NEGLIGENCE Unit 31

Preview Tort vs. contract Tort vs. crime Negligence: definition Claim of negligence Objective test Legal terms Exercise Case study: Donoghue v Stevenson

Law of tort vs. Law of contract Difference: Law of tort defines what sort of behaviour is wrongful Law of contract – the contractual agreement lays down what will be seen as wrongful behaviour Liability for breach of contract and tortious liability may arise from the same facts

Law of tort vs. Criminal law Many torts are also crimes, e.g. assault Law of tort and criminal law – different purposes Law of tort gives a personal remedy to individuals for any wrong they have suffered Criminal law - concerned with the protection of the public at large and will punish offenders

Parties The claimant or defendant in a tort case: either a natural or a legal person Sometimes the defendant is not the one who actually carried out the wrongful behaviour, but the law holds him responsible for the acts of the one who did cause the harm (parents, employers)

Negligence Carelessness amounting to a culpable breach of duty: failure to do or recognise sth that a reasonable person would do or recognize, or doing sth that a reasonable person would not do Negligence may be an element in a few crimes, e.g. careless driving

Negligence A tort consisting of the breach of a duty of care resulting in damage to the claimant Can be used to bring a civil action when there is no contract under which proceedings can be brought

Claim of negligence In order to succeed in a claim of negligence, a claimant must show that: The defendant owed him a duty of care There was a breach of the duty of care The harm suffered was caused by the breach of a duty of care

Neighbourhood principle Neighbourhood principle : whether there is a duty of care depends on whether the claimant is a neighbour in the legal sense A person is a ‘neighbour’ if what you do will directly affect him Duty to take reasonable care to avoid acts or omissions ‘which you can reasonably foresee would be likely to injure your neighbour’.

Donoghue v. Stevenson (1932) On 26 Aug. 1928, Mrs May Donoghue of Glasgow left her home to make the short journey into Paisley, a neighbouring town. There she met a friend at Minchella’s cafe at 1 Wellmeadow Street. Her friend ordered and paid for an ice-cream and a bottle of ginger beer.

Donoghue v. Stevenson (1932) The ginger was manufactured by Mr David Stevenson of Paisley. It came in an ‘opaque’ bottle, so no one was able to see what was in the bottle. ’.

Donoghue v. Stevenson (1932) When Mrs Donoghue’s friend was pouring out the contents of the bottle, they saw floating out of the bottle what seemed to be partly decomposed remains of a snail. Mrs Donoghue claimed she was made ill by what she had seen. She had medical treatment three days later for gastro-enteritis, and again three weeks later, at the Glasgow Royal infirmary. She also claimed that she had suffered from ‘nervous shock

Donoghue v. Stevenson (1932) There was no contractual relationship between Mr Minchella and MRS Donoghue. The only person she could sue was David Stevenson, the manufacturer of the ginger beer. The question was, on what grounds?

Donoghue v. Stevenson (1932) Mrs Donoghue’s solicitor, Walter Leechman, decided to proceed with the case, even though there was no legal precedent for such an action. The basis of the claim was that any manufacturer of a product intended for human consumption must be liable to the consumer for any damage resulting from a lack of reasonable care to ensure that the product is fit for consumption.

Donoghue v. Stevenson (1932) The case proceeded through various appeals to the House of Lords. The Lords decided in favour of Mrs Donoghue, a new precedent was established and a lady who said she was ‘not worth five pounds in all the world’ became the reason why, these days, millions of pounds have been won by claimants based on the tort of negligence.

Donoghue v. Stevenson (1932) Judgment Lord Atkin: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”

Recognized duties in law Highway (also: railways, shipping at sea, canal navigation) Employer’s liability (safe system of work, safe machinery, competent fellow employees) Professional persons(doctors, dentists, solicitors)

Recognized duties in law Carriers (duty of care to passengers and goods) Schools (duty of care to children and to third parties injured by children) Police (duty of care to general public)

Cases: Pape v. Cumbria c.c. (1992) It was held that employers had not discharged their duty of care towards their employee cleaner, who contracted dermatitis, by mere provision of rubber gloves; they should have instructed and encouraged her to wear the gloves at all times

Cases: Smoldon v. Whitworth (1996) S. a rugby player, was injured by an opposing player during a scrum in a match and W, the referee, had not taken a tight grip on the general lines to be expected of a reasonably competent referee. The referee was held to owe a duty of care to the players to protect them from the unnecessary and dangerous aspects of the game

Margereson v. J.W. Roberts Ltd; Hancock v. J.W. Roberts Ltd (1996) M’s late husband and H played together as children in the loading bays of a factory where the level of asbestos contamination was very high, and as adults they developed mesothelioma. The company was held to have breached a duty of care as they ought to have reasonably foreseen a risk of pulmonary injury to the children

Duty of care If there is no duty of care, there is no breach If there was a breach, was the harm that the claimant suffered reasonably foreseeable If it was not reasonably foreseeable – remote damage

Proof of damage Some torts require proof of damage – the claimant must prove that the defendant’s conduct caused harm Some torts (e.g. libel) actionable per se – the claimant does not need to provide proof of damage; the fact that the defendant committed the tort is enough for the claimant to be entitled to redress

Breach of duty If the defendant owed the claimant a duty of care, the next step is to prove that the defendant breached that duty of care The test: objective The standard: reasonableness

The standard of care Standard of care – that of an ordinary prudent person The care which a reasonable person would use in the circumstances Where serious consequences may follow from carelessness, the greater degree of care must be exercised (more care needed in handling a loaded gun than handling a walking stick)

Dorset Yacht Co. v. Home Office (1969) Some boys escaped from a borstal institution and set adrift and damaged a motor-yacht in Poole harbour. The Yacht Co. (owners) sued the Home Office as the Government department responsible for prisons and borstals Held: Home Office was liable for damage done by persons who escaped from custody or while on parole if the escape was due to the negligence of prison or borstal officers

Smith & Others v. Littlewoods Organisation Ltd (1987) Vandals started fire in the defendant’s empty building which damaged adjoining property. Held: occupier’s duty did not extend to preventing deliberate acts of third party vandals in these circumstances

Yachuk v. Oliver Blais Co. (1949) A boy of nine persuaded a garage attendant to let him have a tin of petrol by a false tale that his mother’s car had run out of petrol some distance from the garage. The boy poured the petrol over some timber and then set it alight. The fire caused and explosion and the boy was seriously injured. Held: it was negligence on the part of the garage attendant to entrust the child with such a dangerous commodity as petrol

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

Contributory negligence Even if a claimant has proved a duty of care, a breach of that duty and causation, the defendant could still have a defence: contributory negligence The claimant’s injury was only partly caused by the defendant’s conduct; the claimant himself is also at fault and partly to blame for his injury

Sayers v. Harlow U.D.C. (1958) The plaintiff, a woman, entered a public lavatory owned and operated by defendants. Owing to a defective lock without a handle, she could not get out of the cubicle. 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 the ground and injured herself. She sued the local authority. Held: (1) the defendants were negligent; (2) the plaintiff was guilty of contributory negligence in trying to balance on a revolving object. Her claim would be reduced by one-quarter

Froom and others v. Butcher (1976) B. drove a car negligently on a road and collided with F’s car injuring the driver, F, who was not wearing a seat-belt. The accident was solely caused by B. Held: F’s claim for damages was reduced by 25% because F was contributorily negligent in not wearing the seat-belt

Summary Negligence: definition Duty of care (neighbourhood principle) Breach of the duty of care (test of reasonableness ) Causation

Legal terms The party owing a duty of care has failed in the performance of that duty Breach of a duty of care There must be a link between the damage suffered by the claimant and the defendant’s act or omission. Causation

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

Legal terms Financial compensation for the claimant for the harm suffered Damages A duty binding on one party to avoid acts or omissions which could reasonably be foreseen as likely to injure the other party Duty of care

Legal terms This is an artificial, legal construct. An abstract entity, for example a registered company, is a separate person in law Legal person This is a human being rather than an artificial legal construct Natural person

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

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

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

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

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

Collocations To establish negligence To suffer damage To allege negligence The cause of damage A chain of causation Reasonably foreseeable

Prepositions To act in a way Your client acted in a particular way that caused harm to my client In order to do something In order to establish negligence we must show that the defendant breached his duty of care to you.

Prepositions Foreseeable by someone The damage was reasonably foreseeable by our client To be guilty of something The defendant was guilty of committing this tort

Fill in the gaps with the followig: breached, care, damages, deterrent, distress, incurred, proof, redress, remedy, wronged What is the purpose of the law of tort? Many lawyers describe this as the most disorganised area of law. It has even been described as ‘the dustbin of law’. Meaning that it is the place where all of the problems that other areas of law cannot deal with will eventually arrive.However, the principal purpose of the law of tort is to provide a____to those who have been___ by others. Some of these wrongs might be covered by criminal law or by contract law as well as by the law of tort, but some might not be.

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

breached, care, damages, deterrent, distress, incurred, proof, redress, remedy, tortious wronged The law of tort is based upon principles that have developed over many years. These principles explain what lawyers refer to as ‘____liability’. This is where one person or organisation has a duty in the eyes of the law not to harm another in any way. This duty is called duty of ____.

breached, care, damages, deterrent, distress, incurred, proof, redress, remedy, wronged To make a successful claim against someone according to the law of tort, you must first of all establish that: The person who has harmed you owed a duty of care to you, and The duty of care was____. In some cases you also need to provide the court with___of harm, but in other cases just proving that the duty of care was breached is enough.

breached, care, compensate, damages, deterrent, distress, incurred, proof, redress, remedy, wronged The main objective of the law of tort is not to punish the wrongdoer, but to ____the injured party. This compensation usually takes the form of a payment of money that is referred to as ___.

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

breached, care, damages, deterrent, distress, incurred, proof, redress, remedy, wronged The court might also add a certain amount of ____to the sum awarded for things that are difficult to measure, such as person B’s pain and suffering. The phrase moral damage is not used in English to describe his kind of suffering. We usually describe it as ‘pain and suffering’ or ‘emotional ___. Some lawyers think that the law of tort also acts as a ___in that people think twice before behaving in a way that could lead to harm.

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

Fill in the missing words: agree, argue,ask, contribute, do, establish, expect, negligent owe Did the defendant___the claimant a duty of care? Was that duty of care breached? Did the defendant’s breach cause, or materially___to, the damage suffered by the claimant? If the answer to all three questions is ‘yes’, then the defendant has been___ in the legal sense of the word.

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

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

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

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

agree, argue,ask, causation, contribute, defendant do, establish, expect, suffered Was the chain of causation broken at any time? Would the harm that the claimant ___have happened anyway, even if the ____had not acted in a particular way? Even where there is a clear chain of ____, was the damage too remote, in other words, not reasonably foreseeable by the defendant?

agree, argue,ask, contribute, do, establish, expect, imagine, negligent, suffered In conclusion, establishing that someone has been____ is not as straightforward as the general public might imagine.

True or false? The legal meaning of the word ‘negligence’is more complicated than the general, dictionary meaning as the public would understand it. According to English law, I owe a duty of care to all other citizens in all situations. The test of whether or not one person owes another person a duty of care is an objective one.

True or false? The definition of negligence from 1856 comes from the common law. In cases where there is a clear chain of causation between the defendant’s conduct and the claimant’s harm, the defendant will always be guilty of negligence.

Complete the following sentences with a preposition: by, under, at, upon, of Do we agree___the fact that your client owed my client a duty of care? We must ask ourselves what a reasonable person would have done___the circumstances. The defendant did not take reasonable care when using dangerous chemicals and so he is guilty ___behaving negligently.

by, under, at, upon, of The damage caused to the claimant was not reasonably foreseeable___the defendant. ___what point do you think that the chain of causation was broken?

Questions Where was Mrs Donoghue from? What was the address of the cafe where the incident happened? Why was no one able to see the contents of the bottle of ginger beer before it was poured out? What did Mrs Donoghue claim to have found in her bottle of ginger beer?

What illness was Mrs Donoghue treated for soon after her visit to the cafe? What second serious effect did Mrs Donoghue claim the incident had caused? Why was it so surprising that Mr Leechman decided to take this case to court? This case established that a duty of care exists between manufacturers and which other general group of people?

Complete the sentences with the correct preposition Each citizen within a particular jurisdiction is liable__any breach of his or her duty of care. If you cause harm___someone as a result of a breach of the duty of care then you will probably be ordered to pay damages to that person. The amount of damages that you have to pay will be dependent ___the circumstances of the case.

My client is entitled ___redress for the harm that she has suffered. Many of the principles of the modern law of tort arose__the facts of the case of Donoghue v Stevenson. Many of the obligations that we have under the law of tort are imposed upon us ___statute.

Do we agree __the fact that your client was liable for this accident? There was no break in the chain___causation and your client was directly responsible for my client’s loss. Mrs Donoghue met her friend at a cafe___the town of Paisley. When Mrs Donoghue’s case went to court there was no legal precedent ___such an action.