Lahore Grammar School (Defence)

A - Level Law: P4 Tort

Lecturer: Ms Zehra Zaidi (Bar at Law)

LECTURE 1

TORT OF NEGLIGENCE

INTRODUCTION and DUTY OF CARE

What is negligence in law?

Negligence concerns breach of a legal duty to take care, with the result that damage is
caused to the claimant.

Cases that may be bought in negligence include:

1 People injured in a car accident suing the car driver.

2 Businesses which lose money because the accountant fails to advise them
correctly.

Negligence mainly protects against three types of harm

1 Personal injury
2 Damage to property
3 Economic loss

The main elements of negligence

The tort of negligence has three main elements:

1 The defendant must owe the claimant a duty of care.

2 The defendant must breach the duty of care.
3 The failure must cause damage to the claimant.

1 The duty of care

Essentially this is the legal concept which dictates the circumstances in which one party
will be liable to another in negligence: if the law says that you do not owe a duty of care
to the person to whom you have caused damage, you will not be liable to them no
matter how serious the damage maybe.

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 Lahore Grammar School (Defence)
A - Level Law: P4 Tort
Lecturer: Ms Zehra Zaidi (Bar at Law)

In the vast majority of the tort cases that pass through the court system it will be fairly
obvious that a duty of care exists. For example in a road traffic case it is already
established that road users owe a duty of care to other road users. However there are
difficult cases where courts have to decide in novel situations whether a duty of care
exists or not.

Development of duty of care ( the neighbour principle)

Key Case: Donoghue v Stevenson (1932)

Mrs Donoghue and her friend went to a cafe, where she ordered a ginger beer. This
drink was paid for by her friend. It was supplied in an opaque bottle. Mrs Donoghue
poured some out in a glass and drank it and then poured out some more at which point
the remains of a decomposing snail fell out of the bottle. Mrs Donoghue became ill and
sued the manufacturer.
Up until this time the effective remedy to sue a manufacturer was under contract,
however this was unavailable to her because the sale of the drink was between her
friend and the café. Mrs Donoghue sued the manufacturer and the HoL held that
manufacturers owe a duty of care to the end consumer of their product.

Lord Atkin’s enunciation of the neighbour principle

Lord Atkin stated: “You must take reasonable care to avoid acts or omissions which you
can reasonably see are likely to harm you r neighbour.”
By neighbour Lord Atkin means (not our physical neighbour but): “persons who are so
closely and directly effected by my act that I ought to have them in my contemplation as
being so affected when I am directing my mind to the acts and omissions which are
called in question.”

The test of foreseeability is objective, the courts do not ask what the defendant actually
foresaw, but what a reasonable person could have been expected to foresee.

The claimant does not have to be individually identifiable to the defendant to be

expected to foresee the risk of harming them. In many cases it is enough the claimant
falls into a category of individuals to whom a risk of harm is foreseeable. The ginger
beer manufacturers did not have to know that it was Mrs Donoghue who would
consume it just that someone would.

Development of duty of care

As time went on the courts adjudged a variety of factual situations where they found a
duty of care to exist. For example it was soon well established that employers owe a
duty of care to employees. But where a factual situation was completely new a duty of
care would only be deemed to arise if there were policy reasons for creating a new one.

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 Lahore Grammar School (Defence)
A - Level Law: P4 Tort
Lecturer: Ms Zehra Zaidi (Bar at Law)

Policy reasons mean that the judge takes into account not just the legal framework, but
also whether they believe society would benefit from the existence of such a duty. This
approach was criticised on the grounds that the need to find such reasons was holding
back the development of law.

The law of duty of care initially developed on the basis of the doctrine of precedent. Very
soon it was established that motorists owed a duty of care to other road users, doctors
owed a duty of care to patients. Where a factual situation was completely new the
courts would see whether there were any policy reasons for establishing duty of care. It
was criticized that searching for precedents held back the development of the law.

This issue was addressed in the case of Anns v Merton London Borough ( the two
stage test)

Here Lord Wilberforce proposed a significant extension of the situations where duty of
care would exist, arguing that it was no longer necessary to find a precedent with similar
facts. He stated in order to determine whether a duty of care exists the courts should
use a two part test:

1 First the parties should satisfy the neighbour test – in other words was the
claimant someone to whom the defendant could reasonably be expected to
foresee the risk of harm? If the answer is Yes then prima facie a duty of care
existed.
2 The second stage would involve asking whether there are any policy
considerations that meant that it would not be desirable to allow a duty of care
in this situation. If there were no policy considerations in establishing a duty of
care, then a duty could be imposed.

Anns v Merton London Borough and the expansion of the neighbour test.
This two stage test changed the way in which the neighbour test was applied.
Previously the courts had used the neighbour test to justify liability where there were
policy reasons for creating them. After Anns v Merton London Borough the neighbour
test would apply unless there were policy reasons for excluding it.

This led to expansion of the situations in which duty of care would arise and therefore in
the scope of negligence. This expansion reached its peak in Junior Books v Veitchi
where the HoL went one step further and seemed to suggest that what were previously
good reasons for limiting liability should now not prevent an extension where the
neighbour principle justified recovery.

Murphy v Brentwood District Council and the judicial retreat (also known as the
incremental approach.)s
Eventually the problems of insuring against the new types of liability and the way in
which tort seemed to be encroaching on areas traditionally governed by contractual

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 Lahore Grammar School (Defence)
A - Level Law: P4 Tort
Lecturer: Ms Zehra Zaidi (Bar at Law)

liability led to a rapid judicial retreat and in a series of cases the judiciary began
restricting new duties of care.
In 1990, the case of Murphy v Brentwood District Council came before a seven
member of the House of Lords. The House invoked the 1966 practice statement to
overrule Anns. They quoted the high court of Australia in Sutherland Shire Council v
Heyman (1985) where the high court had refused to follow Anns

The Australian court had taken the view that the law of duty of care should develop
novel categories of negligence incrementally and by analogy rather than by a massive
extension of the prima facie duty of care.

The broad two stage test in Anns was swept aside leaving the court to impose duty of
care only when they could find precedent in comparable factual situations.

Rejection of Anns did not mean that the categories of negligence were closed but that
creation of new duties of care was intended to involve a much more gradual process
building step by step analogy with previous cases involving similar factual situations.

Back to the incremental approach

Despite the efforts to allay fears of the floodgates, the Anns test was still
considered too wide. In Caparo, the House of Lords agreeing with the decision
in Murphy v Brentwood overruled Anns and went back to the incremental
approach whereby the claimant may only bring their action where they can
establish an existing duty situation. In novel situations the question of whether
a duty of care is now subject to the Caparo test.

In Caparo Industries Plc v Dickman Lord Bridge's three stage test for
imposing a duty of care, known as the Caparo test:

Under the Caparo test the claimant must establish:

1. That harm was reasonably foreseeable

2. That there was a relationship of proximity

3. That it is fair, just and reasonable to impose a duty of care in this situation.

It can be seen that the first two stages are taken directly from the original neighbour test.
Fair, just and reasonable relates to the same policy considerations under the Anns test.
In fact the Caparo test contains the same elements as Anns. The main
difference being, that under Caparo it is the claimant that must put forward policy reasons
for imposing liability whereas under Anns, liability would arise once the claimant had

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 Lahore Grammar School (Defence)
A - Level Law: P4 Tort
Lecturer: Ms Zehra Zaidi (Bar at Law)

established reasonable foresight and proximity and the defendant had to demonstrate
policy factors for negating liability.

The three ingredients for establishing duty of care as established by Caparo will now be
discussed in turn.

1. Reasonable foreseeability
This element takes its origin from the neighbour principle. The question which the courts
will ask will is whether a reasonable person in the defendant’s position would have
foreseen the risk of damage.
In order for a duty to exist, it must be reasonably foreseeable that the damage caused
to the particular claimant in the case or to a class of people to which he belonged to
rather than just to people. (Palsgraf v Long Island Rail Road).
This is a US case therefore persuasive authority only. The Plaintiff was standing on a railroad
platform purchasing a ticket, when a train stopped and two men ran forward to catch it. One of
the men was negligently pushed by a railway worker. In the process, a package containing
fireworks fell and the contents exploded. As a result of the explosion some scales at the other
end of the platform fell and struck the Plaintiff.
The court held that it was not reasonably foreseeable that pushing a passenger would injure
someone standing several feet away. It was reasonably foreseeable that the passenger pushed
would be injured but that did not in itself create duty of care to other people.
This does not mean that the defendant has to identify a particular individual who might
foreseeably be affected by his actions it is enough that the claimant is a part of a category who
might reasonably be effected. Haley V London Electricity Board.

Some workmen were digging a trench in a pavement. They went off to lunch. They
had nothing to fence of the trench so they left a shovel and pick at one end and a
to warn pedestrians. The claimant, a blind man, tripped fell in to the trench hitting
his head. As a result of the fall he became deaf. The defendant argued they had
done all that was necessary to warn an ordinary person of the danger and there
was no need to take extra precautions for blind persons as it was not foreseeable
that a blind person would be walking unaided down that street.
The CoA held that the defendant was in breach of duty since given the number of
blid people that live in the city of London it was foreseeable that a blind person
might walk down the street and they should be given appropriate protection.

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 Lahore Grammar School (Defence)
A - Level Law: P4 Tort
Lecturer: Ms Zehra Zaidi (Bar at Law)

2. Proximity
In normal language proximity means closeness, in law it has a wider meaning which
essentially the relationship between the claimant and the defendant.
Muirhead v Industrial Tank Specialities (1985)
Goff LJ pointed out that proximity does not mean that the claimant and the defendant
have to know each other, but that the defendant could be reasonably expected to
foresee that his actions could cause damage to the claimant.
In the case of Caparo v Dickman itself the HoL stated that the purpose of the audit was
help existing shareholders exercise effective control over the company. It was not
meant to be a source of guidance to prospective shareholders. Hence the HoL held that
there was no relationship of proximity between Caparo and Dickman and hence no duty
of care.
Proximity can also be expressed in terms of the measure of control and responsibility a
defendant has over a potentially dangerous situation.
Watson v British Boxing Board of Control (2000)
The Claimant was a professional boxer who had suffered severe brain damage as a
result of injury during a match. He sued the Board as they were in charge of safety
arrangements during the match and had medical attention been available at the ring
side his injuries would not have been as extensive. The courts held that there was
sufficient proximity between the Board and Mr. Watson since the board complete control
and authority over the situation (being the only body that could license professional
matches). Since the Board had not exercised reasonable care harm had resulted to Mr.
Watson.

3 Justice and Reasonableness

In practice the requirement that it must be just and reasonable to impose a duty often
overlaps with the previous two. Where justice and reasonableness are specifically
referred to it is usually because the case meets the requirements of forseeability and
proximity but the courts believe that there are sound public policy reasons for denying
the claim.
Macfarlane v Tayside Health Board (1999)
The Claimant has become pregnant after her partner’s vasectomy failed and claimed
costs for bringing up the child. The courts denied her claim on the grounds that it was
not just and reasonable to award compensation on the birth of a healthy child-
something which most people would consider a blessing.

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 Lahore Grammar School (Defence)
A - Level Law: P4 Tort
Lecturer: Ms Zehra Zaidi (Bar at Law)

West Bromwich Albion Football Club v Medhat El-Safty (2006)

The case concerned the knee injury of a player. The Club arranged for him to see the
defendant who advised surgery. The operation was unsuccessful and Mr. Apleton – the
player, could no longer play. As well as the physical loss to the player this also meant
that the Club lost money and they sought to sue the defendant for their losses. The
defendant clearly had a duty of care to the player as his patient. The Club could only
sue if it could be shown that the defendant had a duty of care to take reasonable care
not to damage the financial interests of the Club which over here was the player. The
CoA held that it was not just and reasonable to impose such a duty because there was
nothing to suggest that the defendant realised that he was taking on this responsibility
towards the Club. Imposing a duty of care in this situation would have conflicted with the
doctors duty towards the player.
Mitchel v Glasgow City Council
The claimants were the wife and daughter of a man killed by their neighbour. The
neighbour had a history of abusing the claimants and making threats to kill them. The
Defendants had called this man to a meeting and told him that if he did not mend his
ways they would evict him from his property. Within an hour of this meeting the
neighbour had gone back home and attacked and killed the claimants husband. The
claimants argued that given that the council was aware that he had made death threats
to them the council was under a duty of care to warn them of the meeting. The HoL held
that it was not fair just and reasonable to impose such a duty on the council. Because
this would mean that a similar duty would apply to all land lords and social workers in
similar situations. And imposing a duty to warn may deter such people from taking steps
to deal with the anti social behaviour of their tenants.