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 succeedin a claimofnegligence, a claimant must show that: • Thedefendantowedhim a dutyof care • Therewas a breachofthedutyof care • Theharmsufferedwascausedbythebreachof a dutyof care • Theharmwasreasonablyforeseable

9. Neighbourhoodprinciple • 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. Donoghue v. Stevenson (1932) On 26 Aug. 1928, Mrs MayDonoghueof Glasgow left her home to maketheshortjourneyintoPaisley, a neighbouring town. Thereshemet a friend at Minchella’s cafe at 1 Wellmeadow Street. Herfriendorderedandpaid for an ice-cream and a bottleofgingerbeer.

11. Donoghue v. Stevenson (1932) ThegingerwasmanufacturedbyMr David StevensonofPaisley. It cameinan ‘opaque’ bottle, so no one wasable to seewhatwasinthebottle. ’.

12. Donoghue v. Stevenson (1932) When Mrs Donoghue’s friendwaspouringoutthecontentsofthebottle, theysawfloatingoutofthebottlewhatseemed to bepartlydecomposedremainsof a snail. Mrs Donoghueclaimedshewasmadeillbywhatshe had seen. She had medicaltreatmentthreedayslater for gastro-enteritis, andagainthreeweekslater, at the Glasgow Royal infirmary. Shealsoclaimedthatshe had sufferedfrom ‘nervousshock

13. Donoghue v. Stevenson (1932) Therewas no contractualrelationshipbetweenMrMinchellaand Mrs Donoghue. Theonlypersonshecouldsuewas David Stevenson, themanufacturerofthegingerbeer. Thequestionwas, on whatgrounds?

14. Donoghue v. Stevenson (1932) Mrs Donoghue’s solicitor, Walter Leechman, decided to proceedwiththecase, eventhoughtherewas no legal precedent for suchanaction. Thebasisoftheclaimwasthatanymanufacturerof a productintended for human consumption must beliable to theconsumer for anydamageresultingfrom a lackofreasonable care to ensurethattheproduct is fit for consumption.

15. Donoghue v. Stevenson (1932) Thecaseproceededthroughvariousappeals to theHouseofLords. TheLordsdecidedinfavourof Mrs Donoghue, a new precedentwasestablishedand a lady who saidshewas ‘not worth fivepoundsin all the world’ becamethereasonwhy, thesedays, millionsofpoundshavebeenwonbyclaimantsbased on thetortofnegligence.

16. 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”

17. Recognizeddutiesinlaw Highway (also: railways, shipping at sea, canalnavigation) Employer’s liability (safesystemof work, safemachinery, competentfellowemployees) Professional persons (doctors, dentists, solicitors)

18. Recognizeddutiesinlaw Carriers (dutyof care to passengersandgoods) Schools (dutyof care to childrenandto third partiesinjuredbychildren) Police (dutyof care to general public)

19. Cases: Pape v. Cumbriac.c. (1992) It washeldthatemployers had notdischargedtheirdutyof care towardstheiremployeecleaner, who contracted dermatitis, bymereprovisionofrubbergloves; theyshouldhaveinstructedandencouraged her to wearthegloves at all times

20. Cases: Smoldon v. Whitworth (1996) S. a rugbyplayer, wasinjuredbyanopposingplayerduringascruminamatchand W, thereferee, had nottaken a tightgrip on the general lines to beexpectedof a reasonablycompetentreferee. Therefereewasheld to owe a dutyof care to theplayerstoprotectthemfromtheunnecessaryanddangerousaspectsofthe game

21. Margereson v. J.W. Roberts Ltd; Hancock v. J.W. Roberts Ltd (1996) M’s late husbandand H playedtogether as childrenintheloadingbaysof a factorywherethelevelofasbestoscontaminationwasveryhigh, and as adultstheydevelopedmesothelioma. Thecompanywasheld to havebreached a dutyof care as theyought to havereasonablyforeseen a riskofpulmonaryinjury to thechildren

22. 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

23. 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

24. The standard of care Standard of care – thatofanordinaryprudentperson The care which a reasonablepersonwould use inthecircumstances Whereseriousconsequencesmayfollowfromcarelessness, thegreaterdegreeof care must beexercised (more care neededinhandling a loadedgunthanhandlingawalkingstick)

25. DorsetYachtCo. v. Home Office (1969) Some boys escapedfrom a borstalinstitutionand set adriftanddamaged a motor-yachtinPoole harbour. TheYachtCo. (owners) suedthe Home Office as theGovernment department responsible for prisonsandborstals Held: Home Office wasliable for damage done bypersons who escapedfromcustody or while on parole iftheescapewasdue to thenegligenceofprison or borstalofficers

26. Smith & Others v. LittlewoodsOrganisationLtd (1987) Vandalsstartedfireinthedefendant’s empty building whichdamagedadjoiningproperty. Held: occupier’s dutydidnotextend to preventingdeliberateactsof third partyvandalsinthesecircumstances

27. Yachuk v. Oliver BlaisCo. (1949) A boyof nine persuaded a garageattendant to let himhave a tin of petrol by a false tale that his mother’s car had runoutof petrol some distance fromthegarage. Theboypouredthe petrol over some timberandthen set it alight. Thefirecausedandexplosionandtheboywasseriouslyinjured. Held: it wasnegligence on thepartofthegarageattendant to entrustthechildwithsuch a dangerouscommodity as petrol

28. 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

29. Defences to negligence Contributory Negligence: the plaintiff contributed to the negligent act. Assumption of Risk: If plaintiff knew the risk and voluntarily assumed itEmergency Doctrineofemergency: Allows defendant to lower standard of care because an emergency required them to act rashly in order to avoid a greater harm from occurring.

30. 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

31. Sayers v. Harlow U.D.C. (1958) Theplaintiff, a woman, enteredapubliclavatoryownedandoperatedbydefendants. Owing to a defectivelockwithoutahandle, shecouldnotgetoutofthecubicle. Her bus wasdue to leave, andshetriedtoclimboverthedoor. Sheplaced her foot on a revolvingtoiletroll, fell to thegroundandinjuredherself. Shesuedthelocalauthority. Held: (1) thedefendantswerenegligent; (2) theplaintiffwasguiltyofcontributorynegligenceintrying to balance on a revolvingobject. Herclaimwouldbereducedby one-quarter

32. Froomandothers v. Butcher (1976) B. drove a car negligently on a roadandcollidedwith F’s car injuringthedriver, F, who wasnotwearing a seat-belt. Theaccidentwassolelycausedby B. Held: F’s claim for damageswasreducedby 25% because F wascontributorilynegligentinnotwearingtheseat-belt

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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

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

44. 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.

45. 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

46. Fill in the gaps with the followig: breached, care, damages, deterrent, distress, incurred, proof, redress, remedy, wronged • Whatisthepurposeofthelawoftort? Manylawyersdescribethis as the most disorganisedareaoflaw. Ithasevenbeendescribed as ‘thedustbinoflaw’, meaningthatitisthe place wherealloftheproblemsthatotherareasoflawcannotdealwithwilleventuallyarrive.However, the principal purposeofthelawoftortis to provide a____tothosewhohavebeen___ byothers. Some ofthesewrongsmightbecoveredbycriminallaworbycontractlaw as well as bythelawoftort, but some mightnotbe.

47. 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.

48. 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 ____.

49. breached, care, damages, deterrent, distress, incurred, proof, redress, remedy, wronged • To make a successfulclaimagainstsomeoneaccording to thelawoftort, you must firstofallestablishthat: • Thepersonwhohasharmedyouowed a dutyof care to you, and • thedutyof care was____. • In some casesyoualsoneed to provide thecourtwith___ofharm, but inothercasesjustprovingthatthedutyof care wasbreachedisenough.

50. 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 ___.