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Negligence: Not a mere Condition but a Tort in Itself UK’s Perspective

As per Salmond's pigeon-hole theory, only well-established wrongs should be included in the sphere of torts and it should be limited to what is known as a pigeon hole. He has further established a connection between pigeon holes with several smaller holes which indicates several essential torts such as slander, assault, malicious prosecution, battery, and other well-defined torts. However, many critics couldn't accept this theory as many torts have not been given legal recognition but deserve to fit in these smaller holes. One of them is negligence. The tort of negligence emanates from the landmark case of Donoghue v/s Stevenson [1]where the manufacturer was held liable for his negligent conduct.

To answer the question of why negligence is not a mere condition we need to establish a connection between the equation of tortious liability and negligence

Tortious liability= breach of duty + duty of care + causation and remoteness of damage= negligence.

This paper attempts to answer and prove that negligence is not a mere condition but a tort in itself from the UK's perspective.

What must be proved to establish the fact that tort is not a mere condition but a tort in itself?

To establish a claim for negligence in UK, the claimants have to prove the three things:
  • A duty of care should be owed to him by the defendant
  • There should be a breach of such duty
  • Breach of duty and the injury or loss should be connected by a causative link, which further proves that damage suffered is not too remote under the law of torts. [2]

Duty Of Care
There should be a duty of care that should be owed by the defendant to the claimant. To establish a duty of care it has to undergo two steps, first that the duty of care in the subject matter has been already defined by the precedent and second test is if the situation doesn't qualify the first test, the situation shall be judged based on proximity, foresight, causation, and justice. [3]The case of Caparo Industries PLC vs Dickman [4] laid a foundation to establish the element of duty of care. In this, the company Fidelity plc, manufacturers of electrical equipment which was running into losses was to be taken over by Caparo Industries plc.

As a result, its share price fell and Caparo began buying shares, Dickman was the accountant of Fidelity was responsible for the audits. Later it was revealed by the directors that accounts of fidelity were even in a worse state. As a result, Caparo sued Dickman for his negligence in auditing the accounts of the company and demanded losses suffered by him. It was held by the court of appeal that Dickman owed a duty of care only to the shareholders and for outsiders, a relation of proximity has to be established.

Further, in the case, Robinson vs Chief Constable of West Yorkshire [5]police held that the police authorities owed a duty of care towards the pedestrian who was crossing the road and was hit by them when they were tried to catch a drug dealer.

Duty of care is the first condition why negligence is a tort and not a mere condition.

Breach Of Duty

Once a duty of care has been identified, the other essential is a breach of that duty or forfeiting the essence of duty. The objective test of whether a person committed a breach of duty is reasonability. Reasonable standards and norms are set to identify the prudency of the person. The person performing the task is expected to perform skilfully and competently.

Even the consumer protection laws have laid down relief for consumers in case of seller's negligence. Hence the breach of duty of any kind form invites the law to take suitable action.

Damages- Remoteness And Causation

After the breach of duty, it is equally important to prove damages for the claim of negligence to succeed. In the case of Jhonson V Nei International Combustion Ltd[6], could not claim negligence as they failed to prove the development of pleural plaques in the lungs. It is also necessary to prove whether the damage suffered was the consequence of the cause of damage. To prove, facts are substantive as a court of appeal does not grant relief if the damage is too remote. Ascertainment of damages is closely interlinked with causation and remoteness.

The main elements of tortious liability duty of care, breach of duty, and damages are synonymous with the elements of negligence, that's why the tort is not a mere condition but a tort in itself.

Negligence: Law Of Tort Or Law Of Torts

To analyze the fact that negligence is not a mere condition but a tort in itself, we also need to ponder over the fact of whether it is a law of tort or a law of torts. Salmond, in his view, propined that if the tortious liability occurred can fit it in the class of actionable wrongs, then only it can be entertained in the court of law.

On the other hand, Winfield supported the fact that apart from legally recognized wrongs, the law of tort has a wider scope and all the unjustified harm can be tortious. Earlier it was due to the limited purview of the law of torts that it included only certain wrongs as tort, but now with legal development, it is being given a distinct recognition under the law of tort and is not just a mere condition. [7]

Similarly, negligence which is a breach of duty is also an unjustified tort and should be included in the law of tort, thus defeating Salmond's pigeon-hole theory. The prima facie tort also lists three categories under the law of tort:
  1. Wrong based on strict liability
  2. Wrong based on negligent conduct
  3. Wrong done intentionally [8]
Wrong based on negligent conduct is one of the elements of the law of tort and thus should come under this purview.

In the case of Stevenson vs Donoghue Lord Macmillian propounded that where the situation is necessary, common law has not been ineffectual in including new liabilities and generating newer responsibilities thus widening the perspective of tort. [9]

Negligence as a criminal Liability vs Negligence as a Tort
English tort law emerged in the UK itself and laid the foundation for other countries to recognize negligence as a tort. It grants compensation for damages suffered to people's health, provides them a clean environment, protects their economic interest. Alongside contracts and criminal law, English tort law also holds an important place

The role of negligence constitutes a very minor role in criminal liability. The only role of negligence in criminal liability is that of gross negligence manslaughter. It is the negligence in tort which has laid a basis for all other laws contained in criminal law. The negligence as a criminal liability also requires the defendant to owe a duty of care to the plaintiff.

It is the tort that involves the prospect of paying damages whereas, in criminal liability, the relief is given in the form of punishment. It is the law of tort which by paying damages indemnify you.

The negligence should be given recognition in torts because without it the police authorities will not be able to determine the misconduct and it will also help the government in protecting the public from negligent activities. The other reason why tort is not given much recognition in criminal is that the other crimes such as murder, rapes, abduction, sexual harassment, and domestic violence takes all the main space of the criminal act 1977 and renders the space for negligence as void, this is the other reason that tortious liability is tried in civil courts and not in criminal courts.

The scope of tort law is very wide and this is the reason why negligence cases should be tried as a tort and not as criminal liability.

Medical Negligence

Medical negligence takes place when a medical professional does not abide by the standard and through the act of negligence and omission causes personal injury to the patients.

To constitute medical negligence, it must be proven that the standard of care was not followed. It must be proved that some injury has been caused to him due to negligence. There should be some damages in the form of permanent pain, suffering, or hardship.

The concept of Res Ipsa Loquitor is applied in this case which states that the thing speaks for itself. This is one of the important maxims under tort. Bolam Vs Friern Hospital management Committee [10]introduced the Bolam test which is a standard way to measure whether there has been a breach of duty to constitute a tort of negligence. In the U.K. the principle of no-fault liability compensation is granted to the victims whose effects after the surgery have worsened and have shown evidence of medical errors. This is the reason why medical negligence is also included as a specific tort under the law of tort. Psychiatric injury is also one of the example.

Unliquidated damages paid under this are further used for patient's treatment. Medical negligence needs a comparatively higher degree of development in the UK. Apart from including the negligence in criminal liability and consumer protection laws, it is the need of the hour that we include it under the law of tort.

Economic Interest and Negligence
Pure economic losses occur when the act of negligence is suffered by one person due to the actions of other. In the growing era of commercial interest and consumerism, it is the law of tort that recognizes the financial aid of the people.

In the case of Spartan Steel & Alloys v/s Martin & Co ltd [11]the defendant, because of his negligence cut the electrical cable of the plaintiff's metal factory due to which he could not produce the metals for several hours. This was a purely economic loss and it was held by the bench to allow the plaintiff to recover the damages suffered because of the manufacturer's negligence.

Thus, if we recognize negligence as a specific tort, not a mere condition. It shall lend a helping hand to set up other statuses as well

Conclusion
Thus after analyzing all the provisions and the case laws of UK , we can conclude that negligence is not a mere condition but deserves to fit in the sphere of tort. The reason for identifying it as a tort is that the law of tort is evolutionary and evolves with time. It is solely not dependent on the precedents. Its accommodative nature makes it such that every wrong which is not included in contracts or criminal liability can be fit in the law of torts.

In today's legal jurisdiction, negligence has already acquired a supreme place. Along with any other tort such as assault, nuisance, and battery, negligence is established. In the wide era of consumerism and the medical field. Negligence can even harm a person's life.

By describing it as not only a mere condition but constituting it as a tort, we are widening the scope of the law of torts.

End-Notes:
  1. Donoghue Vs Stevenson (1932) A.C. 562.
  2. W.V.H Rogers, Winfield And Jolowicz On Tort, 90-100 (15th ed, 1998)
  3. Griselda Muhametaj, Introduction of the tort of negligence IN the UK Legislation and Jurisprudence, Vol. 5, No. 6, pp. 29-33 (2017) , Introduction-of-the-Tort-of-Negligence-in-the-UK-Legislation-and-Jurisprudence.pdf (eajournals.org)
  4. Caparo Industries PLC vs Dickman, (1990) 2 AC 605.
  5. Robinson vs Chief Constable of West Yorkshire, (2018) UKSC 40
  6. Jhonson V Nei International Combustion Ltd (2007) UKHL 39
  7. RK Bangia, Law of Torts Including Compensation Under Motor Vehicles Act And Consumer Protection Laws, 11-13 ( Allahabad Law Agency 2018)
  8. RK Bangia, Law of Torts Including Compensation Under Motor Vehicles Act And Consumer Protection Laws, 11-13 ( Allahabad Law Agency 2018)
  9. Donoghue Vs Stevenson (1932) A.C. 562
  10. Bolam Vs Friern Hospital management Committee, (1957) 1 WLR 583.
  11. Spartan Steel & Alloys Vs Martin & Co ltd, (1973) QB 27

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