Whiplash claims and the law
The British courts did not recognise the existence of a general duty in tort imposing liability for careless behaviour across a range of situations and relationships until the 1930s. The turning point was the decision of the House of Lords in Donoghue v Stevenson.
Prior to the decision, legal liability for carelessness was clearly established only in a number of separate, specified situations, which lacked a unifying principle. A duty to take care was attached by law to certain traditional categories of status, as in the case of a duty owed to a customer by an innkeeper or common carrier, or the duty of an artisan to use the customary degree of skill and care in his work. Other situations which give rise to a duty of care without the need for a specific promise or undertaking included the holding of certain public offices and the bailment of goods . Road and rail accidents and maritime collisions caused by carelessness could also lead to liability in tort, although in may such cases legal responsibility was limited by the operation of the defences of contributory negligence and consent.
The situation changed in the case of Donoghue v Stevension where Lord Atkin addressed the question of how to formulate a “general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances”, in the following terms :
The rule that you are to love your neighbour becomes in law: You must not injure your neighbour and the lawyer’s question: Who is my neighbour? Receives a restricted reply. 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 into question.
Fault, in this sense, is at the basis of negligence liability; the claimant has to show that the defendant’s behaviour was careless. Damage is also an essential requirement, in negligence the claimant must prove that he sustained a loss or injury as a result of the defendant’s negligence.
The question whether a duty of care exits in a given situation is a question of law upon which the appellate courts are the final arbiters. In Donoghue v Stevenson Lord Macmillan asserted that the “categories of negligence are never closed.
Breach of Duty
The issue of breach of duty is concerned with whether the defendant was careless, in the sense of failing to conform to the standard of care applicable to him. The level at which the standard is set is a question of law, but this question is posed in the most general terms. In Hazell v British Transport Commission Pearson J said that:
the basic rule is that negligence consists in doing something which a reasonable man would not have done in that situation or omitting to do something which a reasonable man would have done in that situation, and I approach with scepticism any suggestion that there is any other rule of law, properly so called, in any of these cases.
The standard of the “reasonable person” – the man “on the Clapham omnibus ” – is that of the ordinary citizen. The law expects the defendant to act upon “those considerations which ordinarily regulate the conduct of human affairs”. Secondly, the test is objective and, with one or two exceptions such as infants, is said to treat all defendants equally, with the effect that an inexperienced defendant will normally be held to be the level of skill of one with the normal level of experience for the job in question . Thirdly, as far as specialist defendants – such as doctors or accountants- are concerned, the standard is that of the reasonably competent person in the profession in question or the particular branch of it. In practice this means that the courts defer very substantially to the standards set by and widely observed in the profession itself at any particular time . Fourthly, the standard of care may be varied to meet special circumstances such as a situation of rescue ore sport .
The standard is therefore one of the “ordinary citizen” and not that of the defendant himself: an especially careful defendant will not be deemed negligent for merely contravening his own higher standards. Conversely, one whose personal conception of what is reasonable fails to match up to that of the court will have no defence based on his subjective belief that he acted carefully. As Landes and Posner put it, “the information cost of determining each injurer’s intelligence and ability to make judgements of this sort would be too great to justify departing from the reasonable-man standard.
Remoteness of Damage
There are of course certain limitations on the liability of a defendant who has caused tortious damage to the claimant. A major limitation on recovery following the decision of the Privy Council in The Wagon Mound (No 1) is the principle that the defendant will not be liable for a kind of damage which he could not reasonably have foreseen. However, once foreseeability of the kind of damage is established, the extent of loss is irrelevant and the defendant will be liable in full. Where this is the case, it is said that the defendant “must take the claimant as he finds him”, with all his particular susceptibilities. The difficulty here lies in knowing what is meant by the “kind of damage “which the defendant should have foreseen.
In the Wagon Mound (No1) an engineer on the defendant’s ship negligently discharged a quantity of furnace oil into Sydney harbour, fouling the wharf owned by the plaintiffs and halting repair work on two other ships, the Corrimal and the Aubrey D. After they were advised that the oil could not be ignited, the plaintiffs resumed welding work, but the oil was ignited by a piece of molten metal and the wharf and the two ships were consumed in the resulting fire. The plaintiff’s action for the damage to the wharf failed on the ground that while damage by pollution was reasonably foreseeable, damages by fire was not. The Privy Council rejected the test apparently laid down by the Court of Appeal in the earlier case of Re Polemis under which the defendant was liable if there was a direct ink between the carelessness and the resulting damage. Viscount Simonds said:
It does not seem consonant with current ideas of justice or morality that, for an act of negligence, however slight or venial, which result sin some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be “direct”. It is a principle of civil liability, subject only qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour.
Therefore the decision in The Wagon Mound indicates that the defendant’s liability should be proportionate to his fault. In elevating foreseeability to be a main test of remoteness, Viscount Simmonds was influenced by Donghue v Stevenson and in particular by Lord Atkin’s expressed view that liability should be modelled upon a “general public sentiment of moral wrongdoing for which the offender must pay.
Another consequence of the decision in Wagon Mound is that if the type of damage suffered was foreseeable, the precise sequence of events by which the injury was brought about need not have been.
Tags: carelessness, common carrier, donoghue v stevenson, duty of care, legal liability, reasonable care
