Negligence Law of Tort Negligence “The omission to
Description: Negligence Law of Tort Negligence The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or something that a prudent and reasonable man would
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slide1. Negligence Law of Tort<br>
slide2. Negligence “The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or something that a prudent and reasonable man would not do” Baron Anderson (Blyth v Birmingham Waterworks)
There are three main components that need to be established in order to find someone legally accountable for negligence
Duty of Care
Breach of Duty
Damage/s as a result of the Breach (causation + remoteness)<br>
slide3. Damage as a result of the Breach (causation & remoteness) There are number of elements to causation & remoteness
Causation in fact; ‘but for’ test,
Multiple causes
Intervening acts
Remoteness of damage – the test of foreseeability
Remoteness of damage – the kind of damage must be reasonably foreseeable
Remoteness of damage – take your victim as you find him
Remoteness of damage – a recent example of how a judge should apply the principle of reasonable foreseeability<br>
slide4. Causation in fact; ‘but for’ test Barnett v Chelsea and Kensington Hospital Management Committee (1968)
Mr 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.<br>
slide5. Causation in fact; ‘but for’ test Chester v Afshar (2004)
The claimant had suffered back pain for 6 years. This became quite severe and at times she was unable to walk or control her bladder. An MRI scan revealed that there was disc protrusion into her spinal column and she was advised to have surgery. The surgery carried a 1-2% risk that even if it was performed without negligence the operation could worsen rather than improve her condition.
Her consultant neurosurgeon Mr Afshar was under a duty to warn her of this risk although he failed to do so.
The claimant had the operation and unfortunately it worsened her condition. The trial judge found that the surgeon had not been negligent in performing the operation but his failure to warn her of the risk was a breach of duty.
Here the court allowed her claim even though the harm might have happened anyway.<br>
slide6. Multiple causes Where there is more than one cause of harm the question is ‘has this breach materially increased the risk of harm?’ – McGhee v NCB 1973.
If several Ds materially increase the risk of harm then each can be fully liable even if the specific cause cannot be identified – Fairchild v Glenhaven Funeral Services Ltd 2002;
More recently McCarthy v Marks and Spencer 2014 The state of knowledge that existed at the time both in 1967 and subsequently before 1984 and the level of exposure that the deceased was likely to have experienced were of particular significance.
Damages may be apportioned between Ds – Barker v Corus 2006 A defendant was a wrong-doer and should not be allowed to escape liability altogether but he should not be liable for more than the damage which he caused. Since this was a case in which science could deal only in probabilities, the law should accept that position and attribute liability according to the probabilities.<br>
slide7. McGhee v National Coal Board The claimant worked at the defendant's brick works. His normal duties did not expose him to much dust but he was then asked to work on the brick kilns in a hot a dusty environment. The defendant was in breach of duty in not providing washing and showering facilities. The claimant thus had to cycle home still covered in the brick dust. The claimant contracted dermatitis.
There were two possible causes: the brick dust he was exposed to during the course of his employment which was not attributable to a breach of duty and the brick dust he was exposed to on his journey home which was attributable to a breach. Held: The claimant only had to demonstrate that the dust attributable to the breach of duty materially increased the risk of him contract dermatitis. Lord Salmon:
My Lords, I would suggest that the true view is that, as a rule, when it is proved, on a balance of probabilities, that an employer has been negligent and that his negligence has materially increased the risk of his employee contracting an industrial disease, then he is liable in damages to that employee if he contracts the disease notwithstanding that the employer is not responsible for other factors which have materially contributed to the disease.<br>
slide8. Fairchild v Glenhaven Funeral Services Ltd 2002 This was a conjoined appeal involving three claimants who contracted mesothelioma, a form of lung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single fibre of asbestos. The condition does not get worse the greater the exposure. Once the fibre has embedded into the lung it can lay dormant for 30-40 years before giving rise to a tumour which can then take 10 years to kill. It will be only the last 1-2 years where a person may experience symptoms. By this time it is too late to treat. Each of the claimants had been exposed to asbestos by a number of different employers. They were unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre. Held: If the claimants could demonstrate that one employer had materially increased the risk of contracting mesothelioma they were entitled to claim full compensation from that one employer.<br>
slide9. McCarthy v Marks & Spencer [2014] The judge was satisfied the deceased’s mesothelioma was caused by exposure to asbestos at work. The judge was clear that the deceased contracted mesothelioma while he was carrying out work for the third party at the defendant’s stores sometime between 1967 and 1984 (when he began to wear protective respiratory equipment and clothing).
By July 1984, the risks of asbestos were firmly recognised, leading to the implementation by the defendant of guidance for contractors working at the premises.
The judge noted the experts agreed that the levels of asbestos dust to which the deceased would have been exposed while surveying and inspecting would have been less than the TLV at the time. The judge concluded that the phrase ‘so far as is reasonably practicable’ contained in EH10 in 1976 did not extend, by the standards of the time, to requiring protective respiratory equipment and clothing to be used while the deceased was carrying out inspections.
Accordingly, the defendant was not in breach of its common duty of care under section 2(2) of the Occupiers Liability Act 1957 to take such care as was reasonable to see that the visitor would be reasonably safe in the circumstances at the time.
The claim thus failed in relation to both exposure in 1967 and in relation to inspecting store premises up until 1984.
The importance of contemporary guidance documents in establishing the knowledge, and thus standard of care, required of a defendant in relation to asbestos.<br>
slide10. Novus actus interveniens: intervening acts If a second possible cause occurs after the first, liability usually remains with the first D – Performance Cars 1962; unless the second cause is unforeseeable, an intervening act which breaks the chain of causation.
What types of intervening act occurred in the following cases?
McKew v Holland 1969
An intervening act of the claimant.
Carslogie v Royal Norwegian Government 1952
An intervening act of nature.
Knightley v Johns 1982
An intervening act of a third party. Published by Hodder Education. © 2011 Sally Russell<br>
slide11. 4) Remoteness of damage – the test of foreseeability If harm is not foreseeable it will be ‘too remote’ from the breach and not claimable
The Wagon Mound case 1961.<br>
slide12. 5) Remoteness of damage – the kind of damage must be reasonably foreseeable It is not necessary to foresee the full extent of the harm – Bradford v Robinson Rentals 1967.
It does not matter that harm occurred in an unforeseeable way, as long as the type of harm is foreseeable – Hughes v The Lord Advocate 1963.<br>
slide13. 6) Remoteness of damage and the ‘thin skull rule’ What is the thin skull rule?
If V has a particular disability which means they suffer more serious harm, D is liable for the full extent, even though a person without that disability would not have been so seriously harmed – Smith v Leech Brain 1962.<br>
slide14. 7 . Remoteness of damage – a recent example Gabriel v Kirklees Metropolitan Council (2004)
Claimant was a 6 yr old walking past a building sit. Children were playing on the site and threw mud at the claimant; he was hit in the eye
4 Q’s asked;
Was it RF that children would go onto the site?
Whilst on the site was it RF that they would play there?
Was it RF that in playing the might throw whatever came to hand?
Was it RF that they might cause injury to those passing by?<br>
slide15. June 2013<br>
slide16. June 2013 Brief explanation of factual causation – but for the defendant's breach of duty, the consequence would not have occurred, e.g. Barnett v Chelsea & Kensington Hospital
Brief explanation of the meaning of remoteness of damage – reasonable foreseeability test, e.g. The Wagon Mound
Explanation of the effect that the kind of damage/method of damage has on remoteness, e.g. Doughty v Turner Manufacturing, Hughes v Lord Advocate, Bradford v Robinson Rentals
Explanation of the effect of the thin skull rule, e.g. Smith v Leech Brain.
NB If no factual causation - max 6. If no legal causation - max 4.<br>
slide17. June 2014<br>
slide18. Timed attempt! 8 marks = 8 minutes 18<br>
slide20. AQA Exam
Mark
Scheme 20<br>
slide2. Negligence “The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or something that a prudent and reasonable man would not do” Baron Anderson (Blyth v Birmingham Waterworks)
There are three main components that need to be established in order to find someone legally accountable for negligence
Duty of Care
Breach of Duty
Damage/s as a result of the Breach (causation + remoteness)<br>
slide3. Damage as a result of the Breach (causation & remoteness) There are number of elements to causation & remoteness
Causation in fact; ‘but for’ test,
Multiple causes
Intervening acts
Remoteness of damage – the test of foreseeability
Remoteness of damage – the kind of damage must be reasonably foreseeable
Remoteness of damage – take your victim as you find him
Remoteness of damage – a recent example of how a judge should apply the principle of reasonable foreseeability<br>
slide4. Causation in fact; ‘but for’ test Barnett v Chelsea and Kensington Hospital Management Committee (1968)
Mr 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.<br>
slide5. Causation in fact; ‘but for’ test Chester v Afshar (2004)
The claimant had suffered back pain for 6 years. This became quite severe and at times she was unable to walk or control her bladder. An MRI scan revealed that there was disc protrusion into her spinal column and she was advised to have surgery. The surgery carried a 1-2% risk that even if it was performed without negligence the operation could worsen rather than improve her condition.
Her consultant neurosurgeon Mr Afshar was under a duty to warn her of this risk although he failed to do so.
The claimant had the operation and unfortunately it worsened her condition. The trial judge found that the surgeon had not been negligent in performing the operation but his failure to warn her of the risk was a breach of duty.
Here the court allowed her claim even though the harm might have happened anyway.<br>
slide6. Multiple causes Where there is more than one cause of harm the question is ‘has this breach materially increased the risk of harm?’ – McGhee v NCB 1973.
If several Ds materially increase the risk of harm then each can be fully liable even if the specific cause cannot be identified – Fairchild v Glenhaven Funeral Services Ltd 2002;
More recently McCarthy v Marks and Spencer 2014 The state of knowledge that existed at the time both in 1967 and subsequently before 1984 and the level of exposure that the deceased was likely to have experienced were of particular significance.
Damages may be apportioned between Ds – Barker v Corus 2006 A defendant was a wrong-doer and should not be allowed to escape liability altogether but he should not be liable for more than the damage which he caused. Since this was a case in which science could deal only in probabilities, the law should accept that position and attribute liability according to the probabilities.<br>
slide7. McGhee v National Coal Board The claimant worked at the defendant's brick works. His normal duties did not expose him to much dust but he was then asked to work on the brick kilns in a hot a dusty environment. The defendant was in breach of duty in not providing washing and showering facilities. The claimant thus had to cycle home still covered in the brick dust. The claimant contracted dermatitis.
There were two possible causes: the brick dust he was exposed to during the course of his employment which was not attributable to a breach of duty and the brick dust he was exposed to on his journey home which was attributable to a breach. Held: The claimant only had to demonstrate that the dust attributable to the breach of duty materially increased the risk of him contract dermatitis. Lord Salmon:
My Lords, I would suggest that the true view is that, as a rule, when it is proved, on a balance of probabilities, that an employer has been negligent and that his negligence has materially increased the risk of his employee contracting an industrial disease, then he is liable in damages to that employee if he contracts the disease notwithstanding that the employer is not responsible for other factors which have materially contributed to the disease.<br>
slide8. Fairchild v Glenhaven Funeral Services Ltd 2002 This was a conjoined appeal involving three claimants who contracted mesothelioma, a form of lung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single fibre of asbestos. The condition does not get worse the greater the exposure. Once the fibre has embedded into the lung it can lay dormant for 30-40 years before giving rise to a tumour which can then take 10 years to kill. It will be only the last 1-2 years where a person may experience symptoms. By this time it is too late to treat. Each of the claimants had been exposed to asbestos by a number of different employers. They were unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre. Held: If the claimants could demonstrate that one employer had materially increased the risk of contracting mesothelioma they were entitled to claim full compensation from that one employer.<br>
slide9. McCarthy v Marks & Spencer [2014] The judge was satisfied the deceased’s mesothelioma was caused by exposure to asbestos at work. The judge was clear that the deceased contracted mesothelioma while he was carrying out work for the third party at the defendant’s stores sometime between 1967 and 1984 (when he began to wear protective respiratory equipment and clothing).
By July 1984, the risks of asbestos were firmly recognised, leading to the implementation by the defendant of guidance for contractors working at the premises.
The judge noted the experts agreed that the levels of asbestos dust to which the deceased would have been exposed while surveying and inspecting would have been less than the TLV at the time. The judge concluded that the phrase ‘so far as is reasonably practicable’ contained in EH10 in 1976 did not extend, by the standards of the time, to requiring protective respiratory equipment and clothing to be used while the deceased was carrying out inspections.
Accordingly, the defendant was not in breach of its common duty of care under section 2(2) of the Occupiers Liability Act 1957 to take such care as was reasonable to see that the visitor would be reasonably safe in the circumstances at the time.
The claim thus failed in relation to both exposure in 1967 and in relation to inspecting store premises up until 1984.
The importance of contemporary guidance documents in establishing the knowledge, and thus standard of care, required of a defendant in relation to asbestos.<br>
slide10. Novus actus interveniens: intervening acts If a second possible cause occurs after the first, liability usually remains with the first D – Performance Cars 1962; unless the second cause is unforeseeable, an intervening act which breaks the chain of causation.
What types of intervening act occurred in the following cases?
McKew v Holland 1969
An intervening act of the claimant.
Carslogie v Royal Norwegian Government 1952
An intervening act of nature.
Knightley v Johns 1982
An intervening act of a third party. Published by Hodder Education. © 2011 Sally Russell<br>
slide11. 4) Remoteness of damage – the test of foreseeability If harm is not foreseeable it will be ‘too remote’ from the breach and not claimable
The Wagon Mound case 1961.<br>
slide12. 5) Remoteness of damage – the kind of damage must be reasonably foreseeable It is not necessary to foresee the full extent of the harm – Bradford v Robinson Rentals 1967.
It does not matter that harm occurred in an unforeseeable way, as long as the type of harm is foreseeable – Hughes v The Lord Advocate 1963.<br>
slide13. 6) Remoteness of damage and the ‘thin skull rule’ What is the thin skull rule?
If V has a particular disability which means they suffer more serious harm, D is liable for the full extent, even though a person without that disability would not have been so seriously harmed – Smith v Leech Brain 1962.<br>
slide14. 7 . Remoteness of damage – a recent example Gabriel v Kirklees Metropolitan Council (2004)
Claimant was a 6 yr old walking past a building sit. Children were playing on the site and threw mud at the claimant; he was hit in the eye
4 Q’s asked;
Was it RF that children would go onto the site?
Whilst on the site was it RF that they would play there?
Was it RF that in playing the might throw whatever came to hand?
Was it RF that they might cause injury to those passing by?<br>
slide15. June 2013<br>
slide16. June 2013 Brief explanation of factual causation – but for the defendant's breach of duty, the consequence would not have occurred, e.g. Barnett v Chelsea & Kensington Hospital
Brief explanation of the meaning of remoteness of damage – reasonable foreseeability test, e.g. The Wagon Mound
Explanation of the effect that the kind of damage/method of damage has on remoteness, e.g. Doughty v Turner Manufacturing, Hughes v Lord Advocate, Bradford v Robinson Rentals
Explanation of the effect of the thin skull rule, e.g. Smith v Leech Brain.
NB If no factual causation - max 6. If no legal causation - max 4.<br>
slide17. June 2014<br>
slide18. Timed attempt! 8 marks = 8 minutes 18<br>
slide20. AQA Exam
Mark
Scheme 20<br>