Describe the elements of the Tort of Negligence and critically analyse their practical applications.
This assignment requires us to critically discuss the elements of the tort of negligence and to critically analyse their practical application. In order to establish negligence it is necessary for the claimant to demonstrate that a duty of care was owed to him, that there was a failure to provide that duty of care and as a result of that failure he suffered a loss. Tort law and particularly negligence law is primarily concerned with accidents which can arise in numerous ways. This assignment will consider each element of the tort of negligence in detail and discuss how these elements work in reality.
Negligence is a specific tort and in any given circumstances amounts to the failure to exercise a duty of care in specific situations where the circumstances demand that a duty of care is owed; This principle was first established in the case of Donoghue v Stevenson  AC 562, HL where Lord Aitken said that “a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer”. The question of whether a duty of care exists in a given situation will be a question of law upon which the courts will make the final decision and in Donoghue v Stevenson Lord Macmillan stated that “the categories of negligence are never closed”. (Deakin et al: 2003) There are specific known situations that will give rise to a duty such as road users owing other road users a duty of care, employers owing their employees a duty of care, professionals owing a duty of care to their clients and occupiers owing a duty of care to visitors to their premises
Where a duty of care exists a Defendant will be negligent in circumstances were his exercise of the duty of care fall below the standards of an ordinary reasonable person in his situation. The reasonable man is sometimes described as the ordinary man, the average man or the man on the Clapham omnibus; Hall v Brooklands Auto Racing Club  1 KB 205. The court will decide on whether an individual’s conduct has fallen below the duty of care and this standard will be objective and will not take into account the characteristics and weaknesses of the Defendant in the instant case. The courts will consider, when assessing the standard of reasonable man what the Defendant knew at that time. The standard of care that is required of professionals such as solicitors, doctors and accountants is judged by the standard of the ordinary skilled man exercising and professing to have that special skill, this is what has come to be known as the “bolam test” as this was decided in the case of Bolam v Friern Hospital  2 ALL ER 118.
In situations where a duty of care exists, reasonable care as described above must only be taken to avoid acts or omissions that can be reasonably foreseen to be likely to cause physical injury to persons or property; Page v Smith  AC 155. This concept is known as foreseeability. A factual duty of care is owed only to those persons who are in the area of objectively foreseeable danger Cornman v Eastern Counties Rly Co (1859) 4 H & N 781. This means that the fact that the act of the defendant violated his duty of care to a third person is not sufficient to establish that a duty of care was owed, the Claimant must demonstrate that he was within the realms of foreseeable danger.
The claimant must also prove that the defendant’s negligence was a cause of his injuries. This concept is known as causation. This is perhaps one of the most difficult and controversial elements of negligence liability. The purpose of causation is to determine the damage that has been caused by the claimant as the Defendant should only be responsible for that damage that is caused by him. This means that the Claimant must demonstrate that the breach of duty by the Defendant, which was reasonably foreseeable, caused the injury from which the Claimant has suffered. It is not always necessary to show that the breach of duty was the only cause but the Claimant must at least demonstrate that the breach of duty was a dominant cause or materially contributed to the injury or loss that has been suffered. It is sufficient for the Claimant to show that the Defendant’s breach of duty made the risk of injury more probable; McGhee v National Coal Board  3 ALL ER 1008
There are essentially two elements of causation, factual and legal causation. The ‘but for’ test is the test used to establish factual causation. This requires the Claimant to prove the harm would not have occurred “but for” the negligence of the Defendant. This test involves asking the simple question: ‘would the claimant have incurred the damage “but for” the defendant’s tort?’ A negative answer to this question means that it is likely that the defendant’s wrong factually caused the claimant’s damage. If the damage would have been sustained anyway, irrespective of the defendant’s wrong, there will be no liability; Barnett v Chelsea & Kensington Hospital  1 ALL ER 1068. It is for the Claimant to prove that on the balance of probabilities the breach of duty by the Defendant caused the harm which the Claimant has suffered. Sometimes causation can be measured on a loss of chance basis such as in situations where a doctors failure to carry out a certain procedure decreases the patients chances of survival.
The final element of negligence liability is damage. In order to succeed in action for negligence the Claimant must demonstrate that he has suffered some measurable loss which, as discussed above, has been caused by the Defendant’s negligence. The types of damage for which the Claimant can recover compensation for are physical harm, damage to property, psychiatric injury and illness and to some degree other types of economic loss. The first categories are generally non-controversial. Donoghue v Stevenson recognises a general duty of care to protect the personal safety and health and tangible property of the Claimant and thus it is well established that a Claimant can recover for physical harm or harm to his personal property. The third and fourth category has proved to be more controversial. Damage for psychiatric injury was first recognised in the case of Alcock v Chief Constable of South Yorkshire  1 AC 310 when the law made a distinction between what it labels primary and secondary victims. A primary victim is described as someone who suffers psychiatric injury after being directly involved in an accident and is either physically injured or fears that he may suffer a physical injury. Secondary victims (and those who are most unlikely to recover damages) are those who suffer from psychiatric injury as a consequence of witnessing or being informed of an accident. This second category of victim contains a number of caveats to recovery and it is often the case that Claimant’s are unable to recover under this category. (Deakin et al: 2003). The final category, pure economic loss is equally controversial and again has been the subject of lengthy case law beginning with the case of Caparo Industries Plc v Dickman  AC 465. The general view is that pure economic loss is not recoverable however this is again subject to a number of caveats.
As has been demonstrated the law of tort is incredibly dynamic and can apply to an infinite number of situations and as we have seen it is not a closed category and can be extended by the courts. It is therefore important for an employer to ensure that they are adequately protected against such claims. The tort of negligence imposes liability on individuals without their consent and businesses and individuals should ensure that they are aware of those responsibilities that the law imposes on them.
Books and Journals
Deakin S, Johnstone A & Markesinis B, (2003) “Markesinis and Deakins Tort law”, Fifth Edition, Oxford University Press, Oxford
Winfield P, (1931) “The Provision of the Law of Tort”
Alcock v Chief Constable of South Yorkshire  1 AC 310
Barnett v Chelsea & Kensington Hospital  1 ALL ER 1068
Bolam v Friern Hospital  2 ALL ER 118
Caparo Industries Plc v Dickman  AC 465
Cornman v Eastern Counties Rly Co (1859) 4 H & N 781
Donoghue v Stevenson  AC 562, HL
Hall v Brooklands Auto Racing Club  1 KB 205
McGhee v National Coal Board  3 ALL ER 1008
Page v Smith  AC 155