Doctrine of a Duty of Care

QUESTION 1

The word tort is derived from the French word of the same spelling which means “mischief, injury, wrong, or calamity” from the Latin tortus meaning “twisted”. It is considered that one of the main ways to claim for compensation is through the doctrine of a Duty of Care, which is when one party is liable to another in negligence.

Tort and breach of contract are differentiated as where there is a breach of contract the rights and duties are personal to the contracting parties whereas in the law of tort, rights and duties are owed to everyone and by everyone. Out of all of the subdivisions of civil law, tort and contract have the most similarities although many cases fall exclusively into one or the other.

In this case, David has been sold a property in which dry rot has appeared after two years despite the vendor of the property (Eleanor) providing a report from a company named Eradit Ltd stating that there was no evidence of dry rot. Eradit Ltd has since admitted that an unqualified trainee carried out the inspection and the report was negligently prepared. Negligence is one of a number of different types of tort.

A common law principle, vicarious liability is where a superior is responsible for the acts of their subordinate and is something which may be applied to this scenario. Under the respondeat superior doctrine employers are vicariously liable for negligent acts or omissions by their employees during the course of employment as illustrated in Cassidy v Ministry of Health (1951)[1]. For such an act to be considered within the course of employment it must be authorised or connected with an act that has been authorised. Usually an employer will be insured in respect of vicarious liability.

In Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964)[2] (‘Hedley Byrne’) the ruling was based on pure economic loss resulting from a negligent misstatement. A negligent misstatement is where a liability arises not because of a negligent act but because of negligent words.

Prior to this case, the concept that one party may owe another party a duty of care for statements which had been relied on had been rejected as the only available remedy was found in contract law. Hedley Byrne therefore overruled the previous position.

In determining the application of the rule in Hedley Byrne, the courts apply a triple test wherein the necessary relationship of proximity between the maker of a statement and the person that relies upon it exists where:-

1. Advice is required for a purpose known to the adviser when the advice is given;

2. The adviser knows that the advice will be communicated to the advisee; in order to be used for that purpose;

3. It is known that the advice will be communicated to the advisee for that purpose without independent inquiry;

4. It is so acted upon by the advisee to his detriment.

The Hedley Byrne rule results in agents being personally liable to third parties for not only statements of fact but also statements of professional opinion or advice upon which a third party relies.

In accordance with English law duty of care is something which may be owed from one party to another so that they do not suffer unreasonable harm or loss. The origins of duty of care may be found in the case of Donoghue v Stevenson (1932)[3], whereby ginger beer had been negligently produced. In this case Lord Atkin said that a duty of care will be owed to a neighbour-in-law. Consequently, negligence in tort creates a liability to neighbours in law.

A neighbour-in-law was described by Lord Atkins as someone closely and directly affected by the acts of a person so that they reasonably should have been contemplated when the person took certain action. The test an objective test and the result of this is that a defendant is not automatically liable for every injury resulting from their action.

Subsequent to Donughue and Stevenson the duty of care concept expanded into a coherent judicial test which has to be satisfied in order to claim in negligence and the development of this law was then taken a step further in Caparo Industries Plc v Dickman (1990)[4] (‘Caparo’) regarding the proximity of the relationship and the forseeability.

In Caparo it was established that to bring a successful action for a negligent misstatement it has to be shown that:-

1. The claimant relied upon the defendant’s skill and judgement;

2. That the defendant knew or reasonably ought to have known that the claimant was so relying:-

3. It was reasonable in all circumstances for such reliance.

In summary, David does have a valid claim in accordance with the law of tort and he may sue Eradit Ltd for negligence.

It is clear that as a result of the negligent misstatement from Eradit Ltd as a professional advisor, David will suffer from economic loss as he will have to pay to get rid of the dry rot. Furthermore, the Hedley Bryne case has many similarities to this scenario as David has relied on the statement of the professional advisor despite not having a legal contract with Eradit Ltd. Furthermore, Eradit Ltd as an employer has vicarious liability and will probably have insurance for this.

QUESTION 2a

John’s Liability for Diana’s Injuries

Actions in negligence, delivered through law of tort, are normally analyzed in four points or elements. It is necessary for the claimant to establish a case for each element for a claim to be successful. If the claimant fails to prove any one of the elements then he/she looses the entire claim.

When considering John’s liability for Diana’s Injuries it is first necessary to establish:

1. That John owes a legally recognised duty of care to Diana

2. John violated that Duty

3. As a result of John’s violation of that Duty, Diana suffered injury; and

4. The injury was a reasonably foreseeable consequence of John’s action or inaction.

For the actions of negligence to be successful each of the elements above must be satisfied.

It is considered that one of the main ways to claim for compensation is through the doctrine of a Duty of Care which is when one party is liable to another in negligence. In Donoghue v Stevenson (1932)[5] the “neighbour principle” was established. Lord Atkins stated that “You must take reasonable care to avoid acts or omissions….likely to injure your neighbour.”

For the defendant to be able to foresee a risk of being harmed, the claimant is not required to be individually identifiable. They merely have to fall within a category where the risk of harm was foreseeable. In Ann’s v Merton (1978)[6], a two stage test was established and changed the way the neighbour test was applied[7].

The leading case used to establish a duty is given in Caparo Industries Plc v Dickman (1990)[8] where the courts are required to consider three main questions:

1. Whether there was proximity, in terms of a relationship, between the claimant and the defendant?

2. Was the damage reasonably foreseeable? The courts enquire whether a reasonable man would have foreseen the risk of damage, had they been in the defendant’s position.

3. Was it just, fair and reasonable to impose such a duty?

The breach of that duty of care can be best summarised in the case Blyth v Birmingham Waterworks Co (1856)[9], where Baron Alderson stated:

“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 prudent and reasonable man would not do.”

When looking at this scenario a system of risk analysis can be used in this instance. The degree of risk – Bolton v Stone (1951)[10], were a man claimed damages from a cricket clubs members on the grounds of nuisance or negligence. It was found that although it could have been foreseeable that the ball could have been hit over the fence, it was not enough to establish negligence because it was such a remote risk of injury that a reasonable person would not have anticipated it.

The seriousness of the harm – Paris v Stepney Borough Council (1951)[11], where the claimant was employed by the defendant on vehicle maintenance and only had the use of one eye, the workman sustained injury to his one remaining eye. The defendant was found to be in breach of his duty of care for not supplying the workman with safety goggles as any injury to the workman’s one remaining eye was likely to be especially serious.

Likely severity of the harm that may be sustained against the cost of taking precautions – Latimer v AEC Ltd (1953)[12], where a heavy rainstorm flooded a factory floor, oil that normally ran in the channels in the floor of the building, rose to the surface and when the water drained away left a slippery film on the floor. The occupiers of the factory did what they could to make the factory floor safe, but the claimant fell and was injured. He alleged negligence in that the occupiers did not close down the factory. The occupiers were not held liable as they took every step that could have been reasonably taken in the circumstances.

Any other factors that may serve to justify the risk taken – Watt v Hertfordshire County Council (1954)[13], where a fireman was injured by a jack falling over in the back of a fire truck, the jack was not properly secured and the truck had to leave in a hurry. It was found that there had been no breach of the duty of care as the truck was responding to an emergency.

In this scenario there is an obvious risk of drink driving and the severity of harm likely to have been suffered if the risk manifested is very high, drunken automobile accidents are more than often serious. With this in mind and taking in to consideration, the costs of taking precautions such as not driving, would have been minimal or no risk. There is no acceptable excuse or justification for the behaviour and thus it seems that in this case the scales definitely fall towards a compelling finding of liability.

It is also clear from the brief that John was driving fast and erratically and had ignored the red light and as a direct result hit Diana’s car. Inevitably, this can only heighten the responsibility owed by John to have driven cautiously and stopped at the red light. On these bases it is clear that John owes Diana a duty of care in negligence and that he was in breach of duty by driving his car in the manor that he did and failing to stop and the red light.

The damage has been suffered is clear from the facts. Dianna has sustained serious injuries as a consequence of being hit by John. It is clear that the damage will inevitably be of the kind that is recoverable under tort of negligence.

It is also clear on the facts submitted that causation is a relatively easy matter to establish. It is clear that the damage suffered from direct result of the breach. Diana was driving her car and was hit by a drunk driver, who ignored a red light and was driving fast and erratically, as a direct and immediate consequence Diana suffered serious injuries. Examples of causation can be found in cases Barnett v Chelsea and Kensington Hospital Management Committee (1968)[14].

Remoteness of damage will not be an issue for Diana’s claim as in this case serious injuries have been caused to another motorist by a drink driving and ignoring a red light. It is normal and predictable consequence of negligence which causes an accident of this nature. The principle of Remoteness of damage can be satisfied by The Wagon Mound No. 1 (1961)[15], provides that only damage which is a reasonably foreseeable consequence of a breach will be recoverable by law.

The more foreseeable the harm the more likely the court will hold the relationship as proximate, fair and reasonable to impose a duty and will therefore be able to claim compensation. Based on the above analysis it can be concluded that Diana would have a case of negligence against John. Since John was under the influence of alcohol, was driving fast and erratically and the fact that he ignored the red light hitting Diana’s car as a direct result, the court would usually have little sympathy for a drunk driver in these circumstances.

QUESTION 2b

Possible defences available to John against his liability in tort to Bruce

When considering the possible defences available to John against his liability in tort against Bruce the same four points raised in part a (John’s liability in tort for Diana) would need to be established for Bruce to have a case against John.

Bruce’s case against John would be affected by contributory negligence and the issue of volenti non fit injuria (someone who knowingly and willingly puts themselves in a dangerous situation will be unable to sue for his or her injuries). Contributory negligence and volenti would be the base of John defence.

When seeking defence in volenti non fit injuria[16] it must establish the following:

1. Bruce knew the nature and extent of the risk of harm

2. Bruce voluntarily agreed to it

In order for a defence to be raised in contributory negligence[17] it must address the following:

1. Bruce failed to exercise reasonable care for his own safety

2. That this failure contributed to his injuries

3. By what extent should Bruce’s damages be reduced

As Bruce was a passenger in a car being driven by John, Bruce would be considered a neighbour of John under the “neighbour principle” in Donoghue v Stevenson (1932)[18]. It is also obvious that John was in breach of that duty by reapplying the risk analysis and using common sense as John was under the influence of alcohol when driving the car.

The damage that Bruce suffered as a result of John’s actions as stated in the brief were serious and were clearly caused by John’s actions. However when looking at causation, it must be taken in to consideration that Bruce was not wearing a seatbelt at the point of the accident and he had encouraged John to ignore the red light.

It is likely that the seriousness of Bruce’s injuries could be exacerbated due to the fact that he had failed to wear his seatbelt; Bruce has therefore broken the chain of causation from John’s drink driving. This issue will be addressed in the context of contributory negligence.

When using the volenti defence also known as voluntary assumption of risk defence, the basis, is that the claimant must be shown to of acted voluntarily in the sense that they could exercise a free choice? It is clear from the brief that Bruce had accepted the offer of a lift from John who was clearly under the influence of alcohol and that Bruce had encouraged John to ignore the red traffic light. In the case Morris v Murray (1990)[19] the defendant took a ride in an aircraft with a pilot he knew was drunk and the defence of volenti succeeded and defeated the claim.

It is clear that there is a clear issue of contributory negligence, as Bruce is clearly partly responsible for his own misfortune due to the three respects, firstly by allowing John to drive him under the influence of alcohol, secondly by failing to wear a seatbelt and thirdly by encouraging John to ignore the red traffic light. In the case Froom v Butcher (1975)[20] the failure by a claimant to wear a seat belt in a car resulted in reduced damages on the grounds of contributory negligence.

QUESTION 3

In advising Oak & Troy Ltd of their legal remedies it firstly has to be established that they were in breach of their duty, and in doing so it must have been reasonably foreseeable that their conduct might cause harm or damage to property.

In Re Polemis and Furniss Withy & Co (1921)[21] it was held that spill oil in a harbour is carless even criminal, It may foul the wharfs and require expensive cleaning operation, but it is extremely difficult to set alight on open water, should the defendants be responsible for an explosion by a spark lighting petrol vapour and consequent destruction of a wharf by fire. Not so in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (1961)[22].

Following from this there are two broad approaches to the problem. He first states a defendant liable for the direct consequences of his negligence, no matter how unusual or unexpected (this is a test of causation). The second holds that a person is reasonable only for the consequences that could have been reasonably anticipated.

The decision of the Court of Appeal in Re Polemis and Furnis Withy & Co (1921)[23] Bank L.J. said that the given damage was a direct result of the negligence; similarly Scrutton L.J. observed that once the act is negligent, the fact that its exact operation was not foreseen is immaterial. The Privy Council in the Wagon Mound said this was fundamentally false.

In Hughes v Lord Advocate (1963)[24] employees of the post office left a man cover open in the street covered by a canvas tent; two young boys entered the manhole and took one of the lamps with them that was on site. As they came out, the lamp was knocked into the hole causing an explosion in a unique fashion. The evidence showed that the explosion was unforeseeable in the circumstances. The House of Lords held the defendants liable.

The damage will be too remote if not of the same type or kind as the harm that could have been foreseen, it could be argued that the swinging crane could cause damage or injure, and was reasonably foreseeable.

It is advised that if Bathsheba goes for single damage, in case Brunsden v Humphrey (1884)[25] the plaintiff succeeded in an action for damage to his cab caused by the defendants negligence in the case of damage to property, as in this case. The basic principle for measure of damage is that the claimant should be restored to his position before the tort was committed. Where the property has been totally destroyed, the measure of damage is that of the market value of the property.

In Mattocks v Mann (1993)[26] it was held that the plaintiff was entitled to recover hire charges for a replacement vehicle in the period of delay. Therefore it is likely that Bathsheba will be able to claim for the cost of hiring a substitute vehicle while her car is being repaired.

The court also has discretion to word a simple interest on all or any part of the damages.

There is an overlap here with private nuisance which is unlawful interference with the persons use or enjoyment of land, or right over in connection with it. However it must be stressed that not all interferences with another’s enjoyment of land are actionable. The House of Lords in case Hunter v Canary Wharf (1997)[27] may have placed some limits on the unstructured approach to private nuisance.

Bibliography

Keenan (2007) Smith & Keenan’s English Law (15th edn), Pearson Longman (2007).

Isurv Gateway, http://www.isurv.com/site/scripts/documents_info.aspx?categoryID=340&documentID=2501&pageNumber=9, viewed 24th April 2010.

Safetyphoto, http://www.safetyphoto.co.uk/subsite/case%20i%20j%20k%20l/latimer_v_aec_ltd.htm, viewed May 1st 2010.

UK Law Review, http://www.uklawreview.com/tag/caparo-v-dickman/, Viewed 1st May 2010.

Oxford University Press, http://www.oup.com/uk/orc/bin/9780199216376/01student/answers_chapter_opening/ch10/, viewed 2nd May 2010.

Wikipedia, http://en.wikipedia.org/wiki/Tort, viewed 2nd May 2010.

Wikipedia, http://en.wikipedia.org/wiki/index.html?curid=2263856, Viewed 2nd May 2010.

Swarb, http://www.swarb.co.uk/lisc/Damag19921992.php, viewed 8th May 2010.

Audio Case Files, http://www.audiocasefiles.com/acf_cases/9062-in-re-polemis-furness-withy-co-, viewed 8th May 2010.

Lawindexpro, http://www.lawindexpro.co.uk/cgi-bin/casemap.php?case=83484&rf=scu target=, viewed 8th May 2010.

A Level Law, http://www.a-level-law.com/tort/nuisance/lecture.htm, viewed 9th May 2010.

[1] Cassidy v Ministry of Ministry of Health (1951) 2KB 343

[2] Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465

[3] Donoghue v Stevenson (1932) AC 562

[4] Caparo Industries Plc v. Dickman (1990) 2 AC 605

[5] Donoghue v Stevenson (1932) AC 562

[6] Anns v Merton London Borough (1978) AC 728

[7] This was overruled by Murphy v Brentwood District Council (1991) 2 A11 ER 908

[8] Caparo Industries Plc v Dickman (1990) 2 AC 605

[9] Blyth v Birmingham Waterworks Co (1856) 11 Ex 781

[10] Bolton v Stone (1951) AC 650

[11] Paris v Stepney Borough Council (1951) AC 367

[12] Latimer v AEC Ltd (1953) 2 A11 ER 449

[13] Watt v Hertfordshire County Council (1954)2 A11 ER 368

[14] Barnett v Chelsea and Kensington Hospital Management Committee (1968) 1 A11 ER 1068

[15] The Wagon Mound (No. 1) (1961) 1 AC 617

[16] Volenti non fit injuria- someone who knowingly and willingly puts themselves in a dangerous situation will be unable to sue for his or her injuries

[17] Law Reform (Contributory Negligence) Act 1945

[18] Donoghue v Stevenson (1932) AC 562

[19] Morris v Murray (1990) 3 A11 ER 801

[20] Froom v Butcher (1975) 3 A11 ER129

[21] Re Polemis and Furness Withy & Co Ltd Re (1921), 3 KB 560

[22] Overseas Tankship (UK) v Morts Dock and Engineering Co Ltd (The Wagon Mound) (1961) AC 388

[23] Re Polemis and Furness Withy & Co Ltd Re (1921), 3 KB 560

[24] Hughes v Lord Advocate (1963) 1 A11 ER 705

[25] Brunsden v Humphrey (1881) 14 QBD 141

[26] Mattocks v Mann (1993) PTR 13

[27] Hunter v Canary Wharf (1997) 2 A11 ER 426