3.

1 TWIN MEANINGS AND ESSENTIALS OF NEGLIGENCE

Negligence has two meanings in law of torts:

l) Negligence as a code of committi.rig certain torts, e.g., negligently or carelessly
committing trespass, nuisance or defamation. In this context it denotes the mental
element.
2) Negligence is considered as a separate tort. It means a conduct which creates a
risk of causing damage, rather than a state of mind

The decision of the House of Lords in Donoghue v. Sfevenson treats negligence,

where there is a duty to take care, as a specific tort in itself, and not simply as an
element in some more complex relationship or in some specialized breach of duty.
Actions do not lie for a state of mind. Negligence is conduct not a state of mind - conduct
which involves an unreasonable great risk of causing damage. There is no necessary
element of “fault” in
the sense of moral blameworthiness involved in a finding that a defendant has been
negligent.

The classic definition of 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.” What a reasonable man would do or not do depends on all the circumstances;
what may be negligence in one case may not be in another. Negligence is always relative
to some circumstances of time, place, or person; it is not “absolute or intrinsic”. It is not
a
fact, but a conclusion of law from the facts involved.

ESSENTIAL ELEMENTS

There are differing opinions as to what elements constitute a cause of action in

negligence. A common approach in the “A.B.C. rule” which holds that a plaintiff must
establish that: i) a duty of care is owed to the plaintiff, ii) there has been a breach of that
duty; and iii) damage has resulted from that breach.

The American approach recognizes four’ components of the tort: i) a duty of care,
requiring the actor to conform to a certain standard of conduct; ii) failure to conform
to the standard; iii) a reasonable close casual connection between the conduct ar›d
the resulting injury, or “proximate cause”; and iv) actual loss or damage to the plaintiff.
One au?b.or adcis a fi tth e!•ment to the above approach, namely, the absence of any
conduct by the plaiati if whicii ivculd preclude his recovery.

However, there are following three bread features:

1. Duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has
to establish that the defendant owed to him a specific legal duty to take care of which he
hns made a breach. There is no general rule of law defining such duty. I: depends in ench
case whether a duty exlsts.

1
 A person is only required to meet the standard of car• where he has an obligatioli or
a duty to be careful. Thus, duty is “the relation between individuals which imposes
upon one a legal obligation for the benefit of the other”, while the standard measures
whether the conduct met the obligation. A discussion of duty centers around its
existence, while the standard of care clarifies what the duty is.

Duty is “an obligation, recognized by law, to avoid conduct fraught with

unreasonable risk of danger to others”. It arises when a person is in a position where
everyone of ordinary sense would recognize that if ordinary care were not used in the
circumstances, danger would arise.

The concept of duty is a control device to limit negligence actions, for where there is
no duty there can be no negligence. In the recent words of the Supreme Court of
Canada, “the question of whether a duty of care arises will depend on the
circumstances of each particular case, not on predetermined categories and blanket
rules as to who is, and who is not, under a duty to exercise reasonable care”.

2. Breach of duty
Breach of duty means non-observance of due care whish is required in a particular
situation. What is the standard of care required? The standard is that of a reasonable man
or of an ordinarily prudent man. If the defendant has acted like a reasonably prudent man
there is no negligence.

3. “ Damage
It is also necessary that the defendant's breach of duty must cause damage to the plaintiff.
The plaintiff has also to show that the damage thus caused is riot too remote a
consequence of the defendant’s negligence. The need for proof of damage is historical, as
negligence actions are based on actions of the case, which always required such
proof. The requirement has continued for policy reasons. Thus, it is not actionable to
mer•ly expose another to danger, or to threaten future harm; there must be actual
damage. N!ere
injury to feelings without ascertainable physical damage will not suffice. The requirement
that damage be proved is reinforced by limitation periods whicii run from the date the
damage is suffered, for in negligence actions there is no cause to sue until the damage has
occurred.

3.2 DUTY OF CARE AND STANDARD OF CAM

NATURE OF THE DUTY OF CARE

lt is a question of law whether in any particular circumstances a duty of care exists.

Before 1932 there was no general principle. The law had been built up in
disconnected slabs exhibiting no organic unity of structure. In 1932 an attempt was made
in the House of Lords in Donoghue v. Stevenson to formulate some general criterion
for the existence ot'the proximity which would give rise to a duty of care.
. .... . .... . .-.................... .. .. ... ............

2
 Donogkue v. Stevenson
[1932] AC 562; [1932] All ER Rep. 1 (HL)

Accoi-ding to Mrs. Donoghue {nee McAllister), she went to Minchella’s cafe in Paisiey
with a friend, who ordered her a “ginger beer float.” After taking the cap ofT th•. bottle,
which was made of opaque stone rather than transparent glass, Minchella poured some of
the ginger beer over the ice cream in the tumbler, and Mrs. Donoghue partook thereof.
As some ginger beer was still left in the bottle, her friend emptied it into her tumbler. A
nauseating foreign body floated out - possibly something that had once been a snail.
Mrs. Donoghue was taken ill, poisoned by the drink or sickened by the thought of it, or
both.

Mrs. Donoghue claimed that Stevenson, who had bottled the ginger beer and sold it to
Minchella, was undcr a legal duty of care to tier: he should have had a system for keeping
snails out of the bGttles and for inspecting the bottles before they were filled, and his
“j

breach of duty in these respects had caused tier illness. Stevenson replied that even if
she managed to prove the facts she alleged, he was not liable in law, so there was no
point in going to trial, but Lord Moncrieff decided to hear the evidence, and Stevenson
appealed.
The Inner House (Scotland's Court of Appeal) allowed Stevenson's appeal, and was for
j dismissing the claim. Mrs. Donoghue appealed to the House of Lords, and her appeal was
allowed, so that the case could proceed to triai [though in fact it never did).

Lord Atkin
My Lords, the sole question for determination in this case is legal: Do the averments
made by the pursuer in her pleading, if true, disclose a cause of action? 1 need not restate
the particular facts. The question is whether the manufacturer of a article of drink sold by
-j him to a distributor, in circumstances which prevent the distributor or the ultimate
purchaser or consumer from discovering by inspection any defect, is under any legal
duty to the ultimate purchaser or consumer to take reasonable care that the article is
free from defect likely to cause injury to health. I do not think a more important problem
has occupied your Lordships in your judicial capacity: important both because of its
bearing
on public health and because of the practical test which it applies to the system under
Which it arises.. . The law...appears to be that in order to suppon an action for damages
for negligence the complainant has to show that he has been injured by the breach of a
duty owed to him in the circumstances by the defendant to take reasonable care to avoid
such injury. In the present case we are not concerned with the breach of the duty; if a
duty exists, that would be a question of fact which is sufficiently averred and for present
purposes riiusi be assumed. We are solely con.cemed w'ih the question wl:•tner, as a
matter of law in the circumstances alleged, the defender owed any duty to the pursuer
to take care.

At present I content myself with pointing out that in English law there must be, and is,
some general conception of relations giving rise to a duty of care, of which the particular
cases found in the books are but instances. The liability for negligence, whether you style
it such or treat it as in other systems as a species of “cu Jpa”, is no doubt based upon a
general public sentiment of moral wrongdoing for which the offender must pay. But acts
or omissions which any moral code would censure cannot in a practical world be treated

3
Ö

4
 so as to give a right to every person injured by them to demand relief. In this way rules
of la'w arise which limit the range of complainants and the extent of their remedy. 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 reasonable
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 will no doubt arise cases where it will be difficult to determine whether the
contemplated relationship is so close that the duty arises. But in the class of case now
before the Court I cannot conceive any difficulty to arise. A manufacturer puts up an
article of food in a container which he knows will be opened by the ac:ual consumer.
There can be no inspection by any purchaser and no reasonable preliminary inspection by
the consumer. Negl igently, in the course of preparation, he allows the contents to be
mixed with poison. It is said that the law of England and Scotland is that the poisoned
consumer has no remedy against the negligent manufacturer. If this were the result of
the authorities, I should consider the resul: a grave defect in the law, and so contrary
to principle that I should hesitate long before following any decision to that effect
which had not the authority of this i-rouse. I would point out that, in the assumed
state‘ of the authorities, not only would the consumer have no remedy against the
manufacturer, he would have none against any one else, for in the circumstances alleged
there would have none against any one else, for in the circumstances alleged there would
be no evidence of negligence against any one other than the manufacturer; and except
in the case of a consumer who was also a purchaser, no contract and no warranty of
fitness, and in the case of the purchase of a specific arti -le under its patent or trade
name, which might well be the case in the purchase of some articles of food or drinlt, no
warranty protecting even the purchaser-consumer. There are other instances than of
articles of food and drink where goods are sold intended to be used immediately by
the consumer, such as many
forms of goods sold for cleaning purposes, where the same liability must exist. The
doctrine supported by the decision below would not only deny a remedy to consumer
who was injured by consuming bottled beer or chocolates poisoned by the negligence of
the manufacturer, but also to the user of what should be a harmless proprietary
medicine, and ointment, a soap, a cleaning fluid or cleaning pow'der. I cGnfLoe myself to
articles of common household use, where everyone, including the marufacturer, Arrows
tilai the articles will be used by other persons if›an I*.e actual ultimate purchaser -
n.arr.ely, by members of his family and his servants, and in some cases his g•aests. I do
not think so il! to our jurisprudence as to suppose that its principles are so remote from
the ordinary needs of civilized society and the ordinary claims it makes upon its
members as to deny a légal remedy where there is so obviously a social wrong.

My Lords, if your Lordships accept the view that this pleading discloses a relevant cause
of action you will be affirming the propos:tion that by Scots and English law alike a
manufacturcr of’ products, which lie sells in such n form as to show that he intends them
to reach the ultimate consumer in the form in which they left him with no reasonable

5
 expected as a reasonable man to foresee that if be conducted his process of manufacture
carelessly he might injure those whom he expected and desired to consume his ginger
beer? The pos5ibility of injury so arising seems to me in no sense so remote as to
excuse him from foreseeing it.

The burden of proof must always be upon the injured party to establish that the defect
which caused the injury was present in the article when it left the hands of the party
whom he sues, that the defect was occasioned by the carelessness of that party, and the
circumstances are such as to cast upon the defender a duty to take care not to injure the
pursuer. There is no presumption of negligence in such a case as the present, nor is there
any jurisdiction for applying the maxim, res ipsa loquitur. Negligence must be both
averred and proved... ’
.... ...... .... . ..........................-- - - - - - - - .. . .. ....... .. .. ........... ..... .

The significance of the “decisi0n

At least five important points emerge from Donoghue v. Stevenson:

• Negligence is a separate tort in its own right
• An action for negligence can exist whether or ñ ot there is a contract between the
parties.
• An action for negligence will succeed if the plaintiff can prove: a duty of care is
owed by the defendant to the plaintiff; a breach of that duty by the defendant;
resulting damage which is not too remote.
• In order to establish the existence of a duty of care the neighbour principle,
based on reasonable foresight, must be applied. This is a minimum requirement
and would not justify liability in all cases.
• A manufacturer of drinks owes a duty of care to the consumer not to cause injury
be negligent)y allowing foreign bodies to conta.minate those products.

Developing a universal test of notional duty

Lord Atkin's foreseeability and proximity test was clearly intended to be of general
application, capable of assisting courts in determining the scope of the notional duty in
relation to all kinds of acts and omissions. But it was only the means by which the ratio
of Donoghue was determined and not th.e ratio itself which was confined to the liability
of a manufacturer ef goods towards ultimate consumers. H•nce, rourts vzere met bound tp
apply the Atkin test for many years remained reluc*nnt te utiiize it, particularly :n the
face of prior authority denying the existence of a notional duty of care. The key change of
attitude came with the House of Lords decision in Dorsel Yacht Co. Ltd. v. Home Ofiice
where the test was used to support the conclusion that prison officers owed a notional é
duty of care in respect of the custody of prisoners to owners of nearby property likely to
be damaged if prisoners escaped. The likelihood that the property would be damaged
meant that the owners were closely and directly affected by the officers' conduct and
hence, the rcQuircmcnt of proximity was satisfied.

O
125
 CONCEPTS NOW USED TO D ETE RfvIINE THE EXISTENCE OF A DUTY

• Foresight

Wheth•r the defendant owes a duty :o the plain.tiff or not depends on reasonable.
foreseeability of the injury to the plaintiff. If at the time of the act or omission the
defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that
injury and failure to do that makes him liable. In Rural Transport Service v. Bezlum Bibi
the conductor of an over-loaded bus invited passengers to travel on the roof of the bus.
On the way the bus swerved on the right side to overtake a cart. One of the passengers
on the roof of the bus was struck by an overhanging branch of a tree. He fell down
and received multiple injuries on the head, chest, etc. and as a consequence thereof he died. In
action by Bezlum Bibi, the mother of the deceased, it was held that there was negligence
on the part of both the driver and the conductor of the bus and the defendant was liable
for the same. In this case, it was observed !‘that inviting passengers to travel
precariously on the top of an overcrowded bus is itself a rash and negligent act and that
apart when passengers were being made to travel on the roof a greater amount of care
and caution on the part of the driver was called for so that his leaving the metallic track
by swearing on the right so close to a tree with over-hanging branch for overtaking a
cart while in speed
is also a rash and n•gligent act.”

• Reliance

This term first became prominent in legal usage when it was decided that one who had
relied to his detriment upon a statement made to him by another could recover in
negligence. Its use ensured that liability for careless statements was more limited than
unrestricted adoption of the foreseeability test would have produced. The term clearly has
significance in cases in which the parties are very close to a contractual situation. It has
also been used in a looser, more general, sense in cases in which on.e party could be said
to be relying on another to act in a !awful mann.er.

• Assumption of responsibility

The notion of “assumption of responsibility” has proved to be a. valuable concept,

particularly in those situa:ions in which insistence upon “reliance” as a requirement
would have resulted in liability being narrower in scop• than seemed to be desirable.
. .. .... .. . . . . .. .. . .. . ..... . ........ . - .. .. . . - . - . . - - - - .. - - - .. .
-.

Mite v. Jones
[1995] 1 AH ER 691

On 4 March 1986 the testator, who had quarreled with the plaintiffs, his two daughters,
executed a will cutting them out of his estate. In June the testator was reconciled with the
plaintiffs and seiit a letter to his solicitors giving instructions that a new will should be
Prepared tu include gifts of $9,000 each to the plaintiffs. The solicitors received the
letter on 17 July but nothing was done to give effect to those instructions for a month.
On 1 6
;g 136

125
 August the solicitors' managing clerk asked the firm's probate department to draw up a
will incorporating the new dispositions. The following day the managing clerk went on
holiday and on his return to work a fortnight later he made arrangement to visit the
testator on l7 September. However, the testator died on 14 September before the new
dispositions to the plaintiffs were put into effect. The plaintiffs brought an action the
solicitors for damages for negligence.

Lord Goff
My Lords, in this appeal, your lordships' House has to consider for the first time the
much discussed question whether an intended beneficiaiy under a will is entitled to
recover damages from the testator's solicitors by reason of whose negligence the
testator's intention to benefit him under the will has failed to the carried into effect. In
Ross v. Caunters [1979) 3 All ER 580, a case in which the will failed because, through
the negligence of the testator's solicitors, the will was not duly attested, Megarry, VC
held that the disappointed beneficiari under the ineffective will was entitled tó recover
damages from the solicitors in negligence. In the present case, the testator's solicitors
negligently delayed the preparation of a fresh will in plac• of a previous will which the
testator had decided to revoke, and the testator died before tt:e new will was prepared.
The plaintiffs were the two,daughters of the testator who would have benefited und•r the
fresh will but received nothing under the previous will which, by reason of the solicitors
delay, remained unrevoked. It was held by the Court of Appeal [ 1993) 3 All ER 481,
reversing the decision of Turner, J that the plaintiffs were entitled to recover damages
from the solicitors in negligence.

The conce.ptual difficulties

Even so, it has been recognized on all hands that Ross v. Saunters raises difficulties of a
conceptual nature, and that as a result it is not altogether easy to accommodate the
decision wiihi.n the ordinary principles of our law of obligations. It is right, however,
that I should immediately summarise these conceptual difficulties. They are as follows.

(I) First, the general rule is well established that a solicitor acting on behalf of a client
owes a ‹iuty of care only to his client. The relationship between a solicitor and his client
is nearly always contractual, and the scope of the solicitor's duties will be set by the
terms of his retainer; but a duty of care owed by a solicitor to his client will arise
concurrently in contract and in tort.

(2) The plaintiff s ciaim is snc Koi purel;v financia! loss; an 3 as a general rule, apart
from cases of assumption of responsibility arising under the pnncipl re in Headley Byrne
d: Co Ltd v. Heller & Partners Ltd. [1963] 2 All ER 575, no action will lie in respect of
such toss in the tort of negligence. Furthermore, in particular, no claim will I ie in tort
for damages in respect of a mere loss of an expectation, as opposed to damages in
respect of
damage to an existing right or in rest of the plaintiff.

(3) A third, and distinct, objection is that, if liability in tort was recognized in cases such
as Ross v. Counters, it would be impossible .o place any scnsiblc bounds to cases in

137
which such recovery was allowed.
139
 The lorlious soluiion
I therefore return to the law of tort for a solution to the problem. For the reasons I have
already given an ordinary action in torrious negligence on the lines proposed by
Megarry, VC in Ross v. Saunters must, with the greatest respect, be regarded as
inappropriate, because it does not meet any of the concepnial proolems which have been
raised. Furthermore, for the reasons I have previously given, the Hedley Byrne principle
cannot, in the absence of special circumstances, give rise on ordinary principles to an
assumption of responsibility by the testator's solicitor towards an intended beneficiary.

The present case is, if anything, a fortiori, since the nature of the transaction was such
that if the solicitors were negligent and their negligence did noi come to light until afler
the death of the testator, there would be no remedy for the ensuing loss unless the
intended beneficiary could claim. ln my opinion, therefore, your Lcrdships House
should in cases such as thèse extend to the intended beneficiary a remedy under the
Hedley Byrne principle by holdifig thä t the ä tsü mptiö ñ of rêsponsibility by tlie solicitor
towards his client should bc helö in law to extend to the intended beneficiaiy who (as
the solicitor can reasonably foresee) may, as a result of the solicitor's negligence,
be deprived of his intended legacy in circumstances in which neither the testator nor
his estate will have a remedy against the solicitor. Such liability will not of course
arise in cases in which the defect in the will cornes to light before the death of the
testator, and the testator either leaves the will as it is or otherwise continues to exclude
the previously intended beneficiaq rrom the relevant benefit.

Lord Browne-Wilkinson
The solicitor who accepts instructions to draw a will knows that the future economic
welfare of the intended beneficiary is dependent upon his careful execution of the task.
It is true that the intended beneficiary (being ignorant of the instructions) may not rely
on the particular solicitor's actions. But, as I have sought to demonstrate, in the case
of a
duty of care flowing from a fiduciary relationship liability is not dependant upon actual J
reliance by the plaintiff on the defendant's actions but on the fact that, as the fiduciary is
well aware, the plaintiffs economic w•1l being is dependent upon the proper discharge
by the fiduciary cf his duty. Second, the solicitor by accepting the instructions has
e.ntered upon, and th•refore assumed responsibility for the task of procuring the execution
of a skillfully drawn will knowing that the beneficiary is wholly dependent upon his
carefully carrying out his function. That assumption of responsibility for the task is a
f‘eature cf both the two categories or spccia! relationship so far identified in th•
author:ties.
....... ................... .........................-.. .......... .. . ...... . ........... . .
• Proxiitiity G,
This term, apparently invented by Lord Esher, was used by Lord Atkin himself to
describe the nature of the neighbour principle and has since been frequently adopted. On
the one hand it is clear that geographical proximity between the parties is not itself
sufficient to establish liability, although it may be an important factor. On the off:cr

139
hand it is also clear that the absence of proximity in time or space will not
prevent the
 establishment of liability: the manufacturer of poisonous tinried food is liable although
his product has been shipped to the other side of the world and consumed months later.
Proximity is therefore a convenient expression “so long as it is realized that it is no more
“•, t.han a label which embraces not a definable concept but merely a description of
circumstances from which, pragmatically, the courts conclude that a duty of care exists.”

• Just asd reasonable

Lord Keith in Peabod y Donation Fund v. Parkinson said that in determining the
exist•nce of a duty of care it was “material to take into account whether it is just and
reasonable” that one should be imposed. So far this potentially wide-ranging concept has
been used mainly to deny liability in circumstances in which another defendant, or the
plaintiff himsel f, is regarded as the more appropriate bearer of the relevant loss, or wher•
alternative remedies exist with which a negligence action could iindesirably be in
conflict. Although the cofitext in‘ which the coiiciepl was oñginally forinulated in the
Peabody case involved rejection of a claim for pure economic loss, the House of Lords
has since asserted in Marc Rich & Co. v. Bishop Rock Marine that “considerations of
fairness, justice and reasonableness are relevant to all cases whatever the nature of the
harm sustained by the plaintiff.”

• Policy

Judges have used the concept of duty of care as a device for implementing policy
considerations of various kinds. Thus, in Hill v. Chief Constable of West Yorkshire it was
held by the House of Lords that it would be contrary to public policy for negligence in
the detection of crime to give rise to liability against the police, and the Court of Appeal
mas since extended the principle to protect the police from liability with respect to their
highway and traffic control responsibilities. The factors which influence judges may
include the following consideraticns (the list is not exhaustive):

4 Loss allocafion Which party can best afford to bear the loss? Which party is
insured (the deepest pocket principle)?
# The fioodgates argument. This involves the fear that a flood of c!aims may follow
a particular decision, and is found in a number of ‘grey areas’ of negligence, such
as nervous shock.
4 V.'hether tire imposition of a duty would cre2te inconsistencies with other areas of
the !aw.
4 Moral consid•rations.
4 Practical considerations such as forward planning for manufacturers.
4 The notion that professional people like doctors and barristers need to be
protected frorn the threat of negligence actions which could inhibit their
professional skills and judgment
4 Judicial reluctance to create new common law duties where none previously
@ ex ist#d. Moreover, Judges are not happy about becoming involved in making
new law.
4 Whether imposing a duty would enccurage people to take more care

141
140
 T¥YO STA CE TEST AND POLICY DISCUSSION

In Anns v. Merton Borough Council (1978), Lord Wilberforce made a statement which
established the famous two-stage test which was to be cited and relied upon in many of
the most important policy decisions which w•re responsible for the expansion of ihe law
of negligence in relation to nervous shock and in economic loss in the 1980s. His words
were:
“Through the trilogy of cases, Donoghue v. Stevenson, Hedley Byrne v. Heller
and Hoitie Ofjice v. Dorset Yacht Company Lld, the position has now been
reached that in order to establish that a duty of care arises in a particular
situation, it is not necessary to bring the facts of that situation within those of
previous situations when a duty of care has been held to exist. Rather the
question has to be approached in two stages. First on has to ask whether, as
between the alleged wrongdoer and the person who has suffered the damage,
there is a sufficient relationship- of proximity- or neighbourhood- such'- that, in
the- reasonable ccnteniplation of the former, carelessness on his part may be
likely to cause damage to the latter in which case a prima facie duty of care
arises. Secondly, if the first question is answered affirmatively, it is necessary to
consider whether there are any considerations which ought to negative or to
reduce or limit the scope on the duty or the class of persons to whom it is owed,
or the damages to which a breach of it may give rise.”

This statement had a liberating effect on the law. Stage one was the simple application of
the neighbour test, based on proximity, treating the Donoghue v. Stevenson principle as
a principle of general application. Stage two was the crucial policy stage at which the
court could legitimately discuss any reasons of public, social, economic or other policy
reasons for denying a remedy.

CRITICISM OF TWO-STAC E TEST AND EVOLUTION OF TIJRSE STAGE TESTS

In a number of off-quoted 5tatements criticizing the two-stage test, various attempts

were made to halt the expansion iri the law which it had made possible. While it is clear
that Lord Wilberforce's approach should not have been treated as if it were a statutory
definition, it did provide a useful and honest statement of the reality of tb.• progress of
the law. The *visdorn. of tb.e more liberal approach was doubted by Lord Keith in
Governors c^ fee Peabody Jonof‹ n Fui‘cl 1. Sir Lindsay Parkinson & Co. Lid. (1985) in
which he sa:'d
“A reiationship of proximity in Lord Atkin's sense must exist before any duty of
care can arise but the scope of the duty must depend on all the circumstances of
the case. .. In determining whether or not a duty to take care of particular scope
was incumbent upon a defendant it is material to take into account consideration
of whether it is just and reasonable that it should be so.”

It appears from a number of decisions ln the 1980s that the test for the existence of a
duty of care is now approached in three stages. The approach recommended in Caparo
Indu›lries v. Dickman (1990) and other cases is to deal with the question of duty of care
141
 Reasonable man
The reasonable man has been described as the “prudent person”, a person of “ordinary
prudence”, an “ordinarily prudent” person, a “reasonable and prudent person”, a
“reasonably careful person, and an old favourite, “the man of the Clapham omnibus.”

An extensive summary of the character of the reasonable man is found in Arland v.

Taylor: “[The reasonable person is] a mythical creature of the law whose conduct is the
standard by which the Courts measure the conduct of all other persons and find it to be
proper or improper in particular circumstances as they may exist from time to time. He is
not an extraordinary or unusual creature; he is not superhuman; he is not required to
display the highest skill of which anyone is capable; he is not a genius who can perform
uncommon feats, nor is he. possessed of unusual power of foresight. He is a person of
normal intelligence who makes prudence a guide to his conduct. He does nothing that a
prudent man would not do and does not omit to do anything a prudent man would do. He
acts in accord with general and approved practice. His conduct is guided by
considerations, which ordinarily regulate the conduct of human affairs. His conduct is the
standard ‘adopted in the community by persons of ordinary intelligence and prudence’.”

By using the standard of the reasonable man, the law requires a minimum level of
performance, but not perfection. Thus, allowances are made for accidents, or errors in
judgment. The standard is an objective one “independent of the idiosyncrasies of the
particular person whose conduct is in question”. Therefore, evidence by the defendant of
what he thought he should have done in the situation is irrelevant. The defendant's
blameworthiness or moral character is irrelevant; the only criterion is whether the
defendant's conduct is below that of a reasonable person.

A reasonable person is taken to have a certain amount of intelligence and knowledge of

common things. A defendant with low intelligence will be liable for his actions should
they lall below the standard. His knowledge need not be superior, but he should realize
the results of common situations. Substandard experience or knowledge is not an excuse,
while more extensive knowledge on the part of the defendant will raise the standard so
that he is judged in light of his added knowledge. Ignorance may, in some circumstances,
be excusable once, but should the event recur, the defendant will be judged with that
previous experience in mind.

A reaso*.nb!e person should guard against children, understanding that they may be a
source of danger. Parents are required to supervise their children reasonably, and teachers
and schools must act as a reasonably careful parent with a large family.

In some cases it may be negligent to undertake an activity without consulting a

professional, depending on the particular circumstances. Generally the defendant will not
be liable if he obtains and follows expert advice.

With regard to those with physical disabilities, the applicable standard is that of a
reasonably prudent person with the same disability. The person is not expected to behave
as though he has no disability, but he expected to avoid putting himself into a position of

i43
 danger. He may also be expected to take extra precautions because of his disability.
Where the physical disability is sudden and •sithout prior warning, the defendant is not
liable for an accident caused by its onset.

The standard of the reasonable person is slightly relaxed when it comes to children. The
cases reflect the courts ambivalence between providing protection for the children and
for their victims. Children of “tender age” are immune from tort liability and cannot be
found contributory negligent. There is no set age limit below which a child is free from
liability. In fact, age is not the test, but rather the infant’s capacity to understand and
appreciate danger. It has been suggested, however, that a 6 year o!d may be liable for his
actions. The applicable standard of care for these children is that of “a child of like age,
intelligence and experience.” The test is partly subjective, for it takes into account the
characteristics of the particular child.

STANDARD OF CARE AND CONCEPT OF RISK’

The advantage of the test of reasonable foresight is that it keeps the law in touch with
the needs of the ordinary person. The disadvantage is that in complex society ordinary
people may have insufficient knowledp•e or ex.perience of the activity under
consideration to entitle them to set the appropriate standard of care. The result may be
confused and contradictory decisions which lay down no clear guide for conduct. Hence,
there is now a
tendency to expound the standard of care required in any particular case more in terms of
risk that in terms of reasonable foreseeability. A risk is a chance of harm to others which
the party whose conduct has been called in question should have recognized. Hence,
negligence is conduct which falls below the standard established by the law for the
protection of the others against unreasonable risk of harm. (Tb.e risk or hazard in
question must, as we have already seen, be to a legally protected interest of the
plaintiff.) There are three factors for considerations. First, the magnitude of the risk to
which the defendai!t exposes other persons by his action; secondly the importance of the
object to ice attained by the dangerous form of activity; and thirdly the burden of
adequate precautions. We shall consider each separately.

• The magnitude of the risk to which others are exposed

The law in all cases exacts a degree of care commensurate with the risk created. There
are two factcrs in determining the magnitude of a risk - the seriousness of the injury
risked, and the like!ib.ood of '.fie injury being in fact cause.

Graviiy of the injury

In Paris v. Stepney Borough Council the plaintiff, who had only one good eye, was
bl inded in the course of his employment. He contended successfiilly that his employers,
by omitting to provide him with goggles, were in breach of their duty to take reasonable
care of his safety because, though it was not the practice to provide goggles for that class
of work they must have know that the consequences of an accident to his good eye would
be particularly disastrous.

144
 Likelihood of injury
The general principle is that before negligence can be established it must be shown not
only that the event was foreseeable but also that there is a reasonable likelihood of
injury. To base liability upon foreseeability alone would be too severe, for, “foreseeability
does not inclu‹ie any idea of likelihood at all”. So “people must guard against reasonable
probabilities, but they are not bound to guard against fantastic possibilities” But it is not
always justifiable to neglect a risk of small magnitude simply because it is small - the
difficulty, expense and advantages of eliminating the risk must also be considered, as
well as the general practice in such cases. The following case explains the concept of
likelihood of injury:

Bolton v. Stone
[1951] 1 All ER 1078

During a cricket match a batsman hit a ball which struck and injured tire respondent
wiio was standing on a highway adjoining the ground. The ball was hit out of the ground
at a point at which there was a protective fence rising to seventeen feet above the cricket
pitch. The distance from the striker to the fence was some seventy-eight yards and that
to the place where the respondent was hit about one hundred yards. The ground had
been occupied and used as a cricket ground for about ninety years, and there was
evidence that on some six occasions in a period of over thirty years a ball had been hit
into the highway, but no one had been injured. The respondent claimed damages for
negligence from the appellants, as occupiers of the ground.

Lord Porter
In the action and on appeal the respondent contended, as stated above, that the
appellants mere negligent or guilty of creating a nuisance in failing to take any sufficient
precautions to prevent the escape of cricket balls from th.e ground and the consequent
risk of injury to persons in Beckenham Road. In her submission it was enough that a ball
had been driven into the road even once. Such an event gave the appellants warning that
a ball might be hit into the road, and the appellants, knowing this, must, as reasonable
men, also know
that an injury was likely to be caused to anyone standing in the road or to a pass•r by.
The argument was, however, as she said, strengthened wi:en it was rembered that a ball
and been driven over the fence from time to time even though at somewhat remote
interva!s. Such an event w*s known to the appellants to have occurred, and, if they had
considered the matter, they ought to have envisaged the possibility of its repetition.

The question, however, remains: Is it enough to make an action negligent to say that its
performance may possibly cause injury or must some greater probability exist of that
result ensuing in order to make those responsible for its occurrence guilty of negligence?
In the present case the appellants did not do the act themselves, but they are trustees of
a field where cricket is played, are in control of it and invite visiting teams to play
there.
They are, therefore, and are admitted to be, responsible for the negligence of those who
use the field in the way inten.ded that it should be used. The question then arises: What
degree of care must they exercise to escape liabil'ty for anything which may occur as a e

145
 of the duty owed. In the Court of Appeal, Jenkins, LJ, said that it was a duty to prevent
balls being hit into Beckenham Road so far as there was any reasonably foreseeable risk
of that happening. There can be no quarrel with this proposition, but one must not
overlook the importance of the qualification “reasonable”. It is not the law that
precautions must be taken against every peril that can be foreseen by the timorous.

Lord Radcliffe
the fact remains that, unless there has been something which a reasonable blame as
falling beneath the standard of conduct that he would set for himself and require of his
neighbour, there has been no breach of legal duty, and here, I thin.k, the respondent's
case breaks down. It seems to me that a reasonable man, taking account of the chances
against an accident happening, would not have felt himself called on either to abandon
the use of the ground for cricket or to increase the height of his surrounding fences. He
would have done what the appellants did. In other words, he would have done clothing.

• The importance ofihe object to de attained

The reasonableness of the defendant's conduct will also depend upGn the proportion
which the risk bears to the object to be attained. To expose others to a risk of harm for a
disproportionate object is unreasonable, whereas an equal risk for a better cause may be
lawfully run without negligence. By running trains at the rate of fifty mi les an hour
railways have caused many fatal accidents which could quite easily have been avoided by
running at ten miles an hour. But this additional safety would be attained at too great a
cost of public convenience, and therefore, in neglecting this precaution, the companies
dò e not fall below the standard of reasonable care and are not guilty of negligence.
Similarly when it was suggested that a bank, which is under a duty to pay on demand a
cheque which is in proper form, owed a duty to its customer to investigate all the
endorsements, Lord Macnaghten said, “A banker so veiy careful io avoid risk would soon
have no risk to avoid”.

• The burden of adequ•• R!CCOf4tiOnS

The general princip1• is that the risk has to be weighed against the measures necessary
to eliminate it. So the occupier of a small property on which a hazard arises which
threaie .s a neighbour with substantial interests should not have to éio as must as one
with !arger interests of his owii at stake and greater resources to protect ib.em. If the risk
is very remote, it is material to consider the degree of security which the suggested
measures would afford: if in such a case the suggested measures are of an elaborate
nature and would result only in a possibility that the accident would have been
prevented or its consequences mitigated, then the defendants may be justified in doing
nothing. It is also
relevant to consider the degree of risk (if any) which taking the precautionary measures
may involve. But the greater the risk the less should be weight given to questions of the
cost of precautionary measures in time, trouble or money. If the risk to life or property is
really substantial, and no precautions would avail against it, it may be the duty of the
defendants to cease to carry on the particular activity in question.

147
 Since there are occasions when every vessel will break from her moorings, and since,
if she does, she becomes a menace to those about her; the owner's duty as in other similar
situations, to provide against resulting injuries is a function of three variables (1) The
probability that she will break away (2) the gravity of the resulting i.njuiy, if she does (3)
the burden of adequate precautions. Possibly it serves to bring this notion into relief to
state it in algebraic terms: if the possibility be called P, the injury L and the burden B,
liability depends upon whether B is less than L multiplied by P, . . .. Applied to the
situation at bar, the likelihood that a barge will break from her fasts and the damage she
will do vary with the place and time, for example, if a storm threatens, the danger is
greater; so it is, if she is in a crowded harbor where moored barges are constantly being
shifted about. On the other hand, the barge must not be the bargee's prison, even though
he lives aboard; he must go ashore at times. We need not say whether, even in such .".
crowded waters as New York Harbor a bargee must be aboard.at night at all: it may he
that the custom is otherwise and that, if so, the situation is one where custom should
control. We leave that question open: but we hold that it is not in all cases a sufficient
answer to a bargee's absence without excuse, during working hours, that he has properly
made fa3t his barge to a pier, when he leaves her. In the case at bar the bargee left at five
o'ciock in the afternoon of January 3'd, and the flotilla broke away at about two o'clock
in the afternoon of the following day, twenty-one hours anerwards. The bargee had been
away all the time, and we hold that his fabricated story was affirmative evidence that he
had no excuse for his absence. At the locus in quo — especially during the short January
days and in the full tied of war activity — barges were being constantly “drilled” in and
out. Certainly it was not beyond reasonable expectation that with the inevitable haste
and bustle, the work might not be done with adequate care. In such circumstances we
hold - and it is all that we do hold - that it was a fair requirement that the Conners
Company should have a bargee aboard (unless he had some excuse for his absence),
during the working hours of daylight.

(Accordingly, while recovery of collision damages is not diminished at all, the Conners
Corr.pany must bear a share of liability for the sinking damages.]

Comments on BPL test

Under the Learned Hand rule, a p:iriy is found negligent and therefore liabie for (at ieast
part off the damages resulting from his ac:ions it‘ B<PL. “B”, tire burden of adequate
precautions, is the accident avoidance cost. “P” is the probability that an accident wiii
occur. “L” is the cost of the resulting losses, if the accident does occur. “PL” (the
probability of the accident multiplied by the gravity of the resulting injury) is the risk
associated with the activity, the expected liability or the discounted accident cost.

Learned Hand suggested that when the costs of preventing an accident are less than the
expected loss (properly discounted by the probability of an accident occurring), it is
negligcnt not to tokc preenutionnry measures. A corollary of this view is that when the
costs of precautions are greater than the expected loss, it is not negligent to d•.cline to

149
 avoid the accident. In such circumstances it is not efficient to take precautionary
measures. The Learned Hand formula has had great influence on the development of the
negligence standard.

Lcarned Hand referred to “P” as the probability that the barge would break away from
the dock. Consider what “P” represented in the factual context in Corroll Towing. Is the
probability that the barge would break away from the dock the same as the probability
that an accident will result?

Both the probability of an accident occurring and gravity of harm if an accident does
occur vary at different times of the day and night. The decrease in activity in the harbor
at night is likely to decrease the likelihood of an injury (fewer barges moving about) and
the severity of the harm (fewer other boats to collide with a drifling barge, the barge
might run aground instead). The burden of taking precautions may even chang• from
day to night if night bargees cost less. This all makes the calculations quite complicat•d.
It might be impossible for a statistician to calculate even the probability of the accident
that actually occurred. And the probability of that precise sequence occurring is likely to
have been rather small. Other likely accidents include the barge colliding into the side of
another boat or running aground. Must the owner or bargee take all of these possible
accidents into account in deciding whether to take precautions? Does an efficient
balancing of costs require that the fact finder take all of these possibilities into account in
deciding whether the parties were negligent?

3.3 ECONOMIC LOSS

Pure economic loss refers to financial loss suffered by a plaintiff which is unconnected
w ith, and does not flow from, damage to his own person or propeHy. Four different
ways of causing such loss may be identified. First, where the loss to the pla:•ntiff follows
physical damage to property in which he held no proprietary interest at the time of
damage but to which he had some relationship, for example as user or subsequent
acquirer. This form of loss is frequently termed relational economic loss. The second
mode of causation is through reliance by the plaintiff” on a statement, for example
investment advice, which results in economic loss. A third mode of causation is through
the negligent provision of services, for example the faulty execution of a transaction,
which r•.sults in economic loss to the plaintiff. The final categcry is that negligent
provision of defective products or i›uildings with ine result that the plaintiff has to expend
mone y on repair or replacement.

Two features distinguish economic loss claims from most physical damage claims. First,
whilst the links between negligence and physical damage depend largely on the laws of
nature and neccssarily limit the type of relationship giving rise to a cl aim, those
between negligence and pure economic loss are primarily human in creation and can
form a complex web through which economic losses can ripple out from the one
negligent act.
Establishing Foreseenbility of less and more particularly, proximity of relalionship, in
such a context is a far more di fficult task. Secondly, because the economic relationships

150
 are frequently crealed rather than imposed, the participants in tne web have a greater
opportunity to choose the level of risk to be taken and the degree of protection from loss
required. Furthermore, in some situations legislation provides a framework for
relationships in which risk, protection and responsibility are already balanced. These
elements add to the difficulty of determining whether a duty wou!d be fair, just and
reasonable.

Persons for denying recovery of ecoitoinic losses

Historically there was no compensation where the plaintiff suffered pure economic losses
or where the p!aintiff lost a prospective economic advantage. Where, for instance, a
builder agreed to construct a turmel under a road and the defendant negligently flooded
the tunnel causing the builder to spend more money to complete his contract, the builder
was denied recovery for his purely economic loss. Where the defendants doing research
on foot and mouth disease negligently allowed a virus to escape and infect nearby cattle,
resulting in closure of the cattle market, the plaintiff auctioneers were not emitted to
recover for a prospective economic advantage, even though the economic loss was
“foreseeable”. There are many policy reasons for maintaining this rule. First, the law
favours protection of person and property over economic interests. Second, defendants
should not be burdened with all potential economic loss resulting from negligent
conduct, that is, “liability in an indeterminate amount for an indeterminate time
to an indeterminate class.” Third, the risk of pecuniary loss is a hazard common to all
people in business, and, fourth, a multiplicity of lawsuits is to be discouraged. Thus, the
court may permit a claim for economic loss which flows from physical damage to the
plaintiff but disallow an independent claim for financial loss flowing from physical
damage to another. However, the courts are not reluctant to allow recovery for
economic loss associated with physical injury to person or property. Thus, recovery for
loss of income or medical expenses is common in personal injury actions. Similarly,
financial loss from damage to a chattel can also be r•covered, including the cost of
repairing the property, profits it would have earned during its non-operational period,
and the cost of hiring a
temporary substitute chatte! to replace the damaged one.

Tests for detenuiiziing liability for econoir•.ic loss

The courts have applied two tests for limi .rig liability for economic losses: the
“knowledge of risk” test and the “•direct and foreseeable” test. It is diffic:tit to apply th•
“prima facie duty of care” principle in cases of pure economic loss sim.pliciter, t.*.at is,
cases where there has been no actual or risk ot’ damage to persGri or physical oroperty
but only loss to pocket or estate.

Foreseeable pure economic loss simpliciter is caused on a large scale as the close and
direct consequence of private and commercial transactions. Therefore, recovery for such
loss can only occur in exceptional cases. The decisive question is whether there are
considerations, in additions to foreseeabilty and a close and direct connection between
the negligent act and loss, which place the defendant under an obligation tu the PlaintiIT
which the law is prepared to recognize and cnforce.

151
 Economic loss caused by careless acts and statements

The general principle now established in England is thus that there is no negligence
liability in tort for economic loss unless damage to the plaintiffs person or property is
also proved. This was emphaticaily reaffirmed by the House. of Lords in Murphy v.
Brentwood District Council, in which the plaintiff failed to recover for a defect in quality
which reduced the value of his house. Similarly, in the earl ier Sparfan Steel case, when
the defendants negligently cut a cable cañ ying electric power to the plaintiffs factory,
thereby intemipting the supply for fourtenn and a half hours, the plaintiffs were entitled
to damages for physical damage to the metal in their furnace ($368), and also for the
loss of profit on the sales of that metal ($400), but could not recover for the loss of profit
in four further melts ($1,767), which could have been completed by for the power cut.
The
requirement of the interposition of physical damage between the negligent act and the
plaintiffs economic loss has been criticized as an illogica! and capricious exception to
the principle of reasonable foreseeability, but it is defensible on groun‹is of policy. It
prevents the defendant's insurers being overwhelmed by claims arising out of an open-
ended catastrophic risk, for example, a national power cut. But the limits of this
principle have not yet been fixed. If the defendant carelessly damages the plaintiffs piece
of paper, is there to be liability up to $18,000,000 because it is a lottery ticket?

Although the landmark case of Hedley Byrne & Co. v. Heller & Partners widened the
) tort of negligence to bring economic loss within its scope, the extent of liability for such
loss remains limited. In early 1980s, however, a controversial decision of the House of
Lords, Junior Books v. Veitchi, appeared to raise the possibility of the recovery of
economic losses, unrelated to physical injury or damage, on a much wider basis than
hitherto. But more recent cases, including further decisions of the House of Loriis itself,
have confirmed the validity of the principle tiiat such losses are only recoverable in
negligence in exceptional cases and not as a general rule.

) Hedley Byrne & Co. v. Heller & Partners Ltd.

[1963) 2 All ER 575

The plaintiffs, advertising agents, had booked space and time on behalf of a customer,
Easipower Ltd. under contracts making them personally liable. They then had doubts
about Easipower’s financial position, and asked their i›ankers to obtair. from the
defendants, merchant barters with whom Easipower Ltd. had their account, a statement
on Easipower's standing. This was done in the first instance. by telephone, when the
defendants said: “We believe that the company would not undertake any commitments
they were unable to fulfil.” Three months later the plaintiffs, through their bankers, asked
whether Easipower were trustworthy to the extent of $100,000 per year. The defendants
replied, in a letter headed “For your private use and without responsibility on the part of
this bank or its officials,” that Easipower Ltd. were a “... respectably constituted
company, considered good for its ordinary business engagements” and that “Your figures
are larger than we are accustomcd to see.” In reliance upon their view of what these

152
 statements meant, the plaintiffs refrained from canceling the advertising contracts, and
when Easipower Ltd. went into liquidation lost sums calculated at $17,661 18s 6d.

The plaintiffs abandoned an allegation of fraud, but maintained that tF.e defendants'
replies were given in breach of their duty of care. fvIcNair, I held that the defendants
were careless but that they owed no duty. The Court of Appeal affirmed judgment for the
defendants on the same ground [1962] 1 QB 396. The House of Lords affirmed the
judgment on different grounds.

Lord Reid
My Lords, this case raises the important question whether and what circumstances a
person can recover damages for loss suffered by reason of his having relied on an
innocent but negligent misrepresentation. . .

Before coming to the main question of law, it may be well to dispose of an argument that
there was no sufficiently close relationship between these parties to give rise to any
duty. lt is said that the respondents did not know the precise purpose of the inquiries
and did not even know whether the National Provincial Bank wanted the information for
its own use or for the use of a customer: they knew nothing of the appellants. I would
reject that argument. They knew that the inquiry was in connection with an advertising
contract, and it was at least probable that the information was wanted by the advertising
contractors. It seems to me quite immaterial that they did not know who these
contractors were: there is no suggestion of any speciality which could have influenced
them in deciding whether to give information or in what form to give it. I shall therefore
treat this as if it were a case where a negligent misrepresentation is made directly to the
person seeking information, opinion or advice, and I shall not attempt to decide what
kind or degree of proximity is necessary before there can be a duty owed by the
defendant to the plaintiff.

The appeliants first argument was based on Donoghue v. Stevenson. That is z very
important decision, but 1 do not think that it has any direct bearing on this case. That
decision inay encourage us to develop existing lines of authority, but it cannot entitle us
to disregard then. Apart altogether from authority, I would thi.•ik that the law must treat
negligent words differcntly from negligent acts. The law ought so far as possible to
reflect the standards of the reasonable man, and that is what Donoghue v. Stevenson sets
cut to do. The most obvious difference between negiigent words and negligent acts is
this. Quite careful people often express definit•. cpinio-.s cv social ur informal occasions
even wfien they see that others are likely to be influenced by tiiem; and they ofle.n do
what without taking that care which they would tax• if asked for their opinion
professionally or in a business connection. The appellant agrees that there can be no
duty of care on such occasions, and we are referred to American and South African
authorities where that is recognized, although their law appears to have gone much
further than ours
has yet done. But it is at least unusual casually to put into circulation negligently made
articles which are dangerous. A man might give a friend a negligently prepared bottle of
homemade wine and his friend's guests might drink it with dire results. But it is by no
means clear that those guests would have no action against the negJ igent maFlUfacturcr.

153
 If that is right, then it must follow that handler v. Crane, Christmas & to. [ 1951] 2 KB
164 was wrongly decided. There the plaintiff wanted to see the accounts of a company
before deciding to invest in it. The defendants were the company's accountants, and they
were told by the company to complete the company's accounts as soon as possible
because they were to be show.n to the plaintiff who was a potential investor iii the
company. At the company's request the defendants showed the completed accounts to
the plaintiff, discussed them with him, and allowed him to take a copy. The accounts had
been carelessly prepared and give a wholly misleading picture. It was obvious to the
defendants that the p1aint:ff was relying on their skill and judgment and on their having
exercised that care which by contract they owed to the company, and I think that any
reasonable man in the plaintiffs shoes would have relied on that. This seems to .me to be
a typical case of agreeing to assume a responsibility: they knew why the plaintiff want•d
to see the accounts and why their employers, the company, wanted them to be shown to
trim, and agreed to show them to hirri without even a suggestion that he should not rely
on them. . .

Now I must try to apply these principles to the present case. What the appellants
complain of is not negligence in the ordinary sense of carelessness, but rather mrs-
judgment, in that Mr. Heller, while honestly seeking to give a fair assessment. in fact
made a statement which gave a false and misleading impression of his customer's credit.
It appears that bankers now commonly give reference with regard to their customers as
part of their business. I do not know how far their customers generally permit them to
disclose their affairs, but, even with permission, it cannot always be easy for a banker to
reconcile his duty to his customer with his desire to give a fairly balanced reply to an
inquiry. .4nd inquirers can hardly expect a full and objective statement of opinion of
accurate factual information such as skilled men would be expected to give in reply to
other kinds of injury. So it seems to me to be unusually difficult to determine just what
duty beyond a duty to be honest a banker would be held to have undertaken if gave a
reply without as adequate disclaimer of responsibility or other warning...

But here the appellants' bank, who were their agents in making the inquiry, began by
saying that “they waiited to know in confidence and without responsibility on our part.”
7’hat is, on the part of the respondents. So I cannot see hnw the appellants can now be
entitled to disregard that and maintain that the respondents did incur a responsibility to
them. .. i arn therefore of opiRiOfl iilät it is clear that the respondents never undertook
any duty tc exercise care in givip.g the:•r r•.plies. Th• appellants cannot succced unless
there was such a auty and therefore in my judgmen: U:!S appeal must be dismissed.

Lord Morris
.My Lords, I consider that it follows and that it should now be regarded as settled that if
someone possessed of a special skill undertakes, quite irrespective of contract, to apply
that skill for the assistance of another person who relies upon such skill, a duty of care
will arise. The fact that the service is to be given by means of or by the instrumentality of
words can make no difference. Furthermore. if in a sphere in which a person is so placed
th.at nthers ctiuld rcasuiiably i‘ely upon his judgment or his skill or upon his ability to
make careful inquiry, a perscn takes it upon himself to give information or advice to, or

155
 But they are not theoretically conclusive and so cannot be the subject of definiticn. It
would be unfortunate if they were...

Junior Books v. Veilc.b i

[ 1983] 1 AC 520

The claim of the pursuers (respondents in the House of Lords) was for the cost of
remedying defects in the floor of their factory which had been laid by the defenders
(appellants). The defenders were specialists in that work. There was no contractual link
between the pursuers and the defenders although the l2tter were sub-contractors
nominated under the contract between Junior Books and Ogilvie (Builders) Ltd., the main
contractors. It was specifically averred that the pursuers architects relied on the defenders
as flooring specialists to recommend a suitable material for the floor, to arrange the
appropriate mix of composition material and to follow the appropriate procedures for
laying the floor. The action was brought after cracking had occurred in the surface layer
of the flooring. By the time that the action was brought certain areas had lifled and
required replacement. It was averted that the entire floor surface required replacement at
as early a date as possible to avoid the necessity of continual maintenance, which would
be more expensive than immediate replacement or treatment. The total claimed, over
$200,000, fell under a number of heads, but all were aspects of the cost of putting right
the floor produced by the defenders which had turned out to be defective. A majority of
the House of Lords allowed the case to go to trial. They held that there was a sufficient
degree of proximity to give rise to a duty of care, and that duty was not limited to a duty
to avoid causing foreseeable harm to persons or property other than the subject matter of
the work ,
.......... ....... . . . ... .. . .. ... ............... ...........

Conditions for application of Hedley B)!rne principle

To invoke the Hedley Byrne principle the following broad features should be established:
special relationship, assumption of responsibility, reliance on professional advice.

Special relationships
Hed!ey Byrne affirms and extends the principle that a duty to be careful (as distinct from
a duty to be hor.•.st) may exist in situations other than those in which there is a contract
between the parties. ’4rl:at ca. be deduced from the case is that the necessary relationship
between the maker of a statement and the recipient who acts in reliance on it will ,
normally exist where the statement is required for a purpose which is known to the
person making it, who also knows that it will be communicated to, and acted upon, by the
recipient either specifically or as a member of an ascertainable class, without fiirther
independent inquiry. These conditions are neither conclusive nor exclusive. Liability has,
for example, been imposed in the absence of any reliance by the plaintiff upon the
defendant. Thus, in file v. Jones the House of Lords has confirmed that a solicitor's
duty of care can extend beyond his clients to those whom he knnws may suiTsr less as a

157
 resuIt of his carelessness, in that case negligence with respect to tire preparation of a
will caused a prospective beneficiary to lose a legacy.

Purposes and circumstances

“{Blefore the existence and scope of any liability can be determined, it is necessary iirst
to determine for what purposes and in what circumstances the information in question
is to be given.” The authorities suggested that the courts will require a high degree of
specificity both with respect to the purpose for which the statement was made and the
identity of those likely to suffer less in the event of its being made carelessly. In Smith v.
Eric S Bush the House of Lords found in favour of the plaintiffs because they satisfied
both requirements. In this case it was held that surveyors who valued houses for
mortgagees, at the lower end of the market, also owe a duty of care to the mortgagors to
whom such reports are usually shown and by whom they are normally relied upon. On
the other hand in Caparo Industries v. Dickman the purpose for which the information
-) was pr•pared proved fatal tfi tire imposition of liability. In this case the House of Lords
held that those who audit the accounts of public companies, tc fulfill the statutory
requirements intended to facilitate the control of the companies by their shareholders,
do not owe a duty of care to investors in their capacity as such.

Need for profession or skill?

The Privy Council once held, in a controversial majority decision, that the defendant
should be a person whose profession or trade it is to make statements or give information
or advice; or who has a financial interest in the transaction in question. It may be
conceded that it would hardly be desirable to impose liability on a bystander who
carelessly misdirected one on his way to an important appointment; but it is very
difficult to see how a company can authorize the giving of advice except as part of its
business activities, so that it seems hard to hold that an insurance company is not liable
for misleading advice about investments given to a policy-holder.

3.4 RSS IPSA LOQIIITUR

Proof of iiegligen ce

The burden of proof of tb.•. defendant's negligence is upon the plaintiff. The Civil
Ev:dence Act. ! 968 [*NK] r•versed tire CGmmon la rU!• that a conviction might not be
used as evidence iii civil proceedings and! provides tiiat if a person is proved to have
been convicted of an offence then he shall be taken to have commited that offence unless
the contrary is proved. It follows that a plaintiff in an action for negligence may be
entitled to succeed simply on proof that the defendant has been convicted of an offence
0 in respect of conduct which is now complained of as negligent unless the defendant can
discharge the b!irden nf proving that he was not negligent. The Act thus shifts the legal
burden of proof
on to the dcfendant once his conviction is proved. In the absence of proof of a relevant
conviction, however, the legol burden of proof rests throughout with the plainti IN, and ifi

158
 at the conclusion of the evidence it has not been proved on a balance of probabilities
that the defendant was negligent, then the plaintlff fails.

Hearing of res ipsa loquitur

In order to discharge the burden of proof placed upon him it is usually necessary for the
plaintiff to prove specific acts or omissions on the part of the defendant which will
qualify as negligent conduct. Sometimes, however, the circumstances are such that the
court will be prepared to draw an inference of negligence against the defendant without
hearing detailed evidence of what he did or did not do. Thus, for example, the presence
of an unlighted vehicle on the road at night wi!l, if there is no other lighting, be regarded
as prima facie evidence of negligence on the part of the driver. It is important to
appreciate, however, that this means no more than that, in the absence of an explanation
from the defendant, the plaintiff has discharged his burden of prGof. The inferenc• of
negligence is by no means irrebuttable, and the nature of the evidence required from the
d‹rendant in rebuttal will depend in each case on the strength of the inference against
him and the standard of care called for in the circumstances. ›

There is presumption of negligence accordingly to the mar.im ‘res ipsa loquitur’ which
means ‘the thing speaks for itseli”. W'hen the accident explains only one thing and that is
that the accident could not ordinarily occur unless the defendant had been negligent, the
law raises a presumption of negligence on the part of the defendant. In such a case it is
sufficient for the plaintiff to prove accident and nothing more. The defendant can,
however, avoid his liability by disproving negligence on his part. The principle has been
thus explained in Halsbury’s Laws ofEngland:
“An exception to the general rule that the burden of proof of the alleged
negligence is in the first instance on the plaintiff occurs wherever the facts
already established are such that the proper and natural inference immediately
arising from them is that the injury complaineo of was caused by the defendant’s
negligence, or where the event charged as negligence ‘tells its own story’ of
negligence on the part of the defendant, the story so told being clear and
unambiguous. To these cases the maxim res ipsa loquitur applies. Where the
doctrine applies, a presumption of fault is raised against the defendant, which, if
he is to succeeded in his defence, must be overcome by contrary evidence, the
burden on the defendant being to show how the act complained of could
reasonab!•. happen. w:thout n.cgligence on his part.”

Conditions for application of maxim

The principal requirement is that the mere fact of the accident having happened should
tell its own story and raise the inference of negligence so as to establish a prima facie
case against the defendant. The story must be clear and unambiguous; if it may tell one to
half a dozen stories the maxim is inapplicable as, indeed, it is if the accident is merely
eqii:illy ct in.st.stent w itli iie{;ligci1cc and i easonable care. This single requirement is.

159
 its actual exclusion does not necessarily lead to the conclusion that the defendant was
not negligent. In Barkway v. Soufh Wales Transport Co. Ltd. B was traveling as a
passenger in the defendants' omnibus and was killed when it veered across the road and
fell over an embankment. A grea: deal of evidence was given by the defendants and it
was established that the causc of the accident was a defect in one of the tyres which
knight have been discovered beforehand if the defendants had required their drivers to
report occurrences which could result in "impact fractures". The House of Lords held
that as the cause of the accident was known res ipsa loquilur did not apply, but that on
the facts the negligence of the defendants was established.

The application of the maxim is demonstrated in the following cases:

Municipal Corporation ofDelhi v. Subhagwanti

AIR 1966 SC 1750

Three suits for damages were filed by the respondents as heirs of three persons who
died as a result of the collapse of 'he Clock Tower in Chandni Chowk, Delhi, belonging to
the appellant-Corporation, formerly the Municipal Committee of I3elhi. The trial court
held that it was the duty of the Municipal Committee to take proper care of buildings so
that they should not prove a source of danger to persons using the highway as a matter
of right, and granted decrees of Rs. 25,000, Rs. 15,000 and 20,000 respectively to the
plaintiffs in each of the three suits. On appeal to the High Court, although the decree for
Rs. 25,000 in one of the suits was maintained, the amount of Rs. 15,000 and Rs. 20,000
in the other two decrees were reduced to Rs. 7,200 and Rs. 9,000 respectively. The High
Court held that the principle of res ipsa loquitur applied to the case and considered that it
was the duty of’ the Municipal Committee to carry out periodical examination for the
purpose of determining whether deterioration had taken place in the structure of the
building and whether any precaution was necessary to strengthen it.

Ramaswami, I
The main question presented for determination in these appeals is whether the appellant
was negligent in looking after and maintaining the Clock Tower and was liable to pay
damages for the death of the persons resulting from its fall. It was contended, in the first
place, by .Mr. Bishen Narain on behalf of the appellant that the Higii Con.o was ’›vrong in
applying the doctrine of res ipsa loquitur to this case. It was argued that the fall of the
Clock Tower was due to an inevitable accident which could not have been prevented by
the exercise of reasonable care or caution. It was also submitted that there was nothing
in the appearance of the Clock Tower which should have put the appellant on notice with
regard to the probability of danger. We are unable to accept the argument of the
appellant
as correct. It is true that the normal rule is that it is for the plaintiff to prove negligence
and not for the defendant to disprove it. But there is an exception to this rule which
applies where the circumstances surrounding the thing which causes the damage are at
the material time e.xclusively under the ccntrol or management of the derendaef ui’ his

161
 servant and the happening is such as does not occur in the ordinary course of things
‘) without negligence on the defendant's part.

In our opinion, the doctrine of res ipsa loou!“tur applies in the circumstances of the
present case. It has been found that the Clock Tower was exclusively under the
ownership and control of the appellant or its servants. It has also been found by the High
Court that the Clock Tower was 80 years old and the normal life of the structure of the
top storey of the building, having regard to the kind of mortar used, could be only 40 or
45 years. There is also evidence of the Chief Engi.neer that the collapse was due to thrust
of the arches on the top portion and the mortar wss deteriorated to such an extent that it
was reduced to powder without any cementing properties. It is also not the case of the
appellant that there. was any earthquake or storm or any other natural event which was
unforeseen and which could have been the cause of the fall of the Clock Tower. In these
circumstances, the mere fact there was fall of the Clock Tower tells its own story in
’) raising an inference of negligence so as to establish a prima facie case agairist the
appellant.

We shall proceed to consider the main question involved in this case, namely, whether
the appellant, as owner of the Clock Tower abutting on the highway, is bound to
maintain it in proper state of repairs so as not to cause any injury to any member of the
public using the highway and whether the appellant is liable whether the defect is
patent or
latent. On behalf of the appellant Mr. Bishen Narain put forward the argument that there
were no superficial signs on the structure which might have given a warning to the
appellant that the Clock Tower was likely to fall. It is contended that since the defects
which led to the collapse of the Clock Tower were latent, the appellant could not be held
guilty of negligence. It is admitted, in this case, that the Clock Tower w'as built about 80
years ago and the evidence of the Chief Engineer is that the safe time limit of existence of
the building which collapsed was 40 or 45 years. In view of the fact that the building
had
passed :•ts normal age at which the mortar could be expected to deteriorate it was the duty
of the appelJant to carry out careful and periodical inspection for the purpose of
) determining whether, in fact, deterioration had taken place and whether any precautions
were necessary to strengthen the building. J"he finding of the High Court is that there is
no evidence worth the name to show that any such inspections were carried out on behalf
of the appellant and in fact, if any inspections were carried out, they were of casual and
perfunctory nature. The legal position is that there is a special obligation on the owner
of adjoining premises for the safety of the structures which he keeps besides the
highway. If th•se struciurcs fal i into dis›epa:•r so as to be o'‘ pot•ntial danger to the
passers by or to be a n.uisance, the o:vner is liabie to any one using the highway who is
injured by reason of the disrepair. In such a case it is no defence for the owner to prove
that h• neither knew
nor ought to have known of the danger. In other words, the owner is legally responsible
irrespective of whether the damage is caused by a patent or a latent defect.
 162

163
 Shyam Sunder v. State ofRajasthan
(1974) I SCC 69

Mathew, I
i his is an appeal, by special leave, against the judgment and decree of the High Court of
Rajasthan, setting aside a decree for recovery of damages under the Fatal Accidents Act,
1855 (hereinafter referred to as the Act).

2. Navneetlal was a resident of Udaipur. He was in the employment of the State of

Rajasthan and was, at the material time, working in the office of the Executive Engineer,
Public Works Department, Bhilwara as a Store Keeper. in connection with the famine
relief work undertaken by the department, he was required to proceed to Banswara. For
that purpose he boarded truck No. RJE 13 I own•d by the department from Bhilwara on
May 19, 1952 and reached Chittorgarh in the evening. Besides himself, there were Fateh
Singh, Fundilal and Heera Singh, the driver, clear.er and a stranger in the truck. On May
20, 1952, they resumed the journey from Chittorgarh at about 11 a. m. and reached
Pratapgarh in the same evening. The truck started from Pratapgarh to Banswara at about
10 a.m. on May 21, 1952. After having traveled for 4 miles from Pratapgarh, the engine
of the truck caught fire. As soon as the fire was seen, the driver cautioned the occupants
to jump out of the truck. Consequently, Navneetlal and the other persons jumped out of
the truck. While doing so, Navneetlal struck against a stone lying by the side of the road
and died instantaneously.

3. Parwati Devi, widow of Navneetlal brought a suit against the State of Rajasthan for
damages under the provisions of tire Act.

4. The plaintiff alleged that it was on account of the negligence of the driver of the truck
that a truck, which was not road-worthy, was put on the road and that it caught fire
which led to the death of Navneetlal and that the State was liable for the negligence of its
employee in the course of his employment.

5. The state contented that the truck was quite in order when it started from Bhilwara
and even when it started from Pratapgarh to Banswara and that if it developed some
mechanical trouble sucidenly which resuiied in its catching fire, the defendant was not
liable as there w'as no negligence on the part of the driver.

6. The trial court found that the act of the driver in putting the track on the road was
negligent as the truck was not road-worthy and since the driver was negligent, the State
w'as vicariously liable for his act. The court assessed the damages at Rs. 14,760 and
granted a decree for the amount to the plaintiff. It was against this decree that the
State
appealed to the High Court. .. . The High Court came to the conclusion that the plaintiff
had not proved by evidence that the driver was negligent, that the mere fact that the
truck caught fire was not evidence of negligence on his part and that the maxim res ipsa
loquilur had no application.

163
 17. We are inclined to think the leaned District Judge was correct in lnferring negligence
on the part of the driver. Generally speaking, an ordinary road-worthy vehicle would not
catch fire. We think that the driver was negligent in putting the vehicle on the road. From
the evidence it is clear that the radiator was getting heated frequently and that the driver
was pouring water in the radiator after every 6 or 7 miles of the journey. The vehicle took
9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh. The fact
that normally a motor vehicle would not catch fire if its mechanism is in order would
indicate that there was some defect in it. The District Judge found on the basis of the
evidence of the witnesses that the driver knew about this defective condition of the truck
when he started from Bhilwara.

18. It is clear that the driver was in the management Gf the vehicle and the accident is
such that it does not happen in the ordinary cour.se of things. There is no evidence as to
how the truck caught fire. There was no explanation by the defendant about it. It was a
matter within the exclusive knowledge of the defendant. It was not possible for the
plaintiff to give any evidence as to the cause of the accident.

19. In these circumstances, we think that the maxim res ipsa loquitor is attracted.

Effect o/rii‹zr/zii

It may well be that the correct analysis of the effect of the maxim res ipsa loquilur is that
it entitles (but does not require) the tribunal of fact to find for the plaintiff. A burden is
therefore cast upon the defendant by the application of the maxim. But the question
remains of what the defendant must do to discharge it. The view has been advanced in
some cases that the actual burden of proof on th.e issue of negligence shifts, so that the
defendant is required to show on a balance of probabil.•ties that the accident was not
attributable to his fault: “when a balance has been tilted one way, you cannot redress it by
adding an equal weight to each scale. The depr•ssed scale will remain down.” Now,
however, the Privy Council has unanimously approved the view that there is no siiift in
the formal burden of proof. This remains throughout upon the plaintiff, so that at th• end
of the day the court rriust ask itself what is the effect of the rebutting evidence by the
defendant upon the cogency of the initial inferer:ce of negligence whicii arose from the
mere happening of the accident. “Tiie res, which pre vious!y spot:e for itseif, may be
silenced, or its voice may, on the whole of thc evidence, become too w•-ak or mut•d”.
Certainly, the defendant will be exonerated if he shows how the accident actuaily
occurred and if this true explanation is consistent with due care on his part, and if he
cannot do this he will still escape liability if he shows that in no respect was there any
lack of care on his part or on the part of persons for whom he is responsible.

16 5
 Hay or Bourhill v. Young
[1943] AC 92

j The appellant, on October 11, 1938, was a passenger on a tramcar. She alighted from the
tramcar some 50ft, from the junction of the road along which the car was traveling and a
cross road. After alighting from the car she passed along its near side, round the front,
and then to the entrance to the driver's platform on the off-side. Here with the help of
the driver, she placed her heavy creel upon her back. At the same time a motorcyclist
passed between the near side of the tramcar and the footway and not having seen a
motcr car turning into the cross road by reason of his view being obscured by the
tramcar, he collided with the car, was thrown off his motorcycle, fell on his head and was
killed. The appellant saw nothing of the accident but merely heard the noise of the impact
of the two
vehicles. After the body of the motorcyclist had been removed, she approached the spot
and saw blood on the roa'dway. The injuries, alleged to have been sustained by the
appellant, were that she wrenched and injured her back by being s'ortled by the noise of
the collision and that she was thrown into a state of terror and sustained a severe shock to
her nervous system, through there was no reasonable fear of immediate bodily injury to
her. She was bout 8 months pregnant at the time and gave to a stillborn child on
November 18, 1938. The driver of the motorcycle was admittedly negligent against the
driver of the motor car, but the question was whether he owed any duty to the appellant
in that he ought, as a reasonable man, to have contemplated the likelihood of injury to
her in the circumstances.

Lord Thankerton
It is clear that, in the law of Scotland, the present action can only be based on negligence,
and “it is necessary for the pursuer in such an action to show' there was a duty owed to
him by the defendants, because a man cannot be charged with negligence if he has no
obligation to exercise diligence”. . ..

My Lords, I doubt whether, in view of the infinite variation of circumstances which may
exist, it is possible to lay down any hard and fast principle, beyond the test of remoteness
as applied to the particular case. . . In the observations I have to make, I shall confine
myself to the question of the range of duty of a motorcyclist on the public road towards
other passengers on the road. Clearly this duty is to drive the cycle with such reasonable
care as will avoid the risk of injury to such persons as he can reasonably foresee might
be injured by failure to exercise such reasonable care. It is now settled that such injury
inchides injury by shock, a!though no direct physical impact or lesion occurs. II then the
test of proximity or remoteness is to be appl'ed, I am of opinion :hat such a test iiivol yes
tb.at the injury must be within that which the cyclist ought to have reasonably
contemplated as the area of potential danger which would arise as the result of his
negligence, and the question in the present case is whether the appellant was with that
area. I am clearly of opinion that she was not, for the following reasons.

Although admittedly going at excessive speed, the cyclist had his machine under his
nnntr‹il, :in‹l thi.s at truce distinguishe.s fhi.s ca.sc frtnii such cases as Lliusc wlici c the
11luto1 has been left standing unoccupied and insufficiently braked, and has started
off on an
 168

16 5
 uncontrolled career. At the time of the collusicn with the motor he was well past the
tramcar and the appellant was not within the range of his vision, let alone that the tramcar
obstructed any view of her. The risk of the bicycle ricocheting and hitting the appellant,
or of flying glass hitting her, in her position at the time, was so remote, in my opinion,
that the cyclist could not reasonable be held bound to have cont•mp1ated it. ... but as
already stated the appellant's case is not now based on any fear of such possibilities,
but merely on the sound of the collusion. There is no suggestion that the volume of the
noise of the collision afforded any ground for argument, and I am clearly of opinion
that in this case, the shock resulting to the appellant, situated as she was, was not within
the area of potential danger which the cyclist shouid reasonably have had in view.

I am, therefore, of opinion that the appellant has failed to establish that at the time of the
collision, the cyclist owed any duty to her, and that the appeal fails. ‹'
Lord Russell
My Lords, the pursuer seeks :o recover a sum of $1.250 as reparation for injuries alleged
to have been sustained by her as the result of a collision between a motorcycle and a
motorcar, which occurred on October 1 1, 1938, at the junction of Colinton Road and
Glenlockhart Road, Edinburgh. The motorcycle was ridden by one John Young, who died
as a result of the collision, and the action was raised against James Young, his father and
executor dative. The foundation of the pursuer's claim is fault or negiigence alleged
against John Young, an allegation which postulates a breach by him of some duty owed
by him to the pursuer. Therefore, the first essential for the pursuer to establish is the
existence of a duty owed to her by John Young of which he committed a breach.

As between John Young and the driver of the motor car, John Young was admittedly
negligent, in that he was in breach of the duty which he owed to him of not driving while
passing the stationary tramcar, at sUCh a speed as would prevent him from pulling up in
time to avoid a collision with any vehicle ah:ch might come across the front of the
tramcar form Colinton Road into Glenlockliart Road; but it by no means follows that
John Young owed any duty to the pursuer. The facts relevant to this question seem to me
to be these. Tire pursuer was not in any z ay physically involved in collision. She had
been a passenger in the tramcar which had come from the direction of the city and had
stopped some IS or 16 yards short of the point of collision. She was standing in the road
on the off-side of the tramcar (wh.ich was at rest), with i:er back to the driver's platform.
Tire front part of the tramcar was i›eiw•en her and the colliding vehicles. She was
frightened by the ncise of the cGl Vision, but site had i io reason.able fear of immediate
bodily injury to herself.

In considering whether a person owes to another a duty a breach of which will render him
liable to that other in damages for negligence, it is material to consider what the
defendant ought to have contemplated as a reasonable man. This consideration may play
a double role. It is relevant in cases of admitted negligence (where the duty and breach
are admitteci) to the question of remoteness of damages, i.e., to the question of
compcnsation not to culpobility; but it is also relevant in testing the existence of a duty as
169
 including the noise of a collision and the sight of injury to others, and is not to be
considered negligent towards one who does not posses the customary phlegm.

In Hambrook v. Stokes the defendant’s lorry i•zas left unattended and improperly braked
at the top of a steep and narrow street with the engine running, with the result that it
started off by itself and ran violently down the hill, putting the plaintiff in fear for the
soSet y of her children whom she had just lefi and thereby causing a serious illness
arid ultimately her death. In such circumstances it might well be held that the
negligence complained of was a potent:al danger to all those in the way and that the
careless driver should have foreseen the likelihood of actual or apprehended injury
to anyone in the street down which the lorry might run and the possibility of illness
being produced in a mother from fear that the run away car would injure her children.

The position of the defender in the present case is more favourable. The rider of the cycle
had not left it tc career at its own will. He was always in control and his negligence
was not to all those in the highway but only to anyone turning or intending to turn in
front of him into a side road. The pursuer was not such a person and the only
allegation of negligence which I can find in the condescendence is not towards her,
but, as I understand it, towards traffic proceeding across or at any rate down the road
towards the cyclist. So far as the pursuer is concerned she complains of nothing but
the disturbance caused by an accident to the cyclist himself, and in her claim confines
her allegation to a general averment against him of negligence resulting in a collision
with a motorcar.

In order, however, to establish a duty towards herself, the pursuer must show that
the cyclist should reasonably have foreseen emotional injury to her as a result of his
negligent driving, and, as I have indicated, I do not think she has done so. If I am right
in thinking that the pursuer has established no duty towards herself in the deceased man
and no breach of any duty, she must fail

King v. Phillips
[1953] ! QB 429

The plaintiffs were Michael Charles King, aged five or six years, who sued by his
mother, Kathleen Clara b.ing, and tire mother herself. On August 2, 195 I, the infant
plainti If, URaCCompanied by 1?.is moth.cr or any aduit person, was on a tricycle on tb.•
highway at Birstnll Road where it joir:ed Greenfield Rcad, Tottenham, when a taxicab
driven by Henry King, the servant or agent of the defendant, stopped at the hrst house in
Greenfield Road beyond the junction with Birstall Road to pick up a passenger. The
infant plaintiff asked King whether he was going to take someone for a ride, and them, so
far as King saw, disappeared. The passenger entered the cab, and King resumed his
position in the driving seat, started the engine of the cab, looked round, and thinking that
the infant plaintiff had gone some minutes before, began to back the cab. The infant
plaintiff, who was just behind the cab, was knocked off the tricycle which was pushed
a short distnncc. Hearing a shout King got down and found the tricycle damaged and
the infant plainti ff running towards his home some seventy or eighty yards distant on
the

175
 other side of Birstall Read. He had suffered some grazing of his side, and for a month he
suffered from nightmares and loss of appetite. At the time of the accident the adult
plaintiff was in her house and was looking out of a window when she heard a scream
which she identified as that of the infant plaintiff. She saw the cab backing into t6e
tricycle, and then saw tfie tricycle under the cab, but she could not see the infant
plaintiff. She ran into the road, met the infant plaintiff, and took him indoors. She
suffered from shock.

The plaintiffs claimed that their injuries and shock were due to King's negligence. The
defendant contended that there was no evidence of any breach of duty towards the
adult plaintiff and that the ‹iamage consequent on her special susceptibility to st:ock in
so far as she was so susceptible was too remote.

McNeir, J
In the circumstances of this case it cannot be held that the driver of the taxicab (or, to
adopt Lord Wright’s expression, the reasGnable hypothetical observer) could reasonably
have anticipated that tc back the cab in the way in which it was backed, admittedly
negligently vis-à -vis the small boy, would cause the injury complained of or any injury to
the boy's mother in her home seventy or eighty yards or so away. The mother, in my
judgment, was wholly outside the area or range of reasonable anticipation, and if I am
asked where the line is to be drawn I should humbly reply in the language of Lord
Wright, used adinittedly in a slightly different context, that it should be drawn: “.. .where
in the particular case the good sense of the jury, or of the judge, decides.”

It seems to me to be contrary to common sense to say that a taxi driver ought

reasonably to have contemplated that, if he backed his taxi without looking where he
was going, he might cause injury by shoci‹, or any other injury, to a woman in a house
some seventy or eighty yards up a side street.

• Rescuers

In Chadwick v. Briti›-h Railwciys Boa-d, a passer by who assisted the official rescue
teams at the scene of a serious rail disaster had suffered nervous shock and eventually
committed su:cide. I-ie did not know any of the victims personaiiy, but he witnessed
horrific sights. The case rep eseiits an extcnsion of liability *or new ous shocn which
applies only to rescuers who come upon an accident aiid assist :'n rescuing in the
immediate aftermath. This is an example of the special consideration which the law
affords to rescuers.

EXPANSION OF LIABILITY IN McLOUGHLIN CASE

In all the successful claims, the plaintiffs who experienced fears for the safety of loved
ones or cullcagucs (or i:i tile 1 escue cascs, re5cue victims), had witnessed the scene of
the accident throi:gh their own senses. In McLooghlin v. 0 ’Brian, however, the courts
were

172
 prepared to extend liability to a situation in which the plaintiff only saw her family after
they had been removed from the scene of the event to a hospital casualty department.

.McLoughlin v. O'Brian
[1983] AC 410

At the time of a road accident involving her family, Mrs. McLoughlin was at her home
two miles away. An hour later she was informed of the accident and driven to a
hospital where her family had been taken. She saw her daughter covered with dirt and oil
and with her face cut. Her husband was in a similar condition and her sori very badly injured
and screaming. Her other daughter had died almost immediately. What she saw caused her to
suffer from organic depression and a personality chan.ge. Negligence proceedings were
brought against the defendants who had negligently caused the accident.

The House of Lords unanimously held that the plaintiff was owed a duty of care by the
defendants. This clearly involved some extension of existing law, as Mrs. McLoughlin
was not at the scene of the accident. However, the reasoning of their Lordships varied.
Lords Bridge and Scarman aciopted a test based on foreseeability alone. In asserting
reasonable foreseeability, space, time, distance, the nature of the injuries and the
relationship to the victim were factors to be weighed, but not legal limitations. Policy
was rejected as inappropriate for the court and any floodgates problem dismissed.

Lords Edmund-Davies and Wilberforce were of the opinion that policy issues were
justiciable by court. Lord Wilberforce stated that there were three elements in a claim.
The first was the relationship between the plaintiff and the person suffering injury.
Persons with close family ties would satisfy this test. Mere bystanders at an accident
would be owed no duty. Relationships in between would have to be scrutinized on a
case- by-case basis. The second factor was that the plaintiff had to be proximate to the
accident in terms of time and space. To be successful the plaintiff had to be within sight
or sound of the accident or come upon its immediate aftermath (as Mrs. McLoughlin did).
Third, shock resulting from being told by a third party of the accident would not be
compensated. The question of whether simultaneous television would suffice as sound or
sight was left open.
........-.. .. . . . .. . ... .. ........ . . .... ... .... ... ...

RESTRI CTIONS O.N THE SCOPE OF THE DUTY

When the House of Lords gave further detailed consideration to the scope of liability for
nervous shock in Alcock v. Chief Constable of South Yorkshire certain restrictions were
introduced, and some of the unanswered questions in McLoughlin v. O'Brian were
clarified.
.. .................- - --- ....- - - - - - --......... -----.-- .. -- - ..- - - - - - - - - --

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 Alcock v. Chief Constable ofsouth Yorkshire Police
[1991] 4 AH ER 907

On 15 April 1989 the FA Cup semi-final was due to be played between Liverpool and
Nottingham Forest at Hillbcrough stadium in Sheffield. The match was a sell-out and
television cameras were at the ground to recor0 the football for transmission later that
evening. The match was halted after six minutes as the weight of numbers of people in
the Leppings Lane pens had created such pressure that spectators were being trapped
against the wire separating the pens from the pitch. Some 95 people died as a result of
their injuries and another 400 needed hospital treatment. Thousands witnessed the
horrific events from other parts of the ground and millions more witnessed what was
happening on live television broadcasts or heard the news on radio. Many of those
watching or listening had loved ones at the match. Inevitable, a large number of people
suffered psychological disorders and some cases within well-accepted categories of
nervous shock were settled. Sixteen test cases were brought to determine whether the
defendant (the Chief Cons:able of the poli‹ie force responsible for policing the ground)
) owed ihem a duty of care. These cases were representative of 150 similar claims.

Four of the plaintiffs had actually attended the match and witnessed th• events and had
friends or relatives in the Leppings Lane pens. One plaintiff was outside the ground and
watched the events on television in a coach. He later identified the body of his son-in-law
in a mortuary. Nine of the plaintiffs witnessed the disaster on television and had loved
ones at the match. One plaintiff heard the news on the radio and later saw recorded
j highlights on television. The final plaintiff heard the news while out shopping, heard the
news on the radio some two hours later and at 10 p.m. saw recorded television. The
plaintiffs had all been examined by the same medical expert and the trial judge accepted
his evidence that they were all suffering from at least one psychiatric illness.

The issue for the court was therefore whether the defendant owed each plaintiff a duty of
care. Two issues were pertinent as to proximity. First, the necessary degree of
relationship between the plaintiff and the person in danger. Second, the question of
geographical proximity te the accident. The question of simultaneous television
transmission arose for decision for the first time.

On nec•ssary relationship, the first instance judge held that parents, spouses and siblings
of a victim had a close enough relationship to be foreseeable. The Court of Appeal was
split on this point. Stocker and Nolan L, JJ were prepared io accept tiiat a person who feil
outside the accepteéi categories of parent-chiid, spouse or ›•scuer, couid claim,
provided they could establish a sufficient degree. of reiationship and care. Parker, LJ
agreed that the claim was based on relationship and care. On this basis the accepted
categories had a presumptive claim, but the presumption could be rebutted if the
necessary degree of care
was not present. Thus, spouses who were separated and hated each other could have the
presumption in their favour defeated. The result in the instant case was that all persons
who did not fall within the parent-child or spouse categories had their claims rejected as
no evidence had been led to establish the rice.e.ssory degree of care required, An example

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 of such a relationship would be where a grandparent had brought up a child from being a
baby.

On the question of geographic-a/ prozimiy, the trial judge considered that all persors in,
or immediately outside the stadium were sufficiently proximate in terms of time and
space. Those persons who witnessed the scenes on television and had the necessary
degree of relationship could also claim. Plaintiffs who were told of the disaster or heard it
on the radio had no claim. The Court of Appeal, however, took the view that those
persons who suffered shock as a result of watching live television had no claim. While it
was reasonable foreseeable that television pictures would be broadcast, the intervention
of a third party between the accident and thee plaintiff meant that television was not
equivalent to sight or sound of the accident.

Ten of the original plaintiffs appealed to the House of Lords. The basic argument for
their counsel was that the sole test for duty in nervous shock cases is whether such
illness was reasonable foreseeable. The House of Lords rejected this argument.

Lord Keith
As regards the class of persons to whom a duty may be owed to take reasonable care to
avoid inflicting psychiatric illness through nervous shock sustained by reason of physical
injury or peril to another, I think it sufficient that reasonable foreseeability should be the
guide. 1 would not seek to limit the class by reference to particular relationships such as
husband and wife or parent and child. The kinds of relationship which may involve close
ties which leads to mental disturbance when the loved one suffers a catastrophe. They
may be present in family relationships or those of close friendship, and may be stronger
in the case of engaged couples than in that of persons who have been married to each
other for many years. It is common knowledge that such ties exist, and reasonable
foreseeable that those bound by them may in certain circumstances be at real risk of
psychiatric illness if the loved one is injured or put in peril. The closeness of the tie
would, however, require to be proved by a plaintiff, though no doubt being capable of
being presumed in appropriate cases. The case of a bystander unconnected with the
victims of an accident is difficult. Psychiatric injury to him would not ordinarily, in my
view, be within the range of reasonable forcseeabili(y but could not perhaps be entirely
excluded from it if the circumstances of a catastrophe occurring very close to him were
particularly horrific.

In the ease of those viithin the iphere of reasonable foreseeability the proximity factors
mentioned by Lord Wilberforce in McLoughlin v. O'Brian must, however, be taken into
account in judging whether a duty of care exists. The first of these is proximity of the
plaintiff to the accident in time and space. For this purpose the accident is to be taken to
include its immediate aftermath, which in HcZoughfiZi’s case was held to cover the scene
at the hospital which was experienced by the plaintiff some two hours after the accident.
In .men.srh v. UoJev [ 1984] 54 ALR 417 the plaintiff saw her injured husband at the
hospital to which he hnd been tnken in severe pain before and between his undergoing a
series of emerge.ncy nperatinns, and the next day stayed with him iii *Ae intensive care

176
 unit and thought he was going to die. She was held entitl•d to recover damages for the
psychiatric illness she suffered as a result. Deane, I said.
“. . .the aftermath of the accident extended to the hospital to which the injured
person was taken and persisted for so long as he remained in the state produced
by the accident up !o and including immediate post-accident treatment...Her
psychiatric injuries were tire result of the impact upon her of the facts of the
3 accident itself and its aftermath while she was present at the aftermath of the
accident at the hospital.”

As regards the means by which the shock is suffered. Lord Wilberforce said in
M.Loxgñ firi’s case that it must come through sight or hearing of the event or of its
immediate aftermath. He also said that it was surely right that the law should not
compensate shock brought about by communication by a third party. On that basis it is
open to serious doubt whether Hevican v. Ruane [ 1991] 3 All ER 65 and Raveuscroft v.
-) R Transatlantic [ 1991] 3 All ER 73 were correctly decided, since in both of these cases
the effective cause of the psychiatric illness would appear to have been the fact of a son's
death and the news of it.
.. .. .. . .... .. ....... ......... - .. ... . ..... .... . ...... ........... ..... ...

TRINITY TEST OF ALCOCK

The House of Lords in Alcock case evolved a three feature test is judge whether duty of
care exist in nervous shock cases. Those three factors are as follows:

The close tie of love and affection

A sufficiently close relationship of love and affection with the primary victim to make a
reasonably foreseeable that the plaintiff might suffer nervous shock if he apprehended
that the primary x ictim had been injured or might be injured. This means that the
potential duty is not restricted to particular relationships such as spouses or parent-child.
In spouse and parent-child cases there would appear to be a rebuttable presumption of
such a reiationship. In order relationships, such as siblings or engaged couples, it will be
necessary for the plaintiff to lead evidence to prove the existence of such a relationship.

Pro:ximity
Proximity to the accident, or its immediate aftermath, was sufficiently close in terms of
time and space. Sight or sound of the accident will continue to suffice. The House
refused to lay -down .a strict definition of imm•diate aftermath. Lord Keith appeared to
approve
ihe Australian case o* Jaensch v. Co)fe y, wfi-re the aftermath of the accident continued as
long as the victim remarried in the state produced by the accident, up to and including
immediate post-accident treatment.

E/ie streams by which the shock was sustoiii ed

He suffered nervous shock through seeing or hearing the accident or its immediate
aftermath. A person who was informed of the accident by a third party would have no
claim. A person watching simultaneous television would normally have no claim as the
broadcasting guidelines prevent the showing of suffering by rccugniziible iiidividuals. If
such pictures were shown, then the transmission would nurtnall v be regarded as a iiovus

177
 actus inferveniens. There may be cases, however, where viewing simultaneous television
may be treated as equivalent to sight and sound of thee accident. An example is given of
a televised hot-air balloon event with children in the balloon which suddenly bursts into
flames.

DISTINCTION BETWEEN ‘PRIMARY’ AND ‘SECONDARY’ VICTIMS

Since Alcock the courts have consistently taken a restrictive approach to find a duty of
care in relation to nervous shock. In Page v. Smith a distinction was drawn in the House
of Lords between primary and secondary victims. A primary victim is person who is
‘participant’ in the accident described by Lord Oliver as someone involved in an acciden.t
who suffers from what he sees or hears. Such a person is usually well within the range of
foreseeability. A secondary victim is someone who is not a direct participant but who
merely witnesses an accident or arrives in the aftermath of an accident. In its Lordship's
view such a person is almost always outside the range of foreseeable physical injury and
it follows that there are more limited circumstances in which a secondary victim can
succeed in an action for psychiatric injury. It is secondary victims who are required to
satisfy the additional criterion set out in Alcock which requires proof of a special
emotional tie with a person injured in the accident.

Rescuers are probably in a less favoured position since the distinction between primary
and secondary victims has been clearly enunciated. In Page v. Smith there is nothing in
any of the speeches to suggest that whatever the extent of their participation rescuer
should automatically be regarded as primary victims. Everything depends on the exact
circumstances of the case.

Page v. Smith
[1995] 2 All ER 736

The plaintiff’ was driving his car when he was involved in an accident caused by the
defendant's negligence. He suffcrcd no physical injury rind no compensatnble nervous
smock. His claim was for the activation of his myalgic encephaiomyelitis (ME). He had
suffered form CIE for a number of years but at the time of the accident was in rem.ission
and clairried that the accident, described as one of mod•st severity, had reactivated the

The House of Lords held (Lords Keith and Jauncey dissenting) that in primary victim
cases the duty of care was established by the reasonable foreseeability of physical
damage to the plainti ff. Nervous shock or psychiatric damage was encompassed within
this definition of physical damage and no distinction was to be drawn between
psychiatric damage and traditional personal injuries. The control factors which were
necessary in secondary victim cases were not necessary whc:re Uie plaifitiff was a primary
v ictlm. ’1’he plaintiff's physical proximity to the accident dispenses with the need for rules
limiting the ambit of the duty of care. What will be crucial in primary victim cases i5 rlOI

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P It has also long been settled that an action lies for shock resulting in physical
injury when the plaintiff has been placed in reasonable fear of immediate injury
to himself as the result of the neg1iger.ce of the defendant.

P An action lies for shock caused by the apprehension or the actual sight or
sound of immediate physical injury to a close relative or just possibly in
very exceptional cases, any person or object.

P It is now clear since the decision of the House of Lords in 1982 in 3fr£oughfin v.
O'Brian that there is no principle or policy or rule of law which prevents damages
being awarded to a plaintiff who has not seen or heard the accident in
question, but who has suffered reasonably foreseeable nervous shock by
experiencing its immediate aftermath

180