LAW OF NEGLIGENCE

DUTY OF CARE

Learning Objectives
At the end of this topic you should be able to: (a)have an overview of the history of negligence; (b) describe the function of duty of care in negligence; (c) appreciate the way duty of care has been defined and developed; and (d) apply the principles of duty of care in a new situations.

Definition
The term 'negligence' has 2 different meanings It refers to the condition or state of mind of a person at a given moment in time. In this sense, the word means 'recklessness' or 'carelessness'. Negligence is a name of an independent tort.

Legal definition
Winfield the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. Lord Wright in Loghelly Iron & Coal v M'Mullan 'negligence means more than heedless or careless conduct. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing'.

3 principal elements
Duty of care Breach of duty Damage/injury resulting from that breach - The damage must not be too remote.

THE DUTY OF CARE

Duty means an obligation or a burden imposed by law, which requires a person to conform to a certain standard of conduct. Whether a duty of care is owed in any given circumstances is a question of law, to be decided by the judge. The concept of duty of care was 1st recognised by the House of Lords in Donoghue v Stevenson.

Pre-Donoghue v Stevenson
The 1st attempt to formulate a general principle was made by Lord Esher in Heaven v. Pender (1883). The P was a ship painter in the D's dock. A scaffolding erected by the D which the P was using gave away and the P was injured. Held since there was no contractual relationship between the parties, the action could not be maintained.

Lord Esher observed;

Whenever one person is by circumstances placed in such a position with regard to another, that everyone of ordinary sense who did not think and would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.

Donoghue v Stevenson (1963)

A friend of the P had purchased a bottle of ginger beer at a caf. The P had consumed some of the drink but when she poured out the reminder of the contents of the bottle, a decomposed snail was found in the drink. As the bottle was black in colour the P was unable to see its contents much earlier. The P suffered shock and subsequently became ill. She sued the manufacturer of the ginger beer.

The ratio of D v S
The House of Lord held that the D being manufacturer of the ginger beer, owed a duty of care to the P, as the ultimate consumer of the drink. This duty was to take reasonable care to ensure that the bottle did not contain any substance which was likely to cause injury to anyone who purchases it in due course

Neighbour principle
Lord Atkin in his dictum (dicta) enunciated what is known is Neighbour principle 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 forsee would be likely to injure your neighbour..

Cont.
Who then, in the law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omission which are called in question.

Significance of D v S
D v S laid the foundation of the law of negligence. The most important aspects of the case are Negligence is recognized as a separate tort An action for negligence can exist whether or not there is a contract between the parties it destroyed the privity fallacy It introduced a general test to determine the existence of a duty of care using neighbour principle which is based on reasonable foreseeability and proximity of relationship.

Home Office v Dorset Yacht Co. Ltd (1970)

Whether a duty situation exists in any given case, Lord Atkins statement should be regarded as a statement of principle / general application unless there is some justification or valid explanation for its exclusion.

Fact
Seven borstal boys had escaped from an island where they were undergoing training. The escape was due to the negligence of the officers who were in bed. The boys caused damage to the P's yacht. The P sued the Home office. Issue whether the home office and its officers owed any duty of care to the owner of the yacht. (Damage was caused by a 3rd party)

Decision
The court observed - 'when a new point emerges, one should ask not whether it is covered by authority but whether recognized principle apply to it.' Held the duty of care exists in such circumstances.

LKTP (FELDA) v Mariam

A kongsi-house built on FELDAs land collapsed and killed the deceased. He sued FELDA for negligence in providing a safe kongsi-house. FELDA contended that the deceased was the employee of the sub-contractor. FELDA therefore owed no duty of care to him at all. Held Liability depending on contractual relationship was abandoned by the House of Lords in D v S. The D was held liable for negligence.

Present requirements of duty of care

Laid down by the House of Lords in Caparo Industries plc v Dickman (1990). (a) a reasonable foreseeability of harm (b) proximity of relationship between the plaintiff and defendant (c) it must be just, fair and reasonable to impose a duty of care.

Foreseeability
The test of foreseeability is objective i.e. what a reasonable person could have been expected to foresee. The P does not have to be individually identifiable for the D to be expected to forsee the risk of harming them. It is sufficient if the P falls within a category of people to whom a risk of harm was foreseeable. E.g the end user of a product.

Proximity of relationship
Basically refers to the closeness of the relationship between the defendant and the claimant. It does not necessarily mean physical closeness. The degree of closeness differs according to the type of damage and other factors.

Lord Oliver in Alcocks case observed;

.in the end, it has to be accepted that the concept of proximity is an artificial one which depends more upon the courts perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction

Fair, just and reasonable

The fair, just and reasonable criterion enables the courts to determine liability on the basis of policy. Thus, although a case meets the requirements of foreseeability and proximity, the courts may find there is a sound public policy reason for denying the claim.

Caparo v Dickman
Caparo introduces a new approach in deciding a duty of care called incremental approach. In using the incremental approach in determining the existence of duty of care(a)the P must point to a direct precedent (authority or to a closely analogous precedent in which a duty of care has or has not been imposed.)

Cont.
(b) In new cases in which no relevant authority exist, the court shall apply the three factors (i) Foreseeability (ii) Proximity (iii) Public policy

Marc Rich v Bishop

The House of Lords held that a classification society ( an independent and non-profitmaking entity) did not owe a duty of care to the owner of cargo on a vessel that had been negligently certified as seaworthy when the vessel subsequently sank. The tripartite test for establishing a duty of care promulgated in Caparos case is now to be of universal application.

MPAJ v Steven Phoa

The Federal Court Followed Caparo and decided that on the facts and the circumstances of this case, it was not fair, just and reasonable to impose a duty of care on MPJA or other local councils in this country in similar situations.

Policy consideration in negligence

Winfield states that 'the use of the word policy indicates no more than that the court must not decide simply whether there is or is not a duty but whether there should or should not be one, taking into account both the established framework of the law and also the implications that a decision one way or the other may have for operation of the law in our society.'

Public policy
Public policy extends to moral, social, economic and political factors. Even though a duty of care is found to exist on grounds of foreseeability and proximity, liability is nonetheless excluded on grounds of public policy.

Hill v Chief Constable of West Yorkshire

Also known as 'Yorkshire murder case'. The P's daughter was the last victim of the 'Yorkshire ripper'. The mother sued the police department and alleged that the police was negligent for their failure to arrest the criminal.

DECISION
The House of Lords held that there was no duty on the part of the police towards general public to arrest an unidentified criminal. It would be contrary to public policy if such a duty was imposed upon them.

Rondel v Worsley
Held the advocates, whether barristers or solicitors, were immune from a claim for negligence by a disappointed client in respect of the manner in which a case was conducted in court. (litigation) This immunity is founded on public policy. Does not apply to other aspects of lawyers job.

Mohd Nor Dagang v Tetuan Mohd Yusof

The P alleged that the D (lawyer) was negligent in defending his case. As a result the P was held liable and ordered to pay a sum of more than half million. The court applying the principle in Rondel held the D not liable as the principle of limited immunity of advocates applies in this case.

Duty and the foreseeable plaintiff

Basic principle duty of care should be owed to the plaintiff. The D did not owe a duty of care to the particular plaintiff if the plaintiff was unforeseeable. The P cannot rely on a duty that the D may have owed to others.

Palsgraf v Long Island Railroad

US case but the principle has been adopted in English cases. Fact the negligence of railway employees caused a passenger to drop a box of fireworks. The fireworks exploded and knocked over some heavy metal scales several feet away, which struck the P.

Decision
The New York Court of Appeal rejected P claim for damages, holding that if any wrong had been committed, it had not been committed against the P, because she was not a foreseeable victim of the railway companys negligence. According to the jury, the P was beyond the range of foreseeable peril

Bourhill v Young
The D motor-cyclist was killed in a crash caused by his own negligence. The P heard the crash but did not see it. She only saw the scene of the accident after the Ds body had been removed. She suffered nervous shock and sued the D.

Decision
The House of Lords held the D not liable because he did not owe the plaintiff a duty of care. Although it was foreseeable that negligent driving might endanger other road users, the particular injury to the plaintiff was not foreseeable.

Haley v London Electricity Board

The D's servants had excavated (dig up) a trench in a highway and then placed some notice boards and the handle of hammer on the pavement. The handle could easily be seen by a normal person. However the P who was blind tripped over the handle and injured himself.

Judgement
The House of Lords held that the D liable. Although their warning was sufficient for normal person, it was inadequate for blind people. They should foresee that not all road users are normal-sighted person.

Actionable Omissions
Another factor in deciding the existence of duty of care is whether the act is in the form of commission (positive act) or omission (negative act). As a general principle omission does not give rise to a duty of care. The principle is that a person should not harm others but he is not under a duty to do something for the benefit of another.

Stovin v Wise
The P was involved in a road accident at a dangerous junction. The question arose whether the local authority, which had resolved to carry out improvement to the junction, could be liable for its failure to do so. By a 3:2 majority, the House of Lords held that the local authority was not liable for its omission to act. It had a statutory power to improve the junction, but not a duty to do so.

Lord Hoffmann observed;

There are sound reason why omissions require different treatment from positive conduct. It is one thing for the law to say that a person undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm.

 a special relationship between the plaintiff and Df

a special relationship between the defendant and third party

Actionable

Omission

(Exception to the
defendant negligently causes or permits a source of danger to be created which is then interfered by third party

general principle)
dDf knew or had means of knowledge that a third party was creating a danger on his property and failed to take reasonable steps to abate

Lew Thai v Chai Yee Chong

The P was injured while trying to build an embankment to prevent rising water from flooding the mine. He alleged inter alia that the D (co-worker) had failed to take any or adequate precautions for his safety. The court held the D liable as there was a special relationship between the parties.

Parimala v PLUS (1997)

A driver of a car traveling on the highway was killed when the car collided with a stray cow. The court found the D as the highway authority responsible for the maintenance and safety of the highway, liable in negligence. PLUS had failed to repair the hole in the fence which the cow used to enter the highway.

Duty of care check lists

Duty of care
Foreseeability Proximity Policy fair, just and reasonable Nature of conduct act or omission Type of plt Type of Df Type of damage Whether it was caused by the Df or a 3rd party