Lecture 6: Liability in Tort - Negligence

A tort is a civil wrong, independent of contract.

A duty of care in tort can co-exist with a contractual duty but it depends on the facts
and the relationship of the parties. A claimant may proceed in contract or tort but the
measure of damages and limitation periods for each have to be considered.

The main tort of concern to business ventures is probably the tort of negligence.
In addition, the tort of nuisance protects society from tortuous acts that might
affect us in the enjoyment of our surroundings. There are many types of torts –
defamation, nuisance, negligence, trespass etc. We will be focussing on the tort
of negligence.

The tort of negligence is probably the most important area of modern tort. Its
major aim is to compensate the claimant. “Liability in tort is not undertaken
voluntarily but is imposed by the courts.” Liability in tort is often based on fault,
but liability in contract is generally strict that is without need to prove fault.

Negligence

As far as the tort of negligence is concerned, in order to successfully sue in

negligence, THREE ELEMENTS must be proved:

1. A DUTY OF CARE WAS OWED BY THE DEFENDANT TO THE CLAIMANT

2. A BREACH OF THE DUTY OF CARE OCCURRED, and
3. A RESULTING (FORESEEABLE) LOSS OCCURRED DUE TO THE
BREACH.

It should be added that there are many cases dealing with negligence and only a
selection will be mentioned here.

DUTY OF CARE
DONOGHUE v STEVENSON [1932] HL is the leading case in the modern law of
negligence. Mrs. Donoghue suffered shock and illness when the decomposing
remains of a very dead snail came out of the ginger beer bottle, which her friend
had bought to pour over ice cream. The contract was between her friend and the
ginger beer manufacturer (Stevenson), so Mrs D could not sue in contract and
had to sue the manufacturer in tort to obtain compensation. The key point is that
(fortunately) no-one is liable for every negligent act which they commit. D had to
prove that Stevenson had a duty of care to any ultimate consumer of the ginger
beer, not only herself.

This duty was that reasonable care must be taken to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour.

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Who is a ‘neighbour’ in law?

‘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 that are called in question’.

The range of the duty of care in negligence has been extended over the years to
a wide range of claims, including for nervous shock and for economic loss. In this
module, we will concentrate on liability in situations leading to economic loss. The
courts are concerned when considering whether to extend liability with the question
‘will they be opening the floodgates?’ That is, will their decision to extend liability
result in a ‘flood’ of claims for damages?

There will only be a duty where the claimant can prove three things:

(a) The loss must be foreseeable;

(b) There must be proximity, i.e. close and direct link connecting the claimant
and the defendant, which shows that the duty was owed to the claimant
and
(c) It can be shown that the law imposing such a duty on the defendant on
the facts of the case is “fair, just and reasonable”
(Caparo V Dickman (1990) - see later).

Also, is there a matter of public policy which requires that a duty of care does not
exist?

This case demonstrates how the courts deal with proximity and
foreseeability.

BOURHILL v YOUNG [1942] - The case of the pregnant fish wife. She was 45
feet away from an accident caused by a negligent motor cyclist crashing head on
into a car. She heard the sound but could not see it as a tramcar blocked her
view. He was killed and she went to look at his body lying in a pool of blood. As a
result, she wrenched, injured her back and suffered shock. She couldn’t go to
work for a considerable period of time and her baby was stillborn (born dead).
Held her claim for damages failed because the motor cyclist could not reasonably
have been expected to foresee that she would be in potential danger. In other
words, she was not a ‘neighbour’ to the motor cyclist, and he did not break any
duty of care to her. She had not been present at the scene of the accident.

Contrast the case of

Liability for negligent misstatement will be discussed later.

BREACH OF DUTY

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As well as a duty of care, the claimant is also required to prove that there has
been a breach of the duty of care by the defendant. This occurs when you do not
take all the care you reasonably should. This is an objective standard. The
reasonable man test – BLYTH v BIRMINGHAM WATERWORKS CO (1856).

When you put the keys in the car, and start to drive, you owe a duty of care to
everyone you encounter on the road.

NETTLESHIP v WESTON (1971) CA - the duty of care owed by a learner driver

is the same as every other driver. So, the standard of skill from a trainee training
in a given field is the standard one would expect from a reasonable person from
that persons profession

A higher standard of care is expected of professionals. Those with special skills.,

like solicitors and accountants will be judged not against the reasonable person,
but against the reasonable person who possess their skills.

The knowledge and practice existing at the time is also a consideration.

In the following case the risk of harm was very small. It was improbable that
harm would occur = BOLTON v STONE [1951] HL is a cricket club case, which
illustrates the point of whether there had been a breach. The more probable the
harm that may result from the defendants actions may cause, the more likely that
the defendant has broken their duty to the harmed person.
The club had erected a fence which was 17 feet above the pitch (the playing
area) to stop balls hitting people living in the neighbouring street. However, Miss
Stone was hit whilst standing outside her house. She sued, but the club gave
evidence that it was a rare event. It had happened only 6 times in 30 years. The
HL held there had been no legal negligence, and therefore she could not claim
compensation for being hit by the cricket ball.

See also the case of Glasgow Corporation v Taylor (1922) where it was held
that a warning notice was not sufficient when it came to a child who had eaten
poisonous berries in a park. More was required when it came to ensuring the
safety of children, where the potential claimant was more vulnerable.

Other important cases dealing with breach of the duty of care are: PARIS v
STEPNEY BOROUGH COUNCIL (1951), LATIMER v AEC (1953), ROE v
MINISTRY OF HEALTH (1954) etc.

The law looks favourably on rescuers and allows them a lower standard of care. This
is now enshrined in the Social Action, Responsibility and Heroism Act 2015.

RESULTING LOSS MUST BE REASONABLY

FORESEEABLE

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A claimant must prove that a loss was suffered as a result of the breach of the
duty of care by the defendant. In addition, there must be proof of foreseeability of
such loss. So damage incurred must not be too remote. What is meant by this?
This basically means that it must be reasonably foreseeable.

What is the nature of this test? It is an objective test that applies here. What a
reasonable man would have foreseen as a likely consequence of what they have
done, will be what the defendant is liable for.

This is seen in the WAGON MOUND [1961] AC/PC* – the fire on water case,
from Sydney docks and harbour. As the spilt oil approached the dockyard, the
workers warned their manager that if a spark from their welding operations set
the oil alight it could destroy the repair yard and the ship. The manager stopped
the welding work and called in a consulting engineer, who advised that fire would
not burn on the water. This broke the chain of causation as the manager, relying
on the expert advice, ordered the welding to re-start. In fact a spark hit a bale of
oil-soaked cotton in the water and caused a fire which seriously damaged the
yard and the ship (which was named the Wagon Mound). Held not liable for the
damage caused by the fire. (*Overseas Tankships v Morts Docks Engineering
Co). It was the case that the fire occurred directly due to the spillage of oil,
however no one knew oil could ignite in this particular way.

The claimant can only recover damages if he can prove that the damage was
caused by the defendant’s breach of duty, the ‘but for test’.

BARNETT v CHELSEA & KENSINGTON HOSPITAL COMMITTEE (1968)

Mr Barnett arrived at the hospital in the early hours of the morning. The casualty
doctor did not examine him and told him to go home and see his GP. He died 5
hours later from arsenic poisoning and so the breach of the duty of care did not
cause the death. The failure to examine was not a cause of the death.

So there has to be a causal link between the breach and the damage that occurs.
What must the claimant prove here? They have to prove that negligence of the
defendant caused the injury/loss. This is also referred to as the but for test. I.e. but
for the actions of the defendant in a given case, the claimant would not have incurred
the loss.

The law looks favourably on rescuers and allows them a lower standard of care. This
is now enshrined in the Social Action, Responsibility and Heroism Act 2015.

LIABILITY FOR NEGLIGENT MISSTATEMENT

In business contracts, the risks and costs associated with misrepresentation are
recognised.

If an adviser, for example an accountant, solicitor, banker or surveyor makes a

statement in a professional or expert capacity, where it is likely that others would
rely on it, then he may owe a duty of care in and be potentially liable in tort, in
addition to his contractual commitments.

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What if the misrepresentation was the result of carelessness or negligence
i.e. a negligent misstatement?

The landmark decision of HEDLEY BYRNE v HELLER AND PARTNERS LTD

[1964] HL was a new approach to negligent misstatement. This was a case in
which advertising agents spent £17,000 for a campaign run for Easipower Ltd (E
Ltd). Prior to this HB had been given a banker’s reference assuring them that E
Ltd was creditworthy, but it had not checked properly. E Ltd collapsed before
paying the agency, so HB sued the bank in negligence. However, the reference
had been given with a disclaimer that Heller would not be liable for the advice.
Held the claim failed even though the bank had been negligent, as it had
expressly disclaimed responsibility. The Hedley principle was used in some later
cases to cover pure economic loss but for many years only in a limited way
where there was also physical loss.

Caparo v Dickman (1990) is an important case that you need to look at further in
your own time.

See also the case of JAMES MCNAUGHTEN v HICKS (1991).

So, there are circumstances where a claimant can recover for pure economic
loss that has arisen due to negligent misstatement by the defendants.

DEFENCES
A basic principle of Law is: “Audi alteram partem” – translatable as “Hear both
sides”, so it does not follow that a claimant who can show that a defendant has
broken the rules against the tort of negligence will win her case. If the defendant
can rely on a specific defence the claimant may lose totally or have to settle for
less compensation than she claimed. The defences for negligence are

(i) Contributory negligence

(ii) Volenti non fit injuria
(iii) Exclusion clauses.

CONTRIBUTORY NEGLIGENCE

This is a situation where negligence was caused by the defendant but where a
claimant has also contributed to the loss by their own negligence. So if someone
trips over a hazard it may be pleaded that the claimant contributed to their own injury
by not keeping a proper lookout. Prior to 1945 contributory negligence was a
complete defence to a negligence action: but the Law Reform (Contributory
Negligence) Act 1945 allowed the court to allocate blame for an accident and so
apportion damages.

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 For example in Froom v Butcher [1976] QB 286 the Court of Appeal held that a
car passenger not using a seat belt and injured in an accident lost 20% of
compensation.

See also, Owens v Brimmell [1977] QB 859 getting into car with driver who had
drunk 9 pints of beer was 20% liable for own injuries.

N.B. This defence does not normally apply to rescue cases, as in Haynes v
Harwood [1935] 1 KB 146 CA where a police officer risked personal harm to stop
runaway horses, which had been negligently left unattended in a crowded street,
with many children. Held neither the volenti defence (below) nor contributory
negligence applied, so that Harwood was deemed liable to compensate the
constable.

The onus of proving that the claimant is at fault is on the defendant – they must
prove that the claimant contributed towards their loss/injury.

CONSENT - VOLENTI NON FIT INJURIA – Voluntary acceptance of risk.

Complete defence so if the defendant is able to establish consent, they will not be
liable to pay damages to the claimant. It can be explained as, “No harm is done
to one who consents” (Walker). In other words, it is an assumption of risk. It can
arise in two different circumstances:
(a) The claimant consented to take the risk (which amounts to a denial by the
defendant that she owes a duty of care);
(b) The claimant who agreed to run the risk of injury cannot sue if injured.

Knowledge of a risk is not enough. Evidence is needed of a positive consent. It is

necessary to show the difference between intentional harm and negligent
harming.

See the case of HAYNES v HARWOOD [1935] (supra) As a police officer,

Constable Haynes owed a legal and moral duty of care to the general public. The
Court of Appeal ruled that the defence of volenti (volunteer) was not available as
PC Haynes was a rescuer. The owner of the horses was ordered to pay him
compensation (damages). However, if someone who was not a police constable
had done the same thing in the same circumstances, rescuing the women and
children at the bottom of the steep hill, s/he could have been treated as a
‘rescuer’ and received compensation.

BAKER v HOPKINS [1959] CA is the case of the doctor in the well. Hopkins Ltd
was a company which was asked to clean out a water well. They used a petrol-
driven pump to remove the water so that its workmen could go down and clean it
out. Two of the company’s employees were overcome with the petrol fumes. Dr
Baker went down to try to rescue the two men and was badly affected by the
fumes and died. The families sued Hopkins Ltd.
Held Dr Baker was not a ‘volunteer’ but a rescuer (with a moral duty).

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The difference between a ‘rescuer’ and a ‘volunteer’ is not always easy to
discover. As in many other cases, much depends on the facts of each case.

Exemption clauses

An agreement which contains a clause limiting liability for negligence may not be
effective.. (See contract lectures and notes).

Insurance

Many cases of negligence are financed by insurance companies and there have
been calls for personal injury compensation to be put on a no fault basis with
compulsory insurance.

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Lecture 6 Liability in Tort – Negligence

The following questions will be considered during the tutorial. Students should read
through the lecture notes and the relevant parts of the textbook (see the last slide
in the power point presentation) and prepare the answers to the questions prior to
the tutorial.

1. What are the three elements for a successful negligence claim?

2. What is the difference between Tort Law and Criminal Law? What is the
difference between Tort Law and Contract Law?

3. What is the duty of care and how has its range developed over the years?
Use case law.

4. Who, in law, is a persons “neighbour”?

5. Explain what is meant by breach of the duty of care. Use case law
examples.

6. What do you understand by the decision in Caparo v Dickman [1990]?

7. Explain the effect of contributory negligence, by reference to case law.

8. What is the significance of the case of Hedley Byrne & Co Ltd v Heller and
Partners Ltd (!963)

Problem question to be completed in the tutorial:

Bill passes his driving test and decides to celebrate with his friend Dilip. Dilip only
drinks orange juice but buys Bill 4 pints of beer. Dilip allows Bill to drive him home
but as Bill is drunk he does not notice the traffic lights are red and he drives into a
car driven by Sepideh. Sepideh breaks her arm because she is not wearing a seat
belt.

With reference to tort law and decided cases advise Sepideh and Dilip, Your answer
should include any defences which could be raised.