Negligence, Psychiatric Loss, Economical Loss & Occupiers Liability
In this leaflet I will describe the law of negligence and occupier’s liability, economic loss and psychiatric loss. Negligence is when somebody has a duty of care and that duty is breached. Negligence is split into 3 parts. Duty of Care In certain situations, a duty of care is owed to another person. For example, a surgeon owes a duty of care to whoever they operate on.
The existence of a duty of care is established by the Neighbour Test which was brought in by Lord Aitken after the Donoghue v Stevenson case; In the Donoghue v Stevenson case, Ms Donoghue was bought a ginger beer by a friend, and drank it, unknown to her, there was a snail in that ginger beer. She wanted to claim for damages but she did not buy the ginger beer so she couldn’t. instead, she sued the manufacturer, rightfully claiming they owed her a duty of care. This is how the neighbor test was born. The neighbor test states; The rule that you are to love your neighbour becomes m 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. * Lord Aitken, 1932 (Donoghue vs. Stevenson) Reasonable foreseeability is when it is reasonable to assume that there will be injury/harm in a certain situation. This is best explained using Jolley vs. Sutton London Borough Council. In this case, a 14 year old boy was playing on a boat which had not been moved by the Council, the boat fell on the boy and he was paralyzed. It is obvious that the Council knew that by leaving a boat there and not moving on it, children would come and play on/near it, and it would be reasonably foreseeable that there would be injury/harm or even a fatality.
Not Reasonably Foreseeable is when the likelihood of injury/harm or damage is low and cannot be foreseen. An example of this is in Bourhill vs. Young 1943, this case is when a motorcyclist (Young) was going too fast and crashed into a car and consequently died. A pregnant woman (Bourhill) was around 50 yards away when the crash happened and she heard it, she came over to see what had happened and saw the blood running down the road and suffered from shock, causing her baby to be stillborn.
Although the actions of Young consequently resulted in the stillborn, the Court decided that he didn’t owe her a duty of care as it was not reasonably foreseeable that a pregnant woman would be affected by negligent driving, but the motorcyclist did owe the car driver a duty of care (along with other road users). Breach of Duty A breach of duty is when you do not uphold your duty of care that you owe towards somebody and because of that an incident happens causing harm, loss or even death is some cases.
A breach is established by the Reasonable Man test, which is a test which identifies whether you have taken actions which a reasonable man would not. Other things are taken into account such as the likelihood of injury, when the likely hood of injury is high then more caution is needed, this is best represented in Bolton vs Stone 1951 where a cricketer hit a ball 100 yards over a 17 foot high fence and hit the claimant who was standing in the road. A ball had only ever been struck outside the ground 6 times over a 30 year history of the club and nets had been put up around the ground.
The House of Lords held the facts and decided that there was no substantial risk of injury. Risks of serious injury is another thing which should be taken into account, where there is a substantially higher risk of serious injury, more caution is required, for example, in a working environment, employers should take more care towards employees who are; inexperienced, young, or disabled. This has been seen in Paris vs Stepney BC 1951 where a man who only had one eye lost his only remaining eye due to negligence of his employer. Social value of the defendants action is took into consideration in certain cases.
If the purpose of the actions took by the defendant is of value to society, abnormal risk is justified. In Watt vs Hertfordshire 1954, a victim was trapped under a vehicle at the scene of a road accident, A heavy duty jack was needed to lift the vehicle but the vehicle used to transport it was unavailable. Whilst holding the jack on place on a vehicle unsuitable for the transportation, a fireman injured his back. The fireman sued his employers for negligence but failed in his actions because the social values of the defendants’ action were valuable as lives were at risk. Last of all, Cost of avoiding harm needs to be taken into account.
The argument that a danger was too costly to eliminate is not a legitimate argument. However courts do recognise a balance between the risk and the cost of eliminating it. If the risk is remote and the precautions needed to be taken are very expensive, the defendants lack of action by not doing anything may be justified. The greater the risk is and the more likely it is, the consideration is given towards the cost of the eliminating measures which the defendants may have taken to safeguard. The decision in these circumstances relies on whether the courts decide that the defendants had acted reasonable in the given circumstances.
This is displayed in Latimer v AEC 1953, where a factory was flooded and the floor became extremely slippery, the defendants mopped out the excess and put sawdust down. They did not quite have enough sawdust to cover the whole floor and the claimant slipped on an uncovered pat and broke his leg. The claimant argued that the factory should have been closed. Despite this, the court decided that the defendants had done everything they could have done that was reasonable in the circumstances, therefore the claimant failed in his actions. Damage/Causation
If it is found that a defendant owes a duty of care, and that duty of care they owe has been breached, they still need prove that the breach caused the damage/injury/loss. There must be a link between the breach of duty and the loss occurred. This is the rule of causation, which is split into 2 sections, causations in fact, and causation in law. To decide whether the defendants’ negligence caused the claimant’s loss/injury in fact, the test is normally the ‘but for’ test, for example “but for the existence of the defendants action, would the claimant have suffered a loss?
If the answer is yes then the defendants’ actions is an actual cause of the loss/injury. This is demonstrated best in the case of Barnett v Chelsea & Kensington Hospital 1969. One morning, three night watchmen called into a hospital on their way home from work. They told the nurse that they had been vomiting violently after drinking tea. She contacted the duty doctor, and he told them to go see their own doctors. A few hours later on, one of the 3 men died. It was discovered that the tea had been spiked with arsenic and had caused the three men to vomit.
The main point is that the death would have still occurred even if the doctor had admitted him into the hospital. So the doctors actions was not the cause of death as nothing could have been done to save the man as the arsenic had already been ingested. it cannot be said that ‘but for the doctor’s action the man would have died. ’ In cases where there are multiple causes which have contributed to the loss, applying the ‘but for’ test is very difficult to prove. For example, in McGhee vs National Coal Board 1973, the claimant worked in brick kilns, in hot and filthy conditions.
Because there were no washing facilities available, he had to cycle home in dirty clothes. When he contracted dermatitis, he sued his employers. The medical evidence could not prove that washing facilities would prevent his catching dermatitis. The House of Lords held that he was entitled to recover damages on the grounds that his employers had significantly increased the risk of the claimant contracting the disease. Once it is established that the defendant is liable in fact; it should then be decided whether it is recognised in law.
This will be decided on one of the following elements: Remoteness of damage, the defendants act may have caused damage, but he will not be found liable if the damage caused is too remote. Therefore, if the damage caused is not of the; kind, type or class foreseeable, then the defendant will not be liable for damage. This is seen in ‘The Wagonmound 1961’. In this case, the defendants negligently allowed oil to spill from their ship into the Sydney harbour. The defendants did not realise that oil can burn on water. 00 yards away, the claimants were doing some welding repair on their wharf, they asked whether it would be safe to continue with their work and they was given the go ahead. Two days later, some molten metal fell into the oil and it set alight, destroying the claimants wharf. It was held at the fact that the defendants were not liable for the damage as a reasonable man could not have reasonably foreseen that the wharf would be damaged by the negligent act. Occupiers Liability Act 1957 is an act which states the duty of care which is owed by an occupier. Section 2 (1) of the act reads; “The common duty of care is defined in . 2(2) as: “a duty to take such care as in all 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 to be there”. This means that an occupier must take reasonable steps to ensure the safety of everyone who is using their premises for the purpose they have been invited or permitted to be there. Section 2 (3) (a) makes specific provisions for children, stating that a high degree of care must be displayed when child visitors are on the premises. An example of this is Glasgow Corp vs Taylor 1992.
In this case a child died after eating some poisonous berries from a bush in a public park. The defendant was aware that the berries were poisonous but did not put up a fence or anything to stop the berrier from being picked. Section 2 (3 (b) makes specific provisions for professionals. This section allows occupiers to show a lower degree of care towards professionals who are on the premises regarding to risk/hazards related to their profession. In Roles v Nathan 1963, 2 chimney sweeps were killed by carbon monoxide poisoning when sealing up a flue in a persons chimney. D was not liable as the risk was related/connected with their profession.
If the risk was not related to their profession, for example if they fell through a rotting floorboard (Woolin vs British Celanese Ltd 1966), the outcome would have been very different. The act protects lawful visitors, which include: invitees, licensees, contractual visitors and statutory visitors. An occupier is anyone who is control of the premises. There is no requirement for the occupier to have any legal/equitable interest in the premises. Premises do not just include, land and buildings, but also includes any fixed or moveable structure, heavy vehicle, vessel or aircraft.
Psychiatric loss ‘Nervous shock’ is a term used by lawyers to signify a medically recognised psychiatric illness/disorder. ‘Psychiatric damage’ covers all appropriate types of mental illness, neurosis and personality change. It is distinguished from emotional grief/distress which individuals may suffer when someone is injured/killed, although separating the two is quite difficult. Claims for emotional distress/grief are invalid unless it leads to a positive psychiatric illness such as anxiety neurosis, reactive depression or a physical illness such as a heart attack.
Three categories of Claimants (C) were established in White v Chief Constable of South Yorkshire 1999; * (a) C who suffers psychiatric illness as a result of having been physically injured by the D’s (defendants) negligence; * (b) C who are put in physical danger, but who in fact suffer only psychiatric illness – known as primary victims. * (c) C who suffer psychiatric illness as a result of witnessing death or injury of immediate victim with whom they have a close relationship of love and affection- known as secondary victims. Economic loss
Economic loss is financial loss to an individual which has resulted from death, injury, disability, damage to property or destruction caused by a third party. An economic loss represents money lost in wages or profits lost in regards to business. The old law for economic loss stated that there must be a CONTRACTUAL relationship between two parties for one to be held liable, the new law was amended to ensure that they just need a relationship somewhere down the lines for them to be held liable. If an individual relies on someones skill in doing something, then they are liable for economic loss if they do not uphold their duty of care.
In Chaudhry v Prabhakar , C asked the D, a friend, to find them a car, they brought back a car which was apparently roadworthy and had not been in any accidents, the car was later found to be unroadworty and had been in an accident. This is known as assumption of care, where a duty/responsibility is assumed between two individuals/organisations. In this task I have discovered the main aspects of negligence and what they entail, examples of what I have discovered include the reasonable man test, the neighbour test rule, assumption of responsibility, and finally the three categories of psychiatric loss.