3.2 Explanation of the nature of liability in negligence

If all three things above exist – person is liable.

3.2.1 Owed a duty of care

The doctrine of duty of care includes four rules:

1. Cannot be predicted

2. Are you doing your actions affecting other people?

3. Was that reasonable?

4. Public policy

Duty of care for economic loss

Do you owe a duty of care for financial loss? The principle is that you can claim for economic loss directly connected to physical damage, but not for unrealised profits.

A good example of duty of care for economic loss is case about lobsters called Muirhead v Industrial Tank Specialities Ltd 1986. Man has bought lobsters in the summer when they are cheap and wanted to resell them in the winter when they are rare and expensive. He put them in a tank with the pump – so they can live with oxygen. As it turned out the pump was bad quality and all lobsters died. Man wants to sue company that produced pump and get a compensation for future profit, but according to the law he can get money only for the pump and spent money for lobsters.

Continued occupiers liability

According to the statute – (Occupiers Liability Act 1957) – an occupier owes a duty of care to all visitors to the premises. Visitors include employees, customers, and anyone else with reason to visit, for example, trade man. The occupier is the person who has control of the premises, not necessary the owner. The occupier can discharge this duty by taking reasonable measures, and/or giving warning.

3.2.2 Breach of duty of care

In the court you have to show that a duty of care was breached. One key fact is that your standard of care should be the same as that of any reasonable person doing the same thing. e.g. electrician should be as good as a professional electrician

A good example of the standard of care is Nettleship v Weston (1971) case where the defendant was a learner driver who crashed and injured the passenger, despite doing her best to control the car. The standard required of a learner driver is the same as that of any other driver. So, being a learner driver s not a defence.

Continued principles affecting standard of care

Particular skill if you claim to have a professional skill you should be able to achieve the level of a professional with that skill. Lacks of skill – peculiarities or disabilities of the defendant are not relevant. No hindsight – the test is one of knowledge and general practice existing at the time, not hindsight or subsequent change of practice. Body of opinion – a claim against a professional person will fair if he or she can point to a body of professional opinion that supports the approach taken.

Vulnerability – at particular risk. Example of vulnerability is Paris v Stepney 1951 case. It is about one-eyed mechanic who could not be employed as a mechanic because he is at particular risk already – if he loses his only eye he will be blind. If someone is vulnerable you owe them a greater duty of care.

Res ipsa loquitur – the facts speak for themselves (helps when making a claim).

You do not have to show how the breach occurred, but you do have to show that a breach did occur. If you can show that:

1. the cause of the breach was under the control of the defendant

2. the damage would not have happened if they had taken proper care

then you can claim Res ipsa loquitur: it must be your fault because the accident would not have happened if you had done you job properly. The details are not important.

e.g. Scott v London & St Katharine Docks Co 1865: a man was passing in front of the defendant`s warehouse and six bags of sugar fell on him. It must be presumed that the fall of the bags of sugar was due to want of care on the part of the defendants.