[This post contains the Web Workshop preparatory material for the 'Introduction to Negligence' workshops in January 2021. If you would like to join the workshop, you can sign up at firstname.lastname@example.org . The material is designed to give you some of the language that we will be looking at and also to encourage you to think about - and, if you want, to discuss - some issues in the English law of negligence.]
WEB WORKSHOP PREPARATORY MATERIAL: AN INTRODUCTION TO THE ENGLISH LAW OF NEGLIGENCE
Everyone does careless – or ‘inadvertent’ – things, sometimes. Fortunately, most of the time nobody is harmed as a result of them. However, sometimes carelessness does harm other people. The person who has suffered the harm may want to claim financial compensation – called ‘damages’ – from the person who has caused the harm.
Question 1: Can you think of three or four different examples of when carelessness can cause harm to others?
Question 2: What different kinds of ‘harm’ – or damage, or loss - can you think of which might be caused by someone else’s carelessness (negligence)?
Carelessness which causes harm to others is sometimes called negligence. In a legal sense, negligence is a tort (a wrongful act – other than in contract – which creates a legal responsibility, or ‘liability’). Examples of other torts include things like trespass to the person, trespass to land, and defamation of character. However, negligence is the biggest topic in the English law of tort. It is also the most important tort in practice.
Not all careless actions will be negligent (in the legal sense of creating a liability to pay damages). In order to create liability in negligence, the law must require a person to act carefully. English case law (the decisions of English courts) in the tort of negligence has been very important in forming the principles which apply for liability in negligence to arise.
Essentially, in order for liability in negligence to arise, three elements must be proved by a claimant (the person who has suffered the harm) against a defendant (the person who has been careless). If any of these elements is not proved, there will be no liability in negligence.
Question 3: What do you think ‘prove’ means here? [Think about who you have to prove your case to and what standard of proof you will need to reach to persuade them]
The three elements which must be proved in any negligence claim are:
1. That the defendant (careless person) owed the claimant (the person harmed) a legal duty to take care.
Proving that someone has been ‘careless’ is not enough. You must prove, firstly, that they owed a legal duty of care. This element is concerned with setting a ‘standard of care’ (a standard of ‘reasonable care’).
Question 4: Can you think of any clear (obvious) examples where a ‘duty of care’ (or a duty to take care) exists and would be easy to prove? Can you think of any examples where it would be more difficult to prove a duty of care exists?
2. That the defendant has breached the duty of care.
In this element, we are thinking about whether the defendant’s action has fallen below the standard of care that the law expects from the defendant. It is important to remember here that we are talking about a breach caused by the ‘fault’ of the defendant; in other words, ‘blame’. However, it is also important to remember that the ‘fault’ must be a legal fault, and not necessarily a moral one.
3. The harm (damage) suffered by the claimant must have been caused by the defendant’s breach of duty. (Causation)
In order to prove a claim in negligence, the claimant must prove that the breach caused the harm or damage suffered. There are two parts to this:
· Factual causation – that the defendant ‘factually’ caused the claimant’s harm or loss; and
· Legal causation – that any harm or loss is not too remote (remoteness); for example, was there a break in the chain of causation between the breach of duty and the harm or loss suffered?
Question 5: Why do you think the law of negligence expects both factual and legal causation (remoteness) to be proved in order for a claimant to prove their case?
Finally, here are two case scenarios. One of them is real and the other is not.
One August evening, a lady called May went out with her friend. They decided to go to a café and have a drink. May went and sat down while her friend went to the counter and ordered the drinks from the owner of the café.
May was having a drink called an ‘ice cream float’ – ice cream in a glass, with ginger beer from an opaque (so dark that you cannot see through it) bottle poured over it. The owner of the café opened the bottle. May’s friend brought the drinks over to where May was sitting.
May drank some of her ice cream float. Her friend then poured the rest of the ginger beer from the bottle. Unfortunately, a dead and decomposing (rotting) snail also came out of the bottle and into the glass.
May was shocked and upset, thinking about the fact she had already drunk ginger beer out of the bottle. She also suffered gastroenteritis – a very unpleasant
Question: Thinking about the elements that must be proved, do you think anyone in this scenario was negligent (or not), and why?
Late one evening, Alice (who is 60 years old) was walking by the river near her home. Ben, who was riding his bicycle, was coming from the opposite direction. He was cycling quite fast, because he was late for dinner.
As Ben approached Alice, his bicycle swerved slightly and he collided with Alice. The collision caused Alice to fall into the river. Alice began to scream and at that time Ben decided to ride off, because he was scared.
Colin was also walking along the river at the time. Colin didn’t see the collision, but he saw Alice in the water and heard her screaming. He decided to keep walking and did nothing to help Alice.
David, a friend of Ben’s father, was also walking along the river, although on the other side. He had seen the accident between Alice and Ben and he could see Alice in the water, screaming. He decided to jump in the river, in order to try and help Alice.
Unfortunately, David had forgotten that he could not swim very well. David soon realised that the water was very deep and he began to shout and scream for help. Alice heard him and tried to swim over and help him. Alice managed to reach David and pull him to the side of the river, but by that time David was unconscious.
Alice was scared and didn’t know what to do, so she began to bang her fists on David’s chest to try to revive him. Unfortunately, David had unusually weak ribs and Alice’s blows caused three of David’s ribs to break.
Eventually, an ambulance arrived. Both Alice and David were taken to hospital.
Alice had suffered a serious injury to her leg. She needed 12 stitches in a bad leg wound. She had also lost a very special necklace, which her husband had given her, while she was in the river.
David was in hospital for two weeks. He had developed an infection from river water that he had swallowed, which made him very ill. He had also suffered 3 broken ribs, caused by Alice hitting his chest with her fist. David’s injuries meant that he was not able to work for 12 weeks and was in a lot of pain and discomfort for most of that time.
Question: Who, if anyone, is liable to whom in negligence in the above scenario? [Think about the three elements that need to be proved for each of the people, Alice, Ben, Colin, and David]
(c) Cambridge Legal English Academy 2020