According to Winfield, negligence as a tort is a breach of legal duty to take care that causes another harm. Lord Alderson in Blyth v Birmingham water woks described negligence as the “omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and reasonable man will not do. From this attempt to define negligence ,we can deduce that negligence is established if a claimants loss is as a result of breach of duty of care owed to them by the defendant. This means X is negligent only if he had a responsibility to care and failed to do so. There can be no claim if duty of care is not owed.
‘The existing categories in negligence is ‘never closed’. Claims in negligence are relatively more in volume compared to other torts. This is because tort law especially negligence significantly touches most aspects of human life and society which is dynamic and ‘infinitely various’. It is difficult for the court to regulate actions in negligence, solely on principles because no set of principle can serve as an umbrella for all the claims. The court realises this difficulty and risk of governing this area of law with principles. Hence, its heavy reliance on policy consideration to strike a balance between adequate remedy to the victim, prevent undue burden on the wrongdoer, while protecting the society to ensure stability.
The court is able to achieve this through manipulating the interpretation of duty of care, which is a vague but central element in the tort of negligence.
Duty of care is a central element amongst others (breach of duty, causation and damages) which must be proofed for a claim in negligence to be successful. This was first described by Lord Atkin in the judgment of Donoghue v Stevenson, in his judgement, he brought to fore the neighbourhood principle that proximity between the defendant and the claimant is not confined to physical space. Duty of care extends to direct and close relations, which a tortfeasor would reasonably foresee that his careless act will directly affect. This concept plays out the relevance of policy consideration in negligence. in this case, the issue for contemplation was whether the defendant who was the manufacturer of ginger beer, owed a duty of care to the claimant who developed certain sicknesses due to shock and consumption of the contaminated ginger beer. Ordinarily, there was no proximity or contractual relationship between the defendant and the claimant as the drink was not directly bought by Donoghue, on the prima facie duty of care could not be admitted. However, as concluded by the court, there was a social wrong’, and it will not be justiciable for manufacturers to walk away from damages they cause to their consumers due to negligence to promote accountability.
The influenced policy in proximity and foreseeability continues to play a vital role in duty of care. In Dorset yatch co ltd v Home office, the court applied the principle of reasonable foreseeability and held the home office liable for a breach of duty of care owed to the claimant because it could be reasonably foreseen that the escape of borstal boys from prison could lead to damages in the environment. This judgement satisfies the idea of foreseeability. However, one is faced with the dilemma on the grounds of this element. From the case of Donoghue, it seemed obvious that public policy was in-fact, the root of the decision and would expect that to play out in this case. Lord Denning in the court of appeal said “Many, many a time has a prisoner escaped – or been let out on parole – and done damage. But there is never a case in our law books when the prison authorities have been liable for it. No householder who has been burgled, no person who has been wounded by a criminal, has ever recovered damages from the prison authorities; such as to find a place in the reports. The householder has claimed on his insurance company. The injured man can now claim on the compensation fund. None has claimed against the prison authorities. Should we alter all this: I should be reluctant to do so if, by so doing, we should hamper all the good work being done by our prison authorities.
His judgement is takes into consideration, the effect of crushing liability, and aims to limit the exposure of government to divert funds from the social utility to paying damages in negligence. Also, his judgement, aims to avoid a negative impact on public authorities carrying out their functions. Lord reed however, says that duty of care should be assumed and only rebutted if there are policy reasons for that.
This incoherence therefore, inspires a deep analysis of the depth and influence of policy in negligence. it seems that Policy plays an extensive role in negligence because it is forms the recognition or rejection of duty of care is owed in a case. Once a court determines that duty of care is owed or not in a particular case, subsequent cases of this kind will adopt the same principle in deciding such matter. In deciding a case, the court will first consider precedents of such case and will adopt the existing principle. It also will look to statute to identify rules that regulates the relationship between the defendant and the claimant. The court will only seek to decipher the presence of duty of care in novel cases.
Fair, just and reasonable
lord green pleads for the inclusion of what he calls the third phase which is the consideration of the interests, of the society and external groups in judicial proceedings in negligence.
The court seems to identify with this idea in finding whether duty of care exist or not in various areas of negligence such as, vicarious liability, economic loss, psychiatric injury, public authority profession especially in the medical field.
The court applies the floodgate principle which is an intentional limitation of claims for damages in a certain area of law due to concerns that allowing such claims will lead to an overwhelming volume of lawsuits. In negligence, of the areas this principle is profound is in psychiatric injury, the court as a matter of policy limits claims that can be successful in psychiatric injury to avoid a high volume of cases that overwhelm the court. In Victorian railway commissioners v Coultas the claimant did not succeed in a claim in damages for psychiatric shock after witnessing the narrow miss of collision between a horse and the train. This claimant sued the defendant in negligence for failing to secure the gates and prevent the horses from escaping into the road. The court expressed their reluctance to allow damages when the claimant had not suffered physical injury, they believed it will open a wide field for ‘imaginary claims’. The evolution of societal behaviour and sensitivity in the areas of psychiatric illness demands for a revaluation of the position of the court in psychiatric injuries in negligence. This has led to the modification of requirements for a claim in psychiatric injury to succeed. In response to the dynamics in this area of tort, the court has adopted techniques to manage victims of psychiatric injury while continuously taking into consideration the principle of floodgate. An evidence of this is the classification of claimants in psychiatric injury into primary and secondary and further establishing requirements ensuring the victims are as close and connected to the injury as much as possible. This is to ensure the minimal success of claims in this tort.
The first requirement by the court to claim damages in psychiatric injury is the proof of close tie and affection. This policy formed requirement lacks unification and is difficult to predict the success or failure of this claim. A proof of close tie of love and affection to a deceased can be relational and vague. And makes one wonder in what capacity the court approves the existence of love or lack of it. colleague and family. the second is proximity in time and space requires the claimant to have seen the result or the aftermath of the incident in the space of no more than two hours. Finally, requires the cause of the psychiatric to be directly caused by a single shocking event. Alcock solidified these policies adopted.
Public authorities enjoy a level of immunity in negligence some policies involved in this area are crushing liability, public interest, burden on the public purse, defensive practices by potential defendants. In Hill v Chief constable of west Yorkshire the claimant sued the police in negligence for failing to apprehend a serial killer before he killed her daughter. The police was aware of the case of the ripper, but could not have reasonably foreseen that the killer was going after the claimants daughter because the only link between the other girls killed was the age. The court held that the police were under no obligation to prevent the murder. The underlying policy to this judgment was that holding the police liable for negligence will first, shift the focus of police from their social responsibility of ensuring security to answering to charges in negligence.
Also, this would require the police to pay for damages with the money required for societal purposes. Another policy considered is that to impose liability will negatively impact on their motivation and decision making as regards operation. Whereas, in Osman v United kingdom where the police had been warned of a likely attack on a student by the teacher. and failed to take reasonable care to prevent this attack. Which led to the death of the child. It was held that the police was liable as there existed a special relationship with the child and owed a duty of care which was breached. This immunity in negligence granted to the police based on public policy rather than principle makes the standard for identifying whether duty of care exist or not bazar. This drifts farther the possibility of coherence in negligence.
The fire brigade is another public authority that has enjoyed a certain level of immunity in negligence through policy consideration. In john Munroe Ltd v London fire and civil defence authority. The court held that the fire service owed no duty of care to claimant. This decision was reached in consideration of the overall impact holding the fire service liable will have in the society. This might result in defensive firefighting and encourage a large volume of claims against the fire service. The fire service is however not immune to damages caused by their negligence. this was decided in Capital and counties plc v Hampshire county council a fire fighter was held liable due to the decision to turn of the sprinkler in a burning building which led to an increase in the fire. The court held that this overrules the immunity enjoyed because being accountable for decisions made in such cases is of public benefit.
Another area in negligence that policy plays a role is seen In kent v Griffiths, the court held the ambulance service liable for arriving significantly late after a call for an asthma patient. On policy consideration the court held that for public interest, the ambulance owed a duty of care to a member of the public to respond in reasonable time when a call has been accepted. The court takes this stand to acknowledge a duty of care in the lack of any fair, and justifiable reason not to do so. The immunity enjoyed by other public bodies those not cover the ambulance service so much. This is because it is more favourable to the public and the society to have negligence function this way in the area of law after weighing several policy principles.
A standard of care which a reasonable person can imply is the objective test in determining whether there has been a breach in duty of care. In medical related cases the elements of duty of care, breach, causation and damages has a varying standard compared to other torts in negligence. For a doctor to be held liable for damages in negligence, the claimant must proof that there was a relationship between the patient and doctor, this will usually be proved in a Gp to patient relationship and when a doctor assumes responsibility over a patient. Failure to maintain reasonable standard of care in treating a patient to which duty of care is owed will amount to a breach. The test to determine standard of care for medical negligence was established in the bolam v Friern the outcome of this case was that doctors do not need to show highest level of expertise. They only need to show that a respected body of professionals recognise the procedure taking in treating a patient even if it is not a popular approach. The court refrained from severe scrutiny of medical practices not only due to lacking knowledge in that field but also due to policy considerations. Holding a doctor liable when a damage occurs with patient will limit the operations and advancement of the medical sector. This is so because medical practitioners will become so cautious of liability and it will impair their decision making and limit expansion of the medical discoveries. Despite the role of policy in medical negligence the court adopted the Bolitho test to ensure that the activities of medical practitioners are subject to reasonability. This is important to also ensure that the doctors are diligent in administering health services to the public.
Insurance is another policy factor considered in negligence. The standard for duty of care in negligence is one that a reasonable person would adopt in action or refrain from acting upon. This feature of negligence experiencing high level of diversity due to policy considerations. In Nettleship v Weston, the defendant who was learning how to drive and injured her tutor in the process of a driving lesson was held liable for damages. The question was whether the defendant actions was within the standard of care a reasonable person learning how to drive will take. A person learning to drive cannot be reasonably expected to have the level of expertise of an ordinary driver. The court however held the standard to be that of a professional driver. The underlying reason for such decision was that a person learning how to drive is insured, and one who is injured by such a person should be awarded damages for this. Also, reducing the standard of care for persons learning to drive can result in more accidents. It is for societal benefit to hold learning drivers to a high standard of care. From this case. In Mullin v Richard the defendant did not owe a duty of care to the claimant who secured eye injuries from a pair game between the two. The standard of care held by the court to that of a reasonable child of the same age. This shows the impact accommodating policy in negligence has on achieving a general principle and expectation to promote consistency. Standard of care varies on occurrences due to policy considerations by the court making it difficult to achieve a unity in negligence.
Vicarious liability as a tort in negligence is interwoven with policy justifications. The court in this tort, molds the elements of negligence to protect the individuals from injuries caused by employees put in a position to render services to them. The employee is not liable to pay damages, but due to policy, the employer is held accountable for employee actions. The employer is insured and has a deeper pocket compared to the employee and this makes the claim for damages possible. The judgement in Mohamud v WM Morrison supermarket plc ensures that employers take reasonable care in vetting the suitability of staff for public service. The court has come up with unique requirements to balance the burden of employees and policy benefits. The proximity between the responsibility conferred on the employee and the causation of the damage is investigated. Lord Steyn in Lister v Hesley Hill explains that the tort was connected with the responsibilities of the claimant and the employer was liable in negligence for a breach in the duty of care owed to the children admitted into his care.
There is no consensus on the true nature of the elements of negligence. The elements are interpreted differently by the court in consideration of the sensitivity of each tort in the society.