Negligence and Duty of Care: PLS II - LW12011

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• Negligence I relates to the duty of care under PLS II - LW12011, organised by Nicola Tully.
• Unintentional harm is actionable if there is a breach of the legal duty owed by the wrongdoer.
• Reparation is due for damnum injuria datum, which is loss caused by a legal wrong.
• Harm caused without a breach of legal duty is called damnum absque injuria (loss without wrong).
• Liability for breach of duty generally involves fault.
• Determining liability involves applying a series of tests to establish if the defender was negligent.
• These tests are applied sequentially, and if one answers negatively, there is no negligence or liability.

Tests for Establishing a Claim in Negligence

• The duty of care is assessed by determining if a duty exists and to whom the duty is owed.
• Establishing a breach of duty includes determining if a breach occurred, specifically if the duty was not implemented.
• Proving a causal link requires assessing if the breach caused the harm and determining the link between the loss/harm and the breach.
• Remoteness involves considering if the loss is proximate and not too remote.
• Normally recoverable losses include personal injury and property damage from positive conduct by the defender.
• Possibly recoverable losses include personal injury and property damage from omissions, harm caused by a third party, harm to reputation, loss of liberty, economic loss, psychiatric harm to secondary victims, and losses from breach of statutory duty or use of statutory powers.
• The only relevant remedy is damages
• Losses that are too remote will not be compensated.
• The essential pre-requisite for liability for negligently caused harm is the duty of care.
• The duty of care operates to limit the scope of liability and opening or restricting liability depending on circumstances.
• The duty of care is not an obligation.
• Common law duty of care generally doesn't demand specific obligations, arising only when an act is reasonably undertaken
• Cory J in Lewis v British Columbia [1997] SCR 1145 at para 17 is an supporting case.

Establishing a Duty of Care

• It is established when D creates a risk of harm if adequate care isn't taken.
• If P suffers a loss, they must establish that D owed P a duty to avoid causing harm.
• Key questions are: Is P someone to whom D owed a duty? and Is the harm within the duty's scope?
• Donoghue v Stevenson (1932) relates to duty of care and introduces the 'Neighbour principle'.

To Whom is the Duty Owed

• Bourhill v Young (1942) examines the duty owed.
• Bourhill v Young (1942) details a case of a fishwife who experienced nervous shock and miscarriage due to a negligently driven motorcycle collision. However, she didn't view the incident.
• Lord Atkin in Donoghue v Stevenson (1932) defines a neighbor as someone closely and directly affected by one's actions and should be considered when acting.
• Lord Macmillan in Bourhill v Young, (1942) asserts the duty of care is only to those whom one reasonably anticipates may be injured.
• In Scotland, one is bound to foresee consequences of failure to take care based on the ordinary reasonable person’s standard, as said by Lord Thankerton in Muir v Glasgow Corporation (1943).
• An additional consideration is whether the incurred harm falls within the scope of duty.

Tripartite Test

• Tripartite testing includes foreseeability of harm, proximity of parties and how fair, just and reasonable the act was.
• Proximity and foreseeability may be addressed by applying the concepts of foreseeability & proximity.
• The duty owed is not simply due to reasonably foreseeable loss, injury, or damage, it must be a relationship of proximity between employer and employees/road users.
• The duty is created by the relationship, and the scope is determined by what, in the context of that relationship, is reasonably foreseeable, as per Lord Hope in Mitchell v Glasgow City Council [2009] UKHL 11 at 16.
• Duties are owed to identifiable persons or those within a known class likely affected by the defender's conduct, as in Hill v Chief Constable of West Yorkshire [1989].
• Duties relate to harm that would have been within the defender's contemplation as being what would reasonably follow from their conduct, as in Bolton v Stone [1951].
• Impractical risks require justification, as noted by Lord Reid in The Wagon Mound No2 [1967].
• Courts consider if imposing a duty is fair, as in Caparo Industries Plc v Dickman & Others (1990).
• Workers leave a manhole with warning lamps, and children cause an accident.
• The question is whether the accident was reasonable.
• Pursuers must prove the defender's fault caused the accident, but could be regarded as caused by the intrusion of a new and unexpected factor rather than their fault, said Lord Reid in Hughes v Lord Advocate (1963).
• Where the covered type of harm arises, liability may exist even if the precise circumstances couldn't be foreseen.
• The thin skull rule may apply.
• No duty arises from a pursuer's unknown susceptibility.
• If there's a breach, the wrongdoer must "take the victim as he finds him/her".
• Per Lord Clyde in McKillen v Barclay-Curle & Co Ltd (1967): The defender must take his victim as he finds him.
• Current understanding should include principles of unintentional wrongs, the significance of a 'duty of care', circumstances that give rise to a 'duty of care', and principles for determining if a duty of care exists.
• The next lecture will address the 'Breach of Duty'