Negligence cont - Breach , causation & remoteness

NEGLIGENCE – BREACH OF DUTY OF CARE

Essential Elements in the Tort of Negligence1. Duty of care2. Breach of Duty of Care3. Causation2.

BREACH OF DUTY OF CARE.

Has the Defendant done something which a prudent or reasonable man would not do?

Has the Defendant failed to do something which, in the circumstances, a reasonable man would do?

STANDARD OF CARE REQUIRED IS THAT OF HYPOTHETICAL REASONABLE MAN.

(Blyth v Birmingham Waterworks Co – 1856) ‘MAN IN STREET’, ‘MAN IN CLAPHAM OMNIBUS’.OBJECTIVE (no account of idiosyncrasies of the person whose conduct is in question)OBJECTIVE – Not distorted by personal feelings or bias.

ESTABLISHING BREACH OF DUTY OF CAREThe Court must determine whether:a. The Defendant has done something which a prudent or reasonable man would not do ORb. The Defendant has failed to do something which a reasonable man would do.

MUST ASSESS HOW REASONABLE MAN WOULD BEHAVECONSIDER THE FOLLOWING:1. The Magnitude of the riskCan occur in 2 ways:1. High risk as so likely to happen2. High risk as consequences of it happening are so serious for Claimant.The greater the risk, the more precautions have to be taken.

Bolton v Stone – HL – 1951The claimant was standing in the road when she was struck by a cricket ball which was hit out of the defendants’ ground. The evidence was this had happened 6 times in preceding 30 years. It was held that the risk was so small that the defendants were justified in not taking further measures to eliminate the risk.(Imagine military training area with live ammunition)

Paris v Stepney Borough Council – 1951-HLThe Claimant who had only one good eye, went completely blind when, during the course of his employment a chip of metal entered his good eye. He sued his employer for negligence, contending that as his employer knew he only had one good eye, they should have provided him with goggles. The employer’s defence was that it was not customary to provide goggles to their employees.Lord Morton said “The more serious the damage which will happen if an accident occurs, the more thorough are the precautions which an employer should take”. The employer was found in breach of his duty of care in failing to provide goggles.2. The cost and practicality of measures to overcome the risk.

Latimer v AEC Ltd – 1953 – HLThe floor of the Defendant’s factory became flooded after heavy rain. The water mixed with some oil and the floor became slippery. The Defendant sprinkled sawdust but did not have sufficient sawdust to cover the entire floor. The claimant employee slipped on an uncovered area of the floor and sustained an injury. The claimant alleged that the Defendant was negligent in failing to close the factory that day and send the workers home. The House of Lords held that in the circumstances of the case the employer had taken reasonable precautions and was not in breach of duty.(Where risk great employer may have to close business – fire and structural damage).

3. The purpose of the Defendant’s ActWatt v Herford CC – 1954 – CAA Fireman was injured by the movement of a heavy jack whilst travelling in a lorry which was not properly equipped to carry it. The Jack had been placed on the lorry as it was urgently needed to save the life of a woman who had become trapped under a bus. Held that in these circumstances the Defendants were justified in exposing the claimant to the risk.Denning “The saving of life or limb justifies taking considerable risk”

.TEST OF REASONABLE MAN v CHARACTERISTICS OF DEFENDANTLegal standards generally take no account of the personal characteristics of the Defendant.Not sufficient for Defendant to say did incompetent best. Inexperience of lack of intelligence or slow reactions provide no excuse to a charge of negligence. Nor will a defendant be able to rely on disability – a partially sighted driver and learner driver owe the same duty of care as one with normal sight. But are cases which are approached differently

.1. ChildrenMullin v Richards – 1998 – CATwo 15 year old girls engaged in play fight with plastic rulers. One of the rulers broke and a bit of plastic entered the eye of one of the girls (the Claimant) causing her to lose her sight in that eye.Hutchinson LJ said:“The test of foreseeability is an objective one; but the fact that the first defendant was at the time a 15 year old schoolgirl is not irrelevant. The question for the judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant’s situation would have realised gave risk to the injury….the test is whether an ordinarily prudent and reasonable 15 year-old schoolgirl in the defendant’s situation would have realised as much”.

2. ProfessionalsPersons holding themselves out as having a particular skill or profession must attain the standard of the reasonably competent person exercising that skill or profession.Bolam v Friern Hospital Management Committee 1957McNair J said “..where you get a situation which involves the use of some special skill or competence, then the test,, is not the test of the man on the top of the Clapham Omnibus, because he has not got this special skill. It is the test of the ordinary skilled man exercising and professing to have this special skill….

A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.FACTS: the claimant had undergone electroconvulsive therapy which resulted in serious injuries. He alleged negligence and said he should have been informed of the risk of fracture before he consented to the treatment and that the drugs should have been given to him before the therapy to make him more relaxed.HELD: Not negligent because the practices were consistent with those in other hospitals.NOTE: It is part of professional’s duty to keep abreast of new developments and techniques.

3. CAUSATION.

Barnett v Chelsea & Kensington Hospital Management Committee 1968.

The Claimant’s husband became ill after drinking tea which contained arsenic. He was taken to hospital but the doctor in casualty did not examine him and admit him. Instead, he asked the claimant’s husband to see his own GP. A few hours later he died.1. Did the Doctor owe a duty of care?

2. Was the Doctor in breach of his duty?

3. Did the Claimant’s husband suffer harm?HOWEVER, had the Doctor not been negligent and admitted the Claimant’s husband to hospital, the Claimant’s husband would still have died.

Doctor’s negligence did not cause death.“BUT FOR” TEST“If harm to the claimant would not have occurred “but for” the Defendant’s negligence then that negligence is a cause of the harm…if the loss would occur in any event, the defendant’s conduct is not a causeThe “but for” test will not always solve the problem. IE where two simultaneous wrongs are done to the claimant, each of which would in itself be sufficient to cause the damage. In this case the test leads to the absurd result that neither breach is a cause of the damage.

CONCURRENT CAUSES.Fitzgerald v Lane -1988 – HLClaimant crossing road when two cars, driven by D1 and D2 hit him and he sustained neck injury. Both drivers were found to be negligent. Issue – causations. Evidence could not establish which driver caused injury to his neck. Both drivers held jointly liable.Hale v Hants & Dorset Motor Services – 1947Branches of a tress owned by D1, were overhanging a highway. D2’s employee drove a bus too near the pavement side of the road and a branch shattered a window on the bus, injuring a passenger. Both D1 and D2 were held to be negligent and both were liable.CONSECUTIVE CASESBaker v Willoughby – 1970 – HLClaimant’s left leg was injured in a car accident caused by the negligence of the defendant. Before the court case, the Claimant was shot to the leg by robbers at his work place. The leg had to be amputated.Defendant argues that should only be liable to compensate the Claimant until the date of the shooting as the second injury obliterated (wiped out) the first.HELD: Claimant’s right of recovery was not limited to the loss suffered only before the robbery. He was entitled to damages that he would have received had there been no subsequent injury.LORD REID“A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg: it is his inability to lead a full life. The second injury does not diminish this. Why should it be regarded as having obliterated or superseded them??If the later injuries merely become a concurrent cause of the disabilities caused by the injury inflicted by the defendant, then in my view they cannot diminish the damages”

Jobling v Associated Diaries Ltd – 1982 – HLIn 1973 the claimant suffered injury as a result of a tortuous act of his employer. The injury reduced his earning capacity. In 1976 the claimant started suffering from a spinal disease which meant that he could not work at all.HELD: the Defendant had to compensate the Claimant for his reduced earning capacity from 1973-1976 but not thereafter. The reasoning was that the illness is a vicissitude of life and as such should be a factor taken into account in assessing damages for future loss of earnings.

LORD WILBERFORCE“I think that Lord Reid’s theory of concurrent causes even if workable on the particular facts of Baker v Willoughby (where successive injuries were sustained by the same limb) is as a general solution not supported by the authority he invokes not workable in other cases”.

3A. REMOTENESS OF DAMAGE (LEGAL CAUSATION)Where damage or injury which has occurred is far removed from the cause of the damage or injury.Polemis and Furness, Withy and Co. 1921Defendants were charterers of a ship. Stevedores (those employed to load/unload ships) employed by the charteres negligently dropped a plank into the hold of the ship. Tins of petrol had been stored in the hold and there was petrol vapour in the hold. The plank fell on something, causing a spark which ignited the vapour. There was a fire and the entire ship was destroyed. Although the Defendants could foresee the spark could cause some damage, they couldn’t reasonably foresee entire ship would be destroyed. HELD LIABLE for consequences of actions.Overseas Tankship Ltd v Morts Dock Engineering Co. (The Wagon Mound No. 1) – 1961 – Privy CouncilThe Defendants had negligently allowed some oil from their ship to spill into Sydney Harbour. The Claimant owned a wharf in the harbour and was carrying out some welding work. Sparks from the welding ignited waste material in the water and the oil caught fire causing damage to the Claimant’s wharf.HELD: The Defendants could not reasonably foresee that oil spread thinly on the water would catch fire. NOT LIABLE.Viscount Simonds said“the test in Polemis should no longer be regarded as good law….For it does not seem consonant with current ideas of justice or morality that, for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be “direct”.Type of damage must be reasonably foreseeable.If reasonably foreseeable, it matters not that the actual damage is far greater in extent than could have been foreseen.Smith v Leech Brain & Co. 1962Mr Smith suffered a burn on his lip. The tissues of his lip were prone to cancer. The burn developed into cancer and he died.HELD: LIBALE – ie tortfeasor takes victim as he finds him.Question is whether Defendants could reasonably foresee type of injury – burn – they could.3B INTERVENING CAUSESIn some cases the claimant’s damage is attributable not to breach of duty but some intervening act. Act breaks chain of causation.McKew v Holland & Hannen & Cubitts Ltd – HL – 1969The Claimant’s leg would give way without warning as a result of an injury caused by the Defendant’s negligence. Whilst descending a steep flight of steps without assistance or support, Claimant’s leg gave way. He fell and fractured his ankle.HELD not liable. Although foreseeable, Claimant’s act so unreasonable.Note: lack of consistency, masking policy factors at play in judicial process.