Negligence: Can Alice, George And Hannah Raise An Action Under The Tort Of Negligence Against Becky And/or Ice Cream Ltd?

What is negligence and how does it apply in a case where an ice-cream van driver caused an accident?

Whether Alice, George and Hannah can raise an action under the tort of negligence against Becky and/or Ice Cream Ltd or not?

Negligence is an act whereby a person, who was required to be diligent in their conduct, fails to do so, which results in injury or harm to another person. In case the first person would have been diligent, the other person would have remained free of harm or injury[1]. In such cases, the common law allows for the claimant or the injured party, to raise a case against the defendant or the wrongdoer, and holds them liable for such harm or injury caused to the claimant as can be seen in the case of Donoghue v Stevenson [1932] AC 562[2], which acts as a guiding light for negligence cases. This case brought forth the neighbour principle which requires each person to safeguard their neighbour in a manner that no harm or injury is inflicted from their action to such neighbour. However, before this can be done, there is a need to establish that the relevant aspects of negligence are present in a case. These involve establishing that a duty of care was owed, which was breached, which caused the injury or harm to the person and there was no remoteness of damages.

In order to show that duty of care was owed by one person to another, reference can be made to the case of Blyth v Birmingham Waterworks Co. [1856] 11 Ex 781[3], where the reasonable man test was put forth. Thus, where a reasonable person would do something in a similar situation, so as to ensure that the other person is not harmed, it acts as a guiding light for all other individuals. Where a person fails to act as a reasonable person, they will be held to be in breach of duty of care. Thus, to upload the duty of care, there is a need for an individual to act as a prudent person.

The case of Caparo Industries plc v Dickman [1990] 2 AC 605[4] makes it clear that the duty of care has to be reasonably foreseeable in nature, where the parties are in proximity of each other, and where it is fair and just to impose such a duty on the defendant. In Paris v Stepney Borough Council [1951] AC 367[5], the lack of safety gear provided to the employee made the employer liable for the injury sustained by the plaintiff and required the defendant to pay damages to the plaintiff. Where the party can show that they have taken the necessary actions to minimise the risk of harm, they would not be held to have breached the duty of care owed by them to another, as was seen in the case of Latimer v AEC Ltd [1953] AC 643[6]. It is crucial to note here that the injury does not have to be physical. Even a psychiatric injury arising from a negligent act makes a person liable to compensate the other one for such injury as was seen in the case of Behrens & ors v Bertram Mills Circus Ltd. [1957] 2 QB 1

The elements of negligence that need to be established before a case can be raised

Once the breach of duty is established, there is a need to show that the injury was substantial in nature, there was no remoteness of damages, and that the actions of the defendant directly caused the injury to the plaintiff[7]. In this regard, reference can be made to the case of Barnet v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428, where the ‘but for’ test was presented. Unless it can be shown that the plaintiff would not have received the injury had the duty of care not been breached, the causation is deemed to be absent. There is also a need to show that the damages or risk of harm was reasonably foreseeable in nature. The Wagon Mound no 1 [1961] AC 388 requires the defendant to protect all individuals against any foreseeable risk of harm.

The principle of novus actus interveniens is also significant here. This concept means that where the chain of causation is broken because of the action of a third party, the defendant cannot be made liable for the negligent act. In the context of the negligence of a third party, reference can be made to the case of Rouse v Squires [1973] QB 889 (CA)[8]. In this case, the court stated that where a driver negligently manages their vehicle in a manner that obstructs the highway, making it dangerous for fellow users on road, in such a case, the negligence of the first driver has to be taken as the causation of the accident.

Where it can be shown that the plaintiff was not taking the necessary care to protect them, they will be held liable for contributing to their injury, and this is referred to as contributory negligence[9]. In such a case, the damages awarded to the plaintiff are reduced as was seen in O’Connell v Jackson [1972] 1 QB 270[10] where not wearing a helmet resulted in the reduction of damages for the plaintiff’s failure in saving themselves against foreseeable harm.

For the actions of an employer, the employee can be made liable basis the concept of vicarious liability.

In the present case, Becky was the ice-cream van driver, who was working for Ice Cream Ltd. Due to the employee-employer relationship between the two, for the actions of Becky, Ice Cream Ltd can be made liable, making them the defendants of this case.

Becky was driving her vehicle on road. Basis the applicability of the neighbour principle given in Donoghue v Stevenson, it was her duty to ensure that she was driving the vehicle in a careful manner and that her driving did not result in an injury to the other people on the road. Here, reference can also be made to the case of Blyth v Birmingham Waterworks Co. which required Becky to be diligent in her driving. However, the given facts of the case make it clear that their conduct of Becky was not of a reasonable person. This is because Becky was on the phone with her employer when she was driving the van. And the result of this was that the van crashed on a turn, resulting in all the ice cream falling out of the van and forming a puddle. A reasonable person in her place would not be on the phone while driving the van.

The role of duty of care, breach of duty, and causation in determining negligence

Reference can now be made to Caparo Industries plc v Dickman, to show that the duty owed by Becky was indeed breached. Any person would have foreseen that while driving if a person makes a call, they are bound to be distracted. This means that would not be able to drive properly, raising the possibility of an accident taking place. This is why there is even a law to not talk on the phone while driving. The lost attention to the road led to an accident, proving that the duty of care was breached. Making reference to Paris v Stepney Borough Council, this duty of breach caused injury to several people, making them eligible to make a claim of negligence against Becky.

Alice is the prime victim in this case as she was driving the bicycle near Becky’s truck, which lost control due to the accident and rammed into Hannah’s car. The case of Latimer v AEC Ltd proves that no action was taken by Becky to reduce the harm to Alice. The injury sustained by Alice would not have been caused had Becky been careful, fulfilling the criteria laid down under ‘but for’ test through the case of Barnet v Chelsea & Kensington Hospital Management Committee. The foreseeability of this risk was pretty evident, making it a reasonably foreseeable risk of harm basis The Wagon Mound no 1. Thus, for the injuries sustained by Alice, a case can be made against the defendants of this case. However, in this regard, the defendants can highlight the lack of Alice wearing a helmet, which would allow them to get the damages reduced basis O’Connell v Jackson.

In the context of Hannah, she witnessed a tragic accident of someone she knew, which resulted in her psychiatric injury. She will be able to claim damages from the defendants on the basis of Behrens & Ors v Bertram Mills Circus Ltd for this injury caused to her, and this would not have happened, had Becky been careful.

Lastly, Georgia too suffered panic attacks that resulted from witnessing the event that almost put her in a life or death or scary situation. This would also qualify her to raise a claim against the defendants. Here, Georgia should not try to raise a claim against Alice as the principle of novus actus interveniens and applicability of Rouse v Squires show that the act of the third party (Becky) caused the injury, and not Alice’s attempt at saving herself caused it.

Conclusion

Thus, Alice, Hannah and Georgia, all can make a successful claim of negligence against the defendants, i.e. Becky and Ice Cream Ltd, for the physical and psychiatric injuries caused to them.

Pure economic loss refers to the financial damage that is sustained by a person due to another person being negligent in their conduct, and in such a situation, no physical harm is provided to the person or to their property[11]. This means that in essence, the pure economic loss is one that occurs entirely financially for a person. In tort law, the relevancy of pure economic harm cannot be undermined[12]. This is because the courts do recognise that the intent with reference to privity of contract relates to the recovery of losses that are identified by the contracting parties and that the damages under contract are designed in such a manner that the economic losses are covered. However, it has been noted that the courts remain reluctant in imposing similar responsibilities with reference to tort covered pure economic loss as is the case with the contractual responsibility. This discussion makes an attempt to understand this reluctance with the help of established case laws.

The concept of contributory negligence and its application in the current case

There are several reasons why the courts can be reluctant with reference to allowing the claims of pure economic loss. The predominant one is that it would open floodgates and would result in a number of claims being raised. Apart from it, in absence of contractual claims, where the terms clarify the quality expected from parties, there is a fear of assessing quality. And thirdly, there is also the fear of third party beneficial rule being undermined, which is present in a contract, basis which, the third party is prevented from suing the parties to contract, as they are not a party to such a drawn contract.

The reluctance in the case of pure economic loss is that only a limited category of economic loss can be attempted to be recovered basis tort law. With reference to the recoverable economic losses, it falls into two lines of authority, which are based on the duty of care given in Donoghue v Stephenson. This case provides the legal nexus of unreasonable conduct causing foreseeable damage or risk to the plaintiff, by the defendant, giving rise to an economic loss claim. To discuss the very first line of authority, reference can be made to the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465[13], which covers a person giving advice to another, especially when this is financial in nature. And the second line of authority relates to the professionals and public bodies offering professional advice which results in a tangible product being created.

With regards to the first category, in the context of the provision of advice, one can refer to Hedley Byrne & Co Ltd v Heller & Partners Ltd. This case clarifies that in order for a claim to be made under this category, there is a need to show sufficient proximity between the defendant and plaintiff. This case was related to a financial adviser offering negligent advice to another party, even when they knew that the other party would make reliance on this advice and this indeed was done.

As against this, the case of Caparo Industries plc v Dickman, saw the advisor not being made liable for the resultant economic loss that the third party had sustained by placing reliance on the negligent accounts created by the defendant since these accounts were shown to not have been made by keeping such third party in mind. The lack of sufficient proximity in the relationship resulted in this decision as the defendant had no idea that reliance would be placed on the accounts that they created, by a third party, for a specific transaction.

The concept of reliance on such advice was further explored in the case of Spring v Guardian Assurance plc [1994] UKHL 7, [1995] 2 AC 296[14]. This matter saw the future employer being made a negligently prepared reference. Even though the advice was not given to the defendant in this case, which was the future employee, the court held that the reliance of the defendant on the referee and their knowledge of assumption of responsibility and reliance was thus enough to be deemed as causing sufficiency in the proximity of relations between them, making the defendant entitled to economic loss compensation. There has been a noted consistency in the approach of court and this was reflected in the matter of Lennon v Commissioner of Police of the Metropolis [2004] EWCA Civ 130[15] where the court stated the express assumption of responsibility was indeed made by the Metropolitan for specific loss on which Lennon had relied.

Vicarious liability of the employer for the actions of the employee

One might question the difference between the first and second line of approach, which relates to the public body or professionally given advice that results in an intangible product. Such cases see the courts deciding to carve the economic loss into varied categories, and only one of such categories lands in tort law to make it eligible for economic loss recovery. This can be clarified through the approach taken by courts where they do not uphold the economic loss claims made against the building project contractors as they deem that a contractual relationship is present between the parties, which has been specifically structured, so as to leave no gap for the assumption of responsibility to building owner by the subcontractor[16].

Through the case of Murphy v Brentwood District Council [1991] UKHL 2, [1991] 1 AC 398[17], the courts brought forth the principle that only one category of economic loss could be recovered under tort law. This was related to the defects that result in damage to property or personal injury which is other than the one caused by the defective thing. Thus, the categories to the likes as a defect covered in the building or reduced value of the structure, or a defect that has a possible threat of damage to property will not become eligible to be recovered under tort law basis a claim of economic loss. This case was recently referred to in the matter of Thomas and Thomas v Taylor Wimpey and others [2019] EWHC 1134 (TCC)[18] where the court rejected the attempt that argued that the Murphy v Brentwood District Council judgement covered obiter could be relied on for making a case for pure economic loss, in such cases, where there had been money spent for remedying the defects that had the potential to be a danger to the neighbouring land[19].

Just because the court has been reluctant in upholding pure economic loss claims, it does not mean that they decline such cases. There have been situations in which such claims have been upheld, and the prime example of this is the landmark case of Hedley Byrne & Co Ltd v Heller & Partners Ltd itself[20]. The only reason for being reluctant is the reason that the courts are just being cautious. This very approach has been criticized by scholars, as being an excessive reaction of the English courts. This was done basis a comparison being drawn between the manners in which French courts looked at similar matters. It was noted that irrespective of the true nature of this principle, there was an efficient way of limiting the economic loss’s scope of liability[21]. There was a need to thus revisit such claims so as to allow the claims where it was fair to do so. The approach of the court to categorize different situations so as to reflect upon the duty of care that was appropriately imposed on another person is the right approach. However, the extreme strictness or rigidity surrounding seems unwarranted. This is because this can result in lost trust and faith in the judiciary, for being too rigid and not offering respite in needful cases. In this regard, it is worth mentioning that a deep analysis of the reasoning with which the courts adopt this approach and a deep reading of such cases could help in bringing certainty and clarity to the reasoning with which the courts adopt this approach.

Conclusion

In the previous segment, a discussion was undertaken on the pure economic loss. The discussion began with gaining an understanding of what actually means by pure economic loss is and went on to highlight the reasoning due to which the courts are often reluctant in allowing claims of pure economic loss. The fear of getting flooded with claims of purely economic losses is the predominant reason for this reluctance. Apart from this, the other reason is that the courts only allow one category of pure economic loss cases to be raised in tort, as the others are deemed to be covered in the contractual obligations drawn between the parties to the contract. Though, there are cases where the courts have upheld this principle. The key requirement for making a claim of pure economic loss lies in the sufficient proximity in a relationship. Thus, where this is present, even with the reluctance of the courts, a case of pure economic loss cannot be denied.

Blyth v Birmingham Waterworks Co. [1856] 11 Ex 781

Caparo Industries plc v Dickman [1990] 2 AC 605

Donoghue v Stevenson [1932] AC 562

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Latimer v AEC Ltd [1953] AC 643

Lennon v Commissioner of Police of the Metropolis [2004] EWCA Civ 130

Murphy v Brentwood District Council [1991] UKHL 2, [1991] 1 AC 398

O’Connell v Jackson [1972] 1 QB 270

Paris v Stepney Borough Council [1951] AC 367

Rouse v Squires [1973] QB 889 (CA)

Spring v Guardian Assurance plc [1994] UKHL 7, [1995] 2 AC 296

Thomas and Thomas v Taylor Wimpey and others [2019] EWHC 1134 (TCC)

Bussani, Mauro, Comparative Tort Law: Global Perspectives (Edward Elgar Publishing 2021)

Goudkamp, James, and Donal Nolan, Contributory Negligence: Principles and Practice (Oxford University Press 2018)

Hylton KN, Tort Law: A Modern Perspective (Cambridge University Press 2016)

Mulheron, Rachael, Principles of Tort Law (Cambridge University Press, 2^nd edn, 2020)

Richards Bernadette and ‎Melissa De Zwart, Tort Law Principles (Thomson Reuters (Professional) Australia Limited 2017)

Turner C, Unlocking Torts (4^th edn, Routledge 2013)

Roscett, Rudi, ‘Necessity Or Nuisance? A Comparative Review Of The Approach Towards The Recovery Of Pure Economic Loss In English Law With That Of French Law’ (2012) 1 Manchester Student Law Review.

‘Pure Economic Loss – What Is It And Can You Recover It?’ (Cms-lawnow.com, 2022) <https://www.cms-lawnow.com/ealerts/2002/06/pure-economic-loss-what-is-it-and-can-you-recover-it?cc_lang=en> accessed 30 March 2022.

‘Simmons & Simmons’ (Simmons-simmons.com, 2019) <https://www.simmons-simmons.com/en/publications/ck09ofkgp5zo90b942bakw7yl/210519-the-murphy-rule-stands-there-is-no-exemption-pure-economic-losses-are-not-recoverable-in-tort> accessed 30 March 2022.