Negligence and strict liability, Lecture notes of Law

Download Negligence and strict liability and more Lecture notes Law in PDF only on Docsity! 4. Negligence General principles two meanings of the word “negligence”: - the absence of reasonable care according to the circumstances (Fahrldssigkeit) - independent tort consisting of the breach of a duty of care which causes damage to the person to which the duty is owed development - 19" century: breach of duty of care recognised as basis of liability under particular circumstances - Donoghue v Stevenson (1932): tort of negligence recognised as independent tort, general requirements set out by Lord Atkin, general guideline as to when a “duty of care” arises - Hedley Byrne v Heller (1964): House of Lords awards damages in case of pure economic loss - Anns v London Borough of Merton (1978): broad two-stage-test, applicable without recourse to precedent - Murphy v Brentwood District Council (1991): Anns overruled, two-stage-test tecognised as being to broad general requirements: qd) existence of a duty of care (2) breach of the duty (3) damage caused by the breach Duty of care The defendant must owe a duty of care to the claimant: “A man is entitled to be as negligent as he pleases towards the whole world, if he owes no duty to them” (Le Lievre v Gould [1893] 1 QB 491 (497) per Lord Esher) Circumstances under which a duty of care arises cannot be defined exactly: “The categories of negligence are never closed” (observed by Lord Macmillan in Donoghue v Stevenson). Possible approach: the “neighbour principle” identified by Lord Atkin in Donoghue v Stevenson: - persons who are so closely and directly affected by defendant’s act © relation of proximity) - that he should reasonably think about their being affected when acting (= reasonable forseeability) - It must also be just and reasonable to impose a duty of care on the defendant. A duty of care is easier to establish in cases concerning physical injury or damage to property. The establishment of a duty is much more difficult in cases concerning pure economic loss. Ultimately the decision whether a duty exists is a matter of policy. Case study: Spartan Steel v Martin Economic loss Donoghue v Stevenson (and earlier cases) establish that the breach of a duty causing physical injury or damage to property is actionable. damages for (pure) economic loss? - majority vote in Candler v Crane Christmas & Co (see Materials I 3 a): not tecoverable under tort of negligence, but powerful dissent by Lord Denning - compare § 8231 BGB - Candler v Crane Christmas overruled in Hedley Byrne v Heller Hedley Byrne v Heller. - tort liability for negligent misstatements even without contractual relation between the parties - problem: limits of liability, solution: test of proximity - duty of care arises when defendant assumes responsibility towards claimant category 1: liability for negligent misstatements, contrast Hedley Byrne v Heller and Caparo Industries v Dickmann category 2: liability for professional misconduct, see White v Jones [1995] 2 AC 240 category 3: liability for causing or for not recognising building defects, see Anns v Merton London Borough Council, Junior Books v Veitchi Psychiatric illness mere grief or emotional distress is not actionable Often the problem is not the absence of physical damage, however, but the potentially unlimited range of claimants. Contrast Bourhill v Young [1943] AC 92 (no duty of care to unrelated person not present at site of accident) and Mc Loughlin v O’Bnian [1983] AC 410 (liability towards wife and mother of victim) Alcock v Chief Constable of South Yorkshire (Hillsborough disaster case): two categories - primary victims = persons participating in the event (e.g. rescuers or persons endangered themselves): duty of care (+) if physical damage reasonably foreseeable - secondary victims = persons just witnessing the event: duty of care only (+) if close proximity between victim and claimant and temporal and local proximity to the event. Breach of duty Negligence = “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and reasonable man would not do” (Blyth v Birmingham Waterworks, 156 ER 1047, 1049 (1856)) [AA cetwstutt zivitreeht Vir Prof. Dr. Ohly Introduction to English Law