In the Tort of Negligence, civil liability is based on establishing three principles: duty of care, breach and damage. Once these principles have been established, compensation may be paid out to a claimant, which aims to put them back into the position they were in before the damage occurred.
Firstly, duty of care is established using the three-part Caparo Test, which originated from the case of Caparo Industries__ PLC__ vs Dickman. In his judgement, Lord Bridge explained the parts to the Caparo test: foreseeability of damage, proximity between the defendant and the claimant and that it is fair, just and reasonable to impose a duty of care in such a situation.
Foreseeability can be described as predictability and can be illustrated by Kent v Griffiths, where it was entirely predictable that an ambulance crew who were in no hurry to attend an emergency would likely cause further harm to the injured party.
Proximity refers to closeness between the defendant and claimant. This can be in terms of time, space and/or relationship. In Bourhill v Young, the defendant caused a road accident. the pregnant claimant was not present at the time, but arrived soon after. The shock she experienced cause her to miscarry. Since there was no proximity, the defendant was found not to be liable for the miscarriage.
Fair, Just and Reasonable - There is also a policy test, where it is judged whether or not it would be fair, just and reasonable to impose a duty of care in these circumstances. This is to prevent ludicrous claims from being made in court. In the case of Mulcahy v Ministry of Defence, the claimant had suffered hearing loss due to a cannon being fired unexpectedly, right next to them whilst they were on the battlefield. It emerged that it shouldn’t have been fired until the claimant was in a different position in relation to the cannon. However, the Court decided (on Appeal) in favour of the defendant, as it would be unfair to impose a duty of care on soldiers in battle as they engaged with the enemy.
Secondly, breach is where the defendant has not taken sufficient care to uphold their duty of care. Factors which normally influence breach include the likelihood of risk, the magnitude of the risk, the practicality of taking precautions, the benefits of taking the risk and the standard of care required by that particular defendant.
In the case of Bolton v Stone, Miss Stone was hit by a cricket ball that had flown over a seventeen foot fence from one hundred yards away. This had only happened around six times (and without injury) in the ninety years that the cricket ground had been providing a service to the community. Due to these factors and with particular regard to the likelihood that harm would result, the cricket club was found not to be liable, as all reasonable precautions had been taken and this was an unpredictable event.
Factual Causation - Thirdly, damage is established so long as the defendant’s actions or omissions were at least a factual cause of the damage, using the ‘but for’ test: This is where the claimant would not have suffered, but for the defendant’s breach of their duty of care.
Remoteness - Not only that, but the damage must not be ‘too remote’, ie there should be a clear link between the cause and the consequence, with few steps in between. This is best explored using the case of Wagon Mound No.1. Here, a ship discharged oil into the water when coming into the harbour. The oil caused damage to the nearby wharf. The defendant was found to be liable for this. However, damage was also caused to a ship, which had caught on fire due to a piece of floating debris, which had been covered in oil and then had been lit by the spark from a welder’s torch and had then floated out to sea and set the ship alight. The resulting damage was so far removed from the initial dumping of the oil that the defendant was found to be not liable for the damage to the ship, even though they had set in motion the chain of events which had led to it.
The final element to damage is the ‘Thin Skull Rule’. Here, one must have regard to others, who may be vulnerable or have particular weaknesses, which would make harm or injury more likely or more serious. Many lawyers put this as “you must take your victim as you find them”. These vulnerabilities may not be known to the defendant, but this will not absolve them of any blame. In the case of Smith v Leech Brain, a man had previously recovered from cancer. At work, a piece of molten metal spat at him from a vat and caused severe burning. This caused pre-cancerous cells to emerge and he died three years later from the cancer. The claimant, his widow, won their case, as even though this wouldn’t have happened to most people, it was predictable that molten metal could have spat at whoever was working there. The fact that it caused death due to the cancer was no defence for the defendant. The claimant won.
- The ______ test is used to determine whether or not a duty of care is owed to a claimant?
- In Bourhill v Young, it was decided that there was no ______ between the claimant and the defendant’s actions?
- The concept of “fair, just and reasonable” is illustrated in Mulcahy v MOD, where the claimant was unsuccessful in their claim for loss of _____?
- How many times had a cricket ball previously been hit over the fence in the case of Bolton v Stone?
- In Wagon Mound No.1, what was the defendant found to be liable for, the damage to the hip or the wharf?
- The “Thin ___ Rule” takes account of a claimant’s vulnerabilities?