Many cases have been decided subsequent to Donoghue v. Stevenson. However, most of these precedents have been surpassed by Caparo Industries v. Dickman [1990]. This replaced the neighbour test with a three part test which questions:
- whether the consequences of the defendant’s act were reasonably foreseeable;
- whether there is a relationship of proximity between the parties, for instance, a legal relationship or physical closeness; and
- whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty.
When considering the breach of duty the courts are concerned with how much care the defendant must take. Only if the risk was foreseeable and avoidable in a reasonable sense and appropriate measures had not been taken, could one say there had been a breach. The basis of this concept is upon whether the standard of action taken was the standard expected of an ordinary reasonable man. Only if the defendant is a child, a learner or a professional will special circumstances apply. In all other cases, the court will consider relevant factors in deciding whether there has been a breach of duty. The magnitude of the risk will be assessed on the likelihood of harm occurring. There was a low risk in Bolton v. Stone [1951]. Miss Stone, standing outside her house, was stuck by a cricket ball hit from a nearby ground. The case was rejected by the House of Lords because the ball had travelled so far, and such a thing had happened only about six times in thirty years, the risk therefore was slight. Although the seriousness of the consequence is not to be argued with the probability of such an injury occurring any time soon, the cost practicality of guarding against the risk was so great that a reasonable cricket club would not have taken any further precautions to prevent such a freak occurrence.
In Watt v. Herefordshire City Council [1954] Denning LJ said one must balance the risk against the end to be achieved. If the actions of the defendant served a socially useful purpose then he may be just in taking greater risks. A fire brigade was notified of a serious road accident: a person was trapped and heavy lifting equipment was urgently required. As it happened the lorry that would usually carry the equipment was engaged in other work so the fire officer ordered it to be loaded into an ordinary lorry. On the way to the incident the equipment slipped and a fireman was injured. He sued his employers and failed. Although the risk could have been foreseen in cases of emergency the standard of care demanded is adjusted accordingly.
It is necessary for the plaintiff to show that he has suffered some loss. In this sense the law of torts differs from contract wherein a breach in contract with no loss will at least give an action for nominal damages. This will not be the case within the law of torts and therefore not within the law of negligence. Unless the plaintiff can prove that he/she has suffered some loss, whether physical, financial or otherwise, then a claim for negligence within the law of torts will not succeed.
When considering the consequences of a defendant’s wrongful act or omission, the courts will consider how sufficiently connected the loss is to the defendant’s act or omission. In other words, the courts will ask whether the loss is too remote a consequence to be recoverable. The modern test for remoteness of damage was laid down in the decision of the Judicial Committee of the Privy Council in Overseas Tankership (UK) v Morts Dock and Engineering Co. Ltd (1961), otherwise known as The Wagon Mound. The decision of this case established two principles:
- that the test when regarding culpability or responsibility for the harm, is an objective test rather than a subjective one as the law substitutes the defendant for that of a hypothetical reasonable man and makes the defendant only responsible for the damage which the reasonable man would have foreseen as a likely consequence of his act; and
- regarding the liability to compensate the plaintiff, the law requires the defendant to compensate the plaintiff only for the foreseeable result of his act. The defendant is not liable for all the direct consequences of his act, but only for those which, as a reasonable man, he should have foreseen.
The test of remoteness of damage in tort as laid down in The Wagon Mound relies upon the foreseeability of a reasonable man both in respect of culpability and liability to compensate.
With respect to Ursula’s case, we must apply the three-tier test for negligence and ask whether she owed a duty of care toward Vera, whether there was a breach of that duty and whether damage occurred as a result of this breach. If the answer is yes to each of these questions it is likely that the action of negligence will be successful resulting in damages being awarded.
We must first consider whether Ursula owed a duty of care to Vera and in doing so we should apply the principles arising from the Caparo case. The test is an objective one and we ask the question whether the consequences of Ursula’s act of sailing her windsurfer in to Vera were reasonably foreseeable. We use the reasonable man test and ask whether the reasonable man would have foreseen potential damage arising from sailing in to others. It is likely that this would be the case as it is reasonable to foresee some damage occurring to other property from this action. We must also be satisfied that there was a relationship of proximity between Ursula and Vera. Again, it is likely that this would be proved as a physical closeness could be easily proved as both Ursula and Vera were on the same lake at the same time. The final element of establishing the duty of care, that of whether such a duty is fair, just and reasonable, would not in my opinion have any objections as there seems to be no reason why such a duty should not have been in place.
Once we have established that a duty of care existed, we should take a look at whether there was a breach by Ursula of that duty. We ask if the risk was foreseeable and avoidable given the standards of the reasonable man and appropriate measures had not been taken in order for there to be a breach. A range of facts may be considered in deciding whether there is a breach by Ursula. For instance, if there is industry standards or practices such as sporting recommendations of lessons to novices or restrictions to specifics areas within the boating lake for use by windsurfers may sway the court in its decision. In my opinion, it would have been reasonable to have avoided the damage by Ursula undertaking lessons and without windsurfing when she was overtired and more prone to misjudgement. I would therefore consider there to be a breach in the duty that Ursula owed to Vera.
When discussing whether damaged was caused by Ursula we apply the principles as set out in The Wagon Mound. The test is whether the reasonable man would have foreseen that Vera’s boat would have upturned and her equipment damaged as a result of Ursula’s careless act. In my opinion, this is entirely foreseeable as she could well be expected to be travelling at some speed and a collision with a relatively small boat would result in damage both to the boat and its contents. It is not unreasonable to presume that items will be lost if a boat were to upturn and they were to fall out.
In conclusion, I would expect Ursula to be found liable for negligence to the property in Vera’s boat. In fact, there is reason to argue a case for Res Ipsa Loquitur (‘the facts speak for itself’). This principle applies wherever it is so unlikely that such an accident would have happened without the negligence of the defendant that the court could find, without further evidence, that it was so caused. If this were applied, the court must satisfy two conditions; that the activity causing the harm was wholly under the control of the defendant, and that the accident was one which would not have happened if proper care had been exercised. It is my opinion that both of these conditions would be satisfied when applied to Ursula’s negligence.
Bibliography
English Law, Tenth Edition - Denis Keenan
