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negligence
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5/27/2018 Law of Torts - Law of Negligence
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LAW OF NEGLIGENCE
DUTY OF CARE
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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.
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Definition
The term 'negligence' has 2 differentmeanings
It refers to the condition or state of mind of aperson at a given moment in time. In thissense, the word means 'recklessness' or'carelessness'.
Negligence is a name of an independent tort.
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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'.
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3 principal elements
Duty of care
Breach of duty
Damage/injury resulting from that breach
- The damage must not be too remote.
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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 givencircumstances is a question of law, to be
decided by the judge.
The concept of duty of care was 1strecognised by the House of Lords in
Donoghue v Stevenson.
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Pre-Donoghue v Stevenson
The 1stattempt 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. Ascaffolding erected by the D which the P was
using gave away and the P was injured.
Heldsince there was no contractualrelationship between the parties, the action
could not be maintained.
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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 recognizethat if he did not use ordinary care and skill in
his own conduct with regard to those
circumstances he would cause danger orinjury to the person or property of the other, a
duty arises to use ordinary care and skill to
avoid such danger.
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Donoghue v Stevenson(1963)
A friend of the P had purchased a bottle of gingerbeer at a caf. The P had consumed some of thedrink but when she poured out the reminder of thecontents of the bottle, a decomposed snail was
found in the drink. As the bottle was black incolour the P was unable to see its contents muchearlier. The P suffered shock and subsequentlybecame ill. She sued the manufacturer of the
ginger beer.
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The ratioof 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 toanyone who purchases it in due course
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Neighbour principle
LordAtkin in his dictum (dicta) enunciated what isknown is Neighbour principle
The rule that you are to love your neighbourbecomes in law you must not injure your neighbour,and the lawyers question who is my neighbourreceives a restricted reply. You must takereasonable care to avoid acts or omissions whichyou can reasonably forsee would be likely to injure
your neighbour..
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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 mycontemplation as being so affected when I
am directing my mind to the acts or omission
which are called in question.
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Significance of D v S
D v S laid the foundation of the law ofnegligence. The most important aspects of thecase are
Negligence is recognized as a separate tort An action for negligence can exist whether ornot there is a contract between the parties itdestroyed the privity fallacy
It introduced a general test to determine theexistence of a duty of care using neighbourprinciple which is based on reasonableforeseeability and proximity of relationship.
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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 justificationor valid explanation for its exclusion.
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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 tothe P's yacht. The P sued the Home office.
Issuewhether the home office and its officers
owed any duty of care to the owner of the yacht.
(Damage was caused by a 3rdparty)
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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.
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LKTP (FELDA) v Mariam
A kongsi-house built on FELDAs land collapsedand killed the deceased. He sued FELDA for
negligence in providing a safe kongsi-house.
FELDA contended that the deceased was theemployee of the sub-contractor. FELDA therefore
owed no duty of care to him at all.
HeldLiability depending on contractual
relationship was abandoned by the House of Lordsin D v S. The D was held liable for negligence.
P t i t f d t
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Present requirements of duty
of care
Laid down by the House of LordsinCaparoIndustries 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.
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Foreseeability
The test of foreseeability is objectivei.e.what a reasonable person could have beenexpected to foresee.
The P does not have to be individuallyidentifiable for the D to be expected to forseethe risk of harming them.
It is sufficient if the P falls within a category ofpeople to whom a risk of harm wasforeseeable. E.g the end user of a product.
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Proximity of relationship
Basically refers to the closeness of therelationship between the defendant and the
claimant.
It does not necessarily mean physicalcloseness.
The degree of closeness differs according to
the type of damage and other factors.
L d Oli i Al k
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Lord Oliver inAlcocks case
observed;
.in the end, it has to be accepted that theconcept of proximity is an artificial one
which depends more upon the courts
perception of what is the reasonable area forthe imposition of liability than upon any
logical process of analogical deduction
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Fair, just and reasonable
The fair, just and reasonable criterionenables the courts to determine liability on
the basis of policy.
Thus, although a case meets therequirements of foreseeability and proximity,
the courts may find there is a sound public
policy reason for denying the claim.
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Caparo v Dickman
Caparointroduces a new approach indeciding a duty of carecalled incrementalapproach.
In using the incremental approach indetermining the existence of duty of care-
(a)the P must point to a direct precedent(authority or to a closely analogousprecedent in which a duty of care has or hasnot been imposed.)
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Cont.
(b) In new cases in which no relevant authorityexist, the court shall apply the three factors
(i) Foreseeability
(ii) Proximity
(iii) Public policy
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Marc Rich v Bishop
The House of Lords held that a classificationsociety ( an independent and non-profit-making entity) did not owe a duty of care to
the owner of cargo on a vessel that had beennegligently certified as seaworthy when thevessel subsequently sank.
The tripartite test for establishing a duty of
care promulgated in Caparos case is now tobe of universal application.
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MPAJ v Steven Phoa
The Federal Court Followed Caparo anddecided that on the facts and the
circumstances of this case, it was not fair,
just and reasonable to impose a duty of careon MPJA or other local councils in this
country in similar situations.
Polic consideration in
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Policy consideration in
negligence
Winfieldstates that 'the use of the wordpolicy indicates no more than that the court
must not decide simply whether there is or is
not a duty but whether there should or shouldnot be one, taking into account both the
established framework of the law and also
the implications that a decision one way orthe other may have for operation of the law in
our society.'
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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
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Hill v Chief Constable of West
Yorkshire
Also known as 'Yorkshire murder case'. TheP's daughter was the last victim of the
'Yorkshire ripper'.
The mother sued the police department andalleged that the police was negligent for their
failure to arrest the criminal.
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DECISION
The House of Lords held that there was noduty on the part of the police towards general
public to arrest an unidentified criminal.
It would be contrary to public policy if such aduty was imposed upon them.
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Rondel v Worsley
Heldthe advocates, whether barristers orsolicitors, were immune from a claim for
negligence by a disappointed client in respect
of the manner in which a case wasconducted in court. (litigation)
This immunity is founded on public policy.
Does not apply to other aspects of lawyersjob.
Mohd Nor Dagang v Tetuan
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Mohd Nor Dagang v Tetuan
Mohd Yusof
The P alleged that the D (lawyer) wasnegligent 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
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Duty and the foreseeable
plaintiff
Basic principleduty of care should be owedto the plaintiff.
The D did not owe a duty of care to the
particularplaintiff if the plaintiff wasunforeseeable.
The P cannot rely on a duty that the D may
have owed to others.
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Palsgraf v Long Island Railroad
US case but the principle has been adoptedin English cases.
Factthe negligence of railway employees
caused a passenger to drop a box offireworks. The fireworks exploded and
knocked over some heavy metal scales
several feet away, which struck the P.
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Decision
The New York Court of Appeal rejected Pclaim for damages, holding that if any wrong
had been committed, it had not been
committed against the P, because she wasnot a foreseeable victim of the railway
companys negligence.
According to the jury, the P was beyond therange of foreseeable peril
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Bourhill v Young
The D motor-cyclist was killed in a crashcaused by his own negligence. The P heard
the crash but did not see it.
She only saw the scene of the accident afterthe Ds body had been removed.
She suffered nervous shock and sued the D.
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Decision
The House of Lords held the D not liablebecause he did not owe the plaintiff a duty of
care.
Although it was foreseeable that negligentdriving might endanger other road users, the
particular injury to the plaintiff was not
foreseeable.
Haley v London Electricity
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Haley v London Electricity
Board
The D's servants had excavated (dig up) atrench in a highway and then placed some
notice boards and the handle of hammer on
the pavement. The handle could easily beseen by a normal person. However the P
who was blind tripped over the handle and
injured himself.
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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 roadusers are normal-sighted person.
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Actionable Omissions
Another factor in deciding the existence ofduty of care is whether the act is in the formof commission (positive act) or omission(negative act).
As a general principle omission does not giverise to a duty of care.
The principle is that a person should not
harm others but he is not under a duty to dosomething for the benefit of another.
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Stovin v Wise
The P was involved in a road accident at adangerous 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, butnot a duty to do so.
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Lord Hoffmann observed;
There are sound reason why omissionsrequire different treatment from positive
conduct. It is one thing for the law to say that
a person undertakes some activity shall takereasonable care not to cause damage to
others. It is another thing for the law to
require that a person who is doing nothing inparticular shall take steps to prevent another
from suffering harm.
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dDf knew or hadmeans ofknowledge that athird party wascreating adanger on hisproperty andfailed to takereasonable stepsto abate
defendantnegligentlycauses or permitsa source ofdanger to becreated which isthen interfered bythird party
a specialrelationshipbetween thedefendant andthird party
a specialrelationshipbetween theplaintiff and Df
Actionable Omission
generalprinciple)
(Exceptionto the
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Lew Thai v Chai Yee Chong
The P was injured while trying to build anembankment to prevent rising water from
flooding the mine. He alleged inter aliathat
the D (co-worker) had failed to take any oradequate precautions for his safety.
The court held the D liable as there was a
special relationship between the parties.
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Parimala v PLUS(1997)
A driver of a car traveling on the highway waskilled when the car collided with a stray cow.
The court found the D as the highway
authority responsible for the maintenanceand safety of the highway, liable innegligence.
PLUS had failed to repair the hole in the
fence which the cow used to enter thehighway.
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Duty of carecheck lists
Duty of care
Foreseeability
Proximity
Policyfair, justand reasonable
Nature ofconductact oromission
Type of plt
Type of Df
Type of damage
Whether it wascaused by theDf or a 3rdparty