Tort of Negligence

In order to bring a cause of action for the tort of negligence

Lochgelly Iron and Coal Co. v Mc Mullan @ Fairchild v Glenhaven Funeral Services
– 4 elements that must be proved

- duty of care
- breach
- causation
- remoteness

Duty of Care

This area deals with the situations in which a defendant can be said to owe a duty to not cause harm to a plaintiff by his negligent conduct.

Donoghue v Stevenson [1932] AC 562
Lord Atkin :

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyers 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 when I am directing my mind to the acts or omissions which are called in question....”

Anns v Merton London Borough Council [1978] AC 728 at 751
revised the test

Lord Wilberforce:

“...now ...it is not necessary to bring the facts of the situation in which a duty of care has been held to exist ... rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises.

Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty of the class of person to whom it is owed or to the damage to which a breach of it may give rise...”

Criticism of the revision was given in the following cases

- Yuen Kun Yew v Attorney General of Hong Kong [1988] 1 AC 175
- Governors of the Peabody Donation Fund v Sir Lindsay Parkinson [1995] AC 210
- Hill v Chief Constable of West Yorkshire [1989] 1 AC 53
- Richardson v West Lindsey District Council (1990) 1 All ER 296, CA
- Van Oppen v Clerk to the Bedford Charity Trustees (1990) WLR 235 CA
- Murphy v Brentwood District Council [1991] 1 AC 398

The current test
Caparo Industries v Dickman [1990] 2 AC 605
Lord Bridge;

... in addition to the foreseeability of damage there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose duty of a given scope upon the one party for the benefit of the other.

But ... the concepts of proximity and fairness ... amount to in effect little more then convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.

the law has now moved in the direction of attaching greater significance to the more traditional catagorisation of distinct and recognisable situations as guides to the existence... One of the most important distinctions always to be observed lies in the laws essentially different approach to the different kinds of damage which one party may have suffered

It is one thing to owe a duty of care to avoid causing injury to the person or property of others. It is another to avoid causing other to suffer purely economic loss.

X v Bedfordshire County Council [1995] 2 AC 633
Marc Rich & Co AG v Bishop Rock Marine Co Ltd. [1996] AC 211

The Supplementary test

the use of voluntary assumption of responsibility as a test to determine the issue of duty.
White v Jones [1995] 2 WLR 187 – Lord Goff

• Factors taken into account today in deciding the issue of duty
• the type of loss suffered – Caparo Industries v Dickman
• whether imposition of duty would lead to a protective duty – Hill v Chief Constable of West Yorkshire
• liability to lawyers – Rondel v Worsley [1969] AC 198
  

1. Factors affecting public authorities
   diversion of funds and energy into litigation and the moral behind using public funds as a source of compensation Anns v Merton LBC c/f - Yuen Kun Yeu v AG for Hong Kong
2. Duty owed should be to the public generally rather than individuals - Jones v Dept. of Employment [1989] QB 1 - if individual rights affected, seek alternative remedies
   The complexities of the law in relation to the exercise of a statutory power

Most public bodies carry out supervisory or regulatory function, unless there has been a voluntary assumption of responsibility there should be no duty
Welsh v Chief Constable of Merseyside Police [1993] 1 All ER 577
John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority and others [1996] The Times 22 May
Church of Jesus Christ of Letter-Day Saints (Great Britain) v Yorkshire Fire and Civil Defence Authority [1997] 2 All ER 865
OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 c/f Capital and Counties plc v Hampshire County Council and others; Digital Equipment Co Ltd v Hampshire County Council and others [1997] 2 All ER 865; and Kent v Griffiths and Others [No 2] February 3 2000
Swinney v Chief Constable of Northumbia Police [1996] 3 All ER 449
Clarke v Crew and another [1999] 149 NLJ 899
Watson v British Boxing Board of Control Ltd and Another [2000], The Times, 12 October


Conclusion
In the case of Bank of Credit & Commerce International (Overseas) Ltd (in liquidation) & Another v Price Waterhouse & Another (1998) the Court of Appeal held that the liability of accountants and other professional advisers for economic loss caused by reason of their alleged negligence to persons other than their clients had been the subject of a substantial number of leading cases. It seemed that the search for a principle or test had followed three separate but parallel paths.

The “threefold test” stated by Lord Griffiths in Smith v Eric S. Bush ([1990] 1 AC 83) and considered in Caparo Industries plc v Dickman
The “assumption of responsibility” test was applied in White v Jones
The adoption of an incremental approach, recognised by Lord Bridge of Harwich in Caparo and which received further support in Murphy v Brentwood District Council ([1991] 1 AC 398). That approach ensured that developments in the law would take place in measured steps.

The fact that all those approaches had been used and approved by the House of Lords in recent years suggested that it could be useful to look at any new set of facts by using each of the three approaches in turn. If the facts were properly analysed and the policy considerations correctly evaluated the several approaches would yield the same result.
Breach of Duty

This deals with the instances when a person is said to have breached his duty of care. We will look at the standard that an individual ought to come up to and what are the factors that will determine whether he has come up to that standard.
1. what is the standard of care required of the defendant in law; and
2. has the defendant fallen below the standard that is demanded of him?

Standard of Care

The standard of care is of the reasonable man as stated in

Blyth v Birmingham Water Works [1856] 11 Exch 781 - Baron Alderson:

“Negligence is the omission to do something that 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”

Definition of a reasonable man - Hall v Brooklands [1933] KB 205

“A reasonable man is an ordinary man, an average man and the man on the clapham omnibus”

Whether the defendant has come up to this standard?

Factors that the court have developed in trying to decide the issue.

a) State of knowledge - Roe v Minister of Health (1954) 2 QB 66
b) Magnitude of risk - two elements make up this factor
i. The greater risk of harm - the real likelihood in which the injury can be inflicted - Bolton v Stone [1951] AC 850
ii. The risk of greater harm i.e. the seriousness of the injury that is risked - Paris v Stepney [1951] AC 367
c) Practicability of Precautions - Latimer v AEC Ltd. [1953] AC 643
d) Utility of conduct - Watt v Hertfordshire CC [1954] 1 WLR 835

The Factors set out above are to be considered as guidelines to enable the courts to decide the fault issue. The difficulty is to know what weight to give to any one factor in any given case, a delicate balance is to be achieved by the judge.

Special Categories

The Professionals

Bolam v Friern Hospital Management [1957] 2 All ER 118 Mc Nair J:

“The test is the standard of ordinary skilled men exercising processing to have that skill.”

The recent House of Lords decision of Bolitho v City & Hackney Health Authority [1997] 4 All ER 771 gives an explanation on the approach to professional negligence laid down in Bolam v Freirn Hospital Management Committee.

Whitehouse v Jordan [1981] 1 All ER 267 Court of Appeal; Lord Denning: Through a distinction between an error of clinical judgement and negligence he warned against what he saw as the dangers of imposing too high a standard of care upon doctors. However this was reversed by the House of Lords.

Wilsher v Essex AHA [1986] 3 All ER 801 - the Court of Appeal rejected the argument that a junior inexperienced doctor owes a lesser standard of care than a more experienced doctor.

Maynard v West Midlands Health Authority [1984] 1 WLR 634 - the House of Lords held that the courts were not required to choose between the schools of thought as long as the defendant could show that he acted in accordance with a standard that was accepted as proper by professional and competent people within his profession, that the defendant would be negligent.

Knight v Home Office [1990] 3 All ER 237 - the availability of resources is an important consideration.

Duty of Disclosure

If there is no disclosure, then consent is not given. The test to be used is still Bolam’s test.
Chatterton v Gerson [1981] 1 QB 432, Bristow J - once the patient is informed in “broad terms” of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of action on which to base a claim for failure to go into risk and implications is negligence, not trespass.

The risks of the operation - which of the two test to adopt? “the medical standard” or the “informed consent”.

The Medical Standard - the medical profession is permitted to set its own standards of disclosure without supervision by the court. It is enough for a defendant to avoid liability if he shows that at the time of the treatment there was a body of responsible medical opinion albeit a minority one, that would have done what he did. If the court accepts that there was such a body of medical opinion it will not be entitled to choose between the differing schools of thought.

Informed Consent - If the patient was not given sufficient information upon which he could reach an informed decision whether to accept the treatment proposed or not then he was not able to give a valid consent.

The English test - Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 – the House of Lords, albeit by a bare majority, endorsed the medical test, though adding a proviso that the judge might in certain circumstances come to the conclusion that the disclosure of a particular risk was so obviously necessary to an informed choice on the part of a patient that no reasonable prudent medical man would fail to make it.

Nb: Chester v Afshar [2004] UKHL 41 – the House of Lords held that ‘in modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.’

The duty to answer questions

The doctor must answer as truthfully and as fully as the questioner requires. This duty has been said to apply to questions asked after treatment.

Non-therapeutic context

This question arose in Gold v Haringey Health Authority [1987] 1 FLR 125. The Court of Appeal said that the distinction the judge drew between therapeutic contexts, where the Bolam principle applied, and non-therapeutic contexts, such as contraceptive counselling, was artificial and contrived, and ran counter to the intent of the Sidaway decision.

The Significance of Rogers v Whitaker [1992] 109 ALR 625

The decision of the High Court of Australia where the High Court declared that, at least in relation to cases of non-disclosure of medical risk, the Bolam principle was no longer to be applied. Instead a new principle was to be applied in these cases. This new principle enunciated by the High Court in Rogers v Whitaker (at p. 51) is that:

“while evidence of acceptable medical practices is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to the paramount consideration that a person is entitled to make his own decisions about his life.”

It is difficult to say whether the new principle enunciated by the High Court in place of the Bolam principle will be extended further so that even in cases of diagnosis and treatment

Does the Bolam test apply to other professions?

It has been applied to a firm of auctioneers and valuers in Luxmoore May v Messenger May Baverstock [1990] 1 All ER 1067. The same point was not made in the case of Philips v Whiteley [1938] 1 AER 566, where the issue was the standard of care to be expected of a jeweller carrying out ear piercing.


Children

Mc Hale v Watson [1966] 115 CLR 199 - Australian case: Kitton - the standard of care for a child is adjusted only for the child’s age, but is otherwise objective.”

Mc Ellistrum v Etches [1956] 6 DLR (2d) 1 - Canadian case Owen J used the subjective test.

- The position today: Mullin v Richards and another [1998] 1 All ER 920 - the question for the judge was not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant’s situation would have realised gave rise to a risk of injury, but whether an ordinarily prudent and reasonable child of the same age as the defendant in the defendant’s situation would have realised as much.

Proof of Breach

On the balance of probabilities. Any short cuts?

Section 11(1) Civil Evidence Act 1968 - allows the plaintiff to give as evidence any conviction that the defendant may have suffered or be made liable in criminal proceedings arising out of the same incident. This will shift the legal burden of proof to the defendant.

Res Ipsa Loquitor

The facts speak of themselves. This is thought to transfer the evidentiary burden to the defendant in appropriate circumstances. However, there is some controversy.

“The relevant principles were enunciated in the classical judgement of Earl CJ in Scott v London and St. Katherine Docks Co. (1865) 3 H & C 596, 601;

“Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it provides reasonable evidence, in absence of explanation by the defendants that the accident arose from want of care”

There are two interpretations to the consequence of pleading res ipsa loquitor.

In Henderson v Jenkins [1970] AC 282 and Bankway v South Wales Transport [1950] 1 All ER 392 the legal burden is said to shift to the defendant. However, this seems to have been rejected in Ng Chun Pui v Lee Chuen Tat [1988] RTR 298

Note also the recent decision by the Court of Appeal in Widdowson v Newgate Meat Corporation [1998]

Causation

This area deals with determining weather it was the defendant’s act that led to the plaintiff’s injuries. It deals with the basic rule of causation and situations where the basic rule cannot be strictly applied.

The basic rule : the “but for” test
Barnett v Kensington and Chelsea Hospital [ 1969] 1 QB 428

situations when the basic rule cannot be applied
The doctrine of loss chance

Hotson v East Berkshire Area Health Authority [1987] AC 750 - House of Lords decided for the defendant on the apparently straightforward ground that causation had not been established on the balance of probabilities. Lord Ackner stressed that this “was a relatively simple case concerned with the proof of causation, on which the plaintiff failed, because he was unable to prove, on the balance of probabilities, that his deformed hip was caused by the authority’s breach of duty in delaying over a period of five days a proper diagnosis and treatment”

Allied Maple Group Ltd. v Simmons & Simmons [1995] 1 WLR 1602 - Where the plaintiff’s loss resulting from the defendants negligence depended on the hypothetical action of a third party, either in addition to action by the plaintiff or independently of it, the issue fell within the sphere of quantification of damages dependant on the evaluation of the chance that the third party would have taken the action which would have enabled the loss to be avoided, rather then causation, where the plaintiff could only succeed if he showed on the balance of probabilities that the third party would have taken that action.

Melcome Gregg v Scott James Andrew Scoot [2005] UKHL 2 where the House of Lords held that there can be no claim for loss of chance in clinical negligence cases.

Successive causes – each causing the same damage
Baker v Willoughby [1970] AC 467 – held that the successive injury did not obliterate the impact of the first injury and as thus the liability of the first defendant continued

Jobling v Associated Dairies [1982] AC 794 – Baker was criticised but not overruled. It was held that taking into account arguments of contingencies the happening of the second incident must mean that the liability of the first defendant stops

Indeterminate Causes
Bonnington Castings Ltd v Wardlaw [1956] AC 613 – the House of Lords held that the claimant does not have to establish that the defendant’s breach of duty was the min cause of the damage provided that it materially contributed to the damage.

Mc Ghee v National Coal Board [1972] 3 All ER 1008 - appeared to take Bonnington Castings one-step further. Lord Wilberforce appears to accept the possibility that in the absence of conclusive proof of a link between fault and damage, liability may be imposed upon a defendant whose negligence increases the risk of a particular loss occurring, if that risk is subsequently realised.

Wilsher v Essex Area Health Authority [1988] 1 AC 1074 - the House of Lords rejected the approach set out by Lord Wilberforce, while there was sufficient evidence to make the necessary inference of causal link damage between fault and damage.

Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421, the Court of Appeal took the view that where the claimant’s case is based on proving a material contribution to the damage, the defendant is responsible only for that part of the damage to which his negligence is contributed

Fairchild v Glenhaven Funeral Services and Others; Fox v Spousal (Midlands) Limited; Matthews v Associated Portland Cement Manufacturers [1978] Limited and others [2002] UKHL 22 - That Wilsher was correctly decided, in that the McGhee principle should not be extended to apply where there were five possible candidates which could have caused the plaintiff’s blindness; but the grounds upon which McGhee was distinguished was unsatisfactory. The McGhee principle can apply notwithstanding that there are a number of tortfeasors. The ordinary approach to proof of causation is varied. On occasions the threshold ‘but for’ test of causal connection may be over-exclusionary. Where justice so requires, the threshold itself may be lowered. The law should treat a material increase in risk as sufficient to satisfy the causal requirements for liability.

Intervening causes
The Orapesa(1943) P32: as per Lord Wright

‘To break the chain of causation it must be shown that there is something which I will call ultraneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous orextrinsic.’

Novus actus interveniens can occur in three ways:

Conduct of a third party

Intervening criminal conduct - Smith v Littlewoods [1987] AC 241, Lamb v Camden London Borough Council (1981) QB 625; Al Kandari v Brown [1988] QB 665

Intervening careless conduct - Knightly v Jones [1982] QB 665

Intervening Natural Event - Carslogie Steamship Co v Royal Norwegian Government (1952) 1 AC 292

- Intervening Conduct by the Plaintiff - McKew v Holland & Hennen & Cubitts [1969] 3 All ER 162; Wierland v Cyril Lord Carpets (1969) 3 All ER 1006; Emeh v Kensington and Chelsea AHA (1985) QB 1012; Reeves v Commissioner of Police of the Metropolis [1998] 2 All ER

Remoteness

This area basically deals with the type of loss that can be claimed by the plaintiff, essentially where the loss is not foreseeable the courts will not allow for a claim.

The basic rule
The Wagon Mound [1961] AC 388 - defendants were not liable in negligence because they could not reasonably have foreseen

Foreseeable type of harm - Bradford v Robinson Rentals Ltd [1967] 1 All ER 267; Malcolm v Broadhurst [1970] 3 All ER 508; Tremain v Pike [1969] 3 All ER 1303

The means by which harm was caused - Hughes v Lord Advocate [1963] AC 837

Measurement of damage - Liesbosch (Dredger) v Edison [1933] AC 448

The “eggshell skull”
- Brice v Brown [1984] 1 All ER 997
- Smith v Leech Brain & Co. Ltd [1962] 2 QB 405