What
the law of torts does is to define the obligations imposed on one member of
society to his or her fellows and to provide for compensation for harms caused
by breach of such obligations.
2.0
DUTY OF CARE: THE NEIGHBOUR PRINCIPLE
Far
more people suffer damage from careless acts of others than from intentional
ones, and so the provision made for them is of cardinal importance in the law
of torts. The injured party must
establish that the defendant owed him a duty to take care to protect him from
the kind of harm suffered, that he was in breach of that duty, and that it was
the defendant's breach of duty which was found to be the cause of the
plaintiffs injury. Duty, breach and causation must be established in every
successful claim in negligence.
2.1 Duty Situations
The
concept of duty of care in negligence emerged towards the end of the eighteenth
century, and is now so firmly rooted that there can be no doubt that actions in
negligence must fail where duty is not established.
Mulcahy
v Ministry of Defence [1996] 2 All ER 758 CA (Check Library).
In
1932 came the dictum of Lord Atkin in Donoghue v Stevenson [1932]
AC 562, HL at 580 his famous 'neighbour principle':
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.
The
House of Lords made it crystal clear in Marc Rich & Co AG v British Rock
Marine Co Ltd [1995] 3 All ER 307, HL that, even in claims in relation to physical
damage, foreseeability alone is insufficient to create a duty of care. Citing
Saville LJ in the Court of Appeal, Lord Steyn confirmed that whatever the
nature of the relevant harm (our emphasis) the court must consider, not only
the foreseeability of such harm, but address the relationship between the
parties and in every case be '... satisfied that in all the circumstances it is
fair, just and reasonable to impose a duty of care'.
3.0 HARM
3.1 Recognised Harm
What
kinds of injury must you take care to avoid inflicting on your neighbour?
Failing to return his love may hurt him deeply. What kinds of harm give rise to
a duty of care in tort? Restrictive
interpretations of the Atkin principle in the years immediately following Donoghue
v Stevenson sought to limit its application to personal
injuries alone.' Over 30 years passed before it was considered applicable to
claims for economic loss at all as in Hedley Byrne & Co v Heller & Partners Ltd [1963] 2 All ER 575, HL.
3.1.1 Harm to Persons
a.
Duty to the Unborn
Whether
a duty of care was owed to a child damaged by another's negligence before its
birth remained unresolved at common law until 1992. In Burton v Islington Health
Authority [1992] 3 All ER 833 the Court of Appeal finally
held that a duty is owed to the unborn child which crystallises on the live
birth of the child.
b.
Duty to Rescuers
Recognition
of a duty owed in respect of physical and emotional injury to rescuers raises
two important questions about the ambit of the duty to avoid harm to persons.
The rescuer is only indirectly at risk from the negligent conduct. Is he then a
foreseeable plaintiff? In 1935 the Court of Appeal held for the first time that
a defendant who owed a duty to another also owed a duty to those who might
foreseeably attempt to rescue him from the acute peril in which the defendant's
negligence had placed him. Haynes v Norwood [1935] 1 KB
146, CA
c.
Liability for Psychiatric Harm
The
courts have traditionally been cautious about awarding damages for any
non-physical harm to the person, even when that harm goes well beyond normal
distress resulting in some cases in obvious physical symptoms. White
v Chief Constable of South Yorkshire Police Psychiatric illness can
follow from an incident in which negligence results in injury, or threatened
injury, in a number of ways. Principally, first, and very obviously, a
plaintiff who suffers severe physical injury, for example in a road accident,
may well also succumb to mental illness triggered by the terror of the accident
and his or her consequent pain and suffering. Second, an accident may take
place causing the plaintiff shock and fear for his or her own safety but not
resulting in any bodily harm. Nonetheless, the shock may cause the victim to
succumb to psychiatric illness. Third,
the plaintiff may not be directly involved in the original accident, and be at
no personal risk of physical injury. Such a plaintiff suffers psychiatric harm
because of the effect that injuries to others have on him or her. The classic
example would be a mother who witnesses horrific injury to her children.'' The
majority of the early 'nervous shock' cases belong in this third category. The
plaintiff is classified as a secondary victim of the defendant's negligence. A
series of judgments set limits, - 'control mechanisms' - on who may claim as
such a secondary victim of psychiatric harm. Alcock v Chief Constable of
South Yorkshire Police [1991]
4 All ER 907 HL. To recover damages, a secondary victim
must generally establish (1) a close tie of love or affection with the primary
victim, such ties of affection will generally be presumed to exist between, for
example, spouses and parents and children and (2) a proximity in time and place
to the scene of the accident. He must show special reasons why the defendant
ought to foresee that he might suffer injury by shock.
Vernon
v Bosley [1997]
1 ALLER 577
The
plaintiffs’ two young children were passengers in a car driven by their nanny,
the defendant, when it veered off the road and crashed into a river. The
plaintiff did not witness the original accident, but was called to the scene
immediately afterwards and watched unsuccessful attempts to salvage the car and
rescue his children. These efforts failed and the children drowned. The
plaintiff became mentally ill and his business and his marriage both failed.
The defendant accepted that his illness resulted from the tragic deaths of his
children but contended that his illness was caused not by the shock of what he
experienced at the riverside, but by pathological grief at the loss of his
family resulting in an illness called pathological grief disorder (PGD not
PTSD). The Court of Appeal held that
although damages for ordinary grief and bereavement remain irrecoverable, a
secondary victim was entitled to recover damages for psychiatric illness where
he could establish that he met the general pre-conditions for such a claim,
that is a close relationship with the primary victim and proximity to the
accident, and that the negligence of the defendant caused or contributed to his
mental illness. The plaintiff could recover compensation regardless of whether
in part his illness consisted of an abnormal grief reaction as much as post
traumatic stress disorder.
In what is now the leading case on
liability for psychiatric harm, Alcock v Chief Constable of South Yorkshire
Police (CHECK LIBRARY)
d.
Physical Damage to Property
Recognition
of a duty to avoid proximate physical damage to another's property, as much as
to his person, raises no unique problem of principle. The class of persons to whom a duty in respect of damage to
property is owed and the manner in which harm is classified as physical damage
to property as opposed to pure economic loss do however call for careful
consideration. The House of Lords in Leigh and Sillivan Ltd v Aliakmon
Shipping Co Ltd confirmed the rule that a duty in respect of loss
or damage to property is owed only to a person having'... legal ownership of or
a possessory title to the property concerned at the time when the loss or
damage occurred.
e.
Pure Economic Loss
Classifying
the plaintiffs loss as purely economic does not preclude recovery of that loss,
but will require that the plaintiff convince the court that the defendant owed
him a duty to safeguard him against just that sort of loss. And as we have
noted earlier, the courts are generally much less willing to find the existence
of such a duty than a duty to protect others from physical injury or damage. Williams
v Natural Life Health Foods Ltd [1998] 2 All ER 577 (Check Library).
The defendant must be proven to have undertaken responsibility for the
plaintiff from the financial loss of which he complains. Where no such 'special
relationship' exists, a stream of case law makes it clear that economic loss is
irrecoverable however readily foreseeable that loss may be and however 'unfair'
the plaintiff’s plight may seem.
3.2 The Likelihood of Harm
The
degree of care which that duty involves must be proportioned to the degree of
risk involved if the duty of care should not be fulfilled. The amount of
caution required tends to increase with the likelihood that the defendant's
conduct will cause harm. Of course, in certain instances, the chance of harm
may be so small that a person is held to be taking reasonable care although he
does not guard against such remote possibilities.
The
Wagon Mound (No 2)
[1966] 2 All ER 709
3.3 Seriousness of the Risk and the Risk
of Serious Injury
Not
only is it a principle of law that a greater risk of injury is a material
factor in framing the standard of care, but it is equally a legal rule that the
gravity of the injury is material. In Paris v Stepney Borough Council
the Court of Appeal had held that, where the disability of a workman did not
increase the risk of an accident, but only increased the risk of serious injury
if such an accident did befall him, the disability was irrelevant in
determining the standard of care. The House of Lords reversed this, holding
that the gravity of the consequences if an accident did occur had to be taken
into account in fixing the measure of care.
3.4 The Utility of the Act of the
Defendant
Daborn
v Bath Tramways Motor Co Ltd [1946] 2 All ER 333, CA,
illustrates this point well: The relevant issue was whether the driver, in
wartime, of a left-hand-drive ambulance had been negligent in turning into a
lane on the off-side of the road without giving a signal. Holding that she had not broken her duty of
care.
3.5 The Cost of Avoiding the Harm
It
is relevant to consider how extensive and costly the measures necessary to
eliminate the risk would be. In Latimer v AEC Ltd Denning LJ
said:
In every case of foreseeable risk,
it is a matter of balancing the risk against the measures necessary to
eliminate it. In this case an exceptional storm had caused a factory floor to
become flooded; when the water receded, the floor was found to be covered with
a slimy mixture of oil and water so that its surface was slippery. The issue
was the liability of the factory owners to a workman who, some hours later, was
injured through slipping on the floor. The House of Lords affirmed the decision
of the Court of Appeal that there was no negligence at common law. Lord Tucker
saying:' The only question was: Has it been proved the floor was so slippery
that, remedial steps not being possible, a reasonably prudent employer would
have closed down the factory rather than allow his employees to run the risks
involved in continuing work?
In
Knight v Home Office [1990] 3 All ER 237 the plaintiff’s husband committed
suicide while detained in a prison hospital wing. The judge accepted that the
standard of care and supervision for suicidal prisoners may well have fallen
below that to be expected in an NHS psychiatric facility. Yet he dismissed the
plaintiff’s claim. He said: In making the decision as to the standard demanded
the court must, however, bear in mind as one factor that resources available
for the public service are limited and that the allocation of resources is a
matter for Parliament.
4.0 THE RELATION BETWEEN STANDARD OF CARE
AND DUTY
One
must ask the further question whether the standard of care has to be
particularised in detail in terms of 'duty'. A motorist fails to sound his horn
at a crossing and is held liable in negligence to another motorist with whom he
collides, the court holding that he should have sounded his horn. Would such a
decision thenceforth be authority for the proposition that a motorist has a
duty at law to sound his horn when approaching an intersection?
In
Worsfield v Howe [1980] 1 All ER 1028: The defendant car driver edged
blind from a side road across stationary tankers and collided with a
motorcyclist approaching on the main road past the tankers. Because the Court
of Appeal had held in a previous case that a driver so edging out was not
negligent the trial judge felt bound to absolve the defendant from liability.
The Court of Appeal held that the previous decision laid down no legal principle,
that such decisions were to be treated as ones of fact, and held the defendant
negligent.
5.0 STANDARD OF CARE: THE REASONABLE MAN
Negligence
is the 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. The
legal standard is not that of the defendant himself but that of 'a man of
ordinary prudence', a man using 'ordinary care and skill', a 'hypothetical'
man. Yet it is inadequate, and the definition of the reasonable person is not
complete unless the words 'in the circumstances' are embodied.
5.1 Persons
5.1.1 Children
McHale
v Watson A 12-year-old boy threw a spike at a post. Unfortunately the spike
ricocheted off the post and hit the plaintiff (a girl of nine) in the eye. The
High Court of Australia held that the standard of care to be demanded of the
boy must be judged by the 'foresight and prudence of an ordinary boy of 12.
5.1.2 Adults Affected by Disability or
Infirmity
It is unclear to what extent if at
all the standard of the reasonable person will be adjusted to allow for the
incapacities and infirmities of individual adults. Consider whether the
standard of care is (or should be) affected if the defendant is elderly, or
deaf, or minus a limb.
Mansfield
v Weetabix Ltd.
A lorry driver was involved in a
collision when he partially lost consciousness as a result of a hypoglycaemic
state induced by a malignancy of which he was completely unaware. Overruling
the trial judge's finding of negligence, the Court of Appeal held that where a
disability or infirmity prevented the defendant from meeting the objective
standard of care, and the defendant was not, and could not reasonably have
been, aware of his condition, that condition must be taken into account in
determining whether or not the defendant was negligent.
5.2 Intelligence and Knowledge
The
defendant's actions must conform to certain criteria expected of a person of
normal intelligence in a given situation. It is no defence that someone acted
'to the best of his own judgment’; if his 'best' is below that of the
reasonable man.
Vaughan
v Menlove (1837) 3 Bing NC 468 at 474
5.3 Skill
It
has been seen that a person's conduct must conform to the standard of a person
of normal intelligence. When a person has held himself out as being capable of
attaining standards of skill either in relation to the public generally, for
example by driving a car,' or in relation to some person for whom he is
performing a service, he is required to show the skill normally possessed by
persons doing that work.
Wells v Cooper [1958] 2 All ER
527, CA.: A householder fitted a new door handle so insecurely
that the plaintiff, when pulling it, lost his balance and was injured. The
Court of Appeal held that the householder was required to show the standard of
care, not of a professional carpenter nor of a person having such skill as the
defendant actually possessed, but that of a reasonably competent carpenter
doing such a trifling domestic job. Where someone has not held himself out as
having special skill, he is not liable when he shows average skill in the
circumstances although he has special skill. One of the main reasons why the courts
insist on applying a uniform standard of skill is the practical difficulty of
assessing a particular person's actual skill or experience.
5.4
The Circumstances of the Plaintiff
The
defendant's actual knowledge of the circumstances may affect his measure of
care.
In Haley v London Electricity
Board [1964] 3 All ER 185, HL the House of Lords applied Lord Sumner's
dictum when they held that a body conducting operations on a city highway
should foresee that blind persons would walk along the pavement, and that it
owes a duty to take those precautions reasonably necessary to protect them from
harm; on the facts it was held liable although a sighted person would not have
been injured in consequence of its operations.
5.5 The Hurly-Burly of Life
The tort of negligence does not
demand perfection, does not require that those to whom a duty of care is owed
be safeguarded against every conceivable risk. The 'reasonable man' test
largely rests on common sense and the exigencies of everyday life must be
recognised. A good example of the allowance made by the law for the 'hurly
burly of life' can be seen in cases relating to parental and quasi-parental
duties.
In
Carmarthenshire County Council v Lewis [1955] 1 All ER 565, HL the
defendant council were held liable when a small boy wandered out of his nursery
school and onto a nearby road causing an accident in which the plaintiffs
husband died. The council was negligent because premises where small children
are should be designed to ensure that children cannot wander off endangering
themselves or others. But Lord Reid said that the teacher who had not noticed
the boy leave her classroom while she attended to a child with a cut knee was
not negligent. Those in charge of small children cannot have eyes in the back
of their heads.
5.6
Reasonable
Anticipation
In
all the varied cases relating to the standard of care there is a recurrent
emphasis on what could reasonably be anticipated or foreseen as constituting
the standard of the reasonable man.
This serves to emphasise both that one must not look at the
circumstances in the light of what has in fact happened" and that it is
immaterial that, since the accident, the defendant has taken precautions
against a further such accident. It is elementary law that someone cannot be
expected to take precautions against dangers which he cannot reasonably be
expected to anticipate.
Tilley
v Stevenson [1939] 4 All ER 207 at 210, CA (Check Library)
5.7
Forseeable
Acts of Third Parties
Even
where the courts are prepared to find a duty in respect of the act of third
parties, it will often be difficult to decide, when there has been an
intervening act of a third party, whether the defendant's act has caused the
damage suffered by the plaintiff. Whether the defendant has shown that standard
of care will frequently depend on what acts or omissions of another he could
reasonably have anticipated. If the plaintiff is injured because a third party
has done something which the defendant could not reasonably foresee that he
would do, the defendant is not liable. Yet, in London Passenger Transport Board
v Upson [1949] 1 All ER 60, HL the House of Lords reversed the ruling of
Lord Greene MR, in the court below that 'drivers are entitled to drive on the
assumption that other users of the road, whether drivers or pedestrians, will
behave with reasonable care'." Lord Uthwatt added: It is common experience
that many do not. A driver is not, of course, bound to anticipate folly in all
its forms, but he is not, in my opinion, entitled to put out of consideration
the teachings of experience as to the form those follies commonly take.
5.8
General
Practice of the Community
Commonly,
a defendant will support his claim to have shown due care by showing that he
conformed to the common practice of those engaged in the activity in question.
The test is not always decisive.
In Brown v Rolls Royce Ltd
[1960] 1 All ER 577, HL: The defendants failed to provide the plaintiff
with barrier cream commonly supplied by employers to workmen doing work like
this. They had relied on proper medical advice in not providing the cream. They
further maintained that the plaintiff had not proved that the cream would have
prevented him from contracting dermatitis. Held that the plaintiff had not discharged his burden of proving that negligence
by the defendants caused his dermatitis.
6.0 CAUSATION
Causation
is relevant in all torts. Problems may arise in relation to proof that the
defendant's wrongful conduct did in fact cause the plaintiffs damage and to
what extent the defendant ought to be held responsible for the full extent of
such damage.
6.1 Cause and Effect
Establishing
cause and effect in law can be far from easy. Every occurrence is the result of
a combination of several different events. The history of an incident resulting
in injury to a plaintiff will include a series of acts and omissions which
combined with the conditions in which those events took place culminate in the
harm occasioned to the plaintiff. This series of events include both events
prior to and subsequent to the allegedly tortious conduct of the defendant.
Consider the facts of Wright v Lodge [1993] 4 All ER
299, CA. The second defendant was driving her Mini at
night along a dual carriageway in the fog. The road was unlit. Her engine
failed and the car came to a stop in the near side lane. A few minutes later,
as the driver was trying to restart her car, an articulated lorry being driven
at 60 mph by the first defendant crashed into the Mini virtually destroying the
car and seriously injuring a passenger in the back seat of the car. After
hitting the Mini, the lorry careered across the central reservation. The lorry
fell on its side blocking the road and four oncoming vehicles collided with it.
One driver died of his injuries and another was seriously injured. What or who
caused those injuries? Had the second defendant not chosen to go out that
evening, or had it not been foggy, or had the road been lit, the accident might
never have happened. In one sense each of those factors is a cause without
which (causa sine qua non) the accident would not have occurred. The law, of
course, first looks to the human actors. The unlit road and the fog are part of
the complex of conditions which produced the accident, but not causes of it in
law. However, not all human acts constitute in law the cause of an event.
No-one would suggest that by driving out that night, the driver of the Mini (or
the lorry) were responsible for the three plaintiffs' injuries. What must be
identified is the operative cause or causes.
The lorry driver argued that it was not only his negligence in driving
so fast on a foggy night which caused the dreadful pile-up on the road. The
driver of the Mini should have pushed her car off the road before trying to
restart it. Had she done so, he would not have collided with her. 'But for' her
failure to ensure that her car did not block the road the whole disaster would
have been avoided? The Court of Appeal disagreed. While the judges accepted
that the driver of the Mini was negligent in some degree in not moving her car,
and liable for the injuries to her passenger, jointly with the lorry driver,
they held that she was not liable to the drivers of the cars involved in the
second collision across the other side of the carriageway. Her initial
negligence was not a legally operative cause of those injuries which were
solely the responsibility of the lorry driver who had driven so grossly
carelessly that night. Not every cause 'without which'— 'but for'— an accident
would not have occurred is a relevant cause in law. Causation in such complex
cases should be decided by invoking at least a degree of common sense.
6.2 Evidence of Causation
It
is clear beyond doubt the plaintiff must advance sufficient evidence that it is
more likely than not that the alleged cause (the wrongful conduct of the
defendant) did occasion his loss or injury.
Barnett
v Chelsea and Kensington Hospital Management Committee [1968] 1
A11ER 1068.
A man was sent home without
treatment from a casualty department after complaining of acute stomach pains
and sickness and later died of arsenical poisoning, his widow's claim against
the hospital failed even though the hospital admitted negligence The court
found that even had he been given prompt and competent treatment, the man would
still have died as a result of the arsenic.
6.3 Multiple Causes
6.3.1 Novus Actus Interveniens
In many instances, subsequent to
the negligence of the defendant a contingency may arise resulting in further
injury to the plaintiff. For example, the plaintiff may initially suffer minor
injuries at the hands of the defendant, but die as a result of bungled medical
treatment. Such harm may be described as 'ulterior harm'. The defendant is not
liable for all ulterior harm. In marking off the limits of his liability it
will not ordinarily matter whether we use the language of risk or cause. The
man run down by the defendant's negligence cannot recover for the extra damage
sustained when a tile falls off a roof on to his head while he is on his way to
hospital. The falling of the tile broke
the chain of causation- it constituted a novus actus interveniens, an
intervening act sufficient to relieve the defendant of further liability for
the consequences of his own conduct.
D'Urso
v Sanson [1939] 4 All ER 26 Where the injuries
negligently inflicted by the defendant on a plaintiff's husband induced a state
of acute anxiety neurosis which persisted for 18 months and caused him to take
his own life, the defendant was held liable to the plaintiff.
a.
The intervening event may be an act of nature
For
example, a child is injured playing football at school, and, as she is wheeled
across the playground to the waiting ambulance she is struck by lightning. The
injury inflicted by the lightning is not in any sense a consequence other
sports injury. However note that the act of nature must be overwhelming,
unpredictable and in no sense linked to the defendant's negligence.
b.
The plaintiffs own conduct may constitute a novus actus.
Hannens and Cubitts (Scotland) Ltd
[1969] 3 All ER 1621, HL.
The plaintiff had suffered an
injured leg owing to the defendants' negligence. Yet he was denied compensation
when he subsequently broke his ankle attempting, while still suffering from the
effects of the first injury, to descend a steep staircase unaided. His own
imprudence, his unreasonable conduct, constituted a fresh and separate cause of
the second injury.
Selvanayagam
v University of the West Indies [1983] 1 All ER 824 (Check Library)
c.
The act of a third party may be argued to break the chain of causation.
When
will an intervening act on the part of a third party constitute a novus
actus interveniens? The relevant principles are flexible and their
application is sometimes difficult.
Stansbie
v Troman
[1948] 2 KB 48, [1948] 1 All ER 599
A
decorator who carelessly left unlocked the house in which he had been working
while he went to fetch more wallpaper was liable to the owner in contract for
thefts from the house perpetrated by a thief while the defendant had left the
house empty and unlocked.
6.3.2 Concurrent Causes
Various
types of act which may be described as 'concurrent' must be looked at
separately. If two tortious acts result in damage, and either one would have
produced the same damage, as when two fires are started and merge to fires bum
out a building, then the perpetrator of each act is responsible for the whole
damage, because each act is a substantial factor in producing the result.
Similarly, if two independent acts simultaneously bring about the same damage,
as where two ships negligently collide, injuring a third party, those
responsible for the respective negligent acts are each
fully
liable.
Fitzgerald
v Lane [1988] 2 All ER 961, HL
The plaintiff was crossing a
pelican crossing when he was hit by a car driven by Dl. The collision threw him
up on the bonnet of the car and back onto the road where he was struck by a car
driven by D2. He suffered severe injuries including damage to his neck
resulting in partial tetraplegia. Whether it was contact with the car driven by
Dl or D2 which caused the injury to the neck could not be established. Both
were held jointly liable, and the plaintiff was held contributorily negligent.
6.3.3
Consecutive Causes
The
defendants admitted negligently injuring the plaintiff in the leg. Before the
action came to trial, burglars shot the plaintiff in that same leg and it had
to be amputated. The House of Lords held that the defendants remained liable
for the loss of amenity occasioned by the injury inflicted by them. The
fortuitous event of the second tort did not relieve them of liability.
7.0 REMOTENESS OF DAMAGE
In negligence certain consequences
of the defendant's tortuous conduct will be considered too remote from his
wrongdoing to impose on him responsibility for those consequences.
In
The Wagon Mound
The
defendants carelessly discharged oil from their ship into Sydney Harbour. About
six hours later the ship set sail and left the harbour. The oil was carried by
wind and tide beneath the plaintiffs wharf, 200 yards away. After being advised
that they could safely do so, the plaintiffs continued welding operations on
their wharf. Some 55 to 60 hours after the original discharge of the oil,
molten metal from the welding operations on the wharf, when fanned by the wind,
set fire to some cotton waste or rag floating in the oil beneath the wharf. The
waste set fire to the oil whereupon the flames quickly developed into a
conflagration which severely damaged the wharf. The oil also congealed upon the
slipways adjoining the wharf and interfered with the plaintiff’s use of the
slips. The defendants neither knew nor ought to have known that the oil was
capable of being set afire when spread on water.' The Judicial Committee of the
Privy Council held that the defendants were not liable in negligence because
they could not reasonably have foreseen that the plaintiffs wharf would be
damaged by fire when they carelessly discharged the oil into the harbour.
7.1 Forseeable Type of Harm
The Wagon Mound held that if the
damage which materialises is damage by fire, then for the defendant to be
liable he must have been able to anticipate damage by fire; that he could
anticipate damage by fouling the wharfs slipways was not enough.
Bradford
v Robinson Rentals Ltd
[1967] 1 All ER 267
The
defendant employers carelessly exposed the plaintiff van driver to extreme cold
in the course of his duties. In consequence he suffered frostbite. The court
held that the defendants exposed him to severe cold and fatigue likely to cause
a common cold, pneumonia or chilblains, and that frostbite was of the same type
and kind as the harms foreseeable, so that the defendants were held liable.
7.2 The Means By Which The Harm Was
Caused
Since
The Wagon Mound, the courts have frequently reiterated that the defendant may
be liable even though he could not envisage that precise set of circumstances
which produced harm of the foreseeable kind.
Two boys aged 8 (“H”), and 10 were
playing on an Edinburgh highway. Near the edge of the roadway was a manhole
some nine feet deep, over which a shelter tent had been erected. Post Office
workmen working on underground cables left the area after dark, placed red
paraffin warning lamps there, and took the ladder from the manhole and laid it
on the ground. The boys came up and started meddling with this equipment and H,
while swinging one of the lamps by a rope over the hole, stumbled over the
lamp, and knocked it into the hole. An explosion followed. H was thrown into
the manhole and severely burned. The explosion occurred because paraffin from
the lamp escaped, vaporised and was ignited by the flame. This particular
development of events was not foreseeable, but the defendant was held liable
for the negligence of the workmen.
7.3 Extent of the Damage
Where
the very kind of harm which is foreseeable has occurred, it has always been the
case that the defendant cannot plead that the plaintiff was earning more than
the average victim, or that goods were exceptionally valuable. Damages are not
restricted to the average loss of earnings or average value of goods in the
circumstances, even supposing that such a sum was calculable. Similarly, if the
facts can be proven, the shop assistant who usually earns £100 week will
recover her full loss if she is knocked down on her way to fulfil a once-only
lucrative television contract.
7.4 The Thin Skull Rule
Before
The Wagon Mound, it was established law that, in relation to personal injury,
the defendant had to 'take the plaintiff as he found him' so that the victim
could claim damages for the entire harm to his person, even though, owing to
some special bodily sensitivity, it was greater than would have been suffered
by the ordinary individual. In Smith v Leech Brain & Co Ltd [1961]
3 All ER 1159: A negligently inflicted burn on
P's lip resulted in his dying of cancer, for the tissues of the lip in which
the cancer developed were in a pre-malignant condition at the time when the
burn made the cancer develop. The defendants were held liable for the damage
resulting from the death.
8.0 TORT AND CONTRACT
It
has been authoritatively determined that concurrent duties in contract and tort
may in fact lie. Furthermore, the
plaintiff is at complete liberty to choose whichever course of action - whether
in contract or tort - he thinks will be most advantageous to him. Example, the crucial difference between
proceedings in tort or restitution today lies in the different measure of
damages. For example, if A converts B's watch valued £10, then in a suit in
conversion B will recover £10; but if A sells it to C for £ 15, B can recover £
15 in restitution as money had and received by A.
9.0 CONTRIBUTORY NEGLIGENCE
At common law, it was a complete defence if the defendant proved that
the plaintiff. By statute this is no
longer so and contributory negligence no longer affords a complete defence, but
merely reduces the damages to the extent to which the plaintiff has been contributorily
negligent. In order to establish contributory negligence the defendant must
plead and prove (a) the injury of which the plaintiff complains resulted from
the particular risk to which the plaintiff exposed himself by virtue of his own
negligence; (b) the negligence of the plaintiff contributed to his injury; (c)
there was fault or negligence on the part of the plaintiff.
9.1 Risk
This is a requirement which may be compared with the rule that the
plaintiff, in an action based on negligence, must prove that the risk which in
fact materialises is the one against which the defendant was under a duty to
guard. Here the defendant must show that the harm sustained by the plaintiff
belongs to that general class of perils to which the plaintiff was exposed by
his own negligent conduct.
Jones v Livox Quarries Ltd
The plaintiff was riding down a slope leading to the bottom of a quarry
on the back of the defendants' vehicle, contrary to their orders, when another
vehicle of the defendants was negligently driven into the back of the first
vehicle. As a result, the plaintiff was injured. By so riding, the plaintiff
exposed himself not only to the risk of falling off the vehicle but also to the
risk of being injured in the particular way in which he was injured. The court
therefore found that he was contributorily negligent.
9.2 That The Plaintiff's Negligence Was A Contributory Factor
This is undoubtedly the aspect of the defence of contributory negligence
which calls for the most careful examination.
The essence of the matter is causation.
Henley v Camerorf
The defendant chose to leave his car unlighted on the highway at night,
and the husband of the plaintiff, riding a motorcycle, carelessly collided with
it and was killed. Tucker LJ pointed
out that 'it must always remain a question of fact whether the negligence of B
is "so mixed up" with the state of things brought about by A's
negligence as to make the negligence of both contributory causes to the
accident. He also pointed out the
illogicality of asserting that the rules of contributory negligence differ from
those of causation, saying: I cannot understand how, when considering whether
the negligence of A or B or of both has been the effective cause of an
accident, the answer can depend on whether A or B happens to be the plaintiff
in the action or whether they are both defendants.
Contrary to orders, the plaintiff was standing on steps at the off-side
of a dust lorry. The driver of the lorry turned to the right without warning
just as a following vehicle was overtaking him, and the plaintiff was injured
in the ensuing collision. Both drivers were negligent, but it was also held
that the plaintiff was contributorily negligent.
9.3 9.3 The
Negligence of the Plaintiff
There is an important difference between the defence of contributory
negligence and the tort of negligence. To set up this defence, the defendant
need not prove that the plaintiff owed the defendant a duty of care.
... all that is necessary to
establish such a defence is to prove to the satisfaction of the jury that the
injured party did not in his own interest take reasonable care of himself and
contributed, by this want of care, to his own injury.
So far as proving this is concerned, it is well established that the
lack of care on the part of the plaintiff must be proved by the defendant
according to the usual civil standard of proof: the balance of probabilities.
There, a passenger in a coach reasonably believed that the coach was
about to overturn through the negligent driving of the defendant, the coach
proprietor. He therefore jumped off, breaking his leg. As things transpired,
the coach did not overturn, but the passenger was adjudged not to be
contributorily negligent and he successfully recovered in full from the
defendant.
The critical question in such cases is whether the plaintiff behaved
reasonably in the dilemma in which the defendant had placed him, due account
being taken of the alarm which such a situation would engender in the prudent
plaintiff.
1. Susan had been a customer of Stupid Price
for several years. During this period Stupid Price had maintained a carryout
service for its customers. One day Susan was informed that no one was available
to help her take groceries to her car. She then lifted a 30-pound bag, carried
it outside, and fell stepping off the sidewalk onto the parking lot pavement.
She sued Stupid Price for the resulting injuries and won damages. The matter has been appealed on the question
whether the first instance judge was entitled to find that that Stupid Price
had a duty of reasonable care which included assisting customers in carrying
large packages of groceries. Discuss?
2. A mental patient with a history of violent
rampages and three previous escapes stole a passkey from an unlocked office in
the hospital where he was confined, escaped again, and set fire to a
neighboring lumberyard. The lumberyard sues the hospital for damages. Does the
hospital owe the lumber-yard a duty of care to protect it against the actions
of mentally ill inmates?
3. John Crow Brewed Coffee and Ice Cream Co
Ltd. operated a fleet of Best Taste ice-cream trucks. One of these trucks
played music and stopped on a busy street in order to attract customers. Where
the truck stopped, there was no intersection or crosswalk. A four-year-old girl
wanting to buy ice cream ran across the street and was struck by a car. Her
mother brought a suit on the child's behalf against John Crow for injuries
sustained by her. Will the suit be
successful?
4. Four-year-old Jeffrey Osbourne was struck
and killed by a truck. His mother,
Constance, witnessed the accident but was not in danger of being struck
herself. In subsequent litigation one of Constance claims for damages was for
mental and emotional harm caused by witnessing her son's death. Should she be compensated on the basis of
such a claim?