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TORT LAW

NEGLIGENCE
INTRODUCTION A tort that concerns with breach of a legal duty to take care, and because of
that breach, damage is caused to the claimant/ plaintiff. The claimant is
usually compensated if he or she suffers damage as a result of the
defedant's damage.
Most torts normally protect specific interests of the claimant. Eg; the tort of
nuisance protects against interference with the claimant's use and
enjoyment of land. The tort of battery (tresspass to the person) protects the
claimant's peson. Defamation protects against damage to reputation.
Negligence is much wider than other types of torts. It protects against three
different types of harm;

ELEMENTS

personal injury
damage to property
economic loss

Similar to other types of torts, there are 3 elements before a defendant can
be held liable for negligence;

the defendant must owe the claimant a duty of care


the defendant must breach that duty of care
damage is caused to the claimant because the defendant's breach of
duty of care

If any of these elements are missing, a defendant will not be liable for
negligence. Eg; a driver might be driving recklessly, but as long as he does
not cause any damage to anyone, he cannot be liable for negligence.

DUTY
OF
CARE

Duty of care is a legal concept which dictates the circumstances in which a


person will be liable to another in negligence. This means that if a person is
negligent, and causes damage to others, he/ she cannot be liable if he/ she
does not owe the claimant a duty of care; eventhough the claimant suffered
a very serious damage.
The purpose of this concept is to restrict the circumstances when where a
defendant will be held liable for negligence. Without this concept, it will be
very difficult to control the number of negligence cases.
The origin of duty of care can be traced back to the case of Donoghue v
Stevenson (1932). In fact, this case is the main case that created the modern
tort of negligence.
- Mrs Donoghue and her friend went into a cafe for a drink. She asked for a
ginger beer, and her friend bought it. The ginger beer was in an opaque

TORT LAW
bottle. Mrs Donoghue drank some of it, and when she poured the
remaining contents, a decomposing snail fell out of the bottle. Mrs
Donoghue became ill, and she sued the manufacturer.
Donoghue had not ordered or paid for the drink herself, so there was no
contractual relationship between Donoghue and the cafe owner. Tort law at
this time did not allow Donoghue to sue the cafe owner. There was a
contractual relationship between the cafe owner nad the friend, but the
friend had not drank the ginger beer. Ginger beer was not a dangerous
product, and the manufacturer had not fraudulently misrepresented it. At
that time, those were the only two grounds for claiming negligence against
a manufacturer. On the face of it, the law did not provide a remedy for
Donoghue.
However, she sued the manufacturer claiming that he owed her a duty to
take reasonable care that ginger beer he manufactured, bottked, labeled and
sealed and invited her to buy, did not contain substances likely to cause her
injury. She also claimed damages.
The House of Lords agreec that the manufacturers owed a duty of care to
the end consumer of their products. The ginger beer manufacturers had
breached that duty, causing harm to Mrs Donoghue, and she was entitled to
claim damages.
For the benefit of future cases, their Lordships attempted to lay down
general criteria for when a duty of care would exist. Lord Atkin came up
with the neighbour principle. According to him, 'You must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour.' 'Neighbour' in this sense does not mean
person who lives next door. According to LordAtkin, our neighbours are
those 'person who are so closely and directly affected by my act that I
ought to have them in contemplation as being so affected when Iam
directing my mind to the acts or omissions which are calle in question.'
In other words, if a person will be directly affected by our acts or
omissions, they are considered as our neighbours, and we owe them a duty
of care. We must keep them in mind when we are doing something.
In the case of Caparo Industries plc v Dickman (1990), the House of Lords
stated that there were now 3 questions to be asked in deciding whehter a
duty of care was owed by the defendant to the claimant. They are:
a) was the damage to the claimant reasonably foreseeable? (commonly
referred to as reasonable foreseeability)
b) was the relationship between the claimant and the defendant sufficiently
proximate? (commonly referred to as proximity of relationship, or simply
proximity)
c) is it just and reasonable to impose a duty of care? (commonly referred to

TORT LAW
as justice and reasonableness)
Foreseeable means predictable. Reasonable foreseeability of damage
1. REASONABLE means that a reasonable person (an ordinary person or an average person)
FORESEEABILITY can predict that damage might happen due to a certain negligent act.
Eg; if a driver does not turn on the headlights during the night, he can
reasonably predict that other cars might not see him, and might hit him.
In Langley v Dray (1998), the defendant was driving a stolen car. He was
chased by the claimant (who was a policeman). As a result of the chase, the
claimant crashed his car and he was injured. He sued the defendant for
negligence.
The Court of Appeal held that the defendant knew, or ought to have known,
that he was being chased by te claimant. Therefore, when he increased his
speed, he knew or should have known that the claimant wil also increase
his speed and so risk injury. The defendant had a duty of care not ot create
such risks,and by driving fast, he was in breach of that duty.
In addition, the defendant has to be able to identify a particular individual
who might foreseeably be affected by their actions; as in the case i of
Haley v London Electricity Board [1965] AC 778.

2. PROXIMITY

Proximity means closeness. If the claimant and the defendant are close
whether physically or legally speaking a duty of care can rise. The
concept of proximity of relationship can be traced back to the neighbour
principle. If a person is directly affected by our acts, he/ she is considered
as having a proximate relationship with us.
In Watson v British Boxing Board of Control (2000), the claimant was the
famous professional boxer Michael Watson. He suffered severe brain
damage after being injuredduring a match. He sued the Board because they
were in charge of safety arrangements at professional boxing matches, and
evidence showed that if they had made immediate medical attention
available at the ringside, his injuries would have been less severe.
The Court of Appeal held that there was sufficient proximity between the
Board and Watson. The Board were the only body in UK which could
license professional boxing matches, and therefore, it had complete control
of, and responsibikity for a situation which couold clearly result in harm to
Watson if the Board did not exercise reasonable care.

Normally, the courts only determine whether it is just and reasonale to


3. JUSTICE
impose a duty of careif a case meets the requirements of foreseeability and
AND
proximity, but the courts believe that there is a sound public policy reason
REASONABLENESS for denying the claim.

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In MacFarlene v Tayside Health Board (1999), the claimant became
pregnant after her partner's vasectomy failed (the vasectomy was
performed in the defendant's hospital). She claimed for the costs of
bringing up the child. The courts denied her claim on the basis that it was
not just and reasonable to award compensation for the birth of a healthy
child. In fact, most people would consider a healthy child a blesssing.

BREACH
OF
DUTY

In negligence, the courts expect the defendant to act in a manner in the


same way an average person would act in a particular situation. For
instance, a reasonable average driver will drive within the speed limit, give
a signal before making a turn, and so on. This means that every activity,
there is a 'standard behaviour' which is expected by the courts.
Breach of duty of care means that the defendant has fallen below the
standard of behaviour expected in someone undertaking the activity
concerned.
In Vaughan v Menlove (1837), the defendant constructed a hayrick, or a
stack of hay, near the border of the property he rented from the plaintiff.
The defendant was repeatedly warned that the hayrick was in danger of
catching fire over the courseof five weeks. Despite the warnings, defendant
said that 'he would chance it.' The hay eventually caught fire, burning
down both defendant's bulidings and the cottages of the plaintiff on a
neghbouring parcel of land.
It was held that the defendant was liable for negligence. According to the
court, even though it was not the defendant who caused the fire, it was well
known that hay would catch fire if npot properly stacked. A reasonable
person would have stacked the hay properly, and because the defendant did
not act like a reasonable person, he has fallen below the expected standard,
and therefore, he has breached his duty of care.

DAMAGE

The negligent act of the defendant must cause damage. However, there are
cases where the claimant thinks that the defendant's negligence has caused
the damages, but at the same time, the law does not see it that way.
For example, in the case of Hunter v Canary Wharf Ltd and London
Docklands Development Corporation (1997), there was a construction of a
big tower block (a large business and shopping developmnet) known as
Canary Wharf in East London. Because of this construction, there was
excessive dust in the area. The local residents sued the defendant, and one
of the issues was whether excessive dust could be considered as damage to
property. The Court of Appeal concludede that the mere deposit of
excessive dust was not damage because dust is an unavoidable incident in
urban life. There must some physical chance to property due to the dust
before it can be considered as damage (for eg, dust causing damage to
electrical equipment).

TORT LAW