Negligence may be explained as careless conduct injuring another. For the injured party (claimant) to succeed in a negligence claim, he must prove:
- That the defendant (usually the employer) owed him a duty of care;
- That this duty was breached. The duty of care is breached if the defendant has failed to exercise the reasonable care expected of a reasonable man in the circumstances.; and
- That the claimant was injured as a result of the breach. The claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm and that the harm would not have occurred “but for” the negligence of the defendant.
The duty of care
Prior to 1932 there was no generalised duty of care in negligence. The tort was only applied in particular situations where the courts had decided that a duty should be owed, such as road accidents or dangerous goods.
In Donoghue v Stevenson (1932) Lord Atkin attempted to lay down a general principle which would cover all the circumstances where there could be liability for negligence. He said: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
The requirements that must now be satisfied before a duty of care is held to exist were established by Lord Bridge in Caparo Industries v Dickman (1990):
- foreseeability of the damage, i.e. whether a ‘reasonable person’ would have foreseen damage in the circumstances
- a sufficiently ‘proximate’ relationship between the parties (i.e. a neighbour relationship)
- it must be fair, just and reasonable to impose such a duty
Relationships that are sufficiently proximate to be deemed a neighbour relationship include:
- Employer to employees
- Employer to contractor and contractors employees
- Occupier to authorised visitors
The common law duty of care owed by an employer to its employees was defined in the case of Wilson’s and Clyde Coal Co v English (1938). In this case, the employer was compelled by law to employ a colliery agent who was in charge of safety in the mine. Nonetheless, when an accident occurred, the employer was held liable. The case confirmed that the employer’s duty of care to his employees was personal and could not be delegated to a manager or safety advisor.
The case also determined that employers must provide:
- A safe place of work and equipment
- Safe systems of work
- Reasonably competent co-workers
Defences against claims of negligence
In the first instance defences against negligence rely on disproving any of the three steps outlined above, i.e.
- The defendant did not owe the claimant a duty of care
- The duty of care was not breached (the defendant had taken reasonable care / the loss was not foreseeable / it was an ‘act of God’)
- The breach of the duty of care did not give rise to the injury
In addition the following may also be used as a defence:
- The injury was the sole fault of the employee
- The injury was the sole fault of a third party
- The proceedings were not brought within the specified time limit (see notes on the Limitations Act below).
Historically the defence of “volenti non fit injuria” (to a willing person no injury is done) was used on the basis that certain trades were inherently dangerous and that the workers needed to rely on their own skill to keep themselves safe. Since the 1940’s the courts have been generally unwilling to accept a “volenti” defence.