hi over the next six weeks we're going to be looking at the law of torts and this really is about obligations outside any contractual obligations that we freely enter into so what we're going to cover today i say today over the next two lectures uh so part one and part two is negligence we're looking at the duty of care and breach of that duty of care and in part two we're going to be looking at causation and damages so this is all a duty of care that is owed outside contract law so here is a definition of a tort and so it's a breach of a legal duty owed independent of contract by one person to another for which a common law action for unliquidated damages may be brought so english taught law concerns what we call civil wrongs as distinguished from criminal wrongs and disassociated from any contractual or consensual relationship between the parties in question so criminal wrongs crimes uh in other words crimes they're dealt with by the police and the criminal justice systems but taught is not enforced by the police but those who are on the receiving end end of a tort can bring a civil action against the tort visa in court so the definition of negligence is that it's a breach of a legal duty to take care which results in damage to the claimant or their property so the aim of taught law is really it's about compensation so it's compensating you for your loss that has been caused by um the carelessness or a lack of duty care by a third party um it's a deterrent as well if you can you know think about a doctor for example we don't have contracts with doctors um but actually a lot of negligence you know the laws surrounding negligence is that they've come from claims made in relation to doctors or hospital treatments so it's about a deterrence really to make sure that professionals act with a duty of care to other persons it's also about apportioning blame which we will see later on and of course that distribution of losses and occasionally punishment to some degree but this is not america so we don't have punitive damages in in quite the same way so to bring a claim in negligence the claimant has to establish each of these four points so firstly the duty of care is owed outside contract secondly um that there was a breach of that duty of care thirdly that the breach caused the loss and then lastly that the damage is not too remote and obviously if there's no damage then there is no claim so all of the above must actually be present so let's have a look at establishing a duty of care so there are some what we call established duty of care situations and these are all really based on the neighbor principle as you will see when we uh have a look at the next or our very first case but just to really look at these established duty of cares the obvious one is from one road user to another so if you drive a car you'll be well aware that you owe a duty of care to other road users pedestrians cyclists motorcyclists lorry drivers other car drivers and so on and that duty is to take care to avoid any of your actions causing somebody injury of course you know if something does happen they don't have a contract with you but they are able to claim through the law of tort there's also an established use of care between an employer and his or her employees and based on the decision donahue and stevenson there is now a manufacturer's duty of care to consumers and then of course we have doctor and patients listed client and so on now anything outside these established duty cares um these these categories that are already defined it's decided on individual circumstances and we're now going to look at how the courts do that so the very first case to establish um liability to a third party was actually donohue and stevenson's and really prior to this case to the 1930s the courts did not recognize a general duty of care um in relation to you know if somebody's careless behavior basically causes uh injury so this was such a significant decision so basically um the claimant went to a cafe with her friend and her friend bought the round of drinks and the climate drank part of her drink and then she poured some more into the glass and discovered the decomposed remains of what looked like a snail so she was seriously ill as a result with what we believe was gastroenteritis but as you can see from this diagram here she was the consumer and she'd been given that drink as a gift by the purchaser so there was no contractual relationship between her and the retailer or her and the manufacturer or even her and her friend so she could not sue in contract um and she couldn't sue in negligence because to sue and negligence at that time also required a bottle now the bottle itself was opaque uh and literally she couldn't see inside it the retailer couldn't inspect it the purchaser couldn't inspect it uh because the contents was uh hidden by the opaque glass so this created um a bit of a challenge for the house of lords as you can see it went to the court of the first instance that was appealed court of appeal made a decision that was appealed and finally ended up in the house of lords where it was she won her case by a bare majority a three to two majority so it was very close but this established for the very first time that a duty of care could be owed outside contract so the judge uh lord atkins made what is now quite a famous speech and he said the rule that you are to love your neighbor becomes in law you must not injure your neighbour you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor who then is my neighbor and the answer seems to be persons who are so closely and directly affected by my act that i ought to reasonably have them in contemplation as being so affected when i when i am directing my mind to the acts or omissions which are called into question so this introduced what is now referred to as the neighbor principle and it really did represent a huge change um because for the first time people could claim outside contractual uh you know outside of contract um if a manufacturer had caused them uh injury now once the sort of the gates had opened if you like uh more cases began to go to the court so before the 60s builders could basically do what they liked you know they could build a property uh refurbish with basically impunity so the chances of them being sued was was was quite slim um and here in mcdowell a duty of care was actually extended so that a builder could now be held liable to the third party if they were injured by his negligence and here again you can see through the diagram what happened so there were um the tenant who was the tenant um who was the husband um obviously had a tenancy agreement which is a contract and the landlord realized that there were some issues with the floorboards on the landing and called in a contractor to repair them but the contractor used substandard wood and as a consequence or as a result the tenant's wife uh injured herself her foot went through the floorboards and she was injured but she couldn't claim contractually because she did not have a contract with the landlord her name was not on the tenancy agreement so it was established here that um a builder would actually owe a duty of care to a third party um who he could reasonably sort of see basically they they applied the neighbor principle uh you know and it's pretty obvious that people would be visiting the flats husbands wives and you know tenants partners children and so on and so in this case this due to care was extended and then this is a really significant case but we can look at the details when we look at professional negligence but essentially what happened here was that easy power wanted to hire some um advertising space from hedley bern headley burn had never contracted with them before so they were a bit concerned so headley burn contacted their bank national provincial and asked their bank to obtain a reference from easy powers bank heller partners and that's what easy power did that's what hella partners did rather they supplied a reference which basically suggested or stated that actually their the company was fine um and based on that hedley burn entered into a contract with them um so this at the time there was an exclusion of liability in the letter that heller partners had sent stating that you know the company was fine um to do business with um and because it was before i suppose the unfair contract terms act um then actually that exclusion of liability held so they got out of uh got out of jail free here but what it did do was it established a professional liability to third parties for misstatement and you know absolutely in our kind of profession we are giving advice uh to clients um but also it's often the case that a third party may well be relying on our advice take for example smith and eric bush which we've looked at before where a surveyor has undertaken a mortgage valuation and the buyer is relying on that report to make the purchase decision and yet they don't have a contractual relationship with the surveyor now one of the um one of the important aspects of hedley burn is that we are dealing with a professional situation where a professional was giving advice so to establish a duty of care and a headley burn between a professional and the claimant outside contract um the house of lords applied strict limitations on this uh and to so to create this special relationship um the defendant has to have a special skill so the professional needs a special skill the defendant has to have knowledge of third-party reliance on that advice and it must be reasonable for the claimant to rely on that advice but again we will look in more detail of that uh at this when we start looking at professional negligence so if it's not one of these established or the situation is not a sort of an established duty of care situation doesn't involve builders negligent misstatement or in fact manufacturers then um we can apply the capara dickman three-stage test now this can be applied to any situation and in fact actually usually it's a starting point in claims against surveyors for negligence um so this is based uh really on foreseeability proximity is it fair and reasonable to impose liability and these have all really come from the neighbor principle was the loss or damage or foreseeable consequence of the acts or omissions was the the um the claimant sufficiently proximate and used looking at the neighbor principle that really means that more than just in time and space and a good case to explain that is actually borgil and young where a woman was getting off a tram and she was pregnant at the time and there was an accident that happened literally just in front of the bus but she didn't she didn't witness the accident happening but the shock of it um meant that she had a miscarriage and she tried to sue uh the person who died in the crash she tried to see their estate and was unsuccessful because negligence can't exist in the air you can also compare this really with the hillsborough disaster if you um if you wanted to have a look at that case um so a little bit more in terms of fair reasonable uh and reasonable to impose liability really that's just you know the court's asking the final question would it be fair and reasonable to impose liability in this specific situation now liability uh was also extended to um to cover acts of third parties so in dorset yacht co um this case again it went to the house of lords so passed from the court of the first instance uh through the court of appeal up to the house of lords uh and in this particular case there were a group of young offenders and they were working on brownsie island in paul harbour in dorset under the supervision of three officers three private prison officers and during the night seven of them escaped boarded and started to sail off in a yacht and they collided with the second boat which they then boarded and then did uh severe damage and really the question was did the prison officers owe a duty of care to dorset yacht co were they responsible for the acts of the young offenders and the courts actually did apply again donohue and stevenson and said that really it was they had a duty to ensure that their prisoners the young offenders did not escape from custody and cause damage now what is that duty of care now the duty of care is a duty to avoid acts or omissions so kind of acts or omissions i think we've got a little bit of an idea but you know avoid doing something um or avoid not doing something which could foreseeably cause someone else harm or damage there's no duty to stop someone from harming themselves and also no duty to rescue somebody but you can imagine a situation involving children where uh as their guardian you would have a duty to prevent themselves from injuring you know from from harming themselves also if you were looking after somebody perhaps with a disability again uh somebody elderly so that would make a little bit of a difference really to your to the standard of your duty of care um you know and obviously you know if you're driving you have a duty to apply the brakes and you're about to hit somebody now looking at breach this is a really good flow chart actually which explains um how the court will establish whether there is in fact a breach of that duty of care outside contract so really it's looking at the standard of that care and in general negligence it's based on the standard of the reasonable person but of course there will be special standards of care so for example where that person is skilled or professional um then the the um the type of uh the skill if you like the due to care will be different children sporting events and then other factors which the courts um will look at to determine whether there has actually been a breach and those are you know how great was the harm how likely was it that somebody could come to harm what have you know what about the costs and practicalities of taking precautions um and what would the reasonable person have foreseen and then finally looking at how to prove whether there has actually been a breach of that duty care so we're looking at resif selaquita control cause unknown and so on and so forth so we'll look at uh we'll look at the first part of these so when we look at establishing a breach there is really a basic standard for everybody because remember we're talking about general negligence and this is something that applies to all of us we're not talking about us as professionals but just all us as people so really it's about what would the reasonable person uh do in those circumstances so really a breach of duty will occur when a party is careless in that he or she fails to comply with the standard which is applicable in their situation so birmingham blythe and birmingham waterworks the admission to do something a reasonable man would not have done in that situation or omitting to do something which a reasonable man would have done in that situation so who's the reasonable man or woman well let's have a look at nettleship and western it really is an objective test and really it's i suppose the judge said you know it's the correct question to aunt ask is not what could we expect this particular defendant to have done in the circumstances but rather what would we expect a reasonable person to do so it's objective not subjective so let's have a look at nettleship in western where a family friend took a learner driver for a lesson and then on her third lesson the defendant who was miss watson panicked and although she was driving very slowly she rode at the curb and hit a lamp post and the claimant who was uh nettle ship actually broke uh her knee now weston sought to argue that the standard or her driving uh standard should be judged by reference to the reasonable learner driver on her third lesson now the court of appeal rejected that argument in favor of the reasonably competent driver and the court commented that uh on the undesirability of having a plethora of different standards which would add to the cost of proceedings and would render the law uncertain so certainty was to be preferred so basically if you are a learner kind of tough you're going to be judged by the standard of the reasonably competent driver as uh as western was in this situation now in addition to the basic standard for everyone there are also situations where the standard is higher or lower or of a specialist nature for example professionals so in bollum the claimant here was undergoing electroconvulsive therapy as treatment for his mental illness the doctor did not give any relaxant drugs and the claimant suffered a serious fracture as they um fell off the table now there was divided opinions amongst the professions as to whether relaxant drugs should be given if they are given there's a very small risk of death if they're not given there's a very small risk of fractures so the claimant argued that the doctor was in breach of duty by not using the relaxant drugs but the court held that the doctor was not in breach of their duty of care so really from this case the house of lords formulated the bolum test and it sets the standard as the reasonably competent practitioner in that professional that particular professional situation so in terms of children the standard to adopt for a child who's injured another child is that of a reasonable child of the defendant's age now in mullins two 15 fifteen-year-old girls were fencing with plastic rulers a shard of plastic broke off one of the rulers and hit the claimant um in her eye blinding her now i think looking objectively at you know how kids play really as a 15 year old you would not expect that to happen at all um and especially as everybody played that same game and there'd never been a warning that it was dangerous now in sporting situations obviously sports men and women owe each other a duty of care but also um they also owe a duty care to spectators as well and really they can be sued if they've acted in reckless disregard of a spectator's safety another example of the court's application of the law in sporting situations can be found in smolden and whitworth where it was held that the referee owed a duty of care to a rugby player smolden who was one of the players was seriously injured when the scrum collapsed of course it's not unusual for a scrum to collect to collapse but in this particular game a number of scrums had already collapsed without any intervention at all from the ref and as a result the referee was found to have acted negligently so to help the courts um decide whether uh there has been a breach of that duty of care they will look at for example foreseeability and one of the state what they call state of art defenses is roh the minister of health where this guy went in to have an operation on his spine and the spinal anaesthetic was stored in what they call fennel which at the time was like a disinfectant what they didn't realize was that these glass ampoules actually were porous very slightly porous and the fennel had contaminated the anaesthetic and of course um you know injured him when he was given this anesthetic uh and in fact uh rendered him unable to walk so obviously at the time of the incident there was no knowledge that that could happen but by the time it went to court there was um so in overseas tank ship this is probably the leading case i think on foreseeability um and this is a really good example um so a a large ship docked in sydney harbour and this particular ship for whatever reason they discharged um furnace oil so oil from from the engine of the ship um discharged it into the sea now this drifted into one of the wharfs there are many wharfs around sydney harbour and in that one particular wharf there were several ships that were being repaired and there was welding going on now i think as you probably know diesel oil is very difficult to light but to make matters more tricky there was actually cotton wadding um from a process that was happening in one of the wharfs that was just floating around in the sea this cotton wadding soaked up the oil acted like a wick one of the sparks um from the welding of course caught uh meant that one of these cotton wadding things caught fire and there was a huge amount of damage done by fire now when we look at foreseeability um you know i think in this situation undoubtedly the negligent discharging of furnace oil uh ended up um or caused the fire that you know created all that damage but was it a foreseeable consequence of that negligent act discharging the oil into the sea well what would be foreseeable in those situations are fouling of the slip ways injury and harm to wildlife but certainly not fire damage and because of that it was not foreseeable and so the claim failed the courts also consider the magnitude risk and the likely likelihood of harm so in bolton and stone for example um acclaimer was injured while she was standing outside the cricket ground and that was by a ball hit out of the grounds now um on the question of foreseeability there was no problem at all because the accident obviously was foreseeable as a ball had been hit out of the grounds some six times in the last 30 years but the house of lords held that the the cricket grounds the team they were not liable in negligence and continuing to play cricket on a ground without taking additional precautions because the risk of the type of injury which actually occurred was so slight now you can contrast this with hilda and portland cement where um they the defendants allowed children to play football on their land and their land happened to be um i don't know whether it's a factory or offices but it was on a main road and there was a very small wall around that car park and of course it doesn't take a genius i think really to know that the bull is going to end up in that road several times so there was going to be a risk of you know somebody swerving to avoid hitting the ball someone swerving to avoid hitting a child or a child actually getting run over so there was an accident and um and a motorcyclist actually came off their bike so in that particular situation there was a breach of the duty of care because the risk was so great now the courts also look at the seriousness of the consequences and so really even though the chances of something happening are so remote if there is a chance that it does it's going to happen and the consequences are really severe then they have to take greater care so in paris and stephanie brothers a one-eyed mechanic was doing his job he'd already lost one eye he wasn't given any kind of ppe or glasses if you look at the date you'll realize that health and safety wasn't really a thing then um and um so you know another end of the spark i don't know it was welding or another shard of metal went into his eye uh blinding him completely so you can cope with one eye but when you're completely blind i mean that's a real significant life-changing um you know event so the seriousness of the consequences to to him were huge and also in smith and leech brain the principle from this case is basically that you take your victim as you find him um so it's they establish what's called the eggshell skull rule it's often cited in the law of tort we also look at the burden and cost of taking precautions and sometimes uh it can be too great compared to the very small risk i mean if you think about the wagon mound there was no would have been no burden taking precautions not to discharge furnace oil into the sea it basically was just a turn of about but in latimer and aec limited the house of lords said that actually the owners of the factory had not been um had not breached their duty of care um what had happened was a heavy rainstorm had partially flooded a factory and as a result an oily liquid which usually was collected in channels in the floor became mixed with the flood waters and as a consequence the floor became very slippy so when the flood subsided um the floor was covered with sawdust to prevent slipping but there was not enough to cover the whole floor so there were some parts that remained untreated um and the claimant slipped injured his ankle and the house of lords on appeal held that the danger was not such as to impose on the employer an obligation to close down the factory in other words that particular solution closing the factory was out of all proportion to the risk involved and then the courts will also look at public benefit so you can have a look at the the case of miller and jackson this is sometimes referred to as social utility but um a public benefit miller and jackson um really started with a coal board that that owned land and on it they had a cricket ground so people have been playing cricket there for probably 70 80 if not more years now and piece by piece they sold off parts of land and they sold off um some land to a house builder who actually built um pretty close to the cricket ground and of course this um the consequence was that some owners some householders were getting cricket balls in their garden and occasionally causing some damage now of course on the days where crooked wasn't being played you know they had a lovely open view of what was almost countryside now what the cricket club did was they actually um built up the fence there so it did reduce that happening now to stop it from happening at all would mean having to close down the cricket ground and the judge said that really um in this particular situation um the cricket ground had been used for so long that it would be a loss to the community and of course mrs miller received that benefit of being adjacent to the open space so she was able to claim um a financial um compensation if you like so damages were financial rather than stopping um from being played there at all okay so if you'd like to take a break and when you're ready look at lecture number two