NEGLIGENCE17[2].ppt

Preview
 Tort vs. contract
 Tort vs. crime
 Negligence: definition
 Claim of negligence
 Objective test
 Legal terms
 Exercise
 Case study: Donoghue v Stevenson

Law of tort vs. Law of contract
 Difference:
 Law of tort defines what sort of behaviour
is wrongful
 Law of contract – the contractual
agreement lays down what will be seen as
wrongful behaviour
 Liability for breach of contract and tortious
liability may arise from the same facts

Law of tort vs. Criminal law
 Many torts are also crimes, e.g. assault
 Law of tort and criminal law – different
purposes
 Law of tort gives a personal remedy to
individuals for any wrong they have
suffered
 Criminal law - concerned with the
protection of the public at large and will
punish offenders

Parties
 The claimant or defendant in a tort case:
either a natural or a legal person
 Sometimes the defendant is not the one
who actually carried out the wrongful
behaviour, but the law holds him
responsible for the acts of the one who did
cause the harm (parents, employers)

Negligence
 Carelessness amounting to a culpable
breach of duty: failure to do or recognise
sth that a reasonable person would do or
recognize, or doing sth that a reasonable
person would not do
 Negligence may be an element in a few
crimes, e.g. careless driving

Negligence
 A tort consisting of the breach of a duty of
care resulting in damage to the claimant
 Can be used to bring a civil action when
there is no contract under which
proceedings can be brought

Claim of negligence
 In order to succeed in a claim of
negligence, a claimant must show that:
 The defendant owed him a duty of care
 There was a breach of the duty of care
 The harm suffered was caused by the
breach of a duty of care
 The harm was reasonably foreseable

Neighbourhood principle
 Neighbourhood principle : whether there is
a duty of care depends on whether the
claimant is a neighbour in the legal sense
 A person is a ‘neighbour’ if what you do
will directly affect him
 Duty to take reasonable care to avoid acts
or omissions ‘which you can reasonably
foresee would be likely to injure your
neighbour’.

Donoghue v. Stevenson (1932)
 On 26 Aug. 1928, Mrs May Donoghue of
Glasgow left her home to make the short
journey into Paisley, a neighbouring town.
There she met a friend at Minchella’s cafe
at 1 Wellmeadow Street. Her friend
ordered and paid for an ice-cream and a
bottle of ginger beer.

 The ginger was manufactured by Mr David
Stevenson of Paisley. It came in an
‘opaque’ bottle, so no one was able to see
what was in the bottle.
 ’.

 When Mrs Donoghue’s friend was pouring out
the contents of the bottle, they saw floating out
of the bottle what seemed to be partly
decomposed remains of a snail. Mrs Donoghue
claimed she was made ill by what she had seen.
She had medical treatment three days later for
gastro-enteritis, and again three weeks later, at
the Glasgow Royal infirmary. She also claimed
that she had suffered from ‘nervous shock

 There was no contractual relationship
between Mr Minchella and Mrs Donoghue.
The only person she could sue was David
Stevenson, the manufacturer of the ginger
beer. The question was, on what grounds?

 Mrs Donoghue’s solicitor, Walter Leechman,
decided to proceed with the case, even though
there was no legal precedent for such an action.
The basis of the claim was that any
manufacturer of a product intended for human
consumption must be liable to the consumer for
any damage resulting from a lack of reasonable
care to ensure that the product is fit for
consumption.

 The case proceeded through various
appeals to the House of Lords. The Lords
decided in favour of Mrs Donoghue, a
new precedent was established and a lady
who said she was ‘not worth five pounds in
all the world’ became the reason why,
these days, millions of pounds have been
won by claimants based on the tort of
negligence.

Judgment
 Lord Atkin: “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? receives a
restricted reply. 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”

Recognized duties in law
 Highway (also: railways, shipping at sea,
canal navigation)
 Employer’s liability (safe system of work,
safe machinery, competent fellow
employees)
 Professional persons (doctors, dentists,
solicitors)

Recognized duties in law
 Carriers (duty of care to passengers and
goods)
 Schools (duty of care to children and to
third parties injured by children)
 Police (duty of care to general public)

Cases: Pape v. Cumbria c.c.
(1992)
 It was held that employers had not
discharged their duty of care towards their
employee cleaner, who contracted
dermatitis, by mere provision of rubber
gloves; they should have instructed and
encouraged her to wear the gloves at all
times

Cases: Smoldon v. Whitworth
(1996)
 S. a rugby player, was injured by an
opposing player during a scrum in a match
and W, the referee, had not taken a tight
grip on the general lines to be expected of
a reasonably competent referee. The
referee was held to owe a duty of care to
the players to protect them from the
unnecessary and dangerous aspects of
the game

Margereson v. J.W. Roberts Ltd;
Hancock v. J.W. Roberts Ltd (1996)
 M’s late husband and H played together
as children in the loading bays of a factory
where the level of asbestos contamination
was very high, and as adults they
developed mesothelioma. The company
was held to have breached a duty of care
as they ought to have reasonably foreseen
a risk of pulmonary injury to the children

Duty of care
 If there is no duty of care, there is no
breach
 If there was a breach, was the harm that
the claimant suffered reasonably
foreseeable
 If it was not reasonably foreseeable –
remote damage

Breach of duty
 If the defendant owed the claimant a duty
of care, the next step is to prove that the
defendant breached that duty of care
 The test: objective
 The standard: reasonableness

The standard of care
 Standard of care – that of an ordinary
prudent person
 The care which a reasonable person
would use in the circumstances
 Where serious consequences may follow
from carelessness, the greater degree of
care must be exercised (more care
needed in handling a loaded gun than
handling a walking stick)

Dorset Yacht Co. v. Home
Office (1969)
 Some boys escaped from a borstal institution
and set adrift and damaged a motor-yacht in
Poole harbour. The Yacht Co. (owners) sued the
Home Office as the Government department
responsible for prisons and borstals
 Held: Home Office was liable for damage done
by persons who escaped from custody or while
on parole if the escape was due to the
negligence of prison or borstal officers

Smith & Others v. Littlewoods
Organisation Ltd (1987)
 Vandals started fire in the defendant’s
empty building which damaged adjoining
property.
 Held: occupier’s duty did not extend to
preventing deliberate acts of third party
vandals in these circumstances

Yachuk v. Oliver Blais Co.
(1949)
 A boy of nine persuaded a garage attendant to
let him have a tin of petrol by a false tale that his
mother’s car had run out of petrol some distance
from the garage. The boy poured the petrol over
some timber and then set it alight. The fire
caused and explosion and the boy was seriously
injured.
 Held: it was negligence on the part of the garage
attendant to entrust the child with such a
dangerous commodity as petrol

Causation
 Even if the claimant can show that the
defendant owed him a duty of care and he
breached it, he must show that the
defendant caused his injuries – i.e.to
establish causation: there has to be a
clear link between the claimant’s loss and
the way the defendant behaved

Defences to negligence
 Contributory Negligence: the plaintiff
contributed to the negligent act.
Assumption of Risk: If plaintiff knew the
risk and voluntarily assumed it Emergency
Doctrine of emergency: Allows defendant
to lower standard of care because an
emergency required them to act rashly in
order to avoid a greater harm from
occurring.

Contributory negligence
 Even if a claimant has proved a duty of
care, a breach of that duty and causation,
the defendant could still have a defence:
contributory negligence
 The claimant’s injury was only partly
caused by the defendant’s conduct; the
claimant himself is also at fault and partly
to blame for his injury

Sayers v. Harlow U.D.C. (1958)
 The plaintiff, a woman, entered a public lavatory owned
and operated by defendants. Owing to a defective lock
without a handle, she could not get out of the cubicle.
Her bus was due to leave, and she tried to climb over the
door. She placed her foot on a revolving toilet roll, fell to
the ground and injured herself. She sued the local
authority.
 Held: (1) the defendants were negligent; (2) the plaintiff
was guilty of contributory negligence in trying to balance
on a revolving object. Her claim would be reduced by
one-quarter

Froom and others v. Butcher
(1976)
 B. drove a car negligently on a road and
collided with F’s car injuring the driver, F,
who was not wearing a seat-belt. The
accident was solely caused by B.
 Held: F’s claim for damages was reduced
by 25% because F was contributorily
negligent in not wearing the seat-belt

Summary
 Negligence: definition
 Duty of care (neighbourhood principle)
 Breach of the duty of care (test of
reasonableness )
 Causation

Legal terms
 The party owing a duty of care has failed
in the performance of that duty
 Breach of a duty of care
 There must be a link between the damage
suffered by the claimant and the
defendant’s act or omission.
 Causation

Legal terms
 A defence to a negligence claim. The
defendant shows that the claimant failed to
take proper care and was therefore partly
to blame for the injury he suffered. The
damages the claimant can recover will be
less.
 Contributory negligence

Legal terms
 Financial compensation for the claimant
for the harm suffered
 Damages
 A duty binding on one party to avoid acts
or omissions which could reasonably be
foreseen as likely to injure the other party
 Duty of care

Legal terms
 This is an artificial, legal construct. An
abstract entity, for example a registered
company, is a separate person in law
 Legal person
 This is a human being rather than an
artificial legal construct
 Natural person

Legal terms
 In legal terminology, this is more than
mere carelessness. It requires that the
defendant has breached a duty of care
owed to the claimant, and as a result the
claimant has suffered harm
 Negligence

Legal terms
 The test in negligence for breach of a duty
of care is not whether this particular
defendant has acted unreasonably but
whether a reasonable person would have
acted in this way
 Objective test

Legal terms
 In a negligence claim, a major factor that
must be taken into account in establishing
a duty of care is whether the defendant
could reasonably foresee that his
behaviour would lead to the claimant being
injured.
 Reasonable foreseeability

Legal terms
 The test for determining whether there has
been a breach of a duty of care is
objective. The standard is one of
reasonableness: whether the defendant
has acted as a reasonable man would
have acted in this situation
 Reasonable man/person

Legal terms
 A private or civil wrong, resulting from a
breach of a legal duty. The law of __is a
collection of different sorts of ___, as there
is no general principle of liability for
causing harm to another person
 Tort
 The adjective referring to tort
 Tortious

Collocations
 To establish negligence
 To suffer damage
 To allege negligence
 The cause of damage
 A chain of causation
 Reasonably foreseeable

Prepositions
 To act in a way
 Your client acted in a particular way that
caused harm to my client
 In order to do something
 In order to establish negligence we must
show that the defendant breached his duty
of care to you.

Prepositions
 Foreseeable by someone
 The damage was reasonably foreseeable
by our client
 To be guilty of something
 The defendant was guilty of committing
this tort

Fill in the gaps with the followig: breached, care,
damages, deterrent, distress, incurred, proof,
redress, remedy, wronged
 What is the purpose of the law of tort? Many
lawyers describe this as the most disorganised
area of law. It has even been described as ‘the
dustbin of law’, meaning that it is the place
where all of the problems that other areas of law
cannot deal with will eventually arrive.However,
the principal purpose of the law of tort is to
provide a____to those who have been___ by
others. Some of these wrongs might be covered
by criminal law or by contract law as well as by
the law of tort, but some might not be.

breached, care, damages, deterrent, distress,
incurred, proof, redress, remedy, wronged
 However, people are not liable for wrongs
to others in every situation in life. Let’s say
that person A harms person B in some
way. Is person B entitled to what lawyers
call____? It is certainly not automatic that
person B can make a claim against person
A according to the law of tort. It depends
on the type of harm that has been caused
and under what circumstances.

incurred, proof, redress, remedy, tortious wronged
 The law of tort is based upon principles
that have developed over many years.
These principles explain what lawyers
refer to as ‘____liability’. This is where one
person or organisation has a duty in the
eyes of the law not to harm another in any
way. This duty is called duty of ____.

 To make a successful claim against someone
according to the law of tort, you must first of all
establish that:
 The person who has harmed you owed a duty of
care to you, and
 the duty of care was____.
 In some cases you also need to provide the
court with___of harm, but in other cases just
proving that the duty of care was breached is
enough.

breached, care, compensate, damages, deterrent,
distress, incurred, proof, redress, remedy,
wronged
 The main objective of the law of tort is not
to punish the wrongdoer, but to ____the
injured party. This compensation usually
takes the form of a payment of money that
is referred to as ___.

 Let’s say that person A is driving dangerously
and causes harm to person B by crashing into
his car. In this example, person A has an
automatic duty of care not to harm anyone in
this way and that duty has been_____. A court
might award _____to cover the cost of buying a
new car. It might also award damages for any
other expenses that person B has ____, such as
loss of earnings if he is unable to go to work.

 The court might also add a certain amount of
____to the sum awarded for things that are
difficult to measure, such as person B’s pain and
suffering. The phrase moral damage is not used
in English to describe his kind of suffering. We
usually describe it as ‘pain and suffering’ or
‘emotional ___.
 Some lawyers think that the law of tort also acts
as a ___in that people think twice before
behaving in a way that could lead to harm.

Fill in the missing words: agree, argue,ask,
contribute, do, establish, expect, tort
 Under what circumstances is a person guilty of
the ___of negligence? Unfortunately, the
definition of the term ‘negligence’ varies
according to which book you are reading. The
legal term ‘negligence’ has a much more
complex meaning than the general English
meaning of the word. However, most lawyers
___upon the idea that in order to establish
negligence in a particular situation we
must___three fundamental questions:

Fill in the missing words: agree, argue,ask,
contribute, do, establish, expect, negligent
owe
 Did the defendant___the claimant a duty
of care?
 Was that duty of care breached?
 Did the defendant’s breach cause, or
materially___to, the damage suffered by
the claimant?
 If the answer to all three questions is ‘yes’,
then the defendant has been___ in the
legal sense of the word.

agree, argue,ask, care, contribute, do,
establish, expect
 To whom do I owe the duty of___? The case law
in this area is complicated. However, there is a
principle of English law that says that I owe a
duty of care to anyone in situtations where it is
reasonably foreseeable that my act or omission
might cause harm to another person. In other
words, it is a defence to an allegation of
negligence to ___that no reasonable person
would have anticipated that my act or omission
would cause harm.

agree, argue,ask, contribute, do, establish,
expect
 Assuming that I can reasonably anticipate the
result of my act or omission, what standard of
care does the law___from me? How do I know
when I have breached my duty of care? To
answer this question, most English law students
are asked to remember the general principle of
negligence provided by a judge named Alderson
in the case of Blyth v Birmingham Waterworks
(1856). The judge said:

expect
 ‘Negligence is the omission
to___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’.

expect
 Again, the question of whether or not I
have breached my duty of care has been
decided by an objective test. What would
an ordinary, reasonable person do under
the same circumstances? Finally, in order
to firmly __negligence, the claimant must
demonstrate that the negligent act of the
defendant was the main cause of the
damage complained of. A court will often
ask:

agree, argue,ask, causation, contribute,
defendant, do, establish, expect, suffered
 Was the chain of causation broken at any
time?
 Would the harm that the claimant ___have
happened anyway, even if the ____had
not acted in a particular way?
 Even where there is a clear chain of ____,
was the damage too remote, in other
words, not reasonably foreseeable by the
defendant?

expect, imagine, negligent, suffered
 In conclusion, establishing that someone
has been____ is not as straightforward as
the general public might imagine.

True or false?
 The legal meaning of the word
‘negligence’is more complicated than the
general, dictionary meaning as the public
would understand it.
 According to English law, I owe a duty of
care to all other citizens in all situations.
 The test of whether or not one person
owes another person a duty of care is an
objective one.

True or false?
 The definition of negligence from 1856
comes from the common law.
 In cases where there is a clear chain of
causation between the defendant’s
conduct and the claimant’s harm, the
defendant will always be guilty of
negligence.

Complete the following sentences with a
preposition: by, under, at, upon, of
 Do we agree___the fact that your client
owed my client a duty of care?
 We must ask ourselves what a reasonable
person would have done___the
circumstances.
 The defendant did not take reasonable
care when using dangerous chemicals and
so he is guilty ___behaving negligently.

by, under, at, upon, of
 The damage caused to the claimant was
not reasonably foreseeable___the
defendant.
 ___what point do you think that the chain
of causation was broken?

Questions
 Where was Mrs Donoghue from?
 What was the address of the cafe where
the incident happened? Why was no one
able to see the contents of the bottle of
ginger beer before it was poured out?
 What did Mrs Donoghue claim to have
found in her bottle of ginger beer?

 What illness was Mrs Donoghue treated for soon
after her visit to the cafe?
 What second serious effect did Mrs Donoghue
claim the incident had caused?
 Why was it so surprising that Mr Leechman
decided to take this case to court?
 This case established that a duty of care exists
between manufacturers and which other general
group of people?

Complete the sentences with the
correct preposition
 Each citizen within a particular jurisdiction is
liable__any breach of his or her duty of care.
 If you cause harm___someone as a result of a
breach of the duty of care then you will probably
be ordered to pay damages to that person.
 The amount of damages that you have to pay
will be dependent ___the circumstances of the
case.

 My client is entitled ___redress for the
harm that she has suffered.
 Many of the principles of the modern law
of tort arose__the facts of the case of
Donoghue v Stevenson.
 Many of the obligations that we have
under the law of tort are imposed upon us
___statute.

 Do we agree __the fact that your client was
liable for this accident?
 There was no break in the chain___causation
and your client was directly responsible for my
client’s loss.
 Mrs Donoghue met her friend at a cafe___the
town of Paisley.
 When Mrs Donoghue’s case went to court there
was no legal precedent ___such an action.

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