Tort 1 – Negligence

The doctrine of privity of contract and the capacity of a party to enter into a contract can often get in the way and prevent a party from bringing an action in contract. Let us say for example that a friend buys his or her friend a bottled drink which is contaminated and as a result the friend falls ill and has to incur medical costs in addition to taking days off work. The aggrieved party or the innocent party does not have an action in contract because he or she is not privy to the contract but he or she may have an action in negligence.

Without taking into account privity or capacity an innocent party may also want to commence an action in negligence if the facts allow it because the courts are more lenient when awarding damages in tort than they are in contract.

In order for an action to be successful in negligence the plaintiff must satisfy the following criteria: -

i) Duty: - the plaintiff must prove that the defendant owed him or her a duty of care

ii) Breach: - the defendant has breached the duty of care

iii) Causation: - the defendant’s breach has caused the plaintiff either some form of illness or monetary loss and

iv) Damages: - the damage can be quantified in monetary terms.

In Blyth v Birmingham Waterworks Co. (1856) (Court of Exchequer) the defendants were a body incorporated by statute to supply the town of Birmingham with water. According to s. 84 of the statute the company should at the time of laying down any main pipe or any other main pipe on the street, fix at the time of laying down of the pipe a proper and sufficient fire-plug (a hydrant for a fire hose) in each street.

According to s. 87, pipes were to be eighteen inches beneath the surface of the soil and according to s. 89 the mains were at all times to be kept charged with water. The defendants derived no profit from the maintenance of the plugs distinct from the general profits of the whole business, but such maintenance was one of the conditions under which they were permitted to exercise the privileges given or granted by the Act.

On February 24, a large quantity of water escaped from the neck of the main and forced its way from the ground into the plaintiff’s house. The plaintiff sued for damages. The case was tried before a jury and the County Court Judge found in favor of the plaintiff. The defendants appealed.

Baron Anderson - “The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done” - verdict to be entered for the defendants.

Negligence is the act of doing something, which under the circumstances, a reasonable or a prudent man, guided by the considerations that normally regulate the conduct of human affairs, would not do or the act of not doing something, which under the circumstances, a reasonable and a prudent man, guided by the considerations that normally regulate the conduct of human affairs, would do.

Therefore, there are two types of negligent acts: -

(i) The act of doing something which a reasonable and prudent man would not do and

(ii) The act of refraining or abstaining or not doing something which a reasonable and prudent man would do (omission). Omission in most instances is a failure to do that which is required by law (either statutory or common law).

The reasonable and prudent man in negligence is the man on the Clapham Omnibus - Hall v Brooklands Auto Racing Club (1933) i.e. any person who does not belong to either extreme of the scale but rather a person who is subjected to the stresses and pressures that most people in a community or a society are subjected to.

In the example cited above (the contaminated drink), it is safe to say that a reasonable and prudent man, who is in the business of manufacturing consumable items would take reasonable steps to ensure that the product that he or she produces or in the case of a company, manufactures, would take the appropriate steps to ensure that the item that is produced or manufactured is fit for human consumption.

In today’s vibrant commercial world many of the laws with regards to food manufacture or the manufacture of food are regulated by statute for example the Food Safety Act 1990 and a breach of a duty that is imposed by the act and others like it would be a breach of a statutory duty and if the breach has caused the plaintiff some form of an illness or has caused the plaintiff to incur additional expenses than the plaintiff can commence or proceed with an action in negligence.

The defendant however is not liable if he or she has taken all the care and precaution that he or she is supposed to or is required to under common law or statute.

Hence once the plaintiff has established that there is a duty of care, the plaintiff must also establish that the defendant has breached the duty of care (he who asserts must prove) while the defendant must establish, in order to escape liability, that he or she has taken all the necessary steps to comply with the duty that is imposed upon him or her either by statute or by common law.

Copyright © 2019 by Dyarne Ward and Kathiresan Ramachanderam