NEGLIGENCE

NEGLIGENCE

1. DUTY?

   • BREACH?
     • CAUSATION?
       • SUCCESS!!
       • I: Causation in Fact
         • Can be establish with 'but for' test; must be on the balance of probabilities
         • II: Causation in Law
           • Intervening Acts
             • by Claimant
               • McKew v Holland (1969): Leg injured at work; down the staircase with no railing; C unreasonable; broke the chain of causation
               • Spencer v Wincanton (2009): Filling petrol w/o wearing leg brace; 1/3 contributory negligence; chain of causation not entirely broken
             • by Third Party
             • by Nature
           • Remoteness
             • D cannot be made responsible infinitely for all the consequences of his wrongful conduct; the law must draw the line Wagon Mound - The direct consequences  test; was it reasonably foreseeable?
             • Wagon Mound (1961): Some physical damage foreseeable, not reasonably foreseeable that oil would spread into the vicinity of the welding; too remote
             • Hughes v Lord Advocate (1963): it is only the type of damage which must be foreseeable and not the manner in which it occurs or its extent.
             • Defining 'type of damage' - physical damage = foreseeable; damage by fire = too remote. Tremain v Pike (1969): Weil's disease = too remote, HOWEVER, fairer result would have been if any rat-related disease would have been the damage.
             • Duty vs Remoteness
               • Duty - Look ahead from an activity and consider a wide range of risks which might, if foreseeable, lea to the imposition of a duty of care Remoteness - Look back after the event to assess whether the damage that actually occurred was within he risk set out by the activity (narrower test)
         • But-for Test
           • Barnett v Kensington & Chelsea Health Management Committee (1968): Arsenic poisoning; eventhough hospital negligent; but for the breach, death would still have occurred. 
           • Where But-for is insufficient
             • 2 persons independently search for source of a gas leak with the aid of lighted candles; 'but for' either one of the people it would still have happened. No one responsible? 
             • Material Contribution
               • to damage
               • to risk
             • Asbestos
           • Multiple Contributory Causes
             • Where the injury is indivisible, any tortfeasor whose act has been a proximate cause, must compensate for the whole of it.
             • Divisible Harm
               • Thompson v Smiths Shiprepairers (North Shields) Ltd (1984) - hearing loss; negligent of employer after study in 1963; exposure before 1963 not liable; apportioned degree of liability b/w diff time periods
               • Rahman v Arearose Ltd and University College London NHS (2001) - Beat up by customer at Burger King; employees did not sufficiently help; Hospital negligent and lost eye; suffered PTSD; held divisible and each party liable for part of PTSD.  Tony Weir disagrees! Harm was not incremental, but the indivisible result of synergistic or catalytic concatenation of events. 
               • Sequence of Events
                 • Performance Cars Ltd v Abraham (1962) - Rolls Royce suffered damage by A and needs spray; B crashes into car and needs the same spray; B did no further damage
                 • Steel v Joy (2004) - driver injured by two diff drivers; first accident gave serious back injury; second driver would have caused the same injury; not liable for anything other than additional
                 • Baker v Willoughby (1970) - negligent driver; disabled leg; robbery; amputated leg; HELD still damages by driver after robbery; worsened the leg; robbers would have had to pay otherwise - driver can seek contribution from robber.. 
                 • Jobling v Assiociated Dairies (1982) - permanently disabled; disease received naturally; disability then caused by disease; employer NOT liable after the disease acquired.
                 • NO inconsistency between the cases; just a question of responsibility. What is the damage for the which D should be responsible? 
             • Indivisible Harm
               • Arneil v Paterson (1931): dogs attacked, 10 sheep died; damage 60GBP; HoL held ALL 60GBP owed by each of the two dogs - NOTE farmer cannot get more than 60GBP.
               • Civil Liability (Contribution) Act 1978 - Any person liable...may recover contribution from any other person in respect of the same damage.
           • Problem w/ Proving Causation
             • Loss of a Chance
               • Hotson v East Berkshire Area Health Authority (1987) - failure to diagnose broken hip; if something MORE THAN DOUBLES your risk, on the balance of probabilities the D is liable; H fell out of tree; doctor negligent; 75% likely he would have had serious disability; not increased by double; not liable for the damage
               • Gregg v Scott (2005) - failure to diagnose cancerous tumour; chance of recovery from 42% to 25%; not doubled therefore NOT liable.  Hale: Can't get over 50% threshold can't get anything; can get over 50%, can get everything! Suits both sides.  Nichols: law should not by adopting all-or-nothing approach assume certainty where there is none - "rough justice indeed"
             • Insoluble Uncertainty
     • I: Standard of Care
       • II: Balancing Test
         • Bolton v Stone (1951)  - cricket ball; foreseeable but extremely unlikely  The Wagon Mound (1967)  - 2 ships on fire in Sydney Harbour; unlawful discharge of oil; highly unlikely yet foreseeable; cost weighed; held duty breached Latimer v AEC Ltd (1953) - not breached; slippery factory floor; everything could have done; too small risk; 
         • Risk
           • Paris v Stepney Borough Council (1951)  - partially sighted; required extra care; goggle not expensive Haley v London Electricity Board (1965) - Blind person; construction; how reasonable to guard against? Not just q of foreseeability
         • Value of D's conduct
           • Daborn v Bath Tramways (1946)  - War time; ambulance; all available vehicles necessary.  Watt v Hertfordshire County Council (1954)  - Fire brigade broke C's ankle in emergency; lower standard of care b/c emergency
           • Compensation Act 2006
             • s 1: Court 'may' consider whether breach would prevent/discourage miserable activity
         • Cost of Avoiding Risk
           • Wagon Mound - breached
         • Proof - res ipsa loquiter
           • George v Eagle Air Services (2009)  - burden of proof on D IF likely negligent act; today, crash likely fault of D or pilot; failed to shift burden of proof; breached 
       • "Reasonable Person"
         • OBJECTIVE Nettleship v Weston (1971) - Learner driver; injured knee; "did my best" - not good enough; objective standard; insurance relevant; Denning Mansfield v Weetbix (1998) - No control over body; hyperglychemic state; lorry in shop; no negligent; no breach Wilsher v Essex Area Heath Authority (1987) - Junior doctor; senior doctor; blood vessel; eyesight; junior not negligent; senior negligent; reasonable man according to person w/ his qualifications ** Issue: standard of care should not differ w/ experience. Policy issue. 
         • TIMING Roe v Ministry of Health (1954)  - crack in tubes; patient paralyzed; reasonable at the time D acted, NOT retrospectively; no breach.
       • Professional Negligence
         • COMMON PRACTICE General Cleaning Co v Christmas (1953) - window cleaners; obvious dangerous; everyone else is negligent; yes breach  King v Smith (1995)  - Xmas standard met; increase standard when risks are more apparent; flexible standard!
         • DOCTORS Bolam v Friern Hospital (1957)  - Not negligent if following common practice even if other opinion exists; electroshock therapy; jury tried Bolitho v City and Hackney (1998)  - still up to court to assess credibility of research!
   • DUTY OF CARE
     • - Even if D at fault, and fault caused harm, sometimes duty does not arise. 
     • Mulcahy v MOD (1996)  - soldier in Gulf War damaged hearing; serviceman has NO duty of care to fellow serviceman. POLICY Smith v MOD (2013)- Soldier not adequately trained; SC held YES duty of care b/c MOD did prepare, equip soldier
     • Common Law Development
       • Historic Development
         • Donogue v Stevenson (1932)  - gingerbeer; neighbour principle; Atkin LJ; "so closely affected" Anns v Merton (1978)- property; local authority negligent; expansion (1) reasonably foreseeable (2) policy  **overruled by Murphy v Brentwood District Council (1991) Yuen Kun Yeu v Attorney General for Hong Kong (1988) - public official w/ register of approved financial institutions; NO proximity - move away from Anns.  Caparo v Dickman (1990) - auditor/accountant neg; no proximity; Criticism of Anns that not enough proximity consideration
         • Incrementalism
           • Courts have no stressed the need to respect precedent after Anns.  Issue w/ incrementalism:  - no serious change - tells us little about the criteria to make incremental moves
         • Novel Duties
           • Follow Caparo v Dickman Note:  When about personal/property harm 1 will usually mean 2 and 3 are satisfied When about pure econ or psychiatric 1 does not mean 2 and 3 are satisfied! - about a special relationship
           • 3. 'just, fair and reasonable'
           • 2. Proximity?
           • 1. Damage Reasonably Foreseeable?
             • Bourhill v Young (1943) - Pregnant lady off tram; motorcycle accident; miscarriage; NOT foreseeable Hall v Gwent Healthcare NHS Trust & Others (2005)  - D tricked Mr Hall business trip to India; Mr Hall relapses & kills daughter; NOT forseeable.
     • Specific Problem Areas
       • Nervous shock
         • Primary Victim
         • Secondary Victim
         • Other
         • Discussion
       • Wrongful Birth
       • Pure Economic Loss
         • Property & Pure Economic Loss distinguished
         • Hedley Bryne
           • Assumption of Responsibility
             • Voluntary
           • Akin to Contract
             • Actual Contract
       • Pure Omission
       • Public Authorities
     • Preliminary Qs
       • Foreseeable Claimant
         • Bourhill v Young (1943) - Pregnant lady off tram; motorcycle accident; miscarriage; NOT foreseeable Hall v Gwent Healthcare NHS Trust & Others (2005)  - D tricked Mr Hall business trip to India; Mr Hall relapses & kills daughter; NOT forseeable.
       • Fault
         • X v Bedfordshire County Council (1995)  - Social workers; children sue both abused or not abused; doing their best; NO fault
         • Smith v Littlewoods (1987) - D owns cinema; derelict; S burns down; break of causation, NO fault. 
       • Duty