1

[NEGLIGENCE IN TORT]
[Duty of Care]
The tort of negligence has been defined by Winfield and Jolowicz in the following term Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. !uty of care in Donoghue v Stevenson [1932] was defined as e"ercising such care as is due in such #acts or omissions$ which one can reasonably foresee that would be likely to in%ure persons so directly affected that he ought to reasonably to ha&e them in contemplation# t !a"es #$ear that n res%e#t of %hys #a$ har!& a 'efen'ant o(es a 'uty of #are to those he #an reasona)$y foresee as $ "e$y to )e affe#te' )y h s a#t ons and [Ca%aro In'ustr es v D #"!an *199+,] the 'ouse of (ords referred ) *three+ situations need to pro&e by the ,laimant in regard to duty of care where three things must be e&ident1. .t was reasonably foreseeable that a person in the claimant$s position would be in%ured. /. There was sufficient pro"imity between the parties. ). .t is fair, %ust and reasonable to impose liability. There is no single case identified with this test, but one of its best e"planations is in 0,aparo .ndustries & !ickman *1112+3. There is a particularly helpful discussion of the test by 4ingham (J in the ,ourt of 5ppeal in the same case- 0,aparo .ndustries & !ickman3. Notice that the decision of the. 6 *four+ tests1+ the neighbour principle. /+ a re&ised test *(ord Wilberforce+ )+ the current test- foresight, pro"imity and fairness 6+ an alternati&e test- assumption of responsibility These tests are of most use when the law is uncertain. These are concepts that %udges use when deciding whether or not a duty of care ought to be recognized in new situations. 7nce a duty situation is recognized, the test in a sense drops out of the picture. 8o, in an e"amination conte"t, there is no need to go through the ,aparo test unless either the situation is a no&el one, where there are no clear precedents, or you are trying to argue that the law ought to be changed. .f the 9uestion you are answering is about a motorist knocking down a pedestrian, the duty of care is established by many pre&ious cases and there is no need to go through the tests for establishing a duty afresh. It see!s that D has a#te' n a !anner n (h #h the reasona)$e !an (ou$' not have a#te'& there)y esta)$ sh ng a )rea#h of 'uty& g v ng r se to $ a) $ ty n neg$ gen#e so $ong as the 'a!age suffere' )y others s not too re!oteDonoghue v Stevenson. Two ladies in 8cotland were at a caf:, drinking some ginger beer from an opa9ue bottle *which means that you could not &iew the contents through the bottle+. 8ome ginger beer was poured into each

/ of the glasses and consumed. When the lady went to pour out the remainder of the ginger beer, something slimy and &ery unpleasant came out with it. .t was said that there was a decomposing snail in the bottle. .t is possible that the lady who had purchased the ginger beer could ha&e sued the owner of the caf:, as she would ha&e had a contract with the caf: for the purchase of the ginger beer. 'owe&er, she decided to sue the manufacturer of the drink instead. The manufacturer entered an initial ob%ection to the law suit stating that, e&en if the facts as alleged by the lady were true, there would still be no legal obligation from the manufacturer to the consumer. There was no contract between them. There had been no sale or e"change between them, the manufacturer had sold the be&erage to the caf: owner. 8o, the matter went to court to test out the legal ob%ection. This procedure enabled the sa&ing of time and money on needless claims. .f the ob%ection was successful, then there would be no need to call witnesses etc. .f the ob%ection was not successful, then the matter could be set down for trial, if that were necessary. 7n the hearing of the ob%ection the court determined that there were duties which pri&ate indi&iduals owed to each other in the conduct of their day to day acti&ities. The basic idea was that in going about your daily acti&ities, you should so conduct yourself that you do not cause damage or in%ury to other people unnecessarily. That meant that you must act reasonably, to ensure that others are not hurt by what you do. .t is often e"pressed the other way around ; it is said that a duty of care e"ists where it could ha&e been foreseen by a person that if they conducted themsel&es carelessly then harm or damage might be caused to someone else. 8o, the duty of care ; depends upon the ability to appreciate that unreasonable conduct might hurt or harm others. 4ut in /e'$ey 0yrne v /e$$er in where the representor knew that the ad&ice was to be communicated to the representee, knew that it was &ery likely that the representee would rely on the ad&ice and was fully aware of the nature of the transaction. 4efore 11)/ there was no generalised duty of care in negligence. The tort did e"ist and was applied in particular situations where the courts had decided that a duty should be owed, i.e. road accidents, bailments or dangerous goods. In Donoghue v Stevenson [1932], (ord 5tkin attempted to lay down a general principle which would co&er all the circumstances where the courts had already held that there could be liability for negligence. 'e said<The rule that you are to lo&e your neighbour becomes in law, you must not in%ure your neighbour= and the lawyer#s 9uestion, Who is my neighbour> recei&es a restricted reply. ?ou must take reasonable care to a&oid acts or omissions which you can reasonably foresee would be likely to in%ure 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 . ought reasonably to ha&e them in contemplation as being so affected when . am directing my mind to the acts or omissions which are called in 9uestion.< Anown as Neighbour Test .n ,aparo & !ickman the loss suffered was economic as a result of a negligent statement. The 'ouse of (ords established that while it is foreseeable that in&estors may use published accounts to make in&estment decisions, the accountants who produced such accounts would not be liable for losses as a result of the accounts being wrong. This is because there is not sufficient pro"imity between the accountants and, effecti&ely, anyone at all who may rely upon them.. 'owe&er, in the case of the (aw 8ociety & ABCD Beat Warwick and others

) ,aparo was distinguished, in the ,ourt of 5ppeal it was held that the auditors owed a duty of care to the (aw 8ociety because they knew the (aw 8ociety would rely on the auditor$s report when they were deciding if the solicitors were complying with the solicitors# accounts rules. .n 5nns & Certon 4orough ,ouncil the 'ouse of (ord held that where there was foreseeability and pro"imity there should be a duty of care unless there was a policy reason for holding that no duty e"isted. 'owe&er, this came to be regarded as too wide a test and it was turned round in ,aparo & !ickman, so that e&en where there is foreseeability and pro"imity the court may decide that there should not be a duty of care, because it would not be fair, %ust or reasonable to impose one. 1oreseea) $ ty an' %ro2 ! ty #Eoreseeability# means whether a hypothetical #reasonable person# would ha&e foreseen damage in the circumstances. #Bro"imity# is shorthand for (ord 5tkin#s neighbour principle. .t means that there must be legal pro"imity, i.e. a legal relationship between the parties from which the law will attribute a duty of care. Note that a duty of care may not be owed to a particular claimant, if the claimant was unforeseeable. The ro$e of %o$ #y Bolicy is shorthand for #public policy considerations#. Bolicy considerations were recognised in the Wilberforce test and the test in ,aparo .ndustries & !ickman. 5rguments that an e"tension of liability for negligence would lead to a flood of litigation or to fraudulent claims were once granted greater credence than they are today. 4ut other arguments, such as the possible commercial or financial conse9uences, the prospect of indeterminate liability, the possibility of risk@spreading *e.g., through insurance+ and potential conflicts with rights in property or other social or moral &alues, are gi&en due consideration. .n recent years the courts ha&e identified a wide range of factors that may be rele&ant to the denial of a duty of care. Eor e"ample, a duty of care may not e"ist wherea+ b+ c+ The claimant is the author of his own misfortune. 5 duty of care would lead to unduly defensi&e practices by defendants seeking to a&oid claims for negligence with detrimental effects on their performance of some public duty. 5wards of damages against a public authority e"ercising a public function would ha&e an impact upon the resources a&ailable to the authority to perform its duties, both in terms of the damages and costs, and in terms of the resources re9uired to in&estigate and defend spurious claims. 5 duty of care would cut across a comple" statutory framework established by Barliament for regulating particular circumstances, such as the regulation of financial markets. There is an alternati&e remedy a&ailable to an aggrie&ed claimant, such as a statutory right of appeal from the decision of a go&ernment officer or department, or %udicial re&iew, or another source of compensation, such as the criminal .n%uries ,ompensation 8cheme, or another cause of action, such

d+ e+

6 as a claim for breach of contract, e&en where the action would be against a different defendant. Where a duty of care would tend to undermine the re9uirements of other causes of action, particularly in the case of comple" commercial contracts where the parties ha&e had the opportunity to negotiate a detailed structure of contractual negotiations.

f+

Ea#h stu'ent shou$' un'erstan' the )as # #on#e%ts of tort $a( including the terms, Fnegligence , Fduty of care$, Fbreach of the duty$ Fdamage$ Floss$ and Fin%ury$ Fstrict liability$, F&icarious liability$ Fremoteness of damage$ Fdefences$ to an action in tort. .ssues as to #onus of proof# become important in determining who has to pro&e what in the legal action and in the order in which they ha&e to pro&e them. 5s we are working within an ad&ersarial system, the person making a claim *#plaintiff# in 5ustralia @ the #pursuer# in 8cotland+ might ha&e to pro&e certain things before the other party *the #defendant#+ is called upon to establish others *defences+. Tort is a ci&il Fwrong$ for which the remedy is damages and is part of what is called the law of obligations. .t in&ol&es legal obligations from one person to another. 5 person in this sense including companies, corporations and other types of legal entities. The defining characteristic of this type of obligation is that it is incurred without intention. .t is to be contrasted with criminal law ; which in&ol&es breach of duties, but where the breach is enforced or acted upon by the state. .t is also to be contrasted with contract law ; and other types of law based up agreements ; where obligations are undertaken willingly and with intention. The earlier cases took the &iew that there were no obligations other than those entered into &oluntarily *contracts, land law etc+, and those imposed by the state *criminal law+. Cost of the legal cases in tort therefore test outthe duty of care and the standard of care ; in other words, what is reasonable and what is unreasonable ; bearing in mind that %udgments about those things may well change o&er time. They will test out the principle of causation 1. did your act actually cause the damage complained of> .f so, was the damage pro"imate to the act which caused it. .t is often said that the burden of proof is on the person making the claim to establish that the harm resulted from the actions of the person against whom the claim is made. In 0arnett v Che$sea /os% ta$ *1939, one way of doing this is to establish that but for the actions undertaken the damage would not ha&e resulted. .t is worth bearing in mind that when considering what it is reasonable for people to do to a&oid harm to others, one must consider not only what they did but also what they did not do. !amage can result from acts or omissions. .n 4lythe & 4irmingham Waterworks ,o *1GHI+ it was said that 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 reasonable and prudent man would not = When determining what is reasonable, one must weigh up whether the person has made any claims to the possession of special skills or abilities. .f you employ a carpenter or electrician you would want them to be %udged by the standard of a reasonable carpenter or electrician. Nettleship & Weston *11J1+

H 8o, what class of persons might someone ha&e a duty to> .t could be &irtually anyone depending upon the circumstances. !onoghue & 8te&enson referred to the neighbor principle . F?ou must take reasonable care to a&oid acts or omissions which you can reasonably foresee would be likely to in%ure your neighbourK.. that is, persons so closely and directly affected by my acts that . ought reasonably to ha&e them in contemplation.$ (ord 5tkin. .t is fair to say that the concept of what a duty of care in&ol&es has de&eloped e"ponentially in recent times. ,learly, in the 11th , it was not thought to be a bad thing to ha&e children aged 12 or 1/ years of age chained to machinery and working in factories where they had to
inhale in%urious fumes or to get their hands and arms trapped in dangerous machinery. Nowadays it would not be tolerated. 7n the other hand, when someone falls off a cliff and then sues the local

authority because there wasn$t a warning sign to say it was dangerous, we may be going too far in the other direction. There has to be a balance between what one person or group has to do to safeguard the wellbeing of others ; and what those others can be e"pected to do to look after themsel&es. .nteresting areas we will look at in future lectures are the areas of Fno&el$ damages claims. Why the law has de&eloped to e"clude what are called Fpure economic loss$ claims, that is claims for financial loss or damage which are not accompanied by some corresponding physical loss or damage. The issue of Fnegligent mis@statements$ ; and the reasonableness of imposing a duty and the issue of forseeability of possible loss or damage. The concept of F&icarious liability$ is one which will be important. .t in&ol&es the idea of one person being responsibility for loss or damage being cause by another. Eor e"ample, an employer may be liable for loss or damage caused by an employee and interesting 9uestions arise by way of defining the liability and limited its scope. What counts and an employer and employee relationship, and what acts fall within that relationship actions in the Fcourse of employment$. 8o, to establish a claim we ha&e to consider whether there is a duty, whether it has been breached and whether it has caused damage. Then we ha&e to establish the scope of forseeabilityLremoteness. We may need to consider whether the person making the claim might also ha&e been at fault, which introduces the idea of contributory negligence. Dut es of $a(yers. (awyers of course owe a duty of care to their clients, but until recently it was thought that no duty was owed by barristers *and later solicitors also+ in respect of work closely connected with the presentation of their case in court. Butting it in terms of the ,aparo test, it would be said that, while there was foresight and pro"imity, it was not fair, %ust and reasonable to impose liability. The 'ouse of (ords has now decided that in contemporary conditions there are no policy reasons sufficient to %ustify this immunity and it should be abolished- 5rthur J. 8. 'all & 8imons. The circumstances in which a duty is owed and the scope of the duty are considered by the 'ouse of (ords in Coy & Bettman 8mith. .n Ron'e$ v 4ors$ey *1939, the 'ouse of (ords held that a barrister owes no duty of care in negligence to his client. .t was said to be contrary to public policy to allow clients to sue barristers because the original case would effecti&ely be re@opened at the subse9uent court hearing. 'owe&er, in Sa f 5$ v Sy'ney 6 t#he$$ 7 Co this immunity was held not to e"tend to ad&ice @ so it is possible to sue a barrister for a negligent written opinion. .n 8e$$ey v Corston the immunity was e"tended to co&er ad&ice to accept a compromise that was then consented to by a %udge. .n 5twell & Cichael Berry M ,o it was held that ad&ice on whether to appeal was not co&ered by the immunity, but a failure to run a particular defense was co&ered.

I !espite such, the 'ouse of (ords turned all of this on its head when it decided in 'all & 8imons */222+ @ by 6@) @ that for both barristers and solicitors the immunity from a claim in negligence must end. This applies to both ci&il and criminal cases, with *obiter dicta+ (ord 4rowne@Wilkinson and (ord Cillett arguing that any claim arising from a criminal case *i.e. a claim that !#s solicitorLbarrister was negligent and thus resulting in him being found guilty of a criminal offence+ should not be able to proceed unless the 5ppeal ,ourt had first set aside the con&iction. .ndeed, (ord 4rowne@Wilkinson and Cillett argued that any such ci&il claim should normally be struck out as an abuse of process of the court. Duty of #are to un)orn #h $'ren. 5 doubt as to whether the common law recognized a duty of care to unborn children in respect of damage done before birth was resol&ed by statute- the ,ongenital !isabilities *,i&il (iability+ 5ct 11JI. The 5ct originally en&isaged a child being born with disabilities as the result of damage to the mother *or sometimes the father+ occurring during pregnancy or sometimes before conception. Typical e"amples were physical in%uries to a pregnant woman in, say, a car crash, or the side effects of drugs. .t had to be amended in the light of ad&ancing medical technology to deal with damage to stored sperm or eggs- 'uman Eertilisation and Nmbryology 5ct 1112. These 5cts impose liability only where the damage caused the disability from which the baby suffers when it is born. They do not allow an action where the negligence caused the baby to be born, but did not cause the disabilities. 5 doctor may, for e"ample, negligently carry out a sterilisation procedure on either a man or a woman, or may fail to recommend an abortionany child born as the result of this negligence has no claim. These ethical reasons do not apply where the claim is by the father or mother *or both+ who ha&e to bring up the child. Eor a time the courts seemed likely to allow such claims. The ethical issues together with a wide@ ranging re&iew of how these issues are decided round the world+ are discussed where the child is healthy and is being raised in a lo&ing family *CcEarlane+ where the child is disabled *Barkinson+ where the child is healthy but the mother did not want children because of her own disability *Oees+.

[5CTS 5ND O6ISSIONS]

There are / *two+ types of omissions. Eirstly, a person may fail to take appropriate precautions, which would be regarded as a negligent act. 8econdly, it may refer to passi&e inaction where a person does not take any action. The general rule is that there is no duty on a person to take action in order to pre&ent harm befalling others. (ord Doff analyzed the mere omissions rule and then considered the 6 *four+ e"ceptions to the rule. There are some circumstances where the courts ha&e established duties of affirmati&e action. These may arise where*a+ the !efendant owes the duty of care by a contractual or other undertaking by the defendant= *b+ the !efendant owes a duty because of special relationship between claimant and defendant=

*c+ the !efendant owners a duty because of damage caused by a third party who is within his control= *d+ the !efendant owes a duty because of control o&er land or something likely to be dangerous if interfered with. The !efendant owes the duty of care by a #ontra#tua$ or other un'erta" ng by the defendant= 5 person who undertakes to perform a task, e&en without need, assumes a duty to act carefully in carrying it out. In Stans)$e v Tro!an where !efendant decorator was left alone on the premises by the householder#s wife. !uring her absence, he left the house to obtain wall@paper. 'e failed to secure the behind him. !uring his absence a thief entered the house and stole property. .t was held that 1+ a duty of care was created by the contractual relationship= /+ it was a breach of that duty to lea&e the front door insecure and )+ as a direct result of that breach of duty that the theft occurred. 'ere, the doctor was held liable for loss. The !efendant owes a duty because of s%e# a$ re$at onsh % between claimant and defendant= There are a number of relationships that gi&e rise to an affirmati&e duty to pre&ent harm. These include employer and employee, parent and child, captain *or carrier+ and passenger, referee and player in a colt$s rugby match. In /o!e Off #e v Dorset 9a#ht Co L ! te' where !$s, borstal officers allowed se&en boys to escape from a training camp on 4rownsea .sland in Boole 'arbor while they were asleep. They stole ,laimant$s boat and caused damage to other boats in the harbor. .t was held that 4orstal authorities owed a duty of care to the owners of property near the camp. There were no good reasons of public policy for allowing the ,rown any special immunity in this respect. (iability restricted to the property@owners in the immediate &icinity their loss was foreseeable, and would not ha&e e"tended to others further a field. .n this regard, the duty of care arose out of the special relationship between the boys and their custodians since the boys were under the control of the officer and control imports responsibility. The !efendant owners a duty because of damage caused by a th r' %arty who is within his control= The general rule is that there is no duty at common law to pre&ent the persons who is harming other persons. .n some circumstances, a person may be in such a relationship with a third party as to ha&e a duty to control the third party#s conduct in order to pre&ent harm to the claimant. These include employer and employee, parent and child, gaoler and prisoner, mental hospital and patient and e&en car owner and an incompetent or drunken dri&er. In /aynes v /ar(oot where The !efendant left a horse@drawn &an unattended in a crowded street. The horses bolted when a boy threw a stone at them. 5 police officer tried to stop the horses to sa&e a woman and children who were in the path of the bolting horses. The police officer was in%ured. .t was held that the !efendant owed a duty of care

G
as he had created a source of danger by lea&ing his horses unattended in a busy street. N"ceptionally, liability for the acti&ities of the others may arise in two situations, Eirst of all, where the owner of the land has knowledge that trespassers ha&e created a risk of fire on his property and that may cause damage the neighbour property, 8econdly, when the owner of the land creates or allows to be created an unusual source of danger of his land and it is reasonably foreseeable that a third party may interfere with it thereby causing damage to another. The !efendant owes a duty because of #ontro$ over $an' or something likely to be 'angerous if interfered with. 5n occupier#s control of land may gi&e rise to an affirmati&e duty in relation to the beha&ior of &isitors or e&en acts of nature. Where the defendant has control o&er some ob%ect which is likely to be particularly dangerous if interfered with by a third party he may be under a duty to pre&ent such interference. In Cunn ngha! v Rea' ng 1oot)a$$ C$u) where the Defendant was liable because of injury of the visitors as the field was under control of the Club. [Lor' Goff o% ne' that $ a) $ ty #an not )e !%ose' on the ne gh)our for the )urg$ary as every o##u% es !ust ta"e su#h ste%s as he th n"s f t an' %ro%er for the )etter %rote#t on of h s o(n %ro%erty]

[ECONO6IC LOSS]
.n looking to consider whether a claimant may seek to claim recompense for their economic loss, it is to be appreciated that the policy of the courts has been, to disallow claims for Fpure economic loss$. Therefore, with this in mind, if the loss suffered is connected with physical damage to property belonging to the ,laimant= or connected with in%ury to the person of the ,laimant. ,onse9uently, e&en if the loss is financial @ it is not pure economic loss and is reco&erable, according to the decisions in ,attle &. 8tockton Waterworks ,o *1GJH+. 4ut economic loss can be claimed for in the sense of Ffinancial loss$ where the loss is foreseeable and conse9uential upon physical damage to property in which the ,laimant has a proprietary interest, supported by the decision in Curphy &. 4rentwood !.,. 011113. There are / *two+ kinds of Nconomic (oss1+ Conse:uent E#ono! # Loss. This is generally reco&erable. (oss of earning is reco&erable. When the ,laimant would financially damage because of personal in%ury andLor damage of the property, in this regard, he can able to claim damages. /+ ;ure E#ono! # Loss. When there is no personal in%ury to the ,laimant andLor to any person other than ,laimant andLor property damaged not belonging to the ,laimant. .n this regard, , will not able to claim any damages. 4ecause of the floodgates argument

the ,ourts ha&e held that no liability in negligence can arise for pure economic loss as held in Catt$e v Sto#"ton 4ater(or"s Co. 'owe&er, in <un or 0oo"s L ! te' v The =e t#h Co L ! te' reco&ery was allowed for pure economic loss as between the owner of a building and a nominated sub contractor but the ,ourt refused to apply Junior 4ooks since 11GI. The 'ouse of (ords in D 7 1 Estates v Chur#h Co!! ss oners it was said about Junior 4ooks that the decision can not be regarded as laying down any principal of general application in the law of tort and it was really no use as an authority on the general duty of care and perhaps the strongest criticism in S !aan v Contra#t ng where it was said that the case had been the sub%ect of so much analysis and discussion with differing e"planations and that case can not be regarded as a useful de&elopment of law of tort. In >$tra!ares Cor% v Tou#he t (as state' that ?the $a( shou$' not )e guar' aga nst $ a) $ ty n an n'eter! nate a!ount to an n'eter! nate #$ass for an n'eter! nate t !e@ .t seems unlikely that Junior 4ooks will be applied in the future and in N tr g n E rann Teoranta the 'igh ,ourt again refused to apply Junior 4ooks holding that the case was uni9ue . Blease note that Bure Nconomic (oss resulting from a negligent act and a negligent misstatement is reco&erable under /e'$ey 0yrne v /e$$er where the 'ouse of (ords held that a duty to take ,are in making statement could raise. The ,ourts are &ery reluctant to impose a duty of care as regards the careless making of statements as opposed to liability for careless act. /e'$ey 0yrne v /e$$er co&ered 1+ negligent acts, /+ omissions and )+ negligent statements where there has been a &oluntary assumption of responsibility towards the defendant. Pntil the 11J2 the rules on liability for economic loss as a result of negligent acts were simple to state- there was generally no liability in respect of #pure# economic loss. There are two broad categories of case in which the claimant sustains economic loss as a result of a negligent act. .N <un or 0oo"s L ! te' v The =e t#h Co L ! te' *19A3,& which had allowed the reco&ery of damages in tort in respect of repairing the defect in the product itself, was anomalous cases, which the (ordship felt were not to be e"tended. 'ence, there is no reco&ery for pure economic loss. .N D 7 1 Estates L ! te' where it was held that damages in tort did not generally e"tend the cost of repairing the defect in the product itself. 5ny physical in%ury or damage is reco&erable, but not pure economic loss flowing from the negligence. 'e appeared to ha&e suffered pure economic loss which is not directly related to the act of !, this raises a serious floodgates problem.

12

4hat s %ure e#ono! # $ossB Bure economic loss is economic loss suffered by the plaintiff, which is not conse9uential upon in%ury to the plaintiff or damage to the plaintiff$s property or Bure economic loss is economic loss, which does not flow from damage to person or property. Two distinct categories of action are identified by the courts-

1. Negligent acts leading to pure economic loss- and /. Negligent statements leading to pure economic loss
;ure e#ono! # $oss. Ear$y Deve$o%!ents

Narlier cases restricted claims for pure economic loss to instances where misrepresentation was fraudulent or where a duty arose from breach of statute, contract or fiduciary obligation Balsey & Ereeman *1JG1+= Norton & 5sburton 011163 The policy basis- the fear of imposing liability <in an indeterminate amount for an indeterminate time to an indeterminate class< (imited recognition of a duty of care for negligent ad&ice leading to economic loss- 'edley 4yrne ,o (td & 'eller Bartners (td 011I63 negligent misstatement causing pure economic loss. The Eacts- 4ank ga&e a reference to the plaintiff about the financial position of the banks client. The plaintiff suffered financial loss through entering a contract with the client in reliance on the bank$s reference. The !ecision- 4ank was held to be negligent in gi&ing a credit reference that caused loss. There must be an establishment of a special relationship created between the parties, thus it creates the duty of care owed. .f someone possessed of a special skill undertakes 9uite irrespecti&e of contract to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise$ per (ord Corris Cutual (ife M ,itizens# 5ssurance ,o. (td. &. N&att *11J2+. The Eacts- The defendant C(,, a substantial shareholder in 'D Balmer (td. C(, circulated its policyholders *including Cr N&att+ suggesting that they in&est in 'D Balmer (td. 5t the time the ad&ice was gi&en 'D Balmer were in serious financial trouble e&entually going into li9uidation causing Cr N&att loss of his in&estment. The !ecision- The Bri&y ,ouncil *'ouse of (ords hearing an o&erseas appeal+ restricted the application of 'edley 4yrne by drawing a distinction between the liability of persons gratuitously passing on information and those who are in the business of gi&ing ad&ice of the kind gi&en. The plaintiff lost his case. The result may ha&e been different if C(, had been a stockbroker. The main ground for limitation was that it was only possible to fi" an appropriate standard of care by reference to the business or professional skill necessary to gi&e the appropriate ad&ice *The emphasis seemed to be on advice pro&ided by someone possessed of the a special skill+ .n establishing a dutyLstandard of care, (ord Oeid stated Blaintiff must be trusting or replying on the defendant$s ad&ice The defendant must know or ha&e reason to know of that fact The circumstances of the case must make reliance reasonable

Neg$ gent 6 sstate!ents

11 .n general ! is liable for negligent ad&iseLinformation that is pro&ided to B which B relies and suffers economic loss. 8haddock & Barramatta ,, *11G2+ ,ouncil liable for negligence misstatements. The EactsThe plaintiff had applied to the council for a certificate as to the possible widening of a road, which would affect a property the plaintiff proposed to buy. The plaintiff$s agent telephoned the council to be informed that the land was not affected and this was later confirmed by an official certificate from the council. The court pointed out that the telephone information would not ha&e rendered the council liable. The written information howe&er rendered the council liable because it knew that the plaintiff was likely to act on the basis of the information. The !ecision- The court held that a person would be liable for negligent misstatement where the ad&ice is gi&en on a serious business occasion from a person with the professional skills to do so. 5lso, the 'igh court held that a duty of care e"isted in relation to the pro&ision of information of this caliber. 8an 8abatian Bty (td & Cinister 5dministering Nn&ironmental Blanning *11GI+ pro"imity in establishing a duty of care, therefore pure economic loss resulting from a negligent statement can be claimed. The facts- Blaintiff purchase land in reliance on a scheme adopted by the council. The scheme was abandon and the de&eloper suffered a financial lost. The .ssue- Whether Cinister and the 8ydney ,ity ,ouncil liable for the negligent preparation by the 8tate Blanning 5uthority and publication by the ,ouncil of a rede&elopment plan *scheme+ containing representations in reliance upon which de&eloper had ac9uired land and sustained a loss> The !ecision- The duty of care in relation to statements has been e"tended beyond statements made to a particular person for a particular purpose and e&en beyond statements made to a third person for the known purpose of communication to the person who sustains the loss. There are circumstances in which the maker of a statement owes a duty of care to a person who reasonably relies on the statement although the statement was not made to that person either directly or purposely through a third person. Where pure economic loss results from a negligent statement, the element of reliance plays a prominent part in the ascertainment of a relationship of pro"imity between the plaintiff and defendant and therefore the ascertainment of a duty of care . Nsanda Einance & Beat Carwick *1116+ Oeliance on information that was not issued to the recipient does not create a duty of care. The Eacts- .n reliance upon the audited accounts, the plaintiff entered into transactions whereby it lent money to companies associated with N"cel, accepting a guarantee from N"cel, and purchased debts from N"cel. The transactions resulted in loss to the plaintiff by reason of N"cel$s financial positionThe !ecision- 'igh ,ourt held that the ! did not owe the B a duty of care because there had been no re9uest for information or intention to induce the financier to act upon the accounts. 8haddock & Barramatta ,,*11G2+ With all respect . find it difficult to see why in principle the duty should be limited to persons whose business or profession includes gi&ing the sort of ad&ice or information sought and to persons claiming to ha&e the same skill and competence as those carrying on such a business or profession, and why it should not e"tend to persons who, on a serious occasion, gi&e considered ad&ice or information concerning a business or professional transaction. *Dibbs J in 8haddock+ 8pecial relationship between B and !- such a relationship would not be found to e"ist unless, at least, the maker of the statement was, or ought to ha&e been, aware that his ad&ice or information would in fact be made a&ailable to

1/ and be relied on by a particular person or class of persons for the purposes of a particular transaction or type of transaction. [Neg$ gent 5#t]
In S%artan Stee$ v 6art n. where the fact is that ! while digging a trance cut off the electricity supply to ,$s steelworks. it was held that the &alue of the melt that was ruined by the power cut, including the profit directly associated with it was allowed 'owe&er, , did not suffered for loss of profits on four further melts that could ha&e been completed during the period that the supply was cut off. 'ere ! was held liable for physical damage to the product and the loss of profit arising out of this . 4ut the ,laimants claim to reco&er for the loss arising out of the material which was yet to be processed failed on the ground that economic loss was not connected with the physical damage to the property. 4here the Court of 5%%ea$ has esta)$ she' a C)r ght $ ne& ru$e n res%e#t of %ure e#ono! # $oss #ause' )y the 'efen'ant neg$ gen#e- 4h $e a Defen'ant ( $$ )e $ a)$e for neg$ gent$y #ause' %hys #a$ har! an' for e#ono! # $oss ' re#t$y #onse:uent on that %hys #a$ har!& there s no $ a) $ ty for %ure e#ono! # $oss (h #h fo$$o(s n' re#t$y fro! the neg$ gent a#t- Therefore& $oss n res%e#t of DDD no 'uty of #are s o(e'The ,ourt of 5ppeal deli&ered a ma%ority %udgment that the 8partan 8teel could only reco&er the damages to their furnaces, the metal they had to discard and the profit lost on the discarded metal. They could not reco&er the profits lost due to the factory not being operational for 1H hours. Their main reasoning for this was that while the damage to the metal was <physical damage< and the lost profits on the metal was <directly conse9uential< upon it, the profits lost due to the blackout constituted <pure economic loss<. 5lthough the ma%ority seemed to agree that Cartin M ,o (td owed the 8partan 8teel a duty of care and the damage was not too remote since it was foreseeable, they declined to allow the reco&ery of pure economic loss for policy reasons outlined by (ord !enning in his leading %udgment1. 8tatutory utility pro&iders are ne&er liable for damages caused by their negligence. /. 5 blackout is a common hazard and a risk which e&eryone can be e"pected to tolerate from time to time.

). .f claims for pure economic loss in such cases were allowed, it might lead to countless claims, some of which may be spurious *the <floodgates< argument+.
6. .t would be unfair to place the entire weight of many comparati&ely small losses upon the shoulders of one person in such cases. H. The law does not lea&e the claimant without remedy by allowing him to reco&er the economic losses that are directly conse9uential upon physical damage. Defe#t ve 0u $' ng In <un or 0oo"s. where !, specialist@flooring contractors negligently laid a floor in ,$s factory. ! as specialist flooring contractors knew what products were re9uired and were alone responsible

1)
for the composition and construction of the floor. , suffered loss and damages, such as the cost of remo&al of machinery and loss of profits while the floor was being re@laid. .t was held that scope of the duty of care e"tended to a duty to a&oid causing pure economic loss conse9uential on defects in the work. The claimant was successful against the sub contractor e&en though there was no contractual relation between the parties. 4ut this case is e"ceptional. The present scenario is fully different, now the case which is followed is 6ur%hy v 0rent(oo' where the E5,T is that !, local authority negligently appro&ed plans for the footings of a house that subsided. , the house owner could not afford repairs and sold the house at a loss. , alleged that he and his family had suffered an imminent risk to health and safety because gas and soil pipes had broken and there was a risk of further breaks. .t was held that the damage suffered by , was not material or physical damage. ! was not liable for pure economic loss of the cost of remedying defects. To permit , to reco&er his economic loss would logically lead to an unacceptably wide category of claims in respect of buildings or chattels which were defecti&e in 9uality, and would in effect introduce product liability and transmissible warranties of 9uality into the law of tort by means of %udicial legislation. .t is unrealistic to regard a building or chattel which has been wholly erected or manufactured and e9uipped by the same contractor as a comple" structure in which one part of the structure or chattel is regarded as ha&ing caused damage to other property when it causes damage to another part of the same structure or chattel, since the reality is that the structural elements in a building or chattel form a single indi&isible unit of which the different parts are essentially interdependent and to the e"tent that there is a defect in one part of the structure or chattel it must to a greater or lesser degree necessarily affect all other parts of the structure. 'owe&er, defects in ancillary e9uipment, manufactured by different contractors, such as central heating boilers or electrical installations may gi&e rise to liability under ordinary principles of negligence. it was held that1. There is a clear distinction between property which is defecti&e and thereby causes damage to the people or other property 0in this regard damages is reco&erable3. /. Broperty which is itself defecti&e and thereby worthless than it should be 0in this regard damages is not reco&erable3.

[;S9C/I5TRIC IN<>R9]
The term #ner&ous shock# is used by lawyers to signify a medically recognized psychiatric illness or disorder. #Bsychiatric !amage# encompasses all rele&ant forms of mental illness, neurosis and personality change. This is distinguished from emotional distress or grief which normal indi&iduals may suffer when someone else is in%ured or killed, though the distinction may sometimes be difficult to draw. There can be no claim for emotional distress, anguish or grief unless this leads to a positi&e psychiatric illness, such as an an"iety neurosis or reacti&e depression, or physical illness, such as a heart attack. The claimant can claim damages for psychiatric in%ury. .n this regard, the in%ury must need to be recognized by the medical science. The claimant can reco&er the damages for whose psychiatric in%ury which are recognized by !e' #a$ s# en#e as held in [6#Lough$ n v OE0r an] where the plaintiff, Crs. Cc(oughin, suffered ner&ous shock after a car crash in whtch her husband and three of her children were seriously in%ured = the in%uries of one of her children were fatal. Crs. Cc(oughin had been at home some two miles away at the time the accident happened, but news of the accident was communicated to her by a friend an hour or so afterwards. 8he was dri&en to the hospital and arri&ed there appro"imately two hours after the accident. 5t the hospital she witnessed scenes which the 'ouse of (ords accepted were distressing in the e"treme. 8he saw her children cut and bruised and begrimed with dirt and 7il, and she heard their sobs and screams= while she was with them, her son lapsed into unconsciousness. Eor the purposes of determining the 9uestion of legal liability, it was assumed that she had suffered what was

16
described as se&ere shock, organic depression and a change of personality as a conse9uence of these e"periences. 'er claim was re%ected at trial and by the court of 5ppeal.

[8 n's of = #t ! n ;sy#h atr # InFury]

The law adopts a restricti&e approach in awarding damages for negligently inflicted psychiatric in%ury. .n addition to the ,aparo test for imposing a duty of care, the courts ha&e laid down se&eral obstacles which must be satisfied by claimants in order to establish liability. Eirstly there must be an actual psychiatric in%ury, mere emotions of fear, worry, grief or sorrow are not sufficientThere are / *two+ kinds of &ictim in Bsychiatric .n%ury 1+ Brimary Qictim and /+ 8econdary Qictim as held in [5$#o#" v CC of South 9or"sh re]- The claims were brought by 5lcock and se&eral other claimants after the 'illsborough disaster in 11G1, where 1I (i&erpool fans died in a massi&e crush during the E5 ,up 8emi Einal at 'illsborough 8tadium in 8heffield. The accident was caused by the police negligently allowing too many supporters to crowd in one part of the stadium. Cany saw their friends and relati&es die in the crush and suffered psychiatric harm or ner&ous shock after the incident. The plaintiffs in this case were mostly secondary &ictims, i.e. they were not <directly affected< as opposed to the primary &ictims who were either in%ured or were in danger of immediate in%ury. The 'ouse of (ords has established a number of <control mechanisms< or conditions that had to be fulfilled in order for a duty of care to be found in such cases. The claimant who is a <secondary &ictim< must percei&e a <shocking e&ent< with his own unaided senses, as an eye@witness to the e&ent, or hearing the e&ent in person, or &iewing its <immediate aftermath<. This re9uires close physical pro"imity to the e&ent, and would usually e"clude e&ents witnessed by tele&ision or informed of by a third party, as was the case with some of the plaintiffs in 5lcock. The shock must be a <sudden< and not a <gradual< assault on the claimant#s ner&ous system. 8o a claimant who de&elops a depression from li&ing with a relati&e debilitated by the accident will not be able to reco&er damages. .f the ner&ous shock is caused by witnessing the death or in%ury of another person the claimant must show a <sufficiently pro"imate< relationship to that person, usually described as a <close tie of lo&e and affection<. 8uch ties are presumed to e"ist only between parents and children, as well as spouses and fianc:s. .n other relations, including sibling$s ties of lo&e and affection must be pro&ed. .t must be reasonably foreseeable that a person of <normal fortitude< in the claimant$s position would suffer psychiatric damage. The closer the tie between the claimant and the &ictim, the more likely it is that he would succeed in this element. 'owe&er, once it is shown that some psychiatric damage was foreseeable, it does not matter that the claimant was particularly susceptible to psychiatric illness @ the defendant must <take his &ictim as he finds him<. a, ;r !ary = #t !s. The 'ouse of (ords held that in the case of a #primary &ictim# if personal in%ury of some kind to the claimant was foreseeable the defendant would be liable for psychiatric in%ury sustained as a result of the defendant#s negligence, irrespecti&e of whether psychiatric in%ury was foreseeable. The courts ha&e been e"tremely cautious about admitting claims for psychiatric harm which were not the result of physical in%ury to the claimant. The first response was to deny any action for psychiatric harm which was not the product of some form of physical impact with the claimant. 5 person who suffered physical in%ury or he was in danger or reasonably belie&ed himself to be in danger of physical in%ury and it is not necessary to show that the psychiatric in%ury was foreseeable as found in [;age v S! th] where the claimant had suffered from CN o&er a period of time and was in reco&ery when he was in&ol&ed in a minor car

1H
accident due to the defendant#s negligence. The claimant was not physically in%ured in the collision but the incident triggered his CN and had become chronic and permanent so that he was unable to return to his %ob as a teacher. 'e was successful at his trial and awarded R1I/,222 in damages. .t was held that some kind of personal in%ury was foreseeable it did not matter whether the in%ury was physical or psychiatric. There was thus no need to establish that psychiatric in%ury was foreseeable. ), Se#on'ary = #t !s 8econdary Qictims are those who were mainly passi&e and unwilling witnesses or being informed of the accident or the incident which in&ol&es another. 5$#o#" Case defines ) *three+ conditions re9uired to be 8econdary Qictim. 5 person may be a #secondary &ictim# *a person who suffers psychiatric damage as a result of harm done to another+. .n such cases, there must be- '!N Testa+ Bro"imity of Berception- where the psychiatric harm must come through the claimant#s own sight or hearing of the e&ent or its immediate aftermath and it does not permit any 5.! for hearing of seeing rather than direct. .t should be unaided, 5ided or &ia media is not allowed to pro&e hear ness test. The claimant need to obser&e the incident in his own eye or hear to it directly *'ear ness Test+. b+ Bro"imity of Oelationship- there must be a pro"imity relationship between the ,laimant and the Brimary Qictim. Oeasonable foreseeability of psychiatric illness arising from the close relationship of lo&e and affection *i.e. parents, spouse and fianc:+ between the claimant and the primary &ictim of the defendant#s negligence or re&ertible presumption other than the abo&e *!ear ness Test+= c+ Bro"imity of Time M 8pace- it is clear that the claimant need not actually be at the scene of the accident at the time of it occurs, i.e. more than 122 yards from her home to see the dead body of her son and where the claimant arri&ed home few minutes later after gas e"plosion and killed his sons. .n this regard, the claimant must ha&e to present at the spot of the accident itself or its immediate aftermath. *Near ness Test+= Se#on'ary v #t !s are those not within the physical zone of danger but witnesses of horrific e&ents. 8econdary &ictims must demonstrate the four 5lcock criteria are present in order to establish liability1. 5 close tie of lo&e and affection /. Witness the e&ent with their own unaided senses ). Bro"imity to the e&ent itself or its immediate aftermath 6. Bsychiatric in%ury must be a result of a shocking e&ent. ,lose tie of lo&e and affection- this will be presumed in parent and child and between spouses but must be pro&ed in other relationships including brother and sister. Witness the e&ent with own unaided senses- seeing the e&ents on tele&ision is not sufficient. Bro"imity to the e&ent itself or its immediate aftermath- the relati&es that had &isited the make shift mortuary to identify lo&ed ones was held not to come within the immediate aftermath of the e&ent. Bsychiatric in%ury must be caused by a shocking e&ent. 8ion & 'ampstead 'ealth 5uthority. 5 father#s claim failed due to lack of #shocking e&ent# where he suffered se&ere depression on witnessing son#s death due to medical negligence. 4ut 4 v Esse2 County Coun# $ is an e"ception where Res#uers.

1I
.n 5lcock had originally classed rescuers as primary &ictims for policy reasons. Oescuers should be encouraged rather than discouraged. 'owe&er this position was changed in White & ,hief ,onstable of 8outh ?orkshire. Oescuers are now to be gi&en no fa&orable treatment.

[0rea#h of Duty]
We know that to establish liability in negligence, it is insufficient merely to show that the defendant owed the claimant a duty of care. 7nce such a duty has been established, it must then be pro&ed that the defendant was in breach of that duty, that is to say he acted carelessly. Eor e"ample, the defendant allowed the slug to get into the ginger beer @ !7N7D'PN= or he did not take precautions whilst digging a hole in the road to ensure that blind passers@by would not fall in @ '5(N?. 4reach of !uty in case of negligent need to pro&e after pro&ing !uty of ,are. 'e who asserts must pro&e. 4urden of pro&e lies on the claimants. ,laimant need to pro&e that there was a breach of duty. To find breach of duty 74JN,T.QN TN8T or ON587N54(N C5N test is re9uired. .n this regard, !efendant must conform to the standard of a reasonable man. 7nce it has been established that a duty e"isted, then it must be determined if that duty was breached. 5 duty has been breached when a defendant has knowingly e"posed another to potential damage. 5 defendant who did not realize he was e"posing another to harm, but should ha&e recognized the probability that any reasonable person would ha&e recognized has breached his duty as well. Negligence< is not the same as <carelessness<, since a person might employ as much care as they are capable of, yet still fall below society$s standards. .t is possible that someone is &ery careful about their conduct, and yet harm occurs. 7nce it is established that the !efendant owes a duty of care to Blaintiff, it must then pro&e that the !efendant had breached that duty. The test is standard of care of a reasonable man. .n 0$ythe v 0 r! ngha! 4ater(or"s Co- where it was held that !efendant will be in breach of duty if he does something which a reasonable man would do, or doing something which a reasonable and prudent man would not. The term ON587N54(N C5N was established in G$asgo( Cor%orat on v 6u r where it was held that a person who is free from both from an apprehension and o&er confidence .

G>IDING 15CTORS IN CONSIDERING O0<ECTI=E ST5ND5RD O1 0RE5C/ O1 D>T9.

They are 6 *four+ types1. Oeasonable assessment of the risk. /. 8ocial Ptility. ). Deneral and appro&ed practice. 6. Bracticality of precaution.

1J 1. Reasona)$e 5ssess!ent of the R s"- they are of / *two+ kinds 1+ !egree of likelihood of in%ury occurring and /+ Cagnitude of risk of harm !egree of likelihood- .n this connection, the defendant would compare with other reasonable authority, what they would in this circumstances. 4olton & 8tone where ! a cricket club from where a cricket ball was struck o&er a 1J@ feet fence. .t hit , who was standing on the pa&ement outside her house. The ball must ha&e tra&elled about 122 yards, and such a thing had happened only about si" times in thirty years. .t was held that the risk was so slight and the e"pense of reducing it so great that a reasonable cricket club would not ha&e taken any further precautions. 5nd the ,laimant lost. The degree of care which must be taken must be e9ual to the risk that is to be a&oided. N&en if the harm is foreseeable, but is so unlikely to happen. ! will not be held liable. This is best illustrated by cases4olton & 8tone 011H13 '( ! was a cricket club from where a cricket ball was struck o&er a 1J@feet fence. .t hit , who was standing on the pa&ement outside her house. The ball must ha&e tra&elled about 122 yards, and such a thing had happened only about si" times in thirty years. Ciller & Jackson- more protection is re9uited where change of in%ury. Cagnitude of risk of harm- The employer is only in <breach of duty< if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the <magnitude of the risk of harm occurring, and the gra&ity of the harm which may occur<, the costs and practicability of pre&enting it, and the %ustifications for running the risk. .n other words, the bigger the employer, the greater their resources, the greater the onus is upon the employer to act with <due diligence< and prudence with regard to its respecti&e employees, where a <risk of harm< e"ists, which may be <pre%udicial to health<. the key feather is that whether the employee can able to sue to the employer for their negligence. Baris & 8tepney ,, where it was held that the greater the risk of harm, the greater the pre 9uetion need to be taken . Where ! a (ocal 5uthority employed , as a garage mechanic. , had lost the sight of one eye during the war. .n order to loosen a stiff bolt he struck it with a hammer= a piece of metal flew off and *because he was not wearing goggles+ struck him in his good eye, causing him to become totally blind. 'eld that- The probability of such an e&ent was &ery small, but its conse9uences were &ery serious, his employers, knowing of his disability, should ha&e taken e"tra care to pro&ide goggles for him. The more serious the possible damage, the greater the precautions that should be taken.

1G Withers & Berry- where an employee suffered dermatitis as a reaction to the greasy conditions in which she worked. 8he left her %ob and later came back and asked for her %ob back. The employers ga&e her the best other work they had but the dermatitis returned. The employers were under no duty to dismiss or to refuse to employ an adult employee who wished to do a %ob merely because there might be some slight risk to the employee in doing the work, so the employer was not liable. .n Withers & Berry ,hain ,o (td 011I13 1 W(O 1)16 it was held that there was no obligation at common law on an employer to dismiss an employee who knew of the risk arising from properly planned and safe work that was willing to continue working. There are two competing principles- on the one hand the desire of the common law to refrain from imposing a restriction upon the freedom of the indi&idual= on the other hand, the need for employers to bear some o&erall responsibility for the health and safety of their workforce. .n the present case, the claimant began to suffer symptoms of asthma after the introduction of a new paint. 'e was seen by the company doctor who ad&ised him that he should not work with the new paint and wrote a memo in similar terms to the defendant employer. The claimant continued to work with the new paint and shortly afterwards suffered a collapse and was certified unfit to work. 5lthough the Withers principle remains good law, the magnitude of the risk is a factor. The defendants were negligent because they failed to follow the ad&ice of their own doctor that the claimant should not continue working with the new paint. The case must not be read as establishing any new principle= the argument had not ranged sufficiently widely for a proper reconsideration of the Withers principle. The decision was on the limited basis that the defendants ought to ha&e discussed with the claimant the a&ailable options once the company doctor had ad&ised that he should no longer work with the new paint. The defendants failed to do so, and were therefore negligent.

.n Withers & Berry ,hain ,o (td that there was no legal duty upon an
employer to pre&ent an adult employee from doing work which he or she was willing to do, had to be the actual nature and e"tent of the known risk. ,o"all & Doodyear- Nmployer and Nmployee, regarding discharge of the employee. Where Cr ,o"all was employed to spray tyres with lubricant paint. 'is employer had complied with its health and safety obligations in setting up a safe place of work. Ne&ertheless, the e"posure to paint caused Cr ,o"all to suffer with asthma. 'e brought a claim against his employer alleging it had been negligent in allowing him to continue to work once he had been

11 diagnosed with asthma, e&en though he had insisted. The ,ourt of 5ppeal held that an employer may be under a duty to stop an employee doing a %ob regardless of the employee#s own wishes, where he is at risk of in%ury if he continues in it. Whether or not that duty arises depends on the magnitude of the risk to the employee#s health. .n ,o"all & Doodyear D4 (imited 0/22/3 Cr. ,o"all worked for Doodyear as a paint operator. 7n introduction of a new spray paint, Doodyear took all reasonably practicable precautions to protect the paint operators from ill effects of the paint. Pnfortunately, ,o"all had a predisposition to asthma and, when this came to light, the works doctor ad&ised him to cease working with the paint. Neither the health M safety officer nor ,o"all#s manager were made aware of this ad&ice. ,o"all, howe&er, chose to ignore the ad&ice and carry on working as he needed the money. 5 month later, he collapsed and was diagnosed as suffering from occupational asthma caused by irritant fumes at work conse9uent on his predisposition to asthma. 'e brought a claim against Doodyear for personal in%ury and was awarded RJ,H22. Doodyear challenged the ruling it should ha&e taken ,o"all off the %ob in the ,ourt of 5ppeal. The main authority relied on was Withers & Berry ,hain ,o (td. .n that case, Cr Withers returned to work when it was known to him and his employers that continuing to work would gi&e rise to a small risk of a recurrence or e"acerbation of his e"isting dermatitis. The ,ourt of 5ppeal held that- <...there is no duty at common law re9uiring an employer to dismiss an employee rather than retain him in employment and allowing him to earn wages, because there may be some risk< The ,ourt of 5ppeal also considered its earlier decision in 'atton & 8utherland in which a different di&ision of the same court had said- <.n principle, the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employee#s own good.< .n Doodyear, the ,ourt of 5ppeal said the tension between allowing a willing employee to continue working and dismissing him for his own good can only be resol&ed by reference to the facts of each case and in the light of the nature and e"tent of the known risk. .n Withers, the risk was small, whereas in Doodyear the risk to ,o"all#s health was considerable. The ,ourt of 5ppeal described it as a <striking feature< of the case that not only did the works doctor ad&ise ,o"all to cease working with the paint,

/2 but the two managers most directly in&ol&ed with his welfare both said they would ha&e taken him off the %ob had they known of that ad&ice. The ,ourt of 5ppeal dismissed the appeal, saying <cases will undoubtedly arise when, despite the employee#s desire to remain at work notwithstanding his recognition of the risk he runs, the employer will ne&ertheless be under a duty in law to dismiss him for his own good so as to protect him against physical danger.< ,ases would undoubtedly arise when, despite the employee#s desire to remain at work notwithstanding his recognition of the risk he ran, the employer would ne&ertheless be under a duty in law to dismiss him for his own good so as to protect him against physical danger. That duty arose in the present case. 2- So# a$ >t $ ty. Watt & 'artfordshire where the court held that where social utility in&ol&es, so fire ser&ice authority will not be liable . The claimant fireman sued his employers in Negligence when he was in%ured by a hea&y %ack that had not been properly secured on his &ehicle whilst attending an emergency call. 'is case failed because, although the employer did owe the fireman aduty of care, whether it had breach that duty depended on whether it beha&ed reasonably in the circumstances. .n this case the circumstances were that the fire engine was being prepared for an emergency call, and it was not unreasonable that less attention was paid to matters of stowage than would ha&e been appropriate in other situations. It (as he$' that there (as no )rea#h of 'uty- The e!ergen#y of the s tuat on an' ut $ ty of the 'efen'antGs #on'u#t n sav ng a $ fe out(e ghe' the nee' to ta"e %re#aut ons(ord !enning stated that ,ommercial and to make profit is different from human to sa&e life . .n case of commercial purpose, there ha&ing the chance of liability. ). ;ra#t #a$ ty of ;re Causat ons. No man will be liable for breach of duty he fails upon doing effecti&ely and it would not be fit for the claimant to e"pect unreasonable %obs. S! th v L tt$e(oo'. where the fact that ! owned a disused cinema where a fire was started by &andals the fire caused damage to neighboring properties. The 9uestion was were the cinema owners under a duty of care to pre&ent the unlawful entry by &andals and whether the fire damage was reasonably foreseeable by the cinema$s owners. The owners of the damaged properties had not informed either the cinema$s owners or the police about the regular

/1 entry into the cinema by unauthorised persons and the e&idence of attempts at starting fires. 'eld that- there was no general duty of care, in all cases, to pre&ent a third party from causing damage to a claimant or his property by the third party$s deliberate wrongdoing. 4ut, as the cinema owners did not know about pre&ious acts of &andalism, the starting of the fire was not reasonably foreseeable by the cinema$s owners and therefore, there was specific duty to pre&ent &andals doing what they did. key point is that how much defendant is liable in the eye of the practicality. 7ne can e"pect repair the road but not to prepare the road. .f the defendant does more as re9uired then he will not be liable.

6. Genera$ an' a%%rove' %ra#t #e;rofess ona$ Test. whether the doctor is breach of duty or not could not possible by reasonableness test. .n case of professional, it needs to %ustify with same le&el, class not possible to find breach with another professional. The established Brincipal is that the appropriate test for %udging the standard of professional &iew that is not that of the ordinary man. The defendant is to be %udged by the standard of the ordinary skilled person e"ercising and professing to ha&e that special skill as held in 0 0OL56 = 1RIEN /OS;IT5L 65N5GE6ENT CO66ITTEE] same le&el of e"pertise does not re9uire. 7nly same profession is re9uired. This ,ase was that time only for the !octors. 4here the fact that Cr. 4olam was a &oluntary patient at mental health institution run by the Eriern 'ospital Canagement ,ommittee. 'e agreed to undergo electro@con&ulsi&e therapy. 'e was not gi&en any muscle rela"ant, and his body was not restrained during the procedure. 'e flailed about &iolently before the procedure was stopped, and he suffered some serious in%uries, including fractures of the acetabula. 'e sued the ,ommittee for compensation. 'e argued they were negligent for *1+ not issuing rela"ants */+ not restraining him *)+ not warning him about the risks in&ol&ed. In [L>H6ORE = 660] stated that 4olam test is not only confined to the !octor$s but
for any of the professionals, i.e. lawyers are also co&ered by the test. .n [0OLIT/O = CIT9 5ND /5C8NE9 /E5LT/ 5>T/ORIT9] ?the ;r n# %a$ (as esta)$ she' that ?a 'o#tor !ay )e neg$ gent even f there s a )o'y of !e' #a$ o% n on n h s favor& the Court that t (as for the Court an' not for the !e' #a$ o% n on to 'e# 'e the stan'ar' of #are re:u re' n ea#h #ase? ?the o% n on has to have a $og #a$ )as s& a <u'ge (ou$' on$y n e2#e%t ona$ #ase 'e# 'es that the o% n on of a nu!)er of other( se #o!%etent 'o#tors (ere not reasona)$y he$'-@ Cainly, in e"ceptional cases, the court may go beyond the consents of the ma%ority. a board was established with the doctors amongst them 6 agreed to do operation and ) disagreed not to do it. The court held that though operation was done by the

//
consents of the ma%ority. 'owe&er, the court do agree what ma%ority agree but negligence of doctors may establish though it was done by the consents of the ma%ority.

6otor 5## 'ent. While dri&ing the ,ar, the ,ar damaged the another car because
of illness of the !ri&er. .n this regard, if the !ri&er knows earlier that he has the problem, then he will be liable and if he does not know that he has the problem then he will not be liable. .n the instant case, there was lack of Dlucouse in the brain, he would not know of this problem and that was for the first time. [In 6ansf e$' v 4eeta) 2] where t (as he$' that (here the !e' #a$ reason that (as not "no(n to the 'efen'ant )rought h s %erfor!an#e )e$o( that o)Fe#t ve stan'ar' of #are& t (as the fa#tor that #ou$' )e #ons 'ere' n 'e# ' ng the 'efen'ant neg$ gen#e-

Ne( Dr ver. .f accident occurs by the new learner dri&er, in this regard, he will be
compared with a reasonable man not with a new dri&er as held in [NETTLES/I; = 4ESTON DRI=ER] where the fact is that ! a learner dri&er went out for her first lesson, super&ised by a friend ,. ! crashed the car into a lamppost, and , was in%ured. It (as he$' that. The learner dri&ers are to be %udged against the standard of the reasonably competent dri&er. The fact that a particular dri&er is ine"perienced and incompetent does not e"cuse his falling short of this standard. 5N! T'N key point is that the learner dri&er will be compared with a reasonable dri&er not with the learner dri&er. It s rre$evant that the %art #u$ar 'r ver s $earner.n [4ILS/ERE = ESSEH 5RE5 /E5LT/ 5>T/ORIT9] where it was held that to measure the standard of the %unior doctorLs, they will be compared with the more e"perienced colleagues.

Ch $'ren. to find the reasonableness, it will be compared with the same age of
the defendant as held in [6>LLIN = RIC/5RDS] where ! a 1H@year@old schoolgirl had a <sword fight< with , with plastic rulers in their classroom. 7ne of the rulers snapped and a piece of plastic entered ,$s eye, causing permanent damage. 4ut , lost in this ,ase.

Causat on *1a#tua$ Causat onI0ut for test,.

5 person who commits a negligent act will not be liable unless his or her act was the cause of the plaintiff#s in%uries. The test that the court usually use in deciding whether or not a particular act was the cause of the claimant$s in%ury is the Fbut for test$. 5 'efen'ant ( $$ not )e $ a)$e n tort un$ess t #an )e sho(n that h s tortuous #on'u#t (as the #ause of the 'a!age suffere' )y the C$a !ant- The #$ass # 'ef n t on of #ausat on (as g ven )y Lor' Denn ng n ,ork & Airby Cac(ean (imited ? f the 'a!age (ou$' not have ha%%ene' )ut for the %art #u$ar fau$t& then the fau$t s the #ause of 'a!age& f t (ou$' ha%%en Fust the sa!e& fau$t or no fau$t& then the fau$t s not the #ause of the 'a!age@Cor" v 8 r)y 6a#Lean L ! te' the fact is that a painter entered the defendant$s employment without telling them that he was sub%ect to epileptic fits and that his

/) doctor had forbidden him to work at heights. While working on a platform, which did not comply with statutory re9uirements, he had a fit, fell to the ground and was killed. The claimant must pro&e that harm would not ha&e occurred #but for# the negligence of the defendant. .t is possible to apply the #but for# test where there is assumption as to how the claimant would ha&e beha&ed in a gi&en situation. The 9uestion of causation may also arise where there is a dispute about what the defendant would ha&e done in a gi&en situation. 8ometimes, it may be clear that the defendant#s breach of a duty did not actually cause the harm suffered by the claimant. This test is also best illustrated by good e"ample in 0arnett v Che$sea 7 8ens ngton /os% ta$, where the claimant went to the hospital for treatment but the doctor denied to e"amine him sent him home. Eew days later he died by arsenic poisoning. .t was held that the doctor was negligent in not e"amining the man but this negligence had not caused the man$s death as e&en if the doctor had e"amined him, he still would ha&e died because the poisoning could not ha&e been detected and cured in time. .t is possible to apply the Fbut for$ test where there is speculation as to how the claimant would ha&e beha&ed in a gi&en situation. If the D (ou$' not re$ e' u%on the state!ents of C thus her e2%en' ture 'oes not fa$$ in /e'$ey 0yrne v /e$$er in where the representor knew that the ad&ice was to be communicated to the representee, knew that it was &ery likely that the representee would rely on the ad&ice and was fully aware of the nature of the transaction. If the C re$ e' on DEs state!ents or o% n on then t (ou$' )e fa$$ ( th n the %r n# %a$ of /e'$ey 0yrne v /e$$er>%on fa $ ng to get 'a!ages )y v rtue of /e'$ey 0yrne& )ut thereafter C !ay st $$ )e a)$e to #$a ! for the e2%en' ture )y re$y ng on Ross v Caunters for %ure E#ono! # LossRoss v Caunters where the testator instructed solicitors to draw up his will to include gifts of chattels and a share of his residuary estate to the plaintiff, who was his sister@in@law. The solicitors drew up the will accordingly, naming the plaintiff and gi&ing her address in the will. The testator re9uested the solicitors to send the will to him at the plaintiff$s home, where he was staying, to be signed and attested. The solicitors sent the will to the testator with a co&ering letter gi&ing instructions on e"ecuting it but failed to warn him that under s 1H of the Wills 5ct 1G)J attestation of the will by a beneficiary$s spouse would in&alidate a gift to the beneficiary. The plaintiff$s husband attested the will which was then returned to the solicitors who failed to notice that he had attested it. The testator died two years later, and nine months after that the solicitors informed the plaintiff that the gifts to her under the will were &oid because her husband had attested the will. The plaintiff brought an action against the solicitors claiming damages in negligence for the loss of the gifts under the will, and for her legal e"penses in in&estigating her claim up to the date of issue of the writ. The plaintiff alleged that the solicitors were negligent in failing *i+ to warn the testator about the conse9uences of s 1H, *ii+ on the return of the will, to check that it had been e"ecuted in conformity with the 1G)J 5ct, *iii+

/6 to obser&e that the plaintiff$s husband was an attesting witness, and *i&+ to draw that fact to the testator$s attention so that he could re@ e"ecute the will or make a new and &alid will. The solicitors admitted negligence but denied that they were liable to the plaintiff, contending *a+ that a solicitor was liable only to his client and then only in contract and not in tort, and could not, therefore, be liable in tort to a third party, *b+ that for reasons of policy a solicitor ought not to be liable in negligence to anyone e"cept his client, and *c+ that in any e&ent the plaintiff had no cause of action in negligence because the damage suffered was purely financial. The solicitors further contended that if damages were reco&erable they ought not to include any sum in respect of the plaintiff$s legal e"penses prior to the issue of the writ, although they might be reco&erable as costs in the action- 'eld the solicitors were liable to the plaintiff because 1+ a solicitor who was instructed by his client to carry out a transaction to confer a benefit on an identified third party owed a duty to that third party to use proper care in carrying out the instructions because i+ it was not inconsistent with the solicitor$s liability to his client for him to be held liable in tort to the third party, ha&ing regard to the fact that the solicitor could be liable for negligence to his client both in contract and in tort, *ii+ there was a sufficient degree of pro"imity between a solicitor and an identified third party for whose benefit the solicitor was instructed to carry out a transaction for it to be within the solicitor$s reasonable contemplation that his acts or omissions in carrying out the instructions would be likely to in%ure the third party, and *iii+ there were no reasons of policy for holding that a solicitor should not be liable in negligence to the third party, for the limited duty owed to him of using proper care in carrying out the client$s instructions differed from the wider duty owed to the client of doing for the client all that the solicitor could properly do, and far from conflicting with or diluting the duty to the client was likely to strengthen it= /+ the fact that the plaintiff$s claim in negligence was for purely financial loss and not for in%ury to the person or property, did not e"clude her claim, for, ha&ing regard to the high degree of pro"imity between her and the solicitors arising from the fact that they knew of her and also knew that their negligence would be likely to cause her financial loss, the plaintiff was entitled to reco&er the financial loss she had suffered by their negligence. Judgment would therefore be entered for the plaintiff for damages to be assessed= )+ the plaintiff$s legal e"penses of in&estigating her claim up to the date of the issue of the writ could not, howe&er, be reco&ered as damages but only as costs, so far as they properly ranked as such. In th s regar' the %r n# %a$ (as %o nte' that the 'efen'ant shou$' )e he$' $ a)$e for e#ono! # $oss )y h s neg$ gent #on'u#t (hen he #an reasona)$y foresee that the C$a !ant suffere' f nan# a$ $oss as a resu$t of h s neg$ gen#e-

/H Ro) nson v ;ost Off #e- The 9uestion of causation may also arise where there is a dispute about what the defendant would ha&e done in a gi&en situation, as in- 04olitho & ,ity M 'ackney '53. 8ometimes, it may be clear that the defendant$s breach of a duty did not actually cause the harm suffered by the claimant. [05RNETT = C/ELSE5] 0the fact is that where ,laimant$s went to the hospital with her husband but the doctor did not take necessary steps, the wife sued to the !octor, but it was &ery late to take in the hospital, here the doctors was not liable because proper treatment could not sa&e the life of 'usband3 where it was established that the ,laimant need to pro&e that but for the !efendant act, he would not ha&e suffered the damage. Where it was held that , would probably ha&e died e&en if the proper treatment ha&e been gi&en promptly, so the hospital$s negligence was not the cause of his death. There are two purposes of the 4PT E7O TN8T a+ To find factual link between the ,laimants in%ury and breach of duty of the !efendant. b+ To eliminate the irrele&ant factors which has no bearing in damages> To cut off the factors from the fact which is not related to the damages. 5%%$ #at on of 0>T for TEST. there are ) *three+ areas in which the Fbut for$ test gi&es rise to problem ;re e2 st ng #on' t ons. where the damage is caused by pre e"isting condition rather than by the defendant$s breach, the defendant will not be liable for all the damages. In ;erfor!an#e Cars L ! te' v 5)raha! where the defendant crashed into a damages Oolls Ooyce ,ar. The ,laimant$s ,ar had already been in&ol&ed in another crash and the claimant had already awarded the cost of his car in the earlier %udgment. 4ecause the claimant had already been awarded the cost of repairing of the car it was held that the defendant had caused no additional loss to the ,laimant. O! ss on. another difficult area in&ol&es loss caused by an omission to act rather than an act. The test is difficult to apply where the &iolation consists of an omission, where the negligence of the defendant takes the form of an omission. In 6# 4 $$ a!s v S r 4 $$ a! 5rro$ 7 Co- where the claimant fell to his death at work because he was not wearing safety belt. The defendants were in breach of their statutory duty to supply safety belts but there was e&idence that the ,laimant would not ha&e taken safety belt e&en the defendant had supplied the safety belt. 6u$t %$e Cases. where / *two+ persons cause damage to the ,laimant, the but for test would be answered in the affirmati&e for both defendants. In Coo" v Le( s where the ,laimant was in%ured by a gun shot and it was un clear which of the two defendants has caused the in%ury as both of the parties ha&e fired simultaneously. .t was held that both parties were liable because

/I the burden of proof lay on the defendants to show that they had no been negligent and they had failed to discharge the burden. 5#t of a th r' %arty. if an act of a third party is the true cause of the claimant$s damage, the defendant will not be liable. .n 8n ght$ey v <ohns where . 5lthough 4ut for Test works well but it gi&es rises in se&eral situations, especially where there is more than one possible cause of the claimant$s loss. Thus where the claimant$s loss is due to a pre e"isting condition, rather than the defendant$s action, then the defendant may only be liable for part of damage suffered by the ,laimant. .n 0,ulter & Qau"hall Cotors3 where the plaintiff suffered a graze to his ankle due to the negligence of the defendant. .t was held that the plaintiff could co&er only for grage suffered by the defendant but not for the operations. Berformance ,ar & 5braham is an e"ample of a pre e"isting condition working in fa&or of the plaintiff, rather than against him as in ,ulter. .n both cases pre e"isting condition was treated as the effecti&e cause of part of the plaintiff$s loss. 'owe&er, the claimant does not ha&e to pro&e that the defendant$s breach of duty was the main cause of the damage pro&ided that it materially contributed to the damage. .n 04onnington ,astings (imited & Wardlaw3. .t may be sufficient for the claimant to show that the defendant$s breach of duty made the risk of in%ury more probable. In [6# Ghee v Nat ona$ Coa$ 0oar'] where there are a number of possible causes, the claimant must still pro&e the defendant$s breach of duty caused the harm or was a material contribution where regarding washing facilities in the factory for the labor was not pro&ided. 4ut it need to pro&ide washing facility by the employer to the employee and that$s why a diseases was arose namely, !NOC5T.T.8 !.8N58N. Now the 9uestion is whether his employer will be liable or not> Where it was held that ! was liable in negligence because their breach of duty had caused, or materially contributed to , the in%ury suffered by ,, notwithstanding that there were other factors for which ! was not responsible which had contributed to the in%ury. C5.N(?, C, D'NN C5AN8 4PT E7O TN8T N58.NO. In [4 $sher v Esse2 5/5] where the claimant$s case is based on pro&ing a material contribution to the damage, the defendant is responsible only for that part of the damage to which his negligence has contributed. .n 0'oltby & 4righam M ,owan (imited3. The case of CcDhee has also been applied to a case where there were ) *three+ possible causes of in%ury 0Eitzgerald & (ane and another3. .t need to look why the diseases arose either tortuous or non tortuous, the ,laimant has to pro&e that !efendant$s breach materially increased the risk of in%ury. 4ecause the !efendant failed to pro&ide the washing facilities. 4ut it is &ery hard for the medical test to identify the disease why it appears. .n this regard, the ,laimant need to pro&e the abo&e mentioned underlined as the !efendant did not pro&ide the material instrument for washing for the ,laimants.

/J Eirst of all, 4PT E7O TN8T NNN! T7 5BB(? 4PT always one may not get remedy in the said test. .f no remedy found then the abo&e mentioned ,ase 6# Ghee need to bring out to get damages. .N [15IRC/IL = GLEN/5=EN] where Cesothelioma disease, one kind of skin disease found because of entering dust namely 5sbestos !ust, in the 4ody of the ,laimant. (ast 12 *ten+ year he worked under ) *three+ of the employer. The ,ourt faced problem because the ,ourt are unable to find actually when the ,laimant was in%ured by the diseases. 1 n' the ' fferen#es )et(een 6# Ghee an' 1a r#h $'The Brincipal was established that ?so $ong as ev 'en#es are n #on#$us ve& a$$ of the 'efen'ants ( $$ )e $ a)$e@ as held in E.5O,'.(! ,ase, 5ll will be liable as no specification that who is guilty. 'owe&er, the claimant does not ha&e to pro&e that the defendant#s breach of duty was the main cause of the damage pro&ided that it materially contributed to the damage. .t may be sufficient for the claimant to show that the defendant#s breach of duty made the risk of in%ury more probable. Where there are a number of possible causes, the claimant must still pro&e the defendant#s breach of duty caused the harm or was a material contribution. Where the claimant#s case is based on pro&ing a material contribution to the damage, the defendant is responsible only for that part of the damage to which his negligence has contributed. The case of CcDhee has also been applied to a case where there were ) *three+ possible causes of in%ury.
The decision was refined in 0ar"er v Corus >8 L ! te' *2++3, where 'ouse of (ords stated that damages should be set in proportion to the amount of time a worker spent with a ,ompany.

5nother area in which the Fbut for$ test can gi&e rise to problems in where there is more than one cause for the claimant in%ury. Eor e"ample- where / *two+ persons both cause harm to the claimant. 8o that he would ha&e still suffered harm but for the negligence of either of the defendants. .n such situations, the Fbut for test$ mean that neither defendant was liable to the claimant but the court would not reach such a conclusion in practice. This situation was considered by the ,ourt of 5ppeal in 'oltby & 4righam and ,owan (imited where the claimant suffered in%ury as a result of e"posure to a no"ious substance by two or more persons, but the defendant claimed only against one. The ,ourt of 5ppeal held that the defendant was liable but only to the e"tend that he had caused the claimant in%ury.
[Co!%ensat on 5#t& 2++3& Se#t on J +3] where 1 pay the entire damages of the rest

because of their absences but he must collect the same from the rest of the defendants which holds that the defendants are %ointly and se&erally liable. the statutes apply to mesothelioma and if there are other diseases with the same characteristic they are apparently left to the ,ommon law. The #o!) ne' principal that was established from the abo&e mentioned two laws is that 1+ in case of Cesothelioma, 5ll defendants will be same liable both %ointly and se&erally, /+ in case of other diseases, common law test need to be apply, i.e. 4PT E7O TN8T, Eair ,hild case, Cc Dhee ,ase etc.

/G Ne(s Letter. 8upreme ,ourt was asked to re&iew the Eairchild e"ception to the general test for causation *but for+. ,ausation is normally decided on the basis of but for test. ,an it be shown on the balance of probabilities that but for the defendant$s conduct the &ictim would not ha&e suffered. .n Eairchild ,ourt indicates that it was prepared to apply a lesser test, namely that causation could be established by e&idence that the defendant has materially increased the risk of in%ury to the ,laimant. This e"ception to the 4PT E7O TN8T was later de&eloped by the 'ouse of (ords in 0ar"er v Corus >8 L ! te' which led to Barliamentary inter&ention under 8ection ) of the ,ompensation 5ct, /22I to &ary this rule. .n S en" e( #K where the daughter of the deceased *Crs. ,astello+ brought a claim as administrati" of her mother estate against the owner of a factory in which Crs. ,ostello had worked between 11II and 11G6. 5lthough Crs. ,ast had worked mainly in the office, she had spent time in the areas of the factory which were from time to time contaminated with asbestos. There is clear indication that the Eairchild test will in future be limited in application, with the potential at a future date, depending on scientific and medical ad&ances of being abolished altogether. .t would seem that Nnglish law had adopted a rule based approach to the issue of causation rather than a commonsense approach. This certainly has the ad&antage of certainly, howe&er, as technology ad&ances it become more and more difficult to establish liability against doctors, employers because proof of causation will become too difficult to obtain.

5NS4ER 4RITING ST9LEIS

The essential issue which arises from the gi&en fact re&ol&es around the failure of S regarding TTTTTT. .n ad&ising the parties, it needs to consider whether Ualal owes them a duty of care in respect of the statementsLdamages that he made. .t is well established law that the road user owes a duty of care to the other road user including pedestrians *!onoghue & 8te&enson+, as ! owes , duty of care. The fact outlined in the 9uestion suggests a possible claim in negligence against the council andLor the doctors. Thus it is irrele&ant that a particular dri&er is a learner *Nettleship & Weston !ri&er+. Thus ! must be %udged by the standard of the reasonable, competent dri&er, and he clearly does not meet this standard. 'a&ing decided that ! is in breach of his duty, now it need to consider whether his breached caused ,$s in%uries. This damage would not ha&e happened but for his breach of duty of the defendant.

/1 4ut we need to consider whether there has been a break in the chain of causation, that is whether the negligence of the hospital constitutes a no&us actus inter&eniens.
The general rule is that there is no duty at common law to pre&ent the persons who is harming other persons.

5pplying those authorities to the gi&en fact of the problem, Now the 9uestion may arise !id ! owe , any duty of care. ! should ha&e foreseen regarding the disputes 7n this basis, it could be said that ! owed , a duty of care, that ! breached that duty, and as a result , suffered loss and damage. .t is no defense nor it would not be logical to say that TTTTTTTT. 5t this stage my ad&ice to , .n conclusion, it appears that , faces a number of obstacles, if he is able to pro&e that ! , in this case ha&e been negligent or if the negligent can be established, he may face similar difficulties in pro&ing causation and foreseeability and pro"imity of loss and damage as he has suffered.