Negligence

Introduction Negligence began to be recognised as a tor t in it s own right around the beginning of the nineteenth century. Before that time, the dominating action for personal injury was the writ of trespass. Trespass was initially concerned only with direct acts, however, during the nineteenth century the focus shifted to the distinction between intentional wrongs (trespass) and the unintentional (negligence). As we have seen, negligence was originally described in terms of a duty imposed by law and thus it will be seen that duty is one of the three ey elements of negligence today. Negligence evolved as a means of loss!shifting at a time when there was little or no insurance or state welfare provision. The industrial revolution in the nineteenth century brought with it increased ris s of injury to those wor ing in factories, mines, "uarries, and other dangerous situations. The development of railway transportation and mass production dramatically increased the potential for many people to be affected by the faulty conduct of strangers, at the same time that the development of incorporations meant that there would be a company to sue rather than an individual. The damage in such cases would have been personal injury or death and, to a lesser e#tent, property damage. What is Negligence? Negligence is when someone who owes you a duty of care has failed to act according to a reasonable standard of care and this has caused you injury. What is Duty of Care? The law says that if it is reasonably foreseeable that you might suffer some sort of harm or loss because of something someone else does, then that person owes you a duty of care. This duty of care is a reasonably comple# legal issue, but basically means that someone must act with a reasonable standard of care. $f this person does not follow their standard of care, and you suffer harm or loss as a result, then they have been negligent. %or e#ample, it is reasonably foreseeable that if the carer of a person with a disability did not act in the correct way, that the person with a disability might

suffer harm or loss. Therefore this carer would owe a duty of care not to injure the person with a disability.

The Elements of Negligence A number of elements have been established in order to prove the tort of negligence. %irstly, there must be a duty of care. &econdly, there must be a breach of this duty of care. Thirdly, there must be loss or damage and fourthly, there must be a causal lin between the breach of the duty of care and the loss or damage suffered. Negligence is the most common and therefore the most important of all the torts. %or the claimant to succeed in a negligence case, he will have to prove the following' ( The defendant owed a legal duty of care to the claimant. ) The defendant breached that duty. * The claimant suffered damage as a result of the breach of duty.

DUTY OF CARE The duty of care arises in the tort of negligence, a relatively recently emerged tort. Traditionally, actions in tort were divided into trespass and trespass on the case, or simply +case,. Trespass dealt with the situation where the injury was immediate, in other words direct and foreseeable. Actions based in case however, covered conse"uential injuries in the case of libel or deceit, etc. An underlying problem of this approach was that there was no fundamental principle or test that was applicable to a novel set of facts.

At common law, duties were formerly limited to those with whom one was in privity one way or another, as e#emplified by cases li e -interbottom v. -right ((./)). $n the early )0th century, judges began to recogni1e that the cold realities of the &econd $ndustrial 2evolution (in which end users were fre"uently several parties removed from the original manufacturer) implied that

enforcing the privity re"uirement against hapless consumers had harsh results in many product liability cases. The idea of a general duty of care that runs to all who could be foreseeably affected by one3s conduct Donoghue v Stevenson [1932] AC 562 ( ! "c# %act' At about ..40 p.m. on )5 August (6)., 7rs 7ay 8onoghue (whose maiden name was 7 c,Alister) went to a cafe owned by %rancis 7 inchella, nown as the -ellmeadow 9afe, in -ellmeadow 2oad, :aisley. A friend of hers (probably a female friend) bought a bottle of ginger beer and an ice cream. The bottle was made of opa"ue glass. 7inchella poured part of the contents into a tumbler containing the ice cream. 7rs 8onoghue dran some of this and the friend then poured the remainder of the ginger beer into the glass. $t was said that a decomposed snail ;oated out of the bottle and the pursuer claimed that she suffered shoc and gastroenteritis, and as ed for <400 damages from the manufacturer of the ginger beer, 8avid &tevenson of :aisley. The pursuer claimed that a manufacturer of products was liable in negligence to a person injured by the product, but the defendant claimed that there could be no liability as there was no contract between him and the pursuer. The case went all the way to the =ouse of >ords and she won. el$' on the point of law involved, that such a defendant could be liable to such a claimant in negligence.

!egal %est for &in$ing out Whether a !egal Duty of Care '(ists
The legal test for finding out whether a legal duty of care e#ists, in any given situation, was first set out in the famous case of 8onoghue v &tevenson ((6*)). The Neighbour Principle A principle developed by >ord At in in the famous case of Donoghue v Stevenson ?(6*)@ A9 45) (=> &c) (&nail in the Bottle case) to establish when a duty of care might arise. The principle is that one must ta e reasonable care to avoid acts or omissions that could reasonably be foreseen as li ely to injure one3s neighbour.

>ord At in3s famous statement in the =ouse of >ords in the case of 8onoghue v &tevenson ((6*)) AThe rule that you are to love your neighbour becomes in law, you must not injure your neighbourB and the lawyer3s "uestion, 3who in law is my neighbourC, receives a restricted reply. Dou must ta e reasonable care to avoid acts or omissions which you can reasonably foresee would be li ely to injure your neighbour. -ho, then, in law is my neighbourC The answer seems to be ! persons who are so closely and directly affected by my act that $ ought reasonably to have them in contemplation as being so affected when $ am directing my mind to the acts or omissions which are called in "uestion.A

%rom >ord At in3s statement it can be seen that in order for a duty of care to e#ist there must be reasonable foresight of harm to persons whom, it is reasonable to foresee may be harmed by your acts or omissions.

e$ley )yrne * Co !t$ + eller * ,artners !t$ AC -65 is an English tort law case on pure economic loss, resulting from a negligent misstatement. :rior to the decision, the notion that a party may owe another a duty of care for statements made in reliance had been rejected, with the only remedy for such losses being in contract law. The =ouse of >ords overruled the previous position, in recognising liability for pure economic loss not arising from a contractual relationship, introducing the idea of Aassumption of responsibilityA. &acts =edley Byrne was a firm of advertising agents. A customer, Easipower >td, put in a large order. =edley Byrne wanted to chec their financial position, and credit!worthiness, and subse"uently as ed their ban , National :rovincial Ban , to get a report from Easipower,s ban , =eller F :artners >td., who replied in a letter that was headed, A-ithout responsibility on the part of this ban A $t said that Easipower was, A9onsidered good for its ordinary business engagementsA

The letter was sent for free. Easipower went into li"uidation and =edley Byrne lost <(G,000 on contracts. =edley Byrne sued =eller F :artners for negligence, claiming that the information was given negligently and was misleading. =eller F :artners argued there was no duty of care owed regarding the statements, and in any case liability was e#cluded. .u$g/ent The court found that the relationship between the parties was Asufficiently pro#imateA (&pecial 2elationship) as to create a duty of care. $t was reasonable for them to have nown that the information that they had given would li ely have been relied upon for entering into a contract of some sort. This would give rise, the court said, to a Aspecial relationshipA, in which the defendant would have to ta e sufficient care in giving advice to avoid negligence liability. =owever, on the facts, the disclaimer was found to be sufficient enough to discharge any duty created by =eller3s actions. There were no orders for damages. Economic loss caused by negligent misrepresentation is recoverable where' a special relationship e#ists between the partiesB the defendant accepted responsibility in the circumstances of the adviceB and the plaintiff relied upon the misrepresentation

>ater, in the H.I., the law has developed certain categories of negligence, as suggested by >ord Bridge in Ca0aro 1n$ustries 0lc + Dic2/an ?(660@ ( All E.2. 45., when he stated that Jthe law should develop new categories of negligence incrementally and by analogy with established categories rather than by a massive extension of a prima facie duty of care restrained only by an indefensible consideration which ought to negative or reduce or limit the scope of the duty or the class of person to whom it is owed.K !34D 43"51!!6

$ agree with the fact that it has now to be accepted that there is no simple formula or touchstone to which recourse can be had in order to provide in every case a ready answer to the "uestions whether, given certain facts, the law will or will not impose liability for negligence or in cases where such liability can be shown to e#ist, determine the e#tent of that liability. :hrases such as Aforeseeability,A Apro#imity,A Aneighbourhood,A Ajust and reasonable,A Afairness,A Avoluntary acceptance of ris ,A or Avoluntary assumption of responsibilityA will be found used from time to time in the different cases. But, as your >ordships have said, such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual situations which can e#ist in particular cases and which must be carefully e#amined in each case before it can be pragmatically determined whether a duty of care e#ists and, if so, what is the scope and e#tent of that duty.