NEGLIGENCE

(in my understanding)
Negligence is the failure to behave with the level of care that a reasonable person
would have exercised under the same circumstances
The first important concept in understanding negligence is the topic of “Duty of
Care”. This is centered around the famous principle from the case of Donoghue v
Stevenson.
Donoghue v Stevenson (1932) is a foundational case in negligence law. In this
case, Mrs. Donoghue went to a café with a friend who bought her a bottle of ginger
beer. After drinking some, Mrs. Donoghue discovered a decomposed snail in the
bottle, which made her ill. She sued the manufacturer, Mr. Stevenson, for
negligence, even though she didn’t have a direct contract with him. The court ruled
in her favor, establishing the principle that manufacturers owe a duty of care to the
end consumer.
Lord Atkins neighbor principle:

1. This principle suggests that in law you just take care not to harm your
neighbor. In legal terms anyone who might be directly affected by your
actions would count as your neighbor. This is meant to establish whether a
duty of care was owed unto another person.
*In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring
adherence to a standard of reasonable care to avoid careless acts that could foreseeably
harm others, and lead to claim in negligence*
*Simplified- a moral or legal obligation to ensure the safety or well-being of others.*
2. Before this case in 1932, this case was limited and applied only to obvious
situations such as road accidents or handling dangerous goods. However the
neighbor principle expanded this idea making it more applicable to many
situations where one party’s actions could foreseeably harm the other.

PUBLIC POLICY CONSIDERATIONS

( this is specific towards public entities and corporations to dispel their
liability in relation to duty of care)
The test of reasonable foreseeability, dubbed too wide for Donoghue v Stevenson, was
narrowed by public considerations by Lord Wilberforce in Caparo v Dickman. They said
that, in addition to foreseeability (being able to foresee harm) and proximity (closeness in
relationship or situation), it must also be "fair, just, and reasonable" to hold someone
responsible. Based on these principles, there are certain situations in which a duty of care
cannot be imposed:

● The claimant is the author of his own misfortune.

Philcox v Civil Aviation Authority(1995)-
In this case, Mr. Philcox, a pilot, died in an aircraft crash, and his family brought a claim
against the Civil Aviation Authority (CAA). The claim argued that the CAA had failed in
its regulatory duty by not identifying and addressing faults in the aircraft, leading to the
fatal crash.
The court, however, ruled that the CAA did not owe a specific duty of care to individual
pilots or passengers. The court held that the CAA’s role as a regulatory body was to
ensure general safety standards, but it did not extend to protecting individuals from
specific harm. Therefore, the CAA could not be held liable for negligence in this case.
This ruling emphasized the distinction between general regulatory duties and specific
duties of care.

● Defensive practices: If holding someone liable would make them overly cautious
and negatively affect their job (especially when performing a public duty).
● Straining public resources: If suing a public authority would drain its resources,
impacting its ability to serve the public, it may not be fair to impose a duty of care.
● Conflicting with existing rules: If holding someone liable would interfere with an
already complex legal or regulatory system (e.g., financial markets), the courts
may deny a duty of care.
● Other remedies available: If the person has other ways to resolve their issue, the
courts may decide that a duty of care isn't necessary.
● Undermining contracts: If enforcing a duty of care would conflict with detailed
agreements that two parties have already negotiated (especially in commercial
contracts), it might be unfair to hold someone responsible outside the contract
terms.

ACTS AND OMISSIONS

In law, a person can be held responsible for both their actions (acts) and their failures to
act (omissions). There is generally no legal obligation for a person to take steps to
prevent harm to others. This means that, in most cases, you are not legally required to
step in and help someone avoid harm.

Omissions are divided into two types:

1. Negligent failure to act: When someone doesn't take proper precautions, which
counts as negligence (like failing to fix something dangerous they are responsible
for).
2. Passive inaction: When someone simply doesn’t take any action, even though
harm could be avoided.

Lord Goff, a judge, identified some exceptions to this rule, meaning that in certain
situations, there is a duty to act to prevent harm. These exceptions include:

(a) Undertaking: If the person (the defendant) agrees to take responsibility for someone
or something, they must act carefully (e.g., if a lifeguard agrees to watch a pool, they
have a duty to help if someone is drowning).

(b) Special relationship: If there is a special relationship between the two parties, like a
parent and child, or an employer and employee, there might be a duty to prevent harm.

(c) Control over a third party: If the person has control over someone who causes harm
to another, they may be responsible (like a parent failing to stop their child from hurting
someone).

(d) Control over dangerous property: If someone controls land or something that could
be dangerous (e.g., a pool or machinery), they are responsible for preventing harm from
it.

In short, while the general rule is that people don’t have to prevent harm to others,
exceptions exist where the law does impose a duty to act responsibly.

ECONOMIC LOSS
In simple terms, the law generally says that you can’t get money (compensation) just
because you lost money (economic loss) unless it’s because of physical damage to you or
your property. For example, if someone crashes their car into you and hurts you, you can
get money for not being able to work and make money while you recover. But, if you're a
person who was going to make money from the injured person, you can’t get
compensation just because they can’t work.

The two types of economic loss:

1.Pure economic loss: This means losing money without any physical harm to you or
your things. The law usually says you can’t get compensation for this.

2. Consequential economic loss: If you lose money because of physical harm to you or
your property, you can get compensation. For example, if someone breaks your leg, you
can get money for not being able to work.

An example:

- If someone crashes into a model and injures her, she can get money for lost work and
contracts she missed because of the injury.

- But, her manager, who would have made money from her modeling work, can’t get
money, because he wasn’t the one injured.

Special Cases:

There are exceptions to the rule that you can’t get money for pure economic loss:

1. Negligent misstatements: This happens when someone says something important and
wrong, and someone else loses money because they relied on that wrong information.

2. Ross v. Caunters case: In another case, a lawyer made a mistake with a will, causing
someone to lose money they were supposed to inherit. The court said the lawyer had to
pay for that loss because it was clear that the person losing the money (the heir) was
someone who the lawyer should have known could be affected by their mistake. The
lawyer didn’t have to worry about paying an unknown group of people, just the one
person he knew would be impacted.

So, the law only allows money claims for economic loss in certain situations, usually
when there’s a direct connection or when someone trusted important advice that turned
out to be wrong.

WHAT IS NEGLIGENT MISSTATEMENT?

Simply stated, this refers to situations where statements are carelessly made, written or
oral and are relied on by another party to their disadvantage. Statements may have been
made by a professional on social occasions and may have been passed on without the
consent of the speaker. In terms of negligent misstatement, there must be a special
relationship and proximity existing between the two parties. In order to establish a special
relationship the court will need to decide whether or not:

● There was reliance of the defendants skill or knowledge

● The person giving the advice knew or ought to have known that the injured party
wa relying on the advice
● The plaintiff was reasonable in relying on the advice.

NERVOUS SHOCK AND DUTY OF CARE

In simple terms, nervous shock is when someone suffers a serious mental or emotional
illness, like a nervous breakdown or severe depression, due to something traumatic that
happens to them or someone close to them. The law separates normal emotional distress,
like sadness or worry, from this more serious condition, and usually only allows people to
get compensation (money) if they suffer this recognized medical condition, not just
general sadness or stress.

1. Primary Victims
A primary victim is someone who is directly involved in a dangerous or traumatic event
and could have been hurt or actually was hurt. For example:

- If someone crashes a car and you’re hurt or almost hurt, you can get money for your
injuries and also for any mental harm you suffered, like nervous shock. Even people who
help in dangerous situations, like firefighters or police officers, can be considered
primary victims if they get nervous shock from what they experience.

2. Secondary Victims
A secondary victim is someone who wasn’t in direct danger but suffers nervous shock
because they saw or heard something traumatic happen to someone they love. To get
compensation, these conditions must be met:

- There must be a close relationship of love and affection (like a parent, spouse, or child).
-They need to be close to the event, either seeing it happen or being there shortly
afterward.

- The trauma must have been experienced through their own eyes or ears, not just hearing
about it from someone else.

Example Cases:
1. Dulieu v White (1901): A pregnant woman got severe shock when a cart crashed into
her workplace, causing her to have a miscarriage. The court said that she could get
money because her shock was directly caused by fearing for her own safety.

2. Hambrook v Stokes Bros (1925): A mother saw a runaway truck and feared it would
hit her children. She suffered nervous shock and later died. The court allowed her
husband to get compensation because her shock was based on what she saw and her fear
for her children’s safety.

3. Greatorex v Greatorex (2000): A firefighter saw his son seriously injured in an

accident. He suffered nervous shock but couldn’t get compensation because there was no
duty of care owed between family members in cases of self-inflicted injuries.

Employers' Duty
Employers also have a responsibility to protect employees from mental harm. If an
employee witnesses something traumatic at work, they might be able to claim
compensation for nervous shock if it was caused by their employer's negligence.

- Dooley v Cammell Laird (1951): A crane operator feared for his colleagues’ safety after
a crane malfunctioned. He suffered nervous shock and was able to claim compensation
because his employer was responsible.

- Young v Charles Church Ltd (1997): A worker witnessed his colleague being
electrocuted and suffered nervous shock. He also claimed compensation for the mental
trauma he experienced.

In all these cases, if it can be shown that someone had a duty to protect the person from
the traumatic event and failed, that person can claim compensation for nervous shock.

Negligence: Breach of Duty

Once it has been established that the defendant owes a claimant a duty of care, the
next step is to identify whether that duty has been breached. The defendant will be
judged on the standard of any reasonable person. Everyone is judged the same with
no exceptions. Factors to be weighed when establishing breach:

1. Magnitude of Harm- Where there is a small risk but the potential harm that
may occur is great then a reasonable man would be expected to take
precautions.

Paris v Stepney BC 1915-

Mr. Paris, the claimant, was employed by Stepney Borough Council and had
already lost sight in one eye due to an earlier injury. While working for the council,
he was not provided with safety goggles, and during his work, a metal fragment hit
his good eye, leaving him completely blind.

Mr. Paris sued the council for negligence, arguing that they had failed in their duty
of care by not providing him with safety equipment, knowing his vulnerable
condition. The House of Lords ruled in Paris’s favor. The court held that the
employer owed a higher duty of care to Mr. Paris because they knew he was more
vulnerable than other workers due to his pre-existing blindness in one eye.

2. Defendant's purpose- If the defendant is doing something that is deemed to

be a valuable act, then he may be justified in taking greater risks. The greater
the social utility the greater the likelihood of the defendant’s behavior being
assessed as reasonable.
3. Practicability of precautions-
4. General practice- If the defendant acted in accordance with the common
practice of others this will be seen as strong evidence that he has not been
negligent.

STANDARD OF PROOF IN NEGLIENCE

The claimant has to prove on the civil standard(balance of probabilities) that

the defendant was negligent. However in some instances the claimant may be
able to rely on the maxim res ipsa loquitur, i.e the thing speaks for itself and
in this instance the burden of proof in on the defendant to disprove his
negligence.The principle means that just the occurrence proves that the
defendant was negligent.
“ You may presume negligence form the mere fact that it happens”

WHEN DOES RES IPSA LOQUITUR APPLY ( very important in

negligence)

1. The thing that caused the damage must be under the defendant’s control
2. This type of accident usually occurs because of carelessness.
Scott v London and St. Katherine Docks(1865)- the servants of the
defendants were lowering bags of sugar by means of a crane or hoist, and that
by negligence of the defendant's servants a bag of sugar fell upon the plaintiff
and injured him…..
3. The cause of the accident must be unknown.

ITS EFFECT- there are opinions to res ipsa loquitur

1. The burden of proof still lies with the claimant, but the defendant must
provide evidence to challenge the presumption of negligence. If the
defendant's evidence is believed, the claimant must again prove
negligence.
2. Another view suggests that the burden of proof shifts to the defendant.
NEGLIGENCE: CAUSATION AND REMOTENESS

The claimant, having established that the defendant owes him a duty of care
and the duty has been breached, also has to prove that the plaintiff suffered
damage that has been caused by the defendant.
1. Causation in fact or law-
● But for a test- the claimant must prove that the damage/harm would not
have occurred BUT FOR the defendant. If damage would have
occurred irrespective of the defendant, there is no liability.
Barnett v Chelsea and Kensington Hospital-
In this case, Mr. Barnett went to the hospital complaining of severe stomach
pain and vomiting after drinking tea. The doctor on duty did not properly
examine him and told him to go home and see his GP the next day. Mr.
Barnett later died from arsenic poisoning. His widow sued the hospital for
negligence, arguing that if her husband had been properly treated, he might
have survived.

The court accepted that the hospital had been negligent in failing to properly
examine Mr. Barnett, but it ruled that the negligence did not cause his death.
The evidence showed that even with proper treatment, Mr. Barnett would
have died because the arsenic poisoning was too advanced to be treated
effectively.

● Multiple cases- The but for test is relevant for instances where there is a
breach of duty by one person. However when multiple persons are
involved and there are multiple breaches of duty, multiple causes are
introduced.
● Several successive cases- the but for test will not assist where there are
concurrent events that cause injury. In this type of situation, there is
usually a sequence of events and every act in the sequence is a relevant
cause as far as the claimant’s damage is concerned and so the court will
always have to look at the operative cause of the damage.
Performance Cars Ltd v Abraham (1962)-
In this case, Abraham, the defendant, negligently collided with a Rolls-Royce
owned by Performance Cars Ltd. As a result, the car needed a respray.
However, prior to this accident, the car had already been involved in another
accident that had caused the same need for a respray, though the respray had
not yet been done. Performance Cars Ltd sued Abraham for the cost of
respraying the car.
The court ruled that Abraham was not liable for the cost of the respray. Since
the car already required the respray due to the earlier accident, Abraham's
actions did not cause any additional damage that would have led to new
expenses. The need for the respray was pre-existing.
This case established the principle that a defendant is not liable for damage if
it already existed before their negligent act. The defendant is only responsible
for damage they actually caused.

● Proof of causation- the claimant must prove, on the civil standard of

proof, that the defendant’s breach of duty caused the harm.

2. Remoteness of damage-
Remoteness is designed as a limit or control on the extent of the defendant’s
liability and also to ensure that the amount that he pays in term sof damages
will be a fair amount.

DEFENCES
Contributory Neglience
This is the defence in which the defendant tries to get the plaintiff to share the
liability. The defendant will argue that the claimant contributed to his
injuries. It may be that the plaintiff actions made the accident more likely to
happen or made the injuries more serious.