Torts: How Satisfactorily have the courts used the control devices of duty of care, breach of duty, and causation of damage to limit liability in the tort of negligence. Discuss with reference to the following types of claim: personal injury, property dam

    The courts incorporate criteria to help them decide whether or not to impose a duty of care. Indeed, policy arguments against imposing a duty are crucial in limiting the number of cases. The case of Stovin v Wise6 illustrates this point, whereby the public body simply failed to provide a benefit in failing to remove a bank of earth, causing personal injury, and were held not to owe a duty of care. Whilst ensuring that these public bodies have an immunity so as to enable them to carry out their operational duties, perhaps this case demonstrates how it can lead to injustice. However, public bodies only enjoy a limited immunity, as can be seen in the emergency services case of Knightly v Johns7, where the police officer was deemed to be wholly responsible for his direct harm in negligently failing to close the tunnel. Also, the fire service undertakes no responsibility to the public at large, and the ambulance service only accepts a duty when they accept a call for help8 

    In terms of Psychiatric loss, the dictum of Lord Denning in Hinz v Berry9 defines the circumstances whereby a duty of care can arise. The Caparo three part test determines whether there is a duty of care in the context of psychiatric damage. The case of Ravenscroft10 utilises this concept and is an example of the law taking back control of proximity in order to prevent the floodgates opening. Therefore, in terms of proximity, there must be a ‘close tie of love and affection,’ and there must be proximity in time and space, and it must be fair, just and reasonable to impose a duty, for a claim to succeed in psychiatric damage. A recent example of the increasing rigidity of the law can be seen in D v East Berkshire NHS Trust11 where the House of Lords said that the NHS Trust could not owe a duty to the parents because this would interfere with the primary task (identifying child abuse).

Breach of the duty of care:

    If there is evidence of breach of duty and if the defendant caused the damage and if the type of damage sustained (whether it be personal injury, property damage or psychiatric loss), was reasonably foreseeable, then the breach of duty requirement is fulfilled. The standard of care is an objective standard. In Wells v Cooper12, it was held that the defendant exercised the degree of skill which could be expected of a reasonably competent carpenter, despite his errors of judgement. However, when there has been a breach of duty caused by the negligence of a public body, the law is not concerned with what is fair, i.e. the courts use this device as a means of allowing these bodies to escape liability. Indeed, in Roe v Ministry of Defence13, whilst Denning focussed on achieving a just outcome, applying the notion of Res Ipsa Loquitur, this was rejected on the basis that every surgical operation is attended by risks. Furthermore, Res Ipsa Loquitur cannot be applied where the cause of the incident is unknown to the claimant. The Bolam test14 is the leading authority concerning the breach of duty in the context of medical negligence. McNair J stated;

    ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men.’

    The courts also take into account the practicality of taking precautions i.e. in the case of Latimer v AEC15, it would have been unnecessary to attach a breach of duty because a reasonably careful employer would not have shut down the factory. In the case of emergency action, the courts are reluctant to impose negligence due to public policy as in Marshall v Osmond16, where it was held that the police officer did not owe the claimant the same duty of care as to other innocent users of the highway.

    In terms of property damage where no personal injury has resulted, the courts appear to be less reluctant in establishing negligence. The Wagon Mound (no 2)17 is the leading authority concerning the reasonable man, whereby it was held that the risk of fire would have been present to the mind of a reasonable man in the shoes of the ship’s engineer, who was found liable (despite the risk being exceptionally small). c.f. Bolton v stone18 where the defendant escaped liability. Also, in the case of Rigby v Chief Constable of Northamptonshire19, it was concluded that the defendants had been negligent in firing the gas canister when no fire fighting equipment was present. c.f. the personal injury case of Marshall v Osmond, whereby no negligence was attributed to the police officer who, like the defendants in this case, made an error ‘in the heat of the moment.’

    When we consider psychiatric damage, liability tends to spiral out of control when the courts become concerned with equity as in Whitmore20 (where the claimant brought an action for ordinary shock) and the expansion of the law, as seen in Ravenscroft, whereby the claimant did not witness either the accident nor its immediate aftermath. This decision was subsequently reversed. In White v Chief Constable of South Yorkshire21, the police officers sued as employees, i.e. the chief constable breached his duty to protect his officers by failing to protect them from physical harm. Although this duty did not extend to liability for psychiatric damage in the absence of physical injury, most of these cases were settled as most of the police officers were classed as primary victims. If we look at the case of Walker v Northumberland County Council22, it can be suggested that the law did, at one time, expand significantly i.e. the suffering of a nervous breakdown was deemed to be foreseeable due to the employers negligence and breach of their duty. This was a generous approach and the courts quickly contracted in Southerland v Hatton23 via Lady Justice Hale’s sixteen principles, which limited the conditions for successful claims.  

Causation of damage:

    Lord Wright in the Yorkshire Dale Steamship24 case understands causation as ‘…the man in the street, and not as either the scientist or metaphysician, would understand  it.’  The principle challenges facing the courts in determining causation in law are concurrent causes and consecutive causes. The ‘but for’ test is crucial in limiting the success of claims in negligence. Indeed, in McWilliams v Sir William Arrol25, whilst the respondents’ breach of duty had been established, the causal connection between the breach and the injury could not be shown i.e. ‘but for’ the breach, he would still have fallen. However, the exceptional case of Fairchild v Glenhaven Funeral Services26 seems to cast this notion into doubt based on its modified approach to proving causation i.e. materially increasing the risk to an employee can be taken as proof that each employer had materially contributed to it. However, where there have been consecutive causes the law can be harsh and unjust, as in Baker v Willoughby27, where the claimant’s subsequent injury acted so as to diminish the respondent’s liability in damages for his initial negligence.

   Determining whether the breach of a duty will suffice a claim in negligence, depends upon whether the defendants’s actions could be said to have broken the chain of causation. Indeed, in the property damage case of Roberts v Bettany28, the chain was broken by the fire service in extinguishing the fire which caused the damage, as opposed to the defendants original negligence, which constituted a Novus Actus Interveniens.

    The Current law on the remoteness of damage can be found in The Wagon Mound (No 1)29 and the ‘eggshell skull’ principle inherent within this notion demonstrates the reason why the Re Polemis case is no longer regarded as good law i.e. to demand more than the probable consequences is harsh. If the damage which occurred was entirely different from the kind which could have been foreseen, there is no cause of action in negligence. However, the damage cannot be deemed to be too remote where only the extent of the damage could not have been foreseen, so long as the damage itself could be foreseen, as in the Parsons (Livestock) case30.

    In conclusion, in terms of psychiatric loss, where the claimant must suffer from a recognised psychiatric illness, the issue is one of remoteness of damage and includes the Wagon Mound remoteness of damage rule. In the context of psychiatric damage, the ‘Egg Shell Personality’ clearly stipulates that only the type not the extent of the damage needs to be foreseeable to constitute a breach of duty. The test is the person of ‘ordinary phlegm’ The fact that a claimant was particularly susceptible to psychiatric damage is irrelevant, provided that a person of ordinary phlegm would have also suffered psychiatric damage in the same circumstances. Indeed, the case of Simmons v British Steel plc31 shows how far courts will go in attracting foreseeability and seems to encourage liability in the tort of negligence.

Bibliography

• Dr Vickneswaran Krishnan, Law of Tort - 101 Questions & Answer Series (2nd ed., Old Bailey Press, 2002).

• Richard Kidner, Casebook on torts (9th edition).

• Michael A. Jones, Textbook on Torts (8th ed., Oxford University Press, 2002).

• Lecture notes and handouts

   

     

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