Negligence Part Three Discussion - PowerPoint Presentation

1. NegligencePart Three

2. DiscussionThink of situations in which one person should act with care towards another and fails to provide it. Have you heard of lawsuits being filed over such situations?Participating in traffic requires drivers and pedestrians to act with care. What can happen as a result of careless driving? What court proceedings can arise from traffic accidents? What are the possible consequences for participants?

3. II Read the paragraph and think of different situations which might fit the definitionAs a separate tort in its own right, negligence is actually very wide-reaching. Unlike most other torts, which involve intentional actions, negligence refers to situations where damage was suffered due to a lack of care by someone who was expected to provide it.

4. NegligenceCarelessness amounting to a culpable breach of duty: failure to do or recognise sth that a reasonable person would do or recognize, or doing sth that a reasonable person would not doNegligence may be an element in a few crimes, e.g. careless driving

5. NegligenceA tort consisting of the breach of a duty of care resulting in damage to the claimantCan be used to bring a civil action when there is no contract under which proceedings can be brought

6. Claim of negligenceIn order to succeed in a claim of negligence, a claimant must show that:The defendant owed him a duty of careThere was a breach of the duty of careThe harm suffered was caused by the breach of a duty of careThe harm was reasonably foreseeable

7. Duty of careIf there is no duty of care, there is no breachIf there was a breach, was the harm that the claimant suffered reasonably foreseeableIf it was not reasonably foreseeable – remote damage

8. Duty of CareThe law of negligence developed in an attempt to provide legal protection for persons who suffered damage or a loss through another person’s careless or negligent actions, not covered by contractual obligations. Negligence as a separate tort was recognised in the ground-breaking ruling by Lord Atkin in Donoghue v Stevenson (1932), in which he set out the ‘neighbour principle’. He put it as follows: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in 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 contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.”

9. Neighbourhood principleNeighbourhood principle : whether there is a duty of care depends on whether the claimant is a neighbour in the legal senseA person is a ‘neighbour’ if what you do will directly affect himDuty to take reasonable care to avoid acts or omissions ‘which you can reasonably foresee would be likely to injure your neighbour’.

10. Duty of CareStrict standards and legal tests have developed in English case law to determine whether particular careless behaviour entails legal liability and warrants a court order of damages.It does not suffice that one person acts carelessly towards another. It must first be established that he owes a duty of care towards the claimant. A duty of care is typically owed by professionals providing a service – doctors to patients, bus drivers to passengers, museum staff to visitors, manufacturers of products to consumers, etc.

11. Breach of dutyIf the defendant owed the claimant a duty of care, the next step is to prove that the defendant breached that duty of careThe test: objectiveThe standard: reasonableness

12. Standard of careThe next thing for the court to decide is what standard of care was expected of the defendant in the case at hand. The general standard of care corresponds to the conduct of a reasonable man in the given circumstances. The standard of a reasonable man is typically above what an ordinary person would or might do. For example, even though many drivers run the yellow light, in law a reasonable man is expected to stop the vehicle. It is said that the reasonable man should be free from both over-apprehension and over-confidence. In other words, he does not need to be too cautious, but neither should he be so sure of himself as to not apply care in his actions.

13. The standard of careStandard of care – that of an ordinary prudent personThe care which a reasonable person would use in the circumstancesWhere serious consequences may follow from carelessness, the greater degree of care must be exercised (more care needed in handling a loaded gun than handling a walking stick)

14. Breach of the standard of careOnce the standard is established, the court will go on to determine whether the defendant’s behaviour fell below the standard, i.e. whether the standard was breached. In cases of professional negligence the court considers the opinions of a body of professionals attesting to the usual and accepted practices in the profession (i.e. the professional standard), which helps the court decide whether the defendant went against those practices. If he did, the defendant is deemed to have acted negligently.

15. Reasonable foreseeability of harmThere are no rough-and-ready rules for establishing reasonable foresight – this will always depend on the individual circumstances of the case. However, substantial case law (and statute law) has developed over time to cover many frequent situations so that the duty of care can often be established quickly.

16. CausationEven if the claimant can show that the defendant owed him a duty of care and he breached it, he must show that the defendant caused his injuries – i.e.to establish causation: there has to be a clear link between the claimant’s loss and the way the defendant behaved

17. CausationIn order to find the negligent defendant actually liable for the damage, causation must be established. This is done by way of the ‘but for’ test, which means answering the following question: ’Would the claimant have suffered the damage but for the negligent act of the defendant?’ If the answer is ‘yes’, then there is no causation because the damage would have occurred regardless of the negligent act. If the answer is ‘no’, that means that it was the particular breach of the duty of care on the part of the defendant that caused the damage to the claimant.

18. CausationThe causal link between the negligent act and the damage must be proved on a balance of probabilities. This means that it is more likely than not that the defendant’s negligence caused the damage

19. CausationProving causation can become quite complicated. The precise cause of damage might be difficult to pinpoint, especially when there are multiple possible causes. For example, someone might develop a disease due to their employer’s negligent failure to provide a safe working environment. However, the claimant’s own lack of care for his physical well-being might be a substantial contributing factor. The disease might also have occurred by itself. In such cases, the negligent and the non-tortious risks are quantified and weighed against one another.

20. Intervening actThe defendant will not be liable if the damage is too remote from the negligent act. This means that another act occurred between the negligent act and the damage, thus breaking the chain of causation. The intervening act can be performed by the claimant, by a third party, or it can be an act of nature. For example, a claimant whose leg was injured through the defendant’s negligence engages in a physically demanding activity which might reasonably cause further damage to his leg. The intervening act of the claimant causes further injury. The defendant will not be found liable for the further damage which resulted from the claimant’s actions performed while fully aware of the additional risk.

21. Contributory negligenceEven if a claimant has proved a duty of care, a breach of that duty and causation, the defendant could still have a defence: contributory negligenceThe claimant’s injury was only partly caused by the defendant’s conduct; the claimant himself is also at fault and partly to blame for his injury

22. Contributory negligenceLiability is established if it can be proved that the defendant’s negligence materially increased the risk of damage. In another example, a pedestrian who carelessly runs out into a busy street likely bears significant responsibility for the injury sustained from being involved in a traffic accident. If the claimant’s own behaviour contributed to the damage, contributory negligence might be claimed by the defendant in his defence. Non-tortious contributing factors will often lead to a reduction of the amount of damages awarded by the court.

23. Sayers v. Harlow U.D.C. (1958)The plaintiff, a woman, entered a public lavatory owned and operated by defendants. Owing to a defective lock without a handle, she could not get out of the cubicle. Her bus was due to leave, and she tried to climb over the door. She placed her foot on a revolving toilet roll, fell to the ground and injured herself. She sued the local authority. Held: (1) the defendants were negligent; (2) the plaintiff was guilty of contributory negligence in trying to balance on a revolving object. Her claim would be reduced by one-quarter

24. Froom and others v. Butcher (1976)B. drove a car negligently on a road and collided with F’s car injuring the driver, F, who was not wearing a seat-belt. The accident was solely caused by B. Held: F’s claim for damages was reduced by 25% because F was contributorily negligent in not wearing the seat-belt

25. Additional factors Additional factors include the ability of the defendant to stand the loss (negligence claims are often paid out of insurance policies), the impact of the decision on the profession (as it might affect professional standards) and future adjudication. The ‘floodgates’ argument is also very important: establishing the duty of care in a particular situation may lead to a flood of claims involving similar circumstances, and bring about frivolous lawsuits.

26. Recognized duties in lawHighway (also: railways, shipping at sea, canal navigation)Employer’s liability (safe system of work, safe machinery, competent fellow employees)Professional persons(doctors, dentists, solicitors)

27. Recognized duties in lawCarriers (duty of care to passengers and goods)Schools (duty of care to children and to third parties injured by children)Police (duty of care to general public)

28. Strict liability in the EUWhile negligence is largely regulated in common law, EU regulations concerning consumer protection have imposed strict liability on any person in the chain of production and distribution of a product. This means that they are automatically liable for damage caused by a faulty product, without proving negligence or who was personally responsible for a harmful substance found in a consumer product.

29. SummaryNegligence: definitionDuty of care (neighbourhood principle)Breach of the duty of care (test of reasonableness )CausationReasonable foreseeability

30. Margereson v. J.W. Roberts Ltd; Hancock v. J.W. Roberts Ltd (1996)M’s late husband and H played together as children in the loading bays of a factory where the level of asbestos contamination was very high, and as adults they developed mesothelioma. The company was held to have breached a duty of care as they ought to have reasonably foreseen a risk of pulmonary injury to the children

31. Dorset Yacht Co. v. Home Office (1969)Some boys escaped from a borstal institution and set adrift and damaged a motor-yacht in Poole harbour. The Yacht Co. (owners) sued the Home Office as the Government department responsible for prisons and borstalsHeld: Home Office was liable for damage done by persons who escaped from custody or while on parole if the escape was due to the negligence of prison or borstal officers

32. Smith & Others v. Littlewoods Organisation Ltd (1987)Vandals started fire in the defendant’s empty building which damaged adjoining property. Held: occupier’s duty did not extend to preventing deliberate acts of third party vandals in these circumstances

33. Yachuk v. Oliver Blais Co. (1949)A boy of nine persuaded a garage attendant to let him have a tin of petrol by a false tale that his mother’s car had run out of petrol some distance from the garage. The boy poured the petrol over some timber and then set it alight. The fire caused and explosion and the boy was seriously injured.Held: it was negligence on the part of the garage attendant to entrust the child with such a dangerous commodity as petrol

34. IV Discuss the following key terms. Work with a partner to compose your own definitions.duty of care standard of care breach of duty of carereasonable foreseeability of harm

35. V Complete the sentences with the words provided. You may have to change their form.attest contemplate deem entail frivolous omission suffice warranta. Being a medical doctor _________ a lot of responsibility.b. You don’t need to buy a gift. A simple birthday card will _________.c. She _________ the complex relationships between partners in the law firm she was working in and concluded that a firmer approach was _________.d. Three witnesses were called to _________ to her integrity and loyalty.e. Richard’s failure to report the fact that he had lost the case file was _________ a serious _________ on his part and he was subsequently dismissed from employment.f. Do you think that suing a supermarket chain for negligence because you have found a worm in the lettuce you bought there would be considered a _________ lawsuit?

36. VI Read the section entitled ‘Causation’ and decide whether the following statements are true (T) or false (F). If false, provide the correct information. a. A defendant whose negligence has been proved can still be found not liable for negligence.b. The aim of the 'but for' test is to connect the defendant with the negligent act.c. If damage is claimed to have occurred through negligence, but might also have occurred from other, non-tortious, sources, a negligence claim will be dismissed.d. The negligent risk and the tortious risk are one and the same.e. The amount of compensation may be affected by risks unrelated to negligence.f. A natural event does not affect liability for negligence.g. In product liability, only the original manufacturer can be found automatically liable for damage caused by a faulty product.

37. VIII Match the expressions in the left column with synonymous expressions in the right column. bearprobablyengage inb. happen, take placeliablec. carry; assumelikelyd. suffer; support as just or truemateriallye. significantlyoccurf. do or take part in somethingremoteg. legally responsiblesustainh. far away, distant

38. DISCUSSION IX Read the following case summaries and decide whether the defendant was liable for negligence. Consider the elements of negligence discussed above. Can all the necessary elements be established in these cases? Under what conditions? Should damages cover the entirety or only part of the injury?

39. Case summary: Blyth v Birmingham Waterworks (1856) a. During a severe frost, a hydrant broke in a Birmingham street, causing a flood which affected a number of ground-floor and basement flats. The frost was of a severity hardly to be expected in the region. The claimants were the owners of the flooded flats, and the defendants the water supply company. Blyth v Birmingham Waterworks (1856)

40. JudgementIn establishing the basis of the case, Baron Alderson made what has become a famous definition of negligence: „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. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done”.The court found that the severe frost could not have been in the contemplation of the Water Works. They could only have been negligent if they had failed to do what a reasonable person would do in the circumstances. Birmingham had not seen such cold in such a long time, and it would be unreasonable for the Water Works to anticipate such a rare occurrence.

41. Case summary: Bolam v Friern Hospital Management Committee (1957)b. The claimant received electroconvulsive therapy. He had not been given muscle relaxants during the procedure nor had he been restrained. He suffered substantial injuries from the treatment. Administering muscle relaxants and restraining patients was not standard practice in those times due to associated risks. Bolam v Friern Hospital Management Committee (1957)

42. JudgmentBolam v Friern Hospital Management Committee [1957] 1 WLR 582 is a case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. doctors): the Bolam test. „Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".

43. JudgmentMcNair J at the first instance noted that expert witnesses had confirmed, much medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, if he fails to do what a reasonable person would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression," said McNair J.

44. JudgmentThe jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent in the way they carried out the treatment. That passage is quoted very frequently, and has served as the basic rule for professional negligence over the last fifty years

45. Case summary: Jobling v Associated Dairies (1980)c. The claimant, a butcher, had an accident at work which caused a slipped disk. The accident would not have happened but for his employer’s negligence. His working capacity was lowered by 50%. He subsequently developed an unrelated spinal disease, which made him wholly incapacitated. He sued his employer for damages for full incapacitation. Jobling v Associated Dairies (1980)

46. JudgmentRatio: The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly disabled him. Held: The supervening disease had to be taken into account, effectively in reduction of the claimant’s damages, since ‘the court must provide just and sufficient but not excessive compensation, taking all factors into account.’

47. Case summary: McKew v Holland, Hannen & Cubitts & Co (1969)d. The claimant sustained an injury at work due to his employer’s negligence. As a result, his left leg would sometimes give way beneath him. On a subsequent occasion, he was descending a steep staircase that had no handrail. When he felt his leg beginning to give way, he jumped and broke his ankle. He sued his employer for the full extent of the injury. McKew v Holland, Hannen & Cubitts & Co (1969)

48. JudgmentThe claimant sustained an injury at work due to his employer's breach of duty. He strained his back and hips and his leg was prone to giving way. Whilst in this state he attempted to climb down a steep concrete staircase without a handrail unaided. He got part way down and felt his leg give way so he jumped 10 steps to the bottom. He suffered a fractured right ankle and was also left with a permanent disability. The defendant accepted liability for the injury sustained during his employment but disputed liability for the second injuries resulting from the claimant's action in jumping down the stairs.Held:The claimant's action amounted to a novus actus interveniens because his action in attempting to climb the steps unaided knowing that his leg might give way was unreasonable. The defendant was therefore not liable for the injuries resulting from the incident on the stairs.

49. X The following are two medical negligence cases. Consider what you have learned about the principles of proving negligence and give your opinion on what the rulings should bea. Robinson v Post Office (1974)The claimant, Mr. Robinson, was an employee of the Post Office. One day, as he was descending a ladder at a work facility he slipped and fell down, wounding his shin. It turned out that the ladder was greasy from the oil that was leaking from a machine located above. The leak was a result of his employer’s negligence. Several hours later he went to see a doctor and was administered an anti-tetanus injection. At the time the anti-tetanus serum was administered in two doses, the second following the first by 30 minutes after it could be confirmed that no adverse reaction occurred. However, the doctor did not wait for 30 minutes, administering the second dose after only 1 minute. A reaction occurred 9 days later in the form of encephalitis, which caused brain damage to the claimant. The claimant sued his employer for damages with regard to the brain damage suffered.

50. JudgmentIssueWas the doctor’s negligent act an intervening act, therefore negativing liability of the companyDecisionNoReasoningEven if the doctor had followed the guidelines, no reaction would have been visible after 30 minutes so the employer was still liable for the the reaction to the treatment

51. Medical negligenceIs the defendant liable for negligence? If so, is he wholly liable? How would you assess the conduct of the doctor? Was the doctor negligent? How does his conduct affect liability in this case?

52. b. Barnett v Chelsea & Kensington Hospital (1968)Three men drank tea after a New Year’s Eve party. Soon afterwards all three started vomiting. This condition continued for three hours and they walked to the casualty department of the defendant hospital. The casualty officer on duty was himself ill and was only available on the telephone. The nurse described the symptoms to the doctor who assessed that their condition was not very serious and said that they should go home to bed and see their own doctors. The men left. About four hours later one of the men died. The cause was later established to be arsenical poisoning. The claimant was the spouse of the deceased man. In their defence, the Hospital claimed that even if the casualty officer had seen him and admitted him to the hospital the man would still have died. The time necessary for arsenic poisoning to be determined and the proper antidote administer would have by far exceeded four hours. 

53. JudgmentMr Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him.Held:The hospital was not liable as the doctor's failure to examine the patient did not cause his death. Introduced the 'but for' test ie would the result have occurred but for the act or omission of the defendant? If yes, the defendant is not liable.

54. Barnett v Chelsea & Kensington Hospital (1968)Was the casualty officer negligent? Think about the duty of care and the standard thereof. Do you think the standard was breached? Did the Hospital present a valid defence?

55. JudgmentMr Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him.Held:The hospital was not liable as the doctor's failure to examine the patient did not cause his death. Introduced the 'but for' test ie would the result have occurred but for the act or omission of the defendant? If yes, the defendant is not liable.

56. RESEARCH: Choose one of the following research tasks and prepare a class presentation or report.1. The ground-breaking case that laid the foundation for the law of negligence in England is Donoghue v Stevenson (1932). Find more information on the case and discuss it with a partner.

57. Research 2. Liebeck v McDonald’s Restaurants (1994) is a famous negligence-related personal injury case from the United States. It has also gained a reputation of a frivolous lawsuit. Find out more about the facts of the case and the procedural history and report to class. How frivolous do you think the case is?

58. Research3. Strict liability is prescribed by statute. Apart from the above mentioned product liability regulations, the Occupiers’ Liability Act 1957 regulates a ‘common duty of care’ owed to lawful visitors of premises. The 1984 version of the Act also includes limited liability for trespassers to the premises. Find out more about the Act, its provisions, enforcement and related case-law and report to class.

59. Research4. The text ‘Medical negligence explained’ makes a reference to the following associations: the Law Society Clinical Negligence Panel, Action against Medical Accidents (AvMA), and the Association of Personal Injury Lawyers (APIL). Find out more about these organisations and report to class.

60. Research5. If you have the opportunity, find out more about how medical negligence cases are handled by Croatian lawyers. Do Croatian lawyers offer the same services and advice as referred to in the text above? What can you find out about litigation of such claims in the Croatian courts?

61. Donoghue v. Stevenson (1932)On 26 Aug. 1928, Mrs May Donoghue of Glasgow left her home to make the short journey into Paisley, a neighbouring town. There she met a friend at Minchella’s cafe at 1 Wellmeadow Street. Her friend ordered and paid for an ice-cream and a bottle of ginger beer.

62. Donoghue v. Stevenson (1932)The ginger was manufactured by Mr David Stevenson of Paisley. It came in an ‘opaque’ bottle, so no one was able to see what was in the bottle.’.

63. Donoghue v. Stevenson (1932)When Mrs Donoghue’s friend was pouring out the contents of the bottle, they saw floating out of the bottle what seemed to be partly decomposed remains of a snail. Mrs Donoghue claimed she was made ill by what she had seen. She had medical treatment three days later for gastro-enteritis, and again three weeks later, at the Glasgow Royal infirmary. She also claimed that she had suffered from ‘nervous shock

64. Donoghue v. Stevenson (1932)There was no contractual relationship between Mr Minchella and Mrs Donoghue. The only person she could sue was David Stevenson, the manufacturer of the ginger beer. The question was, on what grounds?

65. Donoghue v. Stevenson (1932)Mrs Donoghue’s solicitor, Walter Leechman, decided to proceed with the case, even though there was no legal precedent for such an action. The basis of the claim was that any manufacturer of a product intended for human consumption must be liable to the consumer for any damage resulting from a lack of reasonable care to ensure that the product is fit for consumption.

66. Donoghue v. Stevenson (1932)The case proceeded through various appeals to the House of Lords. The Lords decided in favour of Mrs Donoghue, a new precedent was established and a lady who said she was ‘not worth five pounds in all the world’ became the reason why, these days, millions of pounds have been won by claimants based on the tort of negligence.

67. Donoghue v. Stevenson (1932)JudgmentLord Atkin: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in 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 contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”