Establishing a Claim in Negligence

Introduction

In for a claim for negligence to be established the claimant will be required to prove that they have suffered damage and that intentional behaviour or at least recklessness existed. This will allow a determination to be made as to whether the claimants have any possible tort of negligence claims against the defendants. Establishing if the defendant is negligent, the claimant must prove whether there is a duty of care, whether this duty had been breached and the damage was caused by the breach. In Heaven v Pender[1] it was first suggested there should be a general principle of law which governs the duty of care. Lord Atkin in Donoghue v Stevenson[2] provided some guidance in this area by showing that in order to establish a duty of care was owed the so-called ‘neighbour principle’ must be adopted; “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. The Court in Dorset Yacht Co Ltd v Home Office[3] expanded this principle even further when it was made clear what type of circumstances would give rise to a duty of care and was followed by Caparo Industries plc v Dickman[4] which is currently the leading case dealing with the duty of care element. The House of Lords in this case proposed a three-stage test for establishing whether a duty of care has arisen. The courts would need to be satisfied that; a) it would be reasonably foreseeable that the defendant’s failure to take care could cause harm or damage to the claimant; b) that the relationship between the claimant and the defendant was so close that there was an element of proximity between them; and c) that it is fair, just and reasonable to impose a duty of care on the defendant based upon the particular circumstances of the case.

Unless this test can be satisfied, a claimant will be unable to establish a claim in negligence since the defendant will not be found to have owed a duty of care to the claimant. Once it has been shown that a duty of care was owed to the claimant, it must then be shown that the duty has been breached. This will be decided by the Court based on a two-stage test; first of all the Court will be required to consider how the defendant should have behaved in such circumstances (question of law) and then decide the extent to which the defendants behaviour fell below this required standard of care (question of fact).[5]Consequently, it must be shown that a reasonable person would have foreseen the danger and subsequently regarded the risk as unreasonable; Blythe v Birmingham Waterworks[6]. As a general rule, a defendant will not be liable unless the risk was foreseeable, was not insignificant and a ‘reasonable person’ would not have taken the necessary precautions in respect of the particular risk that occurred. In making such an assessment the Court will consider what precautions a ‘reasonable person’ would have taken, what the likelihood of harm was and whether a reasonable person could have been expected to bear the costs of avoiding such harm. The test is an objective one; Glasgow Corp v Muir[7] and the issue to be considered is not whether the defendant would have foresaw the risk but whether a reasonable person would have foresaw it based on the particular circumstances of the case.

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The issue will thus be decided on a case by case basis by reviewing the individual facts of the case. Once it is shown that the defendant owed a duty of care and subsequently breached that duty, causation must then be considered. Essentially, it must be shown that the claimant’s losses were a natural consequence of the breach since the breach caused the harm or damage that occurred. In establishing causation, the ‘but for’ test would need to be applied. This test was established in R v White[8] when it was stated by the Court that the claimant must prove that the harm would not have occurred ‘but for’ the defendants actions. Once this has been established causation will then be proved unless it can also be shown that there is an intervening act which brakes the chain of causation, also known as a novus actus interveniens; Wilsher v Essex Area Health Authority[9] the ‘but for’ test will not established. Remoteness of damage will then be determined by considering whether or not the damage was a kind which was foreseeable. Once all of these elements have been proven, the defendant will be found liable for the full extent of the damage; The Wagon mount (no.1)[10].

Jennifer Hallam

In June 2013 Jennifer Hallam parked her car opposite the knight’s plaza building where on return to her car she noticed damage to the car. On enquiring from shop owners she was informed that this was due to light reflecting from the building. Jennifer returned the next day and investigated and established this is the case. T Knight Group (TKG) owe a duty of care to Jennifer as the neighbour principle clearly applies to her on the basis that the Jennifer would have been so closely affected by the actions of TKG that they ought reasonably to have had her in their contemplation. TKG would thus have been under a duty to ensure that reasonable care was being taken in order to avoid any harm or damage to third partied caused by their actions. Nevertheless, this could be disputed by TKG as they may be able to demonstrate that the breach of duty did not occur as a result of their own actions. This is because the architects or the structural engineers could instead be held responsible for the design fault. This situation has been seen around the world and also in the UK. Under section 79 of the environmental protection act 1990 the local authority may take action to ensure the nuisance is stopped. There is no reported case in England and Wales in which a Court has been required to determine reflection of sunlight.

However in New Zealand this was the case and was seen in Bank of New Zealand v greenwood[11]. This would amount to an actionable tort of nuisance. Here the high Court of New Zealand held that reflected light can constitute an actionable nuisance. In Hunter v Canary Wharf Ltd[12] the Lords considered the New Zealand case and although they said that it was most unusual they did in fact regard the decision as ‘eminently sensible’ and ‘admirable’. In light of this, it could therefore be said that Jennifer’s actions is likely to be successful if the Courts in the UK follow suit. If the Courts do find that there has been a breach, it is likely that they will then be able to establish that the breach caused the harm and was not too remote so as to prevent an action in negligence. This is because, if TKG successful argue that they the architects or the structural engineers are to blame for the damage, then the standard of care will be that based upon their expertise; Wilsher v Essex[13]. And, architects and structural engineers will be required to have a reasonable expectation of the risks involved with this type of project and ought to have known of the dangers.

Rahim Khan 

Rahim Khan has stated that he has suffered a financial loss due to the dazzling sun and high temperatures that are created when the sun reflects off the Knights Plaza Building and onto the pavement outside his shop. There is generally no duty of care owed to individuals to avoid causing others to suffer an economic loss. The economic loss must not relate to personal injury or damage to property as in Spartan Steel & Alloys Ltd v Martin[14]. Nevertheless, in Hedley Byrne & co v Heller[15] the House of Lords held that economic loss could be caused by negligence misstatement rather than a negligent act, although it is unlikely to apply here. In Linklaters Business Services v Sir Robert McAlpine[16], however, it was noted by the Court that; “It may well be arguable in the case of complex structures that one element of the structure should be regarded for the purpose of the application and the principles [regarding economic loss] as distinct from another element, so that damage to one part of the structure caused by a hidden defect in another part may qualify to be treated as damage to other property.” It will depend entirely upon the facts of the case as to whether a claim by Rahim will prove to be a success although it is questionable whether this will be established given the complexity of establishing pure economic loss.

Thus, Rahim will have to demonstrate that the relationship between Rahim and TKG was sufficiently close for a claim to be ascertained for economic loss. This is unlikely to be established given that Rahim merely owns a nearby sandwich shop and so the requirements are unlikely to be satisfied here. In addition, Rahim also stated that his business has just reopened after health inspector closed it down after allegations of food poisoning. This could be significant as the loss could have been caused by the closure of the shop for 6 months. The chain of causation (novus actus interveniens) could have been broken by the fact the shop was closed. In certain cases, the chain of causation is capable of being broken by an intervening act. Therefore, the defendant may not be liable if the chain is broken by the intervening act even if there exists a duty of care as in Kirkham v Chief[17]. Thus, as put by Finch and Fafinski “if the novus actus interveniens is sufficient to break the chain, then the defendant may not be liable despite being in breach of the duty of care.”[18] Accordingly, it is therefore unlikely that TKG will be found liable in tort for the loss that was suffered by Rahim since it is likely that the loss would have occurred regardless; The Oropesa[19].

Rahim is also being prosecuted having been caught on CCTV cameras throwing stones and subsequently causing damage to the Knights Plaza Building costing ?75,000. In common law Rahim would be found criminally liable for criminal damage under section 1 (1) of the Criminal Damage Act 1971 for destroying property that belonged to another with the intention or recklessness as to whether damage was caused. The fact that Rahim was caught on CCTV throwing stones at the building is sufficient enough to find him liable under this section. Accordingly, it is clear that Rahim had the intention to damage the property by throwing the stones as he was angry at TKG for the loss of profits in which he claims to have suffered. In addition, for criminal damage to be established, it does not have to be shown that the property is no longer usable. The fact that some damage was caused will be sufficient as in Roper v Knott[20]. Accordingly, Rahim will thus be found criminally liable for damaging the property and causing ?75,000 worth of damage.

Andy Pandy, Mandy Pandy and Muz Ahmed

In deciding whether Darren is liable for the death of Andy Pandy and the injuries sustained by Mandy Pandy and Muz Ahmed, it will need to be considered whether Darran owed them a duty of care. Applying the Caparo test, it is evident that a duty of care was owed to Andy, Mandy and Muz. This is because all three of them can be considered to have a relationship of proximity to Darran that he ought to have had them in his contemplation. Hence, drivers owe a duty of care to pedestrians so it is evident that this part of the test will have been satisfied. Nevertheless, it is questionable whether Darran failed to take care given that the gust of wind is likely to have been unforeseeable and as such it would not be fair, just and reasonable to impose duty of care on him. In addition, although Darran caused the accident to occur it can be said that there was an intervening act that broke the chain of causation. This is because the accident would not have happened had it not been for the structure of the building and because these defects were known to the TKG since May 2013, they could have alleviated these problems by taking the necessary steps. In view of this, the TKG should be found liable for the death of Andy since they ought to have taken reasonable precautions to prevent the problem from occurring. Essentially, because they had not taken any steps to prevent the problem from occurring it is clear that they should be found liable as they would have owed Andy a duty of care, they were in breach of that duty and the breached caused the harm.

The same will apply in relation to Mandy and Muz since it would not be fair, just and reasonable to impose liability on Darran for the psychiatric harm that was caused and so TKG ought to be held liable for this also. In order to establish a claim in negligence for psychiatric injury, all of the negligence requirements must first be satisfied. However, further difficulties will arise since Mandy and Muz will not be awarded compensation unless three additional requirements are satisfied; a) there was a close tie of love and affection between the parties; b) that the victim was close to the accident at the time, and c) that the accident was directly perceived.[21] It is likely that Mandy will be able to establish all three given that Andy was her brother, although it will be more difficult for Muz to demonstrate that there was a close tie of love and affection. In addition, it will also have to be shown that the harm or damage caused was reasonably foreseeable, which again will be likely to prove complex; Alcock v Chief Constable of Yorkshire[22]. In Page v Smith[23], nonetheless, the defendant was found liable even though the claimant was not physically hurt the car crash that was caused by the defendant. Therefore, it is possible that both Mandy and Muz will be able to establish a claim against TKG as shown in Dulieu v White[24]. If it is shown that the harm is too remote, however, they will not be able to establish a claim.

Conclusion

Overall, it is likely that TKG will be found liable for the damage that has been caused to Jennifer’s car, the death of Andy and the psychiatric injury caused to Mandy and Muz, unless they can demonstrate that the architects and structural engineers are to blame. It is unlikely that Rahim’s claim will succeed and instead he will be found criminally liable for the damage caused to the building. Damages fall into two categories, pecuniary and non-pecuniary losses. Pecuniary losses are calculated into monetary terms whereas non-pecuniary losses are not. However, whether or not damages will be awarded will be dependent upon the remoteness of the harm or damage that was caused

Bibliography

1. Finch, E. and Fafinski, S. (2010) Law Express: Tort Law, 3rd Edition, Longman.
2. Kidner, R. (2010) Casebook on Torts, 11th Edition.
3. The Law Commission., ‘Liability for Psychiatric Illness’ (1998) Law Com No 249, 2.

Cases

1. Alcock v Chief Constable of Yorkshire [1992] 1 AC 310
2. Bank of New Zealand v greenwood [1984] 1 NZLR 525
3. Blythe v Birmingham Waterworks (1856) 11 Exch 781
4. Caparo Industries plc v Dickman [1990 1 All ER 568
5. Donoghue v Stevenson [1932] AC 562
6. Dorset Yacht Co Ltd v Home Office [1970] AC 1004
7. Glasgow Corp v Muir [1943] AC 448
8. Hedley Byrne & co v Heller [1963] 3 WLR 101
9. Heaven v Pender (1883) 11 QBD 503
10. Hunter v Canary Wharf Ltd [1997] 2 WLR 684
11. Kirkham v Chief [1990] 2 KB 283
12. Linklaters Business Services v Sir Robert McAlpine [2010] EWHC 1145 (TCC)
13. Page v Smith [1996] AC 155
14. Roper v Knott [1898] 1 QB 868
15. R v White (1910) 2 KB 124
16. Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502
17. The Oropesa [1943] 1 All ER 211
18. Wilsher v Essex Area Health Authority [1988] AC 1074

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