Duty of care

Introduction This assignment will establish the elements needed for a person to be held liable in Tortious Law. Once the elements have been established they shall then be used to determine if the individuals in each scenario would be held liable. Tort Law Tort Law in layman’s terms is a civil wrong. It does not necessarily need to be an illegal action but an action that has consequently caused harm or suffering to another. The main outcome for a person claiming they have been a victim of a tortious act is compensation.

For a successful tort claim the three main elements need to be present and their needs to be a standard of proof; a balance of probabilities. The Necessary Elements As followed in Donoghue v Stevenson [1932] AC 562 i. Duty of Care ii. Breach of Duty iii. Damage caused by Breach of Duty. Causation This coincides with the three part test established in case that leads precedent in tortious liability, Caparo Industries Plc v Dickman [1990] 1 All ER 568. i. Foreseeability of Damage ii. A relationship characterised by the law as one of proximity or neighbourhood. iii.

A relationship characterised by the law as one of proximity or neighbourhood Duty of Care Duty of care prior to 1932 was restricted to situations where a relationship had already been established such as a doctor-patient relationship. However in Donoghue v Stevenson that duty of care became adapted. Lord Atkin formulated a principle known as the ‘neighbour test’; ‘take reasonable care to avoid act or omissions which you can reasonably foresee would be likely to injure your neighbour’ This meant that the tortfeasor must foresee how their actions could possibly affect the claimant and to avoid doing so.

He continued to define ‘neighbours ‘as; “ persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation ” Sometimes it is hard to establish a duty of care such as in - Nettleship v Weston [1971] QB 691. The court had to first establish, whether the standard of care applied to a competent driver must be the same as that applied to a learner driver, before they could establish whether a duty of care was owed. Foreseeability (Bolton v Stone [1951] AC 850) and proximity (Bourhill v Young [1943] AC 92.

) are both significant to determine a duty of care. Breach of Duty Breach of duty identifies whether or not the tortfeasor has breached the duty by not reaching the standard of care required. This was defined in Blyth v Proprietors of the Birmingham Waterworks [1856] 11 Exch 781. Alderson held ‘the omission to do something which a reasonable man guided upon those considerations…. would do’ When trying to determine whether or not the tortfeasor has breached the duty of care owed they ask not if it was foreseen by the tortfeasor but would it have been forseseen by the reasonable man?

The reasonable man being identified by Greer; “The person concerned is sometimes described as ‘the man on the street’ or ‘the man on the Clapham omnibus’, or ……the man who takes the magazines at home and in the evening pushes the lawnmover in his shirt sleeves. ” Hall v Brooklands Auto-Racing Club [1933] 1 KB 205 There are exceptions to the rule of the ‘reasonable man’. In some circumstances a different standard of care is assigned such as if the tortfeasor was to have a special skill, profession or expert field.

Then the reasonable man would be someone deemed to have the same skill, profession or expertise as the tortfeasor. A lead case in the standard of care of required of an expert is that of the Bolam Test and is defined by Mcnair J “A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion…. A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view” Bolam v Friern Hospital Management Committee [1957] 1 WLR

Although the test was adjusted in Bolitho v City & Hackney HA [1997] 4 All ER 771: HL. In reference to the Bolam test it became that when the court was faced with two conflicting opinions from experts that they could reject an opinion if it was not logically defensible. Damage caused by Breach of Duty. Causation. The final element needed for a successful case is that of causation. The claimant must prove that the damage, harm or suffering was caused by the breach of the duty of care held by the tortfeasor. A test used to determine this is the ‘but for’ test.

As held by Lord Denning ‘If the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage. ’ Cork v Kirby MacLean Ltd [1952] 2 ALL ER 402 Meaning that ‘but for’ the tortfeasors breach of duty would the damage, harm or suffering still have occurred. When considering causation elements such as remoteness , Wilsher v Essex Area Health Authority [1986] 3 ALL ER 801 CA HL, and the thin skull rule, Paris v Stepney Borough Council [1951] AC 367 HL, need to be brought in to regard.

The above facts will now be applied to determine whether in each scenario the tortfeasor will be held liable in the tort of negligence. Scenario 1: Tortfeasor: Mr Carnell In law there is a general maxim that ‘he who accuses ,must prove’ but on occasion the claimant can plead ‘res ipsa loquiter’, which in literal terms means ‘the thing speaks for itself’. In this case it could stand as the claimant may not be able to produce evidence but the outcome, Arnold’s death, spoke for its self. It can be established in using the ‘but for’ test that had it not been for Mr Carnell’s incompetency Arnold would still be alive.

A similar case where ‘res ipsa loquiter’ was applied is that of Scott v London & St Katherine Docks Co (1865) 3 H & C 596 Although it is evident that Mr Carnell has primary liability, Mr Carnell’s employers could also be held vicariously liable unless they could prove that Mr Carnell was on a ‘frolic’ of his own as in Hilton v Thomas Burton (Rhodes) Ltd [1961] WLR 1030. Scenario 2 In Nettleship V Weston, Lord Denning identifies that the standard of care amongst motorists is the same for all those of sound mind and limb.

Therefore it is irrelevant what kind of vehicle the Lecturer was driving, his level of competency or that he was driving carefully. As the driver it was the Lecturers duty to ensure that the vehicle had been maintained to a high standard by somebody of competent skill, he is liable if he failed to fulfil this duty. In the case Roberts V Ramsbottom [1980] 1 A11 ER 7the defendant knew that he had had a seizure of some sort and although it was actions beyond his control should of foreseen that he was less capable of driving so should of seized to do so.

In the Lecturers case it could be foreseen that an accident could occur if his car was carelessly maintained. Scenario 3 In Wilsher v Essex Area Health Authority it had been stated that a trainee doctor is required to ‘to perform to the standards of a skilled doctor... ’ So regardless of Robert being a trainee doctor had he breached his duty of care to the patient hence causing her death he would be liable. One again though we use the ‘but for’ test as in Barnett V. Kensington Hospital Management Committee.

The scenario states that had Robert not turned away the patient and diagnosed her poisoning there was still little chance of her surviving as the poisoning was at stage so advanced that treatment would not of saved her. So the defendant had not died ‘but for’ the tortfeasors breach of duty ‘but for’ a direct result of the poisoning. Therefore he would not have been able to have been held liable. Statutes that can be stated in Tort. Occupiers’ Liability Act 1957 Supply of Goods and Services Act 1982 Human Rights Act 1988 Companies Act 1985 Compensation Act 2006 – S1: The elements needed to prove liability in negligent tort have been stated.

As have brief origins and how the law can be applied to the scenarios and how individuals could be held liable in a claim. ‘ Cited Cases Barnett V. Kensington Hospital Management Committee [1969] 1 QB 428 Blyth v Proprietors of the Birmingham Waterworks (1856) 11 Exch 781 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bolitho v City & Hackney Health Authority [1997] 4 A11 ER 771 Bolton v Stone [1951] AC 850 HL Bourhill v Young [1943] AC92 Caparo Industries Plc v Dickman [1990] 2 AC 605 Cork v Kirby MacLean Ltd [1952] A11 ER 402 Donoghue v Stevenson [1932] AC 562 Hall v Brooklands Auto-Racing Club [1933] 1 KB 205.

Hilton v Thomas Burton(Rhodes) Ltd [1961]WLR 1030 Nettleship v Weston [1971] 2 QB 691 Paris v Stepney Borough Council [1951] AC 367 Roberts V Ramsbottom [1980] 1 A11 ER 7 Scott v London & St Katherine Docks Co (1865) 3 H & C 596 Wilsher v Essex Area Health Authority [1988] 3 A11 ER 871 Bibliography Turner,C. Hodge,S. (2004). Unlocking Torts. 3rd ed. Italy: Hodder Education. Hepple, B. Howarth,D. Matthews, M. (2000). Tort Cases and Materials. 5th ed. London: Butterworths Cooke, J. (2011). Law of Tort. 10th ed. England: Pearson Education. Wacks, R (2008). Law. A very short Introduction. United States: Oxford University Press.