Negligence Problem Question

From the above statement, Mark has suffered losses such as property damage, consequential economic loss, and loss of profits. Mark may have claims in tort of negligence. Negligence operates as a means to compensate a claimant for foreseeable losses caused by a defendant’s breach of duty of care. [1] In order to win his claims, he must prove four elements on preponderance of evidence and on balance of probabilities: 1. The party owed Mark a duty of care 2. The party breached such duty 3. The party’s breach caused the damage which he suffered and;  

Mark must show that the damage suffered is not too remote from the party’s negligence. I will examine whether Mark will have any successful claims towards the relevant parties based on the elements listed. AMBER BOROUGH COUNCIL Amber Borough Council (ABC) is the local education authority who owns Amber Valley Primary School; the school was set fire by a group of youths and caused damage to the neighbouring property including Mark’s shop. The issue is whether ABC owes duty of care to Mark. In order to claim the damage, we shall follow the three-fold test laid down by the House of Lords in Caparo Industries plc v Dickman[2].

“(i) There must be reasonable foreseeability, (ii) a close and direct relationship of ‘proximity’ between the parties and; (iii) it must be fair, just and reasonable to impose liability,” First issue is whether ABC owes duty to exercise reasonable care to prevent youths obtaining unlawful access to the school. It depends on whether the occurrence of such behaviour was reasonably foreseeable by ABC. The leading case, Smith v Littlewoods Organisation Ltd[3] has similar facts with the above statement. According to the Law lords, it is a matter of knowledge.

Where the defendant has knowledge or means of knowledge that a third party has created or is creating the risk of fire, or indeed has started a fire, on his premises, and then fails to take reasonable steps to prevent any such fire from damaging neighbouring property, he may be liable for the damage. [4] In Smith, it was held that the occurrence of such behaviour was not reasonably foreseeable by Littlewoods because they had no knowledge of the wrongdoings at all as the observers did not inform either Littlewoods or the police.

However, on the facts, it should have been reasonably foreseeable by ABC because they had known of the activities of the youths as the local residents had reported that. The next issue is whether ABC owes to Mark a duty to exercise reasonable care to ensure that the school was not and did not become a source of danger to neighbouring property. According to Lord Brandon of OakBrook in Smith,[5] Littlewoods owed such duty and they failed to take exercise reasonable care. On the facts, ABC may argue that they had place fencing around the site as precautions to avoid such danger.

However, since there are a number of occasions that the youths had been breaking into the school, the fencing might not be sufficient and cannot be considered as a reasonable care. Perhaps, hiring a 24-hour security guard to supervise would be sufficient, but that would be intolerable and unfair to impose such duty to ABC. Bearing in mind that even if the result is foreseeable, an ordinarily careful man does not take precautions against every foreseeable risk, life would be almost impossible if he were to attempt to take precautions against every risk. [6] Next issue arises from a relationship of proximity between the parties.

Lord Goff added that no such general duty exists even between those who are neighbours. [7] As a general rule, individuals are not subjected to any general duty to protect their ‘neighbours’ from others’ tortious conduct outside the circumstances in which the principles of vicarious liability operate,[8] even if the loss is foreseeable and preventable. [9] So, there is no special relationship between ABC and the youths, and ABC has no duty to safeguard Mark’s property from the wrongful conduct of the youths. It is duty owed by those persons who supervised and had control over the youths.

Since ABC had no control over the youths’ actions and there was nothing inherently dangerous about an empty school, it is not fair, just and reasonable to impose duty to prevent harm being caused by a source of danger which has arisen without his fault. Mere foreseeability of damage was not sufficient to impose duty of care on ABC, as it does not satisfy the ‘proximity’, ABC is not likely to be liable. [10] JUSTIN AND JASON On the facts, Justin and Jason (J&J) who were under duty to supervise the youths, had gone for a cigarette break and left the unsupervised youths at the time caused the damage to premises.

It is an omission that defendants failed to control against the act of the third party, and caused damage to the claimant’s property. This omission is found to be negligent. Do they owe duty of care to Mark? The Caparo test has to be satisfied on this issue. It might be reasonable to foresee that the youths would cause danger to others if J&J left the youths unsupervised. Once they had taken control of the youths’ actions, they would be in special relationship with the youths as to satisfy the requisite element of proximity.

Indirectly speaking, they may have an implied assumption of responsibility to prevent Mark’s property from being harmed by the youths. Where there is foreseeability and existing relationship with the youths that involves control, a duty of care may exist. [11] Thus, on the facts and in the circumstances, it is fair, just and reasonable to impose a duty on Justin and Jason. Do they breach the duty of care? As J&J owed Mark a duty of care, it is necessary to consider the measure of the duty owed[12], that they must attain the standard of a ‘reasonable person’ in order to discharge that duty.

Applying the ‘reasonable man’ test in Blyth v Birmingham Waterworks Company,[13] the defendants might have been liable for negligence, if, unintentionally, they omitted to do which a reasonable man would have done. On the facts, going for a cigarette break at the time of working and left the youths unsupervised, even just for a while, might not be what a reasonable man would have done. Besides, there are two main factors for the courts to consider: the likelihood of harm; and the magnitude of harm. The courts may consider whether it was likely that harm would happen.

Lord Reid in Home Office v Dorset Yacht Co Ltd[14] applied Atkin’s neighbourhood principle where: “The causing of damage to the other property which belonged to the respondent ought to have been foreseen by the defendants as likely to occur if they failed to exercise proper control of supervision; in the particular circumstances they prima facie owed a duty of care to the respondent…” The damage to Mark’s property is foreseeable by the reasonable man in Ds’ shoes, given the knowledge that, in the particular circumstances, it is likely to occur if they failed to supervise the youths.

Next, the courts may consider whether the harm occurred was likely to be serious. On the facts, the fire caused damage to Mark’s property and it is likely to be many weeks before the business can reopen and Mark stands to lose many thousands of pounds in lost profits. It is not mere property damage; in fact it caused further financial losses. So, the harm occurred is likely to be serious. Therefore, it is proved that Justin and Jason breached the duty of care. Causation

The next issue dealt with causation as the damage done by the youths must be closely related to, and very probable result of, some failure in care by Justin and Jason. The ‘but-for’ test is applied, showing that but for J&J’s failure to supervise the youths, Mark would not have suffered losses. However, even if the factual cause is satisfied, what must be identified is the operative legal cause. [15] The courts have to consider that ‘the choice of the real or efficient cause from out of the whole complex of facts must be made by applying common sense standards’.

[16] On the facts, there is a series of events, such as Justin and Jason’s omission, the youths’ wrongful conduct, and the Fire brigades’ omission. It is for the court to consider whether J&J’s omission is an effective legal cause, if yes, then they are liable. However, the defendants may argue that the wrongdoing of youths is regarded as a novus actus interveniens. It depends on the reasonableness of the third party’s behaviour. [17] If the act by third party is unforeseeable and unreasonable, then it breaks the chain of causation.

Can starting a fire be regarded as unforeseeable and unreasonable? Lord Ordinary in Smith v Littlewoods concluded that the lightning of a fire in the premises by youths was in the circumstances reasonably foreseeable. Furthermore, the youths were from young offenders institution, it is no doubt that their behaviours would be specially rebellious and offensive, thus starting a fire is likely to be reasonable and foreseeable. Therefore, there is no break in chain of causation. The defendants may argue that the delay of the Fire Engine is novus actus interveniens.

‘But for’ the Fire Engine turned up in time to rescue; the fire would not have spread and caused further damage to the Mark’s property. However, it should be noted that rescue attempts in emergency situations created by the defendants’ negligence are unlikely to be held to break the causal chain, even if they cause or increase the damage suffered by the claimant. [18] Thus, the delay of Fire Engine did not break the chain of causation as a matter of policy reasons; bearing in mind that the source of danger created is closely linked to the defendants’ negligence, not the fire brigades’.