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The tort of negligence

The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk. In many cases there will be a contractual relationship (express or implied) between the parties involved, such as that of doctor and patient, employer and employee, bank and customer, and until relatively recently it was necessary for such a contractual relationship to exist in order for a claim for negligence to succeed.

But the civil law relating to negligence has evolved and grown to deal with situations that arise between two or more parties even where no contract, written or implied, exists between them

It follows that from a practical and financial point of view every enterprise needs to ensure that management planning continually takes full account of the responsibilities imposed and the potential liabilities that may be incurred under what is a continually evolving part of the law.

The case often quoted as the foundation for the current law is that of Donoghue v Stevenson (1932) AC 562. It was held that, despite no contract, express or implied, an action for negligence could succeed. The claimant successfully argued that she was entitled to a duty of care even though the deficient goods (a bottle of ginger beer with a snail in it) were bought, not by herself, but by a friend, so that no contract existed between the manufacturer and the person suffering the damage

From this case has evolved the principle that we each have a duty of care to our neighbour, or someone we could reasonably expect to be affected by our acts or omissions. This Duty of Care is the first element which must be established if a claim is to succeed. It will be appreciated that such a duty of care could be held to apply very widely and so case law has made it more difficult to establish that such a duty exists.

In Anns v Merton London Borough Council (1978) AC 728 a two stage test was used to establish if there was a sufficient relationship of proximity based upon foreseeability and, if there was, were there reasons why there should not be a duty of care. Later, in Caparo Industries plc v Dickman (1990), 2 AC 605, a three fold test was used to determine if a duty of care existed.

The test required that

  1. Harm must be a reasonably foreseeable result of the defendant’s conduct
  2. A relationship of proximity must exist
  3. It must be fair just and reasonable to impose liability

The second element required is to establish that there has actually been a breach of the duty of care. In any action, the court will consider the standard of care that a reasonable person would have taken. If the defendant failed to meet that standard the court will then consider if, in the actual circumstances of the case, the standard needs to be adjusted for any reason

Reasons for adjustment include:-

Professional standards which a reasonable professional may be expected to follow, in which case those standards may be used

Common practice or industry guidelines, in which case those standards may be used unless it is considered that the common practice itself is considered negligent

If it was reasonable to expect more than usual care because of a disability or frailty of the plaintiff compared to a fit or healthy person

If there was a high degree of risk in the defendant’s action then the court would expect that extra precautions were taken

If, for practical reasons, reasonable precautions could not be taken, or they would have been too expensive, the court may decide the defendant had still met the duty of care

If there was a social benefit to the defendant’s action the court may decide they had not breached their duty of care

Element three that must be established is to show that the plaintiff has suffered loss or damage as a direct consequence of the defendant’s breach of his duty of care. In essence, all he has to prove is that if it had not been for the actions of the defendant, he would not have suffered loss or damage

However, in many cases it will be found that more than one cause is involved in the events leading up to the loss or damage. Was the chain of events between the defendant’s negligence and the plaintiff’s loss too long and involved to enable one to decide that the defendant’s action was the most probable cause? Equally, was it reasonable for the defendant to have foreseen that their actions would cause damage or loss?

Here’s a true case that demonstrates how difficult it can be to decide who is really responsible for the chain of events that has caused loss to more than one person. I can’t offer an answer because this has just happened. But I suggest it may well end up in court sometime soon

A manufacturer makes a mega bit of machinery that needs transporting to the site where the purchaser will use it. He signs a contract with a transporter who undertakes to move the machinery by road. That company needs to ask local councils to designate an approved route that will accommodate the load and ask local police to supervise movement of the load because it is over normal size and weight limits

The transporter arrives at the factory, loads the equipment and, when the police escort arrives, sets off along the route. Half way to the destination, the vehicle passes under a footbridge which, unfortunately, is not high enough and the inevitable happens. Oops!

The council said “The route chosen was the responsibility of the haulier, but the council would “check and advise” it (The haulier said he followed the normal requirement of the council to suggest a suitable route for the load)

The police said it was their responsibility to “watch roads, rather than loads”

A spokesman for the police authority said it was the haulier, contractor and council’s responsibility to check the route and whether it was suitable for the load. He added that it was the police’s responsibility to check the roads were safe for other motorists

The road will be closed for several days while the footbridge is removed

Who is the blame guy here? No one knows, because this incident happened on Tuesday 16th March 2010

How many claims will be “proximate”? That is for the courts to decide, but it shows how essential it is for the haulage firm and the manufacturer to be aware of the importance of providing accurate information to the council and the police about the overall dimensions of the load. What about folk distressed by seeing the incident, delayed from catching flights, picking up children, going for an operation, arriving to wed the bride? Do they have a claim? What about the council? Can it claim against itself for the cost of the demolition of the bridge and it’s replacement?

(BBC News Tyne Wed 17/3/2010 “Police-escorted lorry hits bridge)

Cases from occurrences such as this arrive in court every day, and show how important it is to ensure that management is up to speed to ensure all possible precautions are taken to avoid negligence claims, and that proper insurance is in force to protect the enterprise against a claim that could, in effect, ensure its demise

It is also necessary to ensure that contracts entered into with suppliers contain proper warranties to protect against claims about defective goods that the enterprise has purchased. For example, the standard invoice provided to purchasers by a food supplier will contain clauses warranting that the product meets all food and hygiene standards at the time of sale. Similar warranties occur throughout industry so that, where a deficiency or malfunction occurs, it can be passed back to the author of the problem. Enterprises purchasing without such warranties lay themselves open to picking up the failings of their suppliers

There are two defences a defendant can use if they are found liable

The first is that the claimant accepted there was a risk of injury or loss, in which case the defendant will not be liable. Medical practitioners and hospitals, for example, often use the “consent form” that patients are required to sign before a procedure or operation. Other industries use contracts describing that the procedure is not guaranteed to produce the required result, but is the best that can be offered. If a purchaser signs such a document he is unlikely to succeed in a claim

The second defence is contributory negligence. If the claimant can be shown to have been aware of the risk but declined to take appropriate precautions, then any award may be reduced. For example, a passenger in a car stolen by a “joyrider”, while succeeding in a claim against the driver, may have his award reduced by a percentage, if he was not wearing a seatbelt

The practical application of negligence law in a business is proper and careful management attention to actions that may cause damage to third parties and, secondly, proper and full insurance against a failing that may result in a claim

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