A tort exists to protect rights. The law of torts defines rights and obligations when an individual commits a wrong or injury against another. Torts have been defined as ‘an injury other than breach of contract, which the law will redress with damages’, a body of law which has been developed by the common law. Tort liability is intended to compensate a victim/claimant by forcing the wrongdoer to pay for any damage done (although in some torts damage is not necessary, for example, a trespass to land). There are different types of tort. There is some debate as to whether negligence is a tort or a basis of liability.

A tort is a civil breach committed against another in which the injured party can sue for damages. In personal injury cases, the injured party will attempt to receive compensation with the representation of a personal injury lawyer in order to recover from damages incurred. Tort law decides whether a person should be held legally responsible for injury against another, and what type of compensation the injured party is entitled to. There are four elements to tort law: duty, breach of duty, causation, and injury. In order to claim damages, there must be a breach in the duty of the defendant towards the plaintiff, which results in an injury. The three main types of torts are negligence, strict liability (product liability), and intentional torts.

Negligence

Negligence is a tort which determines legal liability for careless actions or inactions which cause injury. Thus, the tort of negligence spans the whole range of human activity, since it is not concerned with the activity itself, but with the manner in which the activity is carried out. Negligent conduct is that which falls below an acceptable standard. This standard is established in order to protect others from an unreasonable risk of harm. However, not every type of careless behaviour will constitute the legal action of negligence. The question is how does the law determine what is an unreasonable risk of harm?

To prove an action of negligence each of the following elements of the legal action must be established:

• Duty - That the defendant owed the claimant a duty of care.

• Breach - That the defendant breached that duty of care (that is, did not reach the required standard of care).

• Causation - That the damage suffered by the claimant was caused by the defendant’s breach of duty.

• Damage - That the type of damage suffered is not too remote from the defendant’s conduct.

If the claimant can prove that each of these elements exist, their action in negligence will succeed unless the defendant is able to establish one of the defences to the tort of negligence. It is important to note that there is no substantial measure of agreement between commentators or judges as to the limits of these elements which are needed to prove negligence. However, to divide negligence into elements is useful for analysis. This is because each element is used as a means to limit liability, in that, generally, if any element is missing, there can be no action in negligence.

Consist of 3 elements; Duty of Care, Breach of Duty and Causation and Remoteness of Damage

1.      Duty of Care

The claimant has to show that she is owed a duty outside contract or other torts to take reasonable care for her safety or whatever other interest of hers has been damaged. If she fails to establish this, her case will be unsuccessful no matter how careless the defendant has been and irrespective of whether that carelessness has brought about the damage to the interest in question. The duty concept is being used here to keep issues of liability firmly under control. It is a control mechanism enabling a court to say whether or not the damage claimed for is legally recognised. Another way of expressing it is in terms of immunity from suit. If there is no notional duty on a careless defendant, then he is immune from action, despite his lack of care. Immunities are granted for certain types of loss, subject to exceptions, for example, damage to financial interests. Lying beneath these significant immunities are value judgments by the judiciary. The reasons for these particular choices are often obscured by notions such as reasonable foreseeability, proximity, what is just and reasonable.

Omissions, the duty to act and duty to control third parties

The distinction between misfeasance and nonfeasance is a real one in the context of establishing a duty of care. There is liability for misfeasance, but not for nonfeasance.

Omissions

Generally, a defendant will not owe a duty to take positive steps to protect a potential claimant from a risk of injury. The law does not require that a person take positive action to assist someone else.

Duty to act

A duty of care may arise where the omission is not ‘pure’. A duty of care will arise where:

• it forms part of a positive act. For example, a duty to act may arise where a driver fails to apply the breaks while driving a car (the positive act is driving the vehicle) or a solicitor fails to disclose the existence of a will to a testator while holding custody of the will (Hawkins v Clayton (1988));

• the omission forms part of the general practice of the defendant and the claimant is justified in relying upon that general practice.

• the defendant is in a pre-existing relationship with the claimant. This arises in cases where the defendant is in an existing protective relationship with the claimant, normally a duty arising in such a situation will be non-delegable

Duty to control third parties

As a general rule, there is no legal duty imposed upon one individual to control the acts of another. No duty is created simply because a person can reasonably foresee a risk of injury to another and could have prevented it through controlling a third party.

2.      Breach of Duty

This element of negligence is the legal test which establishes a link between the parties. A defendant is only liable in negligence to a person to whom the defendant owes a duty of care. If this element is not present, the action in negligence will fail (Heaven v Pender (1883)). The function of this element is therefore to limit or control the liability of a defendant. As negligence is a tort which covers every human association, its application could be limitless. It is therefore necessary to contain negligence claims within reasonable levels. Thus, even where a defendant has been careless and has caused harm to a claimant, the tort of negligence may not be established, since a duty of care may not exist. For example, a defendant who sees an accident and fails to stop to help is not negligent, as there is no duty of care owed by the defendant in that situation. The issue then becomes: how does the law determine to whom a claimant will owe a duty of care?

It is often the most difficult element to satisfy and in the majority of cases, made up primarily of road traffic accidents and work related injuries, it is the singularly most contentious issue. In these types of cases, the duty issue is rarely a problem, as the case will normally fall within one of the established categories of duty situation.

There are two issues involved here: (1) what is the standard of care required of the defendant in law; (2) has this defendant fallen below the standard demanded of him?

This latter question is often described as being one of fact, but this may disguise the fact that a judge in deciding whether the defendant’s conduct had the character of negligence may be making inferences from what are called the primary facts. As the actual decision may depend on the facts, the value of any particular decision is likely to be minimal. The endless citing of cases decided on the breach point is not to be encouraged, rather the cases that follow may be seen as containing guiding factors only. A further word of warning is needed: the courts often use the word duty in the context of breach when they are concerned whether a defendant was required by the appropriate standard of care to do a specific thing, for example, a judge might suggest that the defendant was under a duty to sound his car horn when approaching a dangerous junction. In this context, the word is being used to signify that this is something that the reasonable person would have done in these circumstances.

Standard of Care

The standard of care is based on what the reasonable person would or would not do in the particular circumstances. This quotation encapsulates the search for objectivity, the desire to establish a single objective standard of conduct. There is, of course, a warning in the final three sentences, reinforcing the point made earlier that a judge must make inferences from the primary facts which may well reflect his personal view of what the reasonable person would have done or not done in the particular circumstances. The theory is that there is one single standard, but practice may suggest otherwise, as we shall see. The standard in any particular field of activity may be affected by policy considerations. Again, when one considers the requisite standard of care of the learner-driver, if this doctrine were to apply, would not logic irresistibly demand that there should be something more than a mere, single, conventional standard, applicable to anyone who falls into the category of learner driver, that is, of anyone who has not yet qualified for (or perhaps obtained) a full licence? That standard itself would necessarily vary over a wide range, not merely with the actual progress of the learner, but also with the passenger’s knowledge of that progress; or, rather, if the passenger has in fact over-estimated the driver’s progress, it would vary with the passenger’s reasonable assessment of the progress at the relevant time.

To determine the standard of care the court attempts to resolve the question as to whether: a reasonable person in the defendant’s position would have foreseen that their conduct posed a risk of injury to the claimant; and the reasonableness of the defendant’s response to the risk.

Factors Taken into account

The test is reasonable care in all the circumstances, as we have already seen. The factors set out below are to be considered as guidelines to enable the courts decide the fault issue. The difficulty is to know what weight to give to any one factor in any given case, a delicate balancing to be achieved by the judge. In assessing whether the reasonable person would have done or omitted to do something to avoid foreseeable harm to the claimant, the courts consider the magnitude of the harm, the seriousness of the injury should the risk materialise, the cost and practicability of the precautions needed to eliminate the risk and the social utility of the defendant’s activity. These are considered below.

·         Magnitude of the risk,  Seriousness of the harm, Cost and practicality of precautions, Social utility of the defendant’s activity, Special standards, Professional persons, Common practice, Children, Sporting competition, and Proof of breach.

Professional persons

Where the defendant is alleged to have some special expertise and the harm to the claimant comes about whilst the defendant is exercising his calling, the standard of care is clearly not that of the reasonable person in the street. The test for the professional person was spelt out in the case of Bolam v Friern Hospital Management Committee27 by McNair J:

"In the ordinary case which does not involve any special skill, negligence in law means this: Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case, it is generally said that you judge that by the action of the man in the street. He is the ordinary man. In one case, it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But, where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

The second proposition (advanced on behalf of the defendants) directs attention to the personal position of the individual member of the staff about whom the complaint is made. What is expected of him is as much as, but no more than, can reasonably be required of a person having his formal qualifications and practical experience. If correct, this proposition entails that the standard of care which a patient is entitled to demand will vary according to the chance of recruitment and rostering. The patient’s right to complain of faulty treatment will be more limited if he has been entrusted to the care of a doctor who is a complete novice in the particular field (unless perhaps he can point to some fault of supervision further up the hierarchy) than if he has been in the hands of a doctor who has already spent months on the same ward, and his prospects of holding the health authority vicariously liable for the consequences of any mistreatment will be correspondingly reduced. To my mind, this notion of a duty tailored to the actor, rather that to the act which he elects to perform, has no place in the law of tort. Indeed, the defendants did not contend that it could be justified by any reported authority on the general law of tort.

Doctors are not the only people who gain their experience, not only from lectures or from watching others perform, but from tackling live clients or customers, and no case was cited to us which suggested that any such variable duty of care was imposed on others in a similar position. To my mind, it would be a false step to subordinate the legitimate expectation of the patient that he will receive from each person concerned with his care a degree of skill appropriate to the task which he undertakes to an understandable wish to minimise the psychological and financial pressures on hardpressed young doctors.

For my part, I prefer the third of the propositions which have been canvassed. This relates the duty of care, not to the individual, but to he post which he occupies. I would differentiate ‘post’ from ‘rank’ or ‘status’. In a case such as the present, the standard is not just that of the averagely competent and well informed houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service. But, even so, it must be recognized that different posts make different demands. If it is borne in mind that the structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much, the risk of abuse by litigious patients can be mitigated, if not entirely eliminated.

Jenkins LJ, reading the judgment of the court found for the defendant and had this to say on the standard of care:

…we think that the standard of care and skill to be demanded of the defendant in order to discharge his duty of care to the [claimant] in the fixing of the new handle in the present case must be the degree of care and skill to be expected of a reasonably competent carpenter doing the work in question. This does not mean that the degree of care and skill required is to be measured by reference to the contractual obligations as to the quality of his work assumed by a professional carpenter working for reward, which would, in our view, set the standard too high. The question is simply what steps would a reasonably competent carpenter wishing to fix a handle such as this securely to a door such as this have taken with a view to achieving that object…

Special characteristics

To determine the standard at which a reasonable person would perform, the court must, at times, give the reasonable person some of the attributes of the defendant.

Special skills

If you hold yourself out as holding special skills, then you must show the skill normally possessed by people having those skills. This application of a higher standard of specialisation will only apply where the defendant has held themselves out to have those skills. The court found in favour of the defendant, as the defendant’s standard of care was the reasonable care and skill which a reasonably competent carpenter would apply, rather than that of a professional carpenter.

Knowledge by the claimant of defendant’s disability

Where parties have voluntarily entered into relationships with each other, the courts have held that one party has agreed to accept a substandard skill from the other. This is particularly the case with beginners.

Common Practice

Where the defendant acts in accordance with common practice, this may be evidence that he is not at fault, but it should not be regarded as conclusive of the issue. Likewise a failure to follow such practice may be some, but not necessarily conclusive, evidence of fault.

A common practice in like circumstances not followed by an employer may no doubt be a weighty circumstance to be considered by judge or jury in deciding whether failure to comply with this practice, taken along with all the other material circumstances in the case, yields an inference of negligence on the part of the employers.

Though it is submitted that the doctrine that mere conformity with practice is legally well established, analysis is required in order that its limits and value may be ascertained. In the first place, it is important to distinguish between average practices and average standards, between what the ordinary man does and what the ordinary man thinks ought to be done. His practice is not a necessary determinant of his ethics.

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes contrary view. At the same time, that does not mean that a medical man can obstinately and pigheadedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: I don’t believe in anaesthetics. I don’t believe in antiseptics. I am going to continue to do my surgery in the way it was done in the 18th century.’ That clearly would be wrong.

The case against them is not mistake or carelessness in performing the operation, which it is admitted was properly carried out, but an error of judgment in requiring the operation to be undertaken.

A case which is based on an allegation that fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper...

"A doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence…

My Lords, even before considering the reasons given by the majority of the Court of Appeal for reversing the findings of negligence, I have to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge’s finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For, in the realm of diagnosis and treatment, negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.

…in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant’s treatment or diagnosis accorded with sound medical practice."

The use of these adjectives—responsible, reasonable and respectable—all show that the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they often do, the weighing of risks against benefits, the judge before accepting a body of opinion as responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter…[The] decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence. (I am not here considering questions of disclosure of risk.) In my judgment, that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied on is reasonable or responsible. In the vast majority of cases, the fact that the distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

"I emphasise that, in my view, it will be very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence…"

However, in assessing whether the respondents fell short of the standard of care which they owed towards the appellants, three questions must be considered; first does the practice, as operated by the respondents in the instant case, involve a foreseeable risk? If so, could that risk have been avoided? If so, were the respondents negligent in failing to take avoiding action?

In the opinion of their Lordships, the risk of loss to the appellants by placing the money at the disposition of the vendors’ solicitor unquestionably involved a foreseeable risk, the risk of an embezzlement by the recipient. Such a risk is usually remote, but is none the less foreseeable…

The right of ‘self-determination’, the description applied by some to what is no more and no less than the right of a patient to determine for himself whether he will or will not accept the doctor’s advice, is vividly illustrated where the treatment recommended is surgery. A doctor who operates without the consent of his patient is, save in cases of emergency or mental disability, guilty of the civil wrong of trespass to the person; he is also guilty of the criminal offence of assault. The existence of the patient’s right to make his own decision, which may be seen as a basic human right protected by the common law, is the reason why a doctrine embodying a right of the patient to be informed of the risks of surgical treatment has been developed in some jurisdictions in the United States of America and has found favour with the Supreme Court of Canada. Known as the ‘doctrine of informed consent’, it amounts to this: where there is a ‘real’ or a ‘material’ risk inherent in the proposed operation (however competently and skillfully performed) the question whether and to what extent a patient should be warned before he gives his consent is to be answered not by reference to medical practice but by accepting as a matter of law that, subject to all proper exceptions (of which the court, not the profession, is the judge), a patient has the right to be informed of the risks inherent in the treatment which is proposed. The profession, it is said, should not be judge in its own cause; or, less emotively but more correctly, the courts should not allow medical opinion as to what is best for the patient to override the patient’s right to decide for himself whether he will submit to the treatment offered him…

Unless statute has intervened to restrict the range of judge made law, the common law enables the judges, when faced with a situation where a right recognised by law is not adequately protected, either to extend existing principles to cover the situation or to apply an existing remedy to redress the injustice. There is here no novelty, but merely the application of the principle ubi jus ibi remedium.

My conclusion as to the law is therefore this. To the extent that I have indicated, I think that English law must recognise a duty of the doctor to warn his patient of risk inherent in the treatment which he is proposing; and especially so if the treatment be surgery. The critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person would be likely to attach significance to the risk. Even if the risk be material, the doctor will not be liable if on a reasonable assessment of the patient’s condition he takes the view that a warning would be detrimental to his patient’s health.

Practicability of precautions

A risk of harm must be balanced against the precautions which may be taken to avert that harm. The court will take a number of factors into account when determining whether the defendant ought to have taken precautions to prevent the risk. For example, the courts may look to the gravity of the risk, the probability of its occurrence and the expense and inconvenience required to remove it. The court is concerned with the question as to whether a reasonable person would have taken steps to eliminate the risk.

Misrepresentation & Nondisclosure

Misrepresentation and nondisclosure form two fundamental bases for many actions represented under tort law. Any case where false or hidden information plays a significant part, essentially implies a standard of care that reflects the negligence addressed by tort.  To phrase it more simply, the fact that information has been withheld or misrepresented directly implies a negligent situation. This means that among the various subsections of tort law, cases of misrepresentation and nondisclosure can prove to be the easiest to form a legal consensus of opinion on whether negligence has happened, due to the very idea that the act itself is a negligent action. Misrepresentation and nondisclosure can take many forms, but generally they refer to an act or service. they are usually rendered for compensation that do not fulfill their terms of promise, either because they misrepresent their ability to perform, or fail to disclose elements that prevent adequate performance (like a unknown side effect for a product, or a conflict of interest in a case of service).  There are many remedies one may seek when a case of misrepresentation can be seen to have occurred, though the extent to which they fall under tort law or other forms of legal action are highly dependent on the specific legal system, as well as the nature of the misrepresentation.  In nearly all cases, there is an obligation on the provider of a product or service to provide information either by law, or by request, so as to adhere to all legal standards of accurate representation.

3.      Causation and Remoteness of Damage

The third element required to be established by the claimant in a negligence action is that the defendant’s breach of duty caused the damage sustained by the claimant. This in itself comprises two issues: causation and remoteness of damage. The claimant must first of all establish that the breach physically caused or contributed to the claimant’s damage. This is sometimes referred to as causation in fact. If the answer to this question is positive in favour of the claimant, the second question comes into play. Is the claimant’s loss too remote a consequence of the breach? This is often regarded as a question of law as opposed to one of fact, unlike the answer to the first question. The remoteness issue is sometimes referred to as causation in law, but, in order to avoid confusion, this second issue will be referred to as remoteness of damage. Its function is, as a matter of legal policy, to set limits to the liability of the defendant in the interests of justice and fairness. To hold a defendant liable for all the consequences which may follow from his faulty conduct is thought to go too far. At times, it is difficult to differentiate the function of remoteness from that of duty of care and, often, the same result can be achieved by denying that there is a duty or by accepting the argument that the claimant’s damage is too remote. However, the point should not be obscured that frequently, when deciding issues of physical causation, especially where the court can only speculate as to what happened after the event, the judges may be engaging in a similar exercise, in that a decision on physical cause may well not be value free. In effect, the causation/remoteness requirements can be seen as a further significant control mechanism employed by the courts to limit the number of successful claimants. The concepts of causation and remoteness are of course important to a greater or lesser degree in all torts but they are seen to be more problematic in the context of the tort of negligence. We shall consider first of all causation in fact.

The defendant’s negligence must cause or materially contribute to the damage suffered by the claimant. There must be a causal link between the act of the defendant and the claimant’s injury. This is a question of fact which must be proved on the balance of probabilities by the claimant. Courts have accepted that it is to be resolved as a matter of common sense and convenience, rather than as a scientific or mathematical formula.

Many texts deal with causation and remoteness together. However, each element is different: (1) the issue of causation which we are concerned with in this chapter is a focus of fact, that is, did the defendant’s act cause the claimant’s damage? This is referred to as causation in fact; (2) the issue of remoteness is classified as a question of law and is concerned with whether the damage or injury is too remote from the conduct of the defendant. This is referred to as causation in law.

Causation in Fact

The commonly accepted test for resolving factual causation issues is the so called ‘but for’ test. Would the claimant have suffered the harm he did but for the defendant’s fault? If the answer is in the negative, the claimant has at least slipped through the first net cast by the law. If the opposite conclusion is reached, then in normal circumstances the defendant’s breach of duty has been eliminated as a cause of the claimant’s harm. The remoteness question need not be put. The test can be described as crude preliminary filter which rules out some events from being the cause of the claimant’s damage.

There are two main questions here. Has the [claimant] established on the balance of probabilities: (1) that the medical casualty officer was negligent; and, if so, (2) that such negligence caused the death of the deceased?

The first of those questions can be divided into four other questions. (1) Should the doctor have seen the deceased? (2) Should he have examined the deceased? (3) Should he have admitted the deceased to the wards? And (4) should he have treated or caused to be treated the deceased? The first two of those four questions can be answered together.

There are a number of other difficult issues which arise in the attempt to employ the but for test; (1) The extent of the harm, (2) Successive causes, (3) Multiple causes, (4) Proof of causation, and (5) Lost chance

Extend of harm - The defendant is only to be held liable to the extent that his fault caused harm or further harm to the claimant.

Successive causes - The inadequacy of the but for test is plain for all to see in situations where the claimant has suffered two separate injuries, the one succeeding the other.

Multiple Causes - A classic illustration of the lack of sophistication inherent in the but for test is to be found in what Howarth describes as the ‘two hunter’ problem.7 It does not appear to be a problem which has so far troubled the English courts but there have been cases in other jurisdictions. A and B are out hunting and both fire shots, one of which hits the claimant. It is not possible to say whose bullet hit the claimant. The but for test does not help, nor would it help if both bullets hit the claimant and it is clear that both inflicted what would have been fatal injuries each in their own right. Applying the but for and balance of probability tests results in the claimant failing in these types of situation. Often, however, the courts resolve this issue in favour of the claimant. Where the claimant is only struck by one bullet, to make both defendants liable, means making a mistake against one of them. However, to deny the claimant a claim in such circumstances involves the court in making two mistakes, one in favour of the defendant whose actual bullet struck the claimant and one against the claimant himself, because after all someone’s bullet did strike him. The court is thus choosing the lesser of the two evils. Where the victim is struck fatal blows by both bullets, a finding against both defendants is not unfair because they are both at fault.

Proof of Causation - Another extremely difficult area where there is much conflicting opinion is that in relation to the proof of causation. There are some complex cases on this issue. There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But, it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. From a broad and practical viewpoint, I can see no substantial difference between saying that what the respondents did materially increased the risk of injury to the appellant and saying that what the respondents did made a material contribution to his injury.

Lost chance - The final causal riddle, at least for the time being, is that relating to the lost chance. The injury was not correctly diagnosed for five days by which time the chance of a good recovery, estimated at 25%, had been lost. The judge awarded the claimant 25% of the damages he would have received on a full liability basis to reflect the lost chance.

The [claimant’s] claim was for damages for physical injury and consequential loss alleged to have been caused by the authority’s breach of their duty of care. In some cases, perhaps particularly medical negligence cases, causation may be so shrouded in mystery that the court can only measure statistical chances. But that was not so here. On the evidence, there was a clear conflict as to what had caused the avascular necrosis. The authority’s evidence was that the sole cause was the original traumatic injury to the hip. The [claimant’s] evidence, at its highest, was that the delay in treatment was a material contributory cause. This was a conflict, like any other about some relevant past event, which the judge could not avoid resolving on a balance of probabilities. Unless the [claimant] proved on a balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis, he failed on the issue of causation and no question of quantification could arise. But the judge’s findings of fact…are unmistakably to the effect that on the balance of probabilities the injury caused by the [claimant’s] fall left insufficient blood vessels intact to keep the epiphysis alive.

Remoteness of Damage

Supposing that the claimant successfully negotiates the causation hurdle, she must then establish that her damage is not too remote a consequence of the defendant’s breach of duty. To succeed in an action for negligence, the claimant must have suffered damage. A defendant will not be liable for damage which the court regards as too remote. The purpose of this fourth element of negligence is to set a limit to the consequences for which a defendant may be liable. This element of remoteness sets a cut off beyond which a defendant will not be liable to a claimant for damage. A defendant is not responsible for all results which flow from a negligent act. Thus, this element is a public policy measure through which courts can limit liability. The test used by the court to establish whether the damage suffered by the claimant is too remote is reasonable foreseeability. If the damage is not a reasonably foreseeable result of the defendant’s negligence, the claimant will be unable to claim compensation from the defendant for it. The damage may be to the claimant’s person or property.

This concept applied to the slowly developing law of negligence has led to a great variety of expressions which can, as it appears to their Lordships, be harmonised with little difficulty with the single exception of the so called rule in Polemis. For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them), the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them. Thus, it is that over and over again it has happened that in different judgments in the same case, and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable or, alternatively, on the ground that it was natural or necessary or probable.

The two grounds have been treated as coterminous, and so they largely are. But, where they are not, the question arises to which the wrong answer was given in Polemis. For, if some limitation must be imposed upon the consequences for which the negligent actor is to be held responsible—and all are agreed that some limitation there must be— why should that test (reasonable foreseeability) be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind, and a test (the ‘direct’ consequence) be substituted which leads to nowhere but the neverending and insoluble problems of causation…

Reasonable foreseeability

The court looks at whether the type of damage incurred by the claimant was a reasonably foreseeable result of the defendant’s negligence. This question of reasonable foreseeability of damage is different to that with respect to the standard of care. However, the concept itself is the same.

It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the [claimant] must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air.

Suppose an action brought by A for damages caused by the carelessness (a neutral word) of B, for example, a fire caused by the careless spillage of oil. It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. It is vain to isolate the liability from its context and to say that B is or is not liable, and then to ask for what damage he is liable. For his liability is in respect of that damage and no other. If, as admittedly it is, B’s Liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened—the damage in suit? And, if that damage is unforeseeable so as to displace liability at large, how can the liability be resorted so as to make compensation payable?

But it is said, a different position arises if B’s careless act has been shown to be negligent and has caused some foreseeable damage to A. Their Lordships have already observed that to hold B liable for consequences however unforeseeable of a careless act, if, but only if, he is at the same time liable for some other damage however trivial, appears to be neither logical nor just. This becomes more clear if it is supposed that similar unforeseeable damage is suffered by A and C but other foreseeable damage, for which B is liable, by A only. A system of law which would hold B liable to A but not to C for the similar damage suffered by each of them could not easily be defended. Fortunately, the attempt is not necessary. For the same fallacy is at the root of the proposition. It is irrelevant to the question whether B is liable for unforeseeable damage that he is liable for foreseeable damage, as irrelevant as would the fact that he had trespassed on Whiteacre be to the question whether he has trespassed on Blackacre. Again, suppose a claim by A for damage by fire by the careless act of B. Of what relevance is it to that claim that he has another claim arising out of the same careless act? It would surely not prejudice his claim if that other claim failed: it cannot assist if it succeeds. Each of them rests on its own bottom, and will fail if it can be established that the damage could not reasonably be foreseen.

The rationale for the change of principle to reasonable foreseeability of the type of harm from directness appears to be that the latter is arbitrary in its application and could result in manifest injustice. The reasonability foreseeability test brings the test for remoteness into line with the test for establishing duty and allows the court to take policy factors into account in deciding whether certain types of damage are to be excluded.

The type of injury

It is only necessary that the type or kind of injury which the claimant suffered as a result of the defendant’s conduct be reasonably foreseeable. The extent of the injury which actually results is irrelevant. In other words, as long as the class of injury can be reasonably foreseen, the particular injury need not be foreseen.

The complexity of events which caused the harm

Once the damage is foreseeable, the fact that it may be continued or arises through a set of complex and unusual events will not help the defendant

As to whether the principle has made any difference in result is difficult to establish, although some take the view that most cases would be decided no differently had the directness test been applied to the facts. It seems that the English courts have tended to apply the reasonable foreseeability test.

·      Types of Harm

There is considerable ambiguity inherent in the phrase ‘type of harm’. It can be broadly or narrowly construed and it could be argued that courts draw its scope widely or narrowly depending on the result to be achieved. The defendants, as the [claimant’s] employers, were under a duty at common law to take reasonable steps to avoid exposing the [claimant] to a reasonably foreseeable risk of injury. The differing outcome in these two cases is a product of the wide or narrow way in which the type or kind of harm is categorised. In Bradford, the court considered whether harm by cold was reasonably foreseeable, not harm by frostbite. In Tremain, the question asked was whether Weil’s disease was reasonably foreseeable. Clearly, it was not, certainly at that time, but the narrowness of the question produced the inevitable response.

Manner of occurrence - It is said in the cases that the precise way in which the harm has come about does not have to be reasonably foreseeable before the claimant can succeed. It could also be argued that the harm caused to the claimant was outside the risk created by the negligence (if any) whereas, in Hughes, the harm was still within the risk created by the breach of duty.

Extend of the harm - Provided the type or kind of harm is reasonably foreseeable, it does not matter that the extent of the harm goes beyond what was reasonably foreseeable. In my judgment, the explosion and the type of damage being foreseeable, it matters not in law that the magnitude of the former and the extent of the latter were not.

The eggshell skull rule - This rule operates as an exception to the test that the type of damage which results to the claimant must be a reasonably foreseeable result of the defendant’s negligence. When a claimant has a condition which makes them more susceptible to injury than the ordinary person, the defendant will be held liable for the full extent of the injuries incurred. This is referred to as the ‘eggshell skull rule’, which means that you must take your victim as you find him or her. Provided the injury is reasonably foreseeable, once a breach of duty has been found, the defendant will be held liable for the damage, even if the victim has an eggshell skull, a weak heart, etc. This is not to say that the abnormal susceptibility of the claimant will not be relevant when assessing whether the defendant has breached their duty of care owed. However, once the breach is established and the type of damage is foreseeable, the defendant must take the victim as they are and will be responsible for the damage, however ‘abnormal’.

Claimant’s economic state - Concerning the claimant’s impoverished state at the time of the breach of duty and whether the claimant can successfully claim from the tortfeasor for extra expense incurred as a result of his lack of means.

Intervening events - Sometimes, the defendant’s negligence is accompanied by another event or events which may be said to contribute to the claimant’s injury. Where this event comes after the breach of duty but before the harm to the claimant, the court has to decide whether the original defendant is liable for the claimant’s harm. It is traditional to use the language of causation, novus actus interveniens or the causative potency of the negligence, in order to describe the decision as to whether the defendant is to be held liable. On the other hand, the matter may be expressed in terms of remoteness of damage, that is, the damage was of a type that was/was not reasonably foreseeable. We need to consider the different types of intervening event, namely, the intervening natural event, the situation where there is intervening negligence by a third party, the controversial area of deliberate third party interventions, and finally intervening acts of the claimant herself.

Intervening natural events - It seems that an intervening natural event will normally break the chain of causation, unless it can be argued that the defendant’s breach has either increased the likelihood of further damage from a natural event, or it has made the claimant more susceptible to damage. The other judges took a similar line. The intervening natural event overwhelmed the defendant’s breach of duty and reduced its causative potency to next to nothing.

Intervening negligent acts by third parties - The issues become more complex here. It is clear that a negligent intervention by a third party may be considered too remote as not being reasonably foreseeable, or be regarded as constituting a new intervening cause, but there is no universal rule to that effect. The defendants deny liability on the ground that there was no legal connection between the breach of duty and death of the deceased. Certain well known formulae are invoked, such as the chain of causation was broken and that there was a novus actus interveniens. These phrases, sanctified as they are by standing authority, only mean that there was not such a direct relationship between the act of negligence and the injury that the one can be treated as flowing directly from the other. Cases have been cited which show great difference of opinion on the true answer in the various circumstances to the question whether the damage was direct or too remote. I find it very difficult to formulate any precise and all embracing rule. I do not think that the authorities which have been cited succeed in settling that difficulty. It may be said that in dealing with the law of negligence it is possible to state general propositions, but when you come to apply those principles to determine whether there has been actionable negligence in any particular case, you must deal with the case on its facts.

Deliberate intervention by third parties - We need now to consider the issue of whether a deliberate act by a third party will be regarded as breaking the chain of causation. Sometimes, the courts consider this as a duty issue,43 in other cases as a causation/remoteness question. Whether the matter is approached as one of duty or causation, the courts are extremely reluctant to impose liability on the original tortfeasor for further damage caused by a deliberate, often criminal act by a third party. It has been said that, in order to satisfy the remoteness test, the claimant must show that the third party’s deliberate act was very likely to happen following the defendant’s breach of duty, or is the very thing to be guarded against.

Act of the Claimant - We must finally consider the position where the act of the claimant intervenes between the breach of duty by the defendant and at least some of the claimant’s damage.

Liabilities

5 types of liability; - Psychiatric Injuries, Economic Lost, Occupier liability, product liability, & strict liability.

1.       Psychiatric Injury

Initially, the courts would only recognise claims where the claimant had also suffered some physical injury as a consequence of the defendant’s negligence, the rationale presumably being that psychiatric harm was much more likely as a consequence where there was also some physical damage to the claimant. Nowadays, such a claimant would be called a primary victim, as opposed to the secondary victim, who normally will have witnessed the defendant putting, as a result of his negligence, the primary victim in danger. Primary victims are those persons who are either physically injured by the breach of duty by the defendant or those in fear of their own safety, although in the event they do not actually sustain bodily injuries, and in both types of case the victim suffers from a psychiatric illness. As was mentioned above, at first, the law was not prepared to consider claims for nervous shock without the accompanying bodily injury. Whilst the distinction between secondary and primary victims has only recently received significant emphasis, most of the reported litigation has been concerned with claimants who would be regarded as secondary victims.

It is now generally accepted that an analysis of the reported cases of nervous shock establishes that it is a type of claim in a category of its own. Shock is no longer a variant of physical injury but a separate kind of damage. Whatever may be the pattern of the future development of the law in relation to this cause of action, the following propositions illustrate that the application simpliciter of the reasonable foreseeability test is, today, far from being operative.

Shock is no longer a variant of physical injury but a separate kind of damage. Nature of nervous shock Grief or sorrow or anxiety or depression – feelings which normal people experience following the death or injury of a loved one – do not create an entitlement to damages in nervous shock. The law maintains a distinction between this ‘normal’ type of sorrow and nervous shock. To recover in nervous shock a person must have manifested psychiatric symptoms or suffered a recognizable psychiatric illness or suffered physical injury such as a miscarriage or a heart attack. Whatever may be the pattern of the future development of the law in relation to this cause of action, the following propositions illustrate that the application simpliciter of the reasonable foreseeability test is, today, far from being operative.

(1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illnesses caused in other ways, such as from experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages. (2) Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the accident are not recoverable. (3) Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages. (4) As yet, there is no authority establishing that there is liability on the part of the injured person, his or her estate, for mere psychiatric injury which was sustained by another by reason of shock, as a result of a self-inflicted death, injury or peril of the negligent person, in circumstances where the risk of such psychiatric injury was reasonably foreseeable. On the basis that there must be a limit at some reasonable point to the extent of the duty of care owed to third parties which rests upon everyone in all his actions. (5) ‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system…

They introduce the requirement of ‘proximity’ as conditioning the duty of care. The three elements are: (1) the class of persons whose claims should be recognised; (2) the proximity of such persons to the accident—in time and space; (3) the means by which the shock has been caused.

The class of persons whose claim should be recognized

When dealing with the possible range of the class of persons who might sue, Lord Wilberforce contrasted the closest of ties—parent and child and husband and wife—with that of the ordinary bystander. He said that, while existing law recognises the claims of the first, it denied that of the second, either on the basis that such persons must be assumed to be possessed with fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. He considered that these positions were justified, that other cases involving less close relationships must be very carefully considered…

The proximity of the plaintiff to the accident

It is accepted that the proximity to the accident must be close both in time and space. Direct and immediate sight or hearing of the accident is not required. It is reasonably foreseeable that injury by shock can be caused to a [claimant], not only through the sight or hearing of the event, but of its immediate aftermath.

The means by which the shock is caused

Lord Wilberforce concluded that the shock must come through sight or hearing of the event or its immediate aftermath but specifically left for later consideration whether some equivalent of sight or hearing, eg, through simultaneous television, would suffice.

Misfeasance v nonfeasance

Courts have drawn a further distinction between misfeasance (acting wrongly) and nonfeasance (failing to act) by statutory authorities.

2.      Economic Cost

Where a defendant has injured the property or person of a claimant and consequential economic loss occurs, the law of torts will allow compensation. An example of economic loss is where a claimant is injured in a car accident and thereby suffers a loss of earning capacity. Historically, compensation has not been recoverable where only pure economic loss has occurred. This refers to pure economic loss caused by a negligent act, statement or omission which has not occurred because of any injury or damage to the claimant’s person or property. Courts have generally been reluctant to allow recovery for economic loss. Reasonable foreseeability is not perceived as a sufficient limitation to control a defendant’s possible excessive liability which may arise from economic loss. Liability for economic loss will be imposed where a defendant has knowledge or the means of knowledge that the claimant is likely to suffer loss as a result of the defendant’s act or omission. Apart from negligent acts and omissions, the law has also imposed liability for economic loss flowing from a negligent misstatement. Thus a defendant’s liability may extend to statements of fact, advice or opinion which a defendant makes. While negligent misstatements may cause personal injury or damage to property, they will usually cause economic loss. Economic loss flowing from negligent misstatements differs from negligent acts due to the concept that the claimant must have relied upon the statement in some way. Such reliance is not necessary when the economic loss results from a negligent act or omission.

The difference between negligence and a negligent misstatement

• Negligence refers to conduct whereas negligent misstatement refers to written or spoken words.

• Damage caused by negligent misstatement is mainly economic loss and not physical damage to persons or property as in negligence.

• The test to establish a duty of care in negligent misstatement is different from that required in negligence. In negligent misstatement, there must be a ‘proximate relationship’ between the claimant and the defendant for there to be a duty of care.

The uneasy relationship between these two areas of law will be considered at stages in this chapter as it has clearly bedevilled the cases and the principles under discussion. Contract and tort meet head on here and the question of which, if any, is the dominant one comes up time and again. Generally, the law has set its face against claims for pure economic loss, outside contract. Furthermore, tort law is meagre with its remedies for deliberately inflicted economic loss, so it is hardly surprising that it does not welcome with open arms claims for such loss when it is negligently inflicted. Economic loss may be, and often is recoverable, in negligence actions provided the claimant can show that she has suffered some personal injury or property damage with which the financial loss claim can be linked. Such economic loss is often called consequential economic loss, in the sense that it is a consequence of some personal injury or property damage. We shall explore this point fully in the discussion below, as it is fundamental to the question of recoverability in many of the cases. As we shall discover, there have been other cases in which claims for free-standing financial loss have been upheld. It is these sorts of cases which are perplexing as there does not seem to be any coherent principle underlying them.

Pure Economic Loss

The first inquiry is into what is meant by the phrase ‘pure economic loss’. The use of the word ‘pure’ tends to suggest that the loss in question must be untainted and stand apart from other types of loss suffered by a claimant in any particular case. It is loss unconnected with, for example, personal injury damage. In a claim for personal injuries following negligence by a defendant, the claimant may well be unable to resume work. In such circumstances, the claimant’s claim will include, as a head of damage, an item representing future loss of earnings. This is a normal head of damage which is clearly economic loss, but it is dependent or linked with the personal injuries sustained by the claimant. The loss is not pure economic loss, but is consequential on the damage to the claimant’s body or mind. The distinction between property damage and pure economic loss is, perhaps much more difficult to detect at times.

General rule against recovery

The importance of the distinction between property damage on the one hand and pure economic loss on the other should be evident from the preceding discussion. There is, and has been for well over a hundred years, a rule against recovery for pure financial loss. Its very antiquity is one of the compelling reasons, so it is said, for its continuance.

Reliance

The issue of reliance is fundamental to the principle at two levels in a sense. The advisee must establish actual reliance, that is, causation, in that she must show that, acting on the advice or information, she did so to her detriment and sustained a loss. The other point is that the claimant must show that her reliance was reasonable in the circumstances. This is likely to be the crucial issue in many cases and in a sense is tied up with the other elements. It is only where the advice is given in a business context that the reliance will be reasonable. Similarly, only if the reliance of the claimant is within the purpose for which the advice or information is given will that reliance be seen as being reasonable.

3.       Occupier’s Liability

Occupiers’ liability is concerned with the liability of an occupier towards persons who come onto their land. An occupier of land generally owes a duty of care to a person who comes onto that land.

The liability may be toward an invitee, a licensee, an entrant as of right or a trespasser. Whether a person occupies the land depends upon control or occupation, rather than ownership of an interest in land. It is a question of fact, not of legal title nor of possession – the defendant must exercise some form of control over the premises.

The liability is based on fault and is considered to be a species of negligence, although it is now on a statutory footing both in relation to lawful visitors and to trespassers. Before the Occupiers’ Liability Act 1957, this area was regulated by the common law.

The main difficulty concerned the apparent fluctuation in the standard of care expected by the occupier depending on the precise status of the entrant onto the premises. Briefly, the law differentiated between contractual entrants, invitees, licensees and trespassers. The latter were considered to be beyond the pale, being owed a minimal duty. The other three categories were regarded as lawful entrants but it seems that they were treated somewhat differently when it came to the standard of care owed. The major difficulties arose at the divide between invitees and licensee on the one hand and licensees and trespassers on the other. An invitee was owed a duty of reasonable care whereas the licensee was owed a duty to warn of danger and concealed traps of which the occupier was aware. Trespassers were owed very little at all. Case law at the margins of these divides resulted in artificial distinctions such as the implied licence in favour of children ‘allured’ onto premises by machinery or other attractive objects, thus allowing the courts to treat them as lawful entrants as opposed to trespassers. Other cases involved convoluted discussions about whether the entrant was an invitee or licensee and again courts often strained the meaning of theses categories to obtain a higher standard of care for the claimant. Broadly, an invitee was thought to be a person who came onto the relevant premises with a purpose in common with the occupier. A licensee, on the other hand, was a person who merely had permission, express or implied, to be on the premises.

There was also a further problem concerning the difference between what is called the ‘occupancy’ duty and the ‘activity’ duty. The former is concerned with the static condition of the premises whereas the latter relates to the activities carried on there. Whether this difference was one of substance rather than one purely of description is not too clear.

4.       Product Liability

Liability for a defective product may arise in contract, tort or under statute. This chapter is concerned with liability for defective goods in tort, outside contract. In a sense, product liability law is in this country a strange mixture of strict contractual liability, tortious liability based on fault and strict liability in tort under …

Standard of Care

The standard must be that of reasonable care in all the circumstances as it is elsewhere in the tort of negligence, so the various factors discussed in Chapter 3 on breach of duty may have to be considered. It needs repeating that the standard is relative and not absolute. Proof of breach, as has already been mentioned in the introduction to this chapter, may be difficult and will depend on the nature of the defect. A claimant may be at a serious disadvantage if the item is a sophisticated piece of consumer equipment. However, where the alleged defect is one which can be categorised as a manufacturing defect, the courts have been more claimant orientated in some of the cases. Where there is a manufacturing defect, the claimant is usually alleging that the there has been some error in the process or there has been a lack of quality control resulting in the article not being as designed

In relation to design defects, the law has been less than willing to admit these as amounting to negligence. There appear to have been remarkably few cases in the UK in which a court has found for a claimant in circumstances where the product has been manufactured as designed, but the claimant’s complaint relates to the faulty design in itself or the product has harmful side effects such as a drug. It may be that this a result of a much more thorough analysis of the costs and benefits of the product which is seen to favour the producer of the product.

However, there was a suggestion that the manufacturer, once aware of the problem, was under a duty at least to warn of the danger, or possibly even to arrange for the recall of vehicles potentially subject to the defect. The social utility argument is often decisive in this situation, and the fear of the excessive cost of precautions is sometimes raised to sway the argument in favour of the defendant. Many products can potentially be rendered safer, but at what cost? Another factor favouring the defendant may be the existence of a statutory or other type of standard in accordance with which the product has been designed and produced.

Causation/Remoteness

The issues of causation and remoteness of damage may be just as live in product liability cases as in other areas of negligence. The one major point in this context is the ‘intermediate examination’ point which is often considered as one of causation. A producer may be able to advance the argument that his negligence is obliterated by the negligent failure of a third party to make an inspection of the product and had this been done, the defect would have come to light.

5.       Strict Liability

The three areas are liability for the escape of things (the rule in Rylands v Fletcher), liability for fire and, finally, liability for animals. In a sense, all three areas are closely linked, but there is a tendency to treat them as distinct fields of liability. If cases of liability under the rules discussed in the previous chapter are fairly rare, then cases under these three topics must be even rarer.

Nuisance

The uneasy relationship between nuisance and negligence is a continuing and controversial point of discussion which follows below in the cases extracted. It appears that, in some cases, a failure to take care is considered as an essential requirement of the claimant’s case; in others, it seems to be still the case that the nature of the liability in nuisance is strict. The other development has been the burgeoning of the public law controls over pollution placed in the hands, for the most part, of local authorities. These mechanisms for protecting the environment are a valuable addition to the common law, although it would seem that the reverse is true, in that the common law controls in most cases will surely be taking a back seat in the fight against environmental damage. The common law may be seen as the backdrop against which the other controls now operate. We shall be considering the scope of the common law actions only in this chapter, although often the solution may lie in the public law domain.

The second point of an introductory nature is that the tort comprises two separate and, possibly historically distinct, causes of action, that is, public and private nuisance.

Distinction between Private and public nuisance

A public nuisance is normally considered to be an interference or misuse which either (a) affects the exercise of some public right; or (b) substantially affects the health, safety, or convenience of a substantial number of people within the area of effect. Private nuisance is commonly regarded as an unreasonable interference with the use or enjoyment of the claimant’s land or recognised interest in land.

Public nuisance, it must be emphasised, is a crime as well as a tort, whereas private nuisance is a tort only. A civil action for a public nuisance would normally be brought by the Attorney General in what is known as a relator action, although the frequency of resort to this procedure has been considerably reduced by the introduction of the public law controls mentioned above. A private individual may bring an action in public nuisance provided she can show that she has suffered special damage over and above that suffered by the community at large. A private individual must take the initiative at all times in a private nuisance action. Public nuisance protects a wider range of interests in that the claimant need not have an interest in land, as is generally thought to be the case, in a private nuisance action. Personal injury damages are definitely recoverable in a public nuisance action provided the claimant can show special damage as mentioned earlier. In private nuisance, as with the rule in Rylands v Fletcher, the issue of recovery of such damages is not free from doubt as we shall see later. As public nuisance is a crime, the prescription rule cannot apply to it. The tort of nuisance as a whole has a role to play in the prevention of damage, rather than just providing compensation for past events, by providing for the issue of an injunction in appropriate cases. We shall look at a few cases where some of these issues have been explored, before going on to look at private nuisance.

A case which shows the potential source of overlap between the causes of action is the case of Halsey v Esso Petroleum Co Ltd2 in which the defendants had an oil distribution depot close to a residential street. The residents complained of a number of things including the escape of acid smuts which caused damage to washing on the line and to paint work on cars in the street. There were complaints about a pungent and nauseating smell emanating from the premises, as well as noise at night from two sources, boilers on the premises and large oil tankers driving along the street to obtain access to the depot. The claimant brought a variety of actions in private and public nuisance as well as under the rule in Rylands v Fletcher.

So far as the present case is concerned, liability for nuisance by harmful deposits could be established by proving damage by the deposits to the property in question, provided, of course, that the injury was not merely trivial. Negligence is not an ingredient of the cause of action, and the character of the neighbourhood is not a matter to be taken into consideration. On the other hand, nuisance by smell or noise is something to which no absolute standard can be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The character of the neighbourhood is very relevant and all the relevant circumstances have to be taken into account. What might be nuisance in one area is by no means necessarily so in another. In an urban area, everyone must put up with a certain amount of discomfort and annoyance from the activities of neighbours, and the law must strike a fair balance between the right of the [claimant] on the one hand to the undisturbed enjoyment of his property, and the right of the defendant on the other hand to use his property for his own lawful enjoyment. That it is how I approach this case.

It may be possible in some cases to prove that noise or smell have in fact diminished the value of the [claimant’s] property in the market. That consideration does not arise in this case, and no evidence has been called in regard to it. The standard in respect of discomfort and inconvenience from noise and smell that I have to apply is that of the ordinary reasonable and responsible person.

Private Nuisance

The usual starting point in a discussion of private nuisance is the principle that no man is allowed to use his property to injure another, which of itself is very little use. It does not tell us at what point the use of the property by the defendant may go before the law will intervene. There is a balance to be sought and, if possible, achieved between competing private rights as between adjoining landowners and the spurious public interest.

Interests protected We have already briefly discussed the point that the claimant, in order to maintain an action, must have a legally recognised interest in the land affected by the alleged nuisance. This would obviously cover the freeholder, the leaseholder and the reversioner in situations where the nuisance has caused or might cause permanent damage to the property. In fact, any interest which is capable of being protected by a grant falls within this category, and therefore, a mere licence would not seem to be sufficient.

There may of course be cases in which, in addition to damages for injury to his land, the owner or occupier is able to recover damages for consequential loss. He will, for example, be entitled to loss of profits which are the result of inability to use the land for the purposes of his business. Or, if the land is flooded, he may also be able to recover damages for chattels or livestock lost as a result. But, inconvenience, annoyance or even illness suffered by persons on land as a result of smells or dust are not damage consequential upon injury to the land. It is rather the other way about: the injury to the amenity of the land consists in the fact that the persons on it are liable to suffer inconvenience, annoyance or illness.

It follows that damages for nuisance recoverable by the possessor or occupier may be affected by the size, commodiousness and value of his property but cannot be increased merely because more people are in occupation and therefore suffer greater collective discomfort. If more than one person has an interest in the property, the damages will have to be divided among them. If there are joint owners, they will jointly be entitled to the damages, if there is a reversioner and the nuisance has caused damage of a permanent character which affects the reversion, he will be entitled to damages according to his interest. But, the damages cannot be increased by the fact that the interests in the land are divided; still less according to the number of persons residing on the premises.

Once it is understood that nuisances ‘productive of sensible personal discomfort’ do not constitute a separate tort of causing discomfort to people, but are merely part of a single tort of causing injury to land, the rule that the [claimant] must have an interest in the land falls into place as logical and, indeed, inevitable…

Conduct covered

We shall see that nuisance is concerned with interferences of a physical nature which are indirect, whereas direct physical interferences would be within the scope of a trespass to land action. Nuisance, as we have already seen, however, encompasses more than just physical damage or inconvenience to property. It covers intangible interferences, which can and often are, serious interferences with the use and enjoyment of the claimant’s own property. Into this category fall smells, noise, vibrations, for example. Establishing a sex shop or a brothel in a particular area might also be examples of intangible interference. Interference with a view or reception of television signals is not actionable, however. There is a tendency, as we shall see, for the law to take the physical interferences more seriously in most situations.

Activity or conduct must be unreasonable

This is the crucial issue in any private nuisance action. Was the defendant’s conduct or activity reasonable in relation to the claimant’s use and enjoyment of his own land? There has to be give and take in regard to the use of land, but has the defendant gone beyond this? The courts consider a number of factors when assessing this question, such as whether negligence by the defendant is relevant, whether the escape was a continuing or isolated one, the nature of the locality, the social utility of the activity, the duration, frequency and intensity of the activity. We shall consider these below.

Negligence a factor?

It seems, as already indicated in the introduction to this chapter that in some cases foreseeability as to consequences is thought to be a factor. As a general rule, it seems that this is more likely to be the case where damages are claimed by the claimant as opposed to the preventative remedy of the injunction. Also, where the defendant or somebody for whom he is responsible has created the alleged nuisance, negligence is not normally considered essential. However, where the nuisance resulted from a natural event or as a result of the act of a third party outside the control of the defendant, the courts will only hold that there is a nuisance as far as the defendant is concerned if some negligence, even an omission, can be laid at the defendant’s door.

Substantial harm

The extent of the harm caused or likely to be caused is an important factor in deciding whether the defendant’s activity is actionable in nuisance. The harm must be substantial and it is accepted that any actual physical damage will normally be regarded as substantial whereas the courts require more convincing that an intangible harm is actionable

Locality

The last case illustrates the point to some extent at least that locality may be a factor in deciding whether the claimant’s complaint is actionable as a nuisance.

Social utility

It is sometimes the case that the defendant will argue that to prevent his activity would deprive the community of certain benefits. We have seen this argument before in the context of the general discussion of breach of duty in negligence. It seems to be less successful in nuisance cases.

Claimant’s hypersensitivity

If the claimant’s use of his own premises is hypersensitive or unusual in any way and he is unable to use his property for that purpose because of what the defendant is doing on his land, the court may decide that there is no actionable nuisance. In a sense, the cause of the harm to the claimant is his own unusual use of his own premises rather than that of the defendant.

Motive

The defendant’s motive is not normally relevant in tort, however, malice or illwill has been regarded as a factor in some nuisance cases. In particular, Christie v Davey16shows that malice on the part of the defendant may swing the balance in favour of the claimant. The claimant in that case complained that the defendant was deliberately banging on the middle walls of the semi-detached property and making other noises to vex his neighbours.

Who can be sued?

The creator of the nuisance can always be sued, and so may the occupier who may be jointly and severally liable with the creator where the latter was under his control or where he expressly or impliedly authorises the nuisance.

The liability of the occupier for a nuisance created by an independent contractor employed by him needs considering. Normally, there is no liability in tort for the activities of such a person, but where the nuisance is an inevitable consequence of the operations on the land, the occupier’s duty is regarded as ‘non-delegable’. This means that, although the occupier may actually entrust the task to a contractor, he remains personally responsible for the nuisance.A landlord, who is not in occupation of the premises, is not normally liable for a nuisance emanating from those premises. However, there are a number of exceptions to this rule. The landlord may also be liable where the state of affairs giving rise to the nuisance existed before she gave up possession to the tenant, or where the landlord retains control of any part of the premises and the nuisance is on that part. There are also a number of situations where the landlord may be held liable where she is responsible for repairs, or even has a right of access to check whether the tenant has carried out her obligation to repair, and moreover as we have seen, where the premises are adjacent to the highway.

Types of damage recoverable

Whilst nuisance is a tort primarily concerned with interferences with land, it would seem that any interference which caused or threatened personal injury to the occupier of the land or to the personal possessions of such a person would constitute an actionable private nuisance. If a person cannot go into his garden for fear of being struck by a cricket ball every Saturday or Sunday afternoon, it cannot seriously be suggested that this is not an unreasonable interference with his use and enjoyment of his back garden.It would seem obvious that actual physical damage to land is recoverable, as will damages for the inability to use the land because of intangible harm, such as smell, noise and so on. The usual question now arises as to whether economic loss is recoverable in nuisance.

Defences

Defences available to the claimant in a nuisance action in particular are prescription and statutory authority. Prescription can only be set up as a defence where the nuisance has continued for twenty years uninterrupted. Statutory authority will often depend on the wording of the particular statute

authorising the setting up of whatever it is that is causing the alleged nuisance, for example, an oil refinery. A more recent development which emphasises the role of nuisance as an environmental tort with a role to play still, is that concerning the relationship between planning permission and common law nuisance

remedies for nuisance

In relation to the torts we have considered in previous chapters, the appropriate remedy has been damages and the principles involved in the assessment of awards in such cases will be discussed in a later chapter. The only comment at this stage on damages, a point to be explored later, is that there can be no claim for exemplary damages in a public nuisance case. However, as mentioned in the introduction to this chapter, there is often a far more desirable alternative remedy in a nuisance case, namely, the injunction to prevent any further damage or to ward off any damage at all in the first place. The relationship between these two remedies is far from straightforward in this area as the subsequent case extracts will amply demonstrate. There is a feeling that, in some recent cases, the courts have departed from well established principles in regard to the award of damages

in lieu of an injunction, which must be seen as the primary remedy in this branch of the law.

Defamation

The tort of defamation is principally designed to protect interests in reputation from untrue statements. It is a difficult tort to understand for a number of reasons. First, it is infected with a mass of procedural rules of pleading which serve to make it both complex and, in places, an extremely turgid subject to study. The cases may often be interesting but the interest disappears amidst a welter of special pleading points which should have long since been laid to rest. Secondly, a further complicating factor is that, unlike most other types of civil trial, defamation cases are heard before a judge and jury. Not only does this result in anomalous and obscene awards of damages by juries, it also makes often for apparently inconsequential discussions about what it is the judge must decide or what must be left to the jury. The sooner this anachronism is put to rights, the more realistic awards of damages will be and the less complex at the same time will be the decision making in defamation cases. There is a bewildering array of common law and statutory defences available to the defendant, some of which are tainted with procedural flavours which once again add to the complexity. The tort is right on the edge of the line between the individual’s right to his reputation remaining intact and the right to freedom of speech.

The conventional phrase exposing the [claimant] to hatred, ridicule and contempt is probably too narrow. The question is complicated by having to consider the person or class of persons whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the [claimant] in the estimation of right-thinking members of society generally? Assuming such to be the test of whether words are defamatory or not there is no dispute as to the relative functions of judge and jury, of law and fact. It is well settled that the judge must decide whether the words are capable of a defamatory meaning. That is a question of law: is there evidence of a tort? If they are capable, then the jury is to decide whether they are in fact defamatory.

The tort of defamation protects the reputation of the claimant in the eyes of others and therefore there must be publication of the libel or slander to some person other than the claimant. Where the defamatory statement is contained in a letter or in circumstances where it was intended for the eyes or ears of the claimant only but it is read or heard by a third party, the test of whether there has been publication is that established.  A person other than the author of the statement may of course be liable for publishing the libel. In Byrne v Deane, it was said that there had been publication by the secretary of the golf club by not removing the unauthorised notice in question from the notice board. It will be recalled that liability, however, was not established in that case because the court held that the statement was not capable of a defamatory meaning. At common law, there is a defence of innocent dissemination for people such as newsagents, libraries and booksellers who are considered to be mere mechanical distributors of the libel. It has been said that they may have a defence if: (a) they were innocent of any knowledge of the libel contained in the work; and

(b) there was nothing in the work or in the circumstances in which it came to them or was disseminated by them which ought to have led them to suppose it contained a libel; and

(c) that when the work was disseminated by them, it was not by negligence on their part that they were unaware that it contained the libel.

Difference between libel and slander

Slander normally takes the form of the spoken word whereas libel is considered to be defamation in a more permanent form. There is some uncertainty about records and tape recordings as to whether

they are libel or slander. As there is no communication until they are played, there is a reasonable case for saying that they can only amount to slander, on the other hand they are in a more than just transient form thus suggesting libel is the appropriate action. Arbitrary as some of the distinctions may appear, they are nonetheless important by virtue of the fact that libel is one of those rare torts which is actionable per se whereas the sister tort of slander normally requires proof of damage.

Justification

It is a compete defence if the defendant proves that the words complained of are true, even if she is actuated by malice. Malice may, however, be relevant where the defendant seeks to rely on a ‘spent’ conviction to justify his statement.

Absolute privilege

A defamatory false statement made on an occasion which is accorded absolute privilege is not actionable even in cases where the claimant can clearly establish ill-will, spite or malice on the part of the defendant.

Defenses

There are several defences available to a defendant against whom negligence is alleged. The two principal defences are:

• contributory negligence – that the claimant’s own carelessness contributed to the damage suffered; and

• volenti non fit injuria – that the claimant voluntarily assumed the risk of the injury.

The burden of proof is upon the defendant. Contributory negligence is a partial defence, while volenti non fit injuria is a total defence.Some defences have been discussed in context as it makes obvious sense to deal with defences such as justification, fair comment and privilege in the defamation chapter. We have also discussed defences such as ex turpi causa, provocation and contributory negligence indeed, in the chapter on trespass to the person. The volenti defence has featured in a number of contexts already in the earlier chapters, in particular it was discussed in the

context of sporting competitions and the requisite standard of care and the chapters including the discussion on occupier’s liability and liability for animals. Nonetheless, there was little opportunity in those contexts to discuss the detail of the defences.

In an important way, there is a relationship between the two defences in that, although volenti if successfully pleaded amounts to a complete defence and contributory negligence is normally only a partial defence, both may be pleaded on similar facts. Bearing in mind that a conclusion of volenti, namely, assent to the risk, is a complete rejection of the claimant’s claim, it is perhaps not surprising that the defence has become increasingly of less value to defendants in circumstances where the judge can employ contributory negligence, thus not refusing the claimant any compensation at all.

Volenti non fit injuria

This defence is sometimes expressed as Voluntary assumption of risk’ and, as explained above, if successful prevents the claimant from recovering at all for the defendant’s breach of duty. At the outset, it must be stressed that knowledge of the risk alone is not likely to be sufficient to establish the defence, there must also be, it is said, agreement by the claimant to accept that risk willingly. It has sometimes been explained in terms of the claimant agreeing to waive her rights in respect of die defendant’s breach of duty but this may lead to confusion with attempts to exclude liability which is covered by different rules both at common law and statute as we saw in the chapter on occupier’s liability. We shall look at cases in three areas below, namely, the application of the principle in the workplace, in relation to drunken drivers and finally in the context of rescuers.

Volenti non fit injuria means that an injury cannot be done to a willing person. In other words, an injury cannot be done to a person who has voluntarily assumed the risk. This may be a complete defence to a negligence action. In alleging the defence of volenti non fit injuria, the defendant is arguing that the claimant was aware of the risk of injury and had fully accepted the risk. Thus, volenti non fit injuria is often equated to the notion of ‘consent’ in actions for intended harm such as trespass (see Chapter 10). The difference is that in volenti non fit injuria, the claimant is consenting to a risk whereas the notion of ‘consent’ is that agreement is given for an actual event to take place.

Often, volenti non fit injuria and contributory negligence may be argued on the same set of facts, for example, if a passenger gets into a vehicle with a driver they know to be drunk. Whether this is the case, however, is to be determined on the facts. The major difference between the two actions is that in volenti non fit injuria, the claimant must know of the risk, whereas contributory negligence does not require actual knowledge.

Elements of defence of volenti non fit injuria

The elements of the defence are: (1) that the plaintiff perceived the existence of the danger; (2) that he fully appreciated it; (3) that he voluntarily accepted the risk … It is, of course, important to see what is ‘the risk’ (if any) that the plaintiff has voluntarily accepted, for the acceptance of one risk is not necessarily the acceptance of all risks.

These elements are strictly applied and may be difficult to prove. In short they are:

• perceived danger;

• scope of the risk;

• voluntary acceptance of the risk.

Contributory negligence

Where a claimant has contributed to their injury or loss through their own negligence, a defendant may utilise the defence of contributory negligence. Contributory negligence must be specifically pleaded. Contributory negligence is a partial defence, in that, if it is successful, it will not deny the claimant’s claim, but will result in the amount of damages paid to the claimant being reduced. Where the claimant’s harm is brought about partly by the defendant’s negligence and partly the claimant’s own fault, the defence of contributory negligence may come into operation. The result of this, at common law, was that the courts developed doctrines to avoid the severity of the rule that it was a full defence such as ‘the last clear opportunity rule’ which applied where the evidence showed that the defendant had the last real chance to avoid the damage to the claimant.

How to prove contributory negligence

Contributory negligence is not concerned with whether damage or a risk of damage is done to another, rather it is concerned with the failure of a person to take care of their own safety and interests. Thus, in contributory negligence, the claimant does not have to owe the defendant a duty of care. In other words, the defendant needs to show:

• that the claimant failed to take the precautions a reasonable person would have for their own protection, that is, the standard of care applicable to the claimant’s act;

• that the damage was reasonably foreseeable and was contributed to by the claimant’s act.

Some commentators also include a third criteria:

• that the injury is within the risk. Each of these is dealt with below.

Standard of care

The issue in contributory negligence is whether the conduct of the claimant amounts to a failure to take reasonable care of their own safety.

Causation – was the damage reasonably foreseeable and contributed to by the claimant’s act?

There must be a causal link between the claimant’s negligent conduct and the damage suffered by the claimant. In most cases, causation with respect to contributory negligence is proved by using the ordinary principles of causation in negligence. This means that the question of causation is essentially one of fact which will be resolved by common sense.

Vicarious Liability

The doctrine of vicarious liability is concerned with the legal responsibility of a person for the torts of another. The most important area in which the principle operates is that of employer and employee where the former is considered liable for the torts of the latter committed during the course of his employment. There are also one or two other areas in which the principle is relevant and these will considered below also, we need to consider, if briefly, the justifications for the imposition of liability in such circumstances as the decision to place responsibility in law on a person, for example, the employer of the acts of an employee, is clearly an illustration of strict liability which is generally something, as we have already seen, the judiciary is reluctant to impose. It is has been said that the doctrine is based on considerations of ‘social convenience and rough justice’ as opposed to any legal principle.

Common justifications include the idea that the doctrine represents a response to the development of business organisations as legal organisations in their own right as distinct from the human beings through whom they function. Another view is that the employer who takes the benefit of the activity of the employee must also shoulder the burden when things go wrong, a form of enterprise theory. Further, it is suggested that even if there is no or little benefit to the employer in what the employee has done, the employer has a moral responsibility to any one harmed by the tort of the employee, having placed her in a position whereby she can exploit the third party claimant. None of these are completely satisfactory. The final justification is recognition for the point that often the employee is not worth suing and therefore the employer, having the deepest pocket, is in a better position to meet any claim. This loss distribution theory is hardly a principle of law, rather it is a description of what is happening if a court does employ a doctrine of vicarious liability in the employer/employee and other relationships.

We need to distinguish between direct liability of an employer and vicarious liability. Direct or primary liability arises where the duty in question is imposed personally on the employer and, although in practice the employer delegates the task of performing the duty to another, the duty is said in law to be ‘non-delegable’. This explains why, in some circumstances, an employer, contrary to the general rule, is held liable for the work of an independent contractor.

Course of Employment

There are a number of factors which must be considered in any decision on this issue, none of which by itself is regarded as conclusive. A distinction is drawn in the cases between the situation in which an employee does an unauthorised act where the employer is not thought to be liable, and one in which the employee does an authorised act in an unauthorised manner, where the employer is considered liable.

Time. The court will consider whether the tort was committed during working hours.

Place. The place where the tort was committed may have some significance.

Benefit of employer

The fact that the employee may not be acting for the benefit of the employer does not necessarily mean that she is acting outside the course of her employment

Express prohibitions by employer

Even where the employer expressly forbids the employee to do a certain act, it may still be regarded as in the course of employment, provided the act does benefit the employer.

A fiduciary relationship is traditionally defined as a relationship between parties to a transaction in which one of the parties is duty bound to act with the utmost good faith for the benefit of the other party. Such a relationship ordinarily arises where trust and/or confidence is reposed by one party (owner) on the integrity of another (design-builder), and where that party voluntarily accepts the confidence of the other. In such a case, the party in whom the confidence is reposed can take no advantage from his acts relating to the interest of the other party without the trusting party’s knowledge or consent. Failure to do so exposes the trusted party to breach of fiduciary duty claims.

Some jurisdictions have concluded that the relationship between a client and construction or design professional is fiduciary as a matter of law, but most appear to accept that these commercial arrangements do not warrant the legal presumption of a fiduciary relationship.

Most construction and design professionals know that they owe their clients a professional duty of care—meaning they must perform their services with the level of skill and care of their industry peers. Breach of that duty leads to a claim for negligence. Many professionals may be unaware, however, that under the right circumstances they may incur fiduciary obligations. Held to standards “stricter than the morals of the market place,” the fiduciary owes to its beneficiary the utmost good faith and loyalty. In practical terms, a fiduciary duty is a constraint on the fiduciary’s freedom to act in his own self-interest because he must set the beneficiary’s well-being before his own.

So, how does a national engineering firm find itself deemed the fiduciary of a seemingly ordinary client? The answer may lie in the scattered precedent and judicial uncertainty surrounding when and under what circumstances a construction or design professional becomes a fiduciary. At a basic level, fiduciary relationships are created by fact or law. Certain arrangements, such as that between a trustee and beneficiary or a lawyer and a client, are well recognized as fiduciary relationships. A handful of jurisdictions have concluded that the relationship between a client and construction or design professional is fiduciary as a matter of law, but most appear to accept that these commercial arrangements do not warrant the legal presumption of a fiduciary relationship.

The second path to a fiduciary relationship is marked by specific facts giving rise to a relationship of heightened trust and confidence beyond that typical of an arms length transaction. As one court put it: “[A] fiduciary relationship is characterized by a ‘fiduciary’ who enjoys a superior position in terms of knowledge and authority and in whom the other party places a high level of trust and confidence.” Accordingly, a fiduciary relationship is necessarily one of dependence, where the fiduciary stands in a position superior to that of the beneficiary.  Thus, although ordinary business relationships involving professionals entail “a certain degree of trust and duty of good faith,” a fiduciary “relationship transcends the ordinary business relationship.” While contract language is crucial in determining the parties’ relationship, there are other, less obvious facts that may give rise to a fiduciary relationship. As a general matter, the greater the professional’s discretion and control over the project and the more the relationship resembles one of agency, the more likely the court will find a fiduciary relationship. Likewise, the chance of a court finding a fiduciary relationship grows with the discrepancy in the sophistication and respective knowledge of the parties. And if the parties had a relationship of trust that predates the business arrangement, the court will scrutinize more carefully whether the professional thereby assumed fiduciary obligations when the relationship took a commercial turn.

“It is our opinion that a registered engineer retained to investigate the integrity of a building who determines, based on structural deficiencies in violation of applicable building standards, that there is an imminent risk of serious injury to the occupants therein, and who is advised by the owner that no disclosure or remedial action is intended and that such determinations are to remain confidential, has a duty to warn the identifiable occupants or, if not feasible, to notify the local building officials or other appropriate authority of such determinations.” 68 Ops Atty Gen 250.

A design-build contract necessarily implies that the contractor possesses the necessary architectural and/or engineering skill and ability to perform its duties reasonably and without neglect. A design-builder has a fiduciary duty as the project designer to exercise due care in the performance of its design and supervision functions. Architect assuming supervision duties required to exercise due care in the performance of his supervisory function, and is liable to the owner for negligence on his part. In short, a design-build contract necessarily imposes the fiduciary duty to properly design and prepare plans in accordance with the applicable standard of care and in compliance with building codes.

The all inclusive nature of design-build contracts often triggers public policy concerns that lead courts to impose broad duties on design-builders. For example, design-builders are affirmatively obligated to exercise that level of fiduciary care that would be required of a design professional for the design and supervision of the typical construction project.

Protecting against Fiduciary Liability

The line between an everyday business arrangement and a fiduciary relationship is anything but bright. While the specific facts of the case will determine the outcome, the best defense lies in ensuring that your contract does not include language suggesting the creation of a fiduciary relationship. Take care to avoid provisions that speak of a relationship of “trust and confidence,” that create a duty to act only in the client’s interest or as the client’s agent throughout the project, or that suggest you “guarantee” the outcome or cost of the project. Additionally, you might also consider bargaining for a contract provision explicitly disavowing fiduciary duties.

If you do find yourself on the receiving end of a fiduciary duty claim, there are important strategic steps you can take to rebut such liability. For example:

• Scrutinize your contract for any potentially adverse language.

• Marshal facts to demonstrate the relative sophistication of your opponent.

• Gather evidence that you did not exercise the degree of discretion and control over the relationship necessary for the creation of fiduciary obligations and that your retention was an arms-length business transaction.

• Collect evidence demonstrating that you fulfilled any potential fiduciary obligations.

• Research your jurisdiction’s precedent on your profession’s fiduciary obligations.

• Ascertain whether any statutes may impose a fiduciary obligation

• Develop legal defenses to the claim, which may include assertion of the economic loss doctrine or similar defenses barring tort actions in contract disputes.

As the Victorville case shows, underestimating the viability of a plaintiff’s fiduciary duty claim can be an extremely costly error. Savvy plaintiffs can use rather typical design and construction contract language to paint the picture of a relationship of unique trust and fidelity. And they can bolster their claim that a fiduciary duty existed by pointing to a defendant’s experience and expertise—accolades that all professionals would like to advertise without fear that such accomplishments later will be used against them. Anticipated risks, however, are the ones most easily defended. With a proper understanding of the legal nuances of fiduciary duty claims, a firm can defeat such claims through the presentation of a compelling narrative demonstrating that the relationship with the aggrieved client was a commercial interaction like any other.

Morally responsible in organization without getting hurt:  This knowledge helps engineers to understand (1) how they and their managers tend to frame issues under the influence of the organization and (2) how one can act in the organization effectively, safely, and in a morally responsible way.

Organizational Culture: Customer-oriented companies, engineer-oriented companies and finance-oriented companies. Additional suggestions that should make acting ethically easier and less harmful to the employee are;

First, engineers and other employees should be encouraged to report bad news. Second, companies and their employees should adopt a position of “critical” loyalty rather than uncritical or blind loyalty. Uncritical loyalty to the employer is placing the interests of the employer, as the employer defines those interests, above every other consideration. By contrast, critical loyalty is giving due regard to the interests of the employer but only insofar as this is possible within the constraints of the employee’s personal and professional ethics. Third, when making criticisms and suggestions, employees should focus on issues rather than personalities. This helps avoid excessive emotionalism and personality clashes. Fourth, written records should be kept of suggestions and especially of complaints. This is important if court proceedings are eventually involved. It also serves to ‘‘keep the record straight’’ about what was said and when it was said. Fifth, complaints should be kept as confidential as possible for the protection of both the individuals involved and the firm. Sixth, provisions should be made for neutral participants from outside the organization when the dispute requires it. Sometimes, employees within the organization are too emotionally involved in the dispute or have too many personal ties to make a dispassionate evaluation of the issues. Seventh, explicit provision for protection from retaliation should be made, with mechanisms for complaint if an employee believes he or she has experienced retaliation. Next to the fear of immediate dismissal, probably the greatest fear of an employee who is in disagreement with a superior is that he or she will suffer discrimination in promotion and job assignment, even long after the controversy is resolved. Protection from this fear is one of the most important of employee rights, although it is one of the most difficult to provide. Eighth, the process for handling organizational disobedience should proceed as quickly as possible. Delaying resolution of such issues can be a method of punishing dissent. Sufficient delay often allows management to perform the actions against which the protest was made. Prolonging the suspense and cloud of suspicion that accompanies an investigative process also serves to punish a protesting employee, even if his or her actions were completely justifiable.

Management Decisions

The primary function of engineers within an organization is to use their technical knowledge and training to create structures, products, and processes that are of value to the organization and its customers. But engineers are also professionals, and they must uphold the standards that their profession has decided should guide the use of their technical knowledge. Thus, engineers have a dual loyalty—to the organization and to their profession. Their professional loyalties go beyond their immediate employer.

These obligations include meeting the standards usually associated with good design and accepted engineering practice. The criteria embedded in these standards include such considerations as efficiency and economy of design, the degree of invulnerability to improper manufacturing and operation, and the extent to which state of-the-art technology is used. Engineers also ascribe preeminent importance to safety. Moreover, they are inclined to be cautious in this regard, preferring to err on the conservative side in safety considerations.

The function and consequent perspective of managers is different. Their function is to direct the activities of the organization, including the activities of engineers. Managers are not professionals in the strict sense. Rather than being oriented toward standards that transcend their organization, they are more likely to be governed by the standards that prevail within the organization and, in some cases, perhaps by their own personal moral beliefs.

This perspective differs from that of engineers. Rather than thinking in terms of professional practices and standards, managers tend to enumerate all of the relevant considerations (‘‘get everything on the table,’’ as they sometimes say) and then balance them against one another to come to a conclusion. Managers feel strong pressure to keep costs down and may believe engineers sometimes go too far in pursuing safety, often to the detriment of such considerations as cost and marketability. By contrast, engineers tend to assign a serial ordering to the various considerations relevant to design so that minimal standards of safety and quality must be met before any other considerations are relevant.

These considerations suggest a distinction between what we call a proper engineering decision (PED), a decision that should be made by engineers or from an engineering perspective, and what we call a proper management decision (PMD), a decision that should be made by managers or from the management perspective. PED: a decision that should be made by engineers or at least governed by professional engineering standards because it either (1) involves technical matters that require engineering expertise or (2) falls within the ethical standards embodied in engineering codes, especially those that require engineers to protect the health and safety of the public. PMD: a decision that should be made by managers or at least governed by management considerations because (1) it involves factors relating to the well-being of the organization, such as cost, scheduling, and marketing, and employee morale or welfare; and (2) the decision does not force engineers

(or other professionals) to make unacceptable compromises with their own technical or ethical standards.

We make three preliminary remarks about these characterizations of engineering and management decisions. First, the characterizations of the PED and PMD show that the distinction between management and engineering decisions is made in terms of the standards and practices that should predominate in the decision-making process. Furthermore, the PMD makes it clear that management standards should never override engineering standards when the two are in substantial conflict, especially with regard to safety and perhaps even quality. However, what is considered a ‘‘substantial conflict’’ may often be controversial. If engineers want much more than acceptable safety or quality, then it is not clear that the judgment of engineers should prevail. Second, the PMD specifies that a legitimate management decision not only must not force engineers to violate their professional practices and standards but also must not force other professionals to do so either. Even though the primary contrast here is the difference between engineering and management decisions, the specification of a legitimate management decision must also include this wider prohibition against the violation of other professional standards. A complete characterization of a legitimate management decision should also include prohibitions against violating the rights of nonprofessional employees, but this would make the characterization even more complicated and is not relevant for our purposes. Third, engineers may often be expected to give advice, even in decisions properly made by managers. Management decisions can often benefit from the advice of engineers. Even if there are no fundamental problems with safety, engineers may have important contributions with respect to such issues as improvements in design, alternative designs, and ways to make a product more attractive.

Paradigmatic and Nonparadigmatic Examples

The characterization of the PED does not define ‘‘technical matters,’ and it certainly does not define “health” and “safety.” PMD does not fully specify the kinds of considerations that are typical management considerations, citing only “factors relating to the wellbeing of the company, such as cost, scheduling, marketing, and employee morale or welfare.’’ The characterization of the PMD requires that management decisions not force engineers to make ‘‘unacceptable compromises with their own professional standards,’’ but it does not define unacceptable.

We refer to the relatively uncontroversial examples of PEDs and PMDs as paradigmatic. The characterizations of PED and PMD provided earlier are intended to describe such paradigms. These two paradigms can be thought of as marking the two ends in a spectrum of cases. This is because (1) the decision involves issues related to accepted technical standards and (2) the decision relates in important ways to the safety of the public and therefore to the ethical standards of engineers. The choice between valves A and B is a paradigmatic PED. Comparing the decision by the two criteria in the PMD, we can say that (1) management considerations (e.g., speed of delivery, cost, and the decision as to which customers should be cultivated) are important, and (2) no violation of engineering considerations would result from either decision. Here again, rational people of good will might differ on whether management or engineering considerations should prevail.

Disobedience

Organizational disobedience: It is helpful to keep the following two points about organizational disobedience in mind. First, the policy that a professional employee disobeys or protests may be either specific or general. It may be a specific directive of a superior or a general organizational policy, either a single act or a continuing series of actions. Second, the employer may not intend to do anything morally wrong. For example, when an engineer objects to the production of a faulty type of steel pipe, he is not necessarily claiming that his firm intends to manufacture a shoddy product.

There are at least three distinct areas in which responsible engineers might be involved in organizational disobedience: 1. Disobedience by contrary action, which is engaging in activities contrary to the interests of the company, as perceived by management. 2. Disobedience by nonparticipation, which is refusing to carry out an assignment because of moral or professional objections. 3. Disobedience by protest, which is actively and openly protesting a policy or action of an organization.

Disobedience by Contrary Action

Engineers may sometimes find that their actions outside the workplace are objectionable to managers. Objections by managers are usually in one of two areas. First, managers may believe that a particular action or perhaps the general lifestyle of an employee reflects unfavorably on the organization. Second, managers may believe that some activities of employees are contrary to the interests of the organization in a more direct way. On the one hand, there is no doubt that an organization can be harmed in some sense by the actions of employees outside the workplace. A company that has a reputation for hiring people whose lifestyles are offensive to the local community may not be able to hire highly desirable people, and it may lose business as well.

Many managers will act strenuously when they believe they or their organizations are threatened by actions of employees outside the workplace. Therefore, two observations may be appropriate. First, some actions by employees outside the workplace harm an organization more directly than others. Second, there can be a major difference in the degree to which curtailment of an employee’s activities outside the workplace encroaches on his freedom.

Disobedience by Nonparticipation

Engineers are most likely to engage in disobedience by nonparticipation in projects that are related to the military and in projects that may adversely affect the environment. Disobedience by nonparticipation can be based on professional ethics or personal ethics. Engineers who refuse to design a product that they believe is unsafe can base their objections on their professional codes, which require engineers to give preeminence to considerations of public safety, health, and welfare. Engineers who refuse to design a product that has military applications because of their personal objections to the use of violence must base their refusal on personal morality because the codes do not prohibit engineers from participating in military projects. The basis of objections to participating in projects that engineers believe are harmful to the environment is more controversial. Some of the engineering codes have statements about the environment and some do not; when present, the statements are usually very general and not always easy to interpret.

Several things should be kept in mind about disobedience by nonparticipation: First, it is possible (although perhaps unlikely) for an employee to abuse the appeal to conscience, using it as a way to avoid projects he finds boring or not challenging or as a way to avoid association with other employees with whom he has personal difficulties. Second, it is sometimes difficult for employers to honor a request to be removed from a work assignment.

Disobedience by Protest

In some situations, engineers find the actions of the employer to be so objectionable that they believe mere nonparticipation in the objectionable activity is insufficient. Rather, some form of protest, or “whistleblowing,” is required.

This suggests two characteristics of whistleblowing: (1) One reveals information that the organization does not want revealed to the public or some authority, and (2) one does this out of approved channels.

Whistleblowing is morally permissible if: 1. the harm that ‘‘will be done by the product to the public is serious and considerable’’; 2. the employees report their concern to their superiors, and; 3. ‘‘getting no satisfaction from their immediate superiors, they exhaust the channels available’’ within the organization

whistleblowing is morally obligatory if: 1. the employee has ‘‘documented evidence that would convince a responsible, impartial observer that his view of the situation is correct and the company policy is wrong’’; and 2. the employee has ‘‘strong evidence that making the information public will in fact prevent the threatened serious harm.’’

Three Attitudes toward the Environment

The first attitude is what we call the sub-minimal attitude. Industries in this group do as little as is possible—and sometimes less than is required—in meeting environmental regulations. They often have no full-time personnel assigned to environmental concerns, devote as few financial resources as possible to environmental matters, and fight environmental regulations.

The second attitude is what we call the minimalist or compliance attitude. Firms adopting this orientation accept governmental regulation as a cost of doing business but often without enthusiasm or commitment. There is often a great deal of skepticism about the value of environmental regulation.

A third attitude is what we call the progressive attitude. In these companies, being responsive to environmental concerns has the complete support of the CEO. The companies have well-staffed environmental divisions, use state-of-the-art equipment, and generally have good relationships with governmental regulators. The companies generally view themselves as good neighbors and believe that it is probably in their long-term interests to go beyond legal requirements because doing so generates good will in the community and avoids lawsuits.

Environment

10 principles:

1. Protection of the biosphere. Reduce and make progress toward the elimination of any environmentally damaging substance and safeguard habitats and protect open spaces and wilderness, while preserving biodiversity. 2. Sustainable use of natural resources. Make sustainable use of renewable natural sources, such as water, soils, and forests, and make careful use of nonrenewable resources. 3. Reduction and disposal of wastes. Reduce and, if possible, eliminate waste, and handle and dispose of waste through safe and responsible methods. 4. Energy conservation. Conserve energy and improve the energy efficiency of all operations, and attempt to use environmentally safe and sustainable energy sources. 5. Risk reduction. Strive to minimize the environmental, health, and safety risks to employees and surrounding communities, and be prepared for emergencies. 6. Safe products and services. Reduce and, if possible, eliminate the use, manufacture, or sale of products and services that cause environmental damage or health or safety hazards, and inform customers of the environmental impacts of our products or services. 7. Environmental restoration. Promptly and responsibly correct conditions we have caused that endanger health, safety, or the environment, redress injuries, and restore the environment when it has been damaged. 8. Informing the public. Inform in a timely manner everyone who may be affected by the actions of our company that affect health, safety, or the environment, and refrain from taking reprisals against employees who report dangerous incidents to management or appropriate authorities. 9. Management commitment. Implement these principles in a process that ensures that the board of directors and chief executive officer are fully informed about environmental issues and fully responsible for environmental policy, and make demonstrated environmental commitment a factor in selecting members of the board of directors. 10. Audits and reports.

Two Modest Proposals

We believe that professional engineering obligations regarding non-health-related issues can best be handled in terms of two proposals: 1. Although engineers should be required to hold paramount human health in the performance of their engineering work (including health issues that are environmentally related), they should not be required as professionals (i.e., required by the codes) to inject non-health-related environmental concerns into their engineering work. 2. Engineers should have the right to organizational disobedience with regard to environmental issues, as this is required by their own personal beliefs or their own individual interpretations of what professional obligation requires.

The first proposal embodies the idea that a minimal conception of professional obligation to safeguarding the environment should be incorporated into professional codes. The second proposal assumes that individual engineers may have a conception of what it is for them to act as professionals that is not a consensus view, or that they may have personal beliefs about the environment unconnected with their professional obligations.

Rights to disobedience

First, engineers should have the right to disobedience by contrary action with regard to environmental issues; that is, they should have the right to promote their personal beliefs or their own individual interpretations of what professional obligation requires, including their beliefs about the environment, outside the workplace. Second, engineers should have the right to disobedience by nonparticipation with regard to environmental issues; that is, they should have the right to refuse to carry out assignments they believe are wrong, including environmentally related assignments. Third, engineers should have the right to disobedience by protest with regard to environmental issues; that is, they should have the right to protest employer actions they believe to be wrong, including actions they believe are harmful to human health or the environment.

Forms of Dishonesty: Lying, deliberate deception, withholding information, failure to seek out the truth.

Why dishonesty wrong? With regard to professionals, the requirement never to conceal truth would mean that engineers, physicians, lawyers, and other professionals could not exercise confidentiality or protect proprietary information. Doctors could never misrepresent the truth to their patients, even when there is strong evidence that this is what the patients prefer and that the truth could be devastating.

Engineers have some degree of responsibility to ensure that employers, clients, and the general public make autonomous decisions, but their responsibilities are more limited than those of physicians. Their responsibilities probably extend only to the third of these three conditions of autonomy, ensuring that employers, clients, and the general public make decisions regarding technology with understanding, particularly understanding of their consequences.

Now let us turn to the utilitarian perspective on honesty. Utilitarianism requires that our actions promote human happiness and well-being. The profession of engineering contributes to this utilitarian goal by providing designs for the creation of buildings, bridges, chemicals, electronic devices, automobiles, and many other things on which our society depends. It also provides information about technology that is important in decision making at the individual, corporate, and public policy levels.

Dishonesty in engineering research can undermine these functions. If engineers report data falsely or omit crucial data, then other researchers cannot depend on their results. This can undermine the relations of trust on which a scientific community is founded. Just as a designer who is untruthful about the strength of materials she specifies for a building threatens the collapse of the building, a researcher who falsifies the data reported in a professional journal threatens the collapse of the infrastructure of engineering.

Dishonesty can also undermine informed decision making. Managers in both business and government, as well as legislators, depend on the knowledge and judgments provided by engineers to make decisions. If these are unreliable, then the ability of those who depend on engineers to make good decisions regarding technology is undermined. To the extent that this happens, engineers have failed in their obligation to promote the public welfare.

Dishonesty in Engineering Research and Testing: Dishonesty in science and engineering takes several forms: falsification of data, fabrication of data, and plagiarism. Falsification involves distorting data by smoothing out irregularities or presenting only those data which fit one’s favored theory and discarding the rest. Fabrication involves inventing data and even reporting results of experiments that were never conducted. Plagiarism is the use of the intellectual property of others without proper permission or credit. It takes many different forms. Plagiarism is really a type of theft.

Confidentiality: One can misuse the truth not only by lying or otherwise distorting or withholding it but also by disclosing it in inappropriate circumstances. Engineers in private practice might be tempted to disclose confidential information without the consent of the client. Information may be confidential if it is either given to the engineer by the client or discovered by the engineer in the process of work done for the client.

Given that most engineers are employees, a more common problem involving the improper use of information is the violation of proprietary information of a former employer. Using designs and other proprietary information of a former employer can be dishonest and may even result in litigation. Even using ideas one developed while working for a former employer can be questionable, particularly if those ideas involve trade secrets, patents, or licensing arrangements.

An engineer can abuse client–professional confidentiality in two ways. First, she may break confidentiality when it is not warranted. Second, she may refuse to break confidentiality when the higher obligation to the public requires it.

Intellectual Properties

Intellectual property is property that results from mental labor. It can be protected in several ways, including as trade secrets, patents, trademarks, and copyrights.

 

Expert Witnessing

Engineers are sometimes hired as expert witnesses in cases that involve accidents, defective products, structural defects, and patent infringements, as well as in other areas where competent technical knowledge is required. Calling upon an expert witness is one of the most important moves a lawyer can make in such cases, and engineers are usually well compensated for their testimony. However, being an expert witness is time-consuming and often stressful.

When confronted with these demands, the expert witness faces certain ethical pitfalls. The most obvious is perjury on the witness stand. A more likely temptation is to withhold information that would be unfavorable to the client’s case. In addition to being ethically questionable, such withholding can be an embarrassment to the engineer because cross-examination often exposes it. To avoid problems of this sort, an expert should follow several rules

First, she should not take a case if she does not have adequate time for a thorough investigation. Second, she should not accept a case if she cannot do so with good conscience. Third, the engineer should consult extensively with the lawyer so that the lawyer is as familiar as possible with the technical details of the case and can prepare the expert witness for cross-examination. Fourth, the witness should maintain an objective and unbiased demeanor on the witness stand. Fifth, the witness should always be open to new information, even during the course of the trial.

Informing the Public

Some types of professional irresponsibility in handling technical information may be best described as a failure to inform those whose decisions are impaired by the absence of the information. From the standpoint of the ethics of respect for persons, this is a serious impairment of moral agency. The failure of engineers to ensure that technical information is available to those who need it is especially wrong where disasters can be avoided.

Conflict of Interest: can strike at the heart of professionalism. This is because professionals are paid for their expertise and unbiased professional judgment in pursuing their professional duties, and conflicts of interest threaten to undermine the trust that clients, employers, and the public place in that expertise or judgment. When a conflict of interest is present, there is an inherent conflict between a professional actively pursuing certain interests and carrying out his or her professional duties as one should.

In considering these prohibitions and conflicts of interest more generally, however, several important points must be kept in mind. First, a conflict of interest is not just any set of conflicting interests. Second, simply having more commitments than one can satisfy in a given period of time is not a conflict of interest. Third, the interests of the client, employer, or public that the engineer must protect are restricted to those that are morally legitimate. Fourth, a distinction is sometimes made between actual and potential conflicts of interest. Fifth, even though it is best to avoid conflicts of interest, sometimes this cannot reasonably be done. Even then, the professional should reveal the existence of the conflict rather than wait for the customer or the public to find out about it on their own.

The relationship of safety to risk is an inverse one. Because of the laws of engineering science and statistics, the more we accept risk in an engineering project, the less safe it will become. If there were absolutely no risk in a project, then that project would be absolutely safe. So safety and risk are intimately connected. Concern for safety pervades engineering practice. One of the most common concepts in engineering practice is the notion of ‘‘factors of safety. Virtually all engineering codes give a prominent place to safety, stating that engineers must hold paramount the safety, health, and welfare of the public.

Approach to Risk

Risk as the product of the probability and magnitude of harm: To assess a risk, an engineer must first identify it. To identify a risk, an engineer must first know what a risk is. The usual engineering definition of risk is ‘‘a compound measure of the probability and magnitude of adverse effect.’’5 That is, risk is composed of two elements: the likelihood of an adverse effect or harm and the magnitude of that adverse effect or harm. By compound is meant the product. Risk, therefore, is the product of the likelihood and the magnitude of harm. A relatively slight harm that is highly likely might constitute a greater risk to more people than a relatively large harm that is far less likely. We can define a harm as an invasion or limitation of a person’s freedom or wellbeing. Engineers have traditionally thought of harms in terms of things that can be relatively easily quantified, namely as impairments of our physical and economic wellbeing.

Utilitarianism and Acceptable risk: In order to determine whether a risk is morally acceptable, engineers and risk experts usually look to utilitarianism. This position holds, it will be remembered,

that the answer to any moral question is to be found by determining the course of action that maximizes well-being. One way of implementing this account of acceptable risk is by means of an adaptation of cost–benefit analysis. As we have seen, utilitarians sometimes find cost–benefit analysis to be a useful tool in assessing risk. In applying this method to risk, the technique is often called risk–benefit analysis because the ‘‘cost’’ is measured in terms of the risk of deaths, injuries, or other harms associated with a given course of action. For simplicity, however, we shall continue to use the term cost–benefit analysis. Limitations - First, it may not be possible to anticipate all of the effects associated with each option. Insofar as this cannot be done, the cost–benefit method will yield an unreliable result. Second, it is not always easy to translate all of the risks and benefits into monetary terms. Third, cost–benefit analysis in its usual applications makes no allowance for the distribution of costs and benefits. Fourth, the cost–benefit analysis gives no place for informed consent to the risks imposed by technology.

Expanding the Engineering Account of Risk: The Capabilities Approach to Identifying Harm and Benefit

There are, however, four main limitations with this rather narrow way of identifying harm. First, often only the immediately apparent or focal consequences of a hazard are included, such as the number of fatalities or the number of homes without electricity. However, hazards can have auxiliary consequences, or broader and more indirect harms to society. Second, both natural and engineering hazards might create opportunities, which should be accounted for in the aftermath of a disaster. Focusing solely on the negative impacts and not including these benefits may lead to overestimating the negative societal consequences of a hazard. Third, there remains a need for an accurate, uniform, and consistent metric to quantify the consequences (harms or benefits) from a hazard. Fourth, current techniques do not demonstrate the connection between specific harms or losses, such as the loss of one’s home and the diminishment of individual or societal well-being, and quality of life. Yet it is surely the larger question of effect on quality of life that is ultimately at issue when considering risk.

Specific capabilities are defined in terms of functionings, or what an individual can do or become in his or her life that is of value. Examples of functionings are being alive, being healthy, and being sheltered. A capability is the real freedom of individuals to achieve a functioning, and it refers to the real options he or she has available. Capabilities are constituent elements of individual well-being.

Capabilities are distinct from utilities, which refers to the mental satisfaction, pleasure, or happiness of a particular individual. Often, people’s preferences or choices are used to measure satisfaction. Utilities are assigned to represent a preference function. From the capabilities standpoint, a risk is the probability that individuals’ capabilities might be reduced due to some hazard. In determining a risk, the first step is to identify the important capabilities that might be damaged by a disaster. Next, the indicators must be scaled onto a common metric so that the normalized values of the indicators can be compared. Then, a summary index is constructed by combining the information provided by each normalized indicator, creating a hazard index (HI). Finally, in order to put the HI into the relevant context, its value is divided by the population affected by the hazard, creating the hazard impact index, which measures the hazard impact per person.

The Public’s approach to risk: Expert and Layperson: Differences in Factual Beliefs

The first difference is that engineers and risk experts believe that the public is sometimes mistaken in estimating the probability of death and injury from various activities or technologies. Risk expert Chauncey Starr has a similarly low opinion of the public’s knowledge of probabilities of harm. He notes that people tend to overestimate the likelihood of low-probability risks associated with causes of death and to underestimate the likelihood of high-probability risks associated with causes of death. The latter tendency can lead to overconfident biasing, or anchoring. In anchoring, an original estimate of risk is made—an estimate that may be substantially erroneous. Even though the estimate is corrected, it is not sufficiently modified from the original estimate. The original estimate anchors all future estimates and precludes sufficient adjustment in the face of new evidence.

“Risky” Situations and Acceptable Risk: It does appear to be true that the engineer and risk expert, on the one hand, and the public, on the other hand, differ regarding the probabilities of certain events. The major difference, however, is in the conception of risk itself and in beliefs about acceptable risk. One of the differences here is that the public often combines the concepts of risk and acceptable risk—concepts that engineers and risk experts separate sharply. Furthermore, public discussion is probably more likely to use the adjective “risky” than the noun “risk”.

In public discussion, the use of the term risky, rather than referring to the probability of certain events, more often than not has the function of a warning sign, a signal that special care should be taken in a certain area. Two issues in the public’s conception of risk and acceptable risk have special moral importance: free and informed consent and equity or justice. These two concepts follow more closely the ethics of respect for persons than utilitarianism. According to this ethical perspective, as we have seen, it is wrong to deny the moral agency of individuals. Moral agents are beings capable of formulating and pursuing purposes of their own.

Free and Informed Consent: To give free and informed consent to the risks imposed by technology, three things are necessary. First, a person must not be coerced. Second, a person must have the relevant information. Third, a person must be rational and competent enough to evaluate the information. Meaningful and informed consent has been given is not always easy, for several reasons. First, it is difficult to know when consent is free. Second, people are often not adequately informed of dangers or do not evaluate them correctly. Third, it is often not possible to obtain meaningful informed consent from individuals who are subject to risks from technology.

Equity or Justice: The ethics of respect for persons places great emphasis on respecting the moral agency of individuals, regardless of the cost to the larger society. The benefits and harms have been inequitably distributed. His rights to bodily integrity and life were unjustly violated. An acceptable risk is one in which (1) risk is assumed by free and informed consent, or properly compensated, and in which (2) risk is justly distributed, or properly compensated.

The Government regulator’s approach to risk: Regulators could decide to regulate only when there is a provable connection between a substance and some undesirable effect such as a risk of cancer. Because of the difficulties in establishing the acceptable levels of exposure to toxic substances at which there is no danger, this option would expose the public to unacceptable risks. On the other hand, regulators could eliminate any possible risk insofar as this is technologically possible. Choosing this option would result in the expenditure of large sums of money to eliminate minute amounts of any substance that might possibly pose risks to human beings. This would not be cost-effective. Funds might better be spent elsewhere to eliminate much greater threats to public health

Communicating risk and public policy

Communicating risk to public

Engineers are most likely to adopt the risk expert’s approach to risk. They define risk as the product of the magnitude and likelihood of harm and are sympathetic with the utilitarian way of assessing acceptable risk. The professional codes require engineers to hold paramount the safety, health, and welfare of the public, so engineers have an obligation to minimize risk. However, in determining an acceptable level of risk for engineering works, they are likely to use, or at least be sympathetic with, the cost–benefit approach.

The lay public comes to issues of risk from a very different approach. Although citizens sometimes have inaccurate views about the probabilities of harms from certain types of technological risks, their different approach cannot be discounted in terms of simple factual inaccuracies. Part of the difference in approach results from the tendency to combine judgments of the likelihood and acceptability of risk. (The term risky seems to include both concepts.) More important, the lay public considers free and informed consent and equitable distribution of risk (or appropriate compensation) to be important in the determination of acceptable risk. Finally, the government regulator, with her special obligation to protect the public from undue technological risks, is more concerned with preventing harm to the public than with avoiding claims for harm that turn out to be false. This bias contrasts to some extent with the agendas of both the engineer and the layperson. Although, as a government regulator, she may often use cost–benefit analysis as a part of her method of determining acceptable risk, she has a special obligation to prevent harm to the public, and this may go beyond what cost–benefit considerations require.

On the other hand, considerations of free and informed consent and equity, while important, may be balanced by cost–benefit considerations. What, then, is the professional obligation of engineers regarding risk? One answer is that engineers should continue to follow the risk expert’s approach to risk and let public debate take care of the wider considerations.

In light of this, we propose the following guidelines for engineers in risk communication;

1. Engineers, in communicating risk to the public, should be aware that the public’s approach to risk is not the same as that of the risk expert. In particular, “risky” cannot be identified with a measure of the probability of harm. Thus, engineers should not say ‘‘risk’’ when they mean “probability of harm.” They should use the two terms independently.

2. Engineers should be wary of saying, “There is no such thing as zero risk.” The public often uses “zero risk” to indicate not that something involves no probability of harm but that it is a familiar risk that requires no further deliberation.

3. Engineers should be aware that the public does not always trust experts and that experts have sometimes been wrong in the past. Therefore, engineers, in presenting risks to the public, should be careful to acknowledge the possible limitations in their position. They should also be aware that laypeople may rely on their own values in deciding whether or not to base action on an expert’s prediction of probable outcomes.

4. Engineers should be aware that government regulators have a special obligation to protect the public, and that this obligation may require them to take into account considerations other than a strict cost–benefit approach. Although public policy should take into account cost–benefit considerations, it should take into account the special obligations of government regulators.

5. Professional engineering organizations, such as the professional societies, have a special obligation to present information regarding technological risk. They must present information that is as objective as possible regarding probabilities of harm. They should also acknowledge that the public, in thinking about public policy regarding technological risk in controversial areas (e.g., nuclear power), may take into consideration factors other than the probabilities of harm.

A major theme in these guidelines is that engineers should adopt a critical attitude toward the assessment of risk. This means that they should be aware of the existence of perspectives other than their own. The critical attitude also implies that they should be aware of the limitations in their own abilities to assess the probabilities and magnitude of harms.

Limitations in Detecting Failure Modes:

One of the methods for assessing risk involves the use of a (1) fault tree. A failure mode is a way in which a structure, mechanism, or process can malfunction. Here, we reason forward from a hypothetical event to determine what consequences this hypothetical event might have and the probabilities of these consequences.

Still another factor that increases risk and also decreases our ability to anticipate harm is increasing the allowable deviations from proper standards of safety and acceptable risk. Sociologist Diane Vaughn refers to this phenomenon as (2) the normalization of deviance. Every design carries with it certain predictions about how the designed object should perform in use. Sometimes these predictions are not fulfilled, producing what are commonly referred to as anomalies. Rather than correcting the design or the operating conditions that led to anomalies, engineers or managers too often do something less desirable. They may simply accept the anomaly or even increase the boundaries of acceptable risk. Sometime this process can lead to disaster.

The Engineer’s Liability for Risk

Another issue that raises ethical and professional concerns for engineers regards legal liability for risk. There are at least two issues here. One is that the standards of proof in tort law and science are different, and this produces an interesting ethical conflict. Another issue is that in protecting the public from unnecessary risk, engineers may themselves incur legal liabilities.

The Standards of Tort Law

The standard of proof in tort law is the preponderance of evidence, meaning that there is more and better evidence in favor of the plaintiff than the defendant.

The plaintiff must show (1) that the defendant violated a legal duty imposed by the tort law, (2) that the plaintiff suffered injuries compensable in the tort law, (3) that the defendant’s violation of legal duty caused the plaintiff’s injuries, and (4) that the defendant’s violation of legal duty was the proximate cause of the plaintiff’s injuries.

In many cases, scientific knowledge is simply not adequate to determine casual relationships, and this would work to the disadvantage of the plaintiffs. There are also problems with encouraging judges to take such an activist role in legal proceedings. The major ethical question, however, is whether we should be more concerned with protecting the rights of plaintiffs who may have been unjustly harmed or with promoting economic efficiency and protecting defendants against unjust charges of harm.

Protecting Engineers from Liability

The apparent ease with which proximate cause can be established in tort law may suggest that the courts should impose a more stringent standard of acceptable risk. But other aspects of the law afford the public less protection than it deserves. Engineers in private practice may face especially difficult considerations regarding liability and risk, and in some cases they may need increased protection from liability.

Becoming a responsible engineer regarding risk

To formulate this principle, let us consider further some of the legal debate about risk.

The law seems to be of two minds about risk and benefits. On the one hand, some laws make no attempt to balance the two. Given these considerations, we can construct a more general principle of acceptable risk, which may provide some guidance in determining when a risk is within the bounds of moral permissibility:

People should be protected from the harmful effects of technology, especially when the harms are not consented to or when they are unjustly distributed, except that this protection must sometimes be balanced against (1) the need to preserve great and irreplaceable benefits, and (2) the limitation on our ability to obtain informed consent. The principle does not offer an algorithm that can be applied mechanically to situations involving risk.

Many issues arise in its use; each use must be considered on its own merits. We can enumerate some of the issues that arise in applying the principle. First, we must define what we mean by ‘‘protecting’’ people from harm. Second, many disputes can arise as to what constitutes a harm. Is having to breathe a foul odor all day long harm? Third, the determination of what constitutes a great and irreplaceable benefit must be made in the context of particular situations. Fourth, we have already pointed out the problems that arise in determining informed consent and the limitations in obtaining informed consent in many situations. Fifth, the criterion of unjust distribution of harm is also difficult to apply. Some harms associated with risk are probably unjustly distributed. Sixth, an acceptable risk at a given point in time may not be an acceptable risk at another point in time.