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LAW OF TORTS Negligence

Types of Interests

Contract

Financial (expectation and reliance loss)

Tort

Property Person

Economic loss

“Consequential upon”

Spartan Steel

TORT Of NEGLIGENCE

DUTY OF CARE

2-Stage TestSpandeck

Proximity

Policy“Floodgates”

BREACH OF DUTY

Standard of Care(Guidelines)

Level of skill

Likelihood of injury

Seriousness of injury

Cost of avoiding risk

Utility of the Act

RESULTING DAMAGE

Causation in fact

Causation in law

DEFENCES

Volenti

ContributoryNegligence

1 Test – Reasonable Care

“Floodgates” argument (Policy)

Floodgate means a gate used to control the flow of water (usually used in dams and reservoirs)

Cardozo J in Ultramares Corp v Touche (1931)

“… liability in an indeterminate amount for an indeterminatetime to an indeterminate class.”

CAT

Spartan Steel v Martin (1972) CA

D’s employees were digging up a road when they negligently damaged an electric cable supplying electricity to P’s factory. P were without electricity until the board was able to repair the cable and immediately the power supply failed, they had to pour molten metal out of their furnace to prevent the metal solidifying and damaging the furnace. As P could not keep the metal at the correct temperature and complete the "melt," the metal depreciated in value by £368 and they lost a profit from the sale of the metal from that melt of £400. They could also have completed four further melts during the power cut and their loss of profit from those melts was £1,767. P sued D in negligence and claimed all three sums as damages, a total of £2,535. D admitted negligence and liability for the physical damage of £368 but denied liability for the plaintiffs’ economic loss.

Lord Denning: “If the defendant is guilty of negligence which cuts off the electricity supply and causes actual physical damage to person or property, that physical damage can be recovered … and also any economic loss truly consequential on the material damage.”

Melt 1

• Physical damage• LOP

Could have completed Melt 2

• No physical damage (pure economic loss)

• LOP



• LOP



• LOP



• LOP

Spartan Steel v Martin (1972)

1. Duty of care

Donoghue v Stevenson (1932) HLMrs D’s friend bought a bottle of ginger beer for her. Ginger beer

contained a partially decomposed snail. Consequently, Mrs D alleged she suffered gastroenteritis. Mrs D could neither sue vendor or manufacturer in contract since no contractual nexus.

HL had to determine whether manufacturer owed a duty of care to consumer.

Held: Yes. The manufacturer owed a duty of care to Mrs D (consumer) to take reasonable care in the manufacture of the drink so as not to injure her.

(“Neighbour” /Atkinian principle)

The Neighbour Principle – What is the Duty of Care?

The rule that you are to love your neighour becomes in law, you must not injure your neighbour … You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

Lord Atkin, Donoghue v Stevenson (1932) HL

Donoghue v Stevenson (1932)Reasonable foreseeability

“Persons so closely and directly affected”

Anns v Merton LBC (1978)2-stage test

(1) Proximity;(2) Policy

Murphy v Brentwood and Caparo v Dickman (1990)3-stage test

(1) Proximity(2) Foreseeability

(3) Policy

Spandeck (2007)Restatement of 2-stage test

Preliminary enquiry of factual foreseeability(1) Proximity

(2) Policy

Singapore &Australia departfrom English position

Singapore Court of Appeal said:

“[A] coherent and workable test can be fashioned out ofthe basic two-stage test premised on proximity andpolicy considerations, if its application is preceded by apreliminary requirement of factual foreseeability … [T]his test is to be applied incrementally, in the sense thatwhen applying the test in each stage, it would be desirableto refer to analogous situations to see how the courts havereached their conclusions in terms of proximity and/or policy… We would admit … that this is basically a restatementof the two-stage test in Anns, tempered by the requirementof factual foreseeability.”

Spandeck (2007) SGCA

Threshold question of factual foreseeability

“Factual foreseeability will almost always besatisfied, simply because of its very nature and the very wide nature of the ‘net’ it necessarily casts.”

Phang J in Sunny Metal case (2007)

Implications of Spandeck - Test

1. Single, universal test comprising factual foreseeability followed by a 2-stage analysis of proximity and policy;

2. Test applies regardless of whether we are dealing with negligent acts or omissions or negligent misstatement and whether the interests invaded is physical injury or property damage or economic loss.

Preliminary

• Threshold of Factual foreseeability• It is reasonably foreseeable that D’s carelessness would cause claimant to suffer

injury/damage?

First stage

• Proximity• is there physical proximity or legal proximity or causal (cause and effect)

proximity between P and D?• For Legal proximity – use Doctor-Patient, Manufacturer-Consumer, Driver-

Pedestrian kind of terms• If physical/legal there, there would likely already be requisite proximity

established.

-> Once factual foreseeability and proximity are satisfied, there is a prima facie duty of care.

Second stage

• Policy• Are there relevant policy factors that negate the prima facie duty of

care? • Professions? E.g. doctors, accountants, lawyers.

• Contractual nexus? (if can claim under contract law, then court may not want to expand on tort of negligence)

• Strength of Bargaining position? (if no contractual nexus, & law does not provide remedy under negligence, will the plaintiff be able to claim redress? Judiciary will likely allow claim for economic loss under negligence, Ocean Front )

• Other policy considerations? Floodgates – indeterminate liability, to a indeterminate class for an indeterminate amount.

• On the other hand, law, far from negating, will hold that there is a duty of care, whenever there are a spate of events, like the food poisoning cases in Singapore.

-> Once factual foreseeability and proximity are satisfied, there is a prima facie duty of care. -> if there are no policies to negate the duty of care, then there is a duty of care.

2. Breach of Duty

• General Rule - Plaintiff to prove breach of duty, burden of proof lies w P

• Exception: res ipsa loquitur (thing speaks for itself)• Presumption of negligence• To invoke doctrine, P shows:

– Injury/damage would not have happened, in the ordinary course of things, but for negligence; and

– “thing” which caused mischief was under D’s control and management

(should advise yr plaintiff to try and invoke res ipsa loquitur)

Exception Case – Res IpsaScott v London & St Katherine’s Docks (1865)

D owned docks and warehouses and operated a crane for loading and unloading goods. P was entering D’s warehouse when 6 bags of sugar fell from a crane above him and injured him.

Held: Since D controlled the crane and the accident would not have happened but for D’s negligence, Res ipsa applied and D was presumed negligent unless he convincingly explains that the accident was not due to his negligence.

• The higher the standard of care is framed, the easier it is in law for the defendant to be in breach.

• Duty of care is to take Reasonable care, reasonable depends on the facts of the case. i.e. Factual enquiry.

General Case – Framing the Standard of Care. (for the plaintiff)What constitutes Reasonable Care?

Guideline #1 - Seriousness of injury (physical infirmities of the plaintiff)

The greater the risk of injury, the more likely the breachof duty. Risk of injury is a material factor in framing theStandard of Care.

Paris v Stepney Borough Council (1951) HLP employee had vision in one eye onlyD failed to provide P with safety gogglesP injured his good eye in the course of work

HL Held: D owed P a higher standard of care to one –eyed than an employee with two good eyes.

Guideline #2 - Cost of avoiding the harm (Economic argument)The law does not expect D to take merely reasonable care. How extensive and costly the measures necessary to eliminate the risk would be considered in determining the standard of care and, consequently, the breach of duty. If cost of avoiding is low, standard of care is high.

Latimer v AEC Ltd (1953) HL affirmed CA P was employed by D. An exceptionally heavy rainstorm flooded the whole of the D’s factory. Oil, which normally ran in covered channels in the floor of the building, rose to the surface and when the water drained away, left an oily film on the floor. D took measures to clean away the oil, using all the sawdust. P came on duty with the night shift, unaware of the condition of the floor. While placing a heavy barrel on a trolley, he slipped on the oily surface, fell on his back, and the barrel crushed his left ankle.

Held: A reasonable employer had to decide whether or not to shut the factory down and totally eliminate the risk. The employer took every step that reasonably could have been taken and had not breached his duty of care.

A defendant does not have to totally eliminate the risk but must do as much as the reasonable person would do in the circumstances.

Guideline #3 - Likelihood of harm/Probability of injury happening

The more likely the harm, the higher the standard of care.Conversely, the less likely the harm, the lower the standard of care.

Bolton v Stone (1951) P was struck in the head by a ball that flew out of a cricket field across the street from her home. P sued D, the owner of the cricket field for public nuisance and common law negligence on the grounds that the field did not have a fence high enough to prevent balls from flying out of the field. D claimed that only 6-10 balls had escaped the field in the previous 30 years and it was therefore an unforeseeable risk.

HL Held: D owed P a duty of care but the risk of a ball escaping the field was so low that a reasonable person would not have taken further precautions. There was no breach of duty of care.

Guideline #4 - Level of skillWells v Cooper (1958) CA

A DIY householder fitted a new door handle so insecurelyThat when P pulled the handle he lost his balance, fell andWas injured.

Held: The householder was required to show the standard ofCare, not of a professional carpenter but that of a reasonablyCompetent carpenter doing such a trifling domestic job.D was not liable because he met the standard of thereasonably competent amateur carpenter.

• Law will hinge responsibility commensurate with skill.

Guideline #5 - Utility Value (Economic Argument)

• If the act has high utility value, then it is more likely that there will not be a breach of duty. • E.g. Ambulance trying to save a life, speeds,

and knocks down a pedestrian• If act has low/zero utility value, likely that there

will be breach of duty of care• E.g. Mischievous acts (climbing walls like

spiderman)

Determining Breach of Duty -

Although there is a single duty of care to take reasonable care (I.e. One test), the standard of care may vary from person to person, and circumstance to circumstance, skill to skill.

A driver of a vehicle owes a duty of care to other road users but the standard of care would vary between a probationary plate driver and one with 30 years experience.

3. Damages

Causation-in-factRemoteness-in-law

3.1 Causation-in-fact (identical to contract law)Did D’s negligent act/omission factually cause the Injury/damage? This is a forensic question that deals with cause and effect.

“But-for” test - But-for D’s negligence, would P have suffered injury/damage?If No, Defendant’s act caused P’s injury/damage (causation)If yes, Defendant’s act did not cause P’s injury/damage (no causation)

Barnet v Chelsea & Kensington Hospital (1969)P mistook a glass of arsenic for water and drank it. P was rushed to the hospital but the doctors were negligent and failed to examine him. P was told to go home and died 5 hours later. P’s estate sued the hospital.Issue: Did D’s negligence cause P’s death?Held: The hospital owed P a duty of care which they breached.However, applying the but-for test, the hospital’s negligence did not cause P’s death. Even if P received proper medical treatment, P would have died anyway because of the lethal consumption of arsenic.

Need to show one causal connection from the D’s act to the P’s injury. Must be an uninterrupted link, if not, in law, there will be no causation-in-fact. Thus, even if there is a (i) duty of care, and (ii) you breached it, you will not be liable for it, as you didn’t cause the injury.

Causation-in-Fact - Breaking the chain of causation

Q – When there is a new cause/act, and there are now multiple causes to the injury, But-For Test (okay for 1-2 causes) will always mean the first author is liable, which cannot be right. Thus, we have to apply the test laid down by Lord Wright, and look at the secondary factors.If Lord Wright’s test is positive, (i) then there is a break in the chain, and the first author is no longer

liable, there is no causation-in-fact. OR (ii) both are liable, but they are held liable in the proportion that they

caused the injury.

Lord Wright in The Oropesa (1943) – Novus Actus InterveniensFor a novus actus (a new act) to break the chain of causation“[I]t must be shown that there is something which I will call (spontaneous/voluntary/unrelated) ultraneous, something unwarrantable, a new cause which … can be described as either unreasonable or extraneous or extrinsic.”

Apportionment of Liability between several tortfeasors

There can be several tortfeasors who owe the plaintiff respectiveduties of care and, depending on their contribution to the causeof the loss, the judge can apportion liability between each of them.This is called apportionment of liability.

For example, A and B and C owe Plaintiff respective duties of carewhich they breached, but they contributed to P’s loss in unequalproportions (A – 70%, B – 10% and C – 20%).

The loss will be apportioned in the ratio of 70:10:20 in respect of A, B and C.

Causation in law/Remoteness (after you established causation-in-law)

Not all injury or damage suffered is claimable. The law draws a line between those losses which are recoverable (not too remote) from those which are irrecoverable (too remote).

Reasonably foreseeable (The yardstick of the reasonable man)All losses which are reasonably foreseeable by the defendant are recoverable in law: The Wagon Mound

Exception – Extent of the injury/damage (you take the plaintiff as you find him)

If P can foresee the type or kind of injury/damage, it does not matter that he cannot foresee the full extent of the injury/damage; He will be liable for the full extent.

Related principle is the “eggshell skull” (thin skull) rule D must take his victim as he finds him. If P suffers from a medical condition which makes his injuries more severe, D will be liable for the full injury even though the medical condition is not reasonably foreseeable: Smith v Leech Brain

Smith v Leech Brain & Co (1962)P worked as a galvaniser for D. P’s work involved lowering articles by an overhead crane into a tank containing molten metal. Whilst lowering an article into the tank, he turned round to see what he was doing, so that his head was outside the shield afforded by the corrugated iron, and a piece of molten metal struck him on the lower lip, causing a burn. The burn was the promoting agent of cancer, which developed at the site of the burn, and from which he died some three years later. The cancer developed in tissues which already had a pre-malignant condition. But for the burn, cancer might never have developed, although there was a strong likelihood that it would have done so at some stage in his life.

Held: D liable for P’s death.Lord Parker CJ: “The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that he would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim.”

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Volenti Non Fit Injuria

A person who, with full knowledge and appreciation of the risk, consents to the injury cannot be heard to complain of the injury.

Volenti is a complete defence and defeats P’s claim entirely.

Example, consenting to participatein dangerous sports, activities.

DEFENCES - FULL

DEFENCES - PARTIAL (Courts almost always use this only, they don’t like volenti)Contributory Negligence

D can raise the defence of C/N if he can show that P’s injury was the result partly of D’s own fault and partly of P’s fault and, consequently, the damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the P’s share in the responsibility for the damage: Section 3(1) Contributory Negligence and Personal Injuries Act (Cap 54).

C/N is a partial defence.

C/N is apportioned in % terms.

Claiming Nervous Shock (Psychiatric harm cases)

1. Recognisable psychiatric conditionGrief, sorrow, deprivation or suffering not enough (natural process)

2. Primary or secondary victim?Primary victim is one who personally suffers psychiatric harm as a result of immediate fear of injury to himself.

Secondary victim is one who suffers psychiatric harm as a result of injury to others.

To recover damages as a secondary victim, must show: (1) close (legal) tie of love and affection (qn of fact) with the primary victim;

(blood ties generally stronger, can argue for non-blood ties) (2) proximity in time and place to the scene of the accident; (3) means by which the shock was caused – unaided aural and visual perception.

Ngiam Kong Seng (2008) CA said that Spandeck test appliesin determining duty of care in psychiatric harm cases.

Negligent Misstatement (not Negligent Misrep in contract) ( usually always financial loss)

Before 1964, English law was disinclined toallow recovery of financial loss following relianceon negligent statements.

In Candler v Crane Christmas & Co (1951), investors relied upon negligently prepared accounts, lost there investments and failed to bring a successful negligence claim. Lord Denning dissented.

Not until HL decision in Hedley Byrne v Heller (1964) that the courts held a plaintiff could claim pure economic loss for negligent misstatements.

Hedley Byrne v Heller (1964) HL

P asked their bankers to inquire into the financial stability of a company, Easipower, with which they were having business dealings. P’s bankers enquired with the company's bankers (D), and D carelessly gave favourable references about Easipower but cautioned reference was “without responsibility”. P relied on the references and lost £17,000. P sued D for their careless statements. The action failed because D had expressly disclaimed any responsibility.

HL Held: To recover for negligent misstatements P must establish that the statement was made within a relationship where P could reasonably rely on

D’s skill and care in making the statement ('special relationship‘) which properly resulted in D undertaking responsibility for the accuracy of the statements made. No duty of care because of disclaimer.[Now governed by UCTA s 2(2) – must be reasonable to be valid]

Duty of “Special relationship” as modified by Spandeck (Dennis’s guidelines)

Factual foreseeability is usually easily satisfied (Note: Mere foreseeabilityalone is not enough)

1. Advisor possesses special skill or knowledge (applies to professionals, ppl who give advice) (Capacity);

2. Advisor/representor knows/ought to know the advisee/representee wouldrely on the advice for the purpose for which the advisor

intended; (black part from Hedley Byrne, green italicised requirement was added by Caparo) (must not be dissonance between the purpose for which advisor intended, from the purpose for which the advisee relies on that advice)

3. It is reasonable for advisee to rely on the advice, without a second opinion;

4. Advisee suffers financial loss in reliance of the advice.

Proximity

POLICY

Caparo v Dickman (1990)

Caparo was a shareholder in a listed company.It claimed that in reliance of a negligently audited accounts,it bought more shares in the company and made a successfulTakeover bid.The company was actually not doing well financially and Caparosuffered financial loss as a result.

HL Held: No duty of care was owed to Caparo as an individualshareholder. The auditors had prepared the accounts for use inGeneral Meeting of all shareholders. The duty was thus owed toshareholders in a GM, not to an individual shareholder for makinginvestment decisions.

(In Singapore, all companies must submit a statutory audit reportwhich gives a true and fair view of the financial condition of theCompany: section 201 Companies Act).

Other Torts

Professional negligence – Standard of care is in accordance with Practice accepted as proper by a responsible body of professionalsskilled in that particular profession: Bolam test

Defamation – lowering a person in the eyes of rightfulThinking members of the public. Lander if spoken, libel if written.

Passing Off – when a person seeks to pass–off his goods or services as those of another. Eg, the McDonald case against McCurry Restaurant Sdn Bhd (1996)

Inducing breach of contract – when a person induces another tobreach his contract with a third party.

Nuisance – wrongful interference with the enjoyment of property(smoke, smell, noise, noxious substances, water seepage)

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