Negligence is a breach of
a legal duty of care which results in damage to another. In order for an action
in negligence to succeed, the claimant must prove the following;
- That
a duty of care was owed to him by the defendant
- The
defendant breached that duty of care
- As
a consequence of that breach, damage or loss has been suffered
A) DUTY OF CARE
There is a duty of care
not to cause foreseeable harm to others. Generally, an individual is not
automatically liable for every negligent act that he or she commits. In order
to sustain an action in negligence, it must be shown that the party at fault
owed a duty of care to the person injured as a result of their actions.
Consequently, the onus is
on the claimant to establish that the respondent owed them a duty of care.
The test for establishing
whether a duty of care exists was initially set out in Donoghue v Stevenson (1932).
In putting forward the test to establish a duty of care, Lord Atkin stated
that:
- ‘You must take reasonable care to avoid acts and omissions which you could reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? ... any person 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 and omissions which are called in question.’
It can be seen that this neighbour test for deciding the
existence of a duty of care is an objective, rather than a subjective, one. It
is not a matter of what the respondent actually considered, but what they ought
to have considered. Nor does the test require the contemplation of the
resultant effect on the specific individual injured, but merely requires that
identity of a class of individuals who might be injured as a consequence of the
respondent’s lack of care.
The idea of the neighbour, or proximity, test was
extended in Hedley Byrne v Heller (1964), which established the possibility of
liability for negligent misrepresentation causing economic loss, where a party
gave inaccurate advice or information to another party, within a special
relationship, and that party subsequently and reasonably relied on it.
In Caparo Industries plc v Dickman
(1990), a three stage test for establishing a duty of care was
recommended. This requires consideration of the following questions:
- Was the harm caused reasonably foreseeable?
- Was there a relationship of proximity between the defendant and the claimant?
- In all the circumstances, is it just, fair and reasonable to impose a duty of care?
The present position
appears to be that in establishing the existence of a duty of care in negligence,
an incremental approach must be taken. The claimant must show that the
defendant foresaw that damage would occur to the claimant, that is, that there
was sufficient proximity in time, space and relationship between the claimant
and the defendant. In practical terms, foreseeability of damage will determine
proximity in the majority of personal injury cases. The courts will then, where
appropriate, consider whether it is just and reasonable to impose a duty and
whether there are any policy reasons for denying or limiting the existence of a
duty, for example, under the floodgates argument.
B) BREACH OF DUTY OF CARE
This is the second issue
to be considered in a negligence claim. Once it has been established that the
defendant owed the claimant a duty of care, the claimant must also demonstrate
that the defendant was in breach of that duty.
Standard of care
The law does not require
unreasonable steps to be taken to avoid breaching a duty of care. In Blyth
v Birmingham Waterworks Co (1856),
the court stated that a breach of duty of care occurs if the defendant
fails:
- ‘... to do 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.’
Thus the fact that the
defendant has acted less skilfully than the reasonable person would be expected will
usually result in a breach being established. This is the case even where the
defendant is inexperienced in their particular trade or activity. For example,
in Nettleship
v Weston (1971), the court ruled that a learner driver is expected to
meet the same standards as a reasonable competent driver. However, the standard
of care expected from a child may be lower than that of an adult (Mullin
v Richards (1998)).
Clearly the degree, or
standard, of care to be exercised by such a reasonable person will vary
depending on circumstances, but the following factors will be taken into
consideration in determining the issue:
i) The seriousness of the risk
The degree of care must be
balanced against the degree of risk involved if the defendant fails in their
duty. It follows, therefore, that the greater the risk of injury or the more
likely it is to occur, the more the defendant will have to do to fulfil their
duty. The degree of care to be exercised by the defendant may be increased if the
claimant is very young, old or less able bodied in some way. The rule is that
‘you must take your victim as you find him’ (this is known as the egg-shell skull rule).
In Haley v London Electricity Board
(1965) the defendants, in order to carry out repairs, had made a hole
in the pavement. The precautions taken by the Electricity Board were sufficient
to safeguard a sighted person, but Haley, who was blind, fell into the hole,
striking his head on the pavement, and became deaf as a consequence. It was
held that
the Electricity Board was
in breach of its duty of care to pedestrians. It had failed to ensure that the
excavation was safe for all pedestrians, not just sighted persons. It was
clearly not reasonably safe for blind persons, yet it was foreseeable that they
might use the pavement.
The degree of risk has to
be balanced against the social utility and importance of the defendant’s
activity. For example, in Watt v Hertfordshire CC (1954), the
injury sustained by the plaintiff, a fireman, whilst getting to an emergency situation,
was not accepted as being the result of a breach of duty of care as, in the
circumstances, time was not available to take the measures which would have
removed the risk.
ii) Cost and practicability
Any foreseeable risk has
to be balanced against the measures necessary to eliminate it. If the cost of
these measures far outweighs the risk, the defendant will probably not be in
breach of duty for failing to carry out those measures (Latimer v AEC Ltd (1952)).
iii) Skilled persons
Individuals who hold
themselves out as having particular skills are not judged against the standard
of the reasonable person, but the reasonable person possessing the same
professional skill as they purport to have (Roe v Minister of Health (1954)).
iv) Probability of injury
When the risk of injury is
higher, the defendant must do more to meet his duty. In Glasgow Corporation v Taylor,
a local authority was held to negligent when children ate poisonous berries in
the park. A warning notice was considered to be sufficient to protect the
children.
v) Common practice
Where a individual can
prove that their actions were in line with common practice or customs it is
likely that they would have met their duty of care. This is unless the common
practice itself is found to be negligent.
vi) Social benefit
Where an action is of some
social benefit to society, the defendant may be protected from liability even
if their actions create risk.
Res ipsa loquitor
Res ipsa loquitor means
‘the thing speaks for itself’. Under this principle, the claimant argue that
the facts speak for themselves where the want of care is the only possible
explanation of defendant’s wrongful act.
The burden of proof is
reversed and the defendant is must prove that he or she was not negligent. In
order to rely on this principle, the claimant must demonstrate the following;
- The thing which caused the injury was under the management and control of the defendant.
- The accident was such that would not occur if those in control used proper care.
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