CHAPTER 3
NEGLIGENCE
COURSE LEARNING OUTCOMES (CLO)
Upon completion of this course students should be able to:-
• Demonstrate an understanding to the concept of negligence related to tourism and
hospitality services( A3 )
• Describe the application of rules imposed by specific legislations and code of
conduct related to the operation of tourism and hospitality businesses.
• Critically analyze, evaluate and discuss legal ethical and liability issues in tourism
and hospitality industry.
Demonstrate understanding
The Law of Negligence (like the Law of
Contract) is part of Civil Law
That means it is concerned with relationships
between parties
And with providing remedies
What is Negligence?
• A tort is a wrongful act (or omission) against a person
(or company) and his/her property (or the company’s
property)
• The wrongful act means the injured party has a claim
against the wrongdoer
• The claim is usually based on fault
What is Negligence?
• Negligence is different from Contract
• Unlike Contract, there is no agreement between the
parties which creates their rights and responsibilities
What is Negligence? (cont.)
There are several different kinds of tort
The most important of these is negligence
As we will see, negligence now covers:
– physical injury
– economic loss
– professional negligence
Describe the concept of negligence
The aim of the tort of negligence is to give compensation to an
injured party
However, the injured party has to show that all the elements of
negligence are present
The standard of proof required is on “the balance of probabilities”
– ie the evidence makes it seem more likely than not that
there was negligence
– This is less strict than a criminal case which requires proof “be
yond reasonable doubt”
Explain the Elements of Negligence
In order to be successful in an claim of negligence, the claimant must show
– The existence of a duty to Act Reasonably
– Breach of that duty
– Proximate Cause
– Injury to plaintiff (bodily harm , property damge)
In other words, the defendant owed a duty of care to the claimant, but he
breached that duty and caused some injury to the claimant
Duty of Care
To bring a successful claim in negligen
ce, the claimant must first show that t
he defendant owed him/her a duty
of care
This was first established in the case of
Donoghue v Stevenson in 1932
This is an important case because it h
elped to establish the modern law on
negligence
Donoghue v Stevenson
The case involved a woman (Mrs Donaghue) and a bottle of
ginger beer in a café
She poured some of the drink into a glass and began to drink it
When she poured more from the bottle the remains of a rotten
snail fell into her glass from the bottle
She suffered shock and a stomach illness
Donoghue v Stevenson (cont.)
Mrs Donoghue could not sue the café for breach of contract
because she did not buy the ginger beer
– Her friend did
Therefore, she sued the manufacturer of the ginger beer for
negligence because the snail must have entered the bottle at
their factory
Donoghue v Stevenson (cont.)
The court held that the manufacturer had a duty
of care to the consumer of his goods
That meant the manufacturer should take reason
able care to prevent injury to the consumer
In his judgement, Lord Atkin gave the following
famous description of the duty of care
Duty of Care (cont.)
“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.”
Duty of Care (cont.)
When looking to see if a duty of care existed a court does no
t look at what the defendant actually did
Rather the court looks at what the defendant should have
done
Duty of Care (cont.)
For example, a motorist is talking on his mobile phone while
driving his car
He does not notice a pedestrian on the road until it is too late,
and he knocks her down
In considering the motorist’s duty of care, the court does not
ask if the motorist actually thought about whether talking
on the phone could cause him to pay less attention to his
driving and not to have full control of his car
The court ask if the driver should have thought of these things
Duty of Care (cont.)
The most recent definition of duty of care is in the case of Caparo
Industries plc v Dickman (1990)
It asks 3 questions:
1. Was the harm caused reasonably foreseeable?
2. Was their a relationship of proximity between the claimant and
the defendant?
3. Is it fair and reasonable in the circumstances to impose a duty of
care?
Duty of Care (cont.)
In other words:
1. Was it reasonable for the defendant to realise that his
action/inaction could injure the claimant?
2. Were the parties in a sufficiently close relationship?
3. Is it fair and reasonable to make the defendant liable for
the injury?
Duty of Care (cont.)
Applying these to our motorist example:
1. Yes, it is reasonable to realise that if you do not drive carefully eno
ugh you may injure pedestrians
2. Yes, a pedestrian is a class of person in a close relationship with mo
torists
3. Yes – although the pedestrians actions should also be considered
Injury or Damage
The defendant can be liable for:
Personal (ie physical) injury
Damage to property
Nervous shock
Economic loss
Nervous Shock
The medical term for nervous shock is post traumatic stress disorder
This can occur as a result of witnessing an accident or some terrible event
The claimant does not need to suffer any physical injury, but s/he must suffer some
recognised mental condition which is more than just grief or distress
Nervous Shock (cont.)
The nervous shock could occur because:
the claimant feared for his/her own safety
the claimant feared for the safety of a close relative (eg child or s
pouse) and
– Saw the accident or its aftermath
– Could imagine the accident from seeing the surroundings
– Saw the victim soon afterwards
Nervous Shock (cont.)
However, someone who is merely a bystander cannot bring a claim f
or nervous shock
This also applies to professional rescuers (eg police, fire and ambula
nce)
Economic Loss
There are two kinds of economic loss:
– Economic loss arising from damage to property
– ‘Pure’ economic loss (ie where there is no physical
damage, only financial loss)
Usually, the courts will only allow economic loss arising from
damage to property
Economic Loss (cont.)
For example, in Spartan Steel and Alloys Ltd v Martin & Co,
Spartan Steel manufactured steel alloys 24/7
Martin & Co damaged a power cable which meant Spartan
Steel had no power for 14 hours
They had to shut down their furnace and this caused damaged
to the alloy being made at that time
Spartan Steel also suffered a loss of profits
Economic Loss (cont.)
The court allowed Spartan Steel to recover their loss for the damage
to their product and their reduced profit because of the damage
However, Spartan Steel could not recover general economic loss not
connected to the physical damage
Professional Negligence
Professional negligence takes liability for negligence
further by making professionals such as lawyer,
accountants and surveyors liable for their actions/
inactions as well as misstatements
Professional Negligence (cont.)
For example, in Ross v Caunters, a lawyer failed to point
out that a spouse of a beneficiary cannot be a witness to
a will
A spouse of a beneficiary did sign as a witness and so the
beneficiary lost her benefit under the will
The lawyer was liable to her in negligence even though
she was not his client
Professional Indemnity Insurance
Successful claims for professional negligence can result in payments
of very large sums of money
Because of this many professions (lawyers, accountants, etc) have
special insurance policies which cover their negligent mistakes
Summary
Torts are the act of omission (failure to do something) or
the act of commission (doing something you should not)
that causes harm.
They occur outside of a formal relationship like a contract.
Therefore, the liability does not come from an agreed upon
set of rights and responsibilities such as those defined in a
contract, but rather from the law itself.
Summary (cont.)
Negligence is a kind of tort which aims to give compensation to an injured
party
In order to make a successful claim in negligence, the claimant must show
– a duty of care (owed by the defendant)
– a breach of that duty (by the defendant)
– the breach resulted in injury/damage
In other words, the defendant owed a duty of care to the claimant, but he
breached that duty and caused some injury to the claimant
Summary (cont.)
To establish a duty of care, you ask:
1.Was it reasonable for the defendant to realise that his
action/inaction could injure the claimant?
2.Were the parties in a sufficiently close relationship?
3.Is it fair and reasonable to make the defendant liable
for the injury?
