Four Essential Elements: Duty, Breach, Causation, Remoteness; These Overlap

Tort of Negligence

Negligence consists of (1) legal duty to take care (2) D’s breach of duty (3) damage to P not too remote  Basic aim: to allocate risk of loss that occurred, D liable to compensate P or does P bear loss wholly or partially  Four essential elements: duty, breach, causation, remoteness; these overlap  Duty refers to whether D’s conduct actionable  Breach of duty refers whether D’s conduct fell below standard of care that ought to be applied (reasonable man)  Causation whether D’s conduct proximate, immediate, operative cause of damage (neighborhood principles)  Remoteness refers to whether damage of type reasonable foreseeable as likely result  P must prove D’s negligence, non-suited if any of four elements not established

Duty of care  Originally duty owed when D participated in dangerous activity (handling guns, explosives, etc.) or when special relationship exists b/w D, P (landlord v tenant, employer v employee)  Donohue v Stevenson “categories of N never close” serious change, established general theory of liability o Established two step rule, (1) neighborhood or proximity (2) reasonable foresee-ability of harm o Discussion: hard to categorize neighborhood, too wide, foresee-ability difficult, guard floodgate  Policy issues o Proximity should be limited (Jaensch v Coffey) – must not hold P liable to indeterminate number o New categories developed “incrementally, by analogy w/ established categories” (Yuen Kun Yeu v AG of Hong Kong) must be in a recognized “duty situation” – goal to limit liability, guard floodgate  Element of (3) just and reasonable added (Peabody Donation Fund v Sir Lindsay Parkinson & Co.) (Caparo Industries v Dickman)  DOC essentially issue of policy as to responsibility of conduct involving unreasonable risk (Nova Mink Ltd)  Foresee-ability: harm likely, not unlikely; principle broad, permits court ample scope to deny, impose liability o Court sole determiner of foresee-ability (reasonable man test) o Bolton v Stone reasonable probability, not fantastic possibility  Proximity or neighborhood principle (Donohue v Stevenson) (Bourhill v Young) o Relevant issues: nature of damage foreseeable (physical damage more proximate, more actionable) o P must establish she is in proximity of D; economic loss proximity must be nearly as in contract  Policy, just and reasonable o Physical damage sooner compensate than economic loss, readier liability for faulty conduct o Liability under another cause of action may preclude DOC (Jones v Dept of Employment) o DOC leads to restrictions on performance of public duty (Home Office v Dorset Yacht Co.) o Imposition of DOC undermines another course of action (Spring v Guardian Assurance) o Special policy for two categories of restricted duty: liabilities for pure economic loss, nervous shock o Liability for economic loss – generally no liability for negligent acts . Spartan Steel & Alloys Ltd v Matrin & Co. no liability, recovery for economic loss . Mineral Transporter no liability for negligent actions of third parties . Murphy v Brentwood no liability for acquiring defective product . Hedley v Heller economic loss recoverable for statements, but b/c of disclaimer  Basis: P relies reasonably on D’s skills, info, D knows that P so relies . Contrast with Royal Bank Trust Co v Pampellone . Maharaj v Republic Bank Ltd covers also negligent advice . White v Jones lawyer liable to beneficiary for not adjusting will (recent statement)  Lawyers liable b/c no remedy existed for P, estate, would be unjust (lacuna)  Dissent: gave P benefit to contract which they were not party to  Lawyer undertakes nothing towards P, no proximate relationship exits?  Are all damages remediable? Incremental approach o Liability for nervous shock – psychiatric damage, mental illness, neurosis, personality change . Merely emotional distress not generally compensated, court cautious, fear of fraud . McLoughlin v O’Brien liable, Jaensch v Coffey and Alcock v Chief Constable . Debate: liability one of reasonable foresee-ability or foresee-ability plus policy (relationship of P to victims, must be close ties of love, except for horrific catastrophe; physical and temporal proximity of P to accident, P must witness accident or immediate aftermath; medium of perception of events; manner in which illness was caused – sudden violent appreciation of horrifying event) . Page v Smith liability, minor accident; dissent: P’s particular susceptibility material . Campell v Carendon Parish Council liability in regard to omissions, public law .

Breach of duty – effected by negligent conduct  Blyth v Birmingham Waterworks Co objective test (reasonable man)  Nettleship v Weston no account of D’s idiosyncrasies  Roe v Min of Health no liability of paralysis due to contamination b/c contamination not known at time  Negligent conduct determined by risk factor (Likelihood of harm, seriousness of harm, importance or utility of conduct, practicability of precautions) o Likelihood (Bolton v Stone) harm reasonably likely to occur, mere foresee-ability not enough – “reasonable probabilities not fantastic possibilities” o Seriousness (Ryhna v Transport and Harbor Dept) graver likely harm, more precautions o Importance or utility (Watt v Hertfordshire) (Robley v Placide) o Practicability (Mowser v DeNobriga)  It is for P to prove D was negligent in circumstances – D can refute by showing she acted w/in general practice o Hind v Craig doctor not negligent b/c followed SOP in Jamaica, even though it differs from US  Res ipsa loquitur “things speaks for itself” o Scott v London & St Catherine Docks under management, control of D or servants and accident does not happen in ordinary course of events w/out negligence, and in absence of explanation from D o Doctrine affords P shortcut, does not have to prove exactly what D did, but P must establish above o Must be in sole, continuous control . Jamaica Omnibus Services Ltd v Hamilton D liable . Easson v L & NE Ry Co D not liable b/c not under sole, continuous control (train door from Edinburgh to London interfered w/ by passengers o Presumed negligence “common experience of mankind would attribute accident to carelessness” . Parejo v Koo car mounting pavement . Barnett v Belize Brewing Co dead tadpole in stout bottle . Bushell v Chefette sudden, violent skidding of vehicle o Res ipsa loguitur only applicable when exact cause not known; if exact causes known P must prove o D only has to give explanation to show accident could have occurred w/out negligence o Might also appear that burden of proof shifts to D, evidential burden is on D to show no negligence o Ramdahn Singh Ltd v Panchoo D failed to rebut presumption of negligence Granger v Murphy Causation and remoteness of damage  Causation concerned w/ connection b/w D’s negligence and P’s damage – did negligent act cause harm  Remoteness determines consequences of D’s negligent conduct for which he is held liable o May refer to non actionable, as in pure economic loss  Duty, causation, remoteness used to limit liability – policy framed in terms of principle  Causation: first necessary to determine whether act is legally relevant cause of damage o But for test but for D’s negligence harm would not have been suffered (reverse to argue D’s escape) o Barnett v Chelsea and Kensington Hospital o Not used for identifying actual cause of harm, might eliminate irrelevant causes  Proof of causation: P must prove D’s breach of duty caused damage o P’s negligence materially contributed to P’s injury “material increase to risk” or “material contribution to damage” Contrast McGhee v National Coal Board, Barenda Brewster v Paul Davis (liable), Wilsher v Essex Area HA (no liable) o Court must be able to say D’s act probably a significant factor in harm  Successive acts o Distinction b/w whether tortuous act followed by another tortuous act or by natural event o Baker v Willoughby, Jobling v Associated Diaries Ltd must take into account vicissitudes of life  Intervening acts: nova causa or novus actus interveniens o Two categories: intervening act occurs w/in ordinary course, D remains liable (Haynes v Harwood), whether entire series of events natural or probable, intervention of very kind foreseeable o Lamb v Camden no liable – contrast two cases o Did P act reasonably McKew v Holland not liable, Sayers v Harlow reasonable to try to escape  Remoteness of damage o Need not foresee exact manner of damage Hughes v Lord Advocate, contrast w/ Doughty v Turner Manufacturing damage of an entirely different kind – damage foreseeable, manner not o Distinction: while manner need not reasonably be foreseeable, must not be unforeseeable o Type of harm Bradford v Robinson Rentals contrast w/ Tremain v Pike o D must take victim as he/she find Robinson v Post Office, Smith v Leech Brain & Co Ltd o Some harm must be foreseeable, P b/c of insurance in best position to bear cost

Defenses to liability in negligence  Contributory negligence – harm partially fault of plaintiff, damages reduced (Law Reform/ Contr Neg Act)  No need to show P owed duty to D, Nance v British Colombia Electric P not act in own interest, BOP on D  Froom v Butcher not wearing seat belt held CN (other ex. accepting lift from drunk drivers)  P does not have to foresee actual risk Jones v Livox Quarries  Noted if P’s conduct is sole operative cause then D not liable McHew v Holland  Standard of care o Jones v Livox Quarries if D foresees that if he not act as reasonable, prudent man he might be hurt o General law demands lower standards of care for P than for D (b/c loss falls on P personally) o Children not generally liable unless intelligent, alert as to appreciate harm Ghanie v Brokers Shipping, Perch v Transport Board o Workmen Bailey v Gore Bros Ltd o Emergencies Jones v Boyce if D puts P in peril, P can act for self preservation even if dangerous o  Volenti non fit injuria – complete defense to action in negligence, extremely difficult to prove  “Voluntary agreement by P to absolve D from legal consequences of unreasonable risk of harm created by D, where P has full knowledge of both nature and extent of risk”  Three critical aspects: voluntary, agreement, knowledge of P  Voluntary – must choose freely, requires knowledge and absence of restraint (does not chose if in line w/ job) o Haynes v Harwood does not work if D contributed to situation and by choice P acts as rescuer  Agreement difficult b/c full risk only known in hindsight – no need for express contract or agreement  Knowledge: P must be aware not only of existence of risk, but of knowledge and extent (test is subjective) o If drunk cannot appreciate risk Morris v Murray o Mere knowledge of risk not enough Gooding v Jacobs