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PDF Document 2
(a) the driver of a vehicle on the road owes a duty of care to other
road users, pedestrians and occupiers of premises abutting the
highway to drive carefully;
1
‘Respondent’ is the name given to the person who defends an appeal. This is usually the
person who succeeded in the court below. The person who brings the appeal is called the
‘Appellant’. This is usually the person who lost in the court below.
Austin v A-G (1986)
A convicted prisoner escaped from the Glendairy Prison in Barbados and entered the
claimant's dwelling house. He attacked her with a knife and seriously injured her. On the
day of his escape, he was one of a number of prisoners being instructed in woodwork in
the carpenter's shop at the prison. Two prison officers were in supervision. One of them
left for a short period and, during his absence, the prisoner escaped.
The claimant alleged that the prisoner's background of violence was such that he should
not have been selected for inclusion in the carpentry class with its less than stringent
security procedures. She claimed that the escape was caused by the negligence of the
Superintendent of Prisons, whose duty it was to supervise, control and be responsible for
the conduct of prisoners, and that the defendant was vicariously liable for the
consequences of such negligence on the part of his prison officers. The defence was that
the claimant's injuries were caused by the prisoner, who was responsible for his own
tortious acts. Also, the prisoner's tortious acts were not the natural consequence of his
escape.
Held, the court would apply the principle in Home Office v Dorset Yacht Co. There was no
sufficient relationship of proximity between the Superintendent of Prisons and the claimant
such as to give rise to a duty of care towards the claimant. In the alternative, the damage
suffered by the claimant was too remote. The risk of sustaining damage from the tortious
acts of criminals is shared by the public at large. It has never been recognised at
common law as giving rise to any cause of action against anyone but the criminal himself.
(i) The likelihood of harm: The greater the likelihood that the
defendant's conduct will cause harm, the greater the amount of caution
required of him if he is not to be found to have been negligent. The
degree of care which the duty involves must be proportional to the degree
of risk involved if the duty of care is to be fulfilled. See Bolton v Stone
(1951), Hartley v Gray's Inn Sugar Factory Ltd (1995), Hilder v Associated
Portland Cement Manufacturers Ltd (1961), and Mowser v De Nobriga
(1969).
In all cases, one must balance the risk against the end to be
achieved, and the commercial end to make a profit is very different from
the human end to save a life or limb. See Robley v Placide (1966) and
Byfield v A-G (1980).
For cases that illustrate how the court struggles to apply the test of
reasonableness in situations where special skills exist, see Millen v UWI
Hospital Board of Management (1984), and Roe v Minister of Health
(1954), and Van de Weg v Minister of Health and Social Services (1981),
and Rojannenisha v Guyana Sugar Producers Association Ltd (1973),
and Hind v Craig (1983), and Sabga v Llanos (1988).
(a) that the thing causing the damage was under the management
or control of the defendant or his employees; and
(b) that the accident was of such a kind as would not, in the
ordinary course of things, have happened without negligence on
the defendant's part.
it.
(d) Novus actus interveniens: This is the Latin for ‘a new act
intervening’. Often, there is not just one cause of injury or damage when
a negligent act occurs. There may be successive causes. There may be
no doubt that the defendant was in breach of a duty of care. But, after the
breach, an independent event may have arisen which contributed to the
injury. The question then is whether the defendant is to be held liable for
the injury, or whether the intervening event is to be treated as having
'snapped the chain of causation' and thus relieved the defendant from
liability.
Perhaps the most useful test when deciding whether there has
been a novus actus interveniens is whether a reasonable person would
have said that the damage caused by the intervening event was within
the likely or foreseeable risk created by the defendant's negligence. See
Stansbie v Troman (1948), and Haynes v Harwood (1934) for the
application of the principle.
A novus actus interveniens may also be the careless act of the claimant
himself. See Jones v Watney (1912).
(c) that the defendant was aware that the claimant would rely on
his representations;
Professor Kodilinye agrees with the minority and considers the decision
of the majority of the Privy Council to be dubious. A more recent decision
which you should be familiar with is Wiggan v Morrison (2000).
(a) Children:
(b) Workmen:
2
Referred to by Rita Joseph Olivetti J in the BVI case of Michael Smith v Delta
Petroleum: http://www.eccourts.org/michael-smith-v-delta-petroleum-caribbean-ltd/.
[If you have the digital version of these lectures these links are live, and you need
only click on them to access the documents.]
(ii) volenti non fit injuria
The second general defence applicable in negligence is called ‘volenti
non fit injuria’. The term is synonymous with consent, and literally
translated means, “if you consent to something, then no one has caused
you any legal damage.” No one can enforce a right which he has
voluntarily waived or abandoned. Consent is a good defence to
intentional torts such as assault, battery, and false imprisonment. If I
enter into a boxing match, I cannot sue my opponent if he hits me and I
am injured as I consented to the assault. It would be different if he broke
the rules and hit me with a chair. Consent may also be pleaded in
negligence actions as well as in most other torts. In negligence, the
courts speak of 'voluntary assumption of risk', rather than 'consent'. If I
get into a car driven by a person I know to be under the influence of
alcohol, I voluntarily assume the risk that he will get into an accident while
driving under the influence of alcohol.
In negligence cases, the defendant must show not merely that the
claimant consented to physical risk, but that he also consented to the
legal risk. That is, he consented to the risk of actual damage for which
there will be no redress in law. It means the agreement of the claimant,
express or implied, to exempt the defendant from the duty of care which
he would otherwise have owed.
Activity 3.1
2. Devon is out of a job and without any money. He writes a book entitled “How to Win at
the Races Everytime.” Devon makes a large amount of money from the sale of the book
through its wide circulation to the public.
Arthur, a talk show host, features the book on his show, including an interview with
Devon. Arthur places the book on his Top Ten List and recommends the formula contained
in it as “foolproof.”
Sasha who is facing foreclosure of her home, watches the show and goes out and buys
the book. After reading it she uses $10,000 her mother lends her to stop foreclosure
proceedings and places a bet at the races following with precision the formula in Devon's
book. Sasha loses all her money and her house.
In fact, Devon knows very little about horse racing and the book is erroneous in many
respects.
(a) Explain the elements of the tort of negligent misstatement. [10 marks]
(b) Does either Devon or Arthur owe a duty of care to Sasha? [15 marks]
Support your answer with well-reasoned arguments.
[Spend 50 minutes on this activity] 25 marks
Feedback: Ensure you clearly mark the start of each part of the answer in the margin, as
there are separate marks for each part. A failure to do so may result in most of the marks
being lost even though the answer is substantially entirely correct.
Note: A model answer is available.
Note that you need to write approximately 1,000 words for each of the 3 essays in an exam.
Activity 3.2
3.(a) Using appropriate examples, explain what is meant by 'remoteness of damage in
negligence'. [12 marks]
(b) Explain how the Wagon Mound principle defines the limits of a person’s liability for
damage due to negligence. [13 marks]
[Spend 50 minutes on this activity] 25 marks
Feedback: 1. Ensure you clearly mark the start of each part of the answer in the margin,
as there are separate marks for each part. A failure to do so may result in most of the marks
being lost even though the answer is substantially entirely correct. Responses should not
be merged. For example, Part (a) must be answered separately from Part (b).
2. Candidates must use language that is grammatically correct, formal, and impersonal, not
general, vague or colloquial.
3. Your answer to Part (a) should show an awareness of the ‘but for’ test and situations
where (a) consequences could not be foreseen; (b) harm foreseeable was of a different kind;
(c) pre-existing condition, (d) new intervening acts; and (e) pure economic loss. Cases
cited will include Hughes v Lord Advocate, and Witter v Brinks, and Brewster v Davis, and
Stansbie v Troman, and Spartan Steel and Alloys Ltd v Martin and Co Ltd.
4. For Part (b) you will set out the principle of law and illustrate it with the facts and
finding in The Wagon Mound, and perhaps (from the Law of Contract) Hadley v
Baxendale, and Victoria Laundry v Newman.
Activity 3.3
2. Rajendra and Petal, two law students, attended a party at the start of the academic year.
Rajendra consumed several alcoholic drinks. Petal was walking home when Rajendra
stopped and offered her a ride. At first she refused but because the road was dark, wet and
lonely, she accepted. On the way to her flat, Rajendra drove at high speed and as the road
was wet the car skidded and overturned. Petal was not wearing a seatbelt and she was
thrown through the windscreen, sustaining major head injuries and a broken leg. Rajendra
sustained minor injuries. Willy, who was waiting to cross the road, was knocked down by
the skidding car and sustained broken limbs.
Advise Rajendra of his liabilities to Petal and Willy.
[Spend 50 minutes on this activity] 25 marks
Feedback:
You are expected to base your answer on the law of negligence, ie, specifically, the duty of care
and the issue of contributory negligence. Follow the IRAC format, citing relevant leading
cases. CXC’s advice on how to handle this type of question reads as follows:
1. Candidates must follow instructions. Responses should not be merged; for example, Part
(a) must be answered separately from Part (b).
2. Candidates must use language that is grammatically correct, formal, and impersonal, not
general, vague or colloquial.
3. Candidates are encouraged to use the following format (summarized as IRAC) when
answering problem-type questions.
I - issue (identify it)
R - rule of law (state it)
A - application of law to facts
C - conclusion
4. Candidates must support their responses with legal authority, namely:
Case Law
Statute
Legal writers
5. Candidates must deal with issues and applicable law. When dealing with the tort of
negligence, ensure you show the examiner that you are familiar with the relevant principles.
Candidates must refrain from restating the question, except in so far as a principle of law
relates to stated facts. Instead, candidates should strive to answer the questions precisely.
6. Candidates need to be familiar with definitions of terms and concepts, and should offer
definitions of terms as appropriate.
Activity 3.4
2. By referring to decided cases, explain how the elements of duty, breach and damage are
dealt with by the courts in determining tortious liability for negligence.
[Spend 50 minutes on this activity] 25 marks
Feedback:
Activity 3.5
3. Mrs Parsons, an attorney, completes a transfer of land for her client Rapster, who upon
receipt of the proceeds of sale, asks her what she thinks about his plan to invest the money
in a private investment company. Mrs Parsons tells Rapster, “I really don’t like these
unregulated companies, but you could try Save Today. I don’t know much about how they
operate but I know the principals.” Rapster asks her for their telephone number which Mrs
Parsons provides. He contacts Save Today and invests his money. Things go well for a
few years and Rapster is happy with his returns on his investment. Then Save Today fails.
Rapster consults you on whether he can sue Mrs Parsons for “introducing” Save Today to
him.
With reference to decided cases, advise Rapster on the likely success of his claim
against Mrs Parsons.
[Spend 50 minutes on this activity] 25 marks
Feedback:
Activity 3.6
4. (a) Explain what is meant by ‘remoteness of damage’ in negligence with reference to
ONE decided case [10 marks]
(b) Kenisha visits Dr Derma, a dermatologist, as she wants to remove blotches from her
skin. She has just recovered from an attack of measles. Dr Derma gives Keneisha a
prescription which she fills and uses. She suffers severe skin burns to her arms, neck and
face after using the medication and upon consulting another dermatologist, it turns out that
the medication is too strong for her sensitive skin, about which she had told Dr Derma.
Advise Kenisha on the likelihood of her success in a claim against Dr Derma. Support
your answer with reference to decided cases. [15 marks]
[Spend 50 minutes on this activity] 25 marks
Feedback: Ensure you clearly mark the start of each part of the answer in the margin, as
there are separate marks for each part. A failure to do so may result in most of the marks
being lost even though the answer is substantially entirely correct.