Law of Tort

Ian Yeats Paula Giliker Mary Luckham

2005

LLB BSc Accounting with Law / Law with Accounting BSc Management with Law / Law with Management

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This subject guide was prepared for the University of London External Programme by: Ian Yeats, MA (Aberdeen), BCL, MA (Oxford), Barrister, Senior Lecturer in Law, Queen Mary College, University of London. Paula Giliker, MA (Oxon), BCL, PhD (Cantab), Barrister at Law, Fellow and Senior Law Tutor, St Hilda's College, Oxford. Mary Luckham, LLB, Assistant Director, University of London External Laws Programme. This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.

Publications Office The External Programme University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londonexternal.ac.uk Published by the University of London Press © University of London 2005, reprinted 2006 and June 2007 (E9239) Printed by Central Printing Service, University of London. Cover design by Omnis Partners, Glasgow All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.

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Contents

Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12 Chapter 13

Introduction Negligence: basic principles Negligence: duty of care and breach of duty Negligence: causation and remoteness of damage Negligence: special problems Negligence: particular relationships Breach of statutory duty Particular statutory regimes: strict liability Intentional injuries to the person Interference with economic interests The law of nuisance and the rule in

5 13 17 31 51 75 89 99 119 139 151 175 201

Rylands v Fletcher
Defamation Miscellaneous

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Chapter 1 Introduction

Contents
Introduction 5 1.1 1.2 1.3 1.4 1.5 Definition, aims and functions of tort 6 Sources 7 Recommended reading 9 How to use this subject guide 10 The examination 10

Introduction
Tort is a branch of the civil law (as opposed to criminal law) based on a claim that the defendant has caused injury or loss to the claimant by breaking a relevant obligation imposed by the general law. This definition tells you nothing about what conduct is tortious. You will understand that only when you know what counts as injury or loss and what obligations the law imposes. Very broadly, tort law is one of the methods by which people who have suffered injuries are compensated. It deals with whether losses should lie where they fall or should be transferred to someone thought to be ‘to blame’ (not necessarily in a moral sense) for what has happened. Of course the person ‘to blame’ will often be insured or will be a large company or government department and so the losses will often be spread more widely. For example, when a person is injured by a careless motorist, the motorist’s insurance company will pay the damages and the ultimate costs of the accident will fall on the general community who pay insurance premiums. Broadly speaking, the law of tort took its present shape in the nineteenth century although of course it has developed considerably since then. Those interested in a historical introduction may refer to Lunney and Oliphant pp.1–17; Winfield and Jolowicz pp.44–50.
On the impossibility of a definition of tort see Murphy (2003) p.3: Winfield and Jolowicz (2002) p.4; on the aims or functions of tort see Winfield and Jolowicz (2002) pp.1–17; Markesinis and Deakin (2003) pp.1–7 and 37–41.

Objectives of this subject guide By the end of this subject guide, you should be able to: describe the relationship between tort and certain other branches of law explain the relationship between different torts and the bases of liability in each tort identify the principal policy difficulties with the contemporary law of tort
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property interests. What interests are protected by the law of tort? The law of tort protects to different degrees and in different ways the physical integrity of the person. But tort and other forms of illegality do not wholly coincide. in itself). Some action is tortious but is not criminal or illegal in any sense other than being tortious: conversely some conduct is illegal (e.1.e. consumer protection legislation): liability does not depend on proof of fault on the defendant’s part based on negligence by defendant based on intentional conduct by defendant based on the ultimate motive or purpose of the defendant (rare in English law). criminal): a person who deliberately strikes someone else commits both a tort and a crime. the tort of defamation (see Chapter 12) protects the distinct interest of reputation: in respect of some elements liability is strict and in respect of others liability depends on proof of fault. Relations between tort and other forms of liability Some tortious conduct is at the same time illegal in some other sense (e. For example. What kind of conduct by the defendant accompanied by what kind of mental state is tortious if it produces an invasion of a relevant interest? Liability may be: strict (e. but one of the claimant’s rights has been interfered with. In such cases the tort is said to be actionable per se (i. reputation and economic interests. The relationship between tort and breach of contract is also of interest. In many torts material damage has to be caused before there can be an action.1 Definition. but sometimes by an order to stop – that is. In others there is no need for material damage to the claimant.g. damages. aims and functions of tort Structure of tort There is no single principle of tort law but a series of different torts with different origins and purposes They protect a number of different interests against different kinds of interference (usually by compensation for the consequences – that is. such as a person’s right to privacy.Law of tort identify and describe the sources of law relevant to tort. criminal or unlawful in a public law sense) but is not tortious even if it causes loss or damage (this point is developed more fully in Chapter 7).g. It is for instance an actionable tort deliberately to touch another person (subject to many defences) even though no damage is caused (see Chapter 9) and to defame someone in writing even though no damage is caused (see Chapter 12). In studying each tort (and even each element in each tort) you should ask yourself: what interests are being protected and against what sorts of interference (see below). an injunction).1 1. 6 University of London External Programme .g. There are arguments about how far it should protect other interests. 1. The distinction between the two has usually been Note: ‘tortious’ is pronounced ‘torshus’.

the developments in relation to economic loss. In answering a question. This process is continuing and you should think about the direction in which the courts are moving as well as the content of decided cases (see.20–43 and Markesinis and Deakin pp. I am liable to compensate you because the law imposes a duty to drive carefully and not because I have promised you that I will do so).1. life insurance) or by potential defendants (e. Examples are: How should the law of tort relate to alternative sources of compensation? (See Winfield and Jolowicz pp. 1. Other cases are the source of important principles: the judgments are discursive.g.) The main sources are the social security system and insurance either by potential claimants (e. in Chapter 5). Breach of contract involves the breach of an obligation voluntarily undertaken by the person in breach (if I fail to deliver the car that you have bought from me.2 Policy questions You should consider as you study this subject a number of policy questions related to the purposes to be served by the law of tort. This distinction is however not watertight.41–44). You are not expected to know the details of these systems but their existence affects (and perhaps should affect more) the content of tort law. You should also consider how appropriate judge-made law is as a source of new developments. Tort involves the breach of an obligation imposed by the general law (if I knock you down by carelessly driving my car.2 Sources In your study of this subject. discuss issues of University of London External Programme 7 . Compare the willingness of the courts to be creative in relation to economic loss (see Chapter 5) and their refusal to be so in relation to environmental protection (see Chapter 11).44–54. How far should liability be based on fault? (See Markesinis and Deakin pp. 1. you have to be able to judge how a court might decide a future case as well as describing what has been decided in past cases. In particular in recent decades a whole area of tort law has developed based on a voluntary assumption of responsibility (see liability for misstatements in Chapter 5) and this has blurred the traditional distinction between tort and contract. Some cases are merely illustrations and applications to particular facts of wellestablished principles: they can be used as illustrations in handling problem questions in examinations. for example. I am liable to compensate you because I have failed to carry out my promise). and the relation between different sources of compensation is relevant to the calculation of damages (see Chapter 13). as in advising a client or employer.Chapter 1 Introduction explained in this way.g. car insurance). To what extent should public bodies be liable for failures in regulatory systems? (See Chapter 5). Cases Most of the law of tort is judge-made and is to be found in reported cases. you will have to consider the following sources of law.

The ability to identify important cases increases with experience. The tort of breach of statutory duty (Chapter 7) might be developed to provide remedies for certain infringements of community law. In order to provide compensation for an interference with Convention rights the courts may do one of the following: They may apply an existing tort.Law of tort policy and suggest lines of development for the future. They may modify an existing tort. (b) The courts are however themselves public authorities: they therefore have to take account of the ECHR in developing the law even in tort actions between private citizens or private bodies such as companies to ensure that the United Kingdom is not in breach of the ECHR. These cases have to be studied with more care. It is convenient to set out now some relevant general principles: in some respects the ECHR has introduced new ways of thinking into the domestic law. but you can be guided by the way in which particular cases are discussed in the textbooks. (c) The ECHR is based on a series of Convention rights of a general kind that have to be respected. some provide additional protection over a wide field (e. Occupiers’ Liability Acts 1957 and 1984). You will be familiar with the general principles of the ECHR from your study of the British Constitution. (a) Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. If a public authority in England kills someone (contrary to Art 2) or tortures someone (contrary to Art 3) this plainly falls within the existing English law of tort. You will find references to the ECHR at various points in this guide. Consumer Protection Act 1987). This is perhaps most obvious in relation to the tort of defamation (Chapter 12) and Art 10 ECHR (freedom of expression). Impact of European Community law The impact has been slight on the law of tort. This section therefore has its greatest impact where the defendant to a tort action is a public authority such as a local council.g. Art 2 requires the state to provide protection against being killed and Art 3 requires the state to provide protection against inhuman and degrading treatment. Statutes Some statutes replace or partly replace areas of the common law (e. An existing English tort may have to be 8 University of London External Programme . For example.g. This is an unfamiliar kind of classification in English law. The Consumer Protection Act 1987 gives effect to a Community directive and there is potential for development in employers’ liability and environmental protection. some effect minor amendments only. Impact of the Human Rights Act The Human Rights Act 1998 gave effect in domestic law to the European Convention on Human Rights (ECHR) with effect from October 2000. It is now a much more pervasive source of the law of tort than is Community law.

and K. See in particular Chapter 5. 2004) second edition [ISBN 0406959463]. and K. (London: Sweet and Maxwell. Rogers. A stimulating socio-legal work which addresses many of the policy issues (see ‘Policy questions’ on page 7) is: Cane. N. and R.) Winfield and Jolowicz on Tort. 2002) sixteenth edition [ISBN 0421768606]. (ed. Atiyah’s Accidents. Oliphant Tort Law. 2000) fifth edition [ISBN 0406063265]. Weir. 2004) sixth edition [ISBN 0521606101]. Shorter and/or more introductory books include: Giliker. 2003) eleventh edition [ISBN 0406946825].3 Recommended reading There are several textbooks of different lengths on the law of tort. Textbook on Tort. 2004) second edition [ISBN 0421859806]. A Casebook on Tort. University of London External Programme 9 . 2003) [ISBN 0333963792]. This is discussed more fully in Chapter 7.H. (Basingstoke: Palgrave Macmillan. 1. and the court has a discretion to decide whether an award is necessary in a particular case. (Cambridge University Press. Howarth and Matthews Tort: cases and materials. Bagshaw Tort Law. Useful collections of cases and materials: Hepple. (Harlow: Longman. J. (London: Sweet and Maxwell. (Oxford: OUP 2003) second edition [ISBN 0199260559]. Oliphant Torts. (London: Butterworths. 2003) fifth edition [ISBN 0199257124 (hbk). Text and Materials. P. These give an overview of the subject and its role but are not sufficiently detailed to serve as textbooks. Street on Torts. A. (London: Butterworths. 2005) second edition [ISBN 027368678X]. (Oxford: Clarendon Press. Beckwith Tort. and S. It is suggested that you use at least one of these: Markesinis and Deakin Tort Law. Reference may also be made to: Howarth. McBride. (London: Sweet & Maxwell. 0198762933 (pbk)]. D.V.Chapter 1 Introduction modified in order to provide the necessary protection. W. Lunney. Murphy. 2004) tenth edition [ISBN 0421878800]. Mullis. It should be noted that section 8 of the Human Rights Act 1998 provides that a person is not entitled to an award of damages merely because a public authority has acted unlawfully under the ECHR. These are quite lengthy and explore topics in greater depth and with more background than is essential. and also cover topics which are not included in your syllabus. M. (London: LexisNexis. Compensation and the Law. T. They may create a new right of action in damages: this is analogous to the existing tort of breach of statutory duty. P. although it is not suitable as a textbook.

It is not wise to try to learn these at once. However. More detailed guidance is given in the chapters of this subject guide where the law is in a state of development than in those where the law is fairly well settled. the University can alter the format. Most important Examination questions DO NOT ask you to write down everything you know about a topic. The introductory chapters of the books (and this chapter of the guide) deal with a number of issues. style or requirements of an examination paper without notice. You are likely to be asked to answer four questions in the examination from a selection of about eight. Many cases are decided each year on this subject: you will find helpful notes on recent cases in the leading academic journals such as: the Modern Law Review (MLR) the Law Quarterly Review (LQR) the Cambridge Law Journal (CLJ). Problem questions You will be given a set of facts and either asked to advise one or more of the characters or to discuss issues of tortious liability which 10 University of London External Programme . then.Law of tort It would be sensible to buy one of the standard textbooks referred to and.5 The examination Important: the information and advice given in the following section are based on the examination structure used at the time this guide was written. Such articles also frequently draw attention to the way in which particular problems are dealt with in other countries with similar problems. They are of two kinds. Your aim should be to answer the questions that the examiners have asked. some of the issues raised will make more sense. 1. You should be able to identify from this reading the most important cases in more detail (see also under ‘Sources’ on page 7). Judges increasingly make reference to such articles in developing principles in new or difficult areas of law. It would be sensible to read through each chapter of this guide to identify the main topics with which it deals and any particular problems or policy issues and then to read the relevant sections in the textbooks. The cases in this guide are not necessarily listed in order of importance: there are of course many more relevant cases than are referred to here. The introductory chapters should be considered more carefully when the whole subject has been digested. especially if you do not have access to a library. one of the casebooks. and use only material relevant to those questions. It is intended to direct you through the subject and to give an indication of how to tackle each topic.4 How to use this subject guide This subject guide is not a textbook or even an introduction to the subject. These should be read quickly now so as to get an idea of what the subject is about: some questions can be identified (see ‘Policy questions’ on page 7) which should be kept in mind as the substance of the subject is studied. we strongly advise you to check the instructions on the paper you actually sit. These journals may also contain general articles of interest. Because of this. 1.

You must identify the precise issues(s) raised and direct your answer to it (them). Before writing. You may expect to have to answer questions that involve more than one tort or involve issues that are discussed in different chapters. University of London External Programme 11 . you should analyse the facts carefully to work out the relation between the parties and the legal issues to which they give rise. You can look at previous years’ exam questions and examiners’ comments on them in the University of London External Programme Laws web site. to analyse the reasons which lie behind particular areas of law and so forth. You do not literally set out your answer in the form of advice but you must remember that you are solving a problem and not simply writing an account of a particular area of law. You can then select the legal principles which are relevant and marry the facts and the legal principles into a logically structured answer. Most problems contain at least some issues where the law is not entirely clear. Example of an examination question ‘The role of strict liability in the law of tort should be greatly increased.Chapter 1 Introduction arise. In both kinds of question the most common error is irrelevance. Problem questions seldom relate only to material in a single chapter.’ Discuss. You must avoid simply identifying the subject matter of the problem (for example. to compare one topic with another. to suggest reforms and improvements. you have to identify these and suggest the solution to which you think a court will be likely to come and give your reasons for doing so. ‘negligent mis-statements’) and writing all you know about it. They ask you to write critically about a particular topic. In this guide specimen questions are not found at the end of every chapter. Essay questions Such questions rarely ask for a straightforward account of a particular topic. Why ‘critically’? Because the examiners want to see if you understand the subject well enough to write about it as a lawyer would – sometimes a particular point of view has to be argued and sometimes you have to write from both sides of the issue.

Law of tort Notes 12 University of London External Programme .

This chapter explains the basic structure of the tort and describes the organisation of the material in subsequent chapters. you should be able to: understand that the tort of negligence is structured on the concepts of duty of care.1 Structure of the tort Negligence of course means carelessness.3 Structure of the tort 13 Organisation of the chapters 14 Policy questions 14 Introduction Negligence is the most important modern tort: its study should occupy about half the course.1 2. The claimant will in some circumstances be the only person to whom the duty was owed (a surgeon and patient for example): in others University of London External Programme 13 .Chapter 2 Negligence: basic principles Contents Introduction 13 2. negligence means more than heedless or careless conduct. It is not enough to show that defendant was careless: the tort involves a breach of duty that causes damage that is not too remote. It is important because of the great volume of reported cases and because it is founded on a principle of wide and general application. Each of the emboldened words will in due course require detailed examination.2 2.’ (Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25) This sentence encapsulates the traditional tripartite structure of negligence as a tort. breach of duty and resulting non-remote damage indicate some of the social and policy questions that have influenced the development of the tort of negligence. whether in omission or commission: it properly connotes the complex concept of duty. The successful claimant in a negligence action must establish three propositions: (a) that the defendant owed the claimant a duty of care. but in 1934 Lord Wright said: ‘In strict legal analysis. Learning outcomes By the end of this chapter and the relevant readings. 2. breach and damage thereby suffered by the person to whom the duty was owing.

causation and remoteness in that order. but they overlap to a great extent. An issue such as the scope of liability for economic loss has sometimes been regarded as part of the duty question and sometimes as part of the remoteness of damage question. but they have in part to do with conflicting policy objectives. but not exclusively. This often means that some of the most complex issues are dealt with at great length under the heading of ‘duty of care’. and that of employers towards their employees. The reasons for this are complex. liability for failures to take action to avoid harm. 2.3 Policy questions The law of negligence has undergone enormous change and development in the past 50 years. personal injuries or damage to property. Chapter 5 deals with more complex areas that have been the subject of much litigation in recent decades: liability for careless advice or information. 2. Occasionally. a court will indeed explicitly organise its judgment under these three headings. This in turn leads to inconsistency and uncertainty. Most textbooks set out the questions of duty. Mostly this has involved an expansion of liability.Law of tort the claimant will be a member of a very large and possibly illdefined class of persons to whom the duty was owed (a car driver and other road users). They are convenient for the purpose of explaining the law. liability for psychiatric injuries and for purely economic damage. This means that the defendant’s conduct fell below the standards that the law demands. by cases involving careless conduct giving rise to death. although a duty was owed. (b) that the defendant broke the duty of care. There is an example in Al-Kandari v Brown [1988] QB 665. breach. You will find other examples where a single set of facts can be analysed in different ways. (c) that as a result of the breach the claimant suffered damage of a kind that the law deems worthy of compensation. Other textbooks are organised differently. referred to in Chapter 4. liability for failures of supervisory or regulatory functions. but quite often the courts have retreated and cut back on the extent of liability. Chapter 6 deals with the liability of two particular categories of defendants: that of occupiers towards those on their premises. illustrated mainly. it had not been broken.2 Organisation of the chapters Negligence is now a tort of great size and complexity. In other cases however a judge might on the same set of facts deny liability on the grounds that no duty was owed and another deny liability on the grounds that. In the chapters that follow in this guide the material on negligence is organised in the following way: Chapters 3 (duty and breach) and 4 (causation and remoteness of damage) offer a general overview of the tort of negligence. However these propositions are not rigidly separate. The 14 University of London External Programme . but not very often.

The underlying idea in a negligence action is very simple. If the claimant’s injuries result from behaviour that falls short of socially acceptable standards. The ability to obtain compensation may also depend on the financial resources available to the defendant. One consequence however of the emphasis on fault is uncertainty. If they do not. The fear is that there will be a defensive reaction that drives out many socially useful activities. One question to consider is how far the law correctly reflects a public sense of fairness. The public view of what is fair may change over time. Lord Diplock once described negligence as the ‘application of common sense and common morality to the activities of the common man’ (Doughty v Turner Metal Manufacturing Co [1964] 1 QB 518. the tort of negligence is the means by which the law attaches consequences to unacceptable behaviour. Courts are increasingly aware of the socalled ‘compensation culture’. In a number of recent cases the House of Lords has based its conclusions for or against liability by reference to what people generally would regard as fair. Since carelessness is not generally criminal. There is a way in which liability in negligence does indeed affect behaviour and may force defendants in ways that are arguably not to the general benefit. Fear of a civil action for damages hardly figures. noted in Chapter 4). Here are some of the most important philosophical and policy issues that you should keep in mind and refer to as you prepare the material in the next four chapters. One purpose of the tort might be thought to be to enforce standards of good behaviour: to deter people from being careless. then the victim should bear the loss without compensation. Schools may stop arranging excursions for pupils for fear of claims by injured pupils.Chapter 2 Negligence: basic principles importance of understanding these policy objectives and the way that they are contributing to the development of the law was explained in Chapter 1. since the damages will come from an insurance company (although admittedly the driver may find insurance more expensive or even impossible in future). the desire to identify someone who is able to pay for injuries. It may be difficult to get agreement as to whether the defendant was careless. Institutions such as homes for the elderly or nurseries for children may close if the costs of liability insurance University of London External Programme 15 . [2004] 1 AC 309 (Chapter 3). A high proportion of successful claims are in areas (medical. then there should be compensation. and entitlement to substantial compensation may depend on the strength of the evidence before the court or (since all except a very tiny proportion of negligence claims for personal injuries are settled by negotiation or agreement) the strength of the bargaining positions of the parties. or of prosecution resulting in fine or imprisonment. See for example Alcock v Chief Constable of South Yorkshire (Chapter 5) and Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52. road and industrial accidents for example) where defendants are either rich or are insured. In many situations the deterrent effect is limited. Car drivers are likely to drive carefully because of a fear of death or injury.

Activity 2. particularly the policy issues that keep arising in negligence claims. as you study the chapters that follow. 16 University of London External Programme . see Tomlinson v Congleton Borough Council [2003] UKHL 47: [2004] 1 A. Conclusion You should bear the contents of this chapter.1 Write down brief notes on what Tomlinson v Congleton Borough Council [2003] tells you about the effects of compensation culture. As a recent example of a judicial fear of the compensation culture. You will return to this case in Chapter 6: you will find an easy introduction to the ideas of compensation culture in the speech of Lord Hoffmann.Law of tort become prohibitive. Family doctors may refer too many healthy patients to specialists to protect themselves against negligence claims. There may be other defensive consequences.C. thereby adding to the costs of the health service and delaying appointments for patients in need of specialist services. 46 (Chapter 6).

2 3.1 3.85–95. controlling others. 107–129. 139–187. pp. pp. 3.Chapter 3 Negligence: duty of care and breach of duty Contents Introduction 17 3. 231–263 Winfield and Jolowicz.103–134. What was lacking was a general principle of which the various cases University of London External Programme 17 . you should be able to: explain the concept of duty of care and its purposes identify the various tests that have been suggested for the existence of a duty of care discuss the duty concept in the context of some particular situations. pp. duty of lawyers and duty to unborn children describe the standard of care required of defendants both in general and in respect of particular skills Essential reading Markesinis and Deakin.171–181.90–100. Did the defendant owe the claimant a duty to take care? Was the defendant in breach of that duty? Learning outcomes By the end of this chapter and associated readings.3 Duty of care 17 Functions of the duty concept 19 Breach of duty 23 Introduction This chapter introduces the first two elements in establishing an action in the tort of negligence. 167–184 Murphy. pp. For centuries the law has recognised relationships in which one person owes a duty to another. 190–208 Lunney and Oliphant. namely.1 Duty of care The duty of care concept has at least two purposes. The first is to provide an overall framework for the huge variety of situations in which liability may arise.

particularly in London. proximity and fairness • An alternative test: assumption of responsibility a. Lord Atkin enunciated a broad principle of liability.1. just and reasonable to impose liability. c. an administrative division. This test came under criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991 (see Chapter 5). The neighbour principle Donoghue v Stevenson [1932] AC 562 was important in two respects.Law of tort were illustrations. but one of its best expositions is in Caparo Industries v Dickman [1990] 2 AC 605. If so. by a majority. He turned it into a two-stage test in Anns v Merton London BC [1978] AC 728 at 751. 18 University of London External Programme . A revised test There were many developments in the law of negligence in the years following that decision. the House of Lords recognised a new relationship as giving rise to a duty of care. There is no single case identified with this test. that between manufacturers and the ultimate consumers of manufactured products (in this particular case a bottle of ginger beer). b. A duty was owed to ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected…’ He described such people as ‘my neighbours’: so his definition of the duty is called the ‘neighbour principle’. The current test: foresight. Secondly. This is sometimes called the narrow rule in Donoghue v Stevenson: it still survives but has in practice been superseded by a new kind of liability established in the Consumer Protection Act 1987 (see Chapter 8).1 Finding a general test A number of attempts have been made to expound such a general test. a prima facie duty of care arose. First. The claimant has to show three things if there is to be a duty of care: It was reasonably foreseeable that a person in the claimant’s position would be injured. The second question was whether there were any considerations which ought to negative or reduce or limit the scope of the duty of care or the class of persons to whom it was owed. The second purpose is one of limitation. proximity and fairness The test is now stated in this form. We will look at four of the most influential. Notice that the decision of the ‘BC’ = Borough Council. 3. There was sufficient proximity between the parties. setting the boundaries within which one person could be liable to another for the consequences of careless behaviour. These led Lord Wilberforce to redefine the neighbour principle. There is a particularly helpful discussion of the test by Bingham LJ in the Court of Appeal in the same case: Caparo Industries v Dickman [1989] QB 653 at 678-680. The first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant. It is fair. Four tests: • The neighbour principle • A revised test (Lord Wilberforce) • The current test: foresight.

It is not just about what can be foreseen. dentists.g.. on building sites. etc. For details. where there are no clear precedents. in situations where there has been doubt. This test is particularly used in cases of liability for omissions. An alternative test: assumption of responsibility For some purposes. More complex and developing examples are discussed in Chapter 5. in an examination context. hairdressers. So. in workplaces owe a duty of care to those likely to be affected.2 Functions of the duty concept Traditionally the duty concept has been seen as serving two separate functions: Is there a duty at the abstract level (the notional duty or duty in law): e. In particular. Users of machinery. d. University of London External Programme 19 . notice that: They are very general. There is a large moral component to his test. Notice his use of ‘ought’ and ‘reasonably’.g. providing services to the public. So do doctors. an alternative test has been developed. These three tests are very similar. These are concepts that judges use when deciding whether or not a duty of care ought to be recognised in new situations. on the roads. Below there is a series of illustrations of the application of the concept of duty of care. Some cases then are clear. If the question you are answering is about a motorist knocking down a pedestrian. see below at page 21). Once a duty situation is recognised. These tests are of most use when the law is uncertain. the test in a sense drops out of the picture. for mis-statements and for economic loss as discussed in Chapter 5.Chapter 3 Negligence: duty of care and breach of duty Court of Appeal in that case was overruled by the House of Lords. there is no need to go through the Caparo test unless either the situation is a novel one.. etc. nurses. the duty of care is established by many previous cases and there is no need to go through the tests for establishing a duty afresh. but about what ‘ought’ to be foreseen. see Chapter 5. but are implicit in Lord Atkin’s test as well. does a motorist owe a duty of care to other road users? Or do barristers owe a duty of care to their clients? Is the particular claimant within the scope of the duty of care (duty in fact or the problem of the unforeseeable claimant): e. or you are trying to argue that the law ought to be changed (as was done by the House of Lords in respect to the liability of lawyers. It is possible to understand what they mean in practice only after studying a number of illustrative cases. 3. was this particular road user owed a duty by this particular motorist? Notice that many commentators prefer to treat the second question – duty in fact – either as a matter of breach of duty or as a matter of remoteness of damage. namely whether there had been a voluntary assumption of responsibility by the defendant for the claimant. Policy considerations are explicit in the second and third tests.

2. and overlap with. reasoning that the fault is that of X and not that of D.Law of tort 3. But exceptionally a duty may arise. This can be illustrated thus: Is there a duty to prevent X injuring C? C (Claimant) Conduct causing damage X (Third party) Proposed action D (Defendant) Examples of this problem would include the following: a. Carmarthenshire County Council v Lewis [1955] AC 549. AttorneyGeneral of British Virgin Islands v Hartwell [2004] UKPC 12: [2004] 1 WLR 1273. In deciding whether a duty of care arises. Should a school (or a parent) owe a duty of care to passing motorists to see that a child does not run out of the school and cause an accident? b. The issues discussed in this paragraph are similar to. the guest and the thief. Should a host at a party owe a duty of care to prevent a guest driving home drunk and injuring a pedestrian? c. issues discussed later in this guide: (a) whether the act of X 20 University of London External Programme . it is relevant to ask: What is the relationship between X and D? Does D have some responsibility over X? What is the relationship between C and D? Does it involve some obligation on D’s part to protect C against harm? See Home Office v Dorset Yacht Co [1970] AC 1104. Should a car owner owe a duty of care to keep it locked up to prevent a thief stealing it and knocking down a pedestrian? In the diagram above X is the child. As a general rule English law does not impose a duty. Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976.1 Duty at the abstract level An important problem is how far the defendant owes a duty to stop or prevent another person (X) injuring the claimant.

The Home Office were vicariously liable for the torts of the borstal officers. but the principle may extend further than that. In the Hartwell case both vicarious liability and primary liability were considered as alternative causes of action. This paragraph concerns the primary liability of defendants for their own tort in failing to control others. S. See: Jebson v Ministry of Defence [2000] 1 WLR 2055. just and reasonable to impose liability. it was not fair.1 Examine the reasoning of the House of Lords in Hall v Simons. guest or thief? How far should defendants have to protect claimants against their own folly? Of course there are many cases where the defendant has specifically accepted responsibility for the safety of others. In the examples given on page 20 would the school. Duty of care to unborn children A doubt as to whether the common law recognised a duty of care to unborn children in respect of damage done before birth was resolved by statute: the Congenital Disabilities (Civil Liability) Act 1976. it would be said that. The issues discussed in this paragraph must be distinguished from the question of vicarious liability (see Chapter 13). In the Dorset Yacht case both ideas are present. A very similar problem arises where in effect C and X are the same person. Hall v Simons [2002] 1 AC 615. Duties of lawyers Lawyers of course owe a duty of care to their clients. But the borstal officers were not vicariously liable for the torts of the boys: they were primarily liable for their own torts in allowing the boys to escape and cause harm. The circumstances in which a duty is owed and the scope of the duty are considered by the House of Lords in Moy v Pettman Smith (a firm) [2005] UKHL 7: [2005] 1 WLR 581. What policy reasons previously were thought to justify the immunity? Why are those policy reasons no longer thought enough to justify it? Feedback: see page 29. Putting it in terms of the Caparo test. (b) whether D can be liable for an omission to act where he fails to take steps that would prevent X from causing harm (see Chapter 5). Activity 3. host or car owner owe a duty of care to the child. while there was foresight and proximity. but until recently it was thought that no duty was owed by barristers (and later solicitors also) in respect of work closely connected with the presentation of their case in court.Chapter 3 Negligence: duty of care and breach of duty amounts to a new and intervening cause breaking the link between C and D (see Chapter 4). The House of Lords has now decided that in contemporary conditions there are no policy reasons sufficient to justify this immunity and it should be abolished: Arthur J. The Act originally envisaged a child being born with University of London External Programme 21 . In vicarious liability the defendant is liable for a tort committed by someone else.

These Acts impose liability only where the damage caused the disability from which the baby suffers when it is born. These ethical reasons do not apply where the claim is by the father or mother (or both) who have to bring up the child. but did not cause the disabilities. Palsgraf v Long Island Railroad Co (1928) 248 NY 339. there remains the question of whether the particular claimant was within the scope of that duty. although the court’s assumptions about the position of her partner have been undermined by the cases referred to in 3. 22 University of London External Programme .Law of tort disabilities as the result of damage to the mother (or sometimes the father) occurring during pregnancy or sometimes before conception. You should think about the ethical reasons for the child’s inability to claim negligence and for the reluctance in most cases to allow the parents to claim. say.1. A doctor may.2. or may fail to recommend an abortion: any child born as the result of this negligence has no claim. See McFarlane v Tayside Health Board [2000] 2 AC 59. negligently carry out a sterilisation procedure on either a man or a woman. Typical examples were physical injuries to a pregnant woman in. They do not allow an action where the negligence caused the baby to be born. Novel situations Other examples of cases where the courts have had to decide in novel situations whether they should hold that there was a duty of care are: Mulcahy v Ministry of Defence [1996] QB 732 (liability of injuries to soldiers on active service.2 Scope of the duty of care Even if the defendant owed a duty of care to some people. For a time the courts seemed likely to allow such claims. Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52: [2004] 1 AC 309. Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607 (liability of rugby referee to injured player). In the last case (Goodwill) the points made about the woman claimant’s position are still of interest. for example. Haley v London Electricity Board [1965] AC 778: Urbanski v Patel (1978) 84 DLR (3rd) 650. It had to be amended in the light of advancing medical technology to deal with damage to stored sperm or eggs: Human Fertilisation and Embryology Act 1990. See Bourhill v Young [1943] AC 92. The ethical issues (together with a wide-ranging review of how these issues are decided round the world) are discussed: where the child is healthy and is being raised in a loving family (McFarlane) where the child is disabled (Parkinson) where the child is healthy but the mother did not want children because of her own disability (Rees). Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161. Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530: [2002] QB 266.2. or the side effects of drugs. 3. a car crash.

It will often be a major issue between the claimant’s advisers and the defendant’s advisers or insurers in attempting to reach a settlement. or doing something which a University of London External Programme 23 . This establishes the necessary link between the claimant and the defendant. Has the defendant actually been negligent? As a practical matter. If there is a trial. It is however a question of fact that has to be answered within a structure of legal rules.Chapter 3 Negligence: duty of care and breach of duty Activity 3. Is D liable to C? (In answering this question. Summary There is no liability in negligence unless there is a duty to take care. You cannot be expected to decide in an examination answer whether or not the defendant was in fact negligent. Such duties are widely recognised. much time may be spent on deciding what actually happened and whether that amounted to negligence on the defendant’s part.3 Breach of duty The next question is whether there has been a breach of the duty of care. Advise her. She goes into the house to pour herself a drink and leaves a spade lying in the garden. ‘Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs. In cases of doubt the modern test is whether there was foreseeability and proximity and it was fair.) (c) To what extent is there (and should there be) liability: (i) if a person negligently injures a pregnant woman and the child is born dead (ii) a doctor negligently fails to identify a risk that a foetus has been damaged and does not suggest an abortion: the child is born disabled (iii) a mother takes drugs throughout pregnancy: the child is born with a severe problem of drug dependency. it is too late for an abortion. They confuse her records with those of another client and inform her that she is not pregnant.2 (a) How do the tests of a duty of care in Donoghue v Stevenson. which might affect your answer. would do. 3. In that end this is a question of fact. picks it up and attacks C. think about various possibilities as to who X is. Feedback: see page 29. a passer-by. but you can be expected to identify in a question the respects in which the claimant could argue that the defendant has been negligent and also explain how the question will be approached within the structure of legal rules. just and reasonable to impose the duty. By the time she discovers that she is pregnant. Anns v Merton London Borough Council and Capro Industries v Dickman differ? In what respects are they similar? (b) D is gardening at the front of her house. X. (d) Clarissa thinks that she may be pregnant and consults a pregnancy advisory service. this is very important.1 The basic rule The basic rule is that the defendant must conform to the standard of care expected of a reasonable person. 3.3. D’s neighbour.

(b) ‘It is still left to the judge to decide what. Defining the group In these cases the problem was one of defining the group to which the defendant belonged: Phillips v Whiteley [1938] 1 All ER 566. there is sometimes doubt as to exactly what skill or qualifications the defendant professes to have.3. that icy roads are slippery or that children may get up to mischief) as the reasonable person. Should Mrs Alexander. Here there is room for diversity of view. see 5. there may be doubt as to whether a large group (say car drivers or doctors) should be sub-divided into smaller categories for the purpose of comparison with reasonable members of the group. breach and damage. What to one judge may seem far-fetched may seem to another both natural and probable.’ The outcome is therefore to that extent unpredictable even in the tiny minority of cases that are resolved in court. In such cases the defendant is to be compared to a reasonable person with the relevant skill or qualification. surgeon or architect who is being sued. or may be cleverer or more knowledgeable. 24 University of London External Programme .’ (Blythe v Birmingham Waterworks (1856) 11 Exch 781) Ordinary person in ordinary circumstances One of the few cases in which the House of Lords has had to consider the behaviour of an ordinary person in ordinary circumstances (not involving special skill or knowledge) is Glasgow Corporation v Muir [1943] AC 448.1 and the case of Goldman v Hargrave. In this case there was only one simple question. the reasonable man would have had in contemplation.3. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. in one sense.2 Defendant with special skills or qualifications Most of the difficult reported cases however involve defendants with special skills or qualifications. 3. It would be silly to ask whether a reasonable ‘person’ would have driven the car. have told her child customers to stand outside while two people carried an urn of hot tea through the shop? The answer depends on what dangers a reasonable person would have expected and what steps (if any) such a person would have taken to avoid them. For one thing. an impersonal test. who is expected to have the same general knowledge and understanding of risks (say. The Glasgow Corporation case is a good illustration of the point made in Chapter 2 about the artificiality in many questions of looking separately at the three issues of duty. This is not always as easy as it might be.Law of tort reasonable and prudent man would not do. Lord Macmillan’s words are appropriate whether you think of this primarily as a question of breach of duty or as a question of remoteness of damage. In the examples that follow it is more important to understand the reasoning and how it might be applied in other contexts than to know whether a particular defendant was or was not held to be negligent on a particular set of facts. (For a situation in which it may be appropriate to take a more subjective view of the defendant’s conduct. For another. but is still judged by this abstract impersonal standard. removed the appendix or designed the building in the same way as the actual motorist. the manageress of a teashop.’ It is an objective test. The actual defendant may be stupider or more ignorant. in the circumstances of the particular case. Lord Macmillan highlighted two important aspects of the test: (a) ‘The standard of foresight of the reasonable man is.) The abstract reasonable person is put into the shoes of the defendant.

Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634. The English approach is sometimes criticised as showing a ‘doctor knows best’ attitude and ignoring the autonomy of the patient. The professional bodies now encourage greater openness and encourage You should read and make notes on: • Bolam v Friern Hospital Management Ask yourself what conclusion the judge reached. but the courts reserve the right to strike down a medical practice as unreasonable (as explained in Bolitho). The courts do not insist that one of these approaches must be right and the other wrong: they require that the defendant has acted in a way that would be supported by ‘a body of respectable medical opinion’. The only standard of care is that of a reasonable driver. Other examples of the application of this principle are: Whitehouse v Jordan [1981] 1 WLR 246. Medical negligence A large number of the cases involving special skills concern medical negligence.Chapter 3 Negligence: duty of care and breach of duty Did the defendant. but another might recommend treatment with drugs. This is sometimes called the ‘Bolam test’ as set out in that case. This test allows the medical profession to some extent to determine appropriate standards for itself. The case went to the House of Lords. English law in principle applies the Bolam test and asks whether the information given was in accordance with what a respectable body of medical opinion would have done. one doctor might recommend surgery. It is irrelevant that the learner driver defendant was doing as well as she could. but only on the issue of causation and not on the issue of breach of duty (see Chapter 4). who had pierced the claimant’s ears. whether the actual driver is highly experienced. given her lack of experience. have to show the care of a reasonable surgeon or of a reasonable jeweller? In Shakoor v Situ [2000] 4 All ER 181there is an interesting analysis of how to treat a practitioner of traditional Chinese medicine working in England. newly qualified or even just a learner. The defendant is to be compared with a reasonable person of the same specialism and status: a general practitioner is not judged by the same standards as a consultant cardiologist and so on.) The most controversial application of the Bolam test occurs where it is alleged that the doctor failed to give the patient sufficient warning of the risks of the proposed treatment (or possibly of the risks of not having the treatment). Committee [1957] 1 WLR 582 • Bolitho v City and Hackney Health Authority [1998] AC 232 University of London External Programme 25 . Faced with a particular patient. a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England? Many cases involve car drivers. There is often no single ‘right’ way of proceeding. if a reasonable driver would have done better: Nettleship v Weston [1971] 2 QB 691. See Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 and Rogers v Whitaker (1992) 175 CLR 479. There is a special problem with medical defendants (and to some extent with members of other professions). (This is the decision of the Court of Appeal. and Wilsher v Essex Area Health Authority [1987] QB 730. and why he did do so. Was he to be compared to a reasonable orthodox doctor. but Australian courts have taken a view more generous to the patient and ask what a reasonable patient would expect to be told.

But if his behaviour was the result not of inexperience or incompetence. by entrusting a procedure to an inappropriately junior doctor. For the example of solicitors. Most cases are based on the idea that the individual doctor (or nurse. If you are considering a claim for the consequences of medical treatment. or by overworking its staff so that they are too tired and make mistakes. although it is principally concerned with causation issues (see 4.) Eliminating harm must be proportional to the danger A defendant is not required to eliminate all risk of harm even when it is foreseeable: to do so might be out of all proportion to the danger. In deciding what precautions have to be taken to minimise a perceived risk. but of illness or other external forces. the following guidelines may be taken into account: (a) How likely was it that injury would occur? (b) How serious was the injury likely to be if it did occur? (c) How difficult and/or expensive would it be to eliminate the risk? 26 University of London External Programme . In some cases it may be appropriate to consider arguing whether the health authority or hospital is itself negligent. e. The extent to which the courts will be willing to defer to professional opinion in other professions is less certain.g.Law of tort doctors to explain the advantages and disadvantages of particular treatment unless there is a good reason for not doing so. See Mansfield v Weetabix Ltd [1998] 1 WLR 1263. although it is likely to apply in all cases where different members of the profession might reasonably take different views. such as dentistry or physiotherapy.3 Related issues Children may be liable in negligence and are judged by what might be expected of a reasonable child of the defendant’s age. It will now be more difficult for a doctor to argue that a reluctance to be open about the advantages and risks of treatment is in accordance with medical opinion. etc. The defendant must do something only if a reasonable person would have thought it right to do so. and of rugby referees. then he may be found not liable. and the courts appear to be indulgent towards high spirits and horseplay: Mullin v Richards [1998] 1 All ER 920 and Blake v Galloway [2004] EWCA Civ 814: [2004] 3 All ER 315. see Chester v Afshar [2005] UKHL 1 AC 134. For a more recent example. see Edward Wong Finance Co Ltd v Johnson. you should think of different ways of presenting the argument. see Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607.) is negligent and that the health authority or private hospital is vicariously liable. The approach described in medical cases would certainly apply to professions similar to medicine.1. see Chapter 13. (But the result would have been different if the driver had known of the medical condition. Children Defendant unable to perform competently A defendant may be liable even if he was doing his incompetent best.1). Stokes and Master [1984] AC 296. 3.3. For the details of vicarious liability.

see: Roe v Minister of Health [1954] QB 66. say.4 Are decisions on breach questions of fact or law? Everything in the last few paragraphs involves propositions of law which are binding on the courts. for example. and Moy v Pettman Smith [2005] UKHL 7: [2005] 1 WLR 581.3. & C. It is important to remember that the defendant is to be judged by how a reasonable person with the same skill. So it is very common for regulations under the authority of various Acts of Parliament to set out detailed rules on such matters. Luxmoore May v Messenger. Once these principles have been applied. would have behaved at the same time and in the same circumstances. equipment and so on they have to supply. The defendant must not be judged with the benefit of hindsight (making use of knowledge not available at the time of the alleged tort) and allowance must be made for any special circumstances affecting the defendant (e. 2)) [1967] 1 AC 617 at 642. Ng Chun Pui v Lee Chuen Tat [1988] RTR 298. This approach is not very helpful to potential defendants such as building contractors. All the claimant can do is show that such a thing does not normally happen unless there has been negligence. The basis of liability for breaches of such regulations is explained in Chapter 7. that it was held in a particular case that an employer was negligent in failing to ensure that an employee wore a particular kind of safety equipment does not mean that all other employers will also be held negligent if they behave in the same way. who do not want to know that they have to take reasonable care. For examples. but do want to know exactly what instructions.5 Proving breach of duty Very often the claimant may not be able to find out what happened. Latimer v AEC [1952] 2 QB 701. A parked car. etc. may have moved off without warning down a hill. Katharine's Dock (1865) 3 H. The fact.Chapter 3 Negligence: duty of care and breach of duty (d) How important or urgent was the action of the defendant? See: Bolton v Stone [1951] AC 850 (explained by Lord Reid in Wagon Mound (No. You should be warned that this doctrine applies only exceptionally. Jenkins [1970] AC 282. Paris v Stepney BC [1951] AC 367. You should not make use of it in answering questions unless there is a clear suggestion that there is no explanation for what has University of London External Programme 27 . Watt v Hertfordshire CC [1954] 2 All ER 368. The issue will have to be decided in the light of the particular facts each time it occurs. the decision on the particular facts of a case does not constitute a binding precedent. See Qualcast v Haynes [1959] AC 743. The claimant can then make use of a rule of the law of evidence called res ipsa loquitur (the facts speak for themselves). 3. MayBaverstock [1990] 1 All ER 1067. You must ask yourself: (a) when it is legitimate to use the maxim (b) what the effect of invoking it is. 3.g. Henderson v Henry E. however. having to act under pressure or with limited time for full consideration).3. See Scott v London & St. 596.

C has a heart attack.Law of tort happened and the only inference is that the defendant must have been negligent. General examination advice All claimants in a negligence action must establish that there has been a breach of a duty of care. who is very fat. A recent article in a specialist journal of cardiology has suggested that there may be some risks in giving these tablets to overweight patients. (i) when taking a seriously ill patient to hospital and (ii) when driving her family to the seaside in the family car? (c) D is a general practitioner. Advise C. Activity 3. the car moves off downhill and strikes C. Feedback: see page 29. but is likely also to involve topics from other chapters. the appropriate comparison is with a person with the same skill or expertise. Where a particular skill (driving for example) or professional expertise (medical for example) is involved. Shortly afterwards. A problem question may involve only issues discussed in this chapter. An essay question of a general kind on the duty of care will almost certainly require information and ideas from Chapter 5 as well as this chapter.3 (a) What is the level of the duty of care to be shown by: – a newly qualified solicitor – a learner driver – a 12-year-old child? (b) What standard of care would have to be shown by Deirdre. This does not mean that all examination questions require an extended discussion of these topics. an ambulance driver. He prescribes certain tablets for his patient C. then these issues can be disposed of in two sentences. Summary The actual defendant is to be compared with how a reasonable person would have acted in the same circumstances. Is D liable? (d) D parks his car on a hill and walks away. If a problem involves a driver of a car hitting someone while proceeding at 80 mph down a one-way street in the wrong direction. It is not clear why this has happened. 28 University of London External Programme .

You will have to think about these cases and general principles would apply to the case of a newly qualified solicitor. the negligence caused the pregnancy and not the failure to terminate it). there may be liability to the mother and the damages would include the suffering sustained by the loss of her baby. The House of Lords thought these reasons no longer applied in 2002 (although there was a disagreement about whether the immunity should remain in criminal cases). e. You might note the following elements in the facts: (i) as a general practitioner. although there is no liability to the estate of the dead child. In an emergency it may be legitimate to drive in a way that is not ordinarily acceptable. (iii) that suing the lawyer would to some extent reopen the correctness of the original decision. Activity 3. (d) No doubt the advisory service has a duty of care.Chapter 3 Negligence: duty of care and breach of duty Feedback to activities: Chapter 3 Activity 3. (b) When driving to hospital she still has to drive ‘with reasonable care’. Activity 3. (ii) that the prospect of being sued in negligence might adversely affect the quality of their argument by e. applies also to these facts? (In McFarlane etc. but are liable if they injure them by careless driving. although there are differences of emphasis.3 (a) On learner drivers see Nettleship v Weston and on children see Blake v Galloway. but you consider exceptional cases. University of London External Programme 29 .g. You should have identified among the reasons for having the immunity: (i) the fact that lawyers in court owe a duty to the court that may sometimes conflict with the duty to their clients. she might have been expected to do better in the circumstances. she is judged by the standards of an ordinary driver. Normally in such a case there would be no liability. if X was another neighbour who was known to be violent and aggressive where it is arguable that the result might be different. (ii) neither the Congenital Disabilities Act nor the common law allows an action by the child: for the claim by the parents see McFarlane and later cases. A main reason was that the public would not understand why lawyers had an immunity that other professions did not enjoy.g. (c) (i) Remember to consider that. Ask yourself why mothers are not generally liable for damage to their unborn children. She is not penalised because. (c) Examine the cases on standard of care to be shown by medical practitioners. as a highly trained driver.1 All the judges refer to these reasons.2 (a) No feedback provided (b) You should have considered what was said in Home Office v Dorset Yacht and other cases. should he know about things discussed in a specialist journal? (some help perhaps from Shakoor v Situ. but it still has to be reasonable in the circumstances. (iii) the Congenital Disabilities Act does not allow a claim by the mother. On going to the seaside. Do you think that the reasoning in McFarlane etc. raising every conceivable point in their clients’ interests.

30 University of London External Programme . (d) This might be one of the exceptional situations in which the maxim res ipsa loquitur can be applied. (ii) should he tell the patient about the risks? (consider Chester v Afshar and decide whether the facts are in any respects different).Law of tort though only by analogy).

based on policy considerations about the appropriate extent of a defendant’s liability.3 4. the claimant must therefore also show that the breach has resulted in injury or damage (the causation issue) and that the injury or damage is sufficiently closely connected to the breach (the remoteness issue).1 4. It is commonly said that causation is essentially a factual and logical question.5 Causation 32 Causation: special problems: multiple causes 37 Remoteness: the basic rule 41 Qualifications of the basic test 43 New and intervening cause 45 Introduction Negligence is one of those torts in which damage must be proved (see Chapter 1). but that remoteness is a legal question. Learning outcomes By the end of this chapter and the relevant readings. You must therefore consider the policy reasons behind most of the decisions in this chapter. but Lord Hoffmann has recently stated that ‘the rules laying down causal requirements are… creatures of the law’ and that ‘it is possible to explain their content on the grounds of fairness and justice in exactly the same way as the other conditions of liability’ (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 at [54]).Chapter 4 Negligence: causation and remoteness of damage Contents Introduction 31 4. Causation and remoteness are the essential links between the breach of the obligation imposed by law and the damage. Once a breach of duty has been established.2 4.4 4. you should be able to: state and explain the basic rule defining the causal link between the breach of duty and the damage identify the causal link that has to be established in hypothetical situations University of London External Programme 31 . In broad terms this is true. You will understand what is meant by ‘sufficiently closely connected’ in the particular context of negligence after studying this chapter.

but the underlying idea is very simple. but the principles apply more broadly.g. the breach of duty in the case of negligence) and not merely the defendant to the damage. 4. If the proper tests carefully administered would not have revealed the allergy. alleging that a doctor in breach of the duty of care failed to carry out proper tests to discover whether the baby had an allergy to the vaccine. We use the language of causation every day without much difficulty.264–280 Winfield and Jolowicz. ‘I was late for work to-day because the 7. This is not so if the claim is in negligence.Law of tort identify circumstances in which the basic rule produces unacceptable results and may have to be modified explain the policy considerations underlying those modifications explain the concept of remoteness of damage in general and identify the basic rules of remoteness in the tort of negligence identify the policy reasons for choosing that rule of remoteness explain the concept of new and intervening cause and relate it (a) to the actions of third parties and (b) to actions by the claimant subsequent to the negligence of the defendant. An example will illustrate the importance of this. You will find that the causation issue sometimes (though exceptionally) gives rise to difficult questions. If the claim can be brought within a tort of strict liability (see Chapter 1 for definition). The problem is usually discussed in detail in the context of negligence. in addition to showing that the vaccine caused the damage. e. then the baby would still have been damaged and the breach of duty would not be a cause of the brain damage. Here we know that the cancellation made lateness inevitable. to show that the breach of duty caused the damage. Essential reading Markesinis and Deakin. Advertisements for cigarettes 32 University of London External Programme . pp. But we do not know for certain that we would have been on time if the train had been running. You must always remember to link the tort (i.209–247 Lunney and Oliphant.30 train was cancelled’. If there is a claim for compensation. pp. it will always be necessary to establish (on scientific evidence) that the vaccine caused the damage. It will then be necessary. A baby has brain damage: it has recently been vaccinated. We may for instance say. and we understand that the language of causation is used in different ways in different contexts. pp.e.185–214 Murphy.1 Causation Causation is relevant to all torts in which proof of damage is essential. On the other hand we often hear about research into the causes of disease. pp. nothing more need be proved in terms of causation. and some of the cases referred to in this section involve claims in other torts as well as in negligence. Something else might have happened to delay us.188–252.

If the damage would still have occurred. then the breach of duty is a cause of the damage. If the damage would not have occurred but for the defendant’s breach of duty. If it is not more probable than not. even if it is a possibility. The claimant fell overboard into icy water. There are several different situations to consider: (i) There may be doubt about what the natural course of events would have been if the defendant had behaved properly. University of London External Programme 33 . (ii) There may be doubt about how the defendant would subsequently have behaved if he had done what he should have done in performance of the duty.Chapter 4 Negligence: causation and remoteness of damage may carry a warning that ‘smoking causes lung cancer’. but we know that here there is no inevitability: many non-smokers develop cancer and many smokers do not. For example. There is likely to be more difficulty in those cases where the defendant’s breach of duty consists of a failure to do something that should have been done. It is for the claimant to show that the breach of duty was the cause of the damage. In many cases the causation issue raises no problems at all: this is particularly true where the defendant has been guilty of some positive wrongdoing. even if the defendant had not broken the duty of care. For this reason. You should make use of your knowledge of the ordinary usage of the language of causation in analysing problems. and the law does not demand such certainty. the defendant doctor failed to diagnose the claimant as having an illness in need of treatment. Would the claimant have perished in the cold water before even a competent rescuer could have saved her? See: The Ogopogo [1971] 2 Lloyd’s 410. or that it is more likely than not that the breach was a cause of the damage. The defendant’s rescue effort was inadequate. the basic rule is often referred to as the ‘but for test’.1 The basic rule The basic rule may be stated positively or negatively. In principle it is an ‘all or nothing’ question. Usually it is very clear whether or not the act has caused the damage. It is sufficient to show that on a balance of probabilities the breach was the cause of the damage. We know in a common sense way that it is rarely possible to be absolutely certain about such matters. We need more information before we can talk of the cause of the disease in any particular sufferer.1. and not for the defendant to show that the breach of duty was not the cause of the damage. then the breach did not cause the damage. If it is more probable than not that negligently administered drugs caused the claimant’s deafness. Was it so serious that the defendant would have died even if the proper diagnosis or treatment had been given? See: Barnett v Kensington and Chelsea Hospital [1969] 1 QB 428. Its main purpose is to exclude things that have no bearing on the damage. then the claimant recovers in full for the deafness. then the claimant recovers nothing. 4. such as overtaking a vehicle at a blind corner or administering the wrong dosage of a drug. Here it is necessary to speculate about what would have happened if the defendant had not been guilty of this failure.

C is struck and injured. so that it might well have happened to her even if the operation had been postponed and performed on a different day. Activity 4. See: McWilliams v Sir William Arrol [1962] 1 All ER 623. The House of Lords held that she had therefore established that the breach of duty was a cause of her injury. Is D liable for the injuries? 34 University of London External Programme . Note that in cases (ii) and (iii) it is particularly important to scrutinise the evidence given by the defendant and (if living) the claimant because their view of how they would have behaved may be coloured by what has now happened. The claimant did not show that she would probably never have had the operation.1 (a) C steps into the road immediately in front of a car: the driver is exceeding the speed limit and talking on her mobile phone. The defendant doctor may have failed to warn the patient about the risks of treatment: would the patient have decided to have the treatment anyway? If so. The defendant employers may have failed to provide safety equipment for their employees: would the deceased employee have used it if it had been provided? If not. This issue has recently been considered by the House of Lords in Chester v Afshar [2004] UKHL 41 [2005] 1 AC 134 where a majority of the House of Lords took a view very favourable to the claimant. but she successfully argued that the action she would in fact have taken if she had attended would not have been negligent (because it was in accordance with a respectable body of professional opinion) and would not have saved the patient. Therefore her culpable failure to attend was not a cause of the death. (iii) There may be doubt about how the claimant would subsequently have behaved if the defendant had done what should have been done. The surgeon had advised the claimant to undergo surgery but in breach of duty had failed to advise her of the risk. but it should be noted that the evidence was in fact very strongly to the effect that it was highly unlikely that he would have done so. The result would surely have been different if the injury had been due to some previously unknown peculiarity of the claimant. You must address the policy reasons for this view. the failure to warn cannot be a cause of the damage if one of the risks occurs. The child would therefore still have been dead even if she had performed her duty by attending. then the failure to provide it was not the cause of the injuries. but she did show that she would have taken her time and consulted friends and therefore would not have had the actual operation on the particular day that she did have it. You will see that the doctor in breach of her duty failed to attend a patient.Law of tort Look again at Bolitho v City and Hackney Heath Authority [1998] AC 232 (see Chapter 3). It may seem harsh that the claimant in McWilliams had to prove that the deceased would have worn the safety harness if it had been provided. Notice however that the sort of injury was something that happened on very rare occasions for no very obvious reason.

D in breach of duty has stopped providing safety helmets because they were rarely worn. The House of Lords refused to apply that analysis to the facts of Hotson’s injury. He and the Court of Appeal awarded him 25% of the damages that would have been payable if the hospital had caused the necrosis. and applied the general principle described earlier in this chapter. this decision is in line with the normal rule described above. if it was possible to say immediately after the accident. Advise C.2 Damages for loss of a chance So far it has been assumed that we know what is meant by the damage. This is illustrated by Hotson v East Berkshire Area Health Authority [1987] AC 750. Feedback: see page 49. This was caused by the original injury. but… (iv) There may be doubt about how other people would have behaved if the defendant had done what should have been done. but a 75% chance that he would not. What more do we need to know in order to establish the cause of C’s death? (c) C is employed by D. The House did accept that the loss of a chance could sometimes be recoverable in damages. at that time. ‘Hotson’s injuries are of such severity that he personally has only a 1 in 4 chance of avoiding necrosis’. Here the test may be different. C dies. In all of the cases in (i) to (iii) the normal ‘but for’ test seems to be applied. but did not explain in what circumstances that would be the case.1. An alternative argument is that. and this will be considered shortly. When then are damages for loss of a chance recoverable? University of London External Programme 35 . The hospital failed correctly to diagnose and treat his injury for some days. and is similar to Barnett v Kensington and Chelsea Hospital. but gave C a large glass of brandy. but was it caused by the negligent failure to treat him immediately? The judge (unusually) assessed the chances. In due course he suffered a wasting (necrosis) of the hip leading to permanent disability. There is sometimes room for argument on this point. A majority of the House of Lords in Gregg v Scott [2005] UKHL 2: [2005] 2 WLR 268 reaffirmed that the general approach in Hotson’s case should be followed and declined to depart radically from its principles. C falls to the ground and suffers serious head injuries. There was a 25% chance that he would have recovered if treated properly. 4. The House of Lords disagreed and awarded him nothing (apart from a small sum for the pain suffered during the days of delay). If the damage is the necrosis. D did not call an ambulance. Hotson injured his hip in a fall (no tort was involved). Hotson was a boy with an injured hip and also with a 1 in 4 chance of recovery. and that chance had been worth something to him. The hospital negligently destroyed his chance.Chapter 4 Negligence: causation and remoteness of damage (b) C collapsed with chest pains.

Activity 4. It may be therefore that in cases under (iv) above the damage is properly to be regarded as the loss of a chance. the claimant is certainly entitled to damages at least for the additional years without a leg. the prospective employer in Spring) would have behaved.2 C. for example. and there would be no evidence on this point. Advise C. It is possible that. See also Allied Maples v Simmons & Simmons [1995] 1 WLR 1602. when the courts have identified an item of damage as being caused by a tort. It is also clear that. The decision in Hotson is consistent with an earlier decision of the Court of Appeal in Cutler v Vauxhall Motors [1970] 2 All ER 56. where Lord Lowry thought that the claimant would not have to prove that the negligent reference supplied to prospective employers caused him not to be appointed to a post. Students often unthinkingly misapply this case. but that he would be compensated for the loss of a chance of future employment. and that it is not necessary to prove on a balance of probabilities that the other people would have behaved in a particular way. It is possible that she would have had an excellent degree and realised her ambition of working as a solicitor in a large City firm. She suffers cramp and starts to drown. and not on proof that on a balance of probabilities he would have had a particular career. He would. The defendants injured the claimant who as a result had an operation for varicose veins. then the measure of damages (the amount of money awarded in compensation) reflects the loss of future chances. to lose a leg which would probably have had to be amputated in a few years anyway. Another explanation may be that what was in question was how other people (e.Law of tort Sometimes this is allowed in breach of contract actions (Chaplin v Hicks [1911] 2 KB 786). have required such an operation in a few years’ time even if the injury had not occurred. is swimming in a council swimming pool. 36 University of London External Programme . A similar approach seems to have been taken in Spring v Guardian Assurance plc [1995] 2 AC 996 (see details in Chapter 5). C is eventually rescued but has suffered brain damage and will need constant care. For instance. aged 21 and in her final year at university. That may explain the difference. she would have been rescued in time to prevent the brain damage. then the amount of money paid in compensation will be based on the chances of future employment. Therefore the majority of the court held that the operation was not caused by the defendants’ breach of duty. The lifeguard employed by the council is not at his post. more likely than not.g. if the claimant has proved that the tort caused physical injuries leading to permanent unemployment. If the breach of duty causes the claimant. if the lifeguard had been there. Feedback: see page 49. It can be relevant only where the damage is a ‘one-off’ event such as an operation from which the claimant fully recovers. In both cases the loss was economic rather than physical damage.

Chapter 4 Negligence: causation and remoteness of damage 4. On this reasoning neither defendant would be liable. An example will make it clearer. That situation is of course most implausible. ‘Hullo. Logically each assailant could say that he was not the cause of death. even if he had not been there. or because he is blind? On those facts both events were torts. Six months later he suffers a further (unrelated) accident and is unable to work ever again. The present problem arises where there are two unconnected events (one or both a tort). Imagine a professional sporting star with a large income and valuable sponsorship deals. the other shot would still have killed Conrad.000 per year. because. leaving them to contest the matter between themselves. There are many variations in the possible facts. The courts have in some of these cases been prepared to abandon or modify that test. Edward.1 Two separate causes of the same damage Suppose that David and Daniel acting independently at the same moment shoot Conrad.000 per year.2. because…’ How would you finish the sentence for him? Is it because he has no legs. Such a result would be absurd. ‘No. These are often misunderstood by students and applied where they should not be. each of which would in the absence of the other have caused a particular item of damage. Let us call him Edward. who dies instantly: either shot would have been fatal. This is associated with two important decisions of the House of Lords. In January Edward is injured in a road accident and loses both legs. and it is important that you analyse correctly and carefully the leading cases and any problems that you are asked to consider. you meet him and say. 4. Are you still playing football?’ He replies. Would it make a difference to the way in which you think you would finish the sentence if either Edwards’s blindness or the loss of his legs was the result of a natural disease? The problem can also be presented in this way. Three months after that. In the following diagram the claimant was originally earning £40.2 Causation: special problems: multiple causes In a number of situations the application of the ‘but for’ test would lead to outcomes that would be absurd or arguably unjust. Six months later in an entirely separate and unconnected event someone throws acid in his face and blinds him. I am not. As a result of an accident he has to take a lighter job earning £15. What can and does occur is that two successive actions may independently bring about the same damage. It is therefore important first to understand the situation in which it is appropriate to refer to them. University of London External Programme 37 . In such a case the court would hold that both David and Daniel were liable.

000 per year and cannot be liable for the damages in the shaded area.) 1st event £40.000 1 £15. It is necessary to stress again that both cases were concerned with continuing liability for the consequences of the original injury and not with liability for the additional consequences of the second injury. Baker’s leg had been permanently damaged in a road accident. One thing is clear. It was not for instance argued that the defendant in Baker was liable for the amputation. which would independently cause the same loss? The House of Lords has considered this problem in Baker v Willoughby [1970] AC 467 and Jobling v Associated Diaries Ltd [1982] AC 794. The House decided that the defendant was not required to compensate for the losses after the onset of this disease.2 Principle 4). then the tortfeasor responsible for the second event ‘takes the victim as he finds him’ i. he was found to be suffering from a disabling disease that rendered him unfit for work. There would be an obvious harshness if Baker were to lose his damages because he was the victim of two torts and not just one. It is best to start with Jobling. He had been injured in an industrial accident and permanently disabled. Some years later.000 2 2nd event The damages in the box marked 1 are attributable only to the first event. 38 University of London External Programme .e. those in the box marked 2 only to the second event. as a person earning £15.Law of tort (See diagram below. in the absence of the other. Section 13. have brought about that damage. The problem lies with the damages in the shaded area.3. Damages are assessed once and for all so that if they are calculated and the case disposed of by settlement or by litigation before the second event occurs. the assessment will not be reopened (see Chapter 13. But what if the first event was a tort and the claim is against that tortfeasor? Does the tortfeasor continue to be liable for the loss in the shaded area even after the occurrence of the second event. since either the first or the second event would. We will consider that kind of situation later. but it is not easy to formulate a principle explaining why Baker’s claim was not extinguished. but Jobling’s was. He had to change his job and was shot by robbers (who were of course tortfeasors but were never found) and as a result his leg was amputated. The House was critical of (but did not overrule) the earlier decision in Baker. before damages had been assessed. If the first event is a natural occurrence such as a disease. The House had held that the damage was not subsumed in the new tort. but the negligent motorist continued to be answerable for the damage to the leg (and its continuing economic and other consequences).

In this and the next section the problem is one of the uncertainty of the facts. but it is impossible to say who the tortfeasor was. which arises where: (a) the defendant has been guilty of negligence (b) there has been damage of a kind which it is known can be caused by negligence of that kind.2 Uncertainty of the facts In the previous section the facts were not in doubt. Feedback: see page 49. This has most recently been considered by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. at least where all the fumes came from the same source. He suffers severe head injuries that would make him unemployable. and that it is not necessary to show that the defendant’s fumes caused the damage. The problem was a logical one.2. You must study this case carefully and identify the facts.1. Only one shot hits Conrad and the other misses. This approach has been extended to situations where tortiously produced fumes have combined with non-tortiously produced fumes. i. 4. the worse the disease is likely to become. Advise C. one defendant actually hit the claimant and the other by firing carelessly made it impossible to identify the killer. unless either could show that his shot was not the fatal one. and (c) there is no evidence as to whether in this case the damage was in fact caused by the negligence. This lack of proof may be because something else happened at the same time which obscures the position. The reasoning can then be tested against some important earlier cases that are discussed in the speeches.e. Here is another situation in which it seems wrong to deny the claimant recovery because in effect he was the victim of two torts and not one. but vary the facts in one respect. He is walking on the beach when he is struck by a freak wave. This is one illustration of a difficult problem. or because medical science has not reached the point where it can be certain of the causation of the disease.3 C is knocked down by D. the disease is one in which. This situation arose in the Canadian case of Cook v Lewis [1951] SCR 830.Chapter 4 Negligence: causation and remoteness of damage Activity 4. University of London External Programme 39 . a careless motorist. See: Bonnington Castings Ltd v Wardlaw [1956] AC 613. and the decision in effect was that both defendants should be liable. Because of his injuries he has to give up his job as a financial analyst and is unemployed. Two or more people in breach of their duty of care cumulatively cause harmful fumes to afflict the claimant and cause the onset of a disease. Now go back to the situation described at the start of Section 4. After all. It is held that it is sufficient to show that the defendant’s breach of duty materially contributed to the damage. the greater the exposure to the fumes.2. In such cases the court is likely to hold both defendants liable. He was therefore the victim of a tort. but it is impossible to tell which is which.

The House surveys the way it has been dealt with in a large number of countries round the world. and also to consider how the absence of one of these factors or the presence of others might lead to a different outcome.2. Excess oxygen can cause blindness in premature infants. so long as the evidence remained inconclusive. The claimants all suffered from a form of cancer undoubtedly caused by asbestos dust. exposure to other fibres would not make matters any worse. The other speeches. The health authority had failed to detect that the catheter had been wrongly inserted and therefore the premature baby received too much oxygen. are very similar in approach. The Court of Appeal decision in Wilsher has already been explained (see Chapter 3). Had it been the cause in the case of Wilsher? The House of Lords held that this had not been established on the balance of probabilities. It was impossible to form any view about whose fibres had triggered the cancer. The process by which the asbestos caused the cancer was not entirely understood. but it might be that one fibre or group of fibres triggered the cancer. The Court of Appeal held that none of the employers was liable because the claimants could not prove against any of them that their fibres had caused the cancer: the House of Lords held that they were all liable. All the employers had in breach of their duty exposed the claimants to asbestos fibres. You will also have to consider two other decisions of the House of Lords analysed in Fairchild. Lord Hutton’s reasoning was however rather different from that of the other judges. Activity 4. and stopping the exposure to asbestos would not make matters any better.4 (a) Did the claimant win or lose on the causation issue in each of the following cases: McGhee. The crucial factors are conveniently listed by Lord Bingham of Cornhill in Chapter 3 section 3. and also reviews it historically as far back as the classical Roman jurists of the second century AD. The health authority did not ask the House of Lords to reverse that decision. It is however only one of several causes.1. Nevertheless the House emphasises that it is deciding what should happen only on the precise facts of this case. The House heard appeals arising out of three separate cases. perhaps some years later: if so.Law of tort This case illustrates a problem that has for long caused difficulty. The claimants had all worked for more than one employer over many years. These are McGhee v National Coal Board [1972] 3 All ER 1008 and Wilsher v Essex Area Health Authority [1988] 1 AC 1074. Wilsher and Fairchild? (b) Consider the following statements: 40 University of London External Programme . all with identical facts. The dust does not operate cumulatively as described in 4. though differing in detail.2. It is therefore vital to be clear about the crucial facts. and that the case had to be retried in order that the court applying the proper balance of probabilities test could decide the matter. and then to think about how many of these are present in other cases. once the triggering had occurred. It did however concentrate on the problem of causation. That was held to be negligent. and is not laying down universal rules. There are five speeches all reaching the same result.

or in which the claimant is seeking University of London External Programme 41 .’ But it would not be natural for her to say. she would not have been at home and would not have been shot. if the tort had not occurred the claimant would not be in the same position. if there had been no derailment. that is not the end of the story.3 Remoteness: the basic rule Even if the tort caused the damage. This must be shown on a balance of probabilities. Yet it is true that. ‘I was shot in the leg yesterday because my train was derailed’. 4. This too can be illustrated by our ordinary use of language. A breach of duty may considerably change the course of subsequent events. She therefore has to return home. but the defendant will not be liable for everything that can be traced back to the original wrongdoing. Reminder of learning outcomes By this stage you should be able to: state and explain the basic rule defining the causal link between the breach of duty and the damage identify the causal link that has to be established in hypothetical situations identify circumstances in which the basic rule produces unacceptable results and may have to be modified explain the policy considerations underlying those modifications. the shooting is too remote a consequence of the derailment. In legal language. Summary The fundamental rule is that the tort must cause the damage. During the morning an intruder breaks in and shoots her in the leg. Which of these statements are true of the facts in the three cases mentioned in question (a)? Feedback: You will find a helpful list of factors near the beginning of Lord Bingham’s speech in Fairchild. i. the remoteness issue is relevant to all torts in which proof of damage is essential.e. One day she finds that a train has been derailed outside the station and blocked the line. It would be natural for her to say. (ii) The claimant’s injuries were certainly caused by the defendant. You should then match this list against the facts of the other cases. ‘I was absent from work yesterday because my train was derailed. There is however a feeling that the link between the shooting and the derailment is not close enough. Like causation. The remoteness issue limits the extent of the defendant’s liability. There are however difficult situations where there are competing causes and the fundamental rule has to be abandoned or modified in order to prevent injustice.Chapter 4 Negligence: causation and remoteness of damage (i) The claimant’s injuries were certainly caused by a tortious breach of duty. Claudia travels to work in London: the only convenient way is by train from her local station.

At one time the test of remoteness of damage in the tort of negligence was said to be whether the damage was the direct consequence of the breach of duty. But the opposite is not true. The oil had been carried to nearby docks where welding operations were in progress. 42 University of London External Programme . palpable injustice will be avoided. then the claimant loses. Furnace oil had been negligently spilled from a ship in Sydney Harbour. ‘It is hoped that the law will thereby be simplified and that. This test was particularly associated with the decision of the Court of Appeal in Re Polemis [1921] 3 KB 560.Law of tort compensation for specific losses. The Privy Council so decided in The Wagon Mound (No 1) [1961] 1 AC 388.e. The Privy Council gave two reasons. because it was unfair to hold a careless defendant liable for more than could have been foreseen when and if he thought about the consequences before committing the act of negligence. The acceptable test: foreseeable consequences Since 1964 the accepted test has been that the defendant is liable for damage only if it was the foreseeable consequence of the breach of duty. The Privy Council disagreed. The breach of duty may initiate a whole chain of further events – but some of these will be treated as too ‘remote’ from the original negligence for it to be appropriate to hold the defendant answerable for those distant outcomes. A test of foreseeability was (a) simpler and (b) more just. the breach of duty is a cause of the damage). held that (on the evidence presented) the great fire was not foreseeable. you will have to learn what the test of remoteness of damage is. A piece of cotton waste caught fire. but that it was the direct consequence of the spillage and therefore the defendants were liable. is not formulated in the same way in all torts. If the same damage would have been suffered even if there had been no breach of a duty of care. Later in this chapter we will consider the way in which the test is formulated in the tort of negligence. then the defendant was not liable. The defendants should be liable only for what could reasonably have been foreseen. applying the English rule of the time. The test of what consequences are too remote. The New South Wales courts. In every tort involving damage. If it was merely indirect. Even if the damage would not have been suffered without the breach of duty (i.5 Why did Viscount Simonds say that the test of remoteness should be foresight and not directness? Are his reasons justified? No feedback provided. The main purpose of the rules of causation is to exclude those things that are not the cause of the damage. particularly if there was something which ‘broke the chain of causation’. the temperature was raised sufficiently to ignite the oil and the resulting fire destroyed the docks and ships moored there.’ (per Viscount Simonds) Activity 4. however. it does not follow that the defendant is liable. in some cases at least.

(b) The egg-shell skull cases Before 1961 the courts had recognised what was called the ‘eggshell skull’ cases. but is probably closer to the latter. The following case also illustrates the difficulty in drawing the line: Doughty v Turner Metal Manufacturing Company [1964] 1 QB. More recently the House has again considered the problem and analysed both the Wagon Mound (No 1) and Hughes v Lord Advocate in Jolley v Sutton London Borough Council [2000] 1 WLR 1082. but the common law principles were discussed and applied. In the Haley kind of case the defendants had behaved in a way that presented no danger to most people: only a person with a particular susceptibility would have been in any real danger of injury at all.1 and the case of Haley v London Electricity Board) but must be sharply distinguished from it. A very narrow test would mean that the defendant would be liable only if the very thing which happened was what would be expected and therefore foreseen: a very wide interpretation would suggest that the defendant would be liable for everything that you could imagine happening unless it was utterly far-fetched. Our present rule may be expressed this way: University of London External Programme 43 . It is sufficient if the injury is of the type that could be foreseen. the House of Lords unanimously held that it was.2. The defendant council had in breach of duty failed after several months to remove a derelict cabin cruiser that had been abandoned on its land. This looks like the issue discussed in Section 3. These cases show that it is not necessary to foresee precisely what happened. This is in the end a matter of judgment – the Court of Appeal unanimously held that the accident was not foreseeable. In particular it is not necessary to foresee either (i) the severity of the damage or (ii) the precise manner in which it occurred. and. The following are reasons why the effect has not been great: (a) How much is foreseeable? The significance of the new test was considered by the House of Lords in Hughes v Lord Advocate [1963] AC 837. The way it is used can be understood only by examining a selection of cases in which it has been considered. The issue was whether the council could foresee only that small children would be injured by clambering over it.4 Qualifications of the basic test Viscount Simonds certainly thought that the substitution of the new test would not affect the outcome of many cases. Foresight is not a term that can be applied mechanically. This is in fact a case based on the Occupiers’ Liability Acts (see Chapter 6). The approach in the cases decided since 1961 falls between these two extremes. or whether (as actually happened) teenaged children would be injured by jacking it up and working underneath it in order to make it seaworthy. This can be illustrated by the facts of Jolley. even it came about in an unexpected way or was much more severe than expected. after some hesitation it has been held that the principle of these cases had survived the introduction of the new rule for remoteness. This is a common source of confusion for students.Chapter 4 Negligence: causation and remoteness of damage 4.

then the defendant has. The defendant was liable for the negligent grazing of the claimant’s shin. the defendant has to compensate for the actual loss suffered. The obvious situation is this: the defendant has carelessly struck the claimant on the head. the allergy would not have been detected. even if the proper tests had been carried out. i.1. Robinson had an allergy to the injection and the reaction caused brain damage. Once the hospital’s negligence was out of the way. The claimant had an unforeseeable allergy. There is a good example in Robinson v Post Office [1974] 2 All ER 737. (c) Financial weaknesses What happens if the claimant has a financial rather than a physical weakness? If the defendant injures a claimant who happens. That was not foreseeable. then the defendant is liable for that further injury. though it was unforeseeable. The position used to be less clear where the claimant suffers additional damage because of poverty. the allergy was the equivalent of an egg-shell skull and.e. to be a leading soccer star whose career is ruined. the ‘but for’ test (see 4. There were two elements to the decision: The evidence was that. It is foreseeable that the claimant will suffer cuts and/or bruises. however unforeseeably. The leading case was Liesbosch Dredger v SS Edison [1933] AC 448 and many attempts have been made to explain and distinguish it. The hospital administered an antitetanus injection without carrying out the appropriate tests. the defendant was nevertheless liable for it. The particular claimant however has an exceptionally thin skull (an ‘egg-shell’ skull) and sustains a fractured skill and serious brain damage. Once that has happened.e. as with the egg-shell skull cases. to compensate the claimant for his actual loss. The House of Lords has however now decided that dicta in the Liesbosch case should not be followed.Law of tort where (i) the defendant is in breach of duty to the claimant and (ii) it was foreseeable that the claimant would suffer some physical injury and (iii) the particular claimant has a particular susceptibility or abnormality and as a result suffers more serious injury or injury of a different type from that which was foreseen. 44 University of London External Programme . See also Lagden v O’Connor [2003] UKHL 64 [2004] 1 All ER 277 [see from [45]-[62]). Therefore the hospital’s negligence was not a cause of the brain damage (i. ‘to take the victim as he finds him’. What has to be foreseen is physical injuries that were result in loss of employment. but the defendant is still liable for it. Notice that this case involves both a true causation point and an egg-shell skull point.1) was not satisfied.

He held that the original tortfeasor could be liable for intervening human conduct. negligent or innocent. Lord Reid reached the same conclusion by considering whether the acts of the boys were a new and intervening cause and deciding that they were not. University of London External Programme 45 . It is now possible to make the distinction more fully.Chapter 4 Negligence: causation and remoteness of damage 4. Think of the facts in the last paragraph. Or a patient Z goes berserk and stabs C repeatedly. The triangular situation just described should remind you of the case of Dorset Yacht Co v Home Office [1970] (see Chapter 3).5.1. The injuries sustained in the original car accident may have ended his career. but only if it was ‘something very likely to happen: a mere foreseeable possibility was not enough’.2. The problem now being considered arises if it argued that D is also liable for the additional consequences resulting from the stabbing. whether that was criminal. Or at the hospital a nurse Y administers to C the wrong dose of the drug and causes brain damage.5 4. Clearly if it had not been for D’s negligence C would not have been in the ambulance or in the hospital and would not have suffered further injuries.2.1 and associated with cases such as Baker v Willoughby. Is D liable not only for the original injuries but also for the more serious later injuries caused by X.1 New and intervening cause General A particular problem of remoteness arises in the following circumstances: C (injured) X (intervening conduct) D (negligent) D negligently collides with C’s car and injures him. C may have been a professional footballer. Therefore they were in a factual sense caused by the original negligence: but were they too remote? A word of warning: students often find it difficult to distinguish between this problem and that described in 4. That is the problem dealt with in 4. That phrase has been considered in a number of later cases. On the way to the hospital the ambulance driver X crashes into a tree and causes C severe injuries. We may be interested in knowing whether D continues to be liable for those consequences even after the stabbing which would independently have destroyed his career. Y or Z? This is the problem of the new and intervening cause (in the cases this is often expressed in Latin as nova causa interveniens or as novus actus interveniens). That case is usually analysed in terms of whether the borstal officers owed a duty of care to the owners of the yacht.

Smith v Littlewoods Ltd [1987] AC 241.g. 46 University of London External Programme . or.Law of tort 4. duty. i. Lord Goff’s will be considered under the heading of liability for omissions (Section 5. one after the other.e. those of Lord Mackay of Clashfern and Lord Goff of Chieveley. She is taken to hospital and as the result of her treatment her injuries are worse than they were otherwise expected to be.6 Look at the Dorset Yacht. Sometimes intervening criminal conduct. In all these cases the claim failed.5. Lamb. 4. Cindy is injured by the negligence of Daphne. (a) The hospital is not negligent. but they followed different lines of reasoning.3). breach and remoteness. (c) Where the hospital’s negligence falls between those two. is not too remote if it is closely related to the risk posed by the defendant’s conduct: Al-Kandari v Brown [1988] QB 665.2 Intervening criminal conduct The following cases are relevant: Lamb v Camden London Borough Council [1981] QB 625.1). The implication of Robinson v Post Office is that in such cases the defendant would not be liable for the aggravation of the injuries. as in Robinson v Post Office (see 4. In that case Daphne is likely to be liable for all the subsequent injuries. it is likely that it would not break the chain of causation. Smith and Al-Kandari cases. In which of these cases was the defendant liable for the consequences of the criminal behaviour of others? Identify the differences in facts that led to liability in these cases and not in the others. but the following would seem to be relevant distinctions.3 Intervening negligent conduct There could be many situations in which the subsequent carelessness of some third party has caused new injuries. The most likely situation relates to medical treatment administered to the victim. even though surprising. Daphne has brought about the need for hospital care. There is not conclusive authority on that point. Does that mean that she has to be answerable in law for the further medical complications or is she entitled to assume that Cindy will receive proper care and pass on responsibility to the hospital for the aggravation of the injuries? The law is not entirely separated. Note: This is a striking example of a case in which the Court of Appeal went through each of the elements of the negligence action. Feedback: see page 49. Activity 4. The Littlewoods case is particularly instructive: note that there are two leading speeches. but that both the original defendant and the hospital would be jointly liable for the consequences. Perl v Camden London Borough Council [1984] QB 342. (b) Gross negligence by the hospital unconnected with the initial injury (e. Lord Mackay’s reasoning relates more closely to the issues discussed in this chapter. amputating the wrong leg).4) the hospital’s negligence fails the ‘but for’ test (see 4. One example is Knightley v Johns [1982] 1 WLR 399.5.

subsequent conduct by the claimant is in issue. Cecil returns to work after a month. Where the defendant is being asked to take responsibility for the claimant’s own failures. contributory negligence or illegality available so as to defeat the claim or reduce the damages available? Examples of where the claimant’s subsequent actions are careless are McKew v Holland & Hannen & Cubitts [1969] 3 All ER 162. and his employer has a backlog of work.Chapter 4 Negligence: causation and remoteness of damage 4. but two days later while working on a stepladder he turns dizzy and falls to the ground. breaking his arm. where the defendant had a duty to protect the claimant against an identified risk (e. (See the Reeves case below. He is very conscientious and is bored at home.g. University of London External Programme 47 .5. He is advised by the doctors not to return to work for three months. Reminder of learning outcomes By this stage you should be able to: explain the concept of remoteness of damage in general and identify the basic rules of remoteness in the tort of negligence identify the policy reasons for choosing that rule of remoteness. if it materialises. Is Delia liable for the broken arm? Feedback: see page 49. Wieland v Cyril Lord Carpets [1969] 3 All ER 1006. (i) Did the defendant owe a duty to protect the claimant against the claimant’s own stupidity? See the discussion in Section 3. cannot be a new and intervening cause. that the claimant would commit suicide).2. Activity 4. Examples of where the claimant’s subsequent actions are deliberate are Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283 and Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360. however.4 Intervening conduct by the claimant So far it has been assumed that the new and intervening acts were perpetrated by a third party: sometimes.7 Cecil is injured in a road accident caused by the negligence of Delia. there are several conceptual mechanisms to be considered. then the risk. (ii) Did the claimant’s own conduct break the chain of causation? It is certainly likely that.) (iii) Are any of the defences of voluntary assumption of risk. explain the concept of new and intervening cause and relate it (a) to the actions of third parties and (b) to actions by the claimant subsequent to the negligence of the defendant.

You must carefully explain what Ursula has done and why. However he had back problems and so was referred to Ursula. There was. He experienced terrible back pains and is now permanently disabled. a new surgical procedure that offered a very good prospect of strengthening his back sufficiently to enable him to play rugby. Although the operation was carefully performed. Theo lifted his mother inside. did Ursula continue to be liable for the original consequences (loss of job as plumber) even after lifting mother (Baker v Willoughby and Jobling)? 48 University of London External Programme . If he were to give up rugby she advised him that he would be able to lead a normal life without back trouble for many years. Is that a breach of duty? (c) The main issues are causation: (i) both scenarios: was Ursula’s negligence the cause of the original injuries? (Chester v Afshar again).] (a) Ursula owes a duty to Theo. Theo decided to have the surgery. but because she thought the research suggesting that there was a small risk was flawed. Ursula knew that recent research had suggested that the new procedure carried a small risk of damaging the spine. He was then unable to work as a plumber and suffered considerable pain. he suffered serious damage to his spine. [There is also a minor point that the hospital or health authority will be vicariously liable – see Chapter 13 – but no problem arises on that and it can be stated in a sentence. (b) Is Ursula in breach? More discussion required. an apprentice plumber and a talented rugby player.Law of tort Sample examination question In 2004 Theo was aged 19. Ursula was critical of this research and did not tell Theo about it. As there was no help available. This is a classic duty situation and no extended discussion is required. however. Advise Theo as to any tort claim against Ursula on each of the following alternative assumptions: (a) he would probably have suffered no injury as the result of lifting his mother but for the earlier operation (b) he would probably have suffered the same injury as the result of lifting his mother even if he had not had the earlier operation. (ii) On the first scenario. She told him that it would be impossible for him to take part in professional rugby without soon sustaining serious injury and no club would sign him on as a professional. was Ursula also liable for the additional consequences of lifting mother (McKew.)? (iii) On the second scenario. etc. especially on Chester v Afshar. In January 2005 Theo’s mother collapsed just outside her front door on a very cold night. She didn’t withhold the information from Theo because there was only a small risk. He hoped to sign a contract as a professional player and eventually to play for England. Advice on answering the question This question raises issues on Chapters 3 and 4. a neurosurgeon.

) Activity 4. (b) It might be important to know whether the brandy caused the death (in which case the important issue is whether administering brandy was a breach of duty) or whether the brandy was irrelevant and the cause of death was a failure to call for an ambulance in the sense that medical treatment would have saved C (in which case the important issue is whether such failure was a breach of duty – on this see 5.6 Among the relevant differences are these: (a) In Dorset Yacht and to some extent in Al-Kandari there was responsibility on the part of D for X. But in turning this head damage into money it is not necessary to show that she would probably have become a solicitor. There was none in the other cases. (b) Again in Dorset Yacht and Al-Kandari the criminal conduct was the very thing that might have been expected and not just a foreseeable possibility. Would you want to apply it to a conscientious as well as a foolhardy claimant? University of London External Programme 49 .2 It is important to distinguish the two issues. Activity 4. this might be difficult to apply. Activity 4.3 This case falls between Baker v Willoughby and Jobling v Associated Dairies. but in the present climate of opinion about speeding.5 No feedback provided. Activity 4. However the courts may take the view that Parliament has set a proper standard and failure to observe it must therefore be a breach of civil duty of care. Activity 4. but does Cecil’s decision amount to a new and intervening cause? Read McKew. (c) See McWilliams v Sir William Arroll.4 Feedback provided at the end of the activity.Chapter 4 Negligence: causation and remoteness of damage Feedback to activities: Chapter 4 Activity 4. She has to prove on a balance of probabilities that she would not have suffered the actual damage (the head injuries) if the lifeguard had carried out a careful rescue.3). see Chapter 13.7 Clearly Delia’s negligence satisfied the ‘but for’ test of causation. Both views are arguable. Activity 4. There is some authority (about 50 years ago) that exceeding the speed limit is not necessarily negligent (because in the particular circumstances reasonable care was shown).1 (a) The driver is doing two things that are criminal (speeding and using her mobile phone while driving). (For more on calculation of damages for personal injuries. The main issue is that D cannot be liable unless C shows on a balance of probabilities that D would have been able to stop if she had not been speeding and using her phone. The second event is not a natural disease and it is not a tort. You have to decide which authority should be applied to these facts. This does not necessarily mean that they are tortious (see Chapter 1).

Law of tort Notes 50 University of London External Programme .

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