Tort Law P1

Mrs Donoghue went to a cafe with her friend. Her friend brought her a bottle of ginger beer and some ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen through the bottle. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank 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. Her claim was a success and the case helped establish the modern law of negligence and established the neighbour test.

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.
This meant that if you could reasonably foresee that your actions could likely injure your neighbour then you are the one who should be blamed for the actions and results of your acts.
The test for establishing a duty of care has two requirements which are:
-Reasonable foresight of harm
-A relationship of proximity

Before Donoghue V Stevenson a claimant would have to establish an existing duty relationship in order to get a successful case. The neighbour test was way more broad and allowed for liability in a bunch of different situations. This meant that a person must take reasonable care to avoid an act or an omission which could be reasonably foreseen to likely injure a neighbour. An example of this is a driver owes a duty of care to everyone else on the road including other vehicles, bikers or pedestrians. The driver must take reasonable care to avoid an act or omission which could be reasonably foreseen to likely injure a neighbour. A case of this is in the Topp V London Country bus.
In this case The defendant bus company left a minibus in a lay-by overnight. It was unlocked and the keys left in the ignition. The driver who was expected to pick the bus did not turn up for his shift. Thieves stole the bus and drove it away. Unfortunately the bus knocked a woman off her bicycle and killed her. Her husband brought an action for damages. The case was unsuccessful as it was not reasonably foreseeable that the bus would be stolen by thieves and knock and kill a biker.

Caparo Industries purchased shares in Fidelity Plc in reliance of the accounts which stated that the company had made a pre-tax profit of £1.3M. In fact Fidelity had lost over £400,000. Caparo brought an action against the auditors claiming they were negligent in validating the accounts.

The caparo test must establish:
1. That harm was reasonably foreseeable
2. That there was a relationship of proximity
3. That it is fair, just and reasonable to impose a duty of care

both two stages are taken directly from the original neighbour test. The caparo test contains the elements as the anns test. Liability would arise once the claimant has established reasonable foreseeability. Defendendants would have to demonstrate factors for negating liability.

The first requirement of the caparo test is that there must be reasonable foreseeability of harm must be known by a party who would be owed a duty of care.
The second stage is based on whether there is a relationship of proximity between the defendant and the claimant.The third stage of Caparo involves establishing whether it would be fair, just and reasonable to find that a defendant did in fact owe a duty of care to the claimant the case of Hill arises only in relation to the protection of the public from harm through the performance by the police of their function of the investigation of crime.

The Reasonable man test is for a party to seek evidence from actual people in order to establish how the reasonable man would have acted or what he would have foreseen in the person's circumstance.
In the case of Blyth v Birmingham the defendant had installed water mains along the street with hydrants that were located at various points. One of the hydrants across from Plaintiff’s house developed a leak as a result of exceedingly cold temperatures and caused water damage to the house. The defendant sued for negligence.

In the case of Paris v Stepney  the defendant only had sight in one eye due to an injury that he had suffered in the war. At work a splinter of metal went into his sighted eye causing him to become completely blind.

In the case of Bolton v Stone the claimant was injured after a ball from a neighbouring cricket pitch flew into her home. The cricket field was arranged so it absolutely was protected by a 17-foot gap between the bottom ground and the top of a fence. Balls had been known to fly over the fence and land in near peoples houses, but this was rare, making the strike which hit the claimant exceptional. The claimant sued the cricket club within the tort of negligence for her injuries. The House of Lords held that the cricket club was not in breach of their duty. This was because it was not reasonably foreseeable that the ball would be hit over the fence and cause harm.
The defendant Mr Latimer, worked in a factory owned by the defendants. The factory had become flooded due to poor weather conditions, which caused the floor to become very slippery. In response, the defendants mopped up, put out warning signs for a slippery floor and placed sawdust on the floor to make the area as safe as possible for the workers. The defendant was working the night shift after the flooding and when he was moving a heavy barrel, the slipperiness of the floor caused him to fall. He fell on his back and the barrel proceeded to injure his ankle. This case caused the House of Lords
to consider the costs of taking precautions when they decide what the reasonable person would have done. If the cost of the precaution is higher then the risk to others must be higher for the reasonable person for them to have to take these precautions
Causation is that the claimant must establish that the loss they have suffered was caused by the defendant. Causation considers if the defendant did not do something then would the claimant of suffered the loss, If the answer is no then the defendant would not be liable however if the answer was yes then they would be liable.Factual causation requires evidence that the defendant’s action was a necessary part of the consequence this is established by proving that the consequence would not have occurred if not for the defendant’s action. To establish causation you must use the ‘But For’ test which is a test that has certain requirements.The “but for” test determines whether the harm suffered by a claimant was caused by the breach of the defendant’s duty, on the basis the claimant would not have suffered harm ‘but for’ the defendant’s breach. The ‘but for’ test  was demonstrated in Barnett V Chelsea. Mr Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him.The hospital was not liable as the doctor's failure to examine the patient did not cause his death.

Breaking the chain or novus actus interveniens is that causal connections are deemed to finish. Even if the defendant can be shown to have acted negligently. Harm is only legally caused by a defendant where there is close proximity to the causal link between the defendant conduct and the claimants injury.there cannot be an intervening act breaking the chain of causation.
 Medical negligence is when medical intervention in the treatment of a patient has definitely contributed to a damage of a patient's condition. Medical Intervention uses the bolam test which provides a defence for medical professionals when they have reacted in a proper manner for a medical professional.
Remoteness of damage is the word used to suggest that, although a person's carelessness was a cause of the claimant harm. If harm was caused through carelessness the careless person is liable. This is shown in the case of The Wagon Mound no 1.,Where The defendant's vessel, The Wagon Mound, leaked oil in Sydney Harbour. Some cotton debris became mixed in the oil and sparks from some welding works lit the oil on fire. The fire spread quickly causing the destruction of some boats and the wharf.
Extent of damage is when the damage caused is large enough to be able to say that the defendant caused the damage. This is present in the case Hughes V Lord Advocate, where Two young boys went exploring an unattended manhole. The manhole had been left by workers while they took a break. It was surrounded by a tent and some paraffin lamps were left to warn any road users of the potential danger. The boys took a lamp down the hole. One of them dropped the lamp and an explosion occurred resulting in extensive burns to the children. The damage was foreseeable as it was foreseeable that the boys could suffer a burn from the lamp.

The thought process behind the thin skull rule is that compensating an injured person for any harm the defendant actually caused him or her is the only fair thing to do. This is represented in the case Smith v Leech Brain. In this case a wife brought a claim against the defendant under the Fatal Accidents Act for the death of her husband. The defendant employed the husband for his business. 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. The burn was foreseeable due to the defendant's negligence and it was due to the defendants negligence that the Man would die.

M1)

Scenario 2

In this scenario Una is Tom’s employed nanny. Tom is a three year old child actor and was playing on the edge of a harbour during a break, meanwhile Una was reading phone messages and was not paying attention to what Tom was doing. Tom fell in the harbour and was seriously injured. Tom was replaced in the drama series and as a result lost fees of over £70,000 and £30,000 for being unavailable to perform in the show.
To decide whether or not Una has breached her duty of care or not you must consider what the reasonable person would have done if they were in Una’s position. In my opinion it is reasonably foreseeable that if Tom who was only aged three might possibly slip down the harbour if he was left alone. As he was only three years old he likely doesn't know the danger of playing near the edge of a harbour and it is Una’s job as Tom’s nanny to make sure he stays safe and does not do anything that is dangerous. There are alot of risks when he was on the harbour so her standards for keeping him safe were potentially even higher than normally. Una did not take any reasonable precautions as she was on her phone rather than watching out for what Tom was doing, the reasonable precautions would have been for her to at least check on what he was doing every minute or so rather that being completely negligent to where he was and what he was doing. I believe that due to the fact Una was completely unaware of what Tom was doing and was on her phone whilst he was playing in a dangerous area that she did owe a duty of care to Tom. This is mainly because of the risk of playing on the harbour and that it was reasonably foreseeable that he might trip and injure himself if he was playing in the harbour. Una did not carry out her duty of care as she was negligent of what Tom was doing and she was concentrating on her phone which is an unrelated activity and the reasonable person would not have done this in her position.
If you use the ‘but for’ test then you can decide if Una did was paying attention would Tom have suffered the injuries and as a result lose fees of over £70,000 and £30,000 for being unavailable to perform any further in the show. In my opinion the answer is no because if she had not been negligent to where and what Tom was doing then she could have either warned the three year old or even stopped him from playing on the dangerous harbour. The reasonable person could foresee the loss of fees for the actor but it is harsh to say that Una owes Tom for the future advertising fees that he lost. Therefore she may only owe him for the loss of his role in the series and perhaps she won't have to pay for both fees that Tom lost due to his injuries. In conclusion I think that Una does owe some fees for Toms loss however it would be unfair to say that she owes both £70,000 and the extra £30,000. Therefore I think Una would have to pay Tom at least £30,00 as a make good for her negligence of duty of care and for further losses she caused for the young boy.

Scenario 2

In this case Susan who is 16 years old just began a care course in college and was on her very first work experience placement and she was looking after a young 2 year old Tim who demanded to do some painting and, in order to keep him quiet, Susan agreed.
Susan gave Tim a few old pots of paint in the shed and some cotton wool to spread the paint on paper. Some of the pots had a small label marked ‘Danger ,Toxic’, which Susan did not notice or read. Tim suffered poisoning as a result of handling the paint, but luckily recovered after a little time in hospital. A solicitor estimated that the damages Tim sustained could be up to £3000 in a very simple personal injuries claim. To establish if Susan owes Tim a duty of care you must consider if it was foreseeable that someone in Tim’s position would have suffered an injury as a result of the use of toxic materials. I believe that most two year olds would have suffered the injury as they don't think about the paint being toxic at all. It was Susan's responsibility to check if the paint was usable and she did not do this at all. Also it was likely for the paint to be spilled over his hands as he is very young and paint is generally quite messy. Susan also only gave him cotton wool to spread the paint so it was very likely that he would get it on his hands. An previous case where this was considered was in Kent v Griffiths where The claimant was having an asthma attack. Her doctor attended her home and called for an ambulance at 16.25. The ambulance, which was only 6 miles away, did not arrive until 17.05. The claimant suffered respiratory arrest. Two individual phone calls were mad to check why the ambulance had not arrived yet and the operator claimed it was on its way.The doctor gave evidence that had she known of the delay she would have advised the Claimant's husband to drive her to the hospital. It was deemed that The fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance. To tell if Susan owed Tim a duty of care you must also make sure they are proximate in time and space. This can be shown in the case Bourhill v Young where The claimant was a pregnant fishwife. And as she reached to get her basket off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant heard the collusion but did not see it. A short time later, the claimant walked past where the incident occurred. The body had been removed but there was a lot of blood on the road. The claimant went into shock and her baby was still born. She brought a negligence claim against the defendant's estate. It was held that no duty of care was owed by the defendant to the claimant as there was not sufficient proximity between them. In my opinion there is sufficient proximity between Susan and Tim. You must also check for liability as shown in  the case of Hill v Chief Constable of West Yorkshire, in this case the mother of the final victim of Peter Sutcliffe (the Yorkshire Ripper) made a claim against the chief constable on the grounds that the police had been negligent in their detection and arrest of the yorkshire ripper. It was held that No duty of care was owed. In my opinion Susan does owe Tim a duty of care because it was her work experience to look after him and she did not do so correctly.
To tell if Susan breached her duty of care you must consider some factors affecting her standard of care. The reasonable person in Susan’s place would have checked the labels on the paint, you have to factor in that the paint was old so it is likely to have some form of danger. Also it is important to consider that Susan is only 16 years old and might not be considered a reasonable man. A case where something similar happened is Mullins v Richards in this case Two 15 year old  girls were fighting with plastic rulers in school. A ruler snapped and a small splinter went into one of the girls eyes causing blindness. The girl brought an action against the other girl for her negligent action. It was held that the girl was expected to meet the standard of a reasonable 15 year old girl rather than a reasonable man and she was found not to be in breach of duty. Something similar could be deemed in Susans case as she is only 16 and on a work experience day. So you have to consider what the reasonable 16 year old babysitter would have done with a lack of experience. However you must also consider the size of the risk as two year olds are much more vulnerable so the standards of care must be higher. Another important thing to factor in is the practicality of precautions, for example it is very easy to check the label to see if the paint is toxic and or suitable for children's use , therefore the standard of care would not be reduced. The final thing that should be put into consideration is the benefit of taking the risk, in this case there is no real reason for taking the risk as it takes seconds to make sure that the paint is safe and stopping Tim from being injured in the process. In my opinion Susan did breach her duty of care and I believe that because of most of the factors being in favor of her breaching her duty of care.








Footnote:
[1932] AC 56217
[1993] 1 WLR 976[1953] AC 643
[1951] AC 850
[1971] EWCA Crim 4
[1961] AC 388
2 WLR 1158
[1998] 1 WLR 1304