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Published: Fri, 02 Feb 2018
Exceptions to principles of negligence
This paper details a proposal for an undergraduate dissertation to be written in the law of tort – specifically with regard to exceptions to the general law relating to the principles of negligence – with a view to producing what is considered to be a full and thorough discussion that is both analytical and evaluative in its remit. With this in mind, this study looks to focus in upon two specific decisions that recently arose in the form of the case of Fairchild v. Glenhaven Funeral Services Ltd & Others  UKHL 22 and Chester v. Afshar  1 AC 134.
Undergraduate Dissertation Proposal
Compare & contrast the respective decisions in Fairchild v. Glenhaven Funeral Services Ltd & Others  & Chester v. Afshar  to determine which of these exceptions is most valuable to the ongoing development of the law of negligence in the context of the recognition of the importance of the duty of care, causation and remoteness of damage in any given case as and where it arises.
Rationale for Choosing the Topic
The topic was chosen in view of the fact that every day in the UK there are instances of negligence perpetrated by both individuals and groups in both corporate and non-corporate environments against other individuals accidentally and/or on purpose and, as a result, cases of personal injury are never far from the public eye – both in the media and through advertising – with a view to raising awareness and bringing about the resolution of issues of concern. Therefore, due to the prominence of cases of negligence and personal injury within the English legal system this study will not only consider the more general nature and scope of the law but also, more specifically, the aforementioned decisions of Fairchild v. Glenhaven Funeral Services Ltd and Others  & Chester v. Afshar.  The reason for this is that there is a need to recognise the exceptions that are understood as applying to the traditional rules of the law of negligence along with their value to the law’s development in this regard.
In seeking to effectively complete this study it is necessary to look to answer the following research questions that vary in how ‘closed’ or ‘open’ they are with a view to furthering this discussion –
(a) What is the law of negligence?
(b) What is required for a claim of negligence?
(c) What are the general rules that have been recognised in this regard?
(d) What is within the remit of the duty of care in a given case of negligence?
(e) What is within the remit of causation and remoteness in a given case of negligence?
(f) Which of the exceptions in the decisions in Fairchild v. Glenhaven Funeral Services Ltd & Others  and Chester v. Afshar  are considered to be most valuable for the ongoing development of the law of negligence?
(g) What was decided in the case of Fairchild v. Glenhaven Funeral Services Ltd & Others  and why did that proved to be the case?
(h) What was decided in the case of Chester v. Afshar  and why did that proved to be the case?
Description of the Project
In looking to effectively begin this study and put the cases central to this discussion into their given context, it is to be appreciated that the tort of negligence is considered largely dependent upon the recognition of a duty of care owed by one part to another being breached through a failure to exercise the requisite care and skill in a given case. By way of illustration, Lord Wright recognised in Lochgelly Iron & Coal v. M’Mullan  that “negligence means more than heedless or careless conduct” because “it properly connotes the complex concept of duty, breach and damage thereby suffered by the person on whom the duty was owing”. However, the key decision was recognised in Donoghue v. Stevenson  that involved the consumption of a drink containing part of a decomposed snail in a public bar that neither her friend (who bought the drink) nor the shopkeeper who sold the drink were aware of and so the manufacturer was sued for negligence and the House of Lords agreed there was a valid claim. Therefore, it was determined the key elements of a successful claim are founded on – (a) a duty of care; (b) that has been breached; (c) that was proximate and not too remote; (d) leading to harm.  However, where there has been a breach of such a duty, it is not possible for there to be liability without a claimant looking to establish they were owed a duty of care by the defendant and there had been a consequent breach of that duty. Therefore, a defendant is in breach if their conduct is found to have fallen short of – (a) a general standard of care; (b) a ‘special standard’; or (c) the conduct expected of a reasonable person. 
The standard of care in a given case is usually what is considered aspirational for a ‘reasonable person’ in the same situation.  However, if someone holds themselves out as having a certain skill or expertise (like a doctor) so they cannot be held to the same standard that could be expected of an ordinary man so it becomes what can be expected of a similar ‘reasonable professional’.  Moreover, where a defendant is found to have complied with common practice as a precaution against liability then they will usually be considered to have met a reasonable standard unless the courts consider this practice negligent.  With a view to illustrating the point it was recognised in Roe v. Minister of Health  that a defendant would only be liable if a ‘reasonable person’ would have foreseen the same loss or damage from their acts and omissions. This is because the greater the risk, the greater the precautions will be required in the circumstances  – although it must also be questioned about what practical precautions could have been taken in the circumstances.  There is also a need to consider the level of proximity regarding whether a particular matter is sufficiently related to a legally recognisable ‘injury’ by evaluating the matter of causation in terms of cause-in-fact via the ‘but for test’ along with the proximate cause.  On this basis, the loss or ‘injury’ sustained in a given case must not be too remote to look to guarantee any liability is fairly placed upon the right defendant in a case such as this. 
The issue of ‘causation’ generally relates to the ‘causal relationship between conduct and result’ so as to serve to connect the conduct of an individual with the resulting harm  in a concerted effort to produce results generally considered both just and fair in their nature reflected in the section in the law of negligence by following the stages necessary to show such an offence  . However, whilst a ‘chain of causation’ will not be found to be present in all cases, the court may still look to hold the defendant out to be liable for the plaintiff’s ‘injuries’. Moreover, in Sindell v. Abbott Laboratories  it was recognised that where the plaintiff consumed medication that made them ill because of negligence during its manufacture, the actual manufacturer could not be ascertained for certain because more than one company had made it so that liability was difficult to qualify and quantify. Therefore, the defendants were to be held liable proportionately to their market shares for the amount of risk it contributed to the occasioning of harm since the party that caused the ‘injury’ could not be ascertained for certain.
Specifically, in the context of the more general discussion of the law of negligence that will have been initially undertaken, there is a need to evaluate the two decisions that have already been recognised as being central to this study. This effectively means recognising which of the aforementioned two decisions is most valuable for the ongoing development of the law of negligence pertaining to personal injury. Therefore, the case of Fairchild v. Glenhaven Funeral Services Ltd & Others  served to be representative of a significant development in relation to the test for causation in cases of negligence for personal injury. The employee in this case had looked to work for two separate companies for a number of years but it was not possible to say when working for which company the employee contracted mesothelioma that is fatal once it has been contracted but not actually made any the worse with more exposure to the same conditions. As a result, both of the companies the employee in this case was working for at this time looked to contest the claim on the basis that there was not enough evidence to show that there was causation to be proved against either of the two employers in the circumstances. With this in mind, the House of Lords held in this case this meant that there was a recognised statutory duty with a view to then providing for the protection of employees. Then, in the event that it is possible that more than one person could be deemed responsible for the death of the employee but it is not possible to say which of them was actually responsible, then it is to be appreciated that public policy could serve to dictate the standard causation rules must be varied to account for this. On this basis, the House of Lords deemed that in the circumstances of this case there was a need to look to make both companies liable for the risk of harm they had run leading to the employee’s ‘injury’ without having to resort to the rule in McGhee v. National Coal Board  that causation had been proved. However, whilst the whole of the House of Lords sitting in this case arrived at the same result, each of their Lordships formulated the replies that they gave in somewhat differing manners. By way of illustration, in presiding in this case Lord Bingham for one served to establish six conditions that all had to be fulfilled before the exception that came to be recognised in this case could apply. Therefore, in holding that the negligent defendant companies in this case should be held liable even without proof of causation, Lord Bingham determined that the injustice involved with imposing liability on a ‘duty-breaking employer’ is heavily outweighed by the denial of the victim’s redress.
The decision in Chester v. Afshar  is also considered to be significant to the ongoing development of the law of negligence as it relates to personal injury since it has generally come to be recognised that once causation has been sufficiently proved, the claimant ought only to be entitled to recompense for the harm that was caused by the negligence in the circumstances of any given case as and when it arises. Specifically, Afshar advised Chester to have back surgery but failed to warn her there was a small but unavoidable risk the operation might bring about an adverse result. With this in mind, it is interesting to note that the judge did not find that the operation was performed negligently nor, more importantly, that Chester would not have proceeded with the operation had a warning been given. Nevertheless, the House of Lords came to a majority decision in favour of Chester because it was felt “Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles” – although this did not lead to “a modest solution as a reflection of the harm caused. As a result, Chester was provided with an extensive award of damages by way of redress a full award of damages for the back injury due to moving the basis of causation away from proof that negligence in this case actually caused harm. However, whilst this kind of ‘winner takes all’ approach can only serve to exacerbate the problems caused by instances of injustice where the necessary causation in a particular case is only proved in the circumstances through the utilisation of creativity by the judiciary unless it comes within the remit of the decision in Barker v. Corus.  The House of Lords were recognised as being in agreement cases of personal injury fell within what was considered to be a special category when looking to determine the nature of any departure from traditional principles of causation. However, those efforts that were made at serving to provide for the extension of the principles of causation beyond those cases of personal injury and into other legal  or financial matters  have failed. This is because, by way of example, in the unreported case of Beary v. Pall Mall Investments  the claimant sought to effectively equate advice on finance with advice in relation medical treatment so the claimant in this case was then able to rely upon the decision in Chester v. Afshar  that Lord Justice Dyson considered to be “breathtakingly ambitious, contrary to authority and, . . . , wrong”. 
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