Tort Law Lecture Notes

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Tort law lecture notes
Law of Torts (Islamic University in Uganda)
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DONOGUE V STEVENSON.
A manufacturer of ginger beer sold it to a retailer in an opague bottle. The retailer resold it to A.
who treated a young woman of her acquaintance to the ginger beer. Its contents turned out to
be decomposed remains of a snail which had gained entry into the bottle at the factory. The
young woman became seriously ill and sued the manufacturer for negligence.
Lord Atkin held; in English law there must be and is some general conception of relations giving
rise to a duty of care of which particular cases found in the books are but instances. The liability
for negligence, whether you style it such or treat it as a species of culpa, is no doubt based upon
a general public sentiment of moral wrong doing for which the offender must pay. But acts of
omissions which pay moral code would censure cannot in a practical world be treated so as to
give a right to every person injured by them to demand relief. In this way rules of law arise
which limit the range of complainants and the extent of their remedy. The rule that you are to
love your neighbor in law becomes, you must not injure your neighbor. And the lawyers
question who is my neighbor? Receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure you neighbor.
Who then is my neighbor? The answer seems to be, persons who are so closely and directly
affected by my acts that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in question.
In that case, the house of Lords held that the manufacturer owed the plaintiff a duty to take
care that the bottle did not contain noxious matter and that he would be liable if that duty was
broken.
In the above case Lord Macmillan said that the “categories of negligence are not closed”, that is,
that the courts possess the power to create new duty situations thereby expanding the area of
liability. This has enabled the law of negligence to develop and cover new situations where
there has been injury to person or property of another.
Elements of negligence
1. The existence of the duty of care
2. The breach of the duty of care
3. Damages as a result of that breach
Mwananchi Service Station and another v Minga [1973] 1 EA 305

(CAD)

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The issue was whether The second defendant (total tanzaania ltd)
and first defendant as the distributor owed a duty of care to the
consumer to ensure that kerosene was free from contamination
The first appellant was the distributor of the second appellant’s petroleum
products. It sold to the
appellant as kerosene an inflammable mixture of kerosene and petrol. The
explosion and fire which
resulted when the respondent’s friend attempted to use the mixture damaged his
house.
The trial court awarded the respondent damages holding that the appellants owed
him a duty of care
which they had broken in selling him the mixture.
On appeal the appellants contended that the fire had been caused by the actions of
the friend and that
the respondent had no right to sue, and that the appellants had a fool-proof system.
Held –
(i) the respondent had suffered damage as a result of the appellant’s negligence and
could sue
thereon;
( ii) there was no evidence of any intervening act of a third party.
Appeal dismissed.
A duty of care was owed to the landlord because as an owner of the house he
should have been contemplated by the appellants as being affected by their
products. He was neither the consumer nor the purchaser but it was foreseeable
that he might suffer damage if the kerosene was not wholesome (contaminated).
The service station was found liable because the product passed through their
hands in order to reach the consumer. The manufacturer was liable because there
was no possibility of intermediate inspection.
In reaching the conclusion that there was a duty of care owed to the respondent and
thus holding the appellants liable in negligence, court took into consideration the
fact that;
a. Kerosene is supposed to reach the ultimate consumer in its distributed

form, and
b. Kerosene was an article of common domestic use

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That those two elements should make it foreseeable that if the manufacturer
does not take care, accidents are bound to happen.
(In some instances because the manufacturer is outside the jurisdiction of the
local courts the plaintiff may be unable to file a suit against him and so the
theoretical liability may not be practical in such instances).
Foreseeability of injure is thus the basis of a duty of care. In the case of
Namyalo v Ratanshi [1968] 1 EA 14 (HCU)

Division: High Court of Uganda at Kampala
Date of judgment: 14 December 1967
Case Number: 908/1965 (5/68)
Before: Sheridan J
[1] Negligence – Blind person – Extent of duty of care owed to blind man on the
highway in Uganda by
driver of a vehicle.
Editor’s Summary
The plaintiff claimed damages for the death of her husband, who was run over by a
lorry driven by the
defendant’s servant. The deceased was nearly blind. The driver of the lorry, going
at about 40 m.p.h., saw
the deceased about to cross the road, and hooted, whereupon the deceased started
to cross the road,
walking quickly. The driver took evasive action, but failed to miss him. The
deceased was
unaccompanied and there was nothing to indicate that he was nearly blind.
Held – the driver had no means of knowing that the deceased was nearly blind and
the plaintiff had failed
to prove negligence (Haley v. London Electricity Board (1) distinguished).
Suit dismissed.
Haley v London Electricity Board

The appellant, a blind man, while walking along a pavement in a residential area in
Woolwich on his way to work (as he had done for six years) tripped over
an obstacle placed by servants of London Electricity Board near the end of a
trench, which they were excavating in the pavement under statutory authoritya;
the appellant fell and was injured. The obstacle, a punner hammer some five feet
long, was resting across the pavement, with its handle at one end two feet

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above the ground on railings on the inside of the pavement, while the other end lay
on the pavement about a foot from the outer edge, so that the hammer was
at an angle of thirty degrees to the pavement. It had been placed there by the
board’s servants to protect pedestrians from the trench and to deflect them into
the road. The appellant was alone and had approached with reasonable care,
waving his white stick in front of him to detect objects in his way and also feeling
the railings with it, but the stick missed the hammer and his leg caught it about four
and a half inches above his ankle causing him to be catapulted over onto
the pavement. The hammer gave adequate warning of the trench for normally
sighted persons. In an action for damages on the ground of the board’s
negligence there was evidence that about one in five hundred people were blind;
that in Woolwich there were 258 registered blind; that the Post Office took
account of the blind in guarding their excavations, using for the purpose a light
fence some two feet high, and that more than once the appellant had detected
such fences with his stick.
Held – The duty of care owed by persons excavating a highway, in guarding the
excavation made by them, extended to all persons whose use of the highway
was reasonably likely and thus reasonably foreseeable, not excluding the blind or
infirm, and the use of a city pavement such as this by a blind person was
reasonably foreseeable; on the facts, the punner hammer was not an adequate or
sufficient warning for a blind person who was taking the usual precautions by
use of his stick, and accordingly the appellant was entitled to recover damages at
common law for negligence (see p 189,
sendi V
Murphy v Brentwood
murphy v Brentwood District Council [1991] 1 AC 398 was a House of Lords decision on
recovery of pure economic loss in tort. It is considered to overrule the decision Anns v Merton
London Borough Council.
The defendant local authority failed to inspect the foundations of a building adequately, with the
result that building became dangerously unstable. The claimant, being unable to raise any money
for repairs, had to sell the house at a considerable loss, which he sought to recover from
Brentwood District Council. This action failed as the loss was identified as a Pure Economic
loss.
This judgment was rejected in many other Commonwealth jurisdictions, notably Canada,
Australia and New Zealand, all of whom preferred the two stage Anns test of proximity and
policy.

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Judgment
The House of Lord overruled Anns and held that the council was not liable in the absence of
physical injury.
Home Office v Dorset

Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 is a leading case in English tort law. It is a
House of Lords decision on negligence and marked the start of a rapid expansion in the scope of
negligence in the United Kingdom by widening the circumstances in which a court was likely to
find a duty of care. The case also addressed the liability of government bodies, a person's liability
for the acts of third parties that he has facilitated, and liability for omissions.
Facts
On 21 September 1962, ten borstal trainees were working on Brownsea Island in the harbour
under the control of three officers employed by the Home Office. Seven trainees escaped one
night, at the time the officers had retired to bed leaving the trainees to their own devices. The
seven trainees who escaped boarded a yacht and collided with another yacht, the property of the
respondents, and damaged it. The owners of the yacht sued the Home Office in negligence for
damages.
A preliminary issue was ordered to be tried on whether the officers or the Home Office owed a
duty of care to the claimants (or plaintiffs as they were termed prior to the adoption of the Civil
Procedure Rules in 1999) capable of giving rise to liability in damages. It was admitted that the
Home Office would be vicariously liable if an action would lie against any of the officers. The
preliminary hearing found for the Dorset Yacht Co. that there was, in law, a duty of care and that
the case could go forward for trial on its facts. The Home Office appealed to the House of Lords.
The Home Office argued that it could owe no duty of care as there was no precedent for any duty
on similar facts. Further, it was argued that there could be no liability for the actions of a third
party and that the Home Office should be immune from legal action owing to the public nature of
its duties.
Judgment
Court of Appeal

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Lord Denning MR held that the Home Office should not be liable for the damage on grounds of
public policy. He stated,[1]
Many, many a time has a prisoner escaped - or been let out on parole - and done
“ damage. But there is never a case in our law books when the prison authorities have
been liable for it. No householder who has been burgled, no person who has been
wounded by a criminal, has ever recovered damages from the prison authorities; such
as to find a place in the reports. The householder has claimed on his insurance
company. The injured man can now claim on the compensation fund. None has
claimed against the prison authorities. Should we alter all this: I should be reluctant
to do so if, by so doing, we should hamper all the good work being done by our
prison authorities. ”
House of Lords
The House of Lords held by a majority that the Home Office was liable to the Dorset Yacht Co
Ltd for the damage the boys had caused.[2] Lord Reid held,
...the well-known passage in Lord Atkin's speech should I think be regarded as a

“ statement of principle. It is not to be treated as if it were a statutory definition. It will
require qualification in new circumstances. But I think that the time has come when
we can and should say that it ought to apply unless there is some justification or valid
explanation for its exclusion. ”
Lord Reid then applied the principle with particular emphasis on foreseeability.
...the taking by the trainees of a nearby yacht and the causing of damage to the other
“ yacht which belonged to the respondents ought to have been foreseen by the borstal
officers as likely to occur if they failed to exercise proper control of supervision; in
the particular circumstances the officers prima facie owed a duty of care to the
respondents... ”
Viscount Dilhorne gave a dissenting judgment.
Significance

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The case is perhaps relevant not only for its clear elucidation of the Atkinian notion of
Neighbourhood but also for its expression of a thoroughly incrementalist approach to the
development of the duty of care. Lord Reid held:
‘there has been a steady trend toward regarding the law of negligence as depending on principle
so that when a new point emerges one should ask not whether it is covered by authority but
whether recognised principles apply to it. Donoghue and Stevenson may be regarded as a
milestone, and the well-known passage in Lord Atkin’s piece should I think be regarded as a
statement of principle … it ought to apply unless there is some justification or valid explanation
for its exclusion. For example, causing economic loss is a different matter’
DUTY OF CARE
A duty of care is owed from the cases it is a duty care reasonable care. In the case
of Grant V Austrarian knifing mills ltd
it is a standard to take care that the product is not contaminated. the existence of
a duty of care is a question of law and coupled with this issue is that the duty
must be owed to the plaintiff.
BOURHILL V YOUNG.
The plaintiff was not owed a duty of care by the defendant. He only owed a duty
of care to other road users and as such the plaintiff would not be awarded
damages.
Since Donoghue right from the 1970, the principle of has been too broad to
determine the basis of liability in negligence. Since then the court has tried to
narrow down the neighbor principle
In home office v dorset in that case a qualification the neighbor principle apply
unless there is some justification of it exclusion. It evisages the situation were you
can not find a duty of care unless the is the neighbor principle.

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In Anns there is the articulation of the two stage test for determining the duty of
care. Court said first one has to ask whether there is a sufficient relationship of
proximity in which case a primafacy duty arises
Secondly if the first question is answered affirmatively, it is necessary to consider

whether there is any consideration which ought to negative or reduce or limit the
scope of duty.
Subsequently the court must decide whether it is fair, just and reasonable to
impose a duty of care. This is what is refereed to as the three stage test for
determining a duty of care and this best stipulated in the caparo case. It says
1. Reason of foreseeability
2. Proximity
3. Whether it is fair, just and reasonable to impose a duty.
In these stages, it is all about the existence of a duty of care as a question of law.
The court seeks to impose a duty of care in a new category of relationships as
envisaged in these stages. However in the normal situation this not what happens
because the categories are already established and the lawyer would only seek to
establish a duty in fact for example that the client is suffered injury.
Considerations that courts take into account in establishing a duty of care.
BREACH OF DUTY OF CARE.

WELLER V FOOT AND DISEASE RESEARCH INSTITUTE.
Issues
Whether auctioneers within scope of duty owed by research institute –
Whether damages recoverable under the rule in Rylands v Fletcher.
The principle of the common law that a duty of care which arises from a risk of
direct injury to person or property is owed only to those whose persons or

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property may foreseeably be injured by a failure to take care is not affected by the
decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd ([1963] 2 All ER 575); in
order to have a right of action for negligence a plaintiff must show that he was
within the defendant’s duty to take care, and he may then recover by way of
damages for the direct and consequential loss reasonably foreseeable, but,
though proof of direct loss is not an essential part of the claim, he must establish
that he was within the scope of the defendant’s duty of care (see p 570, letter d,
post).
In consequence, as was assumed, of the escape of a virus imported by the

defendants and used by them for experimental work on foot and mouth disease
at land and premises owned and occupied by them, cattle in the vicinity of the
premises became infected with the disease. Because of the disease an order was
made under statutory powers closing cattle markets in the district, with the result
that the plaintiffs, who were auctioneers, were temporarily unable to carry on
their business at those markets and suffered loss. The court was required to
assume that the loss to the plaintiffs was foreseeable and that there was neglect
on the part of the defendants which caused the escape of the virus. On the
question whether in law an action for damages would lie for the loss,
Held –(i) an ability to foresee indirect or economic loss to another person as the
result of a defendant’s conduct did not automatically impose on the defendant a
duty to take care to avoid that loss (see p 570, letter c, post); in the present case
the defendants were not liable in negligence, because their duty to take care to
avoid the escape of the virus was due to the foreseeable fact that the virus might
infect cattle in the neighborhood and thus was owed to owners of cattle, but, as
the plaintiffs were not owners of cattle, no such duty was owed to them by the
defendants (see p 570, letter f, post).
The floodgate
argument it relates to the court determining the
principle having in mind for the court to limit

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there are policies which court uses to limit the

liability in duty of care and limit it-
the duty of care
for example The plaintiff auctioneas were foreseeable but no duty is owed to
them because the court use a floodgate argument is used and it administers the
duty to those who are the proprietary interest owners. Because the court wants to
limit the liability to a limited categories of persons. In this case the plaintiff fails
not because his loss was not upheld because he was not owed a duty of care on
policy ground
Where the imposition of the duty to prevent the defendant from doing his job
properly in order to ensure that the liability does not stand in a way of some body
doing his job properly. Makay kay v SS area authority, it is against public policy to
claim that you should not have been born
Courts will not impose a duty where there is an alternative system of

compensation, gill v chief constable of york, whether in public law
Beyond that a duty of care can be imposed by statute- kibed’s case
The court has to determine whether the duty of care exisists on the basis of the
exercise of the duty, a power or a discretion imposed on the defendant by public
law- Anns case
Anns V. Morton London Borogh Council

Facts
The plaintiffs under took a lease over flats in a local area where the relevant law of
the local government act provided in para that before any erection of a building the local
authority was supposed to carry out inspection and ensure that such a building met the
requirements and abide with the policies. The authority did not inspect the building and

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the lease holders suffered damages as a result of poor construction which prompted
them to sue the council for the tort of negligence.
the liability of local authorities for defects in dwellings constructed by builders
in their area namely:
1. Whether a local authority is under any duty of care towards owners
or occupiers of any such houses as regards inspection during the
building process.
2. What period of limitation applies to claims by such owners or occupiers
against the local authorities.
appeared in 1970, then, since the writs were issued in 1972, the consequence
must be that none of the present actions are barred by the Act.
Conclusion. I would hold:
1. that Dutton v. Bognor Regis was in the result rightly decided. The
correct legal basis for the decision must be taken to be that established
by your Lordships in this appeal.
2. that the question whether the defendant council by itself or its officers
came under a duty of care toward the plaintiffs must be considered
in relation to the powers, duties and discretions arising under the
Public Health Act 1936;
3. that the defendant council would not be guilty of a breach of duty in
not carrying out inspection of the foundations of the block unless it
were shown (a) not properly to have exercised its discretion as to
the making of inspections, and (b) to have failed to exercise reasonable
care in its acts or omissions to secure that the byelaws applicable to
the foundations of the block were complied with;
310530 A3
10
4. that the defendant council would be liable to the respondents for breach
of duty if it were proved that its inspector, having assumed the duty
of inspecting the foundations, and acting otherwise thanin the bona fide
exercise of any discretion under the statute, did not exercise reasonable
care to ensure that the byelaws applicable to the foundations were
complied with;
5. that on the facts as pleaded none of the actions are barred by the
Limitation Act 1939.
And consequently that the appeal should be dismissed with costs.

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Caparo P/lc Industries V. Dickman and others

– Whether sufficient proximity between auditor and
shareholders or potential investors – Whether just and
reasonable to impose duty of care on auditor – Whether
auditor owing duty of care to shareholders or potential
investors to carry out audit with reasonable care and
skill.
The plaintiffs owned shares in a public company, F plc,
and were interested in making a take-over bid for it. As
shareholders the plaintiffs were entitled to receive the
audited accounts of F plc and after receipt of the
accounts for the year ended 31 March 1984 they
purchased more shares in F plc and later that year made
a successful take-over bid. Following the take-over, the
plaintiffs brought an action against, inter alios, the
auditors of F plc, alleging that they had made their bid in
reliance on F plc’s audited accounts and that the
auditors had been negligent in auditing the accounts,
which instead of showing a reported profit of £1·3m
should have shown a loss of £0·46m. On the trial of a
preliminary issue, the judge held that the auditors owed
no duty of care to the plaintiffs either as shareholders or
as potential investors. The plaintiffs appealed to the
Court of Appeal.
Held (O’Connor LJ dissenting)– The auditor of a public

company owed a duty of care to individual shareholders
to carry out his audit of the company using reasonable

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care and skill and, since it was reasonably foreseeable

that shareholders and potential investors in the company
might rely on the auditor’s report in considering whether
and how to deal in the company’s shares, there was
sufficient proximity between the auditor and the
shareholders arising out of the close and direct
relationship between an auditor and the shareholders
and the fact that the auditor voluntarily assumed direct
responsibility to individual shareholders, and it was just
and reasonable to impose a duty of care on the auditor.
However, although such a duty was owed to a
shareholder in respect of the purchase of further shares
in the company, it was not owed to potential investors in,
or 798 take-over bidders for, the company, having regard
to the lack of proximity between the auditor and
potential investor and the fact that it would not be just
and reasonable to impose a duty on the auditor to non-
shareholding investors. Accordingly, if the plaintiffs
could show that the auditors had failed to exercise the
ordinary skill and care of a reasonable and competent
auditor and that they had relied on the audited accounts
of F plc and had suffered damage as a result, they were
entitled to succeed in their claim against them. The
appeal would therefore be allowed to that extent
Grant V Australian Knitting Mills

The question is whether the appellant suffered from dermatitis caused by a chemical agent in the
garment
The appellant, who contracted dermatitis of an external origin as the result of wearing a woollen
garment which, when purchased from the retailers, was in a defective condition owing to the

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presence of excess sulphites which, it was found, had been negligently left in it in the process of
manufacture, claimed damages against both retailers and manufacturers:-
Held, first, that the retailers were liable in contract for breach of implied warranty or condition
under exceptions (i.) and (ii.) of s. 14 of the South Australia Sale of Goods Act, 1895 (identical
with s. 14 of the English Sale of Goods Act, 1893).
FAILURE TO ACT AS NEGLIGENCE OR OMISSION

White and another v Jones and others
TORTS; Negligence: PROFESSIONS; Lawyers
HOUSE OF LORDS
LORD KEITH OF KINKEL, LORD GOFF OF CHIEVELEY, LORD BROWNE-WILKINSON, LORD MUSTILL
AND LORD NOLAN
7–10, 14 MARCH 1994, 16 FEBRUARY 1995
Solicitor – Negligence – Will – Duty of care – Instructions to draw up will conferring benefit on
identified beneficiary – Solicitor failing to draw up will –
Testator dying before will prepared or executed – Whether solicitor owing duty of care to
intended beneficiary.
On 4 March 1986 the testator, who had quarrelled with the plaintiffs, his two daughters,
executed a will cutting them out of his estate. In June the testator
was reconciled with the plaintiffs and sent a letter to his solicitors giving instructions that a new
will should be prepared to include gifts of £9,000 each to
the plaintiffs. The solicitors received the letter on 17 July but nothing was done to give effect to
those instructions for a month. On 16 August the
All England Law Reports 1936 - books on screen™
Preamble
solicitors’ managing clerk asked the firm’s probate department to draw up a will or codicil
incorporating the new dispositions. The following day the

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managing clerk went on holiday and on his return to work a fortnight later he made
arrangements to visit the testator on 17 September. However, the
testator died on 14 September before the new dispositions to the plaintiffs were put into effect.
The plaintiffs brought an action against the solicitors for
damages for negligence. The judge held that the solicitors owed no duty of care to the plaintiffs
and dismissed the action. The plaintiffs appealed to the
Court of Appeal, which allowed the appeal on the grounds that a solicitor who was instructed to
prepare a will for a client and, in breach of his
professional duty, failed to do so was liable in damages to a disappointed prospective

beneficiary if the client died before the will had been prepared or
executed. The Court of Appeal held that the plaintiffs were each entitled to damages of £9,000.
The solicitors appealed to the House of Lords,
contending that the general rule was that a solicitor acting on behalf of a client owed a duty of
care only to his client under the solicitor-client retainer,
which was contractual in nature, that since the plaintiffs’ claim was for purely financial loss any
claim could only lie in contract and not in tort and there
was no contract between the solicitor and a disappointed beneficiary, and that no claim lay in
tort for damages in respect of a mere loss of an expectation,
which fell exclusively within the zone of contractual liability.
Held – (Lord Keith and Lord Mustill dissenting) Where a solicitor accepted instructions to draw
up a will and as the result of his negligence an intended
beneficiary under the will was reasonably foreseeably deprived of a legacy the solicitor was
liable for the loss of the legacy, for the following reasons—
(a) (per Lord Goff and Lord Nolan) The assumption of responsibility by a solicitor towards his
client should be extended in law to an intended
beneficiary who was reasonably foreseeably deprived of his intended legacy as a result of the
solicitor’s negligence in circumstances in which there was
no confidential or fiduciary relationship and neither the testator nor his estate had a remedy
against the solicitor, since otherwise an injustice would occur

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� 691� because of a lacuna in the law and there would be no remedy for the loss caused by the
solicitor’s negligence unless the intended beneficiary
could claim
doubted.
(b) (per Lord Browne-Wilkinson and Lord Nolan) Adopting the incremental approach by analogy
with established categories of relationships giving
rise to a duty of care, the principle of assumption of responsibility should be extended to a

solicitor who accepted instructions to draw up a will so that he
was held to be in a special relationship with those intended to benefit under it, in consequence
of which he owed a duty to the intended beneficiary to act
with due expedition and care in relation to the task on which he had entered
applied.
It followed that the solicitors owed the plaintiffs a duty of care and since their negligence had
effectively deprived the plaintiffs of the intended
legacies their appeal would be dismissed Decision of the Court of Appeal affirmed.
FELLOWES V ROTHER DISTRICT COUNCIL

Whether authority owing duty of care to landowner at common law
Whether authority could be liable for loss of land.
The Coast Protection Act 1949 conferred on coast protection authorities power to
carry out such coast protection works as appeared to them necessary or
expedient. In the purported exercise of that power a coast protection authority
carried out certain repairs to a groyne on a beach adjoining the plaintiff’s
property. In the course of the work the height of the groyne was lowered. Some
time later part of the plaintiff’s land adjoining the groyne was washed away
by the sea. He brought an action against the authority claiming damages for
negligence, alleging that the authority owed him a duty at common law to take
reasonable care when carrying our the repair work, and that lowering the height of
the groyne was a breach of that duty because that had created a scouring
effect causing the sea to wash away part of his land. The authority denied liability,
contending that the plaintiff could not rely on the common law duty of care

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because it has acted bona fide in pursuance of the discretionary power conferred on
it by the 1949 Act, which provided a statutory remedy for complaints
about work undertaken in the exercise of such power. The question whether the
authority could be held responsible for the damage to the plaintiff’s property
if the alleged facts were proved was tried as a preliminary issue.
Held – (1) A plaintiff who brought an action for damages for negligence at
common law against a public body which purported to act in pursuance of a
statutory power could succeed only if he could show (a) that the act complained of
was not within the limits of a discretion bona fide exercised under the
relevant power, (b) that, having regard to all the circumstances (including the
legislation creating the relevant power), there was sufficient proximity between
the plaintiff and the defendant to create a duty of care on the part of the defendant,
to avoid damage to the plaintiff of the type complained of, (c) that there
was no ground for negativing, reducing or limiting the duty of care and (d) that it
was reasonably foreseeable that the act of the defendant, or those for whom
he was vicariously responsible, was likely to cause damage of the type in fact
suffered by the plaintiff by reason of such act. In considering those matters,
there was no rule that, merely because the defendant was acting under a statutory
power as opposed to a statutory duty, liabilty was contingent on the
defendant causing the plaintiff fresh or additional damage (see p 520 g and p 522 a
to d and h to p 523 a, post); Anns v Merton London Borough [1977] 2 All
ER 492 applied; Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430,
Sheppard v Glossop Corp [1921] All ER Rep 61, East Suffolk Rivers
Catchment Board v Kent [1940] 4 All ER 527 and Home Office v Dorset Yacht Co
Ltd [1970] 2 All ER 294 considered.
(2) Assuming the plaintiff could establish that the lowering of the groyne was not
within the area of the discretionary power conferred on the defendants
by the 1949 Act, the facts as pleaded disclosed (a) that there was a sufficient
relationship of proximity between the parties to create a duty of care by the
authority to avoid the type of damage of which the plaintiff complained and (b)
that there were no grounds for negativing or limiting that duty of care. The
fact that the 1949 Act provided a remedy in relation to works undertaken by a coast
protection authority did not affect the existence of the duty of care,
because that remedy applied only to acts within the area of the authority’s � 513�
discretionary power. However, to succeed in the action the plaintiff would
still have to establish that it was reasonably foreseeable that the act of the authority,
or those for whom it was vicariously responsible, in lowering the groyne
was likely to cause part of the plaintiff’s land to be washed away by the sea and
had in fact caused such damage (see p 523 d to p 524 b, post).

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BREACH OF THE DUTY OF CARE

The question of breach of duty of care is a question
of fact and not law
The formulation of whether or not the defendant
breached a duty of care is simple, I,e omission to do
what a reasonable man guided upon consideration
which ordinarily redly the conduct of human affairs
would do or doing something which the prudent
and reasonable man would not do. A breach may be
a commission or an omission, may doing something
that a reasonable man would not do or omitting to
what a reasonable man would do. The yardistic is a
reasonable man
it is a
This concept is supposed to embody a standard of care which is expected to
societal standard. Mc william V sir William case. A standard of
a reasonable man normally reflects certain societal interests
Mc william V sir William
The breach of statutory duty. No liability if employee refuses to wear safety devices.

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A civil right of action for a Breach of Statutory Duty arises if it is shown that (inter alia) the
damage or injury was caused or was materially contributed to by the breach.
Facts
A steel erector fell seventy feet from a steel tower in the building of which he was assisting. He
was killed by the fall and his widow and administratrix (one who administers the estate of an
intestate) claimed damages from his employers for negligence and from the occupiers of the
shipyard in which the tower was being built for breach of statutory duty under the Factories Act
1937, s26(2), in failing to provide a safety belt for use by the steel erector. If a safety belt had
been worn by the deceased he would not have been killed by the fall. The deceased was an
experienced steel erector, and on the evidence it was highly probable that he would not have
worn a safety belt if one had been provided. The employer had normally made safety belts
available but, as they were not being used much on this particular site, the belts had been taken
away for use elsewhere.
The Decision
It was held by the House of Lords that assuming that the employers and the occupiers of the site
were in breach of their respective duties in not providing a safety belt, nevertheless they were not
liable in damages because their breach of duty was not the cause of the damage suffered since (a)
on the evidence the deceased would not have worn a safety belt if it had been provided, and (b)
there was no duty on the employers to instruct or exhort the deceased to wear a safety belt.
Note
Before a claim for damages for breach of statutory duty can succeed, the employee must prove
that the employer’s action or inaction caused the injury. If the employer can show that the
employee brought the injury upon himself by failing to take advantage of the safety measures
then no liability will fall upon the employer. In a case where safety measures are not provided or
are not available, the employer will still escape liability if it can be shown that the employee
would not have used them even if they had been available.
There are four steps to proving causation in a case like this:

1. There existed a duty to supply a safety belt
2. There was a breach of that duty
3. That if there had been a safety belt the employee would have used it
4. That if the employee had used it he would have suffered no injury or a lesser injury than he
did.
If one of these links in the chain of causation is broken a claim for damages must fail.
Furthermore, there is no rule that employers are under a duty to insist that employees do actually
use safety devices.
Don't forget this is Factories Act 1937, s26(2), what would be the courts decision if it happened
in 2005?

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The first consideration that court take into account is-

The magnitude of the risk; to determine whether the
defendant acted as a reasonable man or not. The magnitude of
risk involves-
1. The likelihood of injury; ie the likely hood of the thing
happening and causing injury. Injury is very likely if the
thing is about to happen and the defendant try to ignore it
because it is about to occure.
2. The gravity of the consequence; Bolton V. stone ;
Bolton v Stone
Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078 is a leading House of Lords case in the
tort of negligence, establishing that a defendant is not negligent if the damage to the plaintiff was
not a reasonably foreseeable consequence of his conduct. The plaintiff was hit by a cricket ball
which had been hit out of the ground; the defendants were members of the club committee.
Facts
On 9 August 1947, during a game of cricket against the Cheetham 2nd XI at Cheetham Cricket
Ground in Manchester, a batsman from the visiting team hit the ball for six. The ball flew out of
the ground, hitting the claimant, Miss Stone, who was standing outside her house in Cheetham
Hill Road, approximately 100 yards (91 m) from the batsman.
The club had been playing cricket at the ground since 1864, before the road was built in 1910.
The ground was surrounded by a 12-foot (3.7 m) fence, but the ground sloped up so the fence
was 17 feet (5.2 m) above the level of the pitch where the ball passed, about 78 yards (71 m)
from the batsman. There was evidence that a ball had been hit that far out of the ground only
very rarely, about six times in the last 30 years, although people living closer to the ground
reported that balls were hit out of the ground a few times each season.

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The claimant argued that the ball being hit so far even once was sufficient to give the club
warning that there was a risk of injuring a passer-by, fixing it with liability in negligence for the
plaintiff's injuries. The claimant also claimed under the principle in Rylands v Fletcher, that the
ball was a dangerous item that had "escaped" from the cricket ground, and in nuisance.
Judgment
High Court
Oliver J. heard the case at first instance in the Manchester Michaelmas Assizes on 15 December
1948. He delivered a short judgment on 20 December 1948, dismissing each ground of the
claimant's case, holding that there was no evidence of any injury in the previous 38 years, so
there was no negligence; Rylands v Fletcher was not applicable; and a single act of hitting a
cricket ball onto a road was too isolated a happening to amount to a nuisance.[1]
Court of Appeal
The claimant's appeal was heard in the Court of Appeal on 13 October and 14 October 1949, and
judgment was delivered by on 2 November 1949. All three judges, Somervell, Singleton and
Jenkins LJJ, dismissed nuisance on the same grounds as Oliver J. Somervell LJ, dissenting, held
that the claimant had failed to establish that the defendants had not taken due and reasonable
care, so was not negligent either. However, the majority, Singleton and Jenkins LJJ, held that an
accident of this sort called for an explanation, and that the defendants were aware of the potential
risk. On that basis, applying the legal maxim of res ipsa loquitur, the defendants were found
negligent.[2]
The defendants appealed to the House of Lords.
House of Lords
The House of Lords heard argument on 5 March and 6 March 1951, delivering their judgment on
10 May 1951.[3]
The House of Lords (Lord Porter, Lord Normand, Lord Oaksey, Lord Reid and Lord Radcliffe)
unanimously found that there was no negligence, although most considered it a close call based
on whether the reasonable person would foresee this as anything more than an extremely remote
risk. Most of the Lords agreed that the key issue was that of making the key question one of
determining the fact of what the reasonable person would have in mind regarding assumption of
this risk. Facts may be determined by judges, but may also be determined by lesser mortals in
juries. This was not considered to be a point of law, which is the province of judges. In this case
the risk was considered (just) too remote for the reasonable person, in spite of the observation by
Lord Porter that hitting a ball out of the ground was an objective of the game, "and indeed, one
which the batsman would wish to bring about". The Lords believed there were policy
implications in terms of the message of what liability would have meant in creating restrictions
in what we can do in our everyday lives in an urbanised modern society.

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In words of Lord Atkin in Donoghue v Stevenson, "You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to injure your neighbour."
Whether the defendant had a duty to the claimant to take precautions had to take into account the
foreseeability of the risk and the cost of measures to prevent the risk. The risk in this case may
have been foreseeable, but it was so highly improbable that a reasonable person could have
anticipated the harm to the claimant and would not have taken any action to avoid it. In the
words of Lord Normand, "It is not the law that precautions must be taken against every peril that
can be foreseen by the timorous
The serious or the gravity of the consequences .

If the consequences are so grave then the defendant will not be
entitled to ignore,
harris v stafan borough council
It shows the aspect of the question of the magnetite of the risk.
The plaintiff was working in the garage, he had one eye which
could see, he was unbolting a metal in the process he hit his eye
and became totally bling, he sued the defendant saying that he
should provide goblets to protect his eyes. The issue was
whether the defendant was in breach of the duty by not
providing the goblets. The court found that by not providing
goblets the defendant was in breach of their duty to . here the
magnitude of risk is not reflected in capability but in the gravity
or seriousness of consequences
The cost of preventive measures/precaution to convert the risk.
Is another important ensure that the court take into account;
Edward kagwa v AG, the court said that Uganda has a
developing country cannot afford to employ experts to shave
additional staff to shave patients. So it was reasonable to allow
mental patients to possess razor blade
Latma V AEC 1953 appeal case,

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General clean contractors V Christmas; see when the plaintiff

said that he should have been provided with ladders, and the
defendant argues that ,
The value of the object of the undertaking. In determining
whether or not the measures taken are in breach of the duty
of care or not; Watt V Hertford shire WR the plaintiff was
moving in the track provided by the council and it was caring a
heavy jar and eventually injured the plaintiff and he sued the
council breach of care, the court said this was an emergency
where the driver was going to rescue a woman and that under
such circumstances
CAUSATION AND REMOTENESS OF DAMAGES;

The plaintiff might not be able to recover damages if the
damages are too remote, the concept of causation and the idea of
the remoteness of damages look complicated.
Hood setala V, mukasa
The plaintiff a boy aged 13, at 1;pm he was in his class room
alone, he was hit in the eye by a flying object, as a result h
became totally blind, it was a common practice for boys in the
school to use catapults, the school authority had taken no staps
to eliminate the use of catapults.
Court held; a reasonable teacher could not fail to contemplate
the use of catapults is dangerous and that an object discharged
from that device would cause an injury. It was a legal duty of the
head m master to see that the pupils of her school did not play

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with such dangerous equipments. She failed to stop their use and
eliminate
There are three
1. Breach of the duty
2. The existence of the duty of care
3. Damages
For the damages to result from the breach a causal link must
be established from the defendant’s breach and the plaintiff’s
injury that he suffered
One of the taste that constitute is the But for, this to the effect
that the defendant’s breach is the cause of the plaintiff’s
injury. If the injury would not have occurred without the
breach. On the other hand the defendant’s breach is not the
cause of the injury where the injury would have occurred
regardless of the defendant’s conduct.
The but for test is actually a negative test. It is usually used for
possible causes by the defendant . it can not be used
conclusively. It leads to un endless change of the causes that is
why it can not be used to determine the cause of the injury. It
can not positively identify a cause, it can only eliminate possible
causes.
The but for test
of a reasonable man normally reflects certain societal interests
Mc william V sir William
The breach of statutory duty. No liability if employee refuses to wear safety devices.

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A civil right of action for a Breach of Statutory Duty arises if it is shown that (inter alia) the
damage or injury was caused or was materially contributed to by the breach.
Facts
A steel erector fell seventy feet from a steel tower in the building of which he was assisting. He
was killed by the fall and his widow and administratrix (one who administers the estate of an
intestate) claimed damages from his employers for negligence and from the occupiers of the
shipyard in which the tower was being built for breach of statutory duty under the Factories Act
1937, s26(2), in failing to provide a safety belt for use by the steel erector. If a safety belt had
been worn by the deceased he would not have been killed by the fall. The deceased was an
experienced steel erector, and on the evidence it was highly probable that he would not have
worn a safety belt if one had been provided. The employer had normally made safety belts
available but, as they were not being used much on this particular site, the belts had been taken
away for use elsewhere.
The Decision
It was held by the House of Lords that assuming that the employers and the occupiers of the site
were in breach of their respective duties in not providing a safety belt, nevertheless they were not
liable in damages because their breach of duty was not the cause of the damage suffered since (a)
on the evidence the deceased would not have worn a safety belt if it had been provided, and (b)
there was no duty on the employers to instruct or exhort the deceased to wear a safety belt.
Note
Before a claim for damages for breach of statutory duty can succeed, the employee must prove
that the employer’s action or inaction caused the injury. If the employer can show that the
employee brought the injury upon himself by failing to take advantage of the safety measures
then no liability will fall upon the employer. In a case where safety measures are not provided or
are not available, the employer will still escape liability if it can be shown that the employee
would not have used them even if they had been available.
There are four steps to proving causation in a case like this:

1. There existed a duty to supply a safety belt
2. There was a breach of that duty
3. That if there had been a safety belt the employee would have used it
4. That if the employee had used it he would have suffered no injury or a lesser injury than he
did.
THE DEFENDANT IS USING THE BUT FOR TEST

defensively in this case and an hypothetical situation is being
raised “supposing the safety belt had been provided the deceased

lOMoARcPSD|15223919
would not have warn them”. Causation was used to eliminate the
defendant’s breach.
Banet, it illustrates the application of the but for test to escape
liability in negligence
The but for test is cause in the sense of the cause without which
a thing would not occur. Generally cause is about the proximate
or the efficient cause is the causal link.
The defendants are only liable for the result that proximately
accrue from their breach but those results that are not proximate
are too remote to be recovered. One must establish a causal link
between the breach and the damages.
There is one thing that can break the chain of causation. i.e
1. An independent act of the third party- wakiso estates
The case of kesington held that

An intervening act must be………
1. It must be un foreseeable by the
defendant
2. an independent act of the defendant’s
act.

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Christopher kigundu v over sees tourism com.

Issues
Whether damages were too remorse
If the act is foreseeable when it should. For
damages that are too remote and caused by
the defendant’s negligence,when they are
regarded as too remorse they can nott be
attributed to the defendant’s negligence
because the defendant will not be liably for
every damage.
What determines the remortness of damages
The Wargon mount……….. thee court held
that the defendant were not liable for the
burring down of the ship. Because
1. there was negligence
2. but the burring down of the warf was
too remote a result, they should not be

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liable in breach because it was not a

foreseeable result; and therefore too
remote.
In Repolemis………. The court found that the
burning done on the ship was not too remote
a result but it wasn’t foreseeable that the fire
would result. According to the court
foreseeability is only relevant when there is
negligence. According to the judge the issue is
whether those damages are a direct result of
negligence. But if they are indirect they are
not recoverable. Directness here is used as a
taste for remoteness of damages. Liability
here is being opened. Re Polemis is over ruled
on the basis of narrowing down
foreseeability.
There are qualifications/exceptions to the rule
in the Wagon Mound [1961] 1 All ER

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the case of Hughes V Lord advocate brings

out the qualification- the argument of the
defendant was that what was foreseeable
was injury through a fall or a normal burring
rather than an explosion. The court held in
response to that argument; in order to
establish a coherent chain of causation it is
not necessary that ; it is sufficient if the
accident occurred is of the type which
should have been foreseeable by
reasonable a careful person…………… the
Once the type of damages is foreseeable,
1. it does not matter that the
extent/degree to which it occurs was not
foreseeable
2. once a type is foreseeable the manner

in which it precisely presents itself or how

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it occurs does not matter. Hughes V lord

advocate.
3. the rule that the defendant is only liable
to damages that are foreseeable does not
apply to personal injury with personal injury
you take the victim as you find him wih all
their abilities. It applies to damage to
property. in smith v leach- Held – For the purpose of assessing
damages a tortfeasor took his victim as he found him,
smith v O brian
causation
causation is discussed in order to be able to
impute liability-
Hughes V Lord advocate
On 8 November 1958, the appellant, who was then aged eight,
was in company with another boy aged ten in Russell Road,
Edinburgh. There, near the edge of

lOMoARcPSD|15223919
the roadway, was a manhole, some nine feet deep, over which a
shelter tent had been erected, and four paraffin warning lamps
were placed at its corners. Post
office employees opened the manhole for the purpose of getting
access to a telephone cable. The time was about 5 pm, and the
site was unattended, the
employees having left for a tea-break. They had removed the
ladder from the manhole, leaving the ladder beside the shelter;
and they had pulled a tarpaulin
cover over the entrance to the shelter, leaving a space of about
two feet between the lower edge of the tarpaulin and the ground.
The lamps were left burning.
The boys took one of the paraffin lamps and the ladder into the
tent to explore. Shortly thereafter the appellant tripped over the
lamp, which fell into the
manhole. An explosion followed. The appellant was thrown into
the manhole and suffered severe burns. On the evidence the
cause of the explosion was
found to be that paraffin from the lamp escaped, formed vapour
and was ignited by the flame; this particular development of
events was not reasonably
foreseeable, according to the expert evidence, but there was no
other feasible explanation and this explanation was accepted as
established.
Held – Although in the law of negligence the duty to take
reasonable care was confined to reasonably foreseeable dangers,
the fact that the danger actually
materialising was not identical with the danger reasonably
foreseeable did not necessarily result in liability not arising; in
the present case the happening of an

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accident of the type that did occur, viz, an accident to a child

through burns, was reasonably foreseeable, and the further fact
that the development of the
accident as it actually happened (viz, the occurrence of the
explosion) could not reasonably have been foreseen did not
absolve the defendants from liability,
and accordingly the plaintiff was entitled to recover damages for
negligence
Glasgow Corpn v Muir ([1943] 2 All ER 44) distinguished.
Donoghue v Stevenson ([1932] All ER Rep 1) considered.
Appeal allowed.
Smith v Leech Brain & Co Ltd and Another

whether these defendants could reasonably foresee the type of injury which he suffered, namely, the
burn.
is the amount of damage which he suffers as a result of that burn
Whether defendants liable in damages for loss of expectation of life and under Fatal Accidents Acts.
S was employed by the defendants as a labourer and galvanizer. Part of his work consisted in lowering
articles into a tank of molten metal and flux and subsequently removing them. Whilst he was so
engaged, a piece of molten metal spattered out and burned his lip. He later contracted cancer,
underwent operations, and died. It was found that the defendants had been negligent, and that the
burn was the promoting agency, promoting cancer in tissues which already had a pre-malignant
condition. His widow, suing as administratrix and on her own behalf and on behalf of dependent
children, claimed damages under the Law Reform (Miscellaneous Provisions) Act, 1934, for loss of
expectation of life, and under the Fatal Accidents Acts, 1846 to 1908, on the basis of the burn resulting in
cancer causing S’s death.
Held – For the purpose of assessing damages a tortfeasor took his victim as he found him, and the
decision in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd ([1961] 1 All ER 404) did not
override this principle; accordingly, since the type of injury which S suffered, was reasonably foreseeable,
the defendants were liable for the damages claimed, although they could not reasonably have foreseen
the ultimate consequences of the initial injury, viz, that the burn would cause cancer from which S would
die.

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Principle stated by Kennedy J in Dulieu v White & Sons ([1901] 2 KB at p 679) applied.
Thyssen v Wakisu Estate Limited [1960] 1 EA 288 (HCU)

Whether the plaintiff was liable in contributory negligence
[2] Damage – Remoteness – Novus actus interveniens – Whether Motorist’s money stolen whilst
unconscious after accident is recoverable.
After driving his car 270 miles the plaintiff reached the outskirts of Kampala after dark and as he entered
the town dipped his headlights to oncoming traffic. Two cars in succession did not respond and being
momentarily blinded by their lights the plaintiff drove into the back of an unattended unlit lorry which
was parked at the side of the road. The lorry had two red reflectors at the back but was muddy and dusty.
Through the collision the plaintiff was injured and unconscious for less than half an hour, and he claimed
damages from the defendants for negligence including a sum in cash stolen from his pocket whilst lying
unconscious in the car. The defendants contested liability on the grounds that the plaintiff’s speed was
excessive, the lorry had been parked where it was in a “no parking” area because it had developed a
mechanical defect and as regards the claim for cash stolen they contended that the damage was in any
event too remote.
Held –
(i) the plaintiff was guilty of some contributory negligence in that he should have slowed down or
stopped when dazzled and was also driving at over 40 m.p.h.; but there was less reason for the
plaintiff to expect a lorry to be parked in a prohibited area on a town road than in the countryside
and since the lorry was unlighted the defendants were liable to the plaintiff for three quarters of the
damages.
( ii) the defendants were not liable for the loss of the plaintiff’s cash since this could not have been
foreseen and was “novus actus interveniens”.
Judgment for the plaintiff.
Court also too judicial notice that “It is notorious that unlighted lorries are a frequent nocturnal hazard on the roads
of Uganda, not to speak of cattle, unlighted bicycles etc. . . . it was a naive assumption that there would be no
obstacle.”
Hospital – Negligence – Liability for negligence of members of staff – Casualty officer – Duty to see and examine patient
presenting himself at casualty
Barnet V Chelsea hospital
department and complaining of illness, when casualty

department open – Arsenical poisoning – Patient’s death
not caused by the negligence.
At about 5 am on 1 January 1966, three night watchmen
drank some tea. Soon afterwards all three men started
vomiting. At about 8 am the men walked to

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the casualty department of the defendants’ hospital, which

was open. One of them, the deceased, when he was in the
room in the hospital, lay on some armless
chairs. He appeared ill. Another of the men told the nurse
that they had been vomiting after drinking tea. The nurse
telephoned the casualty officer, a doctor,
to tell him of the men’s complaint. The casualty officer,
who was himself unwell, did not see them, but said that
they should go home and call in their own
doctors. The men went away, and the deceased died some
hours later from what was found to be arsenical
poisoning. Cases of arsenical posioning were rare,
and, even if the deceased had been examined and
admitted to the hospital and treated, there was little or no
chance that the only effective antidote would have
been administered to him before the time at which he
died. In an action against the defendant hospital
management committee for damages for negligence in
that the deceased’s condition was not diagnosed nor
treated at the hospital,
Held – in failing to see and examine the deceased, and in
failing to admit him to hospital and treat him, the
hospital’s casualty officer was negligent and did
not discharge the duty of care which in the circumstances
was owed to the deceased by the defendants as hospital
authority (see p 1073, letters g and h, and p

lOMoARcPSD|15223919
1074, letter b, post); but the plaintiff had not discharged

the onus of proving that the deceased’s death was caused
by the negligence, or, � 1068� if there were
a burden on the defendants of showing that his death was
not due to the negligence, they had discharged that
burden, with the consequence that the plaintiff’s
claim failed (see p 1074, letters d and i, post).
Notes
It should be emphasised that a premise of this decision is
that the casualty department was open for receiving
patients (see p 1072, letter d, post).
As to the liability of hospital authorities for negligence by
their medical staff see 28 Halsbury’s Laws (3rd Edn), 19,
21, para 17, and for cases on the
subject, see 33 Digest (Repl) 532–535, 100–112.
INJURY WITHOUT IMPACT
Nervous shock may be with or without actual impact. It consists of
psychatrick mental psychological injury which may be as a result of
apprehension for your own safety of safety of others. It consists of injury
that happens without direct physical impact. However it does not mean
that nervous shock does not physical consenqueses. Latter the law
expanded to cater for others like when you witness other people
suffering injury. In addition to the nomal rules of negligence the courts
have added another requirement to control the extent of liability. Unlike
in negligence and other area, it extends the limit of liability.
Thus it is impossible to have many victims with physical injury for it is
determined by time, proximity, relationship, thus limiting the extent of
liability.
Note, theare are no east African cases on nervous shock/injury without
impact. Because psychatrick facilities in east Africa are very poor

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Many of these conditions are regarded by a bigger population as

superstition.
There are two broad categories that need to be distinguished in dealing
with nervous shock
1. primary victims and
2. secondary victims.
Primary victims are not problematic thus there is no need of complicated
rules because natural control is not needed. The problem is with
secondary victims, for you need complicated policies. Page V smith-
Primary victims are those who are directly invold in the accident while
secondary vitim is one who witnesses others getting injured –bourhill
V young, in this case, a cycolist collided with a car, and there was a
fisher woman at the time of the accident from a distance who was 8
months pregnant who heard the noise of the coarlision and was hit by the
glass. She sued under nervous shock/injury without impact. Court held
that for one to succeed under this tort the plaintiff must have been in the
are or place within which the defendant was capable of being able to
take notice/control of her. The defendant was not liable because the
plaintiff was far from the place of the crime scene.
Secondary evidence may range from people who are at the scene to
others on TV radios and people seeking iformation to day and tomorrow.
So the law crates a conditions that foreseeability alone is not sufficient.
In other words there are other conditions that need to be fulfilled……….
1. The nervous shock must be a recognized mental condition
[medically recognized psychatrick disorder. The primary victim
must prove that a mere emotional distress is not sufficient
2. There must be proximity in time and space. Proximity is either at
the scene of accident or you not at the scene but you are within the
vicinity of the accident. Boardman V sanderson- immediate
after month is also an element of proximity. Macloughlin V O
brian- proximity in terms of the relationship. There must be a
closed relationship between the primary victim and the person
witnessing. Jones V Wright

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Damages – Personal injury – Nervous shock – Disaster at football stadium involving many
deaths and injuries – Events at stadium televised live – Plaintiffs’
relatives and friends among persons killed or injured – Plaintiffs seeing events at stadium on live
television or hearing about tragedy on radio or by word of
mouth – Plaintiffs suffering nervous shock – Tragedy caused by defendant’s negligence –
Whether defendant owing duty of care to plaintiffs – Whether
plaintiffs within class of persons entitled to recover damages for nervous shock – Whether class
of persons entitled to recover damages for nervous shock
including brothers and sisters of victims – Whether class extending to other relations or friends
of victims – Whether persons who saw live television
broadcast of events entitled to sue – Whether live television broadcast of events providing
proximity of time and space.
The plaintiffs were 16 people who suffered psychiatric illness in the aftermath of a tragedy which
occurred at a football stadium when 95 spectators were
crushed to death and over 400 injured at a major football match. The match was televised and the
events in which the deaths and injuries occurred were
broadcast as they happened. The plaintiffs all had friends or relatives at the match, thirteen of
whom were among those killed, two of whom were among
those who were injured and one of whom was among those who escaped unharmed. The
relationship of the plaintiffs to those who were killed or injured
included that of wife, parent, sister, brother, uncle, grandfather, brother-in-law, fiancée and
friend. Four of the plaintiffs were at the stadium and were
eye-witnesses to the tragedy, ten saw it live on television, one heard the events being broadcast
on the radio and another heard about what had happened in
conversation and saw a subsequent news broadcast. The plaintiffs brought actions claiming
damages for negligence against the chief constable who was
responsible for policing the match. The plaintiffs’ cases were test cases to determine liability in
150 similar cases. The defendant admitted that he was in
breach of his duty of care towards the dead and injured and accepted that the plaintiffs had
suffered psychiatric illness caused by their awareness of the events
at the match but he denied owing any liability to the plaintiffs, on the ground that he did not owe
them a duty of care either because there was not sufficient
proximity of relationship between the particular plaintiff and the friend or relative at the match to
place the plaintiff within the class of persons whom the law
permitted to recover damages for nervous shock caused by a negligent act or because there was
not sufficient proximity of time and place in that their
observation of the events on television was not sufficiently immediate to the events to permit
recovery.
Held – (1) The class of persons entitled to recover damages for nervous shock caused by a
negligent act was not immutably limited to the parents and spouse
of the victim of the negligence but by logical progression included brothers and sisters of the
victim if the circumstances were such and their relationship with
the victim was sufficiently close for there to be proximity of relationship between the victim and
the brother or sister suffering from nervous shock. However,
the class of persons entitled to recover damages for nervous shock did not extend to other
relations of the victim. Since it was reasonably foreseeable that a

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large � 353� proportion of those attending the match would be young men and that their
brothers and sisters might be so affected by the death or injury of a
loved one in the tragedy as to suffer psychiatric illness the brothers and sisters of victims were
entitled to recover damages (see p 371 g h, p 375 f and p 376 e f
h, post); dicta of Lord Wilberforce and Lord Bridge in McLoughlin v O’Brian [1982] 2 All ER
298 at 302, 304, 319 applied.
(2) Those within the class of persons permitted to recover damages for nervous shock who were
eyewitnesses at the match or who saw the events on a
simultaneous television broadcast of the tragedy satisfied the requirements of proximity of time
and space to entitle them to sue. In the case of a person
watching a simultaneous television broadcast of the events the viewer was aware that he was
seeing images of what was actually happening as he saw them
and since those images had an instant effect on his emotions and a lasting effect on his memory
there was therefore the requisite proximity of time and space.
Furthermore, since the defendant was aware that the match was to be televised and since it was
reasonably foreseeable that television would transmit live
pictures of what was happening as the disaster occurred, it was reasonably foreseeable to the
defendant that his negligence which caused people attending the
match to be killed or injured might lead to their parents, spouses, brothers and sisters who saw
the events live on television to suffer psychiatric illness.
However, those who heard about what was happening either in conversation or on the radio and
later saw the events on a television news broadcast did not
satisfy the requirements of proximity of time and space to entitle them to sue (see p 377 a f h j, p
379 e, p 380 d e h to p 381 c, post).
this case establishes what the plaintiff must prove in order to
succeed in action under psychiatric illness
a. Actual damage to the plaintiff
b. That the nervous shock is as a result of the defendant’s actions
c. Negligence- which further involves proving 3. Things that the
defendant owed a duty of care to the plaintiff, that he was in breach
of that dut, that the plaintiff was within the range of persons with
whom the defendant owed that duty.
and Alocock v chief constable of yorkshire. The law defines the
relationship as one of love and affection. If it is proved that there
is no love and affetction then certain actions can not stand
3. The person or the victim must be of normal fortitudes and not
abnormally sensitive
4. The secondary victim must have perceeded the accident with their
own and aided senses
5. The nervous shock must be sudden troma
Note; in detwemining liability, foreseeability alone is not sufficient

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EXCEPTIONS
In respect there are two categories of people-

1. Rescurers and employees- chadwick V british, doolvy V carmmel
employees are compelled to witness the accident and can recover
damages although they are not related and closely in relationship-
spatan steel V 1972 V3 er 502
the landmark case, if I may so call it, of McLoughlin v O’Brian, Mrs

McLoughlin was at home two miles away from the scene of an accident
involving
her husband and three children. More than an hour after the accident she was told
of it by a neighbour who drove her from Suffolk to Addenbrooke’s Hospital
at Cambridge. There she learnt that her youngest daughter had been killed,
and she actually saw her husband and the other children and witnessed the
nature
and extent of their injuries. She failed before the High Court, the trial judge
holding that the defendants owed her no duty of care because it was not
reasonably foreseeable that she would suffer injury by nervous shock.
The Court of Appeal disagreed, holding that this was reasonably foreseeable,
but they still dismissed her appeal on the basis that it was settled law that a
driver’s duty of care was limited to persons or owners of property at or near
the scene of an accident, and directly affected by his negligence (see [1981]
1 All
ER 809, [1981] QB 599). It held that considerations of policy limited the
duty of care, and required that it be not extended, and that accordingly, since
the
plaintiff had been two miles from the accident and had not heard of it until
some time later, and had not seen its consequences until still later, she was
not
entitled to recover damages for nervous shock. That was what the Court of
Appeal decided. The case went to the House of Lords.
The House of Lords found in her favour and allowed the appeal, holding that
the nervous shock assumed to have been suffered by her had been the

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reasonably foreseeable result of the injuries to her family caused by the defendant’s
negligence. Their Lordships held that policy considerations should not
inhibit a decision in her favour, and that accordingly she was entitled to
recover damages. Their Lordships made powerful observations upon the
state of
English law in relation to such claims, in cases to which I shall shortly have
to refer.
Before I do that, however, it is necessary to see how the courts of some other
countries have in this century been dealing with the problems thrown up by
RESCUE SITUATIONS
Is a situation where the person through
negligence endangers another and some one else
comes to the rescue of that victim of negligence.
The issue is whether if that rescuer is injured in
the process of rescuring will recover damages
from that person who caused it. In the 20th
century, it was basically no; this was because
during capitalism which promoted the ideology
of lessez fair, where there was no duty on one to
help in dangerous situations
In the decision of
Wagner V international railway corporation.
Through the negligence of the railway company

as it was crossing a bridge, a passenger was
thrown off and, the cousin of the person who
was thrown off walked back to the bridge to try

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and find him, he missed his footing and fell off

from the bridge and he was injured. He sued the
company. It was argued by the railway company
that a resquere could only recover if his act was
distinctive.
Court held that danger invite rescuer, the wrong
does not ignore his reaction in tressing conduct
its consequences, the wrong as imperale is a
wrong to the imperel victive is a wrong also to
his rescuer .
The emergence degates the man,
the wrong dure may not have foreseen the
coming of the deliverer, he is accountable as if
he had
the rescuer’s actions need not be negate,
spontendent as distinguished from the exercise
of the issue of choice in order for him to recover
all that is required is that the parel and resque
must be in substance, one transaction, one must
arouse the impulse of the other, there must be an
broken continuity between the commission of
the wrong and the effort to avert the
consequence.
Baker V Hopkins

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Negligence – Rescue – Negligence placing workmen in imminent peril from gas on their descending a well – Doctor descending
well to rescue them – Whether
duty of care owed by master to servant extended to doctor.
Safe System of Working – Safe place of work – Well – Clearing well of water – Petrol pump used on platform down well – Danger
from carbon monoxide –
Employees told not to go down well – Danger of death not indicated – Liability of master to servants and to doctor attempting
rescue.
A company, which carried on business as builders and contractors, undertook work on a well which involved clearing it of water.
The well was some fifty feet
deep and about six feet in diameter. H, a director of the company, and W and another workman employed by the company,
erected a platform twenty-nine
feet down the well and some nine feet above the water and lowered on to it a petrol-driven pump. After the engine of this pump
had worked for about one and
a half hours it stopped and a haze of fumes was visible in the well. The working of the petrol engine created also a dangerous
concentration of carbon
monoxide, a colourless gas. H, returned to the well after working hours that evening and observed the haze and noticed a smell of
fumes. On the following
morning at about 7.30 am H instructed the two workmen to go to the well, but said to W. “Don’t go down that bloody well until I
come”. The workmen
arrived at the well at about 8.15 am, and, before H had arrived, one of the workmen went down the well and a few minutes later
the other workman also went
down it. Both were overcome by fumes. A doctor, who was called to the well, went down the well with a rope tied to his body in
order to see if he could
rescue the men, though he had been warned not to go. He also was overcome by fumes. Endeavour was made to haul him to the
surface by the rope, but the
rope caught in a down pipe in the well and he could not be brought to the surface until help arrived some time later. He died
shortly afterwards. The court
found that H had acted in good faith but that he lacked experience and did not appreciate the great danger that would be created
in the well and did not seek
expert advice on the proper method of emptying the well. In actions for damages for negligence resulting in the death of W and
the doctor damages were
awarded, but those awarded in the case of W were apportioned, one-tenth of the responsibility being attributed to W. On appeal,
Held – (i) the defendant company were liable for negligence causing the death of W because the method adopted to empty the
well had created a situation of
great danger to anyone descending the well on the morning in question, and the defendant company were negligent in that no
clear warning of the deadly
danger was given to W on that morning, H’s order not to go down the well until he came being insufficient to discharge the
defendant company’s legal duty to
take reasonable care not to expose W to unnecessary risk, though the apportionment of one-tenth of the responsibility to W would
not be disturbed.
(ii) the defendant company were liable for negligence causing the death of the doctor because it was a natural and proper
consequence of the defendant
company’s negligence towards the two workmen that someone would attempt to rescue them, and the defendant company should
have foreseen that
consequence; accordingly the defendant company were in breach of duty towards the doctor.
� 225�
Dictum of Lord Atkin in M’Alister (or Donoghue) v Stevenson ([1932] All ER Rep at p 11) applied.
(iii) no defence to the claim arising out of the death of the doctor was afforded either
(a) by the principle of novus actus interveniens, for that did not apply where, as in the present case, the act in question was the
very kind of thing that was
likely to happen as a result of the negligence.
Dictum of Greer LJ in Haynes v Harwood ([1934] All ER Rep at p 107) applied.
or (b) by the maxim volenti non fit injuria, for that could not be successfully invoked as a defence by a person who had
negligently placed others in a
situation of such peril that it was foreseeable that someone would attempt their rescue.
Dictum of Greer LJ in Haynes v Harwood ([1934] All ER Rep at p 108) applied.
(iv) the doctor had not acted recklessly or negligently and had neither caused nor contributed to his own death.
Per Willimer LJ: bearing in mind that danger invites rescue, the court should not be astute to accept criticism of the rescuer’s
conduct from the
wrongdoer who created the danger (see p 244, letter b, post).
Decision of Barry J ([1958] 3 All ER 147) affirmed

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Videan V british transport Co LTD

The infant plaintiff, the youngest son of the stationmaster of a small railway station who lived in
the station house with his wife and four children, made his
way on to the railway line not far from the barrow crossing for porters with barrows. To be on
the railway line was prohibited to everyone except railway
employees on their lawful occasions. At the same moment as the infant plaintiff was seen on the
line by his father, the stationmaster, and a porter, they saw a
motor trolley driven by an employee of the defendants, approaching him along the railway line.
The stationmaster and the porter signalled the trolley driver
to stop, but he only slowed down and only at the last moment did he see the infant plaintiff. In an
effort to save his son, the stationmaster leaped from the
platform on to the line and saved the infant plaintiff, who was badly injured, but was himself
killed instantaneously. In an action for damages by the infant
plaintiff for his injuries, and under the Fatal Accidents Acts, 1846 to 1959, and the Law Reform
(Miscellaneous Provisions) Act, 1934, by the plaintiff widow
in respect of the death of her husband, the trial judge found that the trolley driver was negligent
in not keeping a proper look-out, in travelling too fast, and in
not applying his brakes hard enough and soon enough, and dismissed both claims, the infant
plaintiff’s on the ground that he was a trespasser and the widow’s
on the ground that a rescuer could be in no better position than the rescued. On appeal,
Held – (i) the infant plaintiff was not entitled to recover damages because, on the facts, he was a
trespasser on the railway line, letter and the trolley driver owed him no duty since his presence
on the line was not reasonably foreseeable
(ii) the widow was entitled to recover compensation in respect of the death of her husband, the
stationmaster, because—
(a) (per Lord Denning, MR), the occurrence of an emergency (not necessarily the emergency that
in fact happened) was foreseeable by the driver of the
trolley, who should have realised that someone might be put in peril if the trolley approached too
fast and without a proper look-out being kept, and
accordingly the trolley driver owed a duty to any person who attempted to rescue another from a
danger thus created (see p 868, letters a and b, post).
(b) (per Harman and Pearson, LJJ), the presence of the stationmaster, an employee of the
defendants, on the track was something that was reasonably
foreseeable by the driver of the trolley, and accordingly he owed a duty to the stationmaster, who
was not a trespasser on the line
Semble: if the presence of trespassers on land is known, or reasonably foreseeable, some duty of
care is owed by an occupier of the land or contractor or
other person lawfully on the land that duty is (per Lord Denning, MR), a duty to use reasonable
care, or (per Pearson, LJ), a duty, substantially less than the duty owed to a lawful visitor, to treat
the trespasser with common � 860� humanity
letter a, and p 875, letter f, post), but (per Lord Denning MR, Pearson LJ, differing) this principle
applies only where the person alleged to owe the duty
conducts operations on the land
.Per Lord Denning MR, the right of the rescuer to maintain an action for negligence is an
independent right, not derived from that of the victim

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Harrison v British Railways Board and others

TORTS; Negligence
QUEEN’S BENCH DIVISION
BOREHAM J
1, 2, 21 MAY, 31 JULY 1980
Negligence – Duty to take care – Rescuer – Person being rescued creating danger – Passenger
attempting to board train while it was moving – Rescuer
attempting to assist passenger aboard – Both passenger and rescuer falling off train – Rescuer injured –
Whether person being rescued owing duty of
care to rescuer.
Negligence – Contributory negligence – Emergency act – Rescue – Rescuer injured while attempting
rescue – Rescuer failing to reduce danger to himself
and contributing to own injuries – Whether rescuer contributorily negligent.
The plaintiff was a guard on a passenger train which the defendant attempted to board while it was
moving out of the station. Under the rules regulating
the conduct of train guards the plaintiff was required, in the event of an emergency, to signal the driver to
stop or to apply the emergency brakes himself
or both. The plaintiff attempted to signal the driver to stop but gave an incorrect signal and the train
continued to accelerate away from the station. The
plaintiff then tried to grab hold of the defendant who fell off the train, pulling the plaintiff with him. The
plaintiff was injured. He brought an action
against the defendant claiming damages for personal injuries. The defendant contended that he was not
liable on the ground that a person being rescued
owed no duty to his rescuer, and that, if he did owe such a duty, the plaintiff had been contributorily
negligent in giving the wrong signal to the driver to
stop and in not applying the emergency brake himself.
Held – (1) A person who, through lack of care for his own safety, put himself into a situation of danger,
and who ought, as a reasonable person, to have
foreseen that another might endanger himself by attempting to rescue him, was liable to his rescuer for
injuries sustained by the rescuer in the course of
the rescue or attempted rescue. Accordingly, since the defendant had created a situation of danger for
himself through lack of reasonable care for his own
safety and ought reasonably to have foreseen that the � 679� plaintiff might come to his aid, he was
liable for the injuries sustained by the plaintiff (see p
684 b to j and p 685 a b and g h, post); Videan v British Transport Commission [1963] 2 All ER 860 and
Horsley v MacLaren, The Ogopogo [1971] 2
Lloyd’s Rep 410 applied.
(2) Since, however, the plaintiff had failed to apply the brakes in the emergency as required by the rules
regulating the conduct of train guards and
since if he had properly applied the brakes it was probable that both the possibility of his being injured
and the severity of any injuries received would
have been reduced, he was contributorily negligent in failing to reduce the danger to himself and
the damages payable by the defendant would in the circumstances be reduced by 20%
NEGLIGENT WORDS/MISSTATEMENT

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Misstatements are statements that are formed

and they are not accurate. The law historical did
not provide for the liability where a statement
was made negligently. Generally speaking
liability was more than negligence and there had
to be fraud. Liability was only in the case of
fraudulent misstatement. If the statement was
not fraudulent and merely negligent the plaintiff
could not recover. Derry V pick the plaintiff
challenged the defendant’s misstatement that he
had the authority to use steam power yet he had
not. But the plaintiff could not recover because
there was no fraud. And therefore no liability in
negligent misstatement
except where a fiduciary relationship existed
between the parties. This was the only exception
to the general rule. But out side that there was no
liability.
Cases
Le livre V. gould
Banburry V. bank of montreal
Nocton V Ashbrton

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The defendant used to prepair balance sheets to a

firm called tradestan and company, the company
used to borrow the balance sheets to raise credit. The
defendant knew that the balance sheets would be
sent to the finance company without a clear
knowledge that they would be sent to the plaintiff
corporation [the plaintiff] tradestan Co falsified their
own books such that they gave a wrong picture over
their financial status. The Co went bankrupt and the
plaintiff corporation that had relied on the balance
sheets suffered losses and so they sued the defendant
accountant who prepare the balance sheets. They
sued in negligence in preparing the balance sheets.
The issue was whether the defendant was
negligent.
Court held;
That there would be no liability in negligence
because this was on policy grounds that the two
were proffessionals. Court suggested that
liability would be based on fraud other wise a
number of actions would be determined.
There is no liability therefore in negligent
misstatement unless there is a fiduciary relations
but here there was non

lOMoARcPSD|15223919
In Candler v Crane Christmas & Co
Negligence – Accountant – Preparation of company’s accounts – Knowledge that accounts to be

shown to prospective investor in company – Liability of
accountants to investor.
The managing director of a company instructed the defendants, a firm of accountants and
auditors, to prepare the company’s accounts and balance sheet. A
clerk in the employment of the defendants (who was held to be acting throughout within the
scope of his employment) prepared the accounts knowing that
they were wanted for the purpose of inducing the plaintiff to invest money in the company. The
draft accounts were shown to the plaintiff in the presence of
the defendants’ clerk, and, relying on their accuracy, the plaintiff subscribed £2,000 for shares in
the company. The defendants subsequently certified the
accounts in the form in which their clerk had shown them to the plaintiff. The accounts had been
prepared negligently, but without any fraud on the part of the
defendants or their clerk, and did not give a true statement of the financial position of the
company. The company went into liquidation, and, there being no
assets, the plaintiff lost the money which he had invested. In an action against the defendants for
damages for negligence, or, alternatively, for breach of their
duty, in the circumstances, to give to the plaintiff accurate information,
Held – (i) (Denning LJ dissentiente) in the absence of a contractual or fiduciary relationship
between the parties, the defendants owed no duty to the plaintiff
to exercise care in preparing the accounts and giving their certificate, and the plaintiff, therefore,
could not maintain against them an action for negligence.
Le Lievre v Gould ([1893] 1 QB 491), applied.
Principles in Donoghue v Stevenson ([1932] AC 562), discussed.
(ii) since the plaintiff had invested the sum of £2,000 before the relationship between the
defendants, as auditors, and the plaintiff, as shareholder, of the
company had become operative, no damage flowed from the breach of any such duty owed by
the defendants to the plaintiff in that capacity.

lOMoARcPSD|15223919
still the claim was rejected on policy ground

In this case the court held out the law and was
adopted by the house of lords on the question of
negligence misstatement. Denning- about
economic loss
Hedley Byrne v. Heller
The plaintiffs were to place advertisement on

behalf of easy power. But if easy power did not
pay for the advertisements thy would have to
pay for the advertisements. This is because they
decided to inquire from the plaintiff bankers
about their financial standing. Then they
inquired from easy power bank who gave
information that easy power was financially
okay and on that assumption they so placed
advertisement on behalf of easy power.
Whether the defendant who made the statement
about the easy power’s financial status would be
liable for the loos they incurred when they
placed advertisement on behalf of easy power.
The court found that under certain circumstances
there will be liability for negligect misstatements
out side contractual or fiduciary relationship
based on;

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1.A person must be so placed that others could

reasonably rely upon his judgement or his
ability to make careful inquiry
2.He takes it upon himself in information or
advice or has his information or advice to pass
it upon to another person
3.To the knowledge of this person, for either he
knows or he ought to know this information
will be relied upon and acted upon.
Upon proving those three elements according to this
case a special relationship arises between those
person and indeed a duty of care arises in making the
statement.
There are other conditions which include;
Such a person can couple the information with a
disclaim.
Mere opinions expressed as social or formal
occasions cannot attract liability
In caparo see whether proximity is expressed in
hedly Bayern v heller
ECONOMIC LOSS AND INDIRECT

FINANCIAL DAMAGE

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This is where a person suffers no physical injury

to the property but the loss is purely of financial
nature
Generally speaking before the 20th century pur
economic loss was not recoverable and even
today it is the case. You can only cover pure or
economic loss if it is attached or parasitic to
damage to person or property. If it is standing
alone it is generally when recoverably. Except
one can recover where there is negligent
misstatement. Outside that economic loss to be
recoverable must be either parasitical or
attached to physical loss
Cattle v Stocketon water works co 1875 law

reports qb.
The defendant had a coal mine which was shut
down because of the flooding and workers in the
mine sued the company for loss of wages.
The court held that those workers who lost there
tools when the coal mine was flooded would
recover their loss of wages because the loss was
attached to their tools. But those who lost
without loosing their tools would not recover.

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The reason for the loss being recoverable where

there is only parasitical attached with physical
financial loss is because people who suffer
under such damage without physical loss are
likely to be extensively many and this is because
financial loss has no natural limit and therefore
difficult to get that kind of insurance. That is
why the law put a limit that one can only recover
under financial loss where it is attached to
physical damage/loss.
Cases 3 and 31 [consider]
FAILURE TO ACT AS NEGLIGENCE OR

OMISSION
Omission presents a particular problem. An
omission implies that somebody had a duty to
act but they failed to act.
During the period of lezefe the law was relactant
to impose a duty on people to act for the benefit
of others.
Negligence would generally mean omission
rather than omitting to do some thing
Zelenko v gimbol brothers 1935
The plaintiffs mother fell ill in the defendants
department store. She was removed into a sick

lOMoARcPSD|15223919
room where she was left for six hours without

treatment. She died and as a result her son sued;
Court held;
1.If a defendant under takes a task even
gratuitously, he should not omit to do what an
ordinary man would do in performing the task.
Here the defendant assumed the duty of care
by medaling in matters in which legally he had
no concern and in omitting to do so he bared
the liability.
The situation where in public law a duty may be
imposed or a power or a discretion. Whether in
exercise of a public power, discretion, whether that
gives liability in tort, negligence is a mater that has
been addressed in Anns v Merton London Borough Council.
The defendant local authority failed to inspect the foundations of a building adequately, with the
result that building became dangerously unstable. The claimant, being unable to raise any money
for repairs, had to sell the house at a considerable loss, which he sought to recover from
Brentwood District Council. This action failed as the loss was identified as a Pure Economic
loss.
This judgment was rejected in many other Commonwealth jurisdictions, notably Canada,
Australia and New Zealand, all of whom preferred the two stage Anns test of proximity and
policy.
Whether the local council were under any duty of care

Judgment

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The House of Lord overruled Anns and held that the council was not liable in the absence of
physical injury.
Skillful or professional defendants

Res inps loquita
Contributory negligence
Death as a cause of action
Jeorge Zizinga and anor v UCB

While crossing the road the diseased was
knocked down by the vehicle driven by the
defendants servants negligently
Evidence also showed that the diseased
managed a family business to which the
defendants were dependant on however the
husband was the owner of the business and she
was never paid any salary. Also the plaintiffs
never incurred any funeral expenses.
Whether the plaintiff was a dependant of the

diseased
Held;

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That the plaintiff has to establish that he was a

dependant on the diseased for his financial
needs and that the death of the disased caused
him loss of the financial support and the
dependence. Basing on the facts the wife was
just a manager of the business and could not
recover. That for funnel expenses to be
recovered they must have been incurred by the
plaintiff who’s benefit the action is brought
Kiryahire V sohasi
The plaintiff was suing as the legal
representative and administrator of the diseased
Claiming damages from the defendants on
behalf of certain members of the family and also
on behalf of the diseased’s estate for loss of
expectation of life, it was argued that the suit
would have been brought in the names of the
minors by a next friend and evidence also
showed that the plaintiff was not an
administrator or executor of the diseased’s
estate.
Held

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That an executor is a person who laters of

administration had been granted
The plaintiff disclosed a a cause of action but
there has been a non joinder of necessary parties
ie member of the diseased’s family or one of
them should have joined as core plaintiffs
Professional negligence
The major issue is the question of standard care
Is that not of the ordinary or reasonable man but that
of a professionally skilled and exercising reasonable
skill
The relevant standard.
The standard relevant is not at the time of criminal
proceedings but the relevant time is when that
negligence is when the negligence is said to have
occurred- bolam V friana hospital management
In Loy V minister of health; it was held;
Bitumuka V trustees of Uganda

The plaintiff injured his knee during a foot ball
match and he was sent to the hospital. The DR in
charge performed an operation to remove the tone
part of the cattilage of the knee, he used a thin

lOMoARcPSD|15223919
scalpel which broked in the cartilage but fail to tress

the broken part. He sent the plaintiff for ex-ray and
further operation where it was still failed to be
traced. He was sent to another hospital where he
refused to go. An expert was called and said that a
knife would have been used in ther operation instead
of the thin
Held
Court was of the view that
If you professes an act he must be reasonably skilled
in, there is no doubt that the defendants sergion was
that. It is not every slip that occurs in the case of and
the occurrence of mere accident does not make the
defendant liable
1.We should be doing the service to the
community at large if we were to impose
liability on doctors for any thing that happens to
go wrong. Doctors would be led to think or
worry of their own safety than the good of their
patient. Initiative could be stifled, incopetance
shaken.
2.The medical science has conferred grate benefits
on mankind but these benefits are attended by
reasonable risks, you cannot take the benefits
without taking the risks either bounce in

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techniques, doctors like the rest of us have to

learn by experience, if something goes wrong
and shoter of witnesses
The standard of care
Champion motors V park
Res ipsa loquita

This is not a tort, it is a law of evidence. The geral
rule is that the legal burden lies on the plaintiff to
prove that there was a duty on the defendant to
discharge the burden. The nomal way to prove this
the plaintiff has to state specific acts of omission that
constitute that breach of duty.
When res ipsa loquita is applied, the plaintiff is
simply alleging that the very fact of the accident in
the circumstance raises a presumption of negligence.
It is for the defendant to show that there was no
negligence on their party. i.e “the thing speaks for
itself, res ipsa loquita”.
Res ipsa loquita results in an inference of negligence
being drawn without the plaintiff showing the acts or
omissions that will constitute negligence.

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In Res ipsa loquita the legal burden will always be

on the plaintiff. What shifts to the defendant is the
evidential burden. This therefore means that it is a
rule of evidence rather a rule of law.
Nanziri and anor V kambaza on the basic

principles that relate to res ipsa loquita,
Res ipsa loquita must be specifically pleaded and
then it raises a prima faci case. Which shifts a
burden of proof in terms of evidential burden to the
defendant
the defendant will plea inevitable accident as a
defense.
Conditions for one claim;
1.The thing inflicting the damage must have been
under the sole control and management of the
defendant or someone for whom is responsible
or has a right to control
2.The occurrence is such that it would not have
happened without negligence.
3.There is no evidence or explanation as to how or
why the occurrence took place other than the
defendant’s negligence will have to be
determined ordinarly

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DEFENSES
Contributory negligence;
In England before 1945 and in Uganda before 1943
this common law defense prevailed in its common
law purity. Later there was a statutory intervention
that rendered the defense only a limited defense.
S.13 Apportionment of liability in case of contributory negligence.

(1) Where any person suffers damage as the result partly of his or her
own fault and partly of the fault of any other person, a claim in respect of that
damage shall not be defeated by reason of the fault of the person suffering
the damage, but the damages recoverable in respect of the claim shall be
reduced to such extent as the court thinks just and equitable having regard to
the claimant’s share in the responsibility for the damage; but—
(2) Where damages are recoverable by any person by virtue of

subsection (1) subject to the reduction mentioned there, the court shall find
and record the total damages which would have been recoverable if the
claimant had not been at fault.
Cases 1.2 are about situation before

contributory negligence was modified
Whether children can be found to have been
guilty of contributory negligence. – nsubuga V
kavuma 1978 hcb
Whether the contributory negligence can be
taken into account in respect of the negligence

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of a parent or guardian can be taken into

account
Volent non fit injuria. [voluntary assumption of

risks]
This is a common law defense, it is a complete
defense than contributory negligence. It acts as a
kind of estoppel because one is assumed to have
consented to the risk and then he can not turn
around and say he has been injured.This defense
applies commonly to negligence
The defense applies were;
AG V relod;
1. Where normally one has no prior express
consent but consent is inferred from the
circumstance of the tort.
2. Express consent given prior ot the
wrongful act. Which is normally treated as
matter of contract. E.g notes indicating that
parking at owner’s risk, then one parks there
3. Employer employee situation.
Voluntary assumption of risks, means
consenting to the risk.

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There are two things that constitute volenti and

the two must exist.
1. The plaintiff must voluntarily freely
consent to the risk
2. And this must be with full knowledge
and the nature of the risk.
It goes therefore that knowledge and consent
[sien and bolem]. Nettleship v. Weston (1971) 3 all er
at page 581." The plaintiff was requested by news Weston to
instruct her in driving her husband’s car. The plaintiff agreed but
inquired whether her husband possessed a comprehensive
insurance policy in the course on instruction misses Weston
panick at around about and had an accident. The plaintiff was
injured for damages. The defendant evoked for voluntary
assumption of risks as a defense. Court held that the defense
was not available for the defendant, the plaintiff had only
accepted the physical risk and not the legal as evidence by the
inquiry about the nature of the insurance policy in place
Glasgow V Taylor
The father of a 7 year old, who died from eating
the berries of a poisonous shrub growing in
some public gardens in Glasgow, sued for
damages. The defendants grew among other

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specimens plants a shrub bearing poisonous

berries which presented a tempting appearance
to children and the enclosed piece of ground
was open to the public and the gate could easily
be opened by children who usually frequented
it. The plaintiff’s son and other children entered
the gate, ate, the berries and died. The defendant
knowing that the berries were poisonous took no
precaution to warn children the danger of
picking the berries and no adequate notice of
warning was given to the public.
Held
The defendants were liable because despite
being aware of the existence of the danger to
which the children may be exposed, they did not
do any thing to protect them from that danger or
even inform them of its existence

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Tort law lecture notes

Law of Torts (Islamic University in Uganda)

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Mwananchi Service Station and another v Minga [1973] 1 EA 305

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a. Kerosene is supposed to reach the ultimate consumer in its distributed

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Foreseeability of injure is thus the basis of a duty of care. In the case of

Namyalo v Ratanshi [1968] 1 EA 14 (HCU)

Haley v London Electricity Board

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Home Office v Dorset

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...the well-known passage in Lord Atkin's speech should I think be regarded as a

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Secondly if the first question is answered affirmatively, it is necessary to consider

Considerations that courts take into account in establishing a duty of care.

BREACH OF DUTY OF CARE.

Whether auctioneers within scope of duty owed by research institute –

Whether damages recoverable under the rule in Rylands v Fletcher.

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In consequence, as was assumed, of the escape of a virus imported by the

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there are policies which court uses to limit the

Courts will not impose a duty where there is an alternative system of

Beyond that a duty of care can be imposed by statute- kibed’s case

Anns V. Morton London Borogh Council

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And consequently that the appeal should be dismissed with costs.

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Caparo P/lc Industries V. Dickman and others

Held (O’Connor LJ dissenting)– The auditor of a public

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care and skill and, since it was reasonably foreseeable

Grant V Australian Knitting Mills

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FAILURE TO ACT AS NEGLIGENCE OR OMISSION

7–10, 14 MARCH 1994, 16 FEBRUARY 1995

All England Law Reports 1936 - books on screen™

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professional duty, failed to do so was liable in damages to a disappointed prospective

which fell exclusively within the zone of contractual liability.

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rise to a duty of care, the principle of assumption of responsibility should be extended to a

FELLOWES V ROTHER DISTRICT COUNCIL

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BREACH OF THE DUTY OF CARE

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There are four steps to proving causation in a case like this:

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The first consideration that court take into account is-

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The defendants appealed to the House of Lords.

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The serious or the gravity of the consequences .

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General clean contractors V Christmas; see when the plaintiff