The Modern Law of Negligence

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1 The Modern Law of Negligence Third Edition RABuckleyMA,DPhil of Lincoln's Inn, Barrister Professor of Law, University of Reading Butterworths London, Dublin, Edinburgh 1999

2 Contents Preface to the third edition Preface to the first edition Table of Statutes xix Table of Cases xxiii v vii PART ONE THE STRUCTURE OF THE MODERN LAW Chapter 1 Liability for carelessness 3 The changing fortunes of foreseeability 3 Generalisation: its rise and fall 3 Generalisation gives way to 'incrementalism' 4 Omissions 5 The language of the modern law 10 The erosion of traditional immunities 13 Negligent misstatement and economic loss 13 Lawyers 14 Buildings 14 Factors which can limit liability 15 'Floodgates' argument 16 Conflicting interests 16 Public policy and the sanctity of life 19 Illegal or anti-social conduct by the plaintiff 20 Existing law 24 Legislative or administrative solution more suitable? 25 Alternative remedy more appropriate? 26 Psychiatrie damage 27 The issues 27 Situations involving third parties 29 Situations where the plaintiff was himself in danger 32 Danger as a condition of liability 32 Reform? 36 Chapter 2 Evaluation of conduct 37 Foreseeability and objeetivity 37 Incapacity normally disregarded 37 The measurement of risk 40 Degree of probability 40 Gravity of härm 41 ix

3 x Contents Utility of the defendant's conduct 41 Extent of the precautions necessary for protection 42 Care and its quality 42 Protection of minorities 42 Relevance of common practice 43 Carelessness not to be inferred from subsequent adoption of protective measures 44 'Errors of judgment' 44 Proof of negligence 45 Causation 45 Res ipsa loquitur 47 Chapter 3 Causation and remoteness 52 Related issues distinguished 52 Causation and quantification 52 Nature of loss and measure of damages 53 The foreseeability test 55 Background 55 The present State of the law 57 Effect of extraneous circumstances 59 Intervening act by the plaintiff 63 Remoteness occasionally relevant 63 'Dilemma' situations 64 Suicide cases 64 Rescue 65 Intervention by third parties 66 'Deliberate and mischievous' acts 66 Negligence 69 Chapter 4 Assumption of risk, contribution, and exclusion 71 Scope of the chapter 71 Assumption of risk 71 Knowledge not enough 71 Relationship with the duty of care 74 Contributory negligence 76 Background 76 Basis of apportionment 77 Where the plaintiff contributes to the severity of his damage 81 Contributory negligence by children 83 Contributory negligence and contract 84 Contribution between wrongdoers 85 Where more than one is liable 85 When contribution can be claimed 86 Assessment of contribution 90 Exclusion of liability 92 Exclusion by contract 92 Non-contractual disclaimers 92 Non-contractual disclaimers and the Unfair Contract Terms Act 94

4 Contents PART TWO NEGLIGENCE AND ECONOMIC INTERESTS xi Chapter 5 Liability for negligent misstatement 99 The impact ofhedley Byrne 99 The concept of the 'special relationship' 99 Types of misstatement 102 Proving breach of duty 103 Where delicate Professional judgments are involved 103 Knowledge or skill 104 Standard of care 104 Public policy 105 Only to be invoked in clear cases 105 Advocate's immunity 106 Witnesses 109 Arbitrators and mutual valuers 111 Social occasions 112 Liability only in very exceptional cases 112 Claims by third parties 114 Fear of indeterminate liability 114 Surveyors 114 Solicitors 115 Third party in negotiation with recipient of advice 116 References 117 Auditors and the extent of liability 118 Omissions 123 Focus upon question of law 123 Disclaimers of liability 126 When possible 126 Requirements 127 Effect of the Unfair Contract Terms Act 127 Contributory negligence 129 Relevance of the defence 129 Chapter 6 Financial loss caused by careless acts 131 The background to the modern law 131 Fear of multiplicity of Claims 131 Effect of Hedley Byrne 132 Categories and changes 133 Where the plaintiff s property is reduced in value by the defendant's negligence 134 Older approach still valid 134 An exception? 139 Where the plaintiff suffers economic loss which is consequential upon injury or damage to a third party 142 Traditional approach reasserted 142 Confirmation of orthodox view 144 Possibility of exceptions to the general rule rejected 145 Other cases of economic loss 149 Recovery possible in some cases 149

5 xii Contents 'Assumption of responsibility' 150 Statutory powers 152 Losses due to failure to insure 153 Recovery of economic loss in public nuisance 154 Abolition of actions for loss of Services 154 PART THREE DAMAGES AND THEIR ASSESSMENT Chapter 7 The making of awards in personal injury cases 157 Heads of damage 157 Special damages 157 General damages 158 Mitigation 161 Plaintiff s State of knowledge 161 Onus of proof 162 Subsequent events 163 Allowance for contingencies 163 Occurrence of events before trial 164 Provisional damages 165 Other procedures for postponing assessment 166 Interest 166 Chapter 8 Damages recoverable for personal injury 168 Non-pecuniary loss 168 Pain and suffering 168 Reduced life expectancy 169 Loss of amenity 170 Relevance of awards in other cases 170 Catastrophic injury cases 172 Unconscious plaintiffs 173 Effect ofinflation 173 Financial loss 174 Calculation of future lost earnings 174 Damages for the 'lost years' 180 Relevance of gains 181 Relationship with State benefits: Social Security (Recovery of Benefits) Act Tax 185 Pension contributions not recoverable 185 Costofcare 186 General calculation 186 Living expenses sometimes deductible 188 Care by relatives 189 Structured settlements 190 Scope for reform 191 Future of tort as a compensation System 191 Basis of liability 192 Periodic payments? 192

6 Contents xiii Chapter 9 Cases involving death 194 Survival of causes of action 194 Law Reform (Miscellaneous Provisions) Act Claims by dependants 196 Background 196 Who can claim 196 The dependants 198 How damages are assessed 200 Loss of Services of mother 206 Interest 207 Apportionment 208 Disregard of benefits 209 Public policy 211 Damages for bereavement 212 Fixed sum to be awarded to spouses or parents 212 Funeral expenses 213 Chapter 10 Property damage and other losses 215 Chatteis 215 'Restitutio in integrum' 215 Repair or difference in value? 215 Loss of use 217 Other losses 218 Gains by the plaintiff 219 Land and buildings 220 Reinstatement or difference in value 220 Gains 222 Negligent surveys 223 Date of assessment 225 Additional losses 226 New areas of recovery 227 Chapter 11 Limitation of actions 228 General principles 228 Time limits 228 Limitation and dismissal for want of prosecution 231 Personal injuries 233 Special time limit 233 Dateofknowledge 233 Discretion to override the time limit 237 Concealment of the cause of action 241 Start of period postponed 241 Latent damage in cases other than personal injury 243 Background 243 Latent Damage Act Reform? 248

7 xiv Contents PART FOUR NEGLIGENCE AGAINST A STATUTORY BACKGROUND Chapter 12 Negligence and the exerciseofstatutorypowers 251 The problem of discretion 251 Introduction 251 The policy and operational distinction 253 The policy 'immunity' 256 The current position after Bedford and Stovin 258 Issues affecting liability 261 Competing public interests 261 Statutory purpose 266 Availability of other remedies 267 Carelessness and policy 268 Public and private law 272 Omissions 273 Summary 274 Chapter 13 The action for breach of statutory duty 276 The nature of liability 276 Introduction 276 Background 277 The scope of the Act 281 Protection of a'class' 281 Relevance of Provision in the Act for a penalty 285 A new presumption? 289 The relevance of fault 290 Defences and relationship with criminal liability 292 Contributory negligence and volenti non fit injuria 292 Where no offence has been committed 292 Reform? 293 An express provision? 293 Difficulties with the Law Commission's proposal 294 Chapter 14 Employers' liability to their employees 295 The common law duty 295 Introduction 295 Tort and contract 296 Safe System of work 297 Defective equipment 303 Non-delegable duty 304 Statutory duties 306 Introduction 306 Dangerous machinery 307 Floors and access 309 Injury caused by lifting heavy loads 310 Provision of safety equipment 312 Causation and contributory negligence 312

8 Contents xv Relationship between statutory and common law duties 315 Separation 315 PART FIVE SPECIAL AREAS OF LIABILITY Chapter 15 Professional negligence 319 General principles 319 Standard of care 319 Clinical negligence 322 Difficultiesofproof 322 Relevance of common practice 323 Where there are differing Professional schools of thought 325 The duty to warn 326 Contractual negligence 329 Lawyers 330 Advocate's immunity 330 Typesof claim 330 Tort and contract 332 Liability and its extent 338 Land, valuation, and construction 339 The 'property' professions 339 Valuation 339 Design and construction 342 Financial Services 343 Accountants 343 Investment advice 344 Chapter 16 Liability of occupiers 345 The scope of 'occupation' 345 What can be 'occupied'? 345 Who is an 'occupier'? 345 Liability to visitors 346 Persons qualifying as 'visitors' 346 The 'common duty of care' 347 Entry pursuant to a contract 350 Warnings, volenti, and contributory negligence 350 Employment of independent contractors 352 Property damage 353 Liability to persons other than visitors 355 Persons covered by the Occupiers' Liability Act The nature of the duty imposed by the 1984 Act 356 Exclusion of liability 358 Visitors and non-business occupiers 358 Persons other than visitors 360 Visitors and business occupiers 360 When the Acts do not apply 361 Relationship with ordinary negligence 361 Liability of non-occupiers 363

9 xvi Contents Users of the highway 364 Where liability has been excluded 366 Landlords and the Defective Premises Act 1972, s Chapter 17 Defective products 369 The common law 369 Introduction 369 The duty 371 Intermediate inspection 372 Proof of negligence 374 Economic loss 376 Strict liability: the Consumer Protection Act Background 377 Strict liability 377 'Products' and 'producers' 379 Agricultural products 379 'Defect' 380 Defences 381 Contributory negligence, exclusion and limitation of liability 382 Damage 383 Evaluation 384 Chapter 18 Vicarious liability 385 Introduction 385 Background 385 Who is a servant? 387 Borrowed servants 389 The course of employment 390 Wrongful method of Performance 390 The master's indemnity 396 Independent contractors and non-delegable duties 397 The concept of non-delegable duty 397 'Collateral negligence' 402 'Agents' 403 Special type of non-delegable duty upon car-owners in certain cases 403 Other situations? 406 PART SIX TORT, THE STATE AND THE FUTURE Chapter 19 Insurance and state Provision 409 Introduction 409 The role of insurance 410 Negligence: appearance and reality 410 Road Traffic Act 413 The Motor Insurers' Bureau 414

10 Contents Employers' liability 415 Where the holder of a liability policy is insolvent 416 Injury at work 417 Background and structure 417 Accidents and diseases 417 Disablement Benefit 418 Vaccine damage 419 Criminal injuries 419 Criminal Injuries Compensation Scheme 419 xvii Chapter 20 Reform? 421 Criticisms of the existing System 421 Introduction 421 Inefficiency 421 Arbitrariness 422 Insurance and the moral basis of negligence 423 Various proposals for reform 423 The Pearson Commission 423 The New Zealand scheme 426 Proposals by members of the Oxford Centre for Socio-Legal Studies 427 Focus upon disease 429 Possible changes in the bürden of proof 430 Extension of strict liability 431 Conclusions 432 Index 435

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