Download - Law of Torts - Law of Negligence

5/27/2018 Law of Torts - Law of Negligence

1/46

LAW OF NEGLIGENCE

DUTY OF CARE


2/46

Learning Objectives

At the end of this topic you should be able to:

(a)have an overview of the history of

negligence;

(b) describe the function of duty of care in

negligence;

(c) appreciate the way duty of care has been

defined and developed; and

(d) apply the principles of duty of care in a new

situations.


3/46

Definition

The term 'negligence' has 2 differentmeanings

It refers to the condition or state of mind of aperson at a given moment in time. In thissense, the word means 'recklessness' or'carelessness'.

Negligence is a name of an independent tort.


4/46

Legal definition

Winfield the breach of a legal duty to take care

which results in damage, undesired by the

defendant to the plaintiff.

Lord Wright in Loghelly Iron & Coal v M'Mullan'negligence means more than heedless or careless

conduct. It properly connotes the complex concept

of duty, breach and damage thereby suffered by the

person to whom the duty was owing'.


5/46

3 principal elements

Duty of care

Breach of duty

Damage/injury resulting from that breach

- The damage must not be too remote.


6/46

THE DUTY OF CARE

Duty means an obligation or a burden

imposed by law, which requires a person to

conform to a certain standard of conduct.

Whether a duty of care is owed in any givencircumstances is a question of law, to be

decided by the judge.

The concept of duty of care was 1strecognised by the House of Lords in

Donoghue v Stevenson.


7/46

Pre-Donoghue v Stevenson

The 1stattempt to formulate a general

principle was made by Lord Esher in Heaven

v. Pender(1883).

The P was a ship painter in the D's dock. Ascaffolding erected by the D which the P was

using gave away and the P was injured.

Heldsince there was no contractualrelationship between the parties, the action

could not be maintained.


8/46

Lord Esher observed;

Whenever one person is by circumstances

placed in such a position with regard to

another, that everyone of ordinary sense who

did not think and would at once recognizethat if he did not use ordinary care and skill in

his own conduct with regard to those

circumstances he would cause danger orinjury to the person or property of the other, a

duty arises to use ordinary care and skill to

avoid such danger.


9/46

Donoghue v Stevenson(1963)

A friend of the P had purchased a bottle of gingerbeer at a caf. The P had consumed some of thedrink but when she poured out the reminder of thecontents of the bottle, a decomposed snail was

found in the drink. As the bottle was black incolour the P was unable to see its contents muchearlier. The P suffered shock and subsequentlybecame ill. She sued the manufacturer of the

ginger beer.


10/46

The ratioof D v S

The House of Lord held that the D being

manufacturer of the ginger beer, owed a duty

of care to the P, as the ultimate consumer of

the drink. This duty was to take reasonable care to

ensure that the bottle did not contain any

substance which was likely to cause injury toanyone who purchases it in due course


11/46

Neighbour principle

LordAtkin in his dictum (dicta) enunciated what isknown is Neighbour principle

The rule that you are to love your neighbourbecomes in law you must not injure your neighbour,and the lawyers question who is my neighbourreceives a restricted reply. You must takereasonable care to avoid acts or omissions whichyou can reasonably forsee would be likely to injure

your neighbour..


12/46

Cont.

Who then, in the law is my neighbour? The

answer seems to be persons who are so

closely and directly affected by my act that I

ought reasonably to have them in mycontemplation as being so affected when I

am directing my mind to the acts or omission

which are called in question.


13/46

Significance of D v S

D v S laid the foundation of the law ofnegligence. The most important aspects of thecase are

Negligence is recognized as a separate tort An action for negligence can exist whether ornot there is a contract between the parties itdestroyed the privity fallacy

It introduced a general test to determine theexistence of a duty of care using neighbourprinciple which is based on reasonableforeseeability and proximity of relationship.


14/46

Home Office v Dorset Yacht Co.

Ltd(1970)

Whether a duty situation exists in any given

case, Lord Atkins statement should be

regarded as a statement of principle / general

application unless there is some justificationor valid explanation for its exclusion.


15/46

Fact

Seven borstal boys had escaped from an island

where they were undergoing training. The

escape was due to the negligence of the officers

who were in bed. The boys caused damage tothe P's yacht. The P sued the Home office.

Issuewhether the home office and its officers

owed any duty of care to the owner of the yacht.

(Damage was caused by a 3rdparty)


16/46

Decision

The court observed - 'when a new point

emerges, one should ask not whether it is

covered by authority but whether recognized

principle apply to it.' Held the duty of care exists in such

circumstances.


17/46

LKTP (FELDA) v Mariam

A kongsi-house built on FELDAs land collapsedand killed the deceased. He sued FELDA for

negligence in providing a safe kongsi-house.

FELDA contended that the deceased was theemployee of the sub-contractor. FELDA therefore

owed no duty of care to him at all.

HeldLiability depending on contractual

relationship was abandoned by the House of Lordsin D v S. The D was held liable for negligence.

P t i t f d t


18/46

Present requirements of duty

of care

Laid down by the House of LordsinCaparoIndustries plc v Dickman(1990).

(a) a reasonable foreseeability of harm

(b) proximity of relationship between the

plaintiff and defendant

(c) it must be just, fair and reasonable to

impose a duty of care.


19/46

Foreseeability

The test of foreseeability is objectivei.e.what a reasonable person could have beenexpected to foresee.

The P does not have to be individuallyidentifiable for the D to be expected to forseethe risk of harming them.

It is sufficient if the P falls within a category ofpeople to whom a risk of harm wasforeseeable. E.g the end user of a product.


20/46

Proximity of relationship

Basically refers to the closeness of therelationship between the defendant and the

claimant.

It does not necessarily mean physicalcloseness.

The degree of closeness differs according to

the type of damage and other factors.

L d Oli i Al k


21/46

Lord Oliver inAlcocks case

observed;

.in the end, it has to be accepted that theconcept of proximity is an artificial one

which depends more upon the courts

perception of what is the reasonable area forthe imposition of liability than upon any

logical process of analogical deduction


22/46

Fair, just and reasonable

The fair, just and reasonable criterionenables the courts to determine liability on

the basis of policy.

Thus, although a case meets therequirements of foreseeability and proximity,

the courts may find there is a sound public

policy reason for denying the claim.


23/46

Caparo v Dickman

Caparointroduces a new approach indeciding a duty of carecalled incrementalapproach.

In using the incremental approach indetermining the existence of duty of care-

(a)the P must point to a direct precedent(authority or to a closely analogousprecedent in which a duty of care has or hasnot been imposed.)


24/46

Cont.

(b) In new cases in which no relevant authorityexist, the court shall apply the three factors

(i) Foreseeability

(ii) Proximity

(iii) Public policy


25/46

Marc Rich v Bishop

The House of Lords held that a classificationsociety ( an independent and non-profit-making entity) did not owe a duty of care to

the owner of cargo on a vessel that had beennegligently certified as seaworthy when thevessel subsequently sank.

The tripartite test for establishing a duty of

care promulgated in Caparos case is now tobe of universal application.


26/46

MPAJ v Steven Phoa

The Federal Court Followed Caparo anddecided that on the facts and the

circumstances of this case, it was not fair,

just and reasonable to impose a duty of careon MPJA or other local councils in this

country in similar situations.

Polic consideration in


27/46

Policy consideration in

negligence

Winfieldstates that 'the use of the wordpolicy indicates no more than that the court

must not decide simply whether there is or is

not a duty but whether there should or shouldnot be one, taking into account both the

established framework of the law and also

the implications that a decision one way orthe other may have for operation of the law in

our society.'


28/46

Public policy

Public policy extends to moral, social,economic and political factors.

Even though a duty of care is found to exist

on grounds of foreseeability and proximity,liability is nonetheless excluded on grounds

of public policy.

Hill v Chief Constable of West


29/46

Hill v Chief Constable of West

Yorkshire

Also known as 'Yorkshire murder case'. TheP's daughter was the last victim of the

'Yorkshire ripper'.

The mother sued the police department andalleged that the police was negligent for their

failure to arrest the criminal.


30/46

DECISION

The House of Lords held that there was noduty on the part of the police towards general

public to arrest an unidentified criminal.

It would be contrary to public policy if such aduty was imposed upon them.


31/46

Rondel v Worsley

Heldthe advocates, whether barristers orsolicitors, were immune from a claim for

negligence by a disappointed client in respect

of the manner in which a case wasconducted in court. (litigation)

This immunity is founded on public policy.

Does not apply to other aspects of lawyersjob.

Mohd Nor Dagang v Tetuan


32/46

Mohd Nor Dagang v Tetuan

Mohd Yusof

The P alleged that the D (lawyer) wasnegligent in defending his case. As a result

the P was held liable and ordered to pay a

sum of more than half million. The court applying the principle in Rondel

held the D not liable as the principle of limited

immunity of advocates applies in this case.

Duty and the foreseeable


33/46

Duty and the foreseeable

plaintiff

Basic principleduty of care should be owedto the plaintiff.

The D did not owe a duty of care to the

particularplaintiff if the plaintiff wasunforeseeable.

The P cannot rely on a duty that the D may

have owed to others.


34/46

Palsgraf v Long Island Railroad

US case but the principle has been adoptedin English cases.

Factthe negligence of railway employees

caused a passenger to drop a box offireworks. The fireworks exploded and

knocked over some heavy metal scales

several feet away, which struck the P.


35/46

Decision

The New York Court of Appeal rejected Pclaim for damages, holding that if any wrong

had been committed, it had not been

committed against the P, because she wasnot a foreseeable victim of the railway

companys negligence.

According to the jury, the P was beyond therange of foreseeable peril


36/46

Bourhill v Young

The D motor-cyclist was killed in a crashcaused by his own negligence. The P heard

the crash but did not see it.

She only saw the scene of the accident afterthe Ds body had been removed.

She suffered nervous shock and sued the D.


37/46

Decision

The House of Lords held the D not liablebecause he did not owe the plaintiff a duty of

care.

Although it was foreseeable that negligentdriving might endanger other road users, the

particular injury to the plaintiff was not

foreseeable.

Haley v London Electricity


38/46

Haley v London Electricity

Board

The D's servants had excavated (dig up) atrench in a highway and then placed some

notice boards and the handle of hammer on

the pavement. The handle could easily beseen by a normal person. However the P

who was blind tripped over the handle and

injured himself.


39/46

Judgement

The House of Lords held that the D liable.Although their warning was sufficient for

normal person, it was inadequate for blind

people. They should foresee that not all roadusers are normal-sighted person.


40/46

Actionable Omissions

Another factor in deciding the existence ofduty of care is whether the act is in the formof commission (positive act) or omission(negative act).

As a general principle omission does not giverise to a duty of care.

The principle is that a person should not

harm others but he is not under a duty to dosomething for the benefit of another.


41/46

Stovin v Wise

The P was involved in a road accident at adangerous junction. The question arose whether

the local authority, which had resolved to carry out

improvement to the junction, could be liable for its

failure to do so.

By a 3:2 majority, the House of Lords held that the

local authority was not liable for its omission to act.

It had a statutory power to improve the junction, butnot a duty to do so.


42/46

Lord Hoffmann observed;

There are sound reason why omissionsrequire different treatment from positive

conduct. It is one thing for the law to say that

a person undertakes some activity shall takereasonable care not to cause damage to

others. It is another thing for the law to

require that a person who is doing nothing inparticular shall take steps to prevent another

from suffering harm.


43/46

dDf knew or hadmeans ofknowledge that athird party wascreating adanger on hisproperty andfailed to takereasonable stepsto abate

defendantnegligentlycauses or permitsa source ofdanger to becreated which isthen interfered bythird party

a specialrelationshipbetween thedefendant andthird party

a specialrelationshipbetween theplaintiff and Df

Actionable Omission

generalprinciple)

(Exceptionto the


44/46

Lew Thai v Chai Yee Chong

The P was injured while trying to build anembankment to prevent rising water from

flooding the mine. He alleged inter aliathat

the D (co-worker) had failed to take any oradequate precautions for his safety.

The court held the D liable as there was a

special relationship between the parties.


45/46

Parimala v PLUS(1997)

A driver of a car traveling on the highway waskilled when the car collided with a stray cow.

The court found the D as the highway

authority responsible for the maintenanceand safety of the highway, liable innegligence.

PLUS had failed to repair the hole in the

fence which the cow used to enter thehighway.


46/46

Duty of carecheck lists

Duty of care

Foreseeability

Proximity

Policyfair, justand reasonable

Nature ofconductact oromission

Type of plt

Type of Df

Type of damage

Whether it wascaused by theDf or a 3rdparty

Download - Law of Torts - Law of Negligence

Top Related