Lectures Weeks 5 and 6 the Tort of Negligence

University of Nairobi School of Law

LL.B2, The Law of Tort

The Tort of Negligence

Weeks 5 and 6

By

Benjamin Musau

Managing Partner

B M Musau & Co., Advocates

http://www.bmmusau.com/

August 21, 2014 [email protected]

(http://www.bmmusau.com/ 1

http://www.bmmusau.com/

The Tort of Negligence • The Duty of Care

– Introduction, General Test, Development of the Test, Modern Approaches

• The Duty of Care

– Harm to persons, Damage to property, Assumption of Responsibility, Economic loss

• Breach of the Duty of Care

– Standard of Care, Factors relevant to establish the required standard, Connection between the standard and duty of care, professional negligence, breach of employer’s duty to its employees, liability of an organization, proving negligence

• Causation and Remoteness

– Introduction, causation in fact, new intervening cause, remoteness of damage

• Defenses to negligence

– Contributory negligence, voluntary assumption of risk, express exclusion of liability, illegality

• Liability for defective premises and structures

– Occupiers’ Liability Act, Occupier’s liability and Liability of non-occupiers



Elements of Negligence

• Duty

• Breach

• Causation

• Remoteness



1. Duty of Care (General)

Definition: No succinct definition suffices, but the dictum of Atkin in Donoghue v Stevenson when expounding on the ‘Neighbour Principle’ is perhaps the most befitting definition of the concept of duty of care. ‘the rule that you are to love your neighbor becomes in law, you should not injure your neighbour…who then is my neighbor?... person who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.’ August 21, 2014

[email protected] (http://www.bmmusau.com/

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Introduction to the Duty of Care

The concept emerged towards the end of the 18th century. It is a central concept without which an action in negligence would fail. [see Heaven v Pender (1883) 11 QBD, 503 at 507]



Inception: It was first discussed by Brett MR in Heaven v Pender (see earlier citation) who stated that ‘whenever a person is in such a position that everyone of ordinary sense would recognize that if he did not use ordinary care and skill in his own conduct, 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.’



Classical Neighbour Principle This was introduced by Lord Atkin in Donougue v Stevenson [read full facts on pg 157 Winfied and Jolowiz]

Facts:

Donoghue v Stevenson [1932] AC 562 House of Lords

Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle.



After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer. Held: Her claim was successful. This case established the modern law of negligence and established the neighbour test.



Lord Atkin: "The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who is my neighbour?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in 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 contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."



The neighbour principle had twofold ramifications: 1. Established a category of duty- manufacturer of goods to eventual user. 2. It set the law of negligence on a path of extension.



Evolution of the Modern Duty of Care: The two tier test:

This was introduced in the case of Anns v Merton London Borough Facts Plaintiffs had sued the council in damages for being negligent in failing to inspect the foundations of a building. At trial the plaintiff’s case failed as it was barred by statute. The CA allowed the appeals on the basis that the cause of action arose when the damage the damage was discovered or ought to be discovered.



Held Lord Wilberforce argued that it was no longer necessary to find a precedent with similar facts instead, he suggested that whether a duty of care arose in a particular factual situation was a matter of general principle. Lord Wilberforce’s relevant dictum establishing the test is "in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter—in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise."



Two-tier Test •Did the parties satisfy the neighbor principle? i.e. was the plaintiff someone to whom the defendant could reasonably be expected to foresee a risk of harm? •If yes, a prima facie duty of care existed unless there are policy reasons excluding existence of such duty.



Evolution of the Modern Duty of Care: The three stage test (Caparo test)

This was enunciated in Caparo Industries PLC V Dickman [1990] 2 AC 605

(see The modern approaches to the duty of care: Page 35- 50 Street on Torts 13 ed)



Facts The plaintiffs had relied on the publication of the auditor’s report in the company to buy the shares to mount a successful take over bid. The reports made it known to the public that there was a 1.2 million pre-tax profit but in actual fact, fidelity had made a loss of 400000. Caparo brought an action against fidelity’s auditor’s arguing that the latter owed it a duty of care because they could foresee that a bidder would rely on the accounts in order to make investment decision about the level of shareholding in fidelity



Held

No duty was owed to the plaintiffs. The three tier test (Caparo test) •Was the damage reasonably foreseeable? (the neighbor principle) •Was there a relationship of proximity between defendant and claimant? It refers to the closeness of relationship. (the foreseability test) ) •Was it just, fair and reasonable to impose a duty in such a situation? Policy reasons arise only where both forseability and proximity requirements have been met.



Evolution of the Modern Duty of Care: Incrementalism test

Brennan J’s dictum in Sutherland Shire Council v. Heyman (1985) 60 ALR 1, at 43-4 suggested that the law should develop novel categories of negligence incrementally and by analogy with established categories.

This suggests that the tripatriate test in Caparo may be ousted in circumstances where an incremental step beyond existing authorities could be taken. This is enunciated in Perett v. Collins (1998) 2 Lloyds Rep 255, at 263.

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Evolution of the Modern Duty of Care: Assumption of responsibility

Courts have recognized the possibility of negligence liability in respect of negligent misstatements where a defendant voluntarily assumes responsibility.

In Hedly Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] AC 465, although this was a matter concerned with the question of whether a duty could be imposed in connection with economic loss caused by negligent misstatements, its assumption of responsibility criterion has since been suggested to form a more general test according to which a duty of care may be ascribed. [see Street on torts 13 ed. p. 51-52]



Foreseeable plaintiff

The test for reasonable foreseeability is objective in nature, it is concerned with what the reasonable person in the position of the defendant could have reasonably foreseen prior to the injurious interaction between the parties.

The test for forseability is not particularly high. In Grieves v FT Everrard & Sons, Lord Hoffman stated that the answers tona test of forseeability will vary according to first the precise description of what should have been foreseen and secondly the degree of probability which makes it foreseeable.



Forseeability …

• The operation of the reasonable foreseeability requirement is neatly illustrated by Haley v London Electricity Board.

• The defendants had dug a trench in the street with statutory authority. They took some measures to help ensure the safety of passers-by, but these precations were only adequate to the needs of passers by with decent eyesight. When claimant who was blind and alone suffered harm the HOUSE OF lords held that they were liable as they should have taken reasonable care for safety of all persons.



Foreseeability of plaintiff or proximity?

• Proximity in ordinary parlance may be construed to mean foreseeability.

• Proximity differs from one situation to another because a more direct nexus will be required with reference to some types of damage or some types of conduct.

• Where the defendant has directly caused physical harm to the claimant or his property by an act, a duty may readily be established by showing foreseeability and nothing else.

• However proximity is not only with regards to physical nearness. [In Home Office v Dorset Yatch Co. [1970] AC 1004] it was held that there would be proximity between officers in charge of young offenders who allow them to escape and owners of property in the immediate vicinity which is damaged by the offenders during the escape.



Foreseeable Risk Foreseeability is essential in establishing whether there exists a duty of care.

In the famous case Palsgraf v. Long Island Railroad. 162 N.E. 99 (N.Y. 1928)., the judge held that the railroad employees owed no duty of care to Palsgraf because it was not foreseeable that their conduct would affect her.

The risk of injury was not foreseeable given that;

1. the package of fireworks was wrapped in such a way that no reasonable person would have anticipated its potential for danger.

2. She was physically so far removed from where the railway workers were

Sometimes proximity is used to indicate the relationship between the defendant and the source of harm. In Sutradhar v National Environment Research Council [2006]UKHL 33, the defendant council undertook a survey of the quality of water sources in Bangladesh. They did not test arsenic and their report said nothing about it. The claimant based his action on the fact that defendant had a duty not to release a report giving the impression that the water was free of arsenic.



• The House of Lords held that for there to be a duty, there must be proximity establishing a ‘sense of a measure of control over… the potentially dangerous situation.’

• This means that for one to be held liable as having the requisite foresight or proximity to the risk, one should be in a position of control over occurrence of the risk.

• In the Sutradhar case, it was held that since the defendants did not have control over the source of water in Bangladesh , they were not in close proximity to the risk and thus the risk was not foreseeable.



2. Special Duties of Care

• According to Phillip Osborne [The law of Torts, Irwin law inc 2011], generally duties of affirmative action is imposed if there is a special relationship. These relationships can include (not exhaustive): • Employer/employee • Fiduciary relationships • Professional relationships • Relationships of authority • Control and supervision • Occupier/visitor • Relationship between professional

rescuers/citizens in danger.



Examples of duties of affirmative action include • Public authorities and the duty of care • Vicarious liability • Duty to the unborn • Duty to rescuers • Liabilities for psychiatric harm • Damage to property • Unplanned pregnancies and economic

losses • Economic loss



a. Public authorities and the duty of care

In instances where the public/statutory dimension is immaterial, the negligence principles governing the liability of public authorities are the same as those applicable in a run-of-a-mill action between two private individuals. [Street on torts p. 56]

According to Mersey Docks and Harbour Board Trustees v. Gibbs (1866) LR 1 HL 93, there is no general rule granting public authorities immunities from liability in negligence just because they are public not private bodies.



• In X v. Bedfordshire County Council Lord Browne-Wilkinson averred that

‘it is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which parliament has authorized. Therefore if the decisions complained of fall within the ambit of the statutory discretion, they cannot be actionable at common law. However, if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability’



b. Vicarious liability

Vicarious liability for public service employees generally, would arise only where the existence of such a duty is consistent with the proper performance of his duties to the authority and it is appropriate to impose such a duty on the employee. [Street on torts p. 65] see also Phelps v. Hillingdon LBC [2000] 3 WLR 776



c. Duty to the unborn

Under English law, since the case of Burton v. Islington Health Authority [1993] QB 204, A duty is owed to the unborn child but that the duty does not crystallize until the live birth of the child.

The constitution of Kenya article 26 dictates that life begins at conception and that the every person has right to life. This matter is yet to be determined by the local courts. [what is the likely kenyan position?]



d. Duty to rescuers

This raises two important questions;

Is he a forseable claimant?

If he is, and given that he ‘elects’ to undertake the rescue, can he properly claim that the originator of the danger owes him any obligation in respect of his safety since he has ‘chosen’ the peril himself.



e. Liabilities for Psychiatric harm

Definition: A psychiatric harm is a medically recognized condition of a sustained nature that disturbs the normal functioning of the mind. It need not be accompanied by physical conditions.[see American Psychological Association, American Diagnostic and Statistical Manual of Mental Disorder (4th revised edition, 2000).

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Psychiatric harm contd.

However not all harm is compensable psychiatric harm. In Rothwell v Chemical & Insulating Co. Ltd, the H of L held that one would not recover for mere anxiety or grief. The law expects persons to endure without compensation such temporary emotions. The plaintiff complained he was negligently exposed to asbestos by their employers making him to suffer grief and anxiety.



Psychiatric harm contd

Similarly in Grieves v FT Everard & sons ltd [2008] 1 AC 281, at [26] and [99] , when a plaintiff suffered depression due to fear that he would develop a life threatening asbestos-related illness due to exposure to asbestos by the company. It was held that the since it was not reasonably foreseeable to an employer that the claimant would suffer illness in this manner.




Importance of Grieves

Grieves is important in not that it rules out the possibility that an employer may be liable in negligence for exposure to asbestos or other substance causing a psychiatric illness but because it emphasizes the centrality of knowledge of employer of susceptibility to psychiatric illness.



Forms of Psychiatric Harm

There are two types of claimants in psychiatric harm,

Primary victims – 1. those who suffer severe physical injury, 2. one who is so badly treated following a traumatic harm that psychiatric illness occurs and 3. where no physical harm occurs but psychiatric injury arise (for instance in page v smith where the H of L found for the claimant – see page 79 of street in tort for further discourse)

Secondary victims- these are those who either have;

1. A close tie of love or affection with the primary victim.

2. Proximity in time and place to the accident.



Secondary victims- psychiatric harm

On secondary victims, Mcloughlin v O’BRIAN [1983] 1 AC 410, the H of L insisted that the claimant should demonstrate her proximity in time and space to the traumatic events. However where one come upon the ‘immediate aftermath’ of the accident in which her family had been so grievously injured , she was well within the scope of duty to avoid nervous shock.



Leading case on liability to secondary victims for psychiatric harm is now Alock v Chief Constable of South Yorkshire police [1991] 4 All ER 907, the two main issues in the case were

Whether relatives other than parents or spouses could bring action for psychiatric harm.

Whether those who witnessed coverage of the disaster on television could recover.




On the first issue the H of L did not create rigid categories of potential secondary claimants in nervous shock claims. It however insisted on general close tie of love and affection between the claimant and the primary victim of the sort normally enjoyed by spouses, children and parents.

Lord Acker stated that in cases of exceptional horror, where a reasonably strong-nerved individual would suffer shock, even a by stander non related to the victim should recover damages.

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One must be either present or suffer trauma in the immediate aftermath. Psychiatric illness resulting from being informed of loved ones death however gruesome the circumstances is not recoverable.[see Street on tort p.82.]



f. Economic loss

• Generally no duty of care is owed to avoid causing another to suffer a loss which is purely economic. I.e one where the financial loss is not related to a personal injury or damage to property. See: Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502

• Facts:

• Spartan Steel and Alloys Ltd had a stainless steel factory in Birmingham, which obtained its electricity by a direct cable from the power station. Martin & Co Ltd were doing work on the ground with an excavator and negligently damaged that cable (Spartan Steel did not own the cable). As a consequence, the factory was deprived of electricity for 15 hours which has caused physical damage to the factory’s furnaces and metal, lost profit on the damaged metal and lost profit on the metal that was not melted during the time the electricity was off. Spartan Steel claimed all the three heads of damage.



• The Court of Appeal, consisting of Lord Denning MR, Edmund-Davies LJ and Lawton LJ delivered a majority judgment (Edmund-Davies LJ dissenting), that the Spartan Steel could only recover the damages to their furnaces, the metal they had to discard and the profit lost on the discarded metal. They could not recover the profits lost due to the factory not being operational for 15 hours. Their main reasoning for this was that while the damage to the metal was "physical damage" and the lost profits on the metal was "directly consequential" upon it, the profits lost due to the blackout constituted "pure economic loss".

• Although the majority seemed to agree that Martin & Co Ltd owed the Spartan Steel a duty of care and the damage was not too remote since it was foreseeable, they declined to allow the recovery of pure economic loss for policy reasons

• The fear behind allowing claims for "pure economic loss" is that potentially unlimited claims could flood in. The risks may be unknowable, and parties would find it impossible to insure.



Economic loss continued

• However, where the economic is caused by negligent mis-statement as oppose to a negligent act liability may be imposed as established by a House of Lords obiter in: Hedley Byrne & Co v Heller [1963] 3 WLR 101

• Facts: Hedley Byrne were a firm of advertising agents. A customer, Easipower Ltd, put in a large order. Hedley Byrne wanted to check their financial position, and creditworthiness. and subsequently asked their bank, National Provincial Bank, to get a report from Easipower’s bank, Heller & Partners Ltd., who replied in a letter that was headed,

"without responsibility on the part of this bank"

• It said that Easipower was, "considered good for its ordinary business engagements".



• The letter was sent for free. Easipower went into liquidation and Hedley Byrne lost £17,000 on contracts. Hedley Byrne sued Heller & Partners for negligence, claiming that the information was given negligently and was misleading. Heller & Partners argued there was no duty of care owed regarding the statements, and in any case liability was excluded.

• The court found that the relationship between the parties was "sufficiently proximate" as to create a duty of care. It was reasonable for them to have known that the information that they had given would likely have been relied upon for entering into a contract of some sort. This would give rise, the court said, to a "special relationship", in which the defendant would have to take sufficient care in giving advice to avoid negligence liability.

• However there were no damages as the disclaimer ousted any responsibility created by Heller.



http://en.wikipedia.org/wiki/Duty_of_care_in_English_law

Pure economic loss distinguished

• When one suffers a financial loss arising out of injury to person or property it qualifies to be an economic loss.

• However pure economic loss is financial loss which is unconnected with, and does not flow from, damage to his own person or property. [Clerk & Lindsell p. 127- available in UON library]

• Claims in pure economic losses may include future profits that may have been gained by a person or claims for damages accrued in repairing damaged building. They are not easily ascertained and may not be estimated accurately.



Reluctance of courts in upholding economic loss claims

• Several reasons are advanced why the courts are reluctant to allow full scale recovery of all economic loss.

• 1. The floodgates argument: advanced in Spartan Steel & Alloys Ltd v. Martin [1973] QB 27.

• Lord Fraser in Candlewood Navigation Corporation Ltd v. Mitsuz OSK Lines Ltd [1986] AC 1 made a strong argument that would support the floodgates theory. ‘ if claims by time chatters were permitted, so too would those of a sub-charterer and if those were admitted, why not also claims by any person with a contractual interest in goods being carried in the vessel, and by passengers in the ship, who suffer economic loss due to delay attributable to the collision?’



• 2. The law has to be more sensitive where the rights with regards to personal health and safety are affected more than where he suffers economic loss. Lord Goff in Leigh and Sillavan Ltd. v. Aliakmon Shipping Co. Ltd. [1985] QB 350. stated; ‘the philosophy of the market place presumes that it is lawful to gain profit by causing others economic loss, and that recognized wrongs involving interference with others’ contract are limited to specific international wrongs such as inducing a breach of contract or conspiracy.’

• 3. Economic loss is unpredictable as it is not subject to any physical constraints.



g. Damage to property Damage to property as well as physical damage recieves a higher

degree of protection as compared to intangible economic interests, particularly when the damage is inflicted by negligence.

Duty in respect of loss or damage to property is owed only to a person having ‘legal ownership of, or possessory title to, the property concerned at the time when the loss or damage occurred’ [see Leigh & Sillivan ltd v. Aliakmon Shipping Co Ltd].



Breach of Duty

Standard of care

This is the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person's actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party for compensation of damages. Breach of duty in negligence liability may be found to exist where the defendant fails to meet the standard of care required by law. Once it has been established that the defendant owed the claimant a duty of care, the claimant must also demonstrate that the defendant was in breach of duty. The test of breach of duty is generally objective- the reasonable man test. This test determines what an ordinary, reasonable and prudent person would follow under the circumstances



The reasonable man test: special standards of care

A potential defendant will be negligent by falling below the standards of the ordinary reasonable person in his/her situation, i.e. by doing something which the reasonable man would not do or failing to do something which the reasonable man would do. ( Blyth v Birmingham Water Works Co. [1856] 11 Ex 781). The standard is objective and impersonal in that it eliminates the personal equation and is generally independent of idiosyncrasies of the particular person whose conduct is in the question but it cannot eliminate the personality of the judge. Different factors are taken into account in reaching a conclusion.

The objective test can be variable and may depend on the circumstances of the particular defendant or the situation. For example:

• An amateur footballer is not expected to meet the standard of a footballer in the first division: Condon v Basi [1985] 1 WLR 866.

• In the context of 'horseplay', there is a breach of duty of care only where the defendant's conduct amounts to recklessness or a very high degree of carelessness: Blake v Galloway [2004] 3 All ER 315.

• If the defendant is a professional they will be held to the standard of a reasonable person within that profession. This applies also to trainees: Wilsher v Essex [1988] 1 AC 1074

• Likewise, a learner driver is expected to meet the same standard as a reasonable competent qualified driver, otherwise be found in breach of duty: Nettleship v Weston [1971] 3 WLR 370



http://www.bailii.org/ew/cases/EWCA/Civ/1985/12.html


http://www.bailii.org/uk/cases/UKHL/1987/11.html


• Where there is divided opinion within a profession as to the appropriate course of action in a particular situation then a defendant is not to be treated as in breach of duty by following one body of opinion rather than the other: Bolam v Friern [1957] 1 W.L.R. 583, 587. this case formulated what is known as The Bolam test:

• "I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.“

However, the opinion must be defensible and rooted in logic: Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151

• A child is not expected to meet the standard of a reasonable adult, but will be judged by the standard of a reasonable child of the same age: Mullin v Richards [1998] 1 WLR 1304





Importance of objective to be achieved

In deciding whether the defendant has acted reasonably or is in breach of duty, the

courts weigh up four factors: 1. Likelihood of the harm. 2. Seriousness of the harm. 3. Cost of prevention. 4. Utility of defendant’s conduct. It is necessary to balance the risk against the consequences of not taking it. This point

was aptly stated by Asquith L.J in Daborn Bath Tamways [1946] 2 All E.R 333, where it was held that left-hand drive ambulance during emergency period of war not negligent on turning right without signal. “As has often been pointed out, if all the trains in the country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk.”

In Watt v Hertfordshire [1954] 1 WLR 835, where plaintiff was injured by a jack carried in a lorry not specially designed to transport it which was urgently required to save the life of a woman trapped under a heavy vehicle. Held that the fire authorities were not negligent for the risk involved the plaintiff was not so great as to prohibit the attempt to save life.



Special standards of care: the Three-stage test

A person must owe a legal duty of care to the other person in order to claim for negligence. As the onus of proving that a duty of care exists between the parties is on the plaintiff, he needs to tackle the three state tests; Firstly; was it reasonably foreseeable that the actions of the defendant would cause harm/loss/injury? Is it reasonably foreseeable that her conduct/omission is likely to impact on plaintiff in a positive or negative manner?(This is known as foreseeability test).

Secondly; is there a physical, factual or circumstantial link between plaintiff and defendant? (this proximity test).

Thirdly; how vulnerable was the plaintiff? (Fair, just and reasonable)



Degrees of Negligence These are the classes or grades of negligence into which it has been divided by

statutes and judicial decisions, ranging from slight negligence to that which is gross, willful, or wanton. Measure of negligence is necessary for liability to result.

Ordinary negligence occurs when someone does something that a reasonably careful person would not do under similar circumstances, or fails to do something a reasonably careful person would do.

Gross negligence requires conduct substantially higher in magnitude than ordinary negligence. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference so far as other persons are concerned.

Willful, wanton reckless conduct takes place a shade below actual intent. Proof of willful, wanton, reckless conduct involves a high degree of likelihood that substantial harm will result to another.

Two things distinguish willful, wanton, reckless conduct from negligence. First, the defendant must knowingly or intentionally disregard an unreasonable risk. Second, the risk must entail a high degree of probability of causing substantial harm.



Causation and Remoteness of Damages



Causation and Remoteness Causation The principle of causation requires that the claimant must establish that the loss they have suffered was as a result of the defendant’s wrongful action. Lord Hoffmann Lord Hoffmann, writing in the Law Quarterly Review [2005] LQR 592 at 596-597 summarized the way in which the law deals with causation as follows: “First, it is usually a condition of liability that not only should one have done, or been responsible for, some act which the law regards as wrongful, but that there should be a prescribed causal connection between that act and damage or injury for which one is held liable. There may be other conditions as well, such as that the harm should have been foreseeable. But some prescribed causal connection is usually required. Secondly, the question of what should count as a sufficient causal connection is a question of law…”



There must be a causa causans (legally effective cause) which attributes defendant’s wrongful action to the loss suffered by the claimant. The standard test for establishing the causal connection is “but – for” the test often couched in Latin as causa/conditio sine qua non.



Test …

The test applied in:

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 Chester v Afshar [2004] 3 WLR 927

However, application of the test in multiple causation may lead to absurd results despite being a rule of thumb.








INADEQUACY OF THE BUT FOR TEST

The but-for test will be inadequate in a number of cases, for example, where the breach of duty consists of an omission to act, where the claimant's damage is the result of more than one cause and where the claimant's loss is economic.



Successive causation

Where there exist two causes occurring in succession it may be possible to identify the factual cause of the damage. However at times policy factors may come into play.



See successive causes in:

Performance Cars Ltd v Abraham [1962] 1 QB 33

Baker v Willoughby [1970] AC 467

Jobling v Associated Dairies [1982] AC 794

Heil v Rankin [2000] 2 WLR 1173












Concurrent cause Where there exist two or more causes which operate concurrently it may be factually impossible to determine which one was the cause. This has proved problematic not least because it is the claimant's responsibility to establish which one was the cause. On general principles the burden of proving this is on the balance of probabilities i.e. the claimant has to …



demonstrate that there is more than a 50% likelihood of the cause being the breach of duty of the defendant. Where there are two causes this means the burden of proof is impossible to discharge leaving the claimant uncompensated often for an obvious breach of duty. Various formulations have arisen to circumvent the strict approach.



Bonnington Castings Ltd v Wardlaw [1956] AC 613

McGhee v National Coal Board [1973] 1 WLR 1

Fitzgerald v Lane [1989] 1 AC 328 Wilsher v Essex [1988] 1 AC 1074

Holtby v Brigham & Cowan [2000] 3 ALL ER 421

Fairchild v Glenhaven [2002] 3 WLR 89

Barker v Saint Gobain Pipelines [2004] EWCA Civ 545


















Bonnington Castings v Wardlaw [1956] AC 613,

Wardlaw sought damages for having contracted pneumoconiosis as a result of the accumulation of silica particles in his lungs while working in Bonnington Castings’ “dress and fettle shops”. There were two possible sources of these particles: from a pneumatic hammer and from swing grinders. Bonnington were liable only in respect of dust from the grinders. The House of Lords held that the two sources had contributed to Wardlaw’s contraction of the disease.



McGhee v National Coal Board [1973] 1 WLR 1

The claimant contracted dermatitis from dust in the kiln in which he worked. His employer provided no washing facilities which forced him to cycle home each day with the dust still on his skin. It was not possible to prove that the condition was caused by the presence of the dust on his skin on the ride home, or whether he would have contracted it in any event due to the presence of dust during the ordinary working day. Held that McGhee could recover because he was able to prove that the defendant’s failure to provide facilities materially increased the risk of the condition:



Novus actus interveniens (New intervening act)

Where there is a new intervening act this may break the chain of causation removing liability from the defendant. The legal test applicable will depend upon whether the new act was that of a third party or an act of the claimant.



Novus actus interveniens - Act of 3rd party

Where the new act is of a third party, the test is whether the act was foreseeable. If the act of the third party was foreseeable, the defendant remains liable and the chain of causation remains in tact. If the act of a third party is not foreseeable this will break the chain of causation and the defendant is not liable for the actions of the third party.



Case illustration see:

Home Office v Dorset Yacht Co Ltd [1970] AC 1004

Lamb v Camden LBC [1981] 2 All ER 408

Knightley v Johns & Ors [1982] 1 WLR 349








An alternative approach is to apportion the loss between

the parties:

Webb v Barclays Bank Plc and Portsmouth Hospitals NHS

Trust [2001] Lloyd's Rep Med 500






Novus actus interveniens - Act of the claimant

Where the new intervening act is that of the claimant, the test is whether the claimant acted reasonably in the circumstances. If the claimant's actions are deemed reasonable the chain of causation remains in tact and the defendant is liable for the actions of the claimant. If, however, the claimant's actions are unreasonable in the circumstances the chain of causation is broken and the defendant is not liable for the actions of the claimant.



Cases illustrating the concept:

McKew v Holland [1969] 3 All ER 1621

Baker v TE Hopkins & Son Ltd [1959] 1 WLR Reeves v Commissioner of

Police of the Metropolis [2000] 1 AC 360 966








Loss of chance Where the claimant submits the defendant's conduct lost them a chance of avoiding harm or injury as opposed to causing the harm or injury itself, the courts have been reluctant at imposing liability. This most commonly comes up in relation to medical negligence whereby a failure to diagnose a condition correctly may prevent the claimant from receiving vital treatment which may have saved their life or avoided a deterioration in their condition. The House of Lords has twice considered this issue of causation and on each occasion has refused to impose liability:



Hotson v East Berkshire Area Health Authority [1987] AC

750

Gregg v Scott [2005] 2 WLR 268








Loss of chance … However, outside the context of medical negligence the courts have been more willing to accept loss of a chance as an actionable head of damage:

Allied Maples v Simmons & Simmons [1995] 4 All ER 907



Remoteness: Normally, the law limits liability to those consequences which are attributable to that which made he act wrongful. Remoteness of damage relates to the requirement that the damage must be of a foreseeable type.



Not every loss will be recoverable in tort law. Originally a defendant was liable for all losses which were a direct consequence of the defendant's breach of duty: Rodgers in Winfield & Jolowicz on Tort noted:



“No defendant is responsible ad infinitum for all the consequences of his wrongful conduct, however remote in time and however indirect the process of causation, for otherwise human activity would be unreasonably hampered. The law must draw a line somewhere, some consequences must be abstracted as relevant, not on grounds of pure logic, but simply for practical reasons.”



Origin of the rule Prior to the current test, the question of whether the loss suffered by the plaintiff was too remote to be recoverable, was determined by asking whether the loss was a direct consequence of the negligence of the defendant.



This test was stated in Re Polemis & Furness Withy & Company ltd.

[1921]3 KB 560 that a defendant was liable for all the direct consequences

of his negligence, no matter how unusual or unexpected.



Facts and decision of the case: The defendant chartered a ship from the plaintiff and part of the cargo carried on board was petrol containers which leaked during the voyage. While the ship was being unloaded, the defendant’s workers dropped a heavy plank into the hold, which struck the side of the ship and caused sparks which ignited petrol vapour causing fire. Held: despite the fact that this kind of damage was not foreseeable , the loss suffered by the plaintiff was not too remote. The defendant was liable for all the direct consequences of their negligent actions.



Reformulation of the rule

This was largely considered unfair as a defendant could be liable for damage which was not foreseeable and therefore could not take steps to prevent it. The direct consequence test was overruled in the The Wagon Mound No. 1 [1961] AC 388 and replaced with a new test for deciding if damages are too remote:



http://www.bailii.org/uk/cases/UKPC/1961/1.html










Facts: The Wagon Mound was taking bunkers at the port of Sydney. As a result of carelessness of the agents of the owner, a substantial amount of the oil spilt on the surface of the sea and drifted to a nearby wharf owned by the plaintiff. When plaintiff’s agents saw oil on the surface, they inquired from the plaintiff whether it was safe to continue with welding which response was positive.



A spark lit the cotton wool on the surface of the water which ignited oil causing fire which extensively damaged the wharf. The plaintiff sued the owner of the Wagon Mound to recover the cost of wharf. He argued that because some physical damage had been caused by the spilt oil on the slipway, the fact that the ignition of the oil was not a foreseeable consequence of their negligence did not matter. Held: liability in negligence did not depend on the mere commission of a negligent act, but on the consequences of that act.



The Wagon Mound test was reconsidered and applied in:

Hughes v Lord Advocate [1963] AC 837

Doughty v Turner Manufacturing Company [1964] 1 QB 518

The question as to whether for remoteness of damage, in addition to being damage of a type which is foreseeable, the damage must occur in a foreseeable manner.





Hughes v Lord Advocate suggests not but see:

Tremain v Pike [1969] 1 WLR 1556

Jebson v Ministry of Defence [2000] EWCA Civ 198

Jolley v Sutton [2000] 1 WLR 1082










The Egg Shell/Thin Skull Rule

This rule provides that a defendant must take their victim as they find them i.e. if the victim is particularly vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be expected in an ordinary person, the defendant remains responsible for the full extent of the injury:



Smith v Leech Brain [1962] 2 QB 405

A widow brought a claim against the defendant under the Fatal Accidents Act for the death of her husband. The defendant employed the husband. As a result of their negligence he incurred a burn to his lip. The lip contained pre-cancerous cells which were triggered by the injury sustained. He died three years later from cancer.



Held: The burn was a foreseeable consequence of the defendant's negligence and this resulted in the death. The defendant was liable for his death. It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell skull rule applies and the defendant must take his victim as he finds him.

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See also:

Page v Smith [1996] 1 AC 155

Corr v IBC Vehicles Ltd [2008] 2WLR 499







Res ipsa loquitur (thing speaks for itself)

This is a doctrine law that one is presumed to be negligent if they had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and the accident would not have happened without negligence. Morris LJ in Roe v Minister of Health (1954) 2 QB 66 at 87 admirably put the nature of the doctrine:

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“Possesses no magic qualities, nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin. When used on behalf of a plaintiff it is generally a short way of saying ‘I submit that the facts and circumstances which I have proved establish a prima facie case of negligent against the defendant…’ There are certain happenings that do not normally occur in the absence of negligence and upon proof of these a court will probably hold that there is a case to answer.”



Elements for Res Ipsa Loquitor 1. The harm would not ordinarily have occurred without someone's negligence

2. The instrumentality of the harm was under the exclusive control of the defendant at the time of the likely negligent act

3. The plaintiff did not contribute to the harm by his own negligence.

4. There must be no evidence of the actual cause of the accident.

These elements were, in part, recognized by the famous dictum of Erle CJ in Scott v London & St Katherine Dock Co. (1865) 3 H & C. 596 stating:



“There must be reasonable evidence of negligence, but when the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

See Easson v L.N.E.Ry (1944) 2 KB 421, Gee v Metropolitan Ry (1873) L.R 8 QB 161 and Barkway v South Wales Transport Co. Ltd (1950) 1 All ER 392



Rebutting the inference The presumption is rebuttable by the defendant. Where the defendant chooses not to rebut, the issue will be decided in the plaintiff’s favour. In Henderson v Henry E. Jenkins & Sons (1970) AC 282,it was stated that the issue will be decided in the claimant’s favour unless the defendants provide some answer which is adequate to displace the prima facie inference. Initially, once res ipsa loquitur applied, the legal burden of proof shifted to the defendant that he was liable unless he proved on balance of probabilities that the event was due to no fault on his part. However, the current view is that no shift of the burden of proof which remains throughout on the claimant. If the defendant cannot offer any explanation of how the accident occurred but seeks to show that he exercised all due care, his evidence must be complete to answer the claim.



Nervous shock The term is used to mean the occurrence of a psychiatric illness or injury caused to an individual person by events which have occurred due to the negligence of another person. The law adopts a restrictive approach in awarding damages for negligently inflicted psychiatric injury. In addition to the Caparo test for imposing a duty of care, the courts have laid down several obstacles which must be satisfied by claimants in order to establish liability for negligently inflicted psychiatric injury. Firstly there must be an actual psychiatric injury: Behrens & ors v Bertram Mills Circus Ltd. [1957] 2 QB Emotions of grief or sorrow are not sufficient to amount to psychiatric injury: Hinz v Berry [1970] 2 QB 40 . Nor are feelings of fear, panic or terror: Hicks v Chief Constable of South Yorkshire [1992] All ER 65, Reilly & Anor v Merseyside Regional Health Authority [1994] EWCA Civ 30 The claim was first recognized where the plaintiff had personally been put in fear of imminent physical harm. i.e. Initially psychiatric injury claims were limited to those who feared for their own safety: Dulieu v White [1901] 2 KB 669



http://is.muni.cz/el/1422/jaro2006/MVV01Zk/um/1194863/Denning.pdf?fakulta=1422;obdobi=3142;kod=MVV01Zk

































http://www.bailii.org/ew/cases/EWHC/KB/1901/1.html





Nervous shock continued… The law has since developed to allow more wide ranging circumstances but is still quite restricted. A distinction is drawn between primary and secondary victims. It was then extended to shock caused by fear that imminent harm was about to befall others; then to the witnessing of a shocking event (also to shock caused to a rescuer by actually participating in a horrific event). It was then further extended by the decision of the House of Lords in McLoughlin v O'Brien [1983] 1 AC 410, to shock caused by coming upon the aftermath of a horrific event. In Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, It was made clear that the 'witnessing' cases needed to satisfy the tests of familial, temporal and spatial proximity.

A line was therefore drawn between close and not so close relatives (the familial test); between coming on the scene and coming several hours later to the mortuary (the temporal test); and between being at the scene and merely viewing it on television (the spatial test). A recent example of the spatial test not being satisfied is McFarlane v EE Caledonian Ltd [1994] PIQR 154 where the Court of Appeal said that the plaintiff, though in a vessel nearby, had not been sufficiently proximate to, or involved in, the Piper Alpha disaster to qualify.



Primary victims These are those who are involved immediately as a participant: Alcock v Chief Constable of South Yorkshire. This was later restricted to those in the zone of physical danger: Page v Smith [1996] 1 AC 155 , White & Ors v Chief Constable of South Yorkshire [1998] 3 WLR 1509 .

Primary victims only need to establish that physical harm was foreseeable. There is no requirement that psychiatric injury was foreseeable provided personal injury was foreseeable.

A primary victim does not owe a duty of care to a secondary victim in relation to self-inflicted harm. Greatorex v Greatorex [2001] 1 WLR 1970



http://e-lawresources.co.uk/cases/Alcock-v-Chief-Constable-of-South-Yorkshire.php



































http://www.bailii.org/ew/cases/EWHC/QB/2000/223.html





Secondary victims These are those not within the physical zone of danger but witnesses of horrific events. Secondary victims must demonstrate the four Alcock criteria are present in order to establish liability:

1. A close tie of love and affection

2. Witness the event with their own unaided senses

3.Proximity to the event itself or its immediate aftermath

4. Psychiatric injury must be a result of a shocking event.

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http://www.e-lawresources.co.uk/cases/Alcock-v-Chief-Constable-of-South-Yorkshire.php

The question that arises is whether it includes psychiatric illness caused by the accumulation over a period of time or more gradual assaults on the nervous system.'In Jaench v Coffey (1984) 155 CLR 549 Brennan J said: “I understand "shock" in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness.”



Cases: Taylor v Somerset Health Authority [1993] 4 Med LR 34,

The court rejected a claim by a widow who had come to the hospital after her husband had suffered a fatal heart attack at work due to earlier medical mismanagement. She had not believed that he had died, not even when she was so informed by a doctor. She then saw him lying peacefully behind curtains in the basement of the hospital. The judge said that this did not fulfill the test of temporal proximity in other words, she was too late on the scene. He also said there had to be an external traumatic event.



Sion v Hampstead Health Authority [1994] 5 Med LR 170

The court struck out as doomed to fail a claim by a father who suffered psychiatric injury through attending for some two weeks at the bedside of his 23-year-old son who had been injured in a traffic accident and fatally deteriorated in hospital due, allegedly, to negligent medical treatment. The court took the view, relying solely on the pleadings, and having regard principally to the psychiatric report that was served with the particulars of claim, that there was no evidence of 'shock', no sudden appreciation by sight or sound of a horrifying event but, rather, a continuous process that ran from the father's first arrival at the hospital to a death two weeks later that was by then not unexpected and on then to his realization, after the inquest, of the possibility of medical negligence.



Negligent misstatement The tort of negligent misstatement is defined as an “inaccurate statement made

honestly but carelessly usually in the form of advice given by a party with special skill/knowledge to a party that doesn’t possess this skill or knowledge. The first case in which a senior court was prepared to consider that it might be possible for someone to be liable for damage caused by negligent misstatements was Hedley Byrne v. Heller in 1963. This case concerned an advertising agency which had been asked to extend a line of credit to one of its clients. The agency asked the client’s bank for a reference and the bank negligently produced an incorrect reference which made it appear that the client’s finances were in much better shape than they really were. As a result the agency extended credit to a client which couldn’t pay and suffered losses. The House of Lords considered the position on negligent misstatements and stated that where a person gives inaccurate information and it is reasonably foreseeable that the recipient will act on this information, that person may be liable for any losses which result. However, the House of Lords decided that this would not apply in most cases, and that there would need to be a “special relationship” between the parties.



Two important things to consider whether special relationship exists are: 1. Has the person making the statement “voluntarily assumed responsibility” for the recipient acting on this statement? 2. Is it fair, just and reasonable for the person to whom a statement has been made to rely on that statement? Smith v. Eric Bush it was suggested that it might be reasonable for someone who is buying a small property to rely on the valuation carried out for the mortgage company, whereas the purchaser of an expensive property could not reasonably rely on this and should commission a full structural survey of his own. In the same year the court in Caparo v. Dickman decided that it was not reasonable for investors to rely on a an internal company audit report as this report was not prepared for their benefit or as the basis for any investment and was merely prepared to discharge a statutory duty. In the 1995 case of Henderson v. Merret Lord Goff suggested that the “fair just and reasonable” test wasn’t really an independent requirement and was really just a way of helping to determine whether there had been a voluntary assumption of responsibility.



DEFENCES TO NEGLIGENCE



• The plaintiff's: – pre-existing knowledge about the defendant’s

incapacity;

– pre-existing knowledge of the risk associated with the state of affairs that gave rise to the negligence

– failure to take reasonable care of his or her own safety

– unlawful conduct

INTRODUCTION: FACTORS THAT MAY UNDERMINE P’S CLAIM



• Definition; contributory negligence is a failure by the claimant to take reasonable care for his own safety that contributes to the damage about which he complains.

1.CONTRIBUTORY NEGLIGENCE



• Per (McHugh J): At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed. In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered.

• The test of contributory negligence is an objective one

Joslyn v Berryman



At common law, contributory negligence acted as a complete defence. However, under the Law Reform (Contributory Negligence) Act 1945, contributory negligence operates as a partial defence whereby the courts can apportion loss between the parties. This makes it a more attractive option to the courts than other defences which can operate harshly and absolve a defendant of liability no matter how much at fault they may be.



• The defence is established if the defendant proves the plaintiff guilty of conduct which amounts to a failure to take care for his/her own safety.

• To plead the defence, the defendant bears the onus of proof and must prove the requisite standard of care that has been breached by P.



• Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering damage, but damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage.

The Substance of Apportionment Legislation (Law Reform

(Miscellaneous) Act 1965 (NSW) s10



• This provision only applies if the claimant was at fault. The focus of the courts has been on whether the claimant was negligent, although a breach of statutory duty can constitute fault too.

• A claimant is negligent if he failed to take as much care as the reasonable person in his position would have taken for his own safety.

FAULT ON THE PART OF THE CLAIMANT



• The principles that are used to ascertain whether a defendant breached a duty of care that he owed to the claimant are, for the most part applied to determine whether the claimant is guilty of contributory negligence

• The standard of care required is that of a reasonable man. In deciding whether the defendant was negligent, in asking whether the claimant failed to take reasonable care for his own safety, the risk of injury and the magnitude of the potential harm to the claimant is weighed against the cost and inconvenience of taking precautions and the utility of the impugned conduct.



• The fact that the defendant is a child is taken into account in determining the standard of the reasonable person and the defendants conduct is compared with the benchmark of the reasonable child of the same age.

• Claimants who are confronted by an emergency caused by the defendants negligence are treated leniently. They will not be guilty of contributory negligence simply because they made an error of judgement in the agony of the moment. see Jones v Boyce (1816) 1 Stark 493; 171 ER 540 (CCP).



• The plaintiff was a passenger on the defendant’s coach. A coupling rein broke loose and, thinking that the coach was about to crash, the plaintiff jumped out and broke his leg. The coach did not in fact crash and if he had remained on it he would have suffered no harm. As his actions were those of a prudent and reasonable man, he was not guilty of contributory negligent.



• Also see Moore v Hotel Plan Ltd 2010 EWHC 276 QB

• The agony of the moment principle was extended in Brandon v Osborne, Garrett & Co. (1924) 1 kb 548 KBD to encompass threats to the safety of the claimant’s immediate family.



• Generally, common law treats rescuers sympathetically. Only those rescuers who act with reckless disregard for their own safety will be penalized by the apportionment provision. The rule that rescuers must be particularly irresponsible before being found contributorily negligent will often be engaged simultaneously with the agony of the moment principle.



• Where the claimant is exercising some right-such as right of passage- his deliberately encountering a danger created by the defendant is not necessarily contributory negligence. It will only constitute contributory negligence if after making due allowance for his right to be there, the claimant showed an unreasonable neglect for his own safety.



• The bare fact that the claimant employee was not paying attention at the time of the suffering injury will not constitute contributory negligence especially when performing repetitive tasks at his work of place. This is because it is the employers duty to guard against risks of injury resulting from inattention which is readily foreseeable.



• Claimants are entitled to expect that persons who owe them a duty of care will take reasonable precautions for their safety. See Tremayne v Hill (1987) RTR 131 (CA).

• Contributory negligence is a type of conduct and not a state of mind. It involves a failure to take as much care as the reasonable person would have taken for his own safety. Therefore a claimant who deliberately harms himself may be guilty of contributory negligence since the reasonable person doesn’t engage in acts of self harm.



• If a person is vicariously liable for another individual, the contributory negligence of the latter is imputed to the former.



• The claimants fault must be casually related to the damage about which he complains. As Lord Atkin put it: if the claimant were negligent but his negligence was not a cause operating to produce the damage there would be no defence. This principle was applied in Lertora v Finzi where the defendant motorist failed in his plea of contributory negligence against the driver of another car on the basis that the latter failed to wear a seat belt as he could not show that his injuries would have been less severe had he used a seat belt.

THE CLAIMANT’S FAULT CONTRIBUTED TO HIS DAMAGE



• C.f jones v livox Quarries Ltd (1952) 2 QB 608 (CA).

• Occasionally, a claimants lack of care may be a necessary condition of the injury about which he complains but nevertheless unrelated to it in the required sense. Consider the case of St. George v Home Office (2008) EWCA Civ 1068; (2009) 1 WLR 1670; (2008) 4 All ER 1039.



• The claimants fault must be casually related to the loss about which he complains rather than to the accident that caused the loss. The principle is neatly illustrated by Froom v Butcher.



• If the claimant is guilty of contributory negligence, it is necessary to consider how his damages should be apportioned. Some reduction must be made.

• The apportionment provision directs the courts to reduce the claimants damages as they think just and equitable having regard to the claimants share in responsibility for the damage.

• Two factors must be considered in determining the appropriate reduction:

THE SCOPE OF THE APPORTIONMENT PROVISION



The relative blameworthiness of the parties

the casual potency of the parties respective acts in issue.

• It is important to note that the apportionment provision operates on compensatory damages.

• When two or more defendants cause the claimant indivisible damage i.e. (where the damage caused by one defendant cannot be separated from the damage caused by the other defendant), the extent of the claimant’s contributory negligence is assessed against the totality of the defendants’ negligence.



A)THE ELEMENTS OF THE DEFENCE

• The defendant will be able to avoid liability in the tort of negligence if he proves that the claimant voluntarily assumed the risk of injury.

• The plea is often referred to by the maxim volenti non fit injuria which basically means that one who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong.

2.VOLUNTARY ASSUMPTION OF RISK



• The defendant must establish that the claimant had full knowledge of the risk and voluntarily agreed to it.

• The defence differs from contributory negligence in that when applicable, it prevents liability from arising and does not merely reduce the extent of the defendants liability.

• The courts have shown preference of the contributory negligence defence over volenti non fit injuria and hence the application of the latter is restricted. See Nettleship v Weston (1971) 2 QB 691(CA), 701.



• The claimant must have been aware of the risk of injury that materialised for one cannot consent to a risk of injury if one does not know that it exists.

• The fact that a reasonable person in the claimants position would have known about the risk is insufficient to satisfy this requirement.

• A case in which this prerequisite to the defence’s application was determinative is Neeson v Acheson where a woman had been bitten by her neighbor's dog after she placed her face close to its jaws. As she had befriended the animal over the course of several months prior to the incident, she had no reason to expect that it would bite her. The defendant argued that the claimant had voluntarily assumed the risk of injury. This submission was rejected. The judge held that as the claimant did not foresee any risk of injury, the defence was inapplicable.

i. The claimant knew of the risk of injury



• Also see Poppleton v trustees of the Portsmouth Youth Activities Committee where the defence failed for want of full knowledge by the claimant of the risk of injury.



• It is not enough to enliven the defence of volenti that the claimant knew of the risk of injury. He must have also agreed to run the risk. This requirement was explained by Bowater v Rowley Regis Corp. In that case, his Lordship said: for the purpose of the rule…. A man cannot be said to be truly “willing” unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will.

2. The claimant voluntarily agreed to incur the risk



• From the above dictum, if the claimants decision to expose himself to a risk of injury is influenced by the slightest pressure, the defence will fail. The knowledge requirement is in a sense a sub-element of the voluntary agreement requirement. This therefore means that the defence does not lie against rescuers.

• The voluntariness requirement also excludes the defence where the claimant engaged in acts of self harm that the defendant, in breach of a duty owed to the claimant, failed to prevent. In Reeves v Commissioner of police of the Metropolis, this was a claim by the estate and dependants of a man who committed suicide while in police custody. But for the negligence of the police, the deceased would not have been able to take his own life. As the police were under a duty to prevent the deceased from committing acts of self harm. Held; the defendant could not succeed on the volenti defence.



• In rare instances, the requirement that the claimant voluntarily assume the risk of injury will be dispensed with and mere knowledge of the risk will bar the claimant e.g. where the claimant is a gratuitous bailee of defective chattel belonging to the defendant and the defendant warns the claimant of its dangerous nature.



• As a general the parties can reallocate liabilities by a contract or by a notice. This principle is however subject to significant exceptions, the most significant being the unfair contract terms act (UK). (The Kenyan statute being Contracts in Restraint of Trade Act which was repealed by the competition Act 2010).

3.EXPRESS EXCLUSION OR LIMITATION OF LIABILITY



• This defence means that a person cannot rely on their illegal act or conduct to found an action against another person. It is covered by the Latin maxim “ex turpi causa non oritur actio“ which means out of an illegal act there can be no cause of action.

• The defence must be pleaded and proved by the defendant. The standard of proof is the balance of probabilities.

• The defence operates in the interest of public policy because, allowing a claimant to profit from his/her illegal conduct would constitute an affront to the public conscience and the defence preserves the integrity of the legal system.

4. ILLEGALITY



• A good illustration is Pitts v Hunt, a case involving youths who had been drinking, had set off home on a motorbike driven by one of them with the claimant riding pillion and encouraging the driver whom he knew was drunk, under-age, unlicensed and uninsured, to drive so recklessly as to frighten other road-users). An accident occurred as a result of which the claimant was seriously injured and the driver/defendant killed. The claimants action failed because of the defence of illegality.



i. Joint Illegality Enterprise Cases- Are actions in which the defendant injured the claimant while engaged in criminal enterprise jointly with him. See Pitt v hunt

ii. Unilateral illegality cases- claimants who act unlawfully independently of the defendant at the time of the defendants tort may also fail due to the illegality defence. See Revill v Newberry.

iii. Sanction shifting cases- are actions in which the claimant sues the defendant complaining that the defendants negligence caused him to incur a criminal sanction. See Gray v Thames Trains Ltd.

THREE TYPES OF ILLEGALITY CASE



• In conclusion, the illegality defence has been under the scrutiny of the Law Commission for a considerable period of time. In 2010, the commission published its final report on the defence. It was of the view that the courts should take account of all policy considerations in deciding whether the defence applies( these considerations included deterrence, preventing wrongful profiting and upholding the dignity of the bank).



LIABILITY FOR DEFECTIVE PREMISES AND STRUCTURES

INTRODUCTION



• This title falls under occupier’s liability. The concept concerns the potential liability of occupiers to those who suffer injury and/ or other forms of loss by virtue of the state of the occupier’s premises. Occupier’s Liability in Kenya is governed under the Occupier’s Liability Act , Cap 34, Laws of Kenya.

• Liability for defective premises rests with two types of defendants:

1. Occupier 2. Someone other than the occupier-Includes landlords,

builders and professionals i.e. architects. The general trend in negligence case law demonstrates restricted scope of liability of non-occupiers for economic loss associated with defective premises



1.Duty of occupier of premises to visitors (section 2) • The rules enacted by sections 3 and 4 of this Act shall have effect, in place

of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

• The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly for the purpose of the rules so enacted the persons who are to be treated as an occupier and as his visitors are the same as the persons who would at common law be treated as an occupier and as his invitees or licensees.

Relevant Provisions of the Occupier’s Liability Act, Cap 34.



• The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate—

(a) the obligations of a person occupying or having control over any fixed or movable structure, including any vessel, vehicle or aircraft; and

(b) the obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors.



2.Extent of occupier’s ordinary duty(section 3) • An occupier of premises owes the same duty, the common duty of

care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

• “the common duty of care” is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

• The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling,

will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.



• In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.



N.B

1. The common duty of care does not impose on an occupier any obligation

to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

2. For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.



3. Effect of contract on occupier’s liability to third party(section 4)

• Where an occupier of premises is bound by contract to permit persons who are strangers to the contract to enter or use the premises, the duty of care which he owes to them as his visitors cannot be restricted or excluded by that contract, but (subject to any provision of the contract to the contrary) shall include the duty to perform his obligations under the contract, whether undertaken for their protection or not, in so far as those obligations go beyond the obligations otherwise involved in that duty.

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• A contract shall not by virtue of this section have the effect, unless it expressly so provides, of making an occupier who has taken all reasonable care answerable to strangers to the contract for dangers due to the faulty execution of any work of construction, maintenance or repair or other like operation by persons other than himself, his servants and persons acting under his direction and control.

• “stranger to the contract” means a person not for the time being entitled to the benefit of the contract as a party to it or as the successor by assignment or otherwise of a party to it, and accordingly includes a party to the contract who has ceased to be so entitled.



• Where by the terms or conditions governing any tenancy (including a statutory tenancy which does not in law amount to a tenancy) either the landlord or the tenant is bound, though not by contract, to permit persons to enter or use premises of which he is the occupier, this section shall apply as if the tenancy were a contract between the landlord and the tenant.

• In so far as it prevents the common duty of care from being restricted or excluded, these provisions apply to contracts entered into and tenancies created before the commencement of this Act, as well as to those entered into or created after its commencement; but, in so far as it enlarges the duty owed by an occupier beyond the common duty of care, it shall have effect only in relation to obligations which are undertaken after that commencement or which are renewed by agreement (whether express or implied) after that commencement.



• Landlord’s liability in virtue of obligation to repair

• Where premises are occupied by any person under a tenancy which puts on the landlord an obligation to that person for the maintenance or repair of the premises, the landlord shall owe to all persons who or whose goods may from time to time be lawfully on the premises the same duty, in respect of dangers arising from any default by him in carrying out that obligation, as if he were an occupier of the premises and those persons or their goods were there by his invitation or permission (but without any contract).

• Where premises are occupied under a subtenancy, subsection (1) of this section shall apply to any landlord of the premises (whether the immediate or a superior landlord) on whom an obligation to the occupier for the maintenance or repair of the premises is put by the subtenancy, and for that purpose any obligation to the occupier which the subtenancy puts on a mesne landlord of the premises, or is treated by virtue of this provision as putting on a mesne landlord, shall be treated

as put by it also on any landlord on whom the mesne landlord’s tenancy puts the like obligation towards the mesne landlord.



• For the purposes of this section, where premises comprised in a tenancy (whether occupied under that tenancy or under a subtenancy) are put to a use not permitted by the tenancy, and the landlord of whom they are held under the tenancy is not debarred by his acquiescence or otherwise from objecting or from enforcing his objection, then no persons or goods whose presence on the premises is due solely to that use of the premises shall be deemed to be lawfully on the premises as regards that landlord or any superior landlord of the premises, whether or not they are lawfully there as regards an inferior landlord.



Landlord’s liability in virtue of obligation to repair(section 5)

• Where premises are occupied by any person under a tenancy which puts on the landlord an obligation to that person for the maintenance or repair of the premises, the landlord shall owe to all persons who or whose goods may from time to time be lawfully on the premises the same duty, in respect of dangers arising from any default by him in carrying out that obligation, as if he were an occupier of the premises and those persons or their goods were there by his invitation or

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• Where premises are occupied under a subtenancy, subsection (1) of this section shall apply to any landlord of the premises (whether the immediate or a superior landlord) on whom an obligation to the occupier for the maintenance or repair of the premises is put by the subtenancy, and for that purpose any obligation to the occupier which the subtenancy puts on a mesne landlord of the premises, or is treated by virtue of this provision as putting on a mesne landlord, shall be treated as put by it also on any landlord on whom the mesne landlord’s tenancy puts the like obligation towards the mesne landlord.

• For the purposes of this section, where premises comprised in a tenancy (whether occupied under that tenancy or under a subtenancy) are put to a use not permitted by the tenancy, and the landlord of whom they are held under the tenancy is not debarred by his acquiescence or otherwise from objecting or from enforcing his objection, then no persons or goods whose presence on the premises is due solely to that use of the premises shall be deemed to be lawfully on the premises as regards that landlord or any superior landlord of the premises, whether or not they are lawfully there as regards an inferior landlord.



• A landlord shall not be deemed to have made default in carrying out any obligation to the occupier of the premises unless his default is such as to be actionable at the suit of the occupier or, in the case of a superior landlord whose actual obligation is to an inferior landlord, his default in carrying out that obligation is actionable at the suit of the inferior landlord.

• This provisions shall not put a landlord of premises under a greater duty than the occupier to persons who or whose goods are lawfully on the premises by reason only of the exercise of a right of way.

• Nothing in Section 5 shall relieve a landlord of any duty which he is under apart from this section.



N.B

• For the purposes of this section, obligations imposed by any enactment in virtue of a tenancy shall be treated as imposed by the tenancy, and “tenancy” includes a statutory tenancy which does not in law amount to a tenancy, and includes also any contract conferring a right of occupation, and “landlord” shall

be construed accordingly.

• Section 5 applies to tenancies created before the commencement of the Act, as well as to those created after its commencement.



The common duty of care

General principles



• The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.

• In Laverton v Kiapasha where a takeaway food outlet could not prevent the floor of their premises becoming wet because customers were constantly coming in with wet feet on a rainy evening. There was no liability under the 1957 Act when a customer slipped and injured her ankle since, on the facts, the restaurant had done what was reasonable on a very rainy night to keep the floor as dry as possible.



• The duty under the Act is virtually identical to the duty imposed under the common law of law of negligence.

• The occupiers’ liability Act still amounts to little more than an echo of well-established common-law principles with regards to the standard of care required in relation to child visitors and those who have a particular trade, profession, or skill. Section 3(3) states that an occupier must be prepared for children to be less careful than adults and an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.



• Example. a window cleaner injured through the insecurity of some part of the exterior of the premises which he uses as a foothold or handhold for the purpose of cleaning the outside of the windows can be expected by the occupier to have guarded against this special risk which is ordinarily incidental to the job of a window cleaner. But there is no reason why the occupier should not be liable if the window cleaner is injured through some defect in the stair case when he is going upstairs, in the ordinary way, to reach the windows on an upper floor.



• There is no duty owed to those who use the premises in excess of their permission to be there. In The Carlgarth Scrutton J stated that when you invite a person into your house, you do not invite him to slide down the banisters.

• In order to recover damages, the claimant must be able to show that he suffered loss or injury of a kind that was reasonably foreseeable.

• Common law of negligence does not afford special duties to those exercising rights conferred by law.



• At common law, an occupier discharged his duty to a visitor by a warning sufficient to convey to the visitor full knowledge of the nature and extent of the danger

• That rule was changed by section 3(4)(a ) of the Occupier’s Liability Act which states that where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.



• In Roles v Nathan, Lord Denning provided a helpful example of where the mere provision of a warning would not discharge the duty under the Act. He suggested that simply warning visitors of the danger of a footbridge over a stream would be insufficient to ensure a visitor’s safety if there was only one footbridge and it was essential to use that bridge to enter the defendants land. But he added that, if there were two bridges and one of them was safe, a warning about the unsafe bridge would then fulfill his duty.



• A warning has also been held to be ineffective where it was very small in size and posted in an insufficiently prominent position. On the other hand, if a warning is given, but ignored by the visitor a court would probably hold that, in all the circumstances, the common duty of care had been discharged. If the defendant does not know of the danger, it is obvious that he cannot rely on section 3(4)(a) although he may still have a defence based on exclusion of liability.



• The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor(section 3(5)). In staples v west-Dorset District Council, damages were refused where the claimant slipped and was injured on the defendant council’s algae-covered rocks of which he had full knowledge, and in respect of which it was proven that he would have ignored any warning had one been given.

Assumption of risk



• In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances. The claimant cannot by his own carelessness enlarge the duty of care owed to him by the defendant.

Contributory negligence



• Section 3 (4)(b) of the Act provides that where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

Liability for independent contractors



• In applying this subsection, the courts must consider whether initially, it was reasonable for the occupier to engage an independent contractor to undertake the construction, maintenance, or repair work. It is presumptively reasonable for an occupier to engage a contractor wherever, as in Haseldine v C A Daw & Son ltd, the work to be done requires special skill or equipment not possessed by the occupier. Delegation should, at the very least, be reasonable where it is normal commercial practice to engage contractors for such work.



• Secondly the occupier may have to check the competence of the contractor. If the work is of a fairly standard nature, the contractor may be trusted. However, if the work entrusted to a contractor is of a kind that that after its completion, necessarily involves a risk to future visitors if it has been carelessly executed, the occupier will be under a duty to check the competence of the contractor.

• Thirdly, the occupier will need to take such steps as he reasonably ought in order to satisfy himself that the work had been properly done.

• Its unclear from the act if the test to be adopted is a subjective or objective one.



• Since the act uses the past tense in relation to work done, it is clear that section does not envisage the occupier employing a suitable professional to supervise the ongoing work of an independent contractor. In AMF International Ltd v Magnet Bowling Ltd, it was said that if the occupier was going to invite the claimant to bring valuable timber on to the site while construction was ongoing, then to escape liability he might have to employ a supervising architect to ensure that the contractors had made the premises sufficiently safe for that timber safely to be brought there.

• On the other hand, in Ferguson v Welsh, it was said that an occupier will not normally be liable to the contractor’s employee for injuries sustained because the premises were unsafe by virtue of the dangerous system of work adopted by the independent contractors.



• Section 2(3)(a) provides that the rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate—

• (a) the obligations of a person occupying or having control over any fixed or movable structure, including any vessel, vehicle or aircraft.

• With regard to movable structures the test is probably whether one would go into or upon the structure. Fixed structures on the other hand must be taken to connote some non-movable chattels constructed on land.

Some special cases falling within the Occupiers Liability Act



• Section 2(3)(b) provides that;

“the obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors”.

• This subsection will impose a duty on the occupier to prevent damage to goods on the premises arising from the defective physical condition of the premises.

Damage to property



• At common law, contracts for the use of premises were deemed to contain various implied terms relating to the safety of the premises.

• Section 6 of the act provides that; 1) Where persons enter or use, or bring or send goods to, any premises in

exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right, shall be the common duty of care.

2) Subsection (1) of this section shall apply to fixed and movable structures as it applies to premises.

• This therefore means that where a person enters the occupier’s premise under a contract between himself and the occupier, the occupier is obliged to extend the common duty of care to that entrant, subject to any effective contrary term in their contract.

Liability in contract



• This section is not limited in its operation to personal injury caused by the defective state of the occupier’s premises; it also covers damage to goods.

• Contractual entrants have the option of suing in contract or in tort.



• Section 3(1) provides that; An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. The occupier thus has two options if he wishes to modify the common duty of care owed to his visitors. He may do so through a contract or affixing a clear and unequivocal notice, either affixed at the point of entry to the land or included in a programme or ticket giving access to the land, will suffice.

• These two options must however be read subject to the limitations stipulated in the Act.

• Section 4(1) provides that Where an occupier of premises is bound by contract to permit persons who are strangers to the contract to enter or use the premises, the duty of care which he owes to them as his visitors cannot be restricted or excluded by that contract, but (subject to any provision of the contract to the contrary) shall include the duty to perform his obligations under the contract, whether undertaken for their protection or not, in so far as those obligations go beyond the obligations otherwise involved in that duty.

Exclusion of liability



• Section 4(2) provides that a contract shall not by virtue of this section have the effect, unless it expressly so provides, of making an occupier who has taken all reasonable care answerable to strangers to the contract for dangers due to the faulty execution of any work of construction, maintenance or repair or other like operation by persons other than himself, his servants and persons acting under his direction and control.

• It is therefore apparent that the burden on the defendant under section 4 appears to be greater than that imposed by the common duty of care because he is unable to delegate to independent contractors any part of his duty of care.



• Naturally, an occupier who intentionally harms a person whom he has permitted to be on his premises is answerable for so doing under the law of battery. But in addition the occupier may also be under a duty according to the ordinary law of negligence to take reasonable care when conducting certain activities on his land that are foresee ably likely to harm visitors of whose presence he is, or ought to be, aware.

• The scope for the residual role of the common law stems from the wording of section 2(1)of the Act which provides that the rules enacted by sections 3 and 4 of this Act shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.

COMMON LAW LIABILITY AND ACTIVITIES ON LAND



• The dangers caused by the defective state of premises are not confined to entrants to those premises. Occupiers are under a general duty to take reasonable care to prevent dangers on their premises damaging persons or property on adjoining premises. This is so whether the danger arises from disrepair of the premises or some man-made or natural hazard such as fire caused by lightning striking a tree.

• there are two issues of particular difficulty affecting the duties of care owed by the occupiers of adjoining premises. First where a claimant tenant sues his landlord for damage resulting from the defective state of repair of premises retained by the landlord. The case law is not clear on the matter.

LIABILITY TO THOSE OUTSIDE ONE’S PREMISES



• The second area of difficulty in delimiting the duty owed by an occupier to those on adjoining premises relates to damage inflicted on those adjoining premises by third parties. No duty will generally be found to lie where damage is inflicted on a neighbors' property by vandals or burglars even though the wrongdoers conduct may have been facilitated by a state of disrepair or lax security on the defendants occupier premises. This approach is in line with the general reluctance on the part of the courts to impose liability on a person who has no special relationship with the relevant third party, for the conduct of that third party.



a) Builders And Contractors; Physical Damage • A builder or contractor actually engaged in construction or repair work

on land and premises affixed to that land owes a duty of care to the occupier of the premises, his visitors, and, where foreseeable, probably to trespassers as well.

• Any universal exemption from a duty of care in respect of real property did not survive the decision in AC Billings & sons Ltd v Riden where the building contractors were employed to make an alteration to the front part of a house. In the course of this work, the contractors failed to take reasonable care to make access to the house safe and Riden, a visitor, was injured when leaving the house in the hours of darkness. The contractors were held liable in negligence.

• Subsequent decisions held the original builders of a property liable for personal injury resulting from the negligent construction or repair of buildings both to subsequent occupiers and to their visitors.

LIABILITY OF NON-OCCUPIERS



b) Builders And Contractors: Other Loss • No duty of care will be imposed on a builder or contractor in

respect of economic loss occasioned by negligent work of construction or repair, save where some special relationship is found to exist between him and the claimant. i.e. contractors and development companies owe no duty in tort in respect of financial losses occasioned to subsequent occupiers of property with whom they have no contractual relationship. In D& F Estates v Church Commissioners for England D built a block of flats later occupied by C. crumbling plasterwork caused by D’s negligence forced C to expend considerable sums of money on repairs. The house of lords found that D was not liable for C’s loss. By analogy with liability for chattels, D owed a duty to safeguard C against physical damage to person or property caused by negligent construction of the property, but not against economic loss caused by a defect in the quality of the property itself. Damage to the property itself was a mere defect in quality- the property was simply not value for money.

• Recoverable physical damage must be occasioned to separate property.



• Some of the questions left open in the above case were partially answered in the case of Murphy V Brentwood District Council where the defendant local authority failed to inspect the foundations of a building adequately, with the result that building became dangerously unstable. The claimant, being unable to raise any money for repairs, had to sell the house at a considerable loss, which he sought to recover from Brentwood District Council. This action failed as the loss was identified as a pure economic loss.



• The effect of Murphy would seem to be this. Outside a contractual relationship, negligent construction of a building only results in liability if actual physical damage is caused to a person or property that is not part and parcel of the building thus if defective foundations cause cracks in the walls or threaten damage to any fixture in the building installed by the defendant, the cost of remedying the damage is irrecoverable economic loss.

• By contrast, if A negligently installs a defective central heating boiler in a building erected by B but which is later bought and occupied by C, and then later still that boiler explodes damaging the building, that loss is recoverable by C against A. A’s negligence has caused actual damage to property quite separate from the inherently defective component he installed.



C)professional advisers • Architects and other professionals involved in the

design of the building owe a duty of care to any person who may be injured on the site in the course of the building work, and to subsequent occupiers of the premises in respect of both their personal safety and damage to property separate from the original property itself.

• on subsequent disposal of the premises, surveyors engaged to inspect the property will be liable for any failure to value the property competently or to discover and report on relevant defects in the property.



• Local authorities owe duties to tenants and subsequent purchasers of local authority dwellings as builders and contractors. see Rimmer v Liverpool City Council (1985) QB 1

• Landlords- historically, the liability of landlords for defects arising from disrepair on premises let by them was largely limited to contractual liability. Landlords are now liable to tenants, their families, and others injured on the premises just like anyone else in respect of their negligent installations or repairs in the premises let by them.



Next Lecture

Intentional Torts



Documents

Lectures Weeks 5 and 6 the Tort of Negligence