LLB OBLIGATIONS 2

DELICT

Tackling Negligence Problems

Ask yourself the following questions and remember to support your answers with appropriate legal authority.

STEP 1 Is a duty of care owed? (The neighbour principle) The occupier of property - those who enter the property A driver - other road users Employer - employee Manufacter of a product - consumer To whom is the duty of care owed? (Donoghue v Stevenson) Lord Atkin “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? (..) persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected.” Was there neglect of that duty? Culpa on the part of the defender. Culpa/fault - basic of delictual liability, defender intended to harm pursuer In scotland culpa covers also careless conduct, where defender couses harm to the pursuer unintentionaly

STEP 2 What is the range of the duty? Bourhill v Young 1942 mrs was outwith the area of danger Once the pursuer has established that the defender owed a duty of care, he must further show that he, the pursuer, was within the ambit of the duty or within the area of risk Apply `test of reasonable forseeability'. Muir v Glasgow Corporation 1943 Principle: is therefore that before a duty of care can arise, the defender's acts or omissions must have as their reasonable and probable consequence, injury to the pursuer or damage to the pursuer's property. Test = reasonable foresight of the hypothetical reasonable person in that position. (Not what the particular defender actually foresaw) Hughes v Lord Advocate 1963 The principle is that a breach of a duty of care will occur when the pursuer suffers the kind or type of injury which is a reasonable and probable consequence of the defender's careless act or omission. Test = is the type of injury and not necessarily its gravity, reasonably foreseeable as a probable consequence? Smith & others v Littlewoods Organisation Ltd; Maloco v Littlewoods Organisation Ltd The principle is that for a duty of care to arise in a case involving the intervention of a third party, the resultant damage would not only have to be reasonably foreseeable but very likely or indeed highly probable. special circumstances in which liability might arise for harm caused by third parties Where there is in existence a special relationship between the third party and the defender by virtue of which the defender is responsible for controlling the third party. Where a source of danger was negligently created by the defender and it was reasonably foreseeable and highly probable that third parties might interfere and cause damage. Where the defender had knowledge or means of knowledge that a third party had created or was creating a risk of danger on his property and that he failed to take reasonable steps to abate it. Remember limitations especially in respect of pure economic losses. Limitations on the extent of the duty of care: The duty extends only to latent (concealed) not patent (obvious) defects. No break in the chain of causation. 2. The duty is to prevent injury to the ultimate consumer's person or property rather than to compensate for loss of the defective product itself. The remedy for this loss still lies primarily in contract. This effectively limits liability in delict for pure economic loss. `Pure economic loss' is regarded as pecuniary loss which arises from a negligent act without resultant personal injury to the pursuer or damage to his property. The justification for restricting claims for pure economic loss lies in that it would open the flood gates to potentially massive claims for minor breaches of duty.

STEP 3 Has an appropriate standard of care been met? (Hypothetical reasonable man test.) the greater the risk involved, the higher the standard of care expected. The possible costs of preventing injury versus the risk of injury Consider professional standards and usual trade practices. What is the degree of risk versus the cost and ease of taking precautions?

STEP 4 Can you establish the causal link? Damnum injuria datum - are all three elements present? The maxim damnum injuria datum sums up the up the nature of delictual liability. These three elements must always be present in order to found a successful action in delict damnum - the loss or injury injuria - the conduct or legal wrong datum - the causative link… the legal wrong must have caused the injury Identify the causa sine qua non (if any) and the causa causans? Defender's breach of duty must be causa sine qua non - of the pursuer's injury. (a factor which is a pre-requisite of the harm which has occurred.) causa causans - the effective cause of the loss or injury. It is not necessarily the nearest cause of the harm in terms or time and space but is predominant cause. Are there any breaks (novus actus interveniens) in the chain of causation? Where there is a chain of events leading up to the injury, that is to say several factors happen either in sequence or concurrently, there must be no break in the chain of causation.

STP 5 Can negligence be proved? Burden lies with the pursuer to show that `on the balance of probabilities' the defender was negligent. `On the balance of probabilities' means that the pursuer must show that the defender was probably negligent and that the defender is unable to prove the contrary. (i.e.: that he was not negligent in his actions) The burden of proof may however shift during the course of hearing the evidence, with the result that it then falls to the defender to prove that he was not negligent. Res ipsa loquitur ( the facts speak for themselves) might help by shifting the burden of proof. to the defender. The defender then has to prove he was not negligent. He must rebut the inference implied from the circumstances of the accident. i.e.: show how the accident might have occurred without fault on his part. Three conditions must be met before res ipsa loquitur can be applied: The offending `thing' must have been under the control of the defender Accidents do not usually occur when due care is exercised by those in control There must be an absence of explanation for the accident in question Case illustrations of successful use of the maxim res ipsa loquitur Devine v Colvilles 1969 SC (HL) 67 Explosions do not occur where due care is exercised. Ward v Tesco Stores [1976] 1 WLR 810 If the floor had been kept free of yoghurt the customer would not have slipped in it Cassidy v Minister of Health [1951] 2 KB 343 Hospital failed to prove they were not negligent during surgery O'Hara v Central SMT 1941 SC363 Buses do not usually swerve unless the driver is negligent

STEP 6 Can you limit or reduce your liaibility? Is there a valid limitation or exclusion of liability clause ? Can responsibility be allocated to other parties? Is there vicarious liability? Is there contributory negligence on the part of the pursuer? Do any special defences apply? (consent, volenti, immunity, illegality etc) Is the loss or injury a direct consequence of the wrongful act or could it be too remote?

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