Breach of a legal duty to take care which results in damage

Winfield defined tort of negligence as a breach of a legal duty to take care which results in damage to the claimant.1 In English law, in order to pursue a claim of negligence the claimant must prove:

1. That the defendant owed the claimant a duty of care;

2. That the defendant breached that duty of care; and

3. That the claimant suffered injuries as a result of the breach of duty of care.2

In order to advice Mary on any potential claim she may have in negligence, it is essential first of all to consider whether or not Dawn and Ivor owe Mary a duty of care.

The duty of care is a legal concept which establishes the circumstances in which one person is liable to another in negligence. The concept originated in the case of Donoghue v Stevenson [1932]3. In this case, Lord Atkin said "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure you neighbour."4 This is known as the “neighbour principle."5 Over the years, the approach of determining whether a duty of care exists has evolved, since Lord Bridge’s judgement in Caparo v Dickman [1990], to determine the existence of duty of care requires a consideration of the reasonable foreseeability of harm, the proximity of the relationship between the claimant and defendant, and whether it is fair, just and reasonable to impose duty on the defendant.6

1 V. Bermingham & C. Brennan, tort law, Oxford University Press, 1st Edition, 2008, page 43

2 V. Bermingham & C. Brennan, tort law, Oxford University Press, 1st Edition, 2008, page 43

3 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 11

4 S.I Strong & L.Williams, tort law: text, cases, and materials, Oxford University Press, 1st Edition, 2008, page 33-34

5 V. Bermingham & C. Brennan, tort law, Oxford University Press, 1st Edition, 2008, page 44

6 S.I Strong & L.Williams, tort law: text, cases, and materials, Oxford University Press, 1st Edition, 2008, page 40

In the circumstances, although Mary was served by a third party; Peter, Dawn will not escape liability because there is no evidence that he was not around when purchase the bottle of vodka, also he assumed responsibility for Mary as illustrate in Barret v Ministry of defence [1995]7. Unlike the case Bourhill v Young [1943]8, it is reasonably foreseeable that Mary would purchase a bottle of vodka in Dawn’s shop. There is proximity because Mary lives nearby, also Dawn and Mary’s relationship went beyond a licensee and customer relationship the minute Dawn accepted Mary’s requested not serve her with any alcoholic drinks in future. Therefore it is fair just and reasonable to impose such a duty.

As for Ivor, the general rule is that there is no general duty imposed on licensees to monitor how much alcohol adults consume on their licensed premises or to protect them from the dangers of self-intoxication. However, if a licensee has assumed responsibility for a patron, the licensee owes the patron a duty to protect him/her from the dangers of self-intoxication. The Australian case of Scott v C.A.L No 14 Pty Ltd t/as Tandara Motor Inn (No 2) [2009] illustrates this clearly.9 In this case, the hotel licensee allowed Scott to store his motor cycle in a locked storeroom of the hotel and given his keys to the hotel licensee. The owner served Scott alcoholic drinks, and he was aware that Scott would arrange for his wife to collect him. When Scott became more inebriated he got aggressive and asked for his motorcycle keys. The owner unlocked the storeroom and gave him his motorcycle keys. Scott was killed shortly after leaving the hotel on his motorcycle. Scott's wife sued the hotel licensee claiming that her husband was owed a duty of care. On the appeal, the Court found that the hotel licensee’s action took the relationship to a stage beyond the standard client and licensee relationship.  Therefore, there was a duty of care imposed on the owner to take reasonable care to avoid Scott riding the motor cycle from the hotel whilst intoxicated.10

7 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 87-88

8 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 19-21

9 Kerri Thomas, Hand over your keys: Publican held liable for death of intoxicated patron, Sparke Helmore Lawyers, 2009

10 Kerri Thomas, Hand over your keys: Publican held liable for death of intoxicated patron, Sparke Helmore Lawyers, 2009

The situation in the present case is similar to the case above; Ivor took responsibility concerning the types of drinks; he should not serve Mary, therefore he owes a duty to prevent Mary from drinking alcohol. It was reasonably foreseeable Mary would be served with alcoholic drinks because she was in the Jolly Badger and she is an alcoholic; there is proximity of relationship since Ivor and Mary assumed responsibility for her and he was behind the bar when was served with alcoholic drinks by the barmaid, Pearl Gates and it will be fair, just and reasonable to impose a duty in this situation because it will not extend licensee to owe duty of care to all its customers, therefore no floodgates.

Having proved that the both Dawn and Ivor owed Mary a duty of care, Mary must then prove that they breached that duty. This means that we will need look at the scenario and decide whether or not Dawn and Ivor failed to do something that they ought to have done.

Generally, in making this decision the courts are looking to see whether the defendant has fallen below the standard of behaviour expected of someone in their position.

Thus, with the present case the court would need to consider whether the Dawn and Ivor fell below the standard expected of licensee in their position. In this consideration, the standard is an objective one; therefore it is irrelevant if Dawn and Ivor consider that their conduct is reasonable.

In Blyth v Birmingham Water Works [1856], Alderson B defined the standard of the reasonable man this way "negligence is the omission to do something which a reasonable man, guided upon those conditions which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do."11

11 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 39-40

In deciding on what would be reasonable behaviour in each circumstances of a particular case, the courts consider a number of factors which may include special characteristics of the defendant; special characteristics of the claimant; the magnitude of the risk; and the practicality of precautions.12

In considering the defendant, the court considers factors such as whether the defendant has a special skill. If the defendant has a special skill the law will expect that person to demonstrate the usual standard of competence to be expected of an ordinarily skilled person.13 The Courts first decided this concept in relation to doctors, in Bolam v Frien Hospital Management Committee [1957]14

The same standard of care is applied whether the defendant is experienced or inexperienced. In the case of Nettleship v Weston [1971] the Court held that a learner driver is judged against the standard of a reasonably competent driver.15 In relation to the case at hand, neither Dawn nor Ivor, are considered to have special characteristics, therefore they would be expected to carry out their duties to the standard expected of a reasonable and responsible licensee.

Regarding the claimant, the court expects the reasonable person to take into account any special characteristics or injury which increases the risk of damage. In Paris v Stepney Borough Council [1951], the court decided that knowing the claimant is already blind in one eye; his employer should have taken extra care to provide him with goggles, because of the potentially serious consequences of such an accident as he only had sight in one eye.16

12 K. Horsey & E. Rackley, tort law, Oxford University press, 1st Edition, 2009, page 211

13 K. Horsey & E. Rackley, tort law, Oxford University press, 1st Edition, 2009, page 205-206

14 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 45-46

15 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 42-43

16 S.I Strong & L.Williams, tort law: text, cases, and materials, Oxford University Press, 1st Edition, 2008, page 74-75

In consideration to this case, both Dawn and Ivor knew about Mary’s vulnerability to alcohol, therefore they should taken more care in order to prevent Mary from drinking alcohol.

The courts will also consider the magnitude of the risk, which includes the likelihood of damage occurring and the seriousness of that damage. In this case, it was foreseeable that Mary would purchase alcoholic drinks; from Dawn’s shop and the “Jolly Badger", and unlike the case of Bolton v Stone [1951], where the balls have only hit the ground six times in thirty.17 Mary has only been completely sober for four months.

Generally the more serious the potential injury the more likely the defendant will be found to have fallen below the required standard of care should it materialise, once again the claimant’s disability may be taken to account. Paris v Stepney Borough Council [1951] illustrates this point.18

As for Dawn, arguably since Mary is an alcoholic one bottle of vodka would have a more serious consequence on her than an ordinary customer. As far as Ivor is concerned, who also knew about Mary’s addiction, five ciders would definitely have serious consequence on Mary.

As for the cost to the defendant of taking precautions against the risk, the lower the cost whether in terms of times or money, the more reasonable it is that someone should take them.19 In the present case, contrary to the case of Latimer v AEC Lt [1953] where it was held that the cost of taking precautions was unreasonable.20 Here, there is no evidence that taking precautions would be expensive and time consuming.

17 K. Horsey & E. Rackley, tort law, Oxford University press, 1st Edition, 2009, page 212

18 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 54

19 K. Horsey & E. Rackley, tort law, Oxford University press, 1st Edition, 2009, page 214

20 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 53

The final factor the Court considers is the importance of the defendant's purpose. There are many situations in which a defendant may be involved in an activity which is of importance to society and therefore is a reluctance to place heavy restrictions by imposing negligence liability.21 For example in Watt v Hertfordshire CC [1954], the Court held that as the defendant's aim was the saving of a life, it was reasonable to use the available vehicle rather than delay in order to wait for the correct one.22

In Mary's case, Dawn's action not taking reasonable step to prevent Mary from drinking does not have a social value, neither does Ivor's action. Moreover, purpose of their activity was a commercial one, selling alcohol and make a profit.

Clearly, Dawn and Ivor had failed to reach the required standard of care; therefore they are in breach of their duty.

Having proved that Dawn and Ivor breached their duty, Mary must now prove that the injuries suffered were caused by the breach of duty.

There are two types of causation; factual and legal causation. Winfield describes factual causation as "primarily a matter of historical mechanics" which means it involves establishing the facts of how something came about at a given time.23 In order to determine factual causation, the Court applies the "but for" test described by Lord Denning in Cork v Kirby MacLean [1952], and illustrated further in Barnett v Chelsea & Kensington Hospital [1969].24 Applying the “but for" test it seems clear that Mary’s injury would have not occurred but for Dawn’s and Ivor breach of their duty.

21 V. Bermingham & C. Brennan, tort law, Oxford University Press, 1st Edition, 2008, page 78

22 V. Bermingham & C. Brennan, tort law, Oxford University Press, 1st Edition, 2008, page 78

23 V. Bermingham & C. Brennan, tort law, Oxford University Press, 1st Edition, 2008, page 89

24 S.I Strong & L.Williams, tort law: text, cases, and materials, Oxford University Press, 1st Edition, 2008, page 89-90

Dawn could claim that Ivor’s action broke the chain of causation; however, Lord Wright in the orepesa [1943] stated the new cause which disturbs the sequences of events must be something which can as either unreasonable or extraneous.25 Although, Mary was served with five ciders while in the Jolly Bodger, Ivor’s action was not independent of Dawn original negligence.

Having satisfied the ‘but for’ test, Mary must also prove that the injuries she suffers is not too remote. To decide how much of the Mary’s loss Dawn and Ivor will be liable, the remoteness test needs to be applied.

The test states that a defendant will only be liable for the injuries that could be reasonably foreseen at the time of the breach. Injuries are too remote if a reasonable man would not have foreseen them. This test is known as the Wagon Mound No. 1 test.26 In this case the court held that the damage to the slipway was reasonably foreseeable, but given that oil needed to be heated to a very high temperature before it would catch fire; the fire damage was not foreseeable.27

For personal injury, the requirement is that some damage of a foreseeable kind must occur and it is not relevant that the specific damage suffered cannot be foreseen. The case of Smith v Leech Brain [1962] helps illustrate this point.28 It is often said that a defendant takes his victim as he find him/her. Clearly, knowing about condition, Dawn and Ivor could have foreseen a risk that Mary would be in danger of self- intoxication. The fact that they had not foresaw that Mary will suffer head injury is irrelevant.

25 J. Steele, Tort Law: Text, Cases, & Materials, Oxford University press, 1st Edition, 2007, page 202

26 [1961] / C. Elliott, F. Quinn, tort law, Pearson, 5th Edition, 2005, page 105-106

27 C. Elliott, F. Quinn, tort law, Pearson, 5th Edition, 2005, page 105-106

28 R. Kidner, casebook on Torts, Oxford University Press, 10th Edition, 2008, page 79

Thus, having decided that Dawn and Ivor have been negligent in their conduct towards Mary, it is necessary to consider whether Dawn and Ivor have any defences.

The first possible defence is the statutory defence of contributory negligence. It is a partial defence, therefore the Mary’s claim will not be completely defeated, but it will be reduce the damages that Dawn and Ivor would have to pay, as stated under section 1(1) of the Law Reform (Contributory Negligence) Act 1945.29 By section 1(1) , where a person suffers damage as result partly of his own fault and partly of the fault of any other person, his damages will be reduced by such an extent as the court thinks just and equitable having regard to the first person’s share in the responsibility for the damage.30

To raise this defence, Dawn and Ivor will have to show that Mary was careless for her own safety as illustrated in the case of Sayers v Harlow UDC [1958].31 On this basis, Mary has been careless in drinking a little too much. Thus any damages that Mary receives will probably be reduced by 25% due to this particular act of contributory negligence.

In conclusion, Mary definitely has a claim in negligence and recovers damages from both Dawn and Ivor but her damages will be reduced because her contributory negligence.

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29 K. Horsey & E. Rackley, tort law, Oxford University press, 1st Edition, 2009, page 267

30 K. Horsey & E. Rackley, tort law, Oxford University press, 1st Edition, 2009, page 267

31 M. Lunney, K. Oliphant, Tort Law: Text and Materials, Oxford University Press, 3rd Edition, 2008, page 264