University of Reading
1 Experts
6 Contributions by University of Reading Experts
PRACTICE NOTES
This Practice Note examines claims for damages for breach of statutory duty. For guidance on claims for damages for a negligent breach of the duty of care outside a statutory duty, see the following Practice Notes:
Negligence—when does a duty of care arise?
Negligence—when is the duty of care breached?
—nature of liability
A claimant who suffers loss or injury in circumstances where a defendant has contravened a statutory requirement may, in some cases, recover damages in tort, even if the facts do not fall within the scope of a recognised tort such as negligence. Where the statute expressly provides a right to damages, the position will generally be straightforward. In the absence of such a provision, the availability of a claim turns on Parliament’s intention, which must be identified by construing the statute in question. Because that intention is seldom
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PRACTICE NOTES
This Practice Note sets out the principal components for bringing a negligence claim. For targeted guidance on negligence concerning company/parent company liability, banks, and professional negligence, see:
Practice Note: Tortious liability—companies
Practice Note: Negligence—banks and the duty of care
Professional negligence claims—overview
Negligence—what are the key ingredients to establish a claim in negligence?
To found liability in negligence, four essential elements must exist:
a duty of care owed by the defendant to the claimant
a breach of that duty
loss or damage resulting from the breach
the damage being reasonably foreseeable
These tests can intersect, and in some situations strict compartmentalisation is somewhat artificial on close analysis. Nonetheless, addressing each in turn is a vital framework for assessing whether an actionable negligence claim has emerged.
Negligence—a duty of care is
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PRACTICE NOTES
This Practice Note addresses the initial issue to consider when confronted with a prospective negligence claim—whether a duty of care exists between the claimant and the defendant so that, if that duty is breached, liability may arise. For analysis of what may then constitute a breach, see Practice Note: Negligence—when is the duty of care breached? For specific guidance on banks and the duty of care, see Practice Note: Negligence—banks and the duty of care. For specific guidance on breach of statutory duty, see Practice Note: Negligence—breach of statutory duty. For specific guidance in professional negligence claims, see: Professional negligence claims—overview, including Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity.
Duty of care—what are the requirements to establish a duty of care?
The tort of negligence fixes liability for loss or injury arising from a want of care. Two core
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PRACTICE NOTES
Once a duty of care is confirmed (see Practice Note: Negligence—when does a duty of care arise?), the next step is to assess whether that duty has been breached. The answer turns on several factors outlined below and is judged against the objective baseline of reasonableness, taken from an impersonal standpoint and the general background against which reasonableness is assessed.
Breach of duty of care—reasonableness
To decide if there has been a breach, the law applies the artificial, objective measure of the ‘reasonable person’, setting aside the realities of the defendant’s position insofar as their abilities diverge from that norm, notwithstanding any inexperience or personal shortcomings (Glasgow Corpn v Muir, per Lord Macmillan).
Breach of duty of care—objectivity
This objective demand for a reasonable level of competence covers skills attainable only through training and effort, as well as ordinary attributes most people are expected to have.
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PRACTICE NOTES
Claims for negligent misrepresentation are frequently pursued together with, or as an alternative to, claims for negligent misstatement. It is therefore helpful to grasp the key practical considerations relevant to both types of claim.
Comments
Negligent misrepresentation
Key ingredients of claim
the representee relied upon a statement made to them by, or on behalf of, the representor
the representor intended that statement to prompt the representee to enter the contract
the statement did in fact induce the representee to enter the contract
the statement bore the character of a representation
the representation was untrue
Accordingly, a negligent misrepresentation claim inherently involves entry into a contract brought about by the misrepresentation.
Negligent misstatement
Key ingredients of claim
an inaccurate statement made by the representor to the representee
the claimant relied on that misstatement
the claimant suffered loss as a consequence
there is no need for a contract to have been concluded between claimant and
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PRACTICE NOTES
Liability for negligent misstatement can, in various ways, be avoided and/or curtailed. For an explanation of how to found such a claim, see Practice Note: Negligent misstatement—founding a claim. For general guidance on clauses that seek to limit or exclude liability, consult the following Practice Notes:
Misrepresentations—excluding and limiting liability for them
Contractual estoppel
Contractual estoppel—illustrative cases
Disclaimers of liability for negligent misstatement
A disclaimer will be effective where the statement is coupled with wording that plainly signals an intention to disclaim. In Hedley Byrne v Heller, the defendants said their advice was provided 'without responsibility', which the court accepted as excluding what would otherwise have been negligence liability. The wording must be explicit and unequivocal; the court will not infer a disclaimer (see Box v Midland Bank [1981] 1 Lloyd’s Rep 434, not reported by
Dispute Resolution
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