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Contract and tort


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Duty of care

Occupier's liability

Restriction and exclusion of liability

What's new


The tort of negligence is part of English common law and is based almost entirely on the cases decided by the courts. The subject takes up an entire volume of Halsbury's Laws of England. This page isintended to be a very brief introduction to the subject.

Duty of care

The tort of negligence is the most common type of tort in terms of decided cases. The essential features to be established for the tort of negligence are:

* The existence of a duty of care between the person committing the wrong (the ‘tortfeasor’ or defendant) and the person who is wronged (the ‘injured party’ or claimant);

* A breach of that duty by the defendant (measured by the standard of care shown by the ‘reasonable man’);

* injury or loss suffered by the claimant as a direct result of the defendant’s breach;

Depending upon the legal commentator, arguably there are three further factors which a court must consider when establishing duty of care; namely that:

* the harm was ‘reasonably foreseeable’;

* the defendant and claimant were in a relationship of ‘proximity’; and that

* it is fair, just and reasonable to impose liability on the defendant.

The third of the first three elements, that injury or loss suffered by the claimant as a direct result of the defendant’s breach, gives rise to the need for the claimant to prove that the loss or damage was caused by the action or omission of the defendant.

The claimant must then show that the defendant’s breach of duty caused the damage. There is said to be a ‘but-for’ test; i.e. but for the defendant’s tort, would the claimant have suffered the loss or damage? If the answer is no, then the causation test is satisfied. If it is yes, the defendant will not be liable, even if he has acted negligently. This may be a straightforward issu, but not always.

If the action of a third party has broken the chain of causation (the concept of ‘Novus Actus Interveniens’ [literally ‘intervention of a new act’]), the tort will not be made out. This concept applies generally in the law of tort.

Apart from the act of a third party, a defendant may raise certain defences to liability for commission of the tort of negligence, notably:

* If the claimant also acted negligently,and his negligence contributed to the damage he incurred, then the court will apportion responsibility between the claimant and the defendant and adjust the claimant’s damages;

* The defendant may avoid all liability if he can prove that the claimant consented to a particular risk of injury (‘volenti non fit injuria’).

An early landmark case is Donoghue v Stevenson [1932] AC 562

in which the House of Lords pronounced the general priunciple that a person has a general duty to “…take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…[i.e.] 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 into question”

Further reading

In addition to the usual sources (see Law, lawmakers and lawyers), The British Institute of International and Comparative Law have published an Introduction to English tort law which discusses negligence in some detail.

Occupier's liability

The Occupiers' Liability Act 1957 provides for an occupier of premises to owe a 'common duty of care' to all his visitors. This is common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

The circumstances relevant for these purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases:

* an occupier must be prepared for children to be less careful than adults; and

* an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

Standard of duty of care to visitors

The legislation statrs that in determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances.

For example:

* where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

* where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

Persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.

Wheat v E Lacon and Company Limited : [1966] UKHL 1

Brewery company owned public house with rooms; a manager was in occupation and allowed to let rooms to holiday visitors; brewery company found to be the 'occupiers' of the premises; guest fell down back stairs and suffered fatal injury; staircase steep but not dangerously so; unlit at time probably due to third party action; owner held not liable.

[Original text of the case report supplied by BAILII gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]

Restriction and exclusion of liability

It is possible to restrict, modify or exclude the duty of care to any visitor or visitors by agreement or otherwise, for example by a disclaimer of liability which readily visible by a visitor.

What’s new item [see What’s new page or archive for full item]:

3/01/2017 Law firm succeeds in appeal against GBP 2m damages ruling

Wright v Lewis Silkin LLP

[2016] EWCA Civ 1308

The Court of Appeal allowed part of an appeal by Lewis Silkin LLP against an award for damages for professional negligence. GBP 2m of the award, which arose out of the claimant's 20% chance of securing voluntary payment of a judgment debt, was too remote and should therefore be set aside.

29/01/2015: Companies House liable for company’s failure due to administrative error

Sebry v Companies House and another
[2015] EWHC 115 (QB)

Companies House erroneously described a company as being in liquidation. The High Court ruled on a preliminary legal issue that Companies House, i.e. the Registrar of Companies, owed a duty of care when entering a winding up order on the Register to take reasonable care to ensure that the Order was not registered against the wrong company. The duty was owed to any company which was not in liquidation but which was wrongly recorded on the register as having been wound up by order of the court.

20/12/2013: Court of Appeal rules on accident repair and courtesy car costs
Coles and others v Hetherton and others
[2013] EWCA Civ 1704 Hearing Date: 20 December 2013

This appeal case concerned on their face thirteen comparatively small claims which arose out of minor road traffic accidents. However in reality these were test cases in a ‘major battle’ between large motor insurers, with Royal & Sun Alliance Insurance plc ("RSAI") on one side and Provident Insurance plc ("Provident") and Allianz Insurance plc ("Allianz") on the other.

In each case the claimant had motor insurance with RSAI and the claimant's vehicle was damaged as a result of the admitted negligence of the defendant driver, who was insured by either Provident or Allianz. In each case the claimant's motor policy contained an option whereby the insured could have his vehicle reinstated if the cost of repairs were judged to be less than the vehicle's market value. If that option was chosen then the insured had a further choice under the policy terms; he could elect to engage his own repairer or elect to use RSAI's system for repairing vehicles. If the policyholder chose the latter, the policy also gave him the option of using a ‘courtesy car’ if he wanted one.

In all 13 cases the claimant policyholder chose the RSAI repair system option and his vehicle was repaired. In some of the cases the claimant also decided to take advantage of the courtesy car offer. In each case RSAI, exercising its rights of subrogation [the right of the insurer to take over the claims of the policy holder who it insured], had brought a claim (in the name of the insured policy holder) against the negligent driver, claiming the total cost of the repairs paid out by it, which included some ancillary charges and the cost of the courtesy car.

The main question of principle at issue was whether the claimant (in reality RSAI) could recover the full cost of the repairs to the vehicle (as invoiced to RSAI) when it has been repaired using the RSAI repair system, which has been set up through another company in the RSAI group. Provident and Allianz argued that the RSAI repair system had the effect of inflating by about 25% the total cost of claims for repairs made against the defendant tortfeasor  [i.e. the party who committed the tort and caused damage] (in reality, his insurer) and that the claimant was not entitled, as a matter of law, to claim that full sum, but only about 75% of it. There was a subsidiary question concerning the right to recover the cost of the courtesy car.

The Court of Appeal was told that there were a number of claims in the County Courts where similar issues had arisen and that the decisions of County Court judges had not all been to the like effect. That was one reason why permission was granted to appeal the judgments in the present cases.

In order to test the issues of principle in the 13 cases, a judge ordered that there be a determination of three preliminary issues. The three preliminary issues were:

(i) Measure of Loss: where a vehicle is damaged as a result of negligence and is reasonably repaired (rather than written off), is the measure of the claimant's loss taken as the reasonable cost of repair?

(ii) Test of ‘reasonable repair charge’: if a claimant's insurer has arranged repair, is the reasonableness of the repair charge to be judged by reference to: (a) what a person in the position of the claimant could obtain on the open market; or (b) what his or her insurer could obtain on the open market?

(iii) Recoverable amount: where a vehicle is not a write-off and an insurer indemnifies the insured by having repairs performed and paying charges for those repairs, and where the amount claimed is no more than the reasonable cost of repair (on the correct legal test determined under (ii) above), is that amount recoverable?

The judge's answers to the first two preliminary issues were, in short, (i) yes; (ii) the test set out in (ii)(a). The judge was asked not to answer the third issue but he did make some statements of principle on that issue.

Providence and Allianz, as insurers acting in the name of their policy holders, appealed and contended that the judge's answers to the three preliminary questions had been wrong.

The Court of Appeal dismissed the appeal. In summary, the court ruled as follows:

(1) It was established law that:

(i) where a chattel [i.e. tangible personal property] was damaged by the negligence of another that loss (the 'direct' loss) was suffered as soon as the chattel was damaged;
(ii) the proper measure of that loss was the diminution in value that the chattel had suffered as a result of the negligence of the defendant;
(iii) if the chattel could be economically repaired, the claimant was entitled to have it repaired at the costs of the wrongdoer, although the claimant was not obliged to repair the chattel to recover the direct loss suffered;
(iv) events occurring after the infliction of the damage were irrelevant to calculating the diminution in value measure of damages; and
(v) generally, the practical way that the courts had calculated that diminution in value was to ask how much would be the reasonable cost of repair so as to put the chattel back in the state it had been in before it was damaged. Only if the sum claimed appeared to be clearly excessive would the court be justified in investigating whether that sum exceeded the cost that the claimant would have incurred in having the repairs carried out by a reputable repairer.

A claim for deprivation, or loss of use, was a claim for general damages [which does not require special proof].. However, if the chattel concerned was one that was normally used in the hope of making a profit, (such as a trading ship, a lorry or a taxi), then a claim for profits lost because the chattel could not be used for that trading would constitute special damages [which does require proof by evidence].

If a claimant, whose damaged chattel was capable of economic repair, chose to repair it at a cost which was not reasonable, then the reason why he could not recover that unreasonable cost as damages would be because that cost did not represent the diminution in value of the chattel. What was the diminution in value of a chattel of the chattel or the 'reasonable cost of repair' would always be a question of fact for the trial judge to determine if it was in dispute.

On a strict analysis of the law, preliminary issue one had asked the wrong question because the measure of the claimant's loss that resulted from the damage inflicted by the tortfeasor was the diminution in value of the vehicle. With that important qualification, the answer to preliminary issue one was: 'yes', because the 'reasonable cost of repair' was, as a rule of thumb, taken as representing the diminution in value of the chattel that had been suffered as a result of the damage caused by the negligence of the defendant.

(2) It was established law that: (i) even in a case where a claimant was insured in respect of the loss suffered as a result of the tortfeasor's wrong and the insurer had indemnified the insured and became subrogated to the insured's rights against the tortfeasor, the cause of action against the tortfeasor remained that of the claimant, unless it was specifically assigned to the insurer; and (ii) in respect of a loss which was covered by insurance, the benefits obtained under the insurance were irrelevant in assessing the correct measure of damages recoverable. Defendants had to accept that a claimant's insurance arrangements were irrelevant and could not be prayed in aid to reduce their liabilities.

The answer to preliminary issue two was the same as that of the judge: if the claimant's insurer had arranged the repair, the reasonableness of the repair charge was to be judged by reference to what a person in the position of the claimant could obtain on the open market.

(3) A claim in respect of the physical damage to the vehicle was a claim in general damages and the measure of damages recoverable was the monetary amount of the diminution in value of the vehicle caused by the negligence of the defendant. That diminution in value of the vehicle was usually calculated, as a rule of thumb, by the reasonable cost of repairs (to the claimant) in a case where the vehicle was capable of economic repair.If, as was assumed by the form of the question in the third preliminary issue, it was the insurer that had arranged and paid for the repairs to the claimant's vehicle and the claimant then sued for the cost incurred by the insurer as the sum representing the diminution in value of the vehicle resulting from the negligence of the defendant, the court had only one question to consider. It was whether the actual sum claimed was equal to or less than the notional sum that claimant would have paid, by way of a reasonable cost of repair, if he had gone into the open marker to have those repairs done.

The position of the cost of a courtesy car was different, because that cost could not be a part of the repair costs. If a claimant was deprived of his chattel for a time, he could recover a sum by way of general damages for that deprivation. The cases on what sums could be recovered when a claimant had hired a replacement vehicle on a credit hire basis all established that a claimant could claim that cost of replacement as damages, provided he had reasonably mitigated his loss and that the cost contained no element that was not legally recoverable. If, under the terms of the claimant's insurance, he was entitled to be indemnified by having a replacement car provided without further charge to him, then the claimant could still claim general damages for the deprivation of his own vehicle. Where the replacement car had been provided as part of the indemnity under the motor insurance of the claimant, the general damages he recovered in respect of the deprivation of his own vehicle would be held for the benefit of his insurer.

[Original text of the case report supplied by BAILII gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v1.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]

[Page cupdated: 0401/2017


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