Lesson 7

Negligence

3 Elements Plaintiff must prove all 3 to show negligence

1. Duty of care
2. Breach of Duty
3. Damage caused by breach

Duty of care

The obligation/responsibility that we have to avoid acts or omissions which may cause injure or harm
others.

Donoghue v Stevenson (1932)

Mrs D went to a café and ordered a bottle of ginger beer. When the drink arrived, she poured half of it
into a glass and drank it. When she poured out the rest, out a decomposed snail.

Her claim was successful.

More importantly, this case established the modern law of negligence and established several legal
principles and precedents

NEGLIGENCE - if a person’s carelessness causes injury or loss to another, they may be held liable. No
contractual arrangement needs to be proven.

Neighbour

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.

1. Foreseeability

Objective test: Would a reasonable person in dfdt’s position have foreseen that pltf would be
injured by dfdt’s act/omission?

NOT- Could dfdt have reasonably foreseen that his actions will cause pltf’s injuries.
Subjective test.

Bourhill v Young [1943]

Mrs B was 8 months pregnant; she had just alighted from a tram when she heard the crash of an
accident involving the defendant. She did not see the actual collision but did later see the blood on the
road. She later gave birth to a stillborn child. She sued the defendant for negligence.
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Negligence

Held: Therefore, no liability.

 It was foreseeable that Dfdt’s negligence would result in injury to other road users/ bystanders.
 But it was NOT foreseeable that Dfdt’s negligence would cause nervous shock to someone far
away.

2. Proximity between plaintiff & defendant – whether by geographical closeness or closeness in

relationship

 Physical closeness between pltf & dfdt (e.g., road users)

 Legal closeness between pltf & dfdt (e.g., Manufacturer & consumer)

3. IF it is just and reasonable to impose such a duty

 By whose standards?

4. Public Policy – whether it would be in the interest of the public for such a duty to be imposed.

Policy could relate to moral, social, economic, practical or equitable (fairness) considerations.

Is it in the public interest to impose duty of care? To consider someone to be your ‘Neighbour’?

“vicarious liability”? What were some policy considerations cited in the Skandinaviska case?

Effective compensation for the victim. Deterrence of future harm by encouraging the employer to take
steps to reduce the risk of similar harm in the future

Hill v CC of West Yorkshire [1989]

The plaintiff was mother of last victim of Yorkshire Ripper (killed 13 + attempted to kill 8 over 5 yrs.). She
claimed that police had been negligent in their detection and arrest of Ripper. Had they been more
efficient, her daughter would have been alive. She sued them for negligence.

Held: No liability.

No proximity between police & pltf; daughter was only one of many women at risk; police owed duty to
the public generally but NOT to the pltf specifically

Public Policy - if victims could sue police for conduct of their investigations, it will hamper the execution
of their duty.

Need for social justice & the need for certainty in the law
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Negligence

Spandeck Engineering (S) Pte Ltd v Defence Science & Tech Agency [2007]

SPANDECK Contractor in a building project commissioned by the government

DSTAR Superintending officer of the building project

Certified interim payments of Spandeck’s works

Spandeck sued DSTA for breach of duty of care. Alleged DSTA did not exercise professional skill and
judgement in certifying payments for Spandeck’s work (led to underpayment)

The court explained that:

‘factual foreseeability’ should be applied as a preliminary requirement for establishing whether a duty of
care exist. If it can be showed that defendant ought to have known that the plaintiff would suffer
damage from the defendant’s carelessness.

Followed by the two-stage analysis of

i) proximity
ii) policy

1st stage: proximity Is there physical, causal and legal proximities between the parties?

E.g., Physical proximity based on space and time,

Legal proximity means the closeness and directness of the relationship between the parties

Casual proximity based on connection between the defendant’s act and the plaintiff’s loss.

Once proximity is established, a DOC is deemed to exist.

2nd stage: Policy - Is it just and reasonable for duty to exist in the circumstances.

Consideration of all policy matter applicable to the situation which might remove the duty of care which
has been established. The policy requirement allows the court to consider all the facts of the case as a
whole before deciding whether a duty of care exist. Such policy considerations include whether there is
a contractual relationship which regulates the rights and obligations of the parties.

Chan Sek Keong CJ:

“The difficulty is in balancing the goal of a fair and just result for the parties and the imposition of
indeterminate liability on an indeterminate class of tortfeasors.”
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Negligence

Breach of Duty

When a duty of care exists, the Defendant must have breached that duty

i) Whether he has breached the duty of care depends of the standard expected of him
ii) Also known as “standard of care”

‘Reasonable Man Test’ Objective standard

Standard of Care the law places on potential dfdts in negligence cases is:

• whether the potential dfdt did what a reasonable person would have done.
• People with special skills will be judged by a higher standard
• This is known as the ‘Reasonable Man Test’

Fictitious person depends on circumstances:

 Age
 Special skills
 General practice
 Magnitude of harm this list is NOT exclusive

Bolton v Stone (1951)

o Miss Stone was injured when she was struck by a cricket ball outside her home.
o She brought an action against the cricket club in nuisance and negligence.
o The cricket field was surrounded by a 7-foot fence.
o The pitch was sunk ten feet below ground so the fence was 17 feet above the cricket
pitch.
o Two members of the Club, of over 30 years' standing agreed that the hit was altogether
exceptional to anything previously seen on that ground.

Held:

o D owed P a DOC but no breach of duty. The likelihood of harm was low the defendant
had taken all practical precautions in the circumstances.
o The cricket ground had been there for 90 years without injury and provided a useful
service for the community.
o Distance of the ball was a rare occurrence.
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Negligence

Roe v Minister for Health [1954]

• P went for surgery and was given an aesthetic injection –became paralyzed

• Investigations showed contaminated byphenol solution

• P said D failed to take reasonable care

Held: Based on general practice at the time, no BOD by D

Haley v London Electricity Board [1965]

 D were contractors and dug a hole in London pavement with no cordon; just put sledgehammer
across
 P, a blind man, fell into hole

Held: Putting sledgehammer not good enough; D should have foreseen that great harm could befall the
many blind people in London

THE MAXIM OF ‘RES IPSA LOQUITUR’ “Facts speak for themselves”

 Plaintiff has burden of proof on balance of probabilities (direct & circumstantial evidence)

 Allow plaintiff to meet burden of proof through a rebuttable presumption of negligence by

proving that the harm would not ordinarily have occurred without negligence.

Shifts burden of proof from Plaintiff to Defendant.

Elements of Res Ipsa Loquitur

1) The thing causing damage was within Defendant’s control;

2) The accident does not normally happen if care was taken;
3) There is no explanation for accident except Defendant’s negligence.

MCST No 1298 v Keller Piano Co [1994] 1 SLR(R) 615

Plaintiff - piano seller/tenants of shop space at Cold Storage Centrepoint
Defendant - landlord responsible for maintenance of building

• Leak from pipe above false ceiling resulted in flooding and damage to piano
• Cause of leak not clear. Even experts could not tell for sure

Court of Appeal: • Defendant had sole management and control of pipe; they had the duty to maintain
the pipe • Under those circumstances there was nothing else that the plaintiffs could show • Defendant
failed to rebut the prima facie case raised against them • Defendant held liable
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Negligence

Effect of Res Ipsa Loquitur

If successful then it indicates negligence by defendant.

• Defendant must then give some explanation of how the accident happened.

• If defendant is able to explain accident is not caused by their negligence, then burden of proof shifts
back to plaintiff and plaintiff has to prove that injury/loss was caused by defendant’s negligence.

Damage

Negligence is NOT actionable per se

Pltf must have suffered some kind of damage/injury/loss. Injury may be of a mental/psychiatric nature.

Pltf must prove TWO things:

 Factual Causation

dfdt’s breach in fact caused pltf’s loss

 Remoteness of Damage

reasonable connection between the defendant’s conduct and the damage or injury

Barnett v Chelsea Hospital [1969]

Man went to hospital, informed nurse he had stomach pains & was vomiting. Duty doctor refused to
examine him. Told him to see his own doctor next day. Shortly after, man died. Widow sued.

Evidence: Dead man had consumed arsenic. He would have died even if treated

Held: Dfdt not liable.

1. Dfdt owed a duty of care examine deceased. (element #1 Y)

2. Dfdt breached that duty by refusing to examine deceased. (#2 Y)

3. But would the death have happened but for (if not for) Dfdt’s negligence?

Yes, death would have happened anyway. Dfdt’s breach was not the cause of death. i.e., no factual
causation (no connection between refusing treatment and man’s death) (#3 N)
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Negligence

Remoteness of Damage

The defendant’s negligence must have caused the plaintiff’s loss, but a dft is not necessarily responsible
for all the loss he has caused.

The Reasonable Foreseeability tests

Was the kind of damage suffered reasonably foreseeable at the time of breach? Were the type of
damage being different from that which could reasonably have been anticipated.

Concepts

1) The “eggshell-skull” rule

Dfdt must take pltf as he finds him. If pltf is more likely to suffer injury more than others because of
some weakness (e.g., an ‘eggshell skull’), dfdt cannot use this to avoid liability.

Robinson v Post Office [1974] 1 WLR 1176

Pltf was dfdt’s employee. Pltf fell at work due to dfdt’s negligence; cut leg. Pltf was given antitetanus jab,
but he was allergic to the medication. Evidence showed that an allergy test would not have disclosed the
allergy. Pltf suffered brain damage. Sued employer. Held: • Even though reasonably foreseeable that a
cut victim will receive anti-tetanus jab, Dfdt must thus take his victim as he is i.e., with an allergy-prone
weakness. • Dfdt held liable.

2) Novus Actus Interveniens

If the chain of events causing pltf’s loss is broken by an intervening external factor (e.g., an act or
omission by a third party, and the conduct of the plaintiff himself), any damage caused after the NAI is
too remote. And so, dfdt cannot be liable for that loss.

To restrict the responsibility of the defendant only to the consequences of his fault.

3) c) Act of Nature

A natural act / presence of some natural event independent of any human involvement, independent of
Dfdt’s act, could break the chain of causation.

•E.g. Oil negligently spilt by dfdt. Lightning strikes on oil. Extensive damage suffered. Dfdt is not liable
for the damaged suffered even though he was negligent in the first place. (Ref: Contract: Force Majure)