Tort Negligence

•Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? … You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour?

The answer seems to be – 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 which are called in question. ” Foreseeability and proximity ‘Foreseeability’ means whether a hypothetical ‘reasonable person’ would have foreseen damage in the circumstances. ‘Proximity’ is shorthand for Lord Atkin’s neighbour principle. It means that there must be legal proximity, i. e. a legal relationship between the parties from which the law will attribute a duty of care.

Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. See: Bourhill v Young [1942] 2 All ER 396. The role of policy •Policy is shorthand for ‘public policy considerations’. Policy considerations were recognised in the Wilberforce test and the test in Caparo v Dickman. •In recent years the courts have identified a wide range of factors that may be relevant to the denial of a duty of care. For example, a duty of care may not exist where: (a) The claimant is the author of his own misfortune (Philcox v Civil Aviation Authority, The Times, 8 June 1995).

(b) A duty of care would lead to unduly defensive practices and a waste of resources (Hill v CC of West Yorkshire [1988] 2 All ER 238, and X (minors) v Bedfordshire CC [1995] 3 All ER 353). (c) There is an alternative remedy available to an aggrieved claimant, such as a statutory right of appeal from the decision of a government officer or department, or judicial review, or another source of compensation, such as the criminal Injuries Compensation Scheme, or another cause of action, such as a claim for breach of contract, even where the action would be against a different defendant. DUTY OF CARE 3 CATEGORIES:

1. Professional Negligence [Assumption of Responsibility] 2. Economic Loss 3. Nervous Shock PROFESSIONAL NEGLIGENCE/ NEGLIGENT MISTATEMENT/ECONOMIC LOSS Derry v Peek (1889) – recovery for fraud only Candler v Crane, Christmas & Co (1951) No relationship – figures relied on by 3rd party Hedley Byrne v Heller (1964) •Special Relationship •Reliance •Loss Esso Petroleum v Mardon (1976) Advice given – undertaking of responsibility in business transaction JEB Fasteners v Marks Bloom & Co (1981) Duty of care by accountants if duty is to the plaintiff Caparo Industries v Dickman (1990) Duty of care if: •Proximity

•Reliance •Just, fair and reasonable Yianni v Edwin Evans & Sons (1982) Duty of care by surveyor to buyer Smith v Eric Bush (1989) + Harris v Wyre Forest DC (1989) Followed Yianni+ buyers can rely if proximity and j. f. r. South Australia Asset Management Corporation v York Montague (1996) But – only for losses that are foreseeable Henderson v Merrett Syndicates (1994) Can sue in contract and/or tort Spring v Guardian Assurance plc (1994) Duty of care by referee to prospective employer and employee Chaudhry v Prabhaker (1989) Duty of care even in ‘social or informal’ situation – specialist knowledge?

Misrepresentation Act 1967 s2(1) Now statutory duty of care not to make misleading/false statements NEGLIGENCE: PSYCHIATRIC HARM “Nervous Shock” •Witnesses: “Secondary Victims” Dulieu v. White 1901: Kennedy J: “must be a shock which arises from a reasonable fear of personal injury to oneself” Hambrook v. Stokes Bros. 1925: Mother saw lorry careering towards children. Atkin LJ: mother shocked for herself v. mother in fear for her children. Held able to recover. Four cases / stages of development in law 1. McLoughlin v. O’Brien 1983: Mother sees husband and children at hospital in immediate aftermath of car crash.

Able to recover. Lord Wilberforce: “closest of family ties”; “sight or hearing”; proximity in time and space. 2. Alcock v. Chief Constable South Yorkshire 1992: Hillsborough disaster. Test cases for relatives / fiances in various locations (home, in ground, outside, watching TV etc). Followed Wilberforce in McLoughlin. More restrictive than physical injury. Proximity requirements laid down. i. Proximity of Relationship: “Close ties of love and affection”. Presumed in parent-child, spousal, fiance relationships. Brothers: “love and affection” must be proved. ii. Proximity in Time and Space: Galli-Atkinson v.

Seghal 2003: Viewing of daughter’s body at mortuary. Able to recover – still “aftermath”. Cf. Alcock – why couldn’t they? iii. Proximity of Perception: no liability where merely told about accident. (Ravenscroft v. Rederiaktiebolaget Transatlantic 1992). TV not equivalent to direct perception in Alcock, although Lord Ackner: may be “special circumstances”. How much perception must C have? What if children NOT actually injured? iv. Claims against the Primary Victim: Greatorex v. Greatorex 2000: Fire officer called to car accident where son victim of own negligence. No duty owed by primary victim. v.

Liability for Communicating Distressing News: No liability generally. May depend on pre-existing relationship: AB v. Tameside 1997: informed of HIV risk by letter – duty (hospital – patient) but no breach found. Allin v. Hackney 1996: C told that baby dead – it wasn’t. Recovered for PTSD. D admitted duty of care. vi. Customary Phlegm: foreseeability of psychiatric injury to person of reasonable fortitude. •Participants: “Primary Victims” Alcock: Lord Oliver distinguished between “witness” and “participant”. For latter, “proximity” requirements do not need to be satisfied. Physically endangered person.

3. Page v. Smith 1996: Car crash; past ME sufferer relapsed, couldn’t work again. Duty of care owed because physical injury to C foreseeable. Primary victim: eggshell skull rule applies. Won’t open floodgates because of link to physical injury. i. Must the harm be caused by fear? Young v. Charles Church 1997: Workmate electrocuted working on scaffolding. C claimed as primary victim for nervous shock: C within area of danger; employment context. Claim successful, BUT was injury really caused by fear of own safety of sight of workmate dying? Loophole. ii. How wide is the zone of danger? Uncertain.

Example of a malfunctioning aeroplane descending over populated area. Number of inhabitants in fear of lives may be very large. iii. Reasonable fear not enough McFarlane v. EE Caledonia 1994: Watching Piper Alpha disaster from support boat. Even if reasonably in fear of own safety, not necessarily foreseeable by D. Here, not established he was in fear of personal safety. 4. White v. Chief Constable South Yorkshire 1999: Hillsborough. Police officers claim against employers for negligence; PTSD. FI: dismissed claims CA: 1) Employment relationship therefore duty owed and breached 2) Rescuers: Ogwo v.

Taylor – professional rescuers included HL: 3-2 Majority, shouldn’t recover. Employer not in special situation, nor rescuer. Officers not neither “personally threatened” nor had any “close tie of love and affection” so couldn’t be secondary victims. Rescuers Chadwick v. British Transport Commission 1967: Lewisham train disaster. Rescuer became psycho-neurotic. Awarded damages for loss of wages and misery How does law now stand after White? Must rescuer be in area of physical danger? Todd LQR 1999: “quite arbitrary, its sole purpose being to limit the ambit of liability”.

Unwitting agents of misfortune Dooley v. Cammell-Laird 1951: Due to D’s negligence, load on crane broke. Operator suffered psychiatric illness due to fear of having killed someone. Able to recover. Hunter v. British Coal 1998: New limitations. C a mineworker who thought himself responsible for a death that he was told about while not at scene. Requirement of proximity in time and space still applies: C unable to recover. W v. Essex CC 2000: Fostered boy abused couple’s own children. D had been negligent in making placement. Parents not witnesses nor saw “aftermath” but HL would not strike case out.

Slynn: “immediate aftermath” may have wider meaning. •Stress Alcock 1992: “Psychiatric illness caused in other ways … attracts no damages” Lord Ackner. Sion v Hampstead HA 1994: Two-week-long vigil by dying son’s bed – no damages. Walters v. N. Glamorgan NHS Trust 2002: 36 hour period before child’s death – one single, shocking event – damages awarded. Walker v. Northumberland CC 1995: C had nervous breakdown after dealing with child abuse cases alone, despite having already had a breakdown and being promised more help. Held: able to recover. Hatton v. Sutherland 2002: Test case for nature of legal duty on employers.

Principles: •employer can be liable for exposing the individual employees (like Paris v. Stepney BC) •employer entitled to assume employee wouldn’t succumb to stress unless employer has knowledge of particular situation / vulnerability •these people are to be regarded as primary victims •FORESEEABILITY of harm to the individual employee important. Assumption of Responsibility? Where D has assumed responsibility for the mental health of C. L v. Reading BC 2001: Fabricated allegations of child abuse. Police held responsible for father’s mental health. Brooks v. Met.

Police Comr 2002: Stephen Lawrence case. Police owed duty to victim / witness. Farrell v. Merton HA 2001: Hospital’s duty to mother in ante-natal care – liable for psychiatric illness suffered on finding out about child’s disability caused by hospital’s negligence. McLoughlin v. Jones 2002: C charged and imprisoned. New evidence came to light, conviction quashed. C sued solicitor for negligence and nervous shock. Held: duty owed by D. W v. Essex CC 2001: (see above) •Evaluation and Reform Stapleton 1994: recovery for psychiatric harm should be wiped out altogether.

Reasonable boundaries are impossible to set and the mess is an embarrassment to the law. Mullany and Handford 1993: should be the same as for physical injury. Feminist Critique: Historically claims of emotional suffering more often brought by women – e. g. in fear of child’s danger or shock resulting in miscarriage. Slow recognition of this type of harm by the law. Law Commission 1998: Floodgates fear. Restriction and clarification required. Cases of actual death / injury / imperilment only; fixed list if relationships needed; no “shock” necessary; not necessarily closing off law to “bystanders”.

NEGLIGENCE – BREACH OF THE DUTY OF CARE THE REASONABLE MAN The most popular definition of the reasonable man is that he is the ordinary man, the average man, or the man on the Clapham omnibus (Hall v Brooklands Auto Racing Club [1933] ) THE OBJECTIVE STANDARD The court will decide if the defendant fell below the standard of the reasonable man. The standard of care expected from this hypothetical character is objective; not taking into account the characteristics or weaknesses of the defendant in the instant case. Nettleship v Weston [1971]. UNFORESEEABLE HARM.

If the reasonable person would not foresee a harmful consequence of an action, then a defendant will not be negligent in failing to take precautions. See: Hall v Brooklands [1933] FACTORS TO BE WEIGHED IN ESTABLISHING BREACH •MAGNITUTE OF HARM The court will consider the likelihood of harm occurring. The greater the risk of harm, the greater the precautions that will need to be taken. Compare the following cricket ball cases: Bolton v Stone [1951] Miller v Jackson [1977] Hilder v Associated Portland Cement (1961) Paris v Stepney Borough Council [1951] •PRACTICABILITY OF PRECAUTIONS.

The courts expect people to take only reasonable precautions in guarding against harm to others. See: Latimer v AEC Ltd [1952] •DEFENDANT’S PURPOSE If the defendant’s actions served a socially useful purpose then he may have been justified in taking greater risks. See: Watt v Hertfordshire County Council [1954]. •SPECIAL STANDARDS APPROPRIATE TO PROFESSIONALS Professionals will be judged by the standard of the ordinary skilled man exercising and professing to have that special skill. This is the basis of the ‘Bolam test’. See: Bolam v Friern Hospital [1957] .

Other cases relevant to professionals, doctors in particular, include: Bolitho v City and Hackney Health Authority [1997] But see: Thompson v Smiths Ship Repairers (1984) •STANDARD APPLIED TO CHILDREN Children cannot plead infancy as a defence to a tort. However, children and young people will usually be judge by the objective standard of the ordinarily prudent and reasonable child of the same age. See: Mullins v Richards [1998] THE DOCTRINE OF RES IPSA LOQUITOR – the thing speaks for itself 1) There must be NO evidence of negligence – no explanation for the accident Barkway v South Wales Transport Co Ltd (1950).

2) The defendant must be in control of events Gee v Metropolitan Railway (1873) Easson v L. N. E Railway (1944) 3) The accident would not have happened but for the negligence Scott v The London & St Catherines Dock Co (1865) Byrne v Boadle (1863) Mahon v Osborne (1939) Cassidy v Ministry of Health (1951) 4) The inference of negligence must be rebutted Ngu Chun Piu v Lee Chuen Tat (1988) Ward v Tesco Stores (1978) NEGLIGENCE – CAUSATION AND REMOTENESS POLICY For the role played by policy in the issue of causation, see the speech of Lord Denning in: Lamb v Camden LBC [1981]

CAUSATION IN FACT BUT FOR TEST The claimant must prove that harm would not have occurred ‘but for’ the negligence of the defendant. This test is best illustrated by: Barnett v Chelsea & Kensington Hospital [1968] PROOF OF CAUSATION The claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm. Pickford v Imperial Chemical Industries [1998] MULTIPLE CAUSES However, the claimant does not have to prove that the defendant’s breach of duty was the main cause of the damage provided that it materially contributed to the damage.

See: Bonnington Castings Ltd v Wardlaw [1956] It may be sufficient for the claimant to show that the defendant’s breach of duty made the risk of injury more probable. See: McGhee v National Coal Board [1972] Where there are a number of possible causes, the claimant must still prove the defendant’s breach of duty caused the harm or was a material contribution. See: Wilsher v Essex AHA [1988] CAUSATION IN LAW ACTS OF THE CLAIMANT – novus actus interveniens If the claimant suffers further injury as a result of his own or others actions, there may be a break in the chain of causation. Contrast: Baker v Willoughby (1970)

Jobling v Associated Dairies (1982) REMOTENESS OF DAMAGE THE CONTRASTING APPROACH OF THE APPELLATE COURTS The opinion of the Court of Appeal was that a defendant was liable for all the direct consequences of his negligence, no matter how unusual or unexpected: Re Polemis [1921] The opinion of the Privy Council was that a person is responsible only for consequences that could reasonably have been anticipated: The Wagon Mound [1961] The Wagon Mound (No. 2) MANNER OF OCCURRENCE If harm is foreseeable but occurs in an unforeseeable way there may still be liability. See: Hughes v Lord Advocate [1963]

A recent case is: Jolley v Sutton LBC [2000] TYPE OF HARM The damage must be of the same type or kind as the harm that could have been foreseen. See : Tremain v Pike [1969] EXTENT OF HARM The defendant will still be liable, provided the type of harm and its manner was reasonably foreseeable, if the extent of the harm was not foreseeable: Robinson v Post Office (1974) EGGSHELL SKULLS It is well-established that ‘The tortfeasor must take his victim as he finds him’. The defendant will be responsible for the harm caused to a claimant with a weakness or predisposition to a particular injury or illness.

See: Smith v Leech Brain [1961] DEFENCES Contributory negligence •If D wants to rely on this defence, he must plead it. At common law this was all or nothing – initially C had to prove that D caused the damage, and if he couldn’t do this because of contributory neg, the claim failed. Was thought to be too harsh, so courts invented ‘last opportunity rule’: Davies v Mann (1842) – C left donkey on road, D drove into it and it died. Both neg, but held that as D had the last opportunity to avoid the collision then he was totally liable.

In 1930’s (because of cars) this rule became impractical (often last opportunity was matter of seconds – artificial concept). •Law Reform (Contributory Negligence) Act 1945 – contrib neg is no longer a complete bar to recovery, but according to s. 1(1) will result in a reduction of damages “to such extent as the court thinks just and equitable having regard to C’s share in the responsibility for the damage”. •Contrib neg is failure to take care of yourself – matter of conduct, not state of mind. Reeves v Metropolitan Police (HL, 2001) – police held liable for not preventing suicide of prisoner.

But prisoner held 50% contrib neg – intentional conduct just as capable of being contrib neg as unintentional. •Have to show the contrib neg did actually contribute to the damage. Jones v Livox Quarries (CA, 1952) – C on back of very slow vehicle contrary to instructions, injured in crash with another slow vehicle. Found to be contrib neg (there was a risk of crash, albeit small). Westwood v Post Office (HL, 1974) – C fell through rotten floor in room with dangerous machinery in it. Notice not to enter room, but held no contrib neg because falling through the floor wasn’t a risk that C could have foreseen.

•Don’t have to show the contrib neg made accident more likely (just that contributed to damage). Owens v Brimmell (HC, 1977) – C got lift in D’s car, both been drinking. C contrib neg for knowingly travelling with someone who is drunk and not for wearing seatbelt. O’Connell v Jackson (CA, 1972) – C contrib neg for not wearing motorbike helmet. •Once contrib neg proved, how much are damages reduced by? Imprecise exercise, but reduction often seems small (probably reflecting reality that often D is insurance company, more able to bear the cost than C).

Fitzgerald v Lane (HL, 1988) – C ran into road, hit by 2 cars, paralysed. Irrelevant that couldn’t prove which impact caused paralysis – both drivers liable (cf. Fairchild). C also contrib neg. C argued 1/3 liability each. HoL held C equally to blame, so damages reduced by 50%, then apportion between D’s, so 25% each. C’s argument would mean the more D’s he could find, the less he would be to blame – HoL didn’t like implications of this idea (C’s hunting as many D’s as possible to decrease own responsibility). Volenti non fit injuria (consent).

•One who expressly or impliedly consents to the risk of harm can’t then sue if that harm materialises. Consent operates as a complete defence, so post-1945 there was a big difference between pleading contrib neg and pleading consent. Judges prefer to apportion blame rather than bar C completely, so reluctant to find consent. •Not enough now that C knew of risk, has to actually consent to it. Mid-19th century it used to be the case that knowledge = consent, and this was applied very harshly wrt people who did dangerous jobs (e. g. Woodley v Metropolitan District Railway (1877)).

Then became very hard for employer to prove consent against employee. ICI v Shatwell (HL, 1965) – C shot firers in quarry, dangerous job. Set off explosions against regulations. HL did find consent against C (employee) because D (employer) had done everything they could – C flagrantly disregarded D’s regulations. •Also is important precisely what C consented to: Slater v Clay Cross (CA, 1956) – C walked down railway tunnel & was injured – held that although by doing so she accepted a risk, she didn’t accept the risk of negligent train driving.

Nettleship v Weston (CA, 1971) – C teaching D to drive, expressly asked if she was insured for passengers. Held that although C accepted risk of injury, he didn’t accept the risk of not being compensated in the event of injury. •Express agreement to consent to risk can be subject to UCTA, if in business situation. •Implied agreement may be inferred from conduct of the parties as in: Morris v Murray (CA, 1990) – C went for trip in D’s plane in poor weather conditions, D flying, even though he knew D was v drunk. Held C consented.

Road Traffic Act 1988 makes insurance for causing death/PI on highway compulsory. As Parliament intends that such accidents are compensated by insurance it’s not possible to defeat this intention by saying people have consented to risk of travel. One reason why defence not often successful in negligence claims is that since the alleged consent usually precedes D’s breach of duty, C cannot be said in these circumstances to have full knowledge and appreciation of the risk (Wooldridge v Sumner (CA, 1963) per Diplock LJ).

Consent to medical treatment In consenting to medical treatment, one is consenting only to the risks of the treatment, not to negligence. But how does patient know what risks are? Depends how much doctors tell them. Sidaway v Bethlem Hospital (HL, 1985) – op had small risk, which materialised resulting in C being paralysed.