NEGLIGENCE

1. NEGLIGENCE Unit 31

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

3. 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

4. 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

5. 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)

6. 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

7. 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

8. 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

9. Duty of care • 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’.

10. 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

11. 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

12. 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

13. 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

14. 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

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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

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

26. 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.

27. 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

28. 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.

29. 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.

30. 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 ____.

31. 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.

32. 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 ___.

33. 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.

34. 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.

35. 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:

36. 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.

37. 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.

38. 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:

39. 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’.

40. 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:

41. 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?

42. 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.

43. 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.

44. 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.

45. 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.

46. 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?

47. THE MOST FAMOUS TORT CASEDonoghue v Stevenson • 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.

48. Donoghue v Stevenson • 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. • ’.

49. Donoghue v Stevenson • 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

50. Donoghue v Stevenson • 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?