Law (9084) | The tort of negligence

A Level Law (9084): The Tort of Negligence

Hello! Welcome to one of the most important and exciting areas of Law of Tort: The Tort of Negligence. This chapter is vital because it determines when a person or organisation must pay compensation (damages) for causing harm to someone else through carelessness.

Don't worry if this seems tricky at first. Negligence forms the backbone of civil litigation, and we will break down the essential legal tests step-by-step. Mastering these steps is crucial for success in Paper 4!

Part 1: What is Negligence? (The Basics of Liability)

Negligence is not about being generally clumsy; it is a specific legal tort. It occurs when a person breaches a duty of care owed to another, causing damage.

The Three Essential Elements (The D-B-D Checklist)

For a claimant (C) to successfully sue a defendant (D) in negligence, they must prove all three elements:

1. Duty of Care: Did the defendant owe the claimant a legal duty of care?
2. Breach of Duty: Did the defendant fail to meet the required standard of care?
3. Damage: Did the breach cause foreseeable damage that is not too remote?

If C fails to prove any one of these elements, the claim in negligence fails.

4.1.1 Nature of Liability in Negligence

When we talk about liability, we are asking: who is legally responsible for the harm?

1. Personal Liability
This is the standard form of liability. If you personally act negligently and cause harm, you are personally liable.

2. Vicarious Liability (Outline Only)
This is a situation where one person is held liable for the torts committed by another person, even though they were not personally negligent.

• The most common example is an employer being held vicariously liable for the negligent actions of their employee.
• This usually happens if the employee committed the tort while acting "in the course of their employment."
• Example: A delivery driver (employee) carelessly speeds and hits a pedestrian while on their delivery route. The employer (the company) will likely be vicariously liable.

3. Joint Liability
This occurs when two or more defendants are responsible for the same damage.

• C can sue all of them, and each defendant is legally responsible for the full amount of the damages. The defendants then sort out the division of payment between themselves.

Part 2: Establishing the Duty of Care (D)

How does the law decide when one person owes a legal duty to take care of another? We follow a historical progression from a single principle to a modern, three-stage test.

4.1.2 The Neighbour Principle (The Starting Point)

The duty of care concept was established in the landmark case of Donoghue v Stevenson (1932).

• Facts: Ms Donoghue drank ginger beer containing a decomposing snail and suffered illness. She sued the manufacturer, Stevenson.
• Principle: Lord Atkin established the Neighbour Principle:
  "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."
• Who is your Neighbour? Legally, your neighbour is any person so closely and directly affected by your act that you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the acts or omissions which are called in question.

Analogy: Imagine you are juggling knives in a crowded bus. Anyone standing immediately next to you is your 'legal neighbour' because they are clearly and directly at risk if you drop a knife.

The Modern Three-Part Test (The Caparo Test)

The Neighbour Principle was later considered too wide, leading to the development of the three-stage test in Caparo Industries Plc v Dickman (1990). This test is now used, especially in new or unusual situations, to determine if a duty of care exists.

A duty of care exists if all three parts are satisfied:

1. Foreseeability of Damage

• Was it reasonably foreseeable that the defendant’s actions would cause damage to the claimant?
• Example: It is foreseeable that leaving a wet floor unmarked will cause someone to slip.

2. Proximity of Relationship

• Was there a relationship of proximity (closeness) between the claimant and defendant?
• Proximity doesn't just mean physical closeness; it can be closeness in time, space, or a legal/professional relationship (like a doctor and patient).

3. Fairness, Justice, and Reasonableness (Policy Considerations)

• Is it fair, just, and reasonable (FJR) for the law to impose a duty of care in this situation?
• This involves policy considerations—thinking about the wider impact on society and the legal system.

The Importance of Policy Considerations

Courts often refuse to impose a duty of care, even if foreseeability and proximity exist, based on policy reasons. Why?

• The Floodgates Argument: If a duty is imposed, it could open the "floodgates" to countless claims, overwhelming the courts (e.g., often applies to claims against police or emergency services).
• Defensive Practice: If public bodies (like the police or social services) were constantly liable, they might practice 'defensive' behaviour, hindering their ability to do their job properly.

Part 3: Breach of Duty (B)

Once a duty of care is established, the claimant must prove the defendant breached that duty. This means the defendant’s actions fell below the required standard.

4.1.3 The Standard of Care: The Objective Test

The law sets an objective standard for determining breach: the defendant must behave as a reasonable person would in their position.

• This is famously referred to as "the man on the Clapham Omnibus" (the average, sensible person).
• The standard does not depend on the individual defendant's characteristics (like being nervous, clumsy, or new to the activity). If you are learning to drive, you are still judged by the standard of a competent driver.

Factors Affecting the Standard of Care

The court looks at several factors when assessing whether the reasonable person would have acted differently:

1. Size of the Risk:

• If the risk of injury is small, a reasonable person might ignore it. (Bolton v Stone 1951: A cricket ball rarely clearing the fence – no breach.)
• If the risk is known and substantial, precautions must be taken. (Miller v Jackson: Cricket balls often hitting houses – breach.)

2. Seriousness of Potential Harm (Magnitude):

• If the potential harm is very serious (even if the risk is small), greater care must be taken.
• Example: A reasonable person takes extra care when lifting a heavy box if they know the claimant already has a bad back.

3. Practicality/Cost of Precautions:

• The court asks if the reasonable person would have taken precautions. If the cost or difficulty of the precaution is very high compared to the risk, the failure to take it may not be a breach.
• Example: Requiring a tiny village shop to install a £50,000 security system may not be reasonable.

4. Public Benefit (Social Utility):

• If the defendant's activity has high social utility (it benefits society), they may be justified in taking greater risks.
• Example: An ambulance driver driving quickly in an emergency may be justified in taking risks that an ordinary driver would not.

Different Classes of Defendant

The objective standard is adjusted for specific groups:

• Children: A child defendant is judged against the standard of a reasonable child of that age (a subjective element creeps in).
• Experts and Professionals: A defendant holding themselves out as having a special skill (e.g., doctor, lawyer, engineer) is judged against the standard of a reasonable professional in that field (Bolam v Friern Hospital Management Committee 1957).
  • If the professional acted in accordance with a practice accepted as proper by a responsible body of medical/professional opinion, they have not breached their duty (the Bolam Test).

Part 4: Damage: Causation and Remoteness (D)

The claimant must prove that the defendant’s breach actually caused the damage and that the damage was not too remote from the breach.

4.1.4 Factual Causation: The 'But For' Test

This is the scientific link between the breach and the damage.

• Test: The claimant must prove that "but for" the defendant’s breach, the damage would not have occurred.
• Example: But for the surgeon leaving the tool inside the patient (the breach), the patient would not have suffered infection (the damage).

Multiple Causes and Intervening Acts

Life isn't always simple, and sometimes there are multiple contributing factors:

• Multiple Causes: If there are several possible causes, C only needs to show that D's breach made a material contribution to the injury (e.g., Bonnington Castings Ltd v Wardlaw).
• Intervening Acts (Novus Actus Interveniens): This is an event that breaks the chain of causation between the defendant’s breach and the claimant’s damage. If the chain is broken, the original defendant is not liable for the damage that follows the break.
  • Intervening acts can be acts of a third party, the claimant themselves, or natural events.
  • The key question is: Was the intervening act foreseeable? If it was entirely unforeseeable, it is more likely to break the chain.

Legal Causation: Remoteness of Damage

Even if the defendant factually caused the harm, the law limits liability to damage that is not too remote.

• The Test for Remoteness: Damage is recoverable only if it is of a foreseeable kind. This test was established in The Wagon Mound (No. 1) [1961].

Example: A worker negligently drops a plank into the water (Breach). This causes oil to spill (Damage Type 1). The oil causes a fire, destroying the dock (Damage Type 2). The defendant is only liable for the oil spill (foreseeable), not the fire (unforeseeable at the time).

The Thin Skull Rule (Eggshell Skull Rule)

• This is an important exception to remoteness! The defendant must take their victim as they find them.
• If the *type* of damage (e.g., physical injury) is foreseeable, but the injury is far worse than expected due to the claimant’s pre-existing condition (a "thin skull"), the defendant is liable for the full extent of the harm.
• Example: D carelessly bumps C, which is foreseeable to cause a minor bruise. However, C has a rare bone condition and the bump causes a catastrophic break. D is liable for the full, serious injury.

Part 5: Novel Duty Situations (The Tricky Exceptions)

The general D-B-D structure works for physical injury, but special rules and restrictions apply when the damage is purely financial or psychiatric.

4.1.5 Pure Economic Loss and Negligent Misstatement

1. Pure Economic Loss

• Definition: Financial loss that is not the result of physical damage to the claimant or their property.
• General Rule: Pure economic loss is generally not recoverable in the tort of negligence. This is largely a policy decision to prevent the "floodgates" opening to claims every time someone suffers financial disappointment due to carelessness.

2. Exception: Liability for Negligent Misstatement

• If the loss is caused by careless advice (a negligent misstatement), it may be recoverable if specific conditions are met, established in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964].
• Requirements (A "Special Relationship"):
  1. The advisor possesses a special skill or knowledge.
  2. They voluntarily assume responsibility for the advice.
  3. The claimant reasonably relies on the advice.
  4. The advisor knew (or ought to have known) the claimant was relying on the advice for a specific purpose.

Did you know? In Hedley Byrne, the bank (Heller) escaped liability because they included a disclaimer saying, "without responsibility." If they hadn't, they would have been liable!

Liability for Nervous Shock (Psychiatric Harm)

The law is very cautious about claims for psychiatric harm (or 'nervous shock') to distinguish genuine illness from mere grief or distress.

For a claim to succeed, the harm must be a medically recognised psychiatric illness (e.g., PTSD, pathological grief), not just sadness.

The courts distinguish between two types of victims:

1. Primary Victims

• These are victims who were physically injured or put in immediate fear of physical injury by the defendant's negligence.
• If physical injury was foreseeable, they can recover for any psychiatric harm, even if the psychiatric harm itself was not foreseeable.

2. Secondary Victims

• These are victims who suffer psychiatric harm purely from witnessing the death, injury, or extreme danger caused to someone else.
• The restrictions on the scope of duty for secondary victims are very strict, based on the principles set out in Alcock v Chief Constable of South Yorkshire Police [1992].

Restrictions on Scope of Duty (Alcock Criteria)

A secondary victim must show:

1. The psychiatric injury was foreseeable (a person of normal fortitude would suffer harm).
2. They had a close tie of love and affection with the primary victim (e.g., spouse, parent, child).
3. They were present at the accident or its immediate aftermath (proximity in time and space).
4. They suffered the shock through their own unaided senses (e.g., seeing or hearing the event).

Policy Considerations:
These strict rules exist largely due to policy—the fear of opening the floodgates to countless claims from distant spectators or friends, and the difficulty in distinguishing between genuine psychiatric illness and normal human distress (grief).