NEGLIGENCE

(i) The elements of the Tort of Negligence

The tort of negligence may be defined broadly as the breach of a legal

duty to take care which results in damage, undesired by the defendant, to
the claimant. The three key elements of the tort of negligence are, (a) a
duty of care owed by the defendant to the claimant; (b) breach of that
duty by the defendant; and (c) damage to the claimant resulting from the
breach.

(a) The existence of a duty of care

In a negligence action, the first question to be considered is whether or

not a duty of care was owed by the defendant to the claimant. In general,
a duty of care will be owed wherever in the circumstances it is
foreseeable that, if the defendant does not exercise due care, the
claimant will be harmed. This ‘foreseeability test’ based on the ‘neighbour
principle’ was laid down by Lord Atkin in the celebrated case of
Donoghue v Stevenson (1932).

Donoghue v Stevenson (1932)

The claimant and a friend went to a cafe where the friend ordered a bottle of ginger beer
for the claimant. The beer, which had been manufactured by the defendant, was
supplied in an opaque glass bottle, which made it impossible to see the contents. The
claimant consumed part of the beer and claimed that when she poured the rest into the
glass she was confronted by the decomposed remains of a snail. She claimed that this
sight, and the beer which she had already drunk, rendered her ill and she sued the
defendants in tort.
Held, the manufacturer owed her a duty of care. In his judgment, Lord Atkin set
out the rule known as the neighbour principle. He said,
The rule that you are to love your neighbour becomes, in law, you
must not injure your neighbour; and the lawyer's question, 'Who is
my neighbour?' receives a restricted reply. 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? The answer seems to be – persons
who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are
called in question.

There are a number of situations in which it is well established that

 a duty of care exists. They include:

(a) the driver of a vehicle on the road owes a duty of care to other
road users, pedestrians and occupiers of premises abutting the
highway to drive carefully;

(b) the occupier of premises owes a duty of care to lawful visitors to

ensure that the premises are reasonably safe;

(c) the employer of a workman in a factory owes a duty of care to

provide adequate equipment and a safe system of working;

(d) a bailee of goods, eg, a garage owner or a shoe-maker, owes a

duty to the bailor to take care of the goods entrusted to him;

(e) a manufacturer of goods owes a duty of care to consumers to

ensure that the goods are free from harmful defects.

The above are only examples. There is no closed list of duty

situations. The categories of negligence are never closed. At the same
time, it is accepted that public policy requires some limits to be set to the
range of liability.

Home Office v Dorset Yacht Co (1979)

A young criminal held in a Borstal prison escaped and caused damage to the
respondents’1 boat. They sued the responsible government department for negligence
to recover damages for the loss incurred. Damages were awarded, and the government
appealed.
Held, the appeal succeeded as the government had not been negligent towards the
respondent in the test established by Anns v Merton LBC. The risk of sustaining
damage from the tortious acts of criminals is shared by the public at large. The tortious
act of a criminal has never been recognised at common law as giving rise to any cause
of action against anyone but the criminal himself. It would seem arbitrary and, therefore,
unjust, to single out for the special privilege of being able to recover compensation from
the authorities responsible for the prevention of crime a person whose property was
damaged by the tortious act of a criminal merely because the damage to him happened
to be caused by a criminal who had escaped from custody before completion of his
sentence, instead of one who had been lawfully released, or who had been placed on
probation, or given a suspended sentence, or who had never been apprehended at all.

1
‘Respondent’ is the name given to the person who defends an appeal. This is usually the
person who succeeded in the court below. The person who brings the appeal is called the
‘Appellant’. This is usually the person who lost in the court below.
Austin v A-G (1986)
A convicted prisoner escaped from the Glendairy Prison in Barbados and entered the
claimant's dwelling house. He attacked her with a knife and seriously injured her. On the
day of his escape, he was one of a number of prisoners being instructed in woodwork in
the carpenter's shop at the prison. Two prison officers were in supervision. One of them
left for a short period and, during his absence, the prisoner escaped.
The claimant alleged that the prisoner's background of violence was such that he should
not have been selected for inclusion in the carpentry class with its less than stringent
security procedures. She claimed that the escape was caused by the negligence of the
Superintendent of Prisons, whose duty it was to supervise, control and be responsible for
the conduct of prisoners, and that the defendant was vicariously liable for the
consequences of such negligence on the part of his prison officers. The defence was that
the claimant's injuries were caused by the prisoner, who was responsible for his own
tortious acts. Also, the prisoner's tortious acts were not the natural consequence of his
escape.
Held, the court would apply the principle in Home Office v Dorset Yacht Co. There was no
sufficient relationship of proximity between the Superintendent of Prisons and the claimant
such as to give rise to a duty of care towards the claimant. In the alternative, the damage
suffered by the claimant was too remote. The risk of sustaining damage from the tortious
acts of criminals is shared by the public at large. It has never been recognised at
common law as giving rise to any cause of action against anyone but the criminal himself.

Caparo Industries plc v Dickman (1990)

Investors in a public company lost their money when the company went into liquidation.
They sued the auditor claiming breach of a duty of care to them.
Held, the duty of care of an auditor of a public company is owed only to his client company
and its shareholders, collectively and individually, and not to potential investors. There is
no single general principle that provides a practical test to determine whether or not a duty
of care is owed on not in a particular situation. The court suggested that the law should
follow the traditional categorisation of distinct and recognisable situations as guides to the
existence, the scope, and the limits of the duty of care which the law imposes.

Boodoosingh v A-G (1999)

The purchaser of a vehicle was misled by an erroneous certificate of ownership issued by
the government’s vehicle licensing authority. He sued the government for damages.
Held, The court refused, following Caparo Industries plc v Dickman, to find that a duty of
care was owed by the authority.

(b) Breach of the duty of care:

Having decided that a duty of care was owed by the defendant to the
claimant in the particular circumstances, the court's next task is to
determine whether the defendant was in breach of that duty. A defendant
will be in breach of his duty of care if he did not act as a reasonable
 person would have done in the particular circumstances. For example, a
reasonable driver will not exceed the speed limit, or drive while under the
influence of alcohol, or when sleepy. A reasonable financial adviser will
not give investment advice without first checking the performance of the
investments he recommends.

Alderson B, in the leading case of Blyth v Birmingham

Waterworks Co (1843), gave the classic definition of when a breach of the
duty of care arises. He said

Negligence is the omission to do something which a reasonable

man, guided upon those considerations which ordinarily regulate
the conduct of human affairs, would do, or doing something which
a prudent and reasonable man would not do.
In deciding what a reasonable man would have done in the
particular circumstances, the court takes in to account what may be called
the 'risk factor'. This has four elements: (i) the likelihood of harm; (ii) the
seriousness of the injury that is risked; (iii) the importance or utility of the
defendant's conduct; and (iv) the cost and practicability of measures to
avoid the harm. Let us take in turn these four elements for deciding when
a breach of the duty of care has arisen.

(i) The likelihood of harm: The greater the likelihood that the
defendant's conduct will cause harm, the greater the amount of caution
required of him if he is not to be found to have been negligent. The
degree of care which the duty involves must be proportional to the degree
of risk involved if the duty of care is to be fulfilled. See Bolton v Stone
(1951), Hartley v Gray's Inn Sugar Factory Ltd (1995), Hilder v Associated
Portland Cement Manufacturers Ltd (1961), and Mowser v De Nobriga
(1969).

Bolton v Stone (1951)

The claimant was struck and injured by a cricket ball as she was walking along a public
road adjacent to a cricket ground. The claimant contended that the defendant, who was
in charge of the cricket ground, had been negligent in failing to take precautions to ensure
that cricket balls did not escape from the ground and injure passers-by.
Held, taking into account such factors as the distance of the pitch from the road, the
presence of a seven foot high fence, and the infrequency with which balls had escaped
previously, the likelihood of harm to passers-by was so slight that the defendant had not
been negligent in allowing cricket to be played without having taken further precautions
such as raising the height of the fence.

Hartley v Gray's Inn Sugar Factory Ltd (1995)

It was held, following Bolton, that the likelihood of untrimmed cane leaves blowing into the
face of a cane cutter and causing blindness was so slight that the employer was not liable
in negligence for his failure to have the leaves trimmed.

Hilder v Associated Portland Cement Manufacturers Ltd (1961)

The claimant was riding his motorcycle along a road. He was struck by a football kicked
from the defendant's adjacent land where children were in the habit of playing football. He
sustained injuries and sued the defendant.
Held, the defendant was negligent in having failed to take precautions to prevent footballs
from being kicked onto the road since, in the circumstances, the likelihood of injury to
passers-by was considerable.

Mowser v De Nobriga (1969)

The claimant was a spectator at a race meeting in Trinidad. A riderless horse left the race
track at a point where there was no outer rail or fence, and struck and injured the claimant.
She brought an action against the defendants, the organisers of the race meeting. The
defence was that she consented to take the risk, or volenti non fit injuria.
Held, applying the test in Bolton, the claimant was a person to whom a duty of care was
owed. There was a real risk of injury to spectators in the event of a horse galloping off the
track. The defendants were negligent in having failed to take sufficient precautions to
protect the claimant and other spectators. The defence of volenti did not apply.

(ii) The seriousness of the Injury that is risked: The gravity

of the consequences if an accident were to occur must also be taken into
account. The more serious the injury that is likely if one does not take
care, the greater the precautions that need to be taken. See Paris v
Stepney Borough Council (1951), and Rhyna v Transport and Harbours
Department (1985).

Paris v Stepney BC (1951)

The defendants employed the claimant as a mechanic in their maintenance department.
They knew that he had only one good eye. They did not provide him with goggles for his
work. While he was attempting to remove a part from underneath a vehicle, a piece of
metal flew into his good eye and he was blinded.
Held, the defendants had been negligent in not providing this particular workman with
goggles, since they must have been aware of the gravity of the consequences if he were
to suffer an injury to his one good eye; though it was pointed out that the likelihood of
injury would not have been sufficient to require the provision of goggles in the case of a
two-eyed workman.

Rhyna v Transport and Harbours Department (1985)

The appellant was employed by the respondent as a casual watchman. He had lost the
sight of one eye as a result of a previous accident. He was instructed to catch the line
from a vessel about to moor at the wharf. This was contrary to the established system for
the mooring of vessels, and took no account of his disability. The rope struck the appellant
in his good eye and he was blinded.
Held, applying the principle in Paris v Stepney BC, the respondent was in breach of its
duty as an employer to provide a safe system of work and effective supervision.

(iii) The importance or utility of the defendant's conduct:

Where the defendant's conduct has great social value, he may be justified
in exposing others to risks which would not otherwise be justifiable. For
instance, if all vehicles in the country were restricted to a speed of five
miles an hour, there would be fewer accidents. But, national life would be
intolerably slowed down.

In all cases, one must balance the risk against the end to be
achieved, and the commercial end to make a profit is very different from
the human end to save a life or limb. See Robley v Placide (1966) and
Byfield v A-G (1980).

Robley v Placide (1966)

The appellant was the leader of a party of police constables. They went to the compound
of the General Hospital to investigate a report of violence. They saw a number of men,
armed with cutlasses, come out from one of the buildings. They gave chase and the
appellant and another constable eventually caught up with the men, who turned around
and began to advance menacingly towards the appellant. When they were at a distance
of 20-25 feet from the appellant, he aimed his pistol at one of the men and fired a shot.
The shot missed the man, but struck the respondent, a pedestrian, in her leg. The trial
judge held the appellant liable to the respondent in negligence.
Held, on appeal, that the appellant was not liable in negligence. No legal duty to retreat
could arise in circumstances where a police officer acted in the execution of his statutory
duty to arrest persons who were prima facie committing, within his view, the offence of
being armed with offensive weapons. The necessity of saving life and limb justified the
appellant in taking the risk of possible injury to the respondent.

Byfield v A-G (1980)

Two constables were chasing an armed man who was wanted for various offences,
including robbery and possession of firearms. The man ran into the yard of the claimant's
house, from where he fired a shot at the pursuing constables. They returned fire but
accidentally shot the claimant, who was also in the yard but had not been noticed by the
constables.
Held, the constables were not liable in negligence, since they were acting in the execution
of their duty in 'hot pursuit' of a gunman. They were entitled to defend themselves and
were under no duty to retreat.

(iv) The practicability of measures to avoid the harm:

Another relevant question is how costly and practicable it would have
been for the defendant to have taken precautions to eliminate or minimise
the risk. In every case of foreseeable risk, it is a matter of balancing the
risk against the measures necessary to eliminate it. See Latimer v AEC
Ltd (1952), and Mowser v De Nobriga (1969) (supra, the escaping race
horse case).

Latimer v AEC Ltd (1952)

A factory floor had become slippery after a flood. The occupiers did everything possible
to make the floor safe, but nevertheless a workman slipped on it and sustained injuries.
Held, the occupiers had not been negligent. The only other possible step they could have
taken would have been to close the factory. The risk of harm created by the slippery floor
was not, in the opinion of the court, so great as to require such a costly and drastic step.
(Compare Mowser's case).

Intelligence, knowledge and skill of the reasonable man: We

have seen in Donoghue v Stevenson that the requirement is to take
reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure the claimant. On the question of
reasonableness, the defendant's conduct will be measured against that to
be expected of a person of normal intelligence and possessing a normal
amount of common sense and knowledge of everyday affairs. The
defendant will not be excused for having acted 'to the best of his
judgment' or ‘to the best of his ability’ if his best is below that to be
expected of a person of ordinary intelligence.

Where the defendant holds a particular position, he will be

expected to show the degree of knowledge normally expected of a person
in that position. If he holds himself out as having a particular skill, for
example, a doctor or a plumber, he will be expected to show an average
degree of competence in that occupation. See Wagon Mound (No 1)
(1961).
The Wagon Mound (No 1) (1961)
The defendants negligently discharged oil from their ship into Sydney Harbour in
Australia. The claimants were carrying out welding operations at their wharf. Molten
metal from the welding operations set fire to some cotton waste floating in the oil. The
waste, in turn, set fire to the oil. In the ensuing conflagration, the wharf was severely
damaged. The oil also found its way onto the claimant's slipways adjoining the wharf,
and interfered with the claimant's use of them. The court awarded the claimant
damages for the physical damage to the slipway caused by the oil, and physical
damage caused to the wharf by the fire, and for their loss of profits caused by the
interference with the claimant’s use of the slipways. The case went to the Privy Council.
Held that since, on the evidence, the defendants neither knew nor ought to have known
that the oil was capable of catching fire when spread on water, they could not
reasonably have foreseen that their act of discharging the oil would have resulted in the
claimant's wharf being damaged. The damage was thus too remote, and they were not
liable for it. But they were liable for the fouling of the slipways, since that was a
foreseeable consequence of the discharge of the oil.

The Factories Act places special duties on an employer in a

factory. An employer is required to know more about the dangers of
unfenced machinery than his workmen. A reasonable employer is
expected to employ experts to check those installations which he cannot,
through his lack of technical knowledge, check himself, such as electrical
wiring or a lift.

Similarly, the Occupiers’ Liability Act places special duties on the

occupier of premises. The occupier of premises will be negligent if he
fails to notice that the stairs are in a dangerous state of disrepair, or that a
septic tank in the garden has become dangerously exposed, so that
visitors to his property are put at risk.

Where the defendant has actual knowledge of particular

circumstances, the standard of care required of him may be increased.
See Paris v Stepney BC (1951) (supra, the one-eyed mechanic case).
Similarly, a higher standard of care will be owed towards young children,
elderly persons, and pregnant women, because of their special
susceptibility to injury.

Special skills: A person who holds himself out as having a

special skill, either in relation to the public generally (for example, a car
driver) or in relation to a person for whom he is performing a service (for
example, a doctor) will be expected to show the average amount of
 competence normally possessed by persons doing that kind of work. He
will be liable in negligence if he falls short of such standard. A surgeon
performing an operation is expected to display the amount of care and
skill usually expected of a normal, competent member of his profession.
A jeweller who pierces ears is only expected to show the skill of a normal
jeweller doing such work, not that of a surgeon. Surprisingly, a learner
driver is expected to comply with the same standard as any other driver.
This may be explained on the ground that a car is a potential lethal
weapon, and public policy requires that the strictest possible standard of
care be maintained, even by learners.

For cases that illustrate how the court struggles to apply the test of
reasonableness in situations where special skills exist, see Millen v UWI
Hospital Board of Management (1984), and Roe v Minister of Health
(1954), and Van de Weg v Minister of Health and Social Services (1981),
and Rojannenisha v Guyana Sugar Producers Association Ltd (1973),
and Hind v Craig (1983), and Sabga v Llanos (1988).

Millen v UWI Hospital Board of Management (1984)

A surgeon employed by the defendant carelessly failed to remove part of a suture which
had previously been inserted into the claimant in an operation called 'cervical
encirclement', thereby exposing the claimant to considerable danger in her subsequent
pregnancy and labour.
Held, the surgeon was negligent in that, if he had used proper care in what he was about,
he would not have left part of the suture in the claimant.

Roe v Minister of Health (1954)

The claimant went into hospital in 1947 for a minor operation. He became paralysed
because a spinal anaesthetic which was given to him was tainted with another drug in
which the syringe was stored and which seeped into the syringe through an invisible crack.
In 1947 it was not known that that this could happen, though the risk was known by the
time of the trial in 1954.
Held, the hospital authority was not negligent, Denning LJ saying that the court should not
look at a 1947 accident 'with 1954 spectacles'.

Van de Weg v Minister of Health and Social Services (1981)

The Chief Medical Officer introduced a programme of vaccination against influenza in
Bermuda in 1976. The programme was introduced shortly after a mass immunisation
programme against influenza had been announced in the USA by the US President
following an outbreak of swine flu which caused many fatalities. The economy of the
island depended on tourism, and the majority of tourists came from the USA. At the time,
there was little evidence of serious side effects associated with influenza vaccines. The
claimant was vaccinated, and subsequently developed a disease called Guillain-Barre
Syndrome (GBS). The US vaccination programme was halted in December 1976 after a
number of persons vaccinated had developed GBS.
Held, the defendant was not liable to the claimant in negligence, since, at the time the
claimant was vaccinated, no association of GBS with influenza vaccination was recognised
by the medical profession, and damage to the claimant could not have been foreseen.

Rojannenisha v Guyana Sugar Producers Association Ltd (1973)

In 1968, while the deceased was working as a labourer in a field, a piece of greenheart
wood stuck in her foot. She died five weeks later from tetanus. It was controversial in
medical circles at the time whether anti-tetanus serum should be given at the time of the
injury. The treating doctor had taken the view that the serum was a dangerous drug and
should be administered only if tetanus symptoms appeared. The claimant claimed that the
doctor had been negligent in failing to give the deceased an anti-tetanus injection
immediately after the accident.
Held, the doctor could not be considered negligent when he adopted one acceptable
medical opinion rather than the other.

Hind v Craig (1983)

The defendant surgeon followed procedures which differed from those in the USA, but
which were in accordance with the general and approved practice elsewhere for such
surgery.
Held, a medical man 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, merely because there is a body of opinion which would take a contrary
view.” Thus the fact that procedures followed by the defendant surgeon at the University
Hospital in Jamaica differed from those which were followed in the USA was not evidence
of negligence on the defendant's part, it being found that the defendant had followed a
general and approved practice for such surgery.

Sabga v Llanos (1988)

The claimant, who operated a pizza business, wanted to have a water tank installed. The
defendant, a supplier of water tanks and fittings, sent his plumber to install a tank at the
claimant's premises. The claimant ordered the plumber to place the tank on a wooden
stand, which he did. The plumber had warned the claimant that the wood would eventually
rot. Eighteen months later, the stand collapsed and the tank fell down. The claimant sued
the plumber’s employer.
Held, the defendant was not liable in negligence. The warning given by his plumber was
sufficient to discharge his duty of care.

Omissions: Although the court in Donoghue v Stevenson spoke

in terms of a duty to take care to avoid acts or omissions that were
foreseeably likely to injure one's neighbour, it is an established principle
that there is no liability for a mere omission to do something for another
 person where there is no positive duty to act. A passer-by who sees a
person lying injured by the side of the road is under no legal duty to stop
and render assistance. See Campbell v Clarendon Parish Council
(1982).

Campbell v Clarendon PC (1982)

The claimant's place of business was gutted by a fire of unknown origin and its contents
destroyed. The town's fire brigade was unable to save the building because the flow of
water in the water mains and fire hydrants was insufficient. The town was supplied with
water from a public supply scheme under statutory provisions. The claimant brought an
action against the local parish council for negligence in respect of its failure to provide a
sufficient water supply for use by the fire brigade.
Held, the defendant was not liable for its failure to supply water in sufficient quantity at the
material time. An omission to act, otherwise than in the performance of a duty to take
care, does not amount to a breach of duty, even though it can be reasonably foreseen that
such omission is likely to cause damage.

Proof of Negligence: The burden of proving negligence always

lies on the claimant. Particular difficulty arises where there is an accident
and the claimant cannot explain how it happened. The claimant may then
have recourse to the doctrine or maxim of res ipsa loquitur (the facts
speak for themselves). This is a case of the court drawing an inference
from circumstantial evidence. Alternatively, the court may even presume
negligence from the evidence before it.

Res ipsa loquitur: Where the cause of the accident is unknown,

the claimant may be assisted by the doctrine of res ipsa loquitur. In order
to apply the doctrine, the claimant must establish two things:

(a) that the thing causing the damage was under the management
or control of the defendant or his employees; and

(b) that the accident was of such a kind as would not, in the
ordinary course of things, have happened without negligence on
the defendant's part.

Negligence will be presumed under the doctrine where the

common experience of mankind shows that the type of accident which
occurred would not normally have happened unless the defendant had
been careless. The doctrine applies where, for example, a car being
driven along a road suddenly mounts the pavement and injures a
 pedestrian; where a boat's tow rope broke suddenly, causing the vessel to
collide with a pipeline; where a large tree was cut down and fell onto a
neighbour's house; where a dead tadpole was found in a bottle of stout
purchased by a customer in a restaurant; where a parked bus suddenly
caught fire, resulting in the destruction of a nearby building; where
scaffolding, on which a workman was standing, collapsed; where a crane
suddenly collapsed; where a heavy knife fell from a hotel window, striking
a guest in the garden below; and where a fire which started in an electric
power line connected to a dwelling house destroyed the house and
contents. For cases illustrating the application of the doctrine ‘res ipsa
loquitur’, see Cassidy v Ministry of Health (1951), Scott v London and St
Katherine Docks Co (1865); Parejo v Koo (1966-69), and Jamaica
Omnibus Services Ltd v Hamilton (1970).

Cassidy v Ministry of Health (1951)

The claimant was injured as a result of an operation in the control of one or more of the
defendant’s employee surgeons in a hospital. He could not identify the particular servant
who was responsible.
Held, the hospital authority will be vicariously liable, unless it proves that there was no
negligent treatment by any of its servants. In other words, the res ipsa loquitur doctrine
applies.

Scott v London and St Katherine Docks Co (1865)

The claimant was walking by a warehouse, where loading was going on. A heavy bag of
sugar fell on him, and he was injured. He could not explain how the bag came to fall on
him.
Held, this was a case of res ipsa loquitur. Where the thing is shown to be under the
management of the defendant or his servants, and the accident is such as in the ordinary
course of things does not happen if those who have the management use proper care, it
affords evidence, in the absence of explanation from the defendant, that the accident
arose from want of care.

Parejo v Koo (1966)

A 14 year-old boy was fatally injured when he was struck by a car which skidded on a wet
road and mounted the pavement where he was playing with some other boys. The driver
explained how the accident happened in that the road was wet and the car skidded.
Held, the accident was caused solely by the driver's negligence, as the driver had not
shown that the accident had occurred without any negligence on his part.

Jamaica Omnibus Services Ltd v Hamilton (1970)

The respondent, a nine year old boy, was a passenger in one of the appellant's buses. As
the bus rounded a corner, the emergency door, beside which the respondent was sitting,
suddenly flew open. The respondent was thrown through the open door, sustaining
injuries. The respondent did not know why the door flew open and relied on res ipsa
loquitur.
Held, the maxim applied. The emergency door was sufficiently under the control of the
respondent and its servants, and the presumption of negligence had not been rebutted.

Presumption of negligence in driving cases: A driver of a

vehicle on the road is under a duty to take proper care not to cause
damage to other road users or to the property of others. Other road users
include drivers and passengers in other vehicles, cyclists, and
pedestrians. He should, for example, keep a proper lookout; observe
traffic rules and signals; avoid excessive speed; and avoid driving under
the influence of alcohol or drugs. Failure to observe any of the provisions
of the Highway Code may be prima facie evidence of negligence. See
Bourhill v Young (1943), or, the case of the pregnant fishwife.

Bourhill v Young (1943)

Mr Young negligently drove his motor cycle and crashed into a car. Mrs Euphemia
Bourhill, on getting out of a tram, heard the noise of the collision, but was in no danger.
She went to the accident spot and saw the blood on the road and suffered nervous shock.
She was pregnant at the time. She sued Mr Young.
Held, Young owed a duty of care to the car driver he collided with, as he could reasonably
foresee that if he rode his motor cycle too fast he was likely to crash into a vehicle on the
road. He was not liable to Mrs Bourhill as she was not in the proximity to Mr Young, so he
could not reasonably foresee that his action of riding the motor cycle negligently would
affect her.

it.

(c) Damage to the claimant resulting from the breach:

The third element in the tort of negligence is proof of damage. Having

established that the defendant owed a duty of care to him, and that the
defendant was in breach of that duty, the claimant must then prove that
he has suffered damage for which the defendant is liable in law. There
are two aspects of this requirement: (i) causation; and (ii) remoteness.
We shall look at both of these aspects, and then at the extent to which
one can claim for ‘economic loss’, and the effect of a ‘negligent
misstatement’ as compared to a negligent action.
 (i) Causation: The first question to be answered is: did the
defendant's breach of duty in fact cause the damage suffered by the
claimant? It is only if this question is answered in the affirmative that the
defendant may be liable to the claimant. A useful test is the ‘but for’ test.
If the damage would not have happened but for the defendant's negligent
act, then that act will have caused the damage and the defendant will be
liable to the claimant in the tort of negligence. See Barnett v Chelsea and
Kensington Hospital Management Committee (1968), and McWilliams v
Arrol (1962).

Barnett v Chelsea & Kensington Hospital Management Committee (1969)

The claimant's husband, after drinking some tea, experienced persistent vomiting for three
hours. Together with two other men who had also drunk the tea and were similarly affected,
he went later that night to the casualty department of the defendant's hospital. A nurse
contacted the casualty officer by telephone telling him of the man's symptoms. The doctor
was himself tired and unwell. He sent a message to the men through the nurse to the effect
that they should go home to bed and consult their own doctors the following morning.
Some hours later, the claimant's husband died from arsenic poisoning, and the Coroner's
verdict was of murder by a person or persons unknown. The claimant brought an action
against the defendant hospital authority as employer of the doctor. The evidence
established that, even if the deceased had been examined and treated with proper care, he
would in all probability have died anyway.
Held, the doctor had not caused the death, and the hospital authority was not liable for the
loss. In failing to examine the deceased, the doctor was guilty of a breach of his duty of
care. But, this breach could not be said to have been a cause of the death. It could not be
said that, “but for the doctor's negligence, the deceased would have lived.”

McWilliams v Arrol (1962)

A steel erector was killed when he fell from a building on which he was working. Had he
been wearing a safety harness, he would not have fallen. The defendants, his employers,
were under a statutory duty imposed by the Factories Act to provide safety harnesses for all
their employees working on high buildings. They were in breach of their duty by failing to
provide them. But, they proved that, on previous occasions when safety harnesses had
been provided, the claimant had never bothered to wear one.
Held, the defendants were not liable to the claimant’s estate. The inference was that even if
a harness had been provided on the day of the accident, the claimant would not have worn
it. It could not be said that the failure to provide a harness was a cause of death.

(ii) Remoteness of damage: The concept of remoteness of

damage is one way in which the law sets limits to the extent of a
defendant's liability for the consequences of his negligence. The basic
rule is that a defendant will only be liable for those consequences of his
 negligent act which are not too remote in law, even though such act may
be said, on the application of the 'but for' test, to have caused the damage
complained of. Issues of remoteness arise where (a) the consequences
could not have been foreseen; (b) the harm which was foreseeable was
of a different kind; (c) there was a pre-existing condition; (d) there was a
new act intervening that actually caused the damage; or (e) where the
loss was purely economic.

(a) Not foreseeable: Consequences are too remote if a

reasonable man would not have foreseen them. See The Wagon Mound
(No 1) (1961) (supra, the fire in Sydney Harbour case). The test, like that
for determining whether a duty of care exists in the first place, is based on
foreseeability, that is damage is not too remote if the defendant as a
reasonable person should have foreseen it.

(b) Different kind: Another well-established rule governing

remoteness of damages is that the harm which was foreseeable must be
of the same kind, type and class as that which actually occurred. So long
as the damage which occurs is of the same kind as that which is
foreseeable, it matters not that the precise sequence of events leading to
the damage was not foreseeable. See Hughes v Lord Advocate (1963),
Witter v Brinks (Jamaica) Ltd (1992), and Nottage v Super Value Stores
Ltd (1997).

Hughes v Lord Advocate (1963)

The defendants left a manhole in the street uncovered and protected only by a tent and
paraffin lamps. A child climbed down into the hole and, as he was coming out, kicked over
one of the lamps, which fell into the hole, causing an explosion by which he was burned.
The lower court held that the defendants were not liable on the ground that, although injury
by burning was foreseeable, as the child might easily have come into contact with one of
the lamps, burning by means of this sequence of events was not. It was appealed up to the
House of Lords, which reversed the lower court.
Held, once the type or kind of damage was foreseeable, it was irrelevant that the precise
sequence of events was not.

Witter v Brinks (Jamaica) Ltd (1992)

The claimant was employed by the defendants as a 'clearance driver'. His duties included
transporting of cheques between various banks and a data processing centre, for which
purpose he was supplied with an unmarked car and a firearm. The claimant had been
having trouble starting the vehicle and he returned it to his employers, whose serviceman
later assured the claimant that it had been checked and was starting properly. That same
evening, the claimant was driving the car home before beginning his early morning rounds,
when it suddenly stalled and would not restart. The claimant got out of the car, opened the
bonnet and was looking at the engine when a gunman walked up to him and threatened to
kill him. In attempting to disarm the man, the claimant received a gunshot in his hand,
which became partially paralysed. The claimant brought an action for negligence against
the defendants, contending that, by supplying him with a defective and unreliable vehicle,
they were in breach of a duty of care owed to him. The defendants argued that, at the
material time, the claimant was not doing anything inherently dangerous. That is, he was
not transporting cheques, and it was unforeseeable that, as a consequence of the vehicle
breaking down, he would be held up and shot by a gunman.
Held, the defendant’s contentions were correct. The harm which the claimant suffered was
not of a kind which the defendant could have foreseen.

Nottage v Super Value Stores Ltd (1997)

Armed robbers shot and injured the claimant, who was employed by the defendants as a
store manager, when he went to open the defendants' supermarket one morning. The
evidence was that the defendants may not have known the hour of the day, but they
certainly foresaw that there would be robberies. There had been in the past, and they
anticipated that there would be in the future.
Held, the defendants were in breach of their duty to take reasonable precautions to protect
the claimant, such as by providing a security officer to accompany the claimant at opening
times, since they did foresee that there would be armed robbers at their food stores from
time to time.

(c) Pre-existing condition: A tortfeasor takes his victim as he

finds him. The victim can claim damages for the entire injury to his
person even though, because of some pre-existing condition, or special
physical weakness or sensitivity unknown to the tortfeasor, the harm
suffered was greater than would have been suffered by a normal person.
This is usually called the 'egg-shell skull' principle. It was concisely
explained in an early case thus,

If a man is negligently run over or otherwise negligently injured in

his body, it is no answer to the sufferer's claim for damages that
he would have suffered less injury, or no injury at all, if he had not
had an unusually thin skull or an unusually weak heart.
One who carelessly inflicts a minor cut on a haemophiliac, with the
result that the latter bleeds to death, will be fully liable for the
 consequences, even though a normal person would have suffered little
injury. Where the defendant negligently inflicts a burn on the claimant's
lip which, owing to a pre-malignant condition in the tissues of the lip,
caused the cancer to develop, from which the claimant dies, the
defendant will be fully liable for the death. See Brewster v Davis (1992),
and Crandall v Jamaica Folly Resorts Ltd (1999).

Brewster v Davis (1992)

The defendant negligently drove into the back of the claimant's car while the latter was
waiting in a line of stationary traffic. The claimant suffered no apparent physical injuries but
she became anxious and nervous. At the time of the accident, the claimant was suffering
from an auto-immune disease known as ‘lupus nephritis’, and the stress and anxiety
caused by the accident exacerbated her condition, which ultimately resulted in renal failure.
Held, based on the egg-shell skull principle, the defendant was liable for the consequences
of the renal failure.

Crandall v Jamaica Folly Resorts Ltd (1999)

The claimant, a guest at the defendant's hotel, fell from an unstable chair in the hotel bar
and sustained injuries which necessitated two operations. The claimant was obese and,
after the second operation, he suffered a heart attack.
Held by the High Court, and affirmed by the Court of Appeal, that the defendant was in
breach of its duty of care under the Occupier's Liability Act and was fully liable for the
consequences, including the heart attack, which was not too remote an injury. The court
referred to the principle that the defendant must 'take his victim as he finds him'.

If the defendant injures a high-income earner or a particularly

valuable chattel, he cannot argue that he could not have foreseen that the
amount of the loss would be so great. He would be liable for the full loss
of earnings of the victim or the full value of the chattel. This is not really
an issue of foreseeability or of remoteness, but rather one of assessment
of damages.

(d) Novus actus interveniens: This is the Latin for ‘a new act
intervening’. Often, there is not just one cause of injury or damage when
a negligent act occurs. There may be successive causes. There may be
no doubt that the defendant was in breach of a duty of care. But, after the
breach, an independent event may have arisen which contributed to the
injury. The question then is whether the defendant is to be held liable for
the injury, or whether the intervening event is to be treated as having
'snapped the chain of causation' and thus relieved the defendant from
 liability.

Perhaps the most useful test when deciding whether there has
been a novus actus interveniens is whether a reasonable person would
have said that the damage caused by the intervening event was within
the likely or foreseeable risk created by the defendant's negligence. See
Stansbie v Troman (1948), and Haynes v Harwood (1934) for the
application of the principle.

Stansbie v Troman (1948)

A decorator working alone in a house had been told by the owner to lock the front door
whenever he had to go out. He carelessly left the door unlocked while he went away for two
hours. A thief entered and stole some jewellery and clothes.
Held, that the act of the thief was within the foreseeable risk created by the decorator's
breach of duty and he could not plead novus actus interveniens. He was liable for the loss.

Haynes v Harwood (1934)

The defendant's servant negligently left a horse-drawn van unattended in the street where
children were playing. A mischievous boy threw a stone at the horses, causing them to bolt.
The claimant, a policeman on duty, was injured when he attempted to prevent the horses
from injuring bystanders. The defences were (i) that the real cause of the injury was the boy
throwing the stone, novus actus interveniens, and that (ii) the claimant brought the injury on
himself, or volenti non fit injuria.
Held, the act of the boy throwing the stone was not a novus actus interveniens, since it was
a foreseeable consequence of leaving the horses unattended where children were about.
Nor did the defence of volenti apply as the policeman was a rescuer who had acted under a
duty to prevent injury to the public. The defendant was held vicariously liable for the
negligence of his employee.

A novus actus interveniens may also be the careless act of the claimant
himself. See Jones v Watney (1912).

Jones v Watney (1912)

The defendant negligently caused the claimant’s sprained leg. The claimant wished to win a
prize in a high-jump competition. He proceeded to try to win the competition and made his
leg so much worse that it took an additional six months to recover. He sued the person who
caused his sprained leg.
Held, he was only entitled to damages for such part of his suffering as was not due to such
heedless conduct.

(e) Liability for economic loss: Pure economic loss is financial

loss which is not consequent upon any physical damage to the person or
property of the claimant. Questions arise as to when a claimant can
 recover for economic loss caused by the defendant's negligence. As a
general rule, no damages can be claimed for 'pure' economic loss in the
law of tort. Such loss is not foreseeable. So, if D runs down C, a fashion
model, with his car, C can recover damages for loss of earnings. But, C's
agent A, who expects to earn a commission from C's earnings, cannot
recover because his loss is not consequent upon any physical damage to
him. It was pure economic loss unaccompanied by any physical damage
to A. See Spartan Steel and Alloys Ltd v Martin and Co Ltd (1973).

Spartan Steel and Alloys Ltd v Martin and Co Ltd (1973)

The defendant negligently damaged a cable belonging to the power authority. The electric
supply to the claimants’ nearby factory was cut off. The claimants suffered damage to their
equipment from molten metal which was in their furnace at the time. They also lost profits
arising from stoppage of steel production during the power cut.
Held, the claimants could recover damages for the loss caused by the molten metal, but not
for the loss of profits otherwise. The first was consequent on physical damage to the metal,
while the second was pure economic loss.

Liability for negligent misstatement: An exception to the rule

that damages cannot be recovered for pure economic loss occurs in
certain circumstances where the economic loss has been caused by a
careless misstatement. This is described as the rule in Hedley Bryne v
Heller (1963).

Hedley Bryne v Heller (1963)

The claimants were advertising agents. They asked their bankers to inquire into the
financial stability of a company with whom they were contemplating entering into certain
advertising contracts. The bankers made enquiries of the bankers for the company in
question. The company's bankers carelessly gave favourable references about the
company, but specifically disclaimed responsibility for the statements. Relying on those
references, the claimants went ahead with the advertising contracts. Shortly afterwards the
company went into liquidation. The claimants lost a substantial sum.
Held, by the House of Lords that a duty of care exists in connection with statements made
when there is a 'special relationship' between the parties. The special relationship arises (i)
whenever it is reasonable for the claimant to have relied upon the care or skill of the
defendant who made the statement, and (ii) the defendant knew or ought to have known that
the claimant was relying on him. If it were not for the express disclaimer, the defendants
would have owed a duty of care to the claimants not to cause financial loss by their
statements.

Thus, professional advisers such as accountants, bankers, commission

agents, and surveyors, will owe a duty of care to their customers in
respect of any professional advice given.

Even if the defendant does not carry on a business or profession

which involves the giving of advice calling for special skill or competence,
if he has let it be known in some other way that he claims to possess skill
or competence in the subject matter of the particular enquiry and is
prepared to exercise that skill and competence on the occasion in
question, he will be liable for economic loss caused by his negligent
misstatement. No duty of care will arise where advice is given at a purely
social occasion such as a cocktail party, or on a bus, or on an aeroplane
by one passenger to another, since it would be neither foreseeable by the
defendant that the claimant would rely on the advice, nor reasonable for
the claimant to do so. To succeed in a claim under the rule in Hedley
Bryne v Heller, a claimant has to show six factors:

(a) that representations were made by the defendant;

(b) that a special relationship 'equivalent to contract' existed

between the parties, and that the defendant held himself out in
his profession or otherwise as being in a position to give an
opinion or advice on which reasonable persons could rely;

(c) that the defendant was aware that the claimant would rely on
his representations;

(d) that the claimant did rely on those representations;

(e) that the representations were made negligently; and

(f) that, as a result, the claimant suffered loss.

Where these conditions are satisfied, it will be foreseeable that economic

loss will result from a negligent misstatement, and a defendant may be
held liable. See Anderson and Sons v Rhodes (Liverpool) Ltd (1967),
and Mutual Life v Evatt (1971), Imperial Life v Bank of Commerce (1985),
and Chaudry v Prabhakar (1989), and what Professor Kodilinye calls
“another rather dubious decision” in the majority ruling of the Privy
Council in the Trinidadian case of Royal Bank v Pampellonne (1986). For
a more recent, straightforward application of the rule see the Jamaican
 case of Wiggan v Morrison (2000).

Anderson and Sons v Rhodes (Liverpool) Ltd (1967)

The parties were dealers in a fruit market. The claimant enquired of the defendant as to the
creditworthiness of a newcomer. A representative of the defendant responded, “They are
all right.” In fact, the newcomer owed thousands of pounds to the defendant firm, but, due
to the negligence of the accounting department, this was unknown to the defendant’s
representative who made the statement. Relying on the representation, the claimant
contracted with the newcomer and lost money as a result of the newcomer’s default.
Held, the special relationship required by Hedley Byrne v Heller existed, and the defendant
was liable for the loss.

Mutual Life v Evatt (1971)

The claimant held a policy of insurance with the defendant insurance company. He sought
gratuitous advice from the company as to the wisdom of investing in the defendant's sister
company. The defendant advised the claimant that the sister company was financially
stable and he invested in it. The company crashed and the claimant lost his money. He
brought an action against the defendant company for giving him negligent advice. It was
appealed to the Privy Council.
Held, by a majority, the defendant was not liable since, being an insurance company, it was
not in the business of giving investment advice. The dissenting minority took the view that
a duty of care is owed by anyone who takes it upon himself to make a representation,
knowing that another will justifiably rely on his representation. This more liberal view of the
scope of Hedley Bryne has found favour with the English courts, but not with the West
Indian courts.

Chaudry v Prabhakar (1989)

The defendant, who was a friend of the claimant, offered to help her to find a suitable used
car to purchase. The defendant was not a mechanic. The claimant insisted that she did not
want a car that had been involved in an accident. The defendant found and recommended
a car which had in fact been in an accident and had been inadequately repaired. The
claimant purchased it. It turned out the car was unroadworthy and did not get a certificate
after the purchase, causing the claimant to lose the purchase price. She sued the
defendant for negligent advice.
Held, by a majority of the Court of Appeal, this was not a purely social relationship because
the claimant had relied on the defendant's skill and judgment and the defendant was aware
of that reliance. The dissenting judge doubted that the decision was correct because he did
not consider to be entirely attractive the imposition of a duty of care on a family friend giving
gratuitous assistance as a personal favour. The claimant could have had the car properly
surveyed by her mechanic. This decision puts to the test the rule the rule that there is no
liability under the Rule in Hedley Byrne v Heller for advice given on a social occasion.

Royal Bank Trust Co (Trinidad) Ltd v Pampellonne (1986)

The respondent husband and wife were customers of the appellant bank. They wished to
invest in a suitable UK deposit-taking company. They consulted their bank manager. The
manager mentioned a company called Pinnock and supplied the respondents with relevant
literature and application forms. The Pampellonnes invested sums of money in Pinnock.
When Pinnock later went into liquidation, the Pampellonnes lost most of their money. They
sued the bank for negligence. The trial judge found that the manager had not advised the
respondents, but had merely given them information. The respondents had not relied on
the skill and judgment of the manager, nor did the manager believe that they were relying
upon such skill and judgment. The trial judge found that there was no special relationship
between the bank and the respondents giving rise to any duty of care on the part of the
bank.
The Court of Appeal reversed the decision of the trial judge. They held that the information
given by the manager amounted to advice. The bank was in the business of supplying, and
did supply, information which influenced the respondents to invest. The court found that the
bank fell short of the standard of care expected of a prudent investment adviser when it
failed to make adequate inquiries into the personal circumstances of the respondents and
the financial position of Pinnock before tendering the advice.
The Privy Council by a majority of 3:2 overturned the decision of the Court of Appeal. The
majority held that the trial judge was entitled to find from the evidence that the bank
manager had not advised the respondents and that he had only given them information
and literature on Pinnock.
The minority of the Board considered that the respondents' visits to the bank manager were
at the very least for the business purpose of seeking information on investments. The
respondents were, in the words of Hedley Byrne v Heller, “trusting the other to exercise
such a degree of care as the circumstances required.” The duty of care which arose
entailed no more than was reasonable in the circumstances. The bank manager could
have offered to study the literature fully, make any necessary further enquiries, and advise
the respondents, no doubt for a fee. Or, he could have advised them to take further
professional advice. Or, he could have warned the respondents that he had inadequate
information about Pinnock to enable him to recommend the company as an investment,
and, without further investigation, had no means of knowing whether Pinnock was a safe
haven for the respondents' money. At the very least, he should have pointed out to the
respondents the shortcomings of the information about Pinnock that he was passing on.

Professor Kodilinye agrees with the minority and considers the decision
of the majority of the Privy Council to be dubious. A more recent decision
which you should be familiar with is Wiggan v Morrison (2000).

Wiggan v Morrison (2000)

The claimants, a Jamaican couple residing in England who wished to return to live in
Jamaica, decided to purchase a lot of land to build a house to occupy. They purchased lot
90, and engaged the defendant, a qualified land surveyor, to survey the property to verify its
location. The defendant carried out the survey and identified a particular lot as lot 90.
Relying on his representation, the claimants started construction of a house. When the
building was about 40% complete, they discovered they had in fact been building on lot 91,
a neighbouring lot which had been wrongly identified as lot 90 by the defendant. They were
obliged to demolish the building, and sued the defendant surveyor for the loss suffered.
Held, all six factors required by the Rule in Hedley Byrne v Heller were present, and there
was judgment for the claimants for the losses they had incurred.
 DEFENCES:

The principal defences available to a person sued in negligence are (i)

contributory negligence, and (ii) volenti.

(i) Contributory negligence:

Contributory negligence is basically carelessness on the part of the

claimant which combines with the defendant's negligence or breach of
duty in bringing about the claimant's damage. In many cases, the
claimant's negligence will have been a contributing cause of the accident
which led to the damage. Examples include where the claimant steps
into the road without keeping a proper lookout and is struck by a car
being negligently driven by the defendant. Or, the claimant's and the
defendant's vehicles may collide head-on as a result of both drivers'
careless overtaking of other vehicles.

The essence of contributory negligence in law is not that the

claimant's carelessness was a cause of the accident, but rather, that it
contributed to his damage. Where a claimant car driver carelessly rests
his arm on the outside of his vehicle as he is driving, and another motorist
negligently collides with the car and injures the claimant's arm, or where a
claimant motorcyclist is knocked down by a negligent motorist and suffers
head injuries, owing to the fact that he is not wearing a crash helmet, the
carelessness of the claimant is not a cause of the accident but it does
contribute to his damage.

Contributory negligence does not involve any breach of duty owed

by the claimant to the defendant. It does not necessarily connote any
activity fraught with undue risk to others. It is rather a failure on the part
of the person injured to take reasonable care of himself in his own
interest. A person will be contributorily negligent if, for example, he takes
a lift in a vehicle driven by a person whom he knows to be under the
influence of alcohol, or in a car which he knows to have defective brakes.
See Guness v Ramdeo (2001).

Guness v Ramdeo (2001)

The claimant and the defendant had indulged in a three-hour beer-drinking session. They
set off in the defendant's car with the defendant driving. The defendant lost control of the
vehicle, which crashed into a wall causing injury to the claimant.
Held, the claimant had been contributorily negligent in remaining in the car when he knew
the defendant was unfit to drive. The claimant's damages were reduced by 20%.

Seat belts: It has been established that a driver or a front seat

passenger in a car who fails to wear a seat belt and is injured in an
accident is guilty of contributory negligence if his injuries could have been
avoided or minimised by wearing a seat belt. See Froom v Butcher
(1975), and the Cayman case of Wood v Francis (1985).

Froom v Butcher (1975)

It was held that a driver or a front seat passenger in a car who failed to wear a seat belt and
was injured in an accident was guilty of contributory negligence if his injuries could have
been avoided or minimised by wearing a seat belt, even though, at that time in the UK, there
was no statutory regulation making the wearing of belts compulsory.

Wood v Francis (1985)

A motorist was killed in a collision caused solely by the defendant's negligence. The
deceased was not wearing a seat belt at the time, and such wearing was not compulsory.
The court found that it was more likely than not that the accident would have killed the
deceased even if he had been wearing a seat belt. It was not therefore a case where the
deceased could have been held guilty of contributory negligence.
Held, drivers and front seat passengers were under a duty to take reasonable precautions
for their own safety by wearing seat belts.

Standard of care in contributory negligence: The standard of

care for his own safety expected of a claimant is that of a reasonable,
prudent person. However, in the cases of children and workmen, a lower
standard is accepted.

(a) Children:

A lower standard of care for his own safety is to be expected of a young

child. See Yachuk v Blais (1949), and Ghanie v Bookers Shipping
(Demerara) Ltd (1970).

Yachuk v Blais (1949)

The defendant sold some gasoline to a nine year old boy after being told by the boy that his
mother wanted it for her car. The boy played with it and was badly hurt.
Held, the defendant was fully liable for the injury. He had been negligent in supplying
gasoline to so young a child, and the child was not guilty of contributory negligence, for he
did not know and could not be expected to know of the inflammable properties of gasoline.
Ghanie v Bookers Shipping (Demerara) Ltd (1970)
The claimant, a five year old child, was hanging on to the back of a cart as it proceeded
along a road. A car was following close behind. As the driver of the car started to overtake
the cart, the claimant jumped off the cart and, without looking back, dashed across the road.
The car struck his left foot and he was severely injured. The defendant pleaded contributory
negligence.
Held, the defendant was fully liable. Where a child is of tender years, the courts will not be
prepared to find contributory negligence. The only defence available in such cases is that
the defendant was not negligent, or that his negligence was not the cause of the accident.

An older child may be guilty of contributory negligence if he fails to

act with the degree of alertness and perception normally expected of a
child of his age. See Perch v Transport Board (1981).

Perch v Transport Board (1981)

The claimant was a 12 year old schoolgirl. She was seriously injured while attempting to
board one of the defendant's buses outside the school which she attended. The defendants
pleaded contributory negligence.
Held, the accident was caused by the negligence of the driver in failing to stop immediately
when school children tried to board the bus while it was in motion. At her age, the claimant
should have known better than to try to board a moving bus. Damages were reduced by
20% due to the claimant's contributory negligence.

(b) Workmen:

A lower standard of care for his own safety is to be expected of a

workman who is injured as a result of his employer's breach of his duty of
care owed to his employees. The court will take into account the fact that
the senses of workmen in factories are often dulled by the noise,
repetition, confusion, fatigue and preoccupation with work. In such
circumstances, it would be unreasonable to expect them to take
scrupulous care for their own safety. The case of Davie v New Merton
Board Mills Ltd (1959) enunciated the common law duty of an employer to
his employee. The duty is to take reasonable care for their safety. The
duty is not an absolute one and can be discharged by the exercise of due
care and skill, which is a matter to be determined by a consideration of all
the circumstances of the particular case. That case held that the
 employer has a duty to provide
(i) a competent staff of persons;
(ii) adequate plant and equipment;
(iii) a safe system of work, with adequate supervision; and
(iv) a safe place of work.

(i) Competent staff: An employer will be in breach of a duty of

care owed to his employees if he engages a workman who has had
insufficient training or experience for a particular job, and as a result of
that workman's incompetence, another employee is injured. This applies
not only to negligence in performing the job, but extends to bullying,
playing practical jokes, skylarking, and being in other respects a danger
to his fellow workmen. See Ifill v Rayside Concrete Works Ltd (1981).

Ifill v Rayside Concrete Works Ltd (1981)

The claimant and J were employed by the defendant as labourers. They were both known
to the defendants to have a propensity for skylarking at work, and had been warned on at
least two previous occasions not to do so. One day, J picked up the claimant and cradled
him in his arms, saying he was “light as a baby”, and singing “Rock-a-bye-baby.” As J
carried the claimant forward, he tripped over a pipeline and both J and the claimant fell into
a cement mixer, which was only partly covered, both of them sustaining injuries. The
claimant brought an action against the defendants for (a) breach of statutory duty; and (b)
negligence at common law.
Held, (a) the cement mixer was a dangerous piece of machinery within the Factories Act,
and the defendants were in breach of their absolute statutory duty to fence it securely;
(b) the defendants were in breach of their common law duty not to expose the claimant to
risks of danger emanating from indiscipline fellow employees, and were liable in negligence;
(c) the claimant was guilty of contributory negligence and his damages would be reduced by
50%.
(ii) Adequate plant and equipment: An employer will be in
breach of this duty if he does not take the necessary steps to provide
adequate plant and equipment for his workers, and a workman is injured
through the absence of any equipment which is obviously necessary or
which a reasonable employer would recognise as being necessary for the
safety of the workman. Dangerous machinery must be fitted with safety
devices including fencing. Goggles must be provided for those types of
work in which there is a risk of eye injury. Plant and machinery must be
maintained. See Forbes v Burns House Ltd (2000), and Morris v Point
Lisas Steel Products Ltd (1989), and Sammy v BWIA (1988), and Bailey v
 Gore Bros Ltd (1963), and Pitters v Spotless Dry Cleaners and Laundry
(1978).

Forbes v Burns House Ltd (2000)

An office worker was injured at the workplace when a swivel chair on which she was sitting
collapsed.
Held, the employer was in breach of its duty to provide adequate plant and equipment
because it had failed to inspect and maintain its staff's office equipment.

Morris v Point Lisas Steel Products Ltd (1989)

The claimant was employed as a machine operator. While the claimant was using a wire
cutting machine, a piece of steel flew into his right eye, causing complete loss of sight in that
eye. The evidence was that the risk was obvious.
Held, the employer was in breach of its common law duty of care to provide adequate plant
and equipment for failing to provide goggles. Not only ought the defendant to have made
goggles available, but it should have given firm instructions that they must be worn. The
defendant should have educated the men and made it a rule of the factory that goggles must
be worn.

Sammy v BWIA (1988)

The claimant was employed by the defendant as a mechanic. He was sent to repair a
vehicle which had broken down on a ramp at Piarco Airport. While attempting to start the
vehicle, it caught fire. No fire extinguishers were provided either in the vehicle being
repaired or in the service vehicle. In attempting to put out the fire with a cloth, the claimant
suffered burns.
Held, the defendant was liable to the claimant for breach of its common law duty of care to
the claimant to take reasonable care for his safety.

Bailey v Gore Bros Ltd (1963)

The claimant was employed by the defendants in the operation of a stone-crushing machine.
The machine was defective. While it was working, a bolt frequently slipped, causing the
rollers to become choked and to stop. The operator would then climb up on to the machine
and clear the stones from the rollers before the machine was started up again. One day, the
claimant, having cleared the choke, was climbing down to the ground while the rollers were
working. He slipped and fell. His right hand was caught between the rollers, which were not
protected by any guard. He was severely injured. He claimed damages for failure to
provide a safe system of work. The defendants pleaded contributory negligence.
Held, the defendants were liable to the appellant in negligence, but the amount of damages
would be reduced by 10% on account of the claimant's contributory negligence.

Pitters v Spotless Dry Cleaners and Laundry (1978)

The claimant was a laundry woman employed by the defendant. While she was operating a
mangle, a tablecloth which was being fed into the machine became folded over. In trying to
straighten the tablecloth, the claimant reached over the machine's trip guard which was
designed to stop the machine when pressed. Her hand became caught under the hot rollers
of the mangle. She was severely burnt, and had to have four fingers amputated.
Held, the machine was dangerous, and since it was unfenced, the defendant was in breach
of its strict statutory duty under the Factories Regulations. The court declined to find the
claimant guilty of contributory negligence.
(iii) Safe system of working and effective supervision: An
employer must organize a safe system of working for his employees and
must ensure as far as possible that the system is adhered to. A system
of work includes the physical layout of the job; the sequence in which the
work is carried out; the provision of warnings and notices; and, the issuing
of any necessary special instructions.

The duty to supervise workmen includes ensuring that any

necessary safety equipment is worn by them. In addition to supervising
the workmen, the employer must organise a system which itself reduces
the risk of injury from the workman's foreseeable carelessness. See
Paris v Stepney BC (1951), and Rhyna v Transport and Harbour
Department (1985) at page 13 above. See also Legall v Skinner Drilling
(Contractors) Ltd (1993), and Bish v Leathercraft Ltd (1975).

Legall v Skinner Drilling (Contractors) Ltd (1993)

The defendant company was engaged in oil drilling. The claimant was employed by the
defendant as a derrick man. One of his duties was the removal of nuts and bolts from the
rigs as part of the 'rigging down' process. In order to remove a bolt from a rig platform about
10 ft from the ground, the claimant was given an empty oil drum to stand on. The drum
toppled over and the claimant was injured.
Held, the defendant, by failing to ensure that its workers used ladders to reach high
platforms and to warn the claimant of the danger of standing on the oil drum, was in breach
of its common law duty to provide a safe system of work.

Bish v Leathercraft Ltd (1975)

The claimant was operating a button pressing machine in the defendant's factory. A button
became stuck in the piston due to its not having been pre-heated. She attempted to
dislodge the button with her right index finger instead of using an instrument such as a nail,
as none had been provided to her. Her elbow came into contact with a lever, which should
have had a guard around it. This caused the piston to descend and crush her finger.
Held, the defendants were in breach of their common law duties to provide adequate
equipment and a safe system of work.

(iv) Safe place of work: An employer has a duty to take care to

ensure that the premises where his employees are required to work are
reasonably safe. This duty is greater than that owed by an occupier to his
 licencees or invitees. It is not limited to unusual dangers. Nor is it
discharged by giving warning of the danger.

The employer's duty to provide a safe place of work is not

absolute. It is sufficient if the premises are maintained in 'as safe a
condition as reasonable care by a prudent employer can make them'. If
the employer has an efficient system to keep the workplace clean and
free from obstruction, that is all that can reasonably be expected from
him. Also, the duty only applies to areas of the workplace where the
employee is authorised to enter. An employee who enters an area which
he knows to be 'out of bounds' will generally be treated as a trespasser.
For cases on safe place of work, see Watson v Arawak Cement Co Ltd
(1998), and Clifford v Charles H Challen & Sons Ltd (1951).2

Watson v Arawak Cement Co Ltd (1998)

The claimant was employed by the defendant as a general worker. He was sent to work on a
ship which was in the possession of a third party. While attempting to leave the ship at the
end of his day’s work, the claimant fell from an unlit walkway inside the ship and sustained
injuries.
Held, even though the ship was in the possession of a third party, the defendant was liable for
failing to provide a suitable means of egress from the ship and to instruct the claimant as to
the method of leaving the vessel.

Clifford v Charles H Challen & Sons Ltd (1951)

Denning LJ summed up the law succinctly when delivering judgment in the case of a
workman who contracted dermatitis at work from the use of a known dangerous substance.
The learned judge explained: -
The question is whether the employers fulfilled their duty to the workman. The
standard which the law requires is that they should take reasonable care for
the safety of their workmen. In order to discharge that duty properly an
employer must make allowances for the imperfections of human nature. When
he asks his men to work with dangerous substances, he must provide proper
appliances to safeguard them; he must set in force a proper system by which
they use the appliances and take the necessary precautions; and he must do
his best to see that they adhere to it. He must remember that men doing a
routine task are often heedless of their own safety and may become slack
about taking precautions. He must therefore, by his foreman, do his best to
keep them up to the mark and not tolerate any slackness. He cannot throw all
the blame on them if he has not shown a good example himself.

2
Referred to by Rita Joseph Olivetti J in the BVI case of Michael Smith v Delta
Petroleum: http://www.eccourts.org/michael-smith-v-delta-petroleum-caribbean-ltd/.
[If you have the digital version of these lectures these links are live, and you need
only click on them to access the documents.]
 (ii) volenti non fit injuria
The second general defence applicable in negligence is called ‘volenti
non fit injuria’. The term is synonymous with consent, and literally
translated means, “if you consent to something, then no one has caused
you any legal damage.” No one can enforce a right which he has
voluntarily waived or abandoned. Consent is a good defence to
intentional torts such as assault, battery, and false imprisonment. If I
enter into a boxing match, I cannot sue my opponent if he hits me and I
am injured as I consented to the assault. It would be different if he broke
the rules and hit me with a chair. Consent may also be pleaded in
negligence actions as well as in most other torts. In negligence, the
courts speak of 'voluntary assumption of risk', rather than 'consent'. If I
get into a car driven by a person I know to be under the influence of
alcohol, I voluntarily assume the risk that he will get into an accident while
driving under the influence of alcohol.

In negligence cases, the defendant must show not merely that the
claimant consented to physical risk, but that he also consented to the
legal risk. That is, he consented to the risk of actual damage for which
there will be no redress in law. It means the agreement of the claimant,
express or implied, to exempt the defendant from the duty of care which
he would otherwise have owed.

Activity 3.1
2. Devon is out of a job and without any money. He writes a book entitled “How to Win at
the Races Everytime.” Devon makes a large amount of money from the sale of the book
through its wide circulation to the public.
Arthur, a talk show host, features the book on his show, including an interview with
Devon. Arthur places the book on his Top Ten List and recommends the formula contained
in it as “foolproof.”
Sasha who is facing foreclosure of her home, watches the show and goes out and buys
the book. After reading it she uses $10,000 her mother lends her to stop foreclosure
proceedings and places a bet at the races following with precision the formula in Devon's
book. Sasha loses all her money and her house.
 In fact, Devon knows very little about horse racing and the book is erroneous in many
respects.
(a) Explain the elements of the tort of negligent misstatement. [10 marks]
(b) Does either Devon or Arthur owe a duty of care to Sasha? [15 marks]
Support your answer with well-reasoned arguments.
[Spend 50 minutes on this activity] 25 marks

Feedback: Ensure you clearly mark the start of each part of the answer in the margin, as
there are separate marks for each part. A failure to do so may result in most of the marks
being lost even though the answer is substantially entirely correct.
Note: A model answer is available.
Note that you need to write approximately 1,000 words for each of the 3 essays in an exam.

Activity 3.2
3.(a) Using appropriate examples, explain what is meant by 'remoteness of damage in
negligence'. [12 marks]
(b) Explain how the Wagon Mound principle defines the limits of a person’s liability for
damage due to negligence. [13 marks]
[Spend 50 minutes on this activity] 25 marks

Feedback: 1. Ensure you clearly mark the start of each part of the answer in the margin,
as there are separate marks for each part. A failure to do so may result in most of the marks
being lost even though the answer is substantially entirely correct. Responses should not
be merged. For example, Part (a) must be answered separately from Part (b).
2. Candidates must use language that is grammatically correct, formal, and impersonal, not
general, vague or colloquial.
3. Your answer to Part (a) should show an awareness of the ‘but for’ test and situations
where (a) consequences could not be foreseen; (b) harm foreseeable was of a different kind;
(c) pre-existing condition, (d) new intervening acts; and (e) pure economic loss. Cases
cited will include Hughes v Lord Advocate, and Witter v Brinks, and Brewster v Davis, and
Stansbie v Troman, and Spartan Steel and Alloys Ltd v Martin and Co Ltd.
4. For Part (b) you will set out the principle of law and illustrate it with the facts and
finding in The Wagon Mound, and perhaps (from the Law of Contract) Hadley v
Baxendale, and Victoria Laundry v Newman.

Activity 3.3
2. Rajendra and Petal, two law students, attended a party at the start of the academic year.
Rajendra consumed several alcoholic drinks. Petal was walking home when Rajendra
stopped and offered her a ride. At first she refused but because the road was dark, wet and
lonely, she accepted. On the way to her flat, Rajendra drove at high speed and as the road
was wet the car skidded and overturned. Petal was not wearing a seatbelt and she was
thrown through the windscreen, sustaining major head injuries and a broken leg. Rajendra
sustained minor injuries. Willy, who was waiting to cross the road, was knocked down by
the skidding car and sustained broken limbs.
Advise Rajendra of his liabilities to Petal and Willy.
[Spend 50 minutes on this activity] 25 marks
Feedback:
You are expected to base your answer on the law of negligence, ie, specifically, the duty of care
and the issue of contributory negligence. Follow the IRAC format, citing relevant leading
cases. CXC’s advice on how to handle this type of question reads as follows:
1. Candidates must follow instructions. Responses should not be merged; for example, Part
(a) must be answered separately from Part (b).
2. Candidates must use language that is grammatically correct, formal, and impersonal, not
general, vague or colloquial.
3. Candidates are encouraged to use the following format (summarized as IRAC) when
answering problem-type questions.
I - issue (identify it)
R - rule of law (state it)
A - application of law to facts
C - conclusion
4. Candidates must support their responses with legal authority, namely:
Case Law
Statute
Legal writers
5. Candidates must deal with issues and applicable law. When dealing with the tort of
negligence, ensure you show the examiner that you are familiar with the relevant principles.
Candidates must refrain from restating the question, except in so far as a principle of law
relates to stated facts. Instead, candidates should strive to answer the questions precisely.
6. Candidates need to be familiar with definitions of terms and concepts, and should offer
definitions of terms as appropriate.

Activity 3.4
2. By referring to decided cases, explain how the elements of duty, breach and damage are
dealt with by the courts in determining tortious liability for negligence.
[Spend 50 minutes on this activity] 25 marks
Feedback:
Activity 3.5
3. Mrs Parsons, an attorney, completes a transfer of land for her client Rapster, who upon
receipt of the proceeds of sale, asks her what she thinks about his plan to invest the money
in a private investment company. Mrs Parsons tells Rapster, “I really don’t like these
unregulated companies, but you could try Save Today. I don’t know much about how they
operate but I know the principals.” Rapster asks her for their telephone number which Mrs
Parsons provides. He contacts Save Today and invests his money. Things go well for a
few years and Rapster is happy with his returns on his investment. Then Save Today fails.
Rapster consults you on whether he can sue Mrs Parsons for “introducing” Save Today to
him.
With reference to decided cases, advise Rapster on the likely success of his claim
against Mrs Parsons.
[Spend 50 minutes on this activity] 25 marks
Feedback:

Activity 3.6
4. (a) Explain what is meant by ‘remoteness of damage’ in negligence with reference to
ONE decided case [10 marks]
(b) Kenisha visits Dr Derma, a dermatologist, as she wants to remove blotches from her
skin. She has just recovered from an attack of measles. Dr Derma gives Keneisha a
prescription which she fills and uses. She suffers severe skin burns to her arms, neck and
face after using the medication and upon consulting another dermatologist, it turns out that
the medication is too strong for her sensitive skin, about which she had told Dr Derma.
Advise Kenisha on the likelihood of her success in a claim against Dr Derma. Support
your answer with reference to decided cases. [15 marks]
[Spend 50 minutes on this activity] 25 marks
Feedback: Ensure you clearly mark the start of each part of the answer in the margin, as
there are separate marks for each part. A failure to do so may result in most of the marks
being lost even though the answer is substantially entirely correct.