What are the elements of a cause of action for negligence?
- A Duty of Care
- A failure to conform to the required standard
- Actual loss or damage
- A sufficiently close causal connection
or - a duty of care, a breach of that duty, which causes, foreseeable damage.
According to McMahon & Binchy
What are the elements to establishing a duty of care?
- Foreseeability of harm
- Proximity of relationship
- Fair just and reasonable to impose a duty
How was the modern duty of care mechanism established?
Hint - case
Donughue v Stevenson, Lord Atkin
* *Neighbour principle *
* You must take reasonable care,
* to avoid acts or omissions,
* which you can reasonably foresee,
* would be able to injure your neighbour.
What is a standard of care?
Basic version
- The standard of care by which a defendant is measure is that which a reasonable person would have had.
- McMahon & Binchy reasonable person will be expected to know facts of common experience such as the laws of physics etc
How is negligent conduct assessed under the standard of care?
- Probability of harm
- Gravity of harm
vs - Cost and practicality of prevention
- Social Utililty
What are the elements of causation?
- Factual causation
- Legal causation
Duty of care
What must be foreseeable for a claim in negligence?
- The plaintiff must be foreseeable
Palsgraf v Long Island Railroad - Woman was 20 feet down the platform from an explosion of fireworks, not foreseeable she would be injured. - The harm must be foreseeable
Bhamra v Dubb - Caterer at a Sikh wedding served eggs, guest died of an egg allergy. Foreseeable that guests would assume food was egg free without enquiry.
Duty of Care
How is proximity fulfilled?
- There should be a pre tort relationship between the parties.
- A proximal relationship may be created by physical proximity, close and direct ties, an assumption of responsibility, or a legal contract.
Duty of Care
What was Lord Atkins definiton of proximity in Donoughue ?
- Proximity exists when at the time of the negligent act the defendant was in a position where he could identify the plaintiff with sufficient clarity
- be this an individual or identifiable class/ grouping
- such that it could be said that is was reasonably foreseeable that the plaintiff would be ‘closely and directly affected’ by the defendants actions.
Duty of Care
Name two cases where proximity was not found
Goodwill v British Pregnancy Advisory Service
* failed vasectomy resulted in a pregnancy
* Claimant was not the patients partner at the time, doctor could not identify her as being closely and directly affected at the time.
* Doctor could not owe a duty of care to all the women that the patient could sleep with after the surgery.
Hill v Constable of West Yorkshire
* Police could not owe a duty of care to the last victim of the Yorkshire Ripper as they could not identify her specifically as at risk anymore than all the other young women in Yorkshire.
Duty of Care
How is fair just and reasonable judged by the courts?
- This step is essentially a policy judgement. The courts do not want to open the floodgates to claims which could cause community welfare issues.
- Sometimes the needs of the individual will be trumped by the needs of society.
Byrne v Ryan
* Failed sterilisation procedure and negligent advice lead to the plaintiff having two healthy children.
* Although there was foreseeability and proximity as a matter of policy the court held the birth of a healthy child was a blessing and it would be immoral to hold the doctor liable for the costs of raising them.
Breach of duty of care
How is probability of harm assessed?
- The more likely it was the defendants conduct would result in harm the more likely they are to have breached their duty of care.
O’Gorman v Ritz (Clonmel) Ltd
* Plaintiff injured her leg on a seating mechanism on the seat in front of her in the defendants cinema.
* Over seven years and 1 million patrons no one had been injured like this before
* No breach to the duty of care.
Breach of duty of care
How is the gravity of harm assessed?
- The more serious the harm that could arise the greater the precautions the defendant will be expected to have taken to eliminate the risk of it occurring.
Paris v Stepney Borough Council
* Plaintiff was a fitter in a garage who only had one eye so he was blinded when a piece of metal went into it.
* While provision of goggles were not necessary for his work the court held the employer should have tailored their duty to the plaintiff having regard for his medical circumstances.
* Duty of care was breached.
How are cost and practicality of prevention assessed?
- It is impossible to remove all harm from society and a defendant may be allowed to run a slight risk of harm if the cost of remedying it is unreasonably high.
O’Gorman v Ritz (Clonmel) Ltd - Eliminating the improbable risk would have involved removing all seating in the cinema at extrordinary costs.
- No breach of duty of care.
Breach of Duty of Care
How is Social Utility considered?
- The court will factor distributive justice considerations when assessing the standards of care.
- McMahon & Binchy - ‘a person attempting to save the life of another may drive with less care than that of a Sunday driver’.
Mulcare v Southern Health Board
* Plaintiff sued her employer while working as ‘home help’ after she injured her ankle working in a dilapidated home.
* Court found no onus on the Board to inspect every home before sending help.
* The social utility of the defendant’s function in providing this care was a crucial factor in finding it had not breached its duty of care.
Causation
What are the tests for factual causation?
- ‘But for’ Test - single causes
- Material Contribution Test - multiple causes
Causation
What is the ‘but for’ test?
- The defendant is considered the factual cause of the damage where the plaintiff can establish that on the balance of probabilities the damage would not have occurred ‘but for’ the defendant’s negligent behaviour.
Barnett v Chealsea Kensington Hospital Management Committee
* Deceased came to the defendant hospital complaining of stomach pain and was negligently examined and given no treatment.
* He died later that night of arsenic poisoning, but he would have died even if he was properly examined.
* Doctor’s negligence was not the cause of his death.
Causation
What is the material contribution test?
