LAW OF TORT II

Hafizah Binti Abd Latiff

 NEGLIGENCE
 Negligence is the most important tort in modern law. It allows a
claim where a defendant has breached legal duty to take care.
 Eg:
a) People injured in a car accident who sue the driver
b) Business which lose money because an accountant fails to advise
them properly
c) Patients who sue doctor when medical treatment goes wrong.
 ELEMENTS OF NEGLIGENCE

DUTY OF CARE

BREACH OF DUTY

DAMAGE
 DUTY OF CARE
 A legal concept to dictates the circumstances in which one party
will be liable to another for negligence.
 If the laws says, no duty was owed to the person, even a damage
has been caused you will not be liable for negligence.
 Eg: Road users owed duty to the other road users.
 The restrictions is needed to avoid floodgates of cases in court.
 To take into consideration the public policy and public interest
 DUTY OF CARE
NEIGHBOUR PRINCIPLE
• Donoghue v Stevenson
• Duty to take reasonable care to avoids
acts/omissions which you can
reasonably foresee would be likely to
injure your neighbor
• To know who is your neighbour
ANN TEST
• Anns v Merton London Borough
• 1st stage: Was the harm that
occurred, the reasonable
foreseeable consequence of the
def’s act?
• 2nd stage: Policy considerations
that meant it would not be
desirable to allow a duty of care in
that situation.
• Highly criticized for the policy
considerations.
CAPARO TEST
• Caparo Industries v Dickman
• 1st stage: Reasonable
foreseeability: whether a
reasonable person in the def’s
position would have foreseen the
risk of damage
• 2nd stage: Close proximity:
concerns the relationship
between def & pltf.
• 3rd stage: Justice and
reasonableness: determine if it is
just and reasonable to impose the
duty on the parties.
• Elements of test, often overlap
because it is facets of the same
thing.
 CASE LAW FOR DUTY OF CARE
 Murphy v Brentwood District Council [1991] 1 AC 398
 Palsgraf v Long Island Railroad 162 NE 99 (NY 1928)
 Sutradhar v Natural Environment Research Council [2006] 4 All
ER 490
 Mitchell v Galsgow City Council [2009] 3 All ER 205
 West Bromich Albion Football Club Ltd v El Safety [2006] EWCA Civ
1299
 DUTY OF CARE - OMISSION
 Duty imposed on the Defendant is not to cause injury or damage
to the others; they are not owed duties to help others.
 If there is no duty, there will be no liability.
 Eg: Refusing to help someone who is drowning is not a negligence,
if you are just mere by stander happen to be at the swimming
pool.
 However there are some situations in which the courts have
recognized a positive duty.
 OMISSION : EXCEPTIONS
Control • Positive duty to look after them which goes beyond simply
exercised by taking reasonable steps to ensure that the defendants
themselves do not cause injury.
the • Reeves v Commissioner of Police for the Metropolis [1999] 3
WLR 363
defendants
Assumptions • When one parties has assumes responsibility of the other in
of some way, the court will impose the duty.
• Barret v Ministry of Defence [1995] 1 WLR 1217
responsibility
• When defendant creates a dangerous situation, although
Creation of the risk is created not through defendant’s fault, a duty is
still impose on the defendant.
risk • Capital and Counties plc v Hampshire County Council [1997]
QB 1004
 DUTY OF CARE FOR THIRD PARTY
ACTS
 Tort law is designed to impose liability on those who have caused
damage, and so it does not usually impose liability on one person/body
for damage done by another party.
 Case: P Perl V Camden London Borough Council [1984] QB 342
 Facts: The defendant council owned 2 adjoining building no 142 and 144.
The 142 was rented to the Plaintiff and the second was empty. The 144
was not luck, making it possible for thieves to enter and by knocking a
hole in the wall, some thieves got through no 142 and burgled it.
 COA held: The council was not liable for negligence they might have
foreseen the risk of harm leaving the property without lock, but that was
not sufficient to make them responsible for the acts of the burglars.
 EXCEPTIONS: DUTY FOR THIRD
PARTIES
Def – Ptf relationship of Def – 3rd party
proximity relationship proximity
• It examines the • Exist if the def has a
existence of right or responsibility to
circumstances relating control the 3rd party
to the particular def & • Pltf must be someone
pltf who was at a particular
• Case: Stansbie v risk of damage if the
Troman [1948] 2 KB 48 def negligent in
• Facts: Def is a controlling the 3rd party
decorator, working at • Case: Home office v
the Pltf”s premise. Pltf Dorset Yacht Co [1970]
was left alone in the AC 1004
house and was told to • Facts: Some boys under
lock the house before the home office’s
he left. Def failed to prison escaped due to
lock hence Pltf was officer's negligence.
burgled. They get away using
• Held: The existence if boats and damages the
contractual relationship Pltf’s boats during the
is enough to establish escape
proximity • Held: Home office liable
to yacht owners
because it was
Risk created on the
Creating a risk of danger
defendant’s property
• A def who negligently • If the Def’s knows or
creates danger or risk has means to knows
of danger may be liable that a 3rd party has
to 3rd party’s action created a risk to the
cause that danger to others on the def’s
injure the Pltf. property, the def has
• Haynes v Harwood duty to take reasonable
[1935] 1 KB 146 steps to prevent the
• Facts: Horses were left danger to others.
unattended in a busy • Case: Smith v
street and bolted when Littleewoods
some children threw Organisations [1987]
stones at them. A AC 241
police office try to stop • Facts: LW is the owner
the horse and suffer of a disused cinema.
from injury While it stood empty,
• Held: The owner of the vandals set the
horses, owed duty to building on fire, and the
the police officers by fire spread causing
creating the danger damage to
neighbouring building.
• Held: Occupier of land
 BREACH OF DUTY
 BOD means that the defendant has fallen below the standard of behavior
expected of someone undertaking the activity concerned.
 Eg: Driving carelessly is a breach of the duty owed to the other road users.
 Standard of care is an objective one: the defendants conduct is tested
against the standard of care which could be expected from a reasonable
person.
 Therefore the particular defendant’s characteristic is usually ignored.
 Case: Nettleship v Weston [1971] 2 QB 691
 Facts: The Plaintiff is the driving instructor and the defendant is the pupil. ON
her 3rd lesson, she drove into a lamp post and injured the Plaintiff.
 Held: She was required to come up to the standard of the average
competent driver, and anything less amounted to negligence.
 BOD – STANDARD OF

REASONABLENESS
Standard of care in negligence never amounts to an absolute duty to prevent harm
to others.
 It is a standard of reasonableness.
 The duty to do whatever a reasonable person would do to prevent harm occurring,
not to do absolutely anything and everything possible to prevent har,
 Case: Simmonds v Isle of Wight Council
 Facts: The Plaintiff was a 5 year old boy, who was injured while playing,
unsupervised, on swings during a school sports day. The boy has a picnic lunch with
his mother near to where the sports day was taking place. Unknown to the mother,
instead of joining back the sports day, the boy went to play the swing and fell off.
 Held: The court reject the mother’s argument that the school had a duty to prevent
accidents happening on the swings. The sports day has been well supervised and
the school had in place measures to prevent children playing on the swings.
 BOD – STANDARD OF
REASONABLENESS
Special
characteristic of
the defendant

Special
characteristic of Size of the risk
claimant

Practicality Common
protection practice
 SPECIAL CHARACTERISTIC OF THE DEFENDANT
• The standard of care is that of an ordinarily careful and
reasonable child of the same age
• Mullin v Richards [1998] 1 WLR 1304
• Facts: Plaintiff & Def were 15 years old schoolgirls. They were
fencing with plastic rulers during a lesson, when one of the
CHILDREN rulers snapped and a piece of plastic flew into the Pltff’s eye.
• Held: Correct test was whether an ordinarily careful and
reasonable 15 years old would have foreseen that the game
carried risk of injury. It was found out that the practice was
common and not banned in school and the girls were never be
• worn that it could be dangerous so the injury was not
A professional is expected to work to a higher standard than an
foreseeable.
amateur.
• Must show a degree of competency usually to be expected of
an ordinary skilled member of the profession
• Vowles v Evans [2003] 1 WLR 1607
PROFESSIONAL &
• Facts: A rugby player was injured as a result of a decision made
SPECIAL SKILLS
by the referee.
• Held: Degree of care was legally expected to exercise depends
on his grade and the match. Less skill would be expected of an
amateur than to a professional. The referee in this case was
 SPECIAL CHARACTERISTIC OF THE DEFENDANT
• The court have accepted that within a profession or trade there may be
differences of opinion as to the best techniques and procedures in any
situation.
• Bolam v Friern Barnett Hospital Management Committee [1957] 2 All
ER 118
• Facts: A patient who had electric shock treatment for psychiatric
DIFFERENCE OF
problems and had suffered broken bones as a result of the relaxant
OPINION
drugs given before the treatment. The drugs were not always given to
patients undergoing electrical shock treatment.
• Held: A doctor is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of medical
men skilled
• Where in that particular
a defendant art.a particular skill, he or she is expected
is exercising
Compare
• to do so totothe
Bolitho v Cityof&aHackney
standard reasonableHealth Authority
person at the same level
within that field.
• No account is taken of the defendant’s actual experience.
• Case: Meiklejohn v St George’s Healthcare NHS Trust
STANDARD OF • Facts: The Plaintiff has been diagnosed with a blood disease called
SKILLS aplastic anemia and referred to specialist for treatment. The doctor he
saw was the world-renowed doctor in area of the disease and proceed
to treat him. Apparently, the disease of Plaintiff is the rare one, and he
did not receive the actual treatment, hence causing a serius side effect.
• Held: The doctor was acting in her capacity as a specialist in blood
disorder and had to be judged on that (lower) standard.
 SPECIAL CHARACTERISTIC OF THE DEFENDANT
• A duty of a doctor is to explain the risk of a treatment.
• Case: Sidaway v Bethlem Royal Hospital Governors
• Facts: Plaintiff was advised to have an operation on her back
but was not warned that there was a small risk it could lead
A DUTY TO to paralysis.
EXPLAIN • Held: The surgeon was not liable because applying the
Bolam test, there was evidence that a responsible body of
medical opinion would not have considered it correct to give
such a warning
• The state of knowledge about a particular subject may
• Compare to the case of Chester v Afshar [2005] 1 AC 134
change rapidly, so that the approved practices quickly
become outdated and maybe dangerous.
• Case: Roe v Minister of Health
• Facts: Plaintiff was left paralyzed after surgery, because a
CHANGES IN disinfectant, in which ampoules of anesthetic were kept,
KNOWLEDGE leaked into the ampoule through microscopic cracks in the
glass, invisible to the naked eyes.
• Held: Medical witnesses in the case said that until the man’s
accident occurred, the practices was a standard procedure,
and there was no way of knowing that it was dangerous.
 SPECIAL CHARACTERISTIC OF THE
CLAIMANT
 If a Plaintiff has some characteristic or incapacity which increases
the risk if harm, the defendant may be expected to take that into
account.
 Egg-shell skull rule – must take Defendant as you 1 st find him.
 Case: Paris v Stepney Borough Council
 Facts: Plaintiff was employed by the Defendant in a garage. As a
result of previous injury, he could see only with one eye. He was
doing a welding job, when a piece of metal flew into another good
eye resulting to losing of his sight altogether. No google was
provided by defendant.
 HOL: The risk of injury were small but the potential consequence to
 SIZE OF THE RISK
 This includes both the chances of damage occurring and the
potential seriousness of that damage.
 Case: Bolton v Stone
 Facts: The Plaintiff was standing outside her house when she was hit
by a cricket ball from a nearby ground. It was clear that the
cricketers could have foreseen that a ball would be hit out of the
ground, and it has happened before, but only 6 times in the
previous 30 years.
 Held; Taking into considerations the presence of 17 foot fence, the
distance from the pitch to the edge of the ground, and the fact that
the ground sloped upwards in the direction, the chances of injury
 PRACTICALITY OF PROTECTION
 The magnitude of the risk must be balances against the cost and
trouble to the defendant of taking the measures necessary to
eliminates it.
 The more serious the risk, the more the defendant is expected to do
to protect against it.
 Case: Bolton v Stone
 Case: Latimer v AEC Ltd
 COMMON PRACTICE
 General practice in the relevant field
 Case: Wilson v Governors of Sacred Heart Roman Catholic Primary
School, Carlton
 Facts: Plaintiff was a 9 year old boy, was hit in the eye with a coat
by a fellow pupil as he crossed the playground to go home at the
end of the day.
 Trial judge: Looked at the fact that attendants were provided to
supervise the children during the lunch break, and inferred that
such supervision should also be provided at the end of school day.
 Court of appeal: Noted that most of primary school did not
supervise children at this time; they also pointed out that the
 DAMAGE
 If no damage caused, there is no claim in negligence, even if there is a
duty of care and that the duty has been breached.
 Types of damage include:
a) personal injury
b) damage to the property
c) economic loss.
 In this chapter, we shall discuss damage to personal injury & damage
to property because it is undoubtedly recoverable under the law of tort.
 DAMAGE
 Case: Hunter v Canary Wharf Ltd and London Docklands Development
Corporation
 Facts: It is about the construction of a tower block at Canary Wharf. An
action concerning the effects of construction work was brought by
residents and one of the issues was whether excessive dust could be
sufficient to constitute damage to property.
 Held: Mere deposits of dust was not itself sufficient because dust was
inevitable incident of urban life.
 DAMAGE
 Case: McFarlane v Tayside Health Board
 Facts: Plaintiffs were a couple who had 4 children and decided that they did not
want more children. Mr McFarlane had a vasectomy. After he was wrongly advised
that the operation was successful, Mrs McFarlane become pregnant again and give
birth to a healthy daughter. The claim for damages for the pain and discomfort
during pregnancy and for the cost to bring up the child.
 Held: Allowed the claim for the pain and discomfort during pregnancy because it is
pain from personal injury. But refused the claim for the cost to bring up the child –
pure economic loss.
 Case: Parkinson v St James and Seacroft University Hospital [2002] QB 266
 Compare this case with McFarlane’s case on the claim of child as a form of
damage.