Negligence

17.1 General principles of negligence

17.1.1 Donoghue v Stevenson (1932) and the duty of care
The modern tort of negligence begins with Lord Atkin’s groundbreaking judgment in Donoghue
v Stevenson (1932). A new approach was necessary because no other action was available. The
judgment is important for identifying five critical elements:

1. Lack of privity of contract did not prevent the claimant from claiming.

2. Negligence was accepted as a separate tort in its own right.

3. Liability for negligence depends on proving:

(a) Existence of a duty of care owed to the claimant by the defendant

(b) Breach of that duty by falling below the appropriate standard of care

(c) Damage caused by the defendant’s breach that was not too remote a consequence of the
breach.

4. The means of determining the existence of a duty of care, Lord Atkin’s ‘neighbour principle

“ You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who then in law is my neighbour? … persons who are
so closely and directly affected by my act that I ought reasonably to have them in my
contemplation as being affected so when I am directing my mind to the acts or omissions in
question.”

5. A manufacturer owes a duty of care towards consumers or users of his products not to cause
them harm. Negligence then developed incrementally, case by case, with a duty of care being
established in numerous relationships. Much later in Anns v Merton LBC (1978) (see
17.2.2), Lord Wilberforce developed a two-stage test imposing liability where there was
sufficient legal proximity between the parties unless there were policy reasons for not doing so.
However this two-part test was criticised and so the case and the test was overruled in Murphy
v Brentwood D C (1990) (see 17.2.3). This case approved a three-part test from Caparo v
Dickman (1990):
1. Were the consequences reasonably foreseeable?

2. Was there a sufficient relationship of proximity between the parties?

3. Is it fair, just and reasonable in all the circumstances to impose a duty of care? Policy has
always been a key consideration in determining liability. As Winfield puts

“ the court must decide not simply whether there is or is not a duty, but whether there should or
should not be one”

Many policy factors may influence judges in deciding whether or not to impose a duty

● Loss allocation – judges are more likely to impose a duty on a party who is able to stand the
loss, and insurance is also a major determining factor.

● Practical considerations – courts may be willing to impose vicarious liability on companies

who can then plan effective policies to avoid future liability.

● Moral considerations – the public may be more prepared to accept a ‘good Samaritan’ law than
judges would.

● Protection of professionals – Lord Denning particularly expressed concern that professionals

should not be stopped from working by restrictive rulings.

● Constitutional considerations – judges are not keen to be seen as law-makers as this is

Parliament’s role.

● The ‘floodgates’ argument – judges are reluctant to impose liability where it may encourage
large numbers of claims; this appears not to be morally justifiable and has affected the
development of liability for nervous shock.

● Deterrent value – in Smolden v Whitworth and Nolan (1997), the court imposed a duty
on a rugby referee who failed to control a scrum properly.

17.1.2 Breach of duty

The ‘reasonable man’ test

Breach refers to a falling below the standard of care appropriate to the duty in question. The
standard is measured against that of the ’reasonable man’. In Blyth v Proprietors of the
Birmingham Waterworks (1856), Alderson B explained:
“Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate human affairs, would do, or doing something which a
prudent and reasonable man would not do.”

“The ‘reasonable man’ is an objective standard and has been described in Hall v Brooklands
AutoRacing Club (1933) by Greer LJ as ‘“the man on the street”, or the “man on the
Clapham Omnibus”’. In Glasgow Corporation v Muir (1943) MacMillan LJ concluded
that the reasonable man is ‘presumed to be free from both overapprehension and from over-
confidence’. In fact the breach of duty is just another way of saying that the defendant is at fault.

Factors relevant to breach

Through the cases, judges have developed a number of rules concerning what should be taken
into account in determining the standard appropriate to the duty.

● Foreseeability of harm – there is no obligation on the defendant to guard against risks other
than those that are within his reasonable contemplation: Roe v Minister of Health (1954).

● The magnitude of risk – the more likely the risk, the more the defendant should guard against
it: Bolton v Stone (1951).

● The extent of the possible harm (the ‘thin skull’ rule) – the defendant will be liable for the full
extent of harm caused: Paris v Stepney BC (1951).

● The social utility of the activity causing harm – a defendant may be excused where the risk
was taken to avoid a worse harm: Watt v Herts CC (1954).

● Practicability of precautions – we need only do what is reasonable to avoid risks of harm:

Latimer v AEC (1953).
● Common practice – this may be strong but not absolute evidence that there is no negligence:
Brown v Rolls Royce Ltd (1960).

● Experience – the standard is not lowered because of inexperience: Nettleship v Weston

(1971).

Experts and professionals

Professionals do not conform to the usual rules on the breach of duty in negligence and are more
appropriately considered as a special category on their own. The standard of care appropriate to
professionals is not judged according to the reasonable man test. On the contrary a person
exercising specialist skills is to be judged by comparison with other people exercising the same
skill; Bolam v Friern Hospital Management Committee (1957). The standard is not
reduced because the defendant lacks experience. So a junior doctor must exercise the same care
and skill as an experienced doctor; Wilsher v Essex Area Health Authority (1988). Most
recently the House of Lords has suggested that the court in each individual case should
determine what is the standard of care appropriate to the professional against whom the
negligence is alleged, rather than for professional opinion; Bolitho v City and Hackney
Health Authority (1997).
17.1.3 Causation in fact and the ‘but for’ test
The ‘but for’ test

The simple starting point in establishing causation, is the ‘but for’ test. As Lord Denning
explained in Cork v Kirby MacLean Ltd (1952): …

” if the damage would not have happened but for a particular fault, then that fault is the cause of
the damage; if it would have happened just the same, fault or no fault, the fault is not the cause
of the damage.”

Often the facts allow the test to operate straightforwardly: Barnett v Chelsea & Kensington
Hospital Management Committee (1969). However, sometimes judges will simply ignore the
problems associated with applying the ‘but for’ test in order to give a just result: Chester v
Afshar (2004).

Problems in proving causation

Sometimes problems occur where the level of knowledge available to the court makes it
impossible to pinpoint a precise cause. If the damage is caused by multiple causes that are acting
concurrently, then the ‘but for’ test appears to be incapable of providing an absolute test of
causation. The court may decide that the negligence has ‘… materially increased the risk…’ and
that the defendant should therefore be liable for damages: McGhee v National Coal Board
(1973). In contrast, where there are a number of possible concurrent causes of the damage and it
is impossible to identify the specific one causing the damage, then it is unlikely that the court
will hold one cause ultimately responsible: Wilsher v Essex Area Health Authority (1988). The
courts will not allow recovery of damages for ‘loss of a chance’ because of the problem of
proving causation: Hotson v East Berkshire AHA (1987) and Gregg v Scott (2005). The House
of Lords has accepted that in certain circumstances where a number of defendants all contribute
to the same basic injury, then liability can result if they have materially increased the risk of
harm: Fairchild v Glenhaven Funeral Services Ltd and others (2002). However, the House of
Lords has recently modified the principle so that damages are apportioned: Barker v Corus;
Murray v British Shipbuilders (Hydromatics) Ltd; Patterson v Smiths Dock Ltd and Others
(2006). The Compensation Act 2006 reversed this position in respect of mesothelioma claims.
Where causes of damage occur one after the other, then liability usually remains with the first
event: Performance Cars Ltd v Abraham (1962).
Novus actus interveniens

Even though the defendant can be seen as negligent, the chain of causation may be broken by a
subsequent, intervening act. If the court accepts that this intervening act is the true cause of the
damage, then the defendant may not be liable despite the breach of duty. This plea is known as
novus actus interveniens, meaning ‘a new act intervenes’, and it is an effective defence. The case
law seems to fall into three categories. An intervening act of the claimant This is closely
connected with contributory negligence. However, the plea here is that the claimant is actually
responsible for his own damage and therefore the chain of causation is broken and the defendant
has no liability at all: McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1969).

An intervening act of nature

The defendant may be relieved of liability in those situations where he can show that the act of
nature he argues is breaking the chain of causation, is unforeseeable and independent of his own
negligence: Carslogie Steamship Co v Royal Norwegian Government (1952).

An intervening act of a third party

In order to succeed with a plea in these circumstances, the defendant must show that the act of
the third party was of such magnitude that it does in fact break the chain of causation: Knightley
v Johns (1982).

17.1.4 Causation in law and remoteness of damage

The tests of remoteness

Even though a causal link can be proved factually, according to the ‘but for’ test the claimant
may still be prevented from winning the case if the damage suffered is too remote a consequence
of the defendant’s breach of duty. The test is a matter of law rather than fact. The original test
was that the claimant could recover in respect of a loss that was a direct consequence of the
defendant’s breach regardless of how foreseeable: Re Polemis and Furness, Withy & Co (1921).
The test was criticised for failing to distinguish between degrees of negligence. As a result, the
test was later changed to one of liability for damage that was a reasonably foreseeable
consequence of the breach: Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co (1961) (The Wagon Mound (No 1)). The critical part of the test is
foreseeability of the general rather than the specific type of damage. It is not therefore necessary
for the full extent of the damage to be foreseen: Bradford v Robinson Rentals (1967). It is not
necessary for the precise circumstances to be foreseen if damage is a foreseeable consequence
(Hughes v The Lord Advocate (1963)); neither will it matter that the damage is more extensive
than might have been foreseeable provided that the kind of damage itself is foreseeable (Vacwell
Engineering Co Ltd v BDH Chemicals Ltd (1971)). The ‘thin skull’ rule will also apply so that
the defendant will be liable for the full extent of the damage if the type of damage is foreseeable:
Smith v Leech Brain & Co Ltd (1962).