Negligence is a breach of a legal duty to take care which results in damage to the claimant. In order to prove negligence one must show: 1. a legal duty on the part of the a person to take care of another, 2. a breach of that duty and 3. The consequential damage attributed to the conduct and is too remote. It was also defined as an omission 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.
This was as per Alderson B in Blyth V Properties of the Birmingham Waterworks. He further stated that the standard demanded is thus not of perfection but of reasonableness. This means that to prove negligence, the claimant must prove that the defendant owes a duty of care to him/her. The duty of care had not been established until in the 1940s where Lord Atkins in the leading case of Donoghue v Stevenson attempted to lay down the neighbour principle, which would cover all circumstances where courts had already held that there could be liability for negligence.
He brought out the rule of loving your neighbour and avoiding acts or omissions that one can reasonably foresee would injure the neighbour. He described the neighbour as persons who are so closely and directly affected by one’s acts. This dictum was accepted and applied unless there is justification or valid explanation for its exclusion. Therefore, in order to establish that a duty of care arises in a particular situation, the action should have affected a person directly.
To establish that a duty of care exists, one has to consider the sufficiency in the relationship of proximity or neighbourhood such that carelessness may be likely to cause damages in which case a prima facie duty of care arises and the considerations in which may limit or reduce the scope of the duty to whom it is owed or the damages that may arise. This was the idea in Anns V Merton LBC(1977) by Lord Wilberforce. The requirements that must be satisfied before a duty of care is held to exist were laid down in Caparo Industries v Dickman (1990) 1 all ER 568.
The court held there are three separate steps or issues in the “duty of care” inquiry. First, it must of course be reasonably foreseeable that the conduct of the defendant will cause damage to the claimant. This requirement is essential even in a situation of a type (road or industrial accidents; for example) where the existence of a duty of care has long been well established. Secondly, there must be sufficient “proximity” between the parties.
And thirdly, “the situation must be one in which the court considers it fair, just and reasonable that the law should impose a duty of care of a given scope on the one party for the benefit of the other. ” This statement brings out clearly three elements that is; 1. Foreseeability of the damage 2. Proximity 3. Reasonability Foreseeability This deals with the applicability. It depends on the factual analysis of the particular case. Rather than looking at whether the duty exists generally, the courts look at whether the duty is applicable to the particular claimant.
Before considering whether a duty of care exists to the particular claimant, the court must first be satisfied that a general duty of care exists in respect of the category of the case in issue. For if the general duty of care does not exist the claimant is barred from claiming and the foreseeability test does not apply. The case of Donoghue v Stevenson where was concerned with the general question of whether a manufacturer owed a duty of care to the ultimate user of his products and it was concluded that he did. The second question is if there was a duty.
In this case, a lady bought some ginger beer, which was in an opaque bottle, from a retailer and gave it off to her friend who took its contents before discovering decomposed remain of a snail. She fell ill and sued the manufacturer. It held that the manufacturer had the duty of care not to cause physical damage to ultimate customers. In the case of Vowles v Evans and Welsh rugby Union Ltd (2003) CA where D was the referee of a rugby match and the sport’s governing body. C was injured and confined to a wheel chair when a scrum collapsed.
It was held that a referee and player have sufficient proximity, and it was foreseeable that if the referee did not enforce the rules there would be injury It was just, fair and reasonable to impose a duty of care. The referee had breached that duty of care, the referee had been in a position no more than basic skill and competence at that level of the game. This means that the referee had foreseen this harm and failed to act to avoid it thus breaching the duty of care towards the player. it is then evident that foreseeability is essential in negligence.
Another case is that of Roe v Minister of Health (1954)CA where a spinal anaesthetic had become contaminated through invisible cracks in the glass vial. When used, it paralysed two patients. It was held that the cracks were not foreseeable given the scientific knowledge of the time, The foreseeability of harm is clearly a major factor in determining how a reasonable person would act, and although actual foresight by D is generally irrelevant, a reasonable person would not have taken precautions against a risk of which reasonable people in that profession were not aware.
The doctor was not liable. This proves that foreseeability is very essential to show a breach of duty to care. If one did not appreciate that that act would have caused harm to someone else they are not liable. There is also a case of Mullin v Richards (1998) CA where no negligence was found as there was no sufficient evidence that the accident had been foreseeable in what had been no more than a childish game. Proximity.
This means that there must be a legal relationship between the parties from which law will attribute a duty of care. The best word to define proximity are as put by Lord Atkin in the foretasted neighbour principle. He also mentioned that proximity should not be confined to mere physical proximity, but be used, as it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.
The insistence on a close relationship between the parties is most consistently apparent in cases where the claimant complains that he has suffered loss by acting on incorrect information or advice given by the defendant and one of the judges in the leading case spoke of the necessity of a relationship “equivalent to contract” In In Goodwill v British Pregnancy advisory Service 23 it was held that while a doctor performing a vasectomy may owe the patient a duty to advise about the remote possibility of fathering a child even if the operation is carried out competently and that duty to advise may extend to the current spouse or partner of the patient, no duty of care in this respect is owed to a member of the indeterminately large class of women who might have sexual relations with the patient at some future time.
This showed the extent to which proximity extends to. A duty of care is owed to the person who would be affected directly by one’s actions but not the person who is affected indirectly as in this case the many women this man has a sexual relation with in future. The Advisory Service owes a duty of care to its clients immediate spouse but not the other women.
Proximity is established by referring to, and applying, existing case law. FAIR, JUST AND REASONABLE A duty may still be denied even if there was a degree of proximity and foreseeability iif in the courts view the imposing of liability would not be fair, just and reasonable. This means that if the breach is too remote or if there was a very good reason for the actions the courts will consider this reason and weigh its reasonability. It should apply the reasonable man test, that is if a reasonable man given the same situation would have acted in such a manner that the person did.
In the case of Wisziniewski v Central Manchester Health Authority (1980) CA, a health authority employed midwife negligently failed to show cardiograph indicating there were problems to the doctor. The baby who got cerebral palsy caused by complications at birth. It was held that no reasonable doctor would have delayed examining the patient. Another case is that of Bolam v Friern Barnet Hospital Management Committee (1957) where a hospital gave electro-convulsive therapy that broke D’s bones. Some doctors would give relaxant drugs others would not.
It was held that a doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper responsible body of medical men skilled in that particular art. These two cases were held differently because in the first one, the doctor was negligent, as he did not do as he was supposed to do but in the second case he did what every other reasonable doctor would have done given the same situation. In the case of Blyth v Birmingham Waterworks (1856) Exch a water company was not negligent in allowing water to escape from pipes.
Baron Alderson gave a definition of negligence from this case, which the reasonable man test was the biggest point he was bringing forth. Thus, as duty of care arises from acts or omissions, which the person can reasonably foresee or can, foresee the victim of the acts. A duty of care can as well be imposed by statute and does not arise from a relationship between the claimant and the defendant. For example, the Supply of Goods and Services act 1982 in Phillips v Whiteley (ear piercing followed by infection) but the case together with that of Donoghue were decided using the common law and not the act.
Therefore the statutory duty of care should not mean that a shadow will be cast creating a common law duty. In conclusion, the duty of care in negligence arises when there is a foreseeable act that breaches that care that one has for the neighbour and the act should be reasonable when subjected to the objective test. These elements are not very distant to each other but overlap. There is a relationship between all of them that blurs that clear line between them.
This was recognised by Lord oliver in Caparo who stated that, “It is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases ,in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced ,whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible”.
REFERENCES 1. MARKESINIS AND DEAKIN’S TORT LAW 6TH ED Pgs 116-120 2. SAMUEL, G TORT: CASES AND MATERIALS Pgs 115-142 3. WINFIELD AND JOLOWIZ ON TORT LAW 4. GOOGLE MATERIALS.