tort is not to punish the wrongdoer, but to ____the to punish the wrongdoer, but to ____the injured party. This compensation usually injured party. This compensation usually takes the form of a payment of money that takes the form of a payment of money that is referred to as ___.is referred to as ___.


Let’s say that person A is driving dangerously Let’s say that person A is driving dangerously and causes harm to person B by crashing into and causes harm to person B by crashing into his car. In this example, person A has an his car. In this example, person A has an automatic duty of care not to harm anyone in automatic duty of care not to harm anyone in this way and that duty has been_____. A court this way and that duty has been_____. A court might award _____to cover the cost of buying a might award _____to cover the cost of buying a new car. It might also award damages for any new car. It might also award damages for any other expenses that person B has ____, such as other expenses that person B has ____, such as loss of earnings if he is unable to go to work.loss of earnings if he is unable to go to work.


The court might also add a certain amount of The court might also add a certain amount of ____to the sum awarded for things that are ____to the sum awarded for things that are difficult to measure, such as person B’s pain and difficult to measure, such as person B’s pain and suffering. The phrase moral damage is not used suffering. The phrase moral damage is not used in English to describe his kind of suffering. We in English to describe his kind of suffering. We usually describe it as ‘pain and suffering’ or usually describe it as ‘pain and suffering’ or ‘emotional ___.‘emotional ___.

Some lawyers think that the law of tort also acts Some lawyers think that the law of tort also acts as a ___in that people think twice before as a ___in that people think twice before behaving in a way that could lead to harm.behaving in a way that could lead to harm.

Fill in the missing words: agree, argue,ask, Fill in the missing words: agree, argue,ask, contribute, do, establish, expect, contribute, do, establish, expect, torttort

Under what circumstances is a person guilty of Under what circumstances is a person guilty of the ___of negligence? Unfortunately, the the ___of negligence? Unfortunately, the definition of the term ‘negligence’ varies definition of the term ‘negligence’ varies according to which book you are reading. The according to which book you are reading. The legal term ‘negligence’ has a much more legal term ‘negligence’ has a much more complex meaning than the general English complex meaning than the general English meaning of the word. However, most lawyers meaning of the word. However, most lawyers ___upon the idea that in order to establish ___upon the idea that in order to establish negligence in a particular situation we negligence in a particular situation we must___three fundamental questions:must___three fundamental questions:

Fill in the missing words: agree, argue,ask, Fill in the missing words: agree, argue,ask, contribute, do, establish, expect, contribute, do, establish, expect, negligentnegligent

oweowe Did the defendant___the claimant a duty Did the defendant___the claimant a duty

of care?of care? Was that duty of care breached?Was that duty of care breached? Did the defendant’s breach cause, or Did the defendant’s breach cause, or

materially___to, the damage suffered by materially___to, the damage suffered by the claimant?the claimant?

If the answer to all three questions is ‘yes’, If the answer to all three questions is ‘yes’, then the defendant has been___ in the then the defendant has been___ in the legal sense of the word.legal sense of the word.

agree, argue,ask, , care,care, contribute, do, contribute, do, establish, expectestablish, expect

To whom do I owe the duty of___? The case law To whom do I owe the duty of___? The case law in this area is complicated. However, there is a in this area is complicated. However, there is a principle of English law that says that I owe a principle of English law that says that I owe a duty of care to anyone in situtations where it is duty of care to anyone in situtations where it is reasonably foreseeable that my act or omission reasonably foreseeable that my act or omission might cause harm to another person. In other might cause harm to another person. In other words, it is a defence to an allegation of words, it is a defence to an allegation of negligence to ___that no reasonable person negligence to ___that no reasonable person would have anticipated that my act or omission would have anticipated that my act or omission would cause harm.would cause harm.

agree, argue,ask, contribute, do, establish, agree, argue,ask, contribute, do, establish, expectexpect

Assuming that I can reasonably anticipate the Assuming that I can reasonably anticipate the result of my act or omission, what standard of result of my act or omission, what standard of care does the law___from me? How do I know care does the law___from me? How do I know when I have breached my duty of care? To when I have breached my duty of care? To answer this question, most English law students answer this question, most English law students are asked to remember the general principle of are asked to remember the general principle of negligence provided by a judge named Alderson negligence provided by a judge named Alderson in the case of Blyth v Birmingham Waterworks in the case of Blyth v Birmingham Waterworks (1856). The judge said:(1856). The judge said:


‘‘Negligence is the omission Negligence is the omission to___something which a reasonable man, to___something which a reasonable man, guided upon those considerations which guided upon those considerations which ordinarily regulate the conduct of human ordinarily regulate the conduct of human affairs, would do, or doing something affairs, would do, or doing something which a prudent and reasonable man which a prudent and reasonable man would not do’.would not do’.


Again, the question of whether or not I Again, the question of whether or not I have breached my duty of care has been have breached my duty of care has been decided by an objective test. What would decided by an objective test. What would an ordinary, reasonable person do under an ordinary, reasonable person do under the same circumstances? Finally, in order the same circumstances? Finally, in order to firmly __negligence, the claimant must to firmly __negligence, the claimant must demonstrate that the negligent act of the demonstrate that the negligent act of the defendant was the main cause of the defendant was the main cause of the damage complained of. A court will often damage complained of. A court will often ask:ask:

agree, argue,ask, agree, argue,ask, causation,causation, contribute, contribute, defendantdefendant do, establish, expect, do, establish, expect, sufferedsuffered

Was the chain of causation broken at any Was the chain of causation broken at any time?time?

Would the harm that the claimant ___have Would the harm that the claimant ___have happened anyway, even if the ____had happened anyway, even if the ____had not acted in a particular way?not acted in a particular way?

Even where there is a clear chain of ____, Even where there is a clear chain of ____, was the damage too remote, in other was the damage too remote, in other words, not reasonably foreseeable by the words, not reasonably foreseeable by the defendant?defendant?

agree, argue,ask, contribute, do, establish, agree, argue,ask, contribute, do, establish, expect, imagine, expect, imagine, negligent, sufferednegligent, suffered

In conclusion, establishing that someone In conclusion, establishing that someone has been____ is not as straightforward as has been____ is not as straightforward as the general public might imagine.the general public might imagine.

True or false?True or false?

The legal meaning of the word The legal meaning of the word ‘negligence’is more complicated than the ‘negligence’is more complicated than the general, dictionary meaning as the public general, dictionary meaning as the public would understand it.would understand it.

According to English law, I owe a duty of According to English law, I owe a duty of care to all other citizens in all situations.care to all other citizens in all situations.

The test of whether or not one person The test of whether or not one person owes another person a duty of care is an owes another person a duty of care is an objective one.objective one.

True or false?True or false?

The definition of negligence from 1856 The definition of negligence from 1856 comes from the common law.comes from the common law.

In cases where there is a clear chain of In cases where there is a clear chain of causation between the defendant’s causation between the defendant’s conduct and the claimant’s harm, the conduct and the claimant’s harm, the defendant will always be guilty of defendant will always be guilty of negligence.negligence.

Complete the following sentences with a Complete the following sentences with a preposition: by, under, at, upon, ofpreposition: by, under, at, upon, of

Do we agree___the fact that your client Do we agree___the fact that your client owed my client a duty of care?owed my client a duty of care?

We must ask ourselves what a reasonable We must ask ourselves what a reasonable person would have done___the person would have done___the circumstances.circumstances.

The defendant did not take reasonable The defendant did not take reasonable care when using dangerous chemicals and care when using dangerous chemicals and so he is guilty ___behaving negligently. so he is guilty ___behaving negligently.

by, under, at, upon, ofby, under, at, upon, of

The damage caused to the claimant was The damage caused to the claimant was not reasonably foreseeable___the not reasonably foreseeable___the defendant.defendant.

___what point do you think that the chain ___what point do you think that the chain of causation was broken?of causation was broken?

QuestionsQuestions

Where was Mrs Donoghue from?Where was Mrs Donoghue from? What was the address of the cafe where What was the address of the cafe where

the incident happened? Why was no one the incident happened? Why was no one able to see the contents of the bottle of able to see the contents of the bottle of ginger beer before it was poured out?ginger beer before it was poured out?

What did Mrs Donoghue claim to have What did Mrs Donoghue claim to have found in her bottle of ginger beer?found in her bottle of ginger beer?

What illness was Mrs Donoghue treated for soon What illness was Mrs Donoghue treated for soon after her visit to the cafe?after her visit to the cafe?

What second serious effect did Mrs Donoghue What second serious effect did Mrs Donoghue claim the incident had caused?claim the incident had caused?

Why was it so surprising that Mr Leechman Why was it so surprising that Mr Leechman decided to take this case to court?decided to take this case to court?

This case established that a duty of care exists This case established that a duty of care exists between manufacturers and which other general between manufacturers and which other general group of people?group of people?

Complete the sentences with the Complete the sentences with the correct prepositioncorrect preposition

Each citizen within a particular jurisdiction is Each citizen within a particular jurisdiction is liable__any breach of his or her duty of care.liable__any breach of his or her duty of care.

If you cause harm___someone as a result of a If you cause harm___someone as a result of a breach of the duty of care then you will probably breach of the duty of care then you will probably be ordered to pay damages to that person.be ordered to pay damages to that person.

The amount of damages that you have to pay The amount of damages that you have to pay will be dependent ___the circumstances of the will be dependent ___the circumstances of the case.case.

My client is entitled ___redress for the My client is entitled ___redress for the harm that she has suffered.harm that she has suffered.

Many of the principles of the modern law Many of the principles of the modern law of tort arose__the facts of the case of of tort arose__the facts of the case of Donoghue v Stevenson.Donoghue v Stevenson.

Many of the obligations that we have Many of the obligations that we have under the law of tort are imposed upon us under the law of tort are imposed upon us ___statute. ___statute.

Do we agree __the fact that your client was Do we agree __the fact that your client was liable for this accident?liable for this accident?

There was no break in the chain___causation There was no break in the chain___causation and your client was directly responsible for my and your client was directly responsible for my client’s loss.client’s loss.

Mrs Donoghue met her friend at a cafe___the Mrs Donoghue met her friend at a cafe___the town of Paisley.town of Paisley.

When Mrs Donoghue’s case went to court there When Mrs Donoghue’s case went to court there was no legal precedent ___such an action.was no legal precedent ___such an action.

Documents

NEGLIGENCE Unit 31. Preview Tort vs. contract Tort vs. crime Negligence: definition Claim of negligence Objective test Legal terms Exercise