Negligence: Torts Analysis - Negligence Scenario of Claire vs. Dan

This report provides a comprehensive analysis of a negligence scenario involving Claire and Dan, focusing on the legal principles of torts. It begins by establishing whether Dan owed Claire a duty of care, referencing the Caparo v Dickman test, considering foreseeability, proximity, and fairness. The report then assesses whether Dan breached this duty, examining the standard of care and likelihood of injury, referencing cases like Bolton v Stone and Paris v Stepney Borough Council. The analysis proceeds to determine causation, evaluating whether Dan's breach resulted in Claire's damages, considering factual and legal causation, and the role of contributory negligence. Furthermore, the report explores available defenses for Dan, particularly contributory negligence and volenti, and concludes by identifying potential remedies for Claire, primarily in the form of damages, including general and pecuniary damages, while acknowledging the impact of contributory negligence. The report references relevant case law and legal principles to support its arguments.

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TORTS; NEGLIGENCE SCENARIO
By: Student’s Name
Code + Course Name
Professor’s Name
University Name
City, State
September 2019.

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Table of Contents
Contents
Table of Contents.............................................................................................................................2
Introduction......................................................................................................................................3
1. Whether Dan owed Claire a duty of care at the time she suffered injury................................3
2. Did Dan breach duty?...............................................................................................................4
3. Causation; Whether Claire can establish element of damages against Dan.............................6
4. Defenses available to Dan........................................................................................................7
5. Remedies available for Claire..................................................................................................8
Conclusion.......................................................................................................................................8
References and Bibliography...........................................................................................................9
Cases..............................................................................................................................................10

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Introduction
Negligence is one of the most common areas of both study and court actions under the law of
torts (Posner 1972). For a claimant to successfully sue for negligence, he/she ought to prove
three elements upon if any is missing then the suit cannot be successful. To begin with, the
supposed offender must owe the supposed victim a duty of care. If this is established then the
courts will check if there was a failure in responsibility. Finally, it must be established that the
breach of that duty resulted in harm to the party claiming; which is the aspect of causation. This
is the three stage test for negligence in torts. In the case scenario given, this paper will use the 3-
stage test to establish whether there is negligence.
1. Whether Dan owed Claire a duty of care at the time she suffered injury
Whether a party owes another any care is a matter which relies on the decision of the court. The
modern standard test is the one established in the holding of Caparo v Dickman. Here, the
highest court of United Kingdom came up with three aspects that must be proven to establish
duty. The test is applicable in establishing duty of care in all types of harm including physical,
economic loss and psychiatric injury (Goudkamp 2017).
The three stage test involves the following;
a) The test of foreseeability. This is concerned with determining whether a reasonable
person placed in the defendant’s standing could have seen it coming that a person in the
claimant’s position was going to suffer harm from the act.

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b) Proximity between the two; this is established from Lord Atkin’s neighbor principle in
Donoghue v Stevenson. It is concerned with the closeness in relationship between the
claimant and defendant (Evans-Jones and Scott, 2018).
c) Fair, just and reasonableness. Sometimes when a court has established that indeed harm
was foreseeable and that there is proximity in terms of legal relationship between the
parties at the opposite ends of the case, it may deny a duty of care being owed on the
basis that it would not be fair, reasonable and just with the particular facts of the case to
impose a duty of care on the defendant (Cameron 2019).
In this scenario, the tort under which the claimant is suing is an omission. Generally parties are
not liable for omissions except where they assume responsibility (Greene 2017), which Dan did
in this case by promising the customer to clean immediately. On foreseeability, it obvious that if
Dan fails to clean the floor then someone may trip and fall. Next, Claire needs to prove that there
is a relationship of proximity between them. It includes physical closeness, relationship or
policy. In this scenario, Dan is the manager of the bar while Claire is a customer. There is
evidently a responsibility on the part of the management of the bar to ensure that a ‘mess’ such
as the one in this scenario because drunk customers can fall at any time. Lastly on the test of fair
just and reasonableness, it is satisfactory to impose a duty of care on Dan. A bar manager who
promises to take care of an injury threat which has been brought to his attention but fails to do so
should be held accountable.
Dan therefore owes Claire a duty of care.

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2. Did Dan breach duty?
Once the court establishes that the defendant owes such a duty then the next step in establishing
negligence is to check whether there was a failure to uphold that responsibility. The defense
party’s conduct is very much likely to affect the outcome of this test (Nolan 2019). The
judgement is made on the standard of the reasonableness of a normal person, which has often
been referred to by judges as ‘the man on the Clapham omnibus.’ An illustration of this standard
was established in the case of Blyth v Birmingham Waterworks by Baron Alderson:
“Negligence is the omission to do something which a reasonable man…would do or
doing something which a prudent and reasonable man would not do”
The conduct under check is not that of the defendant as an individual but the way in which
anyone acting with reasonableness would have conducted himself (Calnan 2019). Lord
Macmillan elaborated on this in his decision in Glasgow Corporation v Muir: “It eliminates the
personal equation and is independent of the idiosyncrasies of the particular person whose
conduct is in question.”
For the purposes of checking the standard of care, judges consider very many a factors. In this
scenario, the issue of likelihood of injury is critical. In Bolton v Stone, a cricket ball hit around
100 meters away struck the claimant. This was something that had happened very rarely over a
very long period time. The decision of the court was that though it was foreseeable that someone
could be hit, the likelihood of injury was very small. Seriousness of injury is another thing that is
put into consideration (Goldberg 2018). If there is more serious injury then the defendant is
expected to maintain a higher duty of care as was decided in the case of Paris v Stepney
Borough Council.

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In this scenario, the customer told Dan that it was a ‘disgusting mess’, something which could
show that the amount of vomit was substantial. This in perspective means that the likelihood of
injury was very high, especially because the bar is a place where people get drunk. Dan also
knew or ought to have been aware of this. Applying the standard of reasonableness under
likelihood of injury as in Bolton v Stone is likely to bring a conclusion of negligence. There is
also the standard of seriousness of injury that was used in Paris v Stepney Borough Council.
Where a drunk person slides into a fall it may not be likely that the injury will be very severe.
One is likely to sustain small injuries and where the person is very unlucky they may end up a
broken limb. However, this type of severe injury from walking on slippery surface is not very
likely.
In the view of this short analysis under the breach of duty, it is the conclusion of this paper that
Dan was actually in breach of his duty to customers because in the circumstances an injury could
have been foreseen and therefore a higher standard of reasonableness was expected of him.
3. Causation; Whether Claire can establish element of damages against Dan
It is usually up to the claimant to provide proof that the defendant’s breach of duty resulted in
his/her damage (Page 2018). This is done on a balance of probabilities, in two stages; of factual
and legal causation. The former is proved using the ‘but for’ test. It was applied in the case of
Barnett v Chelsea & Kensington HMC, and in essence it is a question of whether the claimant
would have been harmed were it not for the other party’s conduct. After this is established then
legal causation is up for determination, which is whether the defendant should be guilty as a
matter of law. Here, the test of remoteness is used. If the damage caused is too remote from the
defendant’s action then he cannot be held liable (Luntz et al, 2017). Also the type of damage

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matters, if it was not foreseeable then the defendant is unlikely to incur liability for it, as was
decided in Hughes v Lord Advocate.
In this scenario, it is clear that were it not for Dan’s omission then Claire would not have fallen.
However, looking at the type of injury caused, Dan may not be the cause of the injury. Claire’s
footwear and the spilt cocktail also contributed to the fall. It may have been foreseeable that
someone would have fallen and gotten injured but not in the way that Claire was. Her stilettos in
particular caused the twisted falling that caused the severe damage. As such, it is possible for
Claire to claim damages, but not for every harm she suffered. She may only claim damages for a
fall but not resulting from a twisted one.
4. Defenses available to Dan
With the nature of Claire’s fall there is a number of defenses that are available to Dan.
The first is contributory negligence .This defense has the effect of reducing the amount of
damages that a defendant can incur in case the harm suffered is partially due to the fault of the
claimant (Barry 2017). The defendant will have to give proof that the other party not only acted
negligently but that this negligence also caused some damage. In the case of Jones v Livox
Quarries, the claimant was injured while riding on the back of traxcavator when it was hit from
behind. It was foreseeable that there was a risk of such nature as being hit from behind, so the
claimant was held to be 20% contributorily negligent.
There is a defense of volenti, which refers to the claimant consenting to take the action even with
the full knowledge of the risk. For one to successfully raise this defense in a court of law they
ought to prove two elements, that the claimant had full knowledge of the risk and that they
conducted themselves in manner to accept the risk. This was the holding in ICI v Shatwell. Apart

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from knowledge of the risk, the defendant must have consented voluntarily as was the case in
Smith v Baker. In this scenario the claimant was employed by the defendant and had expressed
discomfort because a crane swung rocks above him as he worked. He was injured, and the
defendant argued that he had consented to the danger, but he was held liable because he did not
let the claimant leave even after the complaint so the consent was not voluntary.
In this scenario the strongest defense for Dan is that of contributory negligence, which is a partial
defense that even if proven he may still incur some damages. The defense of volenti may not be
successful in this case because people who are extremely drunk cannot give any consent (Adams
2016). This was the holding in the case of Morris v Murray, although in here the claimant was
not very drunk so the defense of consent applied.
5. Remedies available for Claire
In this scenario the remedies available are largely in damages because the other options like
injunctions are not available for him. She can sue for compensatory general damages which is an
amount of money awarded to a claimant for damage such as that of injury, which cannot be
quantified. Usually under claims for personal injury a claimant sues for pecuniary loss, which is
financial in nature. It is usually a sum of reasonable expenses for example in the process of
money spent in the course of medication. It may also include the losses associated with
employment such as future earnings and even the loss of earning capacity (Bray 2018). In this
scenario it would be reasonable for Claire to claim damages for her medication. She also has the
option to claim for non-pecuniary damages for the actual pain and suffering endured with the
injury. The only setback for all of these is that she is likely to be found contributorily negligent.

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Conclusion
In conclusion, negligence is an area of torts that may still be growing due to the different
dimensions that every case comes with, but it is evident that the test established in Caparo v
Dickman was monumental in the development of this aspect of law. Its application is a major
compensation for an area of law that is not codified in statute.
References and Bibliography
Adams, V., 2016. Contributory negligence and consent. In Consent (pp. 120-135). Routledge.
Barry, C., 2017. Statutory modifications of contributory negligence at common law. Precedent
(Sydney, NSW), (140), p.12.
Bray, S.L., 2018. Fiduciary Remedies.
Calnan, A., 2019. The Nature of Reasonableness. Available at SSRN 3399139.
Cameron, G., 2019. Negligence and the Duty of Care; the Demise of the Caparo Test; and Police
Immunity Revisited: Robinson v Chief Constable of West Yorkshire.
Evans-Jones, R. and Scott, H., 2018. Lord Atkin, Donoghue v Stevenson and the Lex Aquilia:
Civilian Roots of the “Neighbour” Principle. In Wrongful Damage to Property in Roman
law: British Perspectives. Edinburgh University Press.
Goudkamp, J., 2017. Duties of Care and Corporate Groups. Law Quarterly Review, 133.
Goldberg, J.C., 2018. The Fiduciary Duty of Care.
Greene, B., 2017. Optimize Tort Law. Routledge.

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Luntz, H., et al, 2017. Torts: Cases and Commentary. LexisNexis Butterworths.
Nolan, D., 2019. The Duty of Care after Robinson v Chief Constable of West Yorkshire Police.
The UK Supreme Court Yearbook, 9, pp. 2017-2018.
Page, J.A., 2018. Causation in European Tort Law.
Posner, R.A., 1972. A theory of negligence. The Journal of Legal Studies, 1(1), pp. 29-96.
Cases
Barnett v Chelsea & Kensingto Hospital Management Committee [1968] 2 WLR 422.
Blyth v Birmingham Waterworks Company [1856] 11 Ex Ch 781.
Bolton v Stone [1951] 1 All ER 1078.
Caparo Industries plc v Dickman [1990] UKHL 2.
Donoghue v Stevenson [1932] UKHL 100.
ICI Ltd v Shatwell [1965] AC 656.
Jones v Livox Quarries Ltd [1952] 1 TLR 1377.
Muir v Glasgow Corporation [1943] SC 3.
Paris v Stepney BC [1950] AC 367.
Smith v Baker & Sons [1891] AC 325.