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NEGLIGENCE Powered By Docstoc
   Unit 31
 Tort vs. contract
 Tort vs. crime
 Negligence: definition
 Claim of negligence
 Objective test
 Legal terms
 Exercise
 Case study: Donoghue v Stevenson
 Law of tort vs. Law of contract
 Difference:
 Law of tort defines what sort of behaviour
  is wrongful
 Law of contract – the contractual
  agreement lays down what will be seen as
  wrongful behaviour
 Liability for breach of contract and tortious
  liability may arise from the same facts
    Law of tort vs. Criminal law
 Many torts are also crimes, e.g. assault
 Law of tort and criminal law – different
 Law of tort gives a personal remedy to
  individuals for any wrong they have
 Criminal law - concerned with the
  protection of the public at large and will
  punish offenders
 The claimant or defendant in a tort case:
  either a natural or a legal person
 Sometimes the defendant is not the one
  who actually carried out the wrongful
  behaviour, but the law holds him
  responsible for the acts of the one who did
  cause the harm (parents, employers)
 Carelessness amounting to a culpable
  breach of duty: failure to do or recognise
  sth that a reasonable person would do or
  recognize, or doing sth that a reasonable
  person would not do
 Negligence may be an element in a few
  crimes, e.g. careless driving
 A tort consisting of the breach of a duty of
  care resulting in damage to the claimant
 Can be used to bring a civil action when
  there is no contract under which
  proceedings can be brought
        Claim of negligence
 In order to succeed in a claim of
  negligence, a claimant must show that:
 The defendant owed him a duty of care
 There was a breach of the duty of care
 The harm suffered was caused by the
  breach of a duty of care
             Duty of care
 Neighbourhood principle : whether there is
  a duty of care depends on whether the
  claimant is a neighbour in the legal sense
 A person is a ‘neighbour’ if what you do
  will directly affect him
 Duty to take reasonable care to avoid acts
  or omissions ‘which you can reasonably
  foresee would be likely to injure your
               Duty of care
 If there is no duty of care, there is no
 If there was a breach, was the harm that
  the claimant suffered reasonably
 If it was not reasonably foreseeable –
  remote damage
           Proof of damage
 Some torts require proof of damage – the
  claimant must prove that the defendant’s
  conduct caused harm
 Some torts (e.g. libel) actionable per se –
  the claimant does not need to provide
  proof of damage; the fact that the
  defendant committed the tort is enough for
  the claimant to be entitled to redress
             Breach of duty
 If the defendant owed the claimant a duty
  of care, the next step is to prove that the
  defendant breached that duty of care
 The test: objective
 The standard: reasonableness
 Even if the claimant can show that the
 defendant owed him a duty of care and he
 breached it, he must show that the
 defendant caused his injuries –
 establish causation: there has to be a
 clear link between the claimant’s loss and
 the way the defendant behaved
      Contributory negligence
 Even if a claimant has proved a duty of
  care, a breach of that duty and causation,
  the defendant could still have a defence:
  contributory negligence
 The claimant’s injury was only partly
  caused by the defendant’s conduct; the
  claimant himself is also at fault and partly
  to blame for his injury
 Negligence: definition
 Duty of care (neighbourhood principle)
 Breach of the duty of care (test of
  reasonableness )
 Causation
              Legal terms
 The party owing a duty of care has failed
  in the performance of that duty
 Breach of a duty of care
 There must be a link between the damage
  suffered by the claimant and the
  defendant’s act or omission.
 Causation
              Legal terms
 A defence to a negligence claim. The
  defendant shows that the claimant failed to
  take proper care and was therefore partly
  to blame for the injury he suffered. The
  damages the claimant can recover will be
 Contributory negligence
               Legal terms
 Financial compensation for the claimant
  for the harm suffered
 Damages
 A duty binding on one party to avoid acts
  or omissions which could reasonably be
  foreseen as likely to injure the other party
 Duty of care
               Legal terms
 This is an artificial, legal construct. An
  abstract entity, for example a registered
  company, is a separate person in law
 Legal person
 This is a human being rather than an
  artificial legal construct
 Natural person
              Legal terms
 In legal terminology, this is more than
  mere carelessness. It requires that the
  defendant has breached a duty of care
  owed to the claimant, and as a result the
  claimant has suffered harm
 Negligence
              Legal terms
 The test in negligence for breach of a duty
  of care is not whether this particular
  defendant has acted unreasonably but
  whether a reasonable person would have
  acted in this way
 Objective test
              Legal terms
 In a negligence claim, a major factor that
  must be taken into account in establishing
  a duty of care is whether the defendant
  could reasonably foresee that his
  behaviour would lead to the claimant being
 Reasonable foreseeability
              Legal terms
 The test for determining whether there has
  been a breach of a duty of care is
  objective. The standard is one of
  reasonableness: whether the defendant
  has acted as a reasonable man would
  have acted in this situation
 Reasonable man/person
               Legal terms
 A private or civil wrong, resulting from a
  breach of a legal duty. The law of __is a
  collection of different sorts of ___, as there
  is no general principle of liability for
  causing harm to another person
 Tort
 The adjective referring to tort
 Tortious
 To establish negligence
 To suffer damage
 To allege negligence
 The cause of damage
 A chain of causation
 Reasonably foreseeable
 To act in a way
 Your client acted in a particular way that
  caused harm to my client
 In order to do something
 In order to establish negligence we must
  show that the defendant breached his duty
  of care to you.
 Foreseeable by someone
 The damage was reasonably foreseeable
  by our client
 To be guilty of something
 The defendant was guilty of committing
  this tort
 Fill in the gaps with the followig: breached, care,
  damages, deterrent, distress, incurred, proof,
             redress, remedy, wronged
 What is the purpose of the law of tort? Many
  lawyers describe this as the most disorganised
  area of law. It has even been described as ‘the
  dustbin of law’. Meaning that it is the place
  where all of the problems that other areas of law
  cannot deal with will eventually arrive.However,
  the principal purpose of the law of tort is to
  provide a____to those who have been___ by
  others. Some of these wrongs might be covered
  by criminal law or by contract law as well as by
  the law of tort, but some might not be.
  breached, care, damages, deterrent, distress,
    incurred, proof, redress, remedy, wronged

 However, people are not liable for wrongs
 to others in every situation in life. Let’s say
 that person A harms person B in some
 way. Is person B entitled to what lawyers
 call____? It is certainly not automatic that
 person B can make a claim against person
 A according to the law of tort. It depends
 on the type of harm that has been caused
 and under what circumstances.
  breached, care, damages, deterrent, distress,
incurred, proof, redress, remedy, tortious wronged

 The law of tort is based upon principles
 that have developed over many years.
 These principles explain what lawyers
 refer to as ‘____liability’. This is where one
 person or organisation has a duty in the
 eyes of the law not to harm another in any
 way. This duty is called duty of ____.
  breached, care, damages, deterrent, distress,
    incurred, proof, redress, remedy, wronged

 To make a successful claim against someone
  according to the law of tort, you must first of all
  establish that:
 The person who has harmed you owed a duty of
  care to you, and
 The duty of care was____.
 In some cases you also need to provide the
  court with___of harm, but in other cases just
  proving that the duty of care was breached is
breached, care, compensate, damages, deterrent,
    distress, incurred, proof, redress, remedy,
 The main objective of the law of tort is not
  to punish the wrongdoer, but to ____the
  injured party. This compensation usually
  takes the form of a payment of money that
  is referred to as ___.
  breached, care, damages, deterrent, distress,
    incurred, proof, redress, remedy, wronged

 Let’s say that person A is driving dangerously
  and causes harm to person B by crashing into
  his car. In this example, person A has an
  automatic duty of care not to harm anyone in
  this way and that duty has been_____. A court
  might award _____to cover the cost of buying a
  new car. It might also award damages for any
  other expenses that person B has ____, such as
  loss of earnings if he is unable to go to work.
  breached, care, damages, deterrent, distress,
    incurred, proof, redress, remedy, wronged

 The court might also add a certain amount of
  ____to the sum awarded for things that are
  difficult to measure, such as person B’s pain and
  suffering. The phrase moral damage is not used
  in English to describe his kind of suffering. We
  usually describe it as ‘pain and suffering’ or
  ‘emotional ___.
 Some lawyers think that the law of tort also acts
  as a ___in that people think twice before
  behaving in a way that could lead to harm.
 Fill in the missing words: agree, argue,ask,
      contribute, do, establish, expect, tort
 Under what circumstances is a person guilty of
  the ___of negligence? Unfortunately, the
  definition of the term ‘negligence’ varies
  according to which book you are reading. The
  legal term ‘negligence’ has a much more
  complex meaning than the general English
  meaning of the word. However, most lawyers
  ___upon the idea that in order to establish
  negligence in a particular situation we
  must___three fundamental questions:
 Fill in the missing words: agree, argue,ask,
  contribute, do, establish, expect, negligent
 Did the defendant___the claimant a duty
  of care?
 Was that duty of care breached?
 Did the defendant’s breach cause, or
  materially___to, the damage suffered by
  the claimant?
 If the answer to all three questions is ‘yes’,
  then the defendant has been___ in the
  legal sense of the word.
    agree, argue,ask, care, contribute, do,
              establish, expect
 To whom do I owe the duty of___? The case law
  in this area is complicated. However, there is a
  principle of English law that says that I owe a
  duty of care to anyone in situtations where it is
  reasonably foreseeable that my act or omission
  might cause harm to another person. In other
  words, it is a defence to an allegation of
  negligence to ___that no reasonable person
  would have anticipated that my act or omission
  would cause harm.
 agree, argue,ask, contribute, do, establish,
 Assuming that I can reasonably anticipate the
  result of my act or omission, what standard of
  care does the law___from me? How do I know
  when I have breached my duty of care? To
  answer this question, most English law students
  are asked to remember the general principle of
  negligence provided by a judge named Alderson
  in the case of Blyth v Birmingham Waterworks
  (1856). The judge said:
 agree, argue,ask, contribute, do, establish,
 ‘Negligence is the omission
 to___something which a reasonable man,
 guided upon those considerations which
 ordinarily regulate the conduct of human
 affairs, would do, or doing something
 which a prudent and reasonable man
 would not do’.
 agree, argue,ask, contribute, do, establish,
 Again, the question of whether or not I
 have breached my duty of care has been
 decided by an objective test. What would
 an ordinary, reasonable person do under
 the same circumstances? Finally, in order
 to firmly __negligence, the claimant must
 demonstrate that the negligent act of the
 defendant was the main cause of the
 damage complained of. A court will often
   agree, argue,ask, causation, contribute,
   defendant do, establish, expect, suffered

 Was the chain of causation broken at any
 Would the harm that the claimant ___have
  happened anyway, even if the ____had
  not acted in a particular way?
 Even where there is a clear chain of ____,
  was the damage too remote, in other
  words, not reasonably foreseeable by the
 agree, argue,ask, contribute, do, establish,
     expect, imagine, negligent, suffered
 In conclusion, establishing that someone
 has been____ is not as straightforward as
 the general public might imagine.
             True or false?
 The legal meaning of the word
  ‘negligence’is more complicated than the
  general, dictionary meaning as the public
  would understand it.
 According to English law, I owe a duty of
  care to all other citizens in all situations.
 The test of whether or not one person
  owes another person a duty of care is an
  objective one.
             True or false?
 The definition of negligence from 1856
  comes from the common law.
 In cases where there is a clear chain of
  causation between the defendant’s
  conduct and the claimant’s harm, the
  defendant will always be guilty of
  Complete the following sentences with a
    preposition: by, under, at, upon, of
 Do we agree___the fact that your client
  owed my client a duty of care?
 We must ask ourselves what a reasonable
  person would have done___the
 The defendant did not take reasonable
  care when using dangerous chemicals and
  so he is guilty ___behaving negligently.
          by, under, at, upon, of

 The damage caused to the claimant was
  not reasonably foreseeable___the
 ___what point do you think that the chain
  of causation was broken?
    Donoghue v Stevenson
 On 26 Aug. 1928, Mrs May Donoghue of
 Glasgow left her home to make the short
 journey into Paisley, a neighbouring town.
 There she met a friend at Minchella’s cafe
 at 1 Wellmeadow Street. Her friend
 ordered and paid for an ice-cream and a
 bottle of ginger beer.
      Donoghue v Stevenson
 The ginger was manufactured by Mr David
  Stevenson of Paisley. It came in an
  ‘opaque’ bottle, so no one was able to see
  what was in the bottle.
 ’.
      Donoghue v Stevenson
 When Mrs Donoghue’s friend was pouring out
 the contents of the bottle, they saw floating out
 of the bottle what seemed to be partly
 decomposed remains of a snail. Mrs Donoghue
 claimed she was made ill by what she had seen.
 She had medical treatment three days later for
 gastro-enteritis, and again three weeks later, at
 the Glasgow Royal infirmary. She also claimed
 that she had suffered from ‘nervous shock
      Donoghue v Stevenson
 There was no contractual relationship
 between Mr Minchella and MRS
 Donoghue. The only person she could sue
 was David Stevenson, the manufacturer of
 the ginger beer. The question was, on
 what grounds?
      Donoghue v Stevenson
 Mrs Donoghue’s solicitor, Walter
 Leechman, decided to proceed with the
 case, even though there was no legal
 precedent for such an action. The basis of
 the claim was that any manufacturer of a
 product intended for human consumption
 must be liable to the consumer for any
 damage resulting from a lack of
 reasonable care to ensure that the product
 is fit for consumption.
     Donoghue v Stevenson
 The case proceeded through various
 appeals to the House of Lords. The Lords
 decided in favour of Mrs Donoghue, a
 new precedent was established and a lady
 who said she was ‘not worth five pounds in
 all the world’ became the reason why,
 these days, millions of pounds have been
 won by claimants based on the tort of
 Where was Mrs Donoghue from?
 What was the address of the cafe where
  the incident happened? Why was no one
  able to see the contents of the bottle of
  ginger beer before it was poured out?
 What did Mrs Donoghue claim to have
  found in her bottle of ginger beer?
 What illness was Mrs Donoghue treated for soon
  after her visit to the cafe?
 What second serious effect did Mrs Donoghue
  claim the incident had caused?
 Why was it so surprising that Mr Leechman
  decided to take this case to court?
 This case established that a duty of care exists
  between manufacturers and which other general
  group of people?
  Complete the sentences with the
       correct preposition
 Each citizen within a particular jurisdiction is
  liable__any breach of his or her duty of care.
 If you cause harm___someone as a result of a
  breach of the duty of care then you will probably
  be ordered to pay damages to that person.
 The amount of damages that you have to pay
  will be dependent ___the circumstances of the
 My client is entitled ___redress for the
  harm that she has suffered.
 Many of the principles of the modern law
  of tort arose__the facts of the case of
  Donoghue v Stevenson.
 Many of the obligations that we have
  under the law of tort are imposed upon us
 Do we agree __the fact that your client was
  liable for this accident?
 There was no break in the chain___causation
  and your client was directly responsible for my
  client’s loss.
 Mrs Donoghue met her friend at a cafe___the
  town of Paisley.
 When Mrs Donoghue’s case went to court there
  was no legal precedent ___such an action.

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