Negligence in English Law - Essay Example

Negligence in English Law Contributory negligence provides an important defence in common law. It arises, when the plaintiff fails to exercise reasonable care, in order to safeguard his property or person. As per the law, every individual is expected to protect himself, under every circumstance and at all times. The notion of proportional liability is alien to the common law, and on the establishment of contributory negligence, the plaintiff’s claim is set aside in its totality. This permits a negligent defendant to rely upon a comparatively minor piece of carelessness on the part of the plaintiff, to evade liability for his much more serious negligent behaviour. This is patently inequitable, and under such circumstances the courts make serious efforts to discount the presence of contributory negligence (Murdoch, 2002). These judicial gymnastics, at times seem to defy the import of the evidence presented in the case. These observations are clearly brought out in the case of Astley v Austrust Ltd. In this case, a trustee company sued a firm of solicitors for breach of contract and for providing negligent advice. The trial court judge discerned contributory negligence on the part of the plaintiff, and ruled that the responsibility for the loss was to be shared equally by the plaintiff and defendant (Astley v Austrust Ltd, 1999). This decision was set aside by the Full Court in South Australia, which held that there was no contributory negligence. This court went on to rule that contributory negligence could not arise, in instances where the loss to the plaintiff was of the very nature that it was the duty of the defendant to prevent, by providing appropriate professional advice (Astley v Austrust Ltd, 1999). However, in the High Court, it was held that apportionment legislation was inapplicable to contributory negligence of the plaintiff; if the defendant had not protected the plaintiff from such damage. Thus, contributory negligence can be attributed to a plaintiff, in instances where the principal duty of the defendant is to prevent such damage to the plaintiff (Astley v Austrust Ltd, 1999). In addition to being able to predict damage and the closeness of the parties; it should be equitable and reasonable to enforce a duty of care. There have been several cases, where the courts have ruled that the duty of care, inherent in psychiatric injury that was caused on account of negligence, was present due to policy considerations (Victim of self – inflicted injuries owes no duty of care, 2000). In Caparo Industries plc v Dickman, the books of a public company had been audited by a firm of accountants. Thereafter this firm provided advice regarding the financial status of the audited company. The plaintiff relied on this advice and invested in the company. The court rejected the negligence claim of the plaintiff against the firm, on the grounds of duty of care (Caparo Industries plc v Dickman, 1990 ). In this case, the court stressed that although foreseeability is a necessary condition, it is not sufficient by itself. Foreseeability has to be supplemented with fairness and reasonableness, if a duty of care is to be imposed. In the area of negligently inflicted psychiatric injury, policy considerations assume considerable importance (Victim of self – inflicted injuries owes no duty of care, 2000). In McLoughlin v O’Brian the House of Lords opined that foreseeability in English law limits the individuals to whom a duty of care is owed, and the outcomes for which an individual could be held liable (McLoughlin v OBrian , 1983). In Alcock v Chief Constable fo South Yorkshire Police, the Law Lords held that the concept of proximity was an artificial construct that relied to a greater degree on the court’s perception of what was a reasonable area for imposing liability. It was in no manner related to any procedure based on the analytic process (Alcock v. Chief Constable of South Yorkshire Police , 1992). Thus, policy considerations dictated the restrictions to be imposed on a duty of care in this area, and not any considerations founded upon logical necessities. It is possible for a professional to establish that he does not owe a duty of care to a particular plaintiff, in instances where there is no individual communication between them. For this to hold good, the plaintiff should be a member of a group of people who can make use of the information provided by the professional (Murdoch, 2002). In Al Saudi Banque v Clarke Pixely, the plaintiffs relied on the advice of a firm of accountants to lend money to the company. The court rejected the claim of negligence brought by these investors, against the firm (Al Saudi Banque v Clarke Pixley , 1990). A specific limitation on the duty of care imposed upon a professional adviser was established in South Australia Asset Management Corporation v York Montague Ltd. In this case the House of Lords ruled that a person who provided information, should not be held liable for more than the consequences of the information being incorrect (South Australia Asset Management Corporation v York Montague Ltd , 1997). The courts consider several characteristics of the plaintiff, such as his knowledge, experience and sophistication, whilst dealing with his claim of negligence, in respect of the advice tendered by a professional. Furthermore, the courts take into consideration, whether the professional adviser had displayed reasonable care and skill (Murdoch, 2002). This was illustrated in Yager v Fishman, wherein Goddard LJ opined that a solicitor’s advice to a non – businessman could be expected to differ substantially from that provided to an experienced businessman. As such, it was not the duty of a solicitor to provide such advice (Yager v Fishman , 1944). Damages for negligence in professional advice can be claimed, only if the plaintiff can prove that the loss resulted from the negligence of the professional. The courts examine whether the plaintiff had relied on the advice of the professional to conduct a particular transaction. If the plaintiff had acted unreasonably, in respect of the advice, then the courts would attribute contributory negligence to him, and reduce the quantum of damages claimed (Murdoch, 2002). In Argy v Blunts, it was held that the plaintiff was found to be negligent to such an extent, that the negligent professional advice could not be held to have induced him to undergo a loss (Argy v Blunts , 1990). Psychiatric injuries, on occasion, involve claims by persons who profess nervous shock, due to having been involved in an accident. Such individuals are not involved directly in the accident. In order to exercise control over such claims and to restrict their number, English law imposes control systems. This was the gist of the ruling given by the Law Lords in Page v Smith (Page v Smith , 1996). The control mechanisms specified for psychiatric injury, resulting from negligence are set out in the sequel. First, there should be strong bonds of love and affection between the victim and the claimant. Second, the plaintiff should have been present, either at the place of the accident or in its immediate aftermath. Third, the psychiatric injury claimed should have resulted from either the direct perception of the accident or its immediate aftermath. A claim is deemed to be invalid if the psychiatric injury had resulted, after the occurrence of the accident had been intimated to the plaintiff by some other person (White v Chief Constable of South Yorkshire Police , 1999). The Law Reform (Contributory Negligence ) Act 1945 served to legally establish the principle of contributory negligence. This principle applies to instances where injury results from the acts of two or more parties. In such cases, the liability is to be apportioned between these parties, in a manner that is proportionate to their contribution to the injury (Mitigation of Liability Through Contributory Negligence, 2010). In cases, where the employer and his employee are responsible for the injury caused, contributory negligence can be resorted to as a defence. A common example of this is provided by an instance where an injury results due to the failure of an employee to comply with the applicable statutory requirements. In addition, the employer, in this instance, had failed to adopt the necessary safety measures or had failed to provide adequate training to his employee (Mitigation of Liability Through Contributory Negligence, 2010). When a claim for damages is made, in such instances, and when the court upholds such claim, the employer can utilise the defence of contributory negligence. As a consequence, he can propose to the court that the damages awarded to the injured party should be reduced, in proportion to the blame that is to be attributed to the employee (Mitigation of Liability Through Contributory Negligence, 2010). This was demonstrated in the case of Uddin v Associated Portland Cement Manufacturers Ltd, where an employee sustained injury. This injury resulted from machinery located in an area of the factory that was not the authorised working area of this employee. The injured employee claimed damages for the injury, which the court awarded. However, it ruled that only 20% of the damages were to be paid to the injured employee, as he was guilty of contributory negligence (Uddin v Associated Portland Cement Manufacturers Ltd, 1965). As such, the courts decide negligence cases, after considering several factors. Whilst deciding cases, entailing contributory negligence, the courts take into consideration the extent of the blame that can be attributed to each of the tortfeasors. Hence, it can be concluded that English law, in respect of defences against a claim of negligence is unclear. The saving grace is provided by contributory negligence, where there is substantial clarity. List of References Al Saudi Banque v Clarke Pixley , 1 Ch 313 (1990). Alcock v. Chief Constable of South Yorkshire Police , 1 AC 310 (1992). Argy v Blunts , 94 ALR 719 (1990). Astley v Austrust Ltd, 197 CLR 1 (1999). Caparo Industries plc v Dickman, 2 AC 605 (1990 ). Law Reform (Contributory Negligence) Act 1945 (c.28). (1945, June 15). London, United Kingdom: His Majestys Stationery Office. McLoughlin v OBrian , 1 AC 410 (1983). Mitigation of Liability Through Contributory Negligence. (2010). Retrieved May 19, 2010, from Compensation Culture: http://www.compensationculture.co.uk/mitigation-of-liability-through-contributory-negligence.html Murdoch, J. (2002). Negligent valuations – passing the buck. 8th Pacific Rim Real Estate Society Conference. Christchurch, New Zealand. Page v Smith , 1 AC 155 (1996). South Australia Asset Management Corporation v York Montague Ltd , AC 191 (1997). Uddin v Associated Portland Cement Manufacturers Ltd, 2 All ER 213 (1965). Victim of self – inflicted injuries owes no duty of care. (2000, June 6). The Times (London) . White v Chief Constable of South Yorkshire Police , 2AC 455 (1999). Yager v Fishman , 1 All ER 552 (1944). Read More