Lecture # 2 Liability in Negligence

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Lecture # 2

Liability in Negligence

By: Salik Aziz Vaince

[0313-7575311]

Introduction

Negligence is the breach of duty to take care. It is carelessness in a matter in which carefulness is

made obligatory by law. It essentially consists in the mental attitude of undue indifference with

respect to one’s conduct and its consequences wherever a person is under a duty to take care; he is

bound to take that amount of care which is considered reasonable under the circumstances.

I can say simply, Negligence is the failure to exercise the standard of care that a reasonably prudent

person would have exercised in a similar situation; any conduct that falls below the legal standard

established to protect others against unreasonable risk of harm, except for conduct that is

intentionally disregardful of others rights.

Negligence is the most important tort in modern law. It concerns breach of a legal duty to take care,

with the result that damages are caused to the claimant. Just a few examples of the type of case which

might be brought in negligence are people injured in a car accident who sue the driver, or patients who

sue doctors when medical treatment goes wrong.

Torts other than negligence are normally identified by the particular interests of the claimant that they

protect. For example, nuisance protects against interference with the claimant’s use and enjoyment of

land, while defamation protects against damage to reputation. By contrast, negligence protects

against three different types of harm: Personal injury; Damage to property; Economic loss.

In practice, the rules of the tort may differ according to which type of harm has been suffered, but all

of them are protected by negligence.

The tort of negligence has three main elements:

- The defendant must owe the claimant a duty of care;

- The defendant must breach that duty of care;

- That failure must cause damage to the claimant.

Meaning

Failure to act with the prudence that a reasonable person would exercise under the same

circumstance.

Negligence (Latin negligentia, from neglegere, to neglect, literally "not to pick up something") is a

failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The

area of tort law known as negligence involves harm caused by carelessness, not intentional harm.

The failing to take care as is necessary, show some attention.


Definition of Negligence

Conduct that falls below the standards of behavior established by law for the protection of others

against unreasonable risk of harm. A person has acted negligently if he or she has departed from the

conduct expected of a reasonably prudent person acting under similar circumstances.

In order to establish negligence as a Cause of Action under the law of TORTS, a plaintiff must prove

that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform

to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to

the plaintiff, and the plaintiff was, in fact, harmed or damaged.

Negligent tort means a tort committed by failure to act as a reasonable person to someone to whom

s/he owes a duty, as required by law under the circumstances. Further, negligent torts are not

deliberate, and there must be an injury resulting from the breach of the duty. Examples of negligent

torts are car accidents, slip and fall accidents, and most medical malpractice cases.

Simple definition: Negligence is the breach of the duty to take care.

Austin: ‘in cases of negligence, the party performs not an act to which he is obliged, he breaks the

positive duty’.

Essentials of a suit for negligence

The plaintiff must prove the following essentials.

1. Legal duty

That the defendant was under a legal duty to exercise due care and skill, as there cannot be any

liability for negligence unless there is a breach of some duty.

2. Duty toward the plaintiff

That the duty was toward the plaintiff

3. Failure to perform duty

That defendant failed to perform his duty.

4. Damage

That breach of such duty by the defendant caused damage to the plaintiff.

Stone Vs Bolton 1951

Facts: D was a cricket club from where a cricket ball was struck over a 17-feet fence. It hit C who was

standing on the pavement outside her house. The ball must have travelled about 100 yards, and such a

thing had happened only about six times in thirty years.

Held: The risk was so slight and the expense of reducing it so great that a reasonable cricket club would

not have taken any further precautions.

C lost

Kinds of negligence

There are different types of negligent actions including the following:

Gross Negligence – in these cases, the act or inaction was so reckless that it showed lack of

concern for the injuries that may result. There are cases wherein it is necessary to differentiate “gross

negligence” from ordinary negligence to overcome legal obstacles. Gross negligence is a much more


serious form of negligence that goes step further than simple careless action. For example: Hospital

staff does not change a surgery patient’s bandages for several days, resulting in a serious infection.

Children and Negligence – children do not have the same mental capability as adults. A

minor’s negligence will be evaluated against a reasonably careful individual who is the same age will

do under the same circumstances. Very young children (under the age of 7) are presumed to be

incapable of negligence.

Comparative Negligence – this applies when the plaintiff is marginally responsible for his own

injuries. The plaintiff may be required to pay a percentage of the damages in a comparative

negligence case as, an injury may determine that the damages amounts to £100,000 but if the plaintiff

is 30% at fault, then the defendant will only be asked to pay£70,000. Example: You drive through a

green light but are struck by someone running a red light. You sustain serious injuries because you

were not wearing a seatbelt. Because you were partially responsible for your injuries.

Contributory Negligence – although this type of negligence is being abandoned in a number of

jurisdictions, it still exists. Where contributory negligence applies, wherein the plaintiff has contributed

to his own injury in any way, he is barred from getting damages. As in above example because you are

not wearing seatbelt.

Mixed Contributory and Comparative Negligence – this combination applies where a

plaintiff is less than fifty percent at fault for his injuries. A plaintiff who is more than fifty percent at

fault may not get damages or may only get a percentage (from economic damages) against defendants.

Vicarious Liability – it occurs when a person or organization is held liable for the actions of

another. This usually applies in an employment situation wherein the employer is responsible for the

actions of his employees. This is also true in the case of pet owners and parents (who may be held

liable for the acts of the children). This form of liability is often used in cases where young children or

minors caused a serious injury, or a dog attack.

Liability in negligence

Definition

General: The word liability is used to describe the condition of a person who was under a duty to

perform.

Salmond: “Liability or responsibility is the bond of necessity that exists between the wrong doer and

the remedy of the wrong”.

Joint and several liability

In some cases, a claimant suffers damage as a result of the activities of more than one person. For

example, a situation in which two motorcyclists, both of them driving negligently, crash at a zebra

crossing, injuring a pedestrian who is crossing the road. Who does the pedestrian sue, and how does

the law make sure each party bears a fair share of both blame and the cost of damages?

To deal with these and other cases involving more than one tortfeasor, the law has developed three

different forms of liability.


1. Independent liability

Arises where the victim is caused damage by two completely separate torts.

Each tortfeasor is liable only for the damage they caused.

2. Several liability

Arises where two or more tortfeasor act independently, but the combined effect of their acts is

damage to the claimant.

Each tortfeasor is liable for all of the damage, but the claimant cannot recover twice.

Vision Golf Ltd. vs Weightmans 2005

3. Joint liability

Arises where the same wrongful act is committed by two or more people acting together, or where

one person/organization is vicariously liable for another.

The claimant can sue all or any of them, but can only recover the full amount once.

Brooke vs Bool 1928

Successive actions

Under the Civil Liability (Contribution) Act 1978, where there is joint or several liability a claimant who

sues one tortfeasor but cannot enforce the Judgement can bring a later action against another of the

tortfeasor.

Setting out of court with one tortfeasor also ends claims against the others.

Jameson vs Central Electricity Generating Board 1999.

Release of a joint tortfeasor

If a claimant releases one tortfeasor from liability, this releases the other(s) too.

Contribution

Where liability is joint or several and one or more tortfeasor’s are not sued, the Civil Liability

(Contribution) Act 1978 allows those who are sued to recover a contribution from them.

The courts decide the contribution on the basis of what is just and reasonable, regarding each party’s

responsibility for the damage.

Fitzgerald vs Lane 1988

Vicarious Liability

As a matter of Justice one who commits wrong is a wrongdoer and he should be held responsible for

that wrong. However, there are circumstances where one is held liable for the wrongs committed by

others. This rule is called Vicarious Liability.

The word Vicarious is taken from the word VICAR which means representative of God. According to

Salmond, “it is a liability without fault”.

Vicarious liability is a form of joint liability, which arises where there is a relationship between the

tortfeasor and another that justifies making the other liable for the tortfeasor’s acts.

In most cases, vicarious liability arises when a tort is committed in connection with the tortfeasor’s

work, with the employer vicariously liable for an employee’s actions.

The courts use a two stage test to judge whether vicarious liability should apply:


1. Was the tortfeasor an employee of the defendant?

2. Was the tort committed in the course of their employment?

Who is an employee?

The courts distinguish between employees and independent contractors, but modern working

practices mean it is not always easy to tell which group a person falls into.

Tests used by the courts include:

1. Who had control over the work

2. The terms of the contract

3. Whether the tortfeasor is in business on his own account

Ready Mixed Concrete (South East) Ltd. vs Minister of Pensions 1968

Hall vs Lorimer 1992

Ferguson vs Dawson 1976

Carmichael vs National Power plc 2001

However no single test is decisive

Problematic situations include:

• Agency workers

• Montgomery vs Johnson Underwood Ltd. 2001

• Loans of employees

• Mersey Docks and Harbour Board vs Coggins & Griffiths (Liverpool) Ltd. 1947

• Viasystems (Tyneside) Ltd. vs Thermal Transfer (Northern) Ltd. 2005

In the course of employment

Employers are only liable where the tort was committed during the course of employment.

• A wrongful act authorised by the employer, or an unauthorized way of doing an authorised

act will be in the course of employment.

• Century Insurance vs Northern Irelenad Road Transport 1942

• Bayler vs Manchester railway Co 1873

• The employer need not have permitted the act.

• Employers can be liable for prohibited acts, if the prohibition applies to the way the job is

done rather than the job itself.

• Limpus vs London General Omnibus Co 1862

• Twine vs Bean’s Express Ltd. 1946

• Rose vs Plenty 1976

• Employers can be liable for criminal acts, if they are so closely connected to the job that it is

fair to impose liability.

• Lloyed vs Grace, Smith & Co 1912

• Warren vs Henley’s Ltd. 1948

• Lister vs Hesley Hall 2001

• Dubai Aluminium Co Ltd vs Salaam 2002

• Bernard vs Attorney General of Jamaica 2004


• Cravell vs Carroll and another 2008

• Mattis vs Pllock 2003

• Credit Lyonnais Bank Nederland vs Export Credit Guarantee Department 1999

• N vs Merseyside Police 2006

• Employers are not liable for acts done by employees which have nothing to do with their

work, even if in work time.

• Heasmans vs Clarity Cleaning Co 1987

• Hilton vs Thomas Burton (Rhodes) Ltd. 1961

• Whatman vs Pearson 1868

• Storey vs Ashton 1869

• Majrowski vs Guy’s and St Thomas NHS Trust 2005

Employers indemnity

An employer sued for an employee’s tort can sue the employees in turn, but this rarely happens in

practice.

Lister vs Romford Ice and Cold Storage 1957

Independent contractors

Employers are not vicariously liable for the torts of independent contractors, but can be jointly liable

with them if:

• The employer owes a non-delegable duty to the claimant; and

• The contractors act puts them in breach of that duty.

Employers may also be liable where a duty is delegable, but they have not taken reasonable steps to

ensure the contractor is competent.

Padbury vs Holliday and Greenwood Ltd 1912

Reasons why vicarious liability is imposed

1. Control of employees

2. Benefits to employers

3. Resources

4. Preventing negligent recruitment

5. Promotion of care

Vicarious Liability in Criminal Law

Vicarious liability is not common in Criminal Law as a person cannot be punished for a Crime

Committed by another.

Vicarious Liability in Civil Cases

Civil law recognizes the principle of vicarious liability. The right of the injured party to receive redress

continues against the representative of the dead.

How Vicarious Liability arises?

Vicarious liability of law of tort arises,

1. Subsequent ratification by previous authority

A person is liable for the acts of another person if that person has committed that act with the

previous authority of such person or such persons subsequently ratified the acts of that person.


Conditions: Following conditions must be satisfied to hold a person liable for the act of another on the

ground of ratification,

• Only such acts bind the principal, what is done on his behalf.

• The person ratifying the act must have knowledge of tortuous and character of the act.

• Illegal and void acts cannot be ratified.

2. Abetment

A person who abets to commit the tort is responsible for that act.

3. Relationship

Liability for the acts of others may arise out of existing special relationship between them.

Master and Servant

A master is responsible for every such act of the servant as it is committed in the course of

employment. This is based on the Latin maxim, “let the superior be responsible”.

Cases where master is not liable for the tort of his Servant:

Following are the cases where a master is not responsible for the acts of his servant,

1. Case where servant departed from the instructions of his master.

2. Where servant delegated his duties.

3. Case where act is done outside the course of the service.

Principal and Agent

Generally, vicarious liability does not apply to the principal and agent relationship.

It can however, become be established where the principal appoints an agent to represent him or her

in dealings with third parties.

Company and Director

A company is liable to third person for tort arising from doing of certain acts by its directors.

Firm and Partner

A firm is liable for torts committed by a partner in the ordinary cause of the business of the firm.

Guardian and Ward

Guardians are not personally liable for torts committed by minor under their charge but guardians can

sue for personal injuries to minor under their charge on their behalf.

Strict Liability

Wrongs which do not require wrongful intent of negligence are known as the wrongs of strict liability.

In such cases, a person is punished for committing wrongs even if he has not guilty mind.

Meaning: Absolute legal responsibility for an injury that can be imposed on the wrongdoer without

proof of carelessness or fault.

Concept: Strict liability is a tort law concept that imposes liability for harm suffered without

requiring proof of negligence. It is commonly used in product liability law. State statutes also may

impose strict liability in other contexts, such as conditions or activities that are abnormally dangerous.

Transporting explosives might be an example of such an activity for which strict liability is imposed. A


few states have passed special statutes that impose strict liability for harm caused by domestic animals

with no known dangerous propensities.

Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness

depending on the jurisdiction within which the claim is based. In a strict liability theory of liability, the

degree of care exercised by the manufacturer is irrelevant, as long as the product is proven to be

defective, they will be held liable for the harm resulting from the defect.

Definition. Civil (tort): Liability incurred for causing damage to life, or property by a hazardous

activity or a defective product, without having to prove that the defendant was negligent or directly at

fault. It arises not from any wrongdoing but from the fact of the activity or product being inherently

hazardous or defective.

Criminal: Liability imposed by a statute without the necessity of proving criminal intent (Mens rea),

and intended to absolutely forbid certain acts such as preparation and sale of adulterated or

contaminated food. Also called absolute liability or liability without fault.

• Reasons for strict liability

Strict liability is imposed chiefly where it will be hard to prove by evidence the intention or negligence

of the offender.

• Strict liability in civil cases

Mens rea is generally irrelevant in civil proceedings as the object is to compensate the plaintiff for his

loss and not to punish the defendant, so the rule of strict liability is generally applied in civil cases.

• Strict liability in criminal cases

Generally in criminal cases, there is no criminal liability unless Mens rea is present and strict liability is

not imposed.

Exceptions

It is usually said that there were only two exceptions at common law to the rule requiring Mens rea or

where the rule of strict liability is imposed.

Public nuisance

In public nuisance any employer might be held liable for the act of his employee even though he

himself did not know it had taken place.

Criminal liable

In criminal liable a newspaper proprietor is liable for libels published by his employees.

R v Woodrow (1846)

This was the first ever case on strict liability. D is found by police with adulterated tobacco; he is

charged and convicted under The Adulteration Act 1842. The court looked at the Adulteration Act and

it never stated that it needs any Mens rea.

Pharmaceutical Society of Great Britain v Storkwain Ltd [1986]

This is the most famous case of strict liability. The Medicines Act 1968 s.58 pt.2 'it is an offence to give

anyone any medical product unless it’s with a prescription from a medical practitioner'. A customer


goes into D's chemist and uses a forged prescription to get some medication. D has no reason to

believe it was forged,

D is arrested and charged under The Medicines Act 1968 s.58 pt.2.

Winzar v Chief Constable of Kent [1983]

D is intoxicated and is brought to hospital by an ambulance; he is released from hospital a few hours

later but stays in the hospital causing a nuisance. Police were called to remove him; they dragged him

outside and arrested him for being intoxicated on a public highway. He is found guilty under the

Licensing Act 1872 and appeal quashed.

R v Prince [1875]

D takes a girl out of possession of her father, D believes she is about 18 (she is actually 15). He is

charged and convicted under The Offences against the Persons Act 1861 s.55. Actus Reus - taking the

girl

Mens rea - knowing she is in her father’s possession

Strict Liability - she was under age.

Harrow LBH v Shah and Shah [1999]

D1 and D2 own newsagents and sell national lottery tickets. It is illegal to sell national lottery tickets if

you’re under 16; all staff had training on this. There were signs in the shop and the staff room

indicating this and were told if in doubt ask for i.e. a member of staff sells a ticket to a 13 year old boy.

At the time D1 and D2 were not on the shop floor, they are charged under The National Lottery Act

1993. The magistrates said there was no crime, the prosecution appealed by way of case stated. HoL

sent it back for a retrial,

the magistrates said there was no Mens rea and were found guilty with a £2,000 each.

Tortfeasor

A wrongdoer; an individual who commits a wrongful act that injures another and for which the law

provides a legal right to seek relief; a defendant in a civil tort action.

Joint Tortfeasor

Two or more individuals with joint and several liabilities in a tort action for the same injury to the same

person or property.

Two or more persons whose negligence in a single accident or event causes damages to another

person. In many cases the joint tortfeasor are jointly and severally liable for the damages, meaning

that any of them can be responsible to pay the entire amount, no matter how unequal the negligence

of each party was.

To be considered joint tortfeasor, the parties must act together in committing the wrong, or their

acts, if independent of each other, must unite in causing a single injury. All who actively participate in

the commission of a civil wrong are joint tortfeasor. Persons responsible for separate acts of

Negligence that combine in causing an injury are joint tortfeasor. The plaintiff has the option of suing

one or more of the tortfeasor, either individually or as a group.

If the plaintiff is awarded damages, each joint tortfeasor is responsible for paying a portion of the

damages, based on the percentage of the injury caused by his or her negligent act. The defendant who


pays more than his or her share of the damages, or who pays more than he or she is at fault for, may

bring an action to recover from the other culpable defendants under the principle of contribution.

Example: Harry Hotrod is doing 90 miles an hour along a two-lane road in the early evening; Adele

Aimster has stopped her car to study a map with her car sticking out into the lane by six inches. Hotrod

swings out a couple of feet to Miss Aimster's vehicle, never touches the brake, and hits Victor Victim,

driving from the other direction, killing him. While Hotrod is grossly negligent for the high speed and

failure to slow down, Aimster is also negligent for her car's slight intrusion into the lane. As a joint

tortfeasor she may have to pay all the damages, particularly if Hotrod has no money or insurance.

However, comparative negligence rules by statute or case law in most jurisdictions will apportion the

liability by percentages of negligence among the tortfeasor (wrongdoers) and the injured parties.

Bartlett v New Mexico Welding Supply, Inc.

Facts: There was a three-way accident where P's car was hit by D's truck. P was not at fault. The

accident was set off by the actions of another car, but the identity of the driver was never ascertained.

Jury found unknown driver and D were both negligent and liable in the percentages of 70% and 30%

respectively.

P moved to be granted the entire amount from D.

Procedural History:

• Trial court found for P for 30%, denied P's motion for 100%, granted new trial.

• NM COA reversed new trial, reinstated 30% for P from D.

Issues: In a comparative negligence case, is a concurrent tortfeasor liable for the entire damage caused

by concurrent tortfeasor? (Does J&S liability operate in a comparative negligence case?)

Holding/Rule: In a comparative negligence case, a concurrent tortfeasor is not liable for the entire

damage caused by concurrent tortfeasor. J&S liability does not operate in a comparative negligence

case.

Reasoning:

Most jurisdictions retain J&S liability in comparative negligence cases. J&S has been retained on two

grounds, neither of which is defensible…

- The concept that a P's injury is indivisible.

This concept is obsolete and based upon the old system of contributory negligence.

- In order to favor Ps; a P should not bear the risk of being unable to collect his

judgment.

The P should have to bear the risk of a D being financially insolvent.

Dissent: None.

Notes:

J&S is based upon two principles, both of which have been changing…

- Contributory negligence

- Contribution among joint tortfeasor

It is being urged now by courts that comparative negligence should be applied to compare the

negligence of the Ds to each other as well as to compare the negligence of the Ds to the P and that


each D be responsible for only that part of the injury that the percentage of fault apportioned to him

bears to the total negligence of all tortfeasor.

Is it appropriate to determine the percentage attributable to a nonparty or just to the parties to the

matter? What about immune Ds?

Some jurisdictions have abolished J&S liability.

Others have modified it through tort reform so that it does not apply…

- To noneconomic damages like pain and suffering or emotional distress (CA)

- To Ds whose percentage of fault is below a certain threshold (IA, TX)

- To certain types of Ds (HI - gov't entities)

- To certain types of actions (ID - only to intentional torts, medical products)

Class Activity

Discussion based on discovering the meaning of a ‘tort’ and the reasons why the law is active in this area. Develop this into discussion based on the idea of why it matters that those with responsibilities should discharge them properly by consideration of what happens when this does not occur. Consider the role of the law as an arbiter, enforcer and protector.

Essay task – Why should I have a legal duty to another person? Use this to explore ideas and to consolidate skills of essay writing so as to build a coherent and logical argument supported by factual knowledge.

Research task and presentation – What is meant by vicarious liability and how does it work? Use this task to think about different aspects of negligence – both rights and duties that exist for an employer and an employee. Use the case of Lister & Others v Hesley Hall Ltd (2001) as a starting point.

Students should consider the position in vicarious liability for certain groups of professionals – such as

those working in medical services. Discuss how the law works and consider whether it is both fair and

effective for all the parties concerned.

Questions from Past Papers

Q1. ‘Considering that compensation is generally seen to be its most important function, the law of negligence is remarkably inefficient in this area and, in practice, only a small proportion of victims of harm get compensation for it.’ (Elliott and Quinn: Tort Law, 1999.)

Critically assess the extent to which this view can be substantiated. [May/June 2004] Q2. ‘Vicarious liability conflicts with the basic principle in tort that wrongdoers should be liable for

their own actions.’ Evaluate the reasons why such liability is imposed. [October/November 2005] Q3. ‘Torts generally require an element of fault to be present before liability is established.’ Evaluate the arguments for and against this principle of English Law. [May/June 2006] Q4. The case of Spartan Steel v Martin (1972 All ER 557) illustrates that the distinction between pure

economic loss and other kinds of loss can be a very fine one – and one that is difficult to justify. (Elliott & Quinn: Tort Law, 2003) With reference to case law, critically assess the extent to which this statement is true of the tort of

negligence. [May/June 2006] Q5. ‘The test for remoteness of damage is essential, but its application is too uncertain in an action in

negligence.’ Critically evaluate the truth of this statement. [May/June 2007] Q6. The maxim of res ipsa loquitur (‘the thing speaks for itself’) suggests that the defendant has been

negligent.


Identify the circumstances under which this maxim might be used, discuss its effect and assess its value to a claimant. [May/June 2008]

Q7. Contributory negligence and volenti non fit injuria are very similar in nature and effect. Analyse these defences in tort and explain the extent to which you agree with this statement.

[October/November 2008] Q8. With reference to case law, critically assess the extent to which negligence can be considered to be

a fault-based tort. [May/June 2009] Q9. The basic principle exists in tort that wrongdoers should be liable for their own actions. Discuss the reasons why vicarious liability is sometimes imposed on others. [October/November 2009] Q10. The law suggests that, unless a negligent act causes physical damage to something or someone,

no compensation can be recovered. With reference to decided cases, trace the development of legal principles relating to the recovery of

pure economic loss and assess the extent to which the principles are fair to innocent victims. [October/November 2010]

Q11. Evaluate the usefulness of the current rules relating to liability for secondary victims in the tort of negligence. [May/June 2011]

Q12. Analyse critically the circumstances under which a novus actus interveniens (new act intervening) may affect a defendant’s liability in the tort of negligence. [October/November 2011]

Q13. Explain the difference in law between economic loss and purely economic loss in the tort of negligence. Critically analyse whether or not the distinction is truly justifiable with reference to case law. [May/June 2012]

Q14. Contributory negligence and volenti non fit injuria are so similar in nature and effect that it is unnecessary for both defences to exist. Critically analyse the defences and discuss the extent to which you agree with this statement. [October/November 2014]

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Lecture # 2 Liability in Negligence