Tort damage to property and economic loss. Negligence

 

Tort can be defined as a civil wrong, it occurs when there is a breach
of protected interest suffered by one party. It can protest a wide scope of
interests. There are many different types of tort. Negligence is the greatest
source of litigation, it consists of 4 elements; duty of care, breach,
causation in fact and causation in law. The tort of Negligence protects a
number of interests; personal injury, damage to property and economic loss. Negligence
began as a means of loss-shifting, due to industrial revolution in the 19th
century which increased factories and manual labour, during which there was
very little or no insurance or state welfare provision. This essay will examine
the extents to which courts maintain an objective standard when dealing with
cases where a particular defendant is in breach of duty of care in negligence. A
duty is owed by the Tortfeasor (the defendant) to the claimant, if the duty is
breached, meaning conduct has fallen below the required standard of care, it
can result in the breach of the duty causing damage (not too remote).

Limiting boundaries of the duty concept that are protected by tort are;
the range of people, relationship they have and interests. Lord Atkin when
referring to his neighbour principle states you must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to
injure you neighbour which can raise the question of who in law is my neighbour,
the answer is that of persons who are so closely and directly affected by my
act that I ought to have them in contemplation as being so affected”1. The key labels of the principle
are; reasonable foreseeability and proximity. It can often involve the extent
of liability to which an individual or company have towards another individual
(often the claimant). In the case of Donoghue
v Stevenson(1932)2,
Donoghue was out with a friend and had drunk from a dark opaque bottle of
ginger beer, which was brought by the friend. After drinking it she felt sick, so
she poured the rest of the bottle in a glass. It had turned out there was a
decomposing snail remains. Due to drinking the contaminated ginger beer it
resulted in Donoghue experiencing shock and illness. The neighbour principle is
shown in this as the proximity of the relationship between Donoghue and
Stevenson is to an extent, as under contract law cannot be sued as it was her
friend who was the customer. However, it is still a legal duty for Stevenson to
take reasonable care that the consumer is not injured. Lord Macmillan states ”the categories of negligence are never closed’.3

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In reviewing foreseeability, Ann’s 2 stage test can help us, it originated
from the case of Anns v London Borough of Merton (1978) which involved a local authority’s liability for the negligent inspection
of building plans. The test consists of two questions; whether between the assumed
offender and claimant, was there a sufficient relationship which includes
proximity, incorporating the neighbour principle, which if not taken reasonable care of could cause damage to the
latter.  The second stage is whether to
see if there are any policy considerations or reasons as to why this duty
should not exist. Ann’s two stage test can be criticised as it can open floodgates as judges make decisions which restrict
the potential expansion of negligence. Also,
its prima facie duty involves too much liability and too much litigation over
liability.

 

Caparo brought in the idea of three ingredients, all of
equal importance; the foreseeability, proximity and is the duty ‘fair, just and reasonable’. In the case of Bhamra v Dubb (2010)4
a caterer at a Sikh Wedding held at a Sikh temple, egg consumption is banned by
Sikhism, and thus he was under ‘a duty to take reasonable care’ not to serve dishes containing egg. It
was reasonably foreseeable that some of the wedding guests might be allergic to
egg and they could reasonably assume that the food would be free of egg. In
those circumstances, the duty extended to personal injury caused to them by
their consumption of otherwise wholesome food containing egg.’5 This shows
foreseeability as any ‘hypothetical reasonable person’ would have foreseen the circumstances
and avoid eggs at all cost, however everyone is prone to mistakes. The
judgement of the case was overall subjective as yes, the caterer did owe him a
duty but it’s the scope of
the duty that can be questioned. Caparo examines proximity as a close and
direct relationship between the parties. It can be an overriding control on particular
kinds of harm e.g. economic loss, omissions.
Referring to fair, just and reasonable, proximity is only satisfied where there
is an overruling public interest in refuting a particular type of claim.

 

In the case of Watson v British Boxing Board of Control
(2001) the court of appeal had placed reliance upon the Board by boxers and
came to the conclusion that it was ‘fair, just and reasonable’ for them to impose a duty of care, it
was taken into consideration how the board was a non-profit making organisation
but it failed to be enough to deny the justice of finding liability. The argument against Caparo can be
the ‘criteria’ are described, excluding
foreseeability, as labels, it can be too matter-of-fact as not every situation
is different and the question is raised if it is an appropriate way of
determining legal questions. Caparo can also not apply to some areas such as
good Samaritan acts, police, ambulance and other emergency service and pure
economic loss.

Negligence occurs when there is a breach in the duty of care. The
standard of care is set to that of a 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.’6

 

This can cause the argument of using the same standard of
care to people with special duties to society, or greater than average skills
being held to a higher standard of care. In the case of Bolam v Friern Hospita Management Committee (1957)7
judges the standards of the medical doctor, a psychiatric patient suffered a
broken jaw when he was given an electro-convulsive treatment without first
being administered a muscle relaxant. It was held that the reasonable man, or ‘the man on the Clapham omnibus’ would not be a fair judgement because
he would not be expected to have the special skills of the doctor. The case
instigated the Bolam test ‘which asserts that a doctor will not be negligent if what
she has done would be endorsed by a responsible body of opinion in the relevant
speciality’8

Another example of this is children, this was shown in the case of Mullin v Richards (19989)
involving two 15-year-old girls were judged on the standard of ‘playing as somewhat irresponsible girls of 15’. The standard of ‘reasonable
child’ prevents a defendant’s actions that is a child being measured against a standard of care they
cannot reach.

Setting a standard of care can prove to be risky. There are factors such
as the cost of running the risk which consists of two elements such as the likelihood
of injury where the law looks more at the risk of the outcome which is
reasonably foreseeable than that of a remote outcome. When judging the Bolton and other appellants v Stone (1951)10
Lord Reid ”saw this case as a difficult one
lying very near the borderline of liability and requiring careful consideration
of ‘fact and degree’ but ultimately concluded that the risk was small enough to have been
disregarded by the reasonable man and thus the defendants were not liable for negligence’.11

When setting the standard of care many different factors are taken into
consideration. Such as what would have been foreseeable in the circumstances of
the case. In cases that involve scientific and technical knowledge the defendant’s
actions will be judged on the standard predominant in the conditions of the
time. It would be expected that the reasonable man would not know otherwise. This was shown in the case of Nettleship v Weston (1971)12
”when the plaintiff, who was not a professional driving instructor had agreed
to give lessons to the defendant who was a friend, having confirmed she held
fully comprehensive insurance. On the third outing the car, which did not have
dual controls and despite the teachers attempt to avert the car, she hit a
tree. The result was the plaintiff suffering a fractured knee.”13

The floodgates argument evolved from Victorian
Railways Commissioners v Coultas (1888)14
which involved nervous shock, this made the courts become concerned that the
case would cause a rise to a flood of similar claims. In result courts have
used this argument to prevent sound claims, by applying ”policy decisions’.

Causation can be an element of negligence. It is only for actionable
damage which is recognised as recoverable in its own right. It must be substantial
injury. The but for test is approached through factual causation. This test
asks what would have happened ‘but for’ the breach of duty. If the injury would still have occurred ‘but for’ the breach, the ‘but for’ test is not passed. A case
related to the test is Barnett v
Kensington & Chelsea Management Committee (1969)15
three night-watchmen became ill after drinking tea, when arriving at the
hospital the casualty officer had been negligent due to his failure of
examining the patients, however ‘but for’ his breach, the death would have still occurred. Thus, it was to be eliminated
as a cause of the death. The ‘but for’ test has some flaws such as when the answer leads to an unjust result
and secondly, when it is impossible to answer the question.

The Compensation Act 2006 addresses the problem of ‘compensation culture’. This is
where the court is not obliged, but should take into account the wider impact
of the decision it makes on standard of care. Section 1 permits courts to adjust
the standard of care to consider that the defendant was undertaking a socially ‘desirable activity’ which makes
breach seem to be an appropriate control device for public body liability. They
may do this to prevent an activity from happening at all, or to an extent or in
a particular way and to discourage individuals from starting functions in
connection with desirable activity.

When detecting a breach, courts need to decide whether it has fallen
below standards. Res ipsa loquitur is a Latin phrase meaning ‘the thing speaks for itself’. In the
circumstance that the claimant will not be able to sufficiently prove
negligence on the balance of probabilities. It does not shift or reverse the
burden of proof onto the defendant. It simply means that sometimes the
circumstances of the negligence can be evidence of carelessness.16

Overall, when making a judgement on whether a particular defendant is in
breach of duty of care in negligence courts can take either an objective or
subjective standard based on the circumstances and outcome of the case. An
objective standard can be defined as based on factual causes, whereas
subjective is intentions of the person. They need to take into consideration
all the aspects of the case, identifying whether there was a duty of care
involved, if there was a breach and what skills or knowledge the defendant had.
The question of whether the reasonable man standard is a fair judgement can be
argued as not every situation can be determined by it and there can be
exceptions such as child, profession and sport. Negligence can be a complicated
case as it is not harsh injury, but sufficient enough to cause a liability upon
the defendant.

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