One of the main aspectscovered by the Tort of Law is Negligence. Negligence is diverse source oflitigation. This essay will analyse how the courts uphold an objective standardto distinguish a claim and to identify whether a defendant is in breach of dutyof care in negligence. To determine whether a particular defendant has breacheda duty of care, it will be necessary for the court to examine the rulesrelating to a claim in negligence. There are two sides to this question, firstI will show how the courts maintain an objective standard by employing certaintests to assess whether there a duty of care is present. The second, will revealhow the courts maintain an objective standard by neutrally assessing the basicstandard of care through the eyes of the reasonable man to clarify whether aparticular defendant is in breach of duty of care. If a Claimant wants tosue the defendant, four elements must be made out by the court for a claim tobe made.
First, is that the defendant owed the claimant a duty of care; second,the defendant has breached that duty of care; thirdthat the defendant’s breach caused the claimant to suffer some kind of damageor loss; finally, at least one of the losses that the defendant’s breach causedthe claimant to suffer is, actionable. Although the concept of the Duty ofcare is self-explanatory and has been used for many years throughout legalhistory, Hitherto, the concept of Duty of care was decided on a case-by-case inaddition to a pre-existing relationship between the two parties; defendant andthe plaintiff. In recent years courts have made certain developments to thetests when determining whether a defendant has breached their duty of care inrespect to the Claimant.
Four of the main tests are now used in relation toclaims brought under Negligence in Tort. One of the main teststhat has been raised by courts is Lord Atkin’s ‘neighbour principle’ calls fortwo key labels; first being Reasonable foreseeability, second being therelationship between the parties; more commonly know as ‘proximity’. Whenassessing foreseeability courts allow for a hypothetical stance of thereasonable man to be tested, the reasonable man being any individual, worker orcitizen to foresee the circumstances. The reasonable man excludes children andthose with a disability whom may not consciously be able to foresee certainsituations. In the case of Bhamra v Dubb 20101 it was necessary for thecourts to examine the rules relating to the neighbour principle; foreseeabilityof the defendant owing the Claimant a duty not to causing physical harm.
Furthermore, a prominent case that has applied Lord Atkin’s neighbour principleis Donoghue v Stevenson 19322 which was arguably thestepping stone for the development of duty of care tests for future claims. Inthe case of Donoghue v Stevenson 1932 two essential steps were taken; firstwas that the court outlined an independence of tort claims from that of contract.The second, was recognition of a general tort of negligence; whereby a manufacturerhas a definitive Duty of care for its consumers. The second test is knownas the Ann’s Test; it will be asked whether the harm was foreseeable thusconveying the neighbour principle be contained by the plaintiff. Similarly, wasthere any valid policy consideration? Inthe case Anns V Merton 19783 Despite the evidence onthe contrary the Ann’s test has been scrutinised for its two-stage test for thefollowing reasons; first, foreseeability is seen as a prima facie duty whichrefers to taking a duty at face value; plausible unless proven otherwise.Second, the Ann’s test can be seen as too much of a liability avoidingliability is made hard.
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The third test is theincremental approach that should be based on precedent in case lawjurisdictions, it is an approach employed to cease or curb massive extensionsof the Duty of care, in the law based on new or differing events. Caparo is the fourth andfinal test, it is often seen as a new solution to the previous tests. Caparo isa three-stage test, it calls for three equally important ingredients that areset to formulate whether a duty of care is owed. Caparo looks at the followingprinciples; first is the foreseeability of harm; second is proximity and; thirdis fair just and reasonable. Fair, just and reasonable refers to proximitysatisfied but where there is an overriding public interest in denying aparticular type of claim. Another point of viewsuggests, however, that the criteria’s termed are mere labels with theexception of foreseeability; it can also seem pragmatic in the sense that itbases on practical as opposed to theoretical considerations and thus isquestioned whether it is a plausible; accurate way of articulating legalquestions.
The main point is thatcourts are able to maintain an objective standard when imposing liability asthey are often reluctant to impose liability. For instance, liability on localauthorities particularly where it would impact on decision making of allocationof resources. By its nature the Stovin v Wise 19964 case it was held that thecouncil was not liable as foreseeability of an accident was seen over a certainperiod, i.e. 5 years as opposed to a series of accident of the course of 12years which was an inadequate measure to render the junction under the Council’spolicy for funding. In the case Caparo vDickman 19905the Caparo test was put to the review and the court held that no duty of carewas owed as there was no sufficient proximity between the two parties. For asituation to give rise to a duty of care it is necessary for all ingredients inthe Caparo test to be present.
The tests are used not only as guidelines but asscope for the court to consider whether a law should impose a duty. Similarly, in Marc Rich& Co v Bishop Rock Marine 19966 the House of Lords recapitulatedthe three elements of the Caparo test for the obligation of a duty of care asset out in the Caparo v Dickman 1990 case. On the contrary, theWatson V British Boxing Board of Control 20017 was a unique case as thedefendant owed a duty of care to the Claimant, and although the claimant wasconscious of the implications of rigorous sporting activities, inadequatesafety measures in hindsight “broke new ground” the liability was held by differingcourts over the years from 1999-2001 and although the damages were significantlyreduced from £1 million to £400,00. The defence of this decision was enough topermit justice of finding liability as set out by the Caparo three-staged test-the three preeminent elements were present; foreseeability, proximity and fair,just and reasonable; outcome as exceptions for a duty of care to be held undernegligence. This essay will nowpresent how courts conserve their objective standard when determining whether adefendant has breached their duty of care through the reasonable man approach,this includes but not limited to the following two instances. First, a renowned casethat concerns the reasonableness in the law of negligence, is that of the Blythv Birmingham Waterworks Co 18568 case, the judgement heldthat the defendants could not have been negligent as it was unreasonable tocontemplate the circumstances of poor weather and therefore, through the testof the reasonable man it was decided that such a rare occurrence could not havebeen within the scope of the company’s duty of care and therefore not a breach.
Similarly, the second isthe case of Glasgow Corp v Muir 19439 whilst the manageress incharge owed a duty of care to a certain extent. She did not owe a duty to takeadditional precautions beyond that of the regular safety standards expected, asit was out of the scope of reasonable probability. As such, Glasgow Corp didnot owe the child harmed a duty of care as they had not breached their obligationand the case dismissed a non-preventable accident. Furthermore, other measuresare taken in determining claims in negligence, for instance the CompensationAct of 2006 has been used to stipulate certain factors that may be taken intoaccount by a court by regarding whether liability; may avert desirable activityfrom being commencing at all, to a certain degree, precisely or; discouragepersons from taking on functions in relation with a preffered activity. Moreover, two of the fourelements that remain when a Claimant wants to sue the defendant, must be madeout by the court for a claim to be made. Those are that the defendant’s breachcaused the claimant to suffer some kind of damage or loss; finally, at leastone of the losses that the defendant’s breach caused the claimant to suffer is,actionable. Causation of damage refers to a form of damage or loss that isrecognised as compensatory in its own right. For instance, not mere anxiety andgrief, another requirement is that it must be sufficiently substantial injury.
Principally,’factual causation’ is primarily considered through the ‘but for’ test; ‘butfor’ the breach of duty- rests where the injury would have materialised but forthe breach, the ‘but for’ test is not satisfied. In the case of Barnett vChelsea & Kensington Hospital 196910 the ‘but for’ test impliedthe end result; death of the deceased would have occurred for the act oromission of the defendant, in this case yes as death was inevitable and beyondthe duty of the doctor. Thus, the claim was to be ceased as a cause of thedeath. Finally, one of the fourelements; remoteness of damage is a measure of the certainty of injury/harm/lossis contained within the scope of consequences for which liability is exhibited.
The remoteness of damage extends to the following; reasonable foreseeability ofdamage and the chain of causation. Novus Actus Interveniens refers tointervening acts that would break the chain of causation in hindsight; namelyintervening acts of the Claimant or of the third parties. An instance where novusactus interveniens of the Claimant took hold include the Corr v IBC Vehicles200811 as a result of thenear-fatal work accident, the Claimant suffered prolonged physical andpsychological hardships. The House of Lords upheld this claim as it wasconsidered death within ‘compensable damage’. The aftermath of the accidentleft the Claimant in a state of depression (clearly foreseeable), suicide wasconsidered a worldly-known trait of depression. The House of Lords with reasoncame to conclude that whilst it could neither be labelled as reasonable or foreseeable,the suicide did not break the chain of causation.
In summation then, themain point is that the work of the English Courts is to uphold an objectivestandard, especially in respects to claims in tort and negligence which can toooften be morally and ethically challenging. Th job of the courts is to maintainimpartiality and neutrality by use of the guidelines mentioned above, todetermine an outcome that will satisfy justice.
