Tortt 2

.
NEGLIGENCE
Objectives
 To enable students understand when liability may arise from acts of negligence.
 To introduce students to the history and rationale of the law of negligence in common
law.
 Identify the basic elements and application of the law of negligence on a day to day life
of individuals and society.
 Outline the remedies.
 Outline the defenses.
Definition of negligence
 It is "conduct that falls below the standard established by law for the protection of others
against unreasonable risk of harm.”
 In Bolam v Frien Hospital Management Committee 1957 1 WLR 582, negligence in

the ordinary case which does not involve any special skill, means a failure to do some act
which a reasonable man in the circumstances would not do and if that failure or the doing
of that act results into injury, there would be a cause of action. The test to determine
whether there was negligence is the ordinary man on the street. But where special skill of
competence is necessary the test is not based on the ordinary man, it is the standard of the
ordinary skilled man exercising and professing to have that special skill. Or is an
omission to do something which a reasonable man guided upon those considerations
which guide the conduct of human affairs would do or doing something which a prudent
and reasonable man would not do (Blythe v Birmingham Water Works [1859] 11 Ex
781).
 The following can be noted:
o Negligence connotes “a conduct that follows below the standard established by

law for the protection of others against unreasonable risk of harm”
o It requires that persons conduct themselves in a manner that conforms to certain
standards of conduct.
o Where a person’s actions violate those standards, the law requires the person to
compensate the injured. In some instances, the law of negligence also covers a
person’s omission to act.
o Therefore, negligence is a breach of duty of care which results into; loss or injury
to the person or entity the duty is owed
 The law of negligence therefore, requires that persons conduct themselves in a manner
that conforms to certain standards of conduct.
1
Prepared by Mr. Hirya Hamza (Lecturer) iuiu FoL hhmulike@gmail.com
 Where a person’s actions violate those standards, the law requires the person to
compensate the injured. In some instances, the law of negligence also covers a person’s
omission to act.
 In the tradition of the civil law, delict is the sister of crime, and tort law, like criminal
law, serves a deterrence function, in addition to compensating victims.
 Therefore negligence consists of

o doing something that a person of ordinary prudence would not do under the same
or similar circumstances; and,
o or failing to do something that a person of ordinary prudence would do

considering the circumstances, situations and the knowledge of parties involved in
civil liability.
 In tort law, negligence is a distinct cause of action.
History of the tort of negligence

 The law of negligence has been evolving from action of the case to its present form. It
can be traced from Writ of trespass on the case (‘case’) - an indirect ('consequential')
injury in a situation where the wrong might be the carelessness (as opposed to intention)
involved.
 Pre-nineteenth century negligence actions are attributable to the governing procedural

forms of action.
 Specifically, if a plaintiff was injured by an intentional harm he would sue

in trespass.
 If the harm was non-forcible, then assumpsit was available when a prior
relationship between the parties caused the injury, for example, if the
defendant was a common carrier. Barring such a relationship, the plaintiff
could only sue in case because of the indirect nature of the injury.
 Before 1932, there was no such thing as a ‘tort of negligence’. Third parties who suffered
as a result of a breach of contract had no remedy, because they were not a party to the
contract and thus excluded by the doctrine of privity.
 The modern 'causes of action' which come under the umbrella term of unintentional torts
is a descendant of this old form of action:
The Doctrine of common employment
2
 Common employment served as a defense in the law of torts under which workers
implicitly undertook the risks of being injured by their co-workers, with whom they were
in "common employment".
 By the middle 19th the law was that an employee could not sue his master for the
negligence of a fellow employee under the common employment doctrine as known in
England and "fellow servant rule" in the US.
 The history of the doctrine
o It is traceable from the 14th C with the enactment of the Poor Laws.
o The law had different dimensions.
o It was to address the problem of the poor by preventing
 Vagrancy, which gave powers to government to excommunicate the poor
back into the rural areas to provide
 As a social policy frame wok to address the shortage of labour in the rural
areas caused by plagues that reduced rural; population by 30-40%.
 They also provided the legal basis for providing relief to the poor under
the Relief of the Poor 1563 Act, which required parish residents with
ability to pay to contribute to poor collection.
 In so doing the state formulated ways for ensuring employment by
creating public works or social systems under which the poor were
ensured with relief in terms of food, shelter or work
 In ensuring the poor to work, and preventing tghem from being a nuisance
and the Vagabonds laws were enacted, which imposed penalties for being
a vagabond.
 However, the Poor law system began to decline with the changing political
economic environment,
 Thus by the 19th Century, industry and commerce had advanced, much as
poverty was also on the rise.
 With increasing liberalism and threats of revolutions especially in Russia
and China, voluntary contributions emerged through the creation of
friendly societies.
 Trade union movement had also grown to strength and provided some
form of relief.
 Under the Medical Relief Disqualification Removal Act of 1885, those
who had accessed medical care funded under the poor rate were not
disqualified from voting in elections
 With increasing unemployment, the Chamberlain Circular urged local
governments to establish projects to address the unemployment and hence
in 1905, the Conservative Party enacted the Unemployed Workman Act
which provided temporary employment.
 Increasing poverty especially between 1918-1939 following the two major
was called World Wars led to several measures that killed off the Poor
Law System.
 These measures followed the enactment of the following legislation:
3
 The Board of Guardians (Default) Act 1926 which provided
support to minors during strikes.
 The Local Government of 1929
 The Unemployment Assurance Board was set in 1934 to deal with
those not covered under the National Insurance Act of 1911
 By 1948, the Poor Law system was abolished,
 It should be noted that the Poor laws system was a redress to the
repercussions of exploitation of labour which was increasing in intensity
but was also provoking resistance.
 Amidst the oppressiveness of the economic system was the law of
common employment.
 It served as a defense in the law of torts under which workers
undertook the risk of being injured by their fellow workers with
whom they were in common employment.
 Under the doctrine of common employment, a worker could not

sue an employer for injuries sustained at workplace caused by
another worker.
 This doctrine was subject of legal battles in the case of PRIESTLEY V. FOWLERI5
1837 M&W 1
 Court had to determine whether this action could arise out of assumpst or action on
the caseThe only issue to be decided in this case was whether "the mere relation of
master and servant" implied a common-law duty on the part of the master, to cause
the servant to be safe and secure at the place of work.
Facts of the case
 In this case, court had to determine whether this action could arise out of assumpst or
action on the case, whenan employee having sued an employer for work-related injuries.
 On May 30, 1835, Charles Priestley," a servant of butcher Thomas Fowler of Market
Deeping, was ordered to deliver mutton to market. The meat was placed in a wagon driven
by William Beeton, one of Fowler's employees."
 Priestley was to accompany the cart only as far as Buckden, some twenty miles from
Peterborough, where he was to sell some quantity of the loaded provisions.
 Beeton would then continue on to London to vend the remainder. The four-horse team
could not move the van and "jibbed". They stopped moving forward.
 Turning to the nearby Fowler, Beeton protested that "he ought to be ashamed of himself
for sending such a dangerous load."
4
 Fowler responded by calling Beeton "a damned fool for saying anything of the sort."
Although present during the exchange, Priestley held his peace."
 Following this ominous start, the wagon soon embarked on its journey, propelled into
motion by some of Fowler's other employees.
 While moving Beeton and Priestley heard a cracking noise as the cart rolled over some
stones. The van was inspected by Gideon Lucas, owner of the King's Head Inn using a
lantern light as they were moving at night. The inspection never revealed anything amiss
with the cart.
 However, while travelling the wagon's front axle cracked and gave way, overturning the
vehicle. Beeton was pulled ahead of the van's collapse by the horses, escaping substantial
harm.
 Priestley was less fortunate as he broke his thigh, had a dislocated shoulder, and various
other injuries.
 As was customary upon the occurrence of such accidents, Priestley was taken to the
closest public lodging, in this case the King's Head Inn from which he and Beeton had
recently departed.
 Lying "in a very precarious state," Priestley stayed at the inn for nineteen weeks, during
the course of which he was treated by two surgeons.
 The total cost of Priestley's care and treatment, cost a hefty £50, which was paid by his
father, Brown Priestley.
 During the Lincoln Summer Assizes of 1836, Charles Priestley (as a minor through his
father) sued his master Fowler for compensation relating to his accident.
 On July 18, 1836, the action was tried before Park, J., who by all accounts was a sound
judge, although given to occasional losses of 19 Simpson intimated that the cart might
have been loaded by unidentified mutton suppliers.
 Serjeant Edward Goulbourne" and Mr. Nathaniel Clarke represented Priestley, while
Serjeant John Adams and Mr. Andrew Amos acted as counsel for Fowler."
5
 Priestley pleaded two grounds in support of his claim against his master, a latent defect
and the van's overloading.
 The declaration stated that when Fowler had "directed" the plaintiff to accompany the
mutton to market "in" the van, Fowler was under a duty "to use due and proper care that
said van should be in a proper state of repair" and "not be overloaded, and that the plaintiff
should be safely and securely carried thereby."
 As a result of Fowler having breached this duty, the van had broken down and the plaintiff
was harmed.
 Neither negligence, omissions nor of the existence or violation of a duty towards Charles
Priestley by anyone in Fowler's employ had been pleaded or raised in submissions.
 Throughout the trial, Serjeant Goulbourne emphasized the overloading claim, with
contrary evidence presented by the parties as to the weight both properly and actually
borne by the wagon.
 Evidence was also given as to the extent of the axle's defect prior to the accident.
 In putting Priestley's case to the jury, Goulbourne played to their sympathies,

remonstrating the unprincipled behaviour of the "wealthy butcher" defendant towards the
plaintiff who "was one of a large family'," and asking for not only reimbursement of
medical expenses, but also recompense for Priestley's pain and suffering:
 That a very opulent tradesman, a man in a very large way of business like the defendant,
should have driven this poor lad into court, for he would say that not only justice, but also
in common humanity, he ought to pay the pecuniary damages his client had sustained, and
also some remuneration for the suffering he had undergone, and the deprivation under
which he was now labouring and would labour for the rest of his days.
 Opposing the claim, Serjeant Adams denied the cart had been overloaded, noting that
Priestley had continued on the journey after first witnessing Beeton's protest, and then
hearing the cart crack near Peterborough. Nor could Fowler be held liable, Adams
continued, as he was only bound to use "such ordinary care and diligence as he would use
over himself," and the defendant had been satisfied as to the state of his property."
 In any event, Serjeant Adams asserted that as a legal matter, Fowler as a master was not
liable to his servant Priestley. This was because there was "no such case in the books," and
6
for good reason: "If the defendant was responsible in this case, every master was liable to
any accident that might occur to his servant about his work?" No evidence reveals the
possible negligence of Priestley's fellow servants ever being raised or at issue during the
trial.
 Without identifying a related judgment, Park, J. disagreed with Adams's contention "that
there is no such case on the books," and refused to non suit the plaintiff, opining that "the
defendant is liable."
 At the same time, he pointed out that the jury could consider Priestley's acquiescence in
light of the wagon's condition, and granted Adams permission to move the full court in
Westminster should the jury enter a verdict against his client.
 Next, instructing the jury, Park, J. stated that Fowler could not be held liable for a hidden
defect in the wagon. Instead the only question here was,—and it was one of fact—was the
van shamelessly over laden; was it laden unsafely and to a dangerous degree; and, if so,
was the master acquainted with the fact? ... if the jury were of opinion that the accident
was occasioned by the 'pigheadedness' of the defendant in overloading the van they would
find for the plaintiff.
 After deliberating for less than half an hour, the jury awarded Charles Priestley a sizeable
£100.
 However, Serjeant Adams obtained a rule to arrest the judgment on the ground "that there
was nothing in the declaration to throw any liability on the master."
 Adams also moved for a new trial, but this part of the rule was abandoned when Fowler
became bankrupt.
 As a result, the arguments presented before the full Court, of Exchequer were confined
solely to the motion in arrest of judgment.
 Showing cause, Serjeant Goulbourne began by conceding that a probable issue" was
whether Priestley had been required to ride in the van, or had been at liberty to walk
alongside it. Such concern was vitiated when the Court of Exchequer intimated the
sufficiency of the declaration on this subject.
 Next, after acknowledging that the suit was "a case of the first impression" without
"precedent exactly in point, Goulbourne declared that the action was "maintainable on
7
general principles of law," analogising Priestley's situation to that of "an ordinary coach
passenger."
 To this, Abinger, C.B. raised the distinction that a coach passenger had no means of
knowing the coach's condition, whereas a servant could make his own inspection.
Serjeant. Gottlbourne averred that as in the coach/passenger situation, the master/servant
relationship was contractual.
 The servant paid consideration with his labour, and the master was in turn duty bound "not
to expose him to risk in performing these services."
 Because the jury had found for the plaintiff, two inferences had to be intended," or drawn.
First, that "it was the master's duty to provide a proper vehicle," and second, "that the
master knew the van was overloaded."
 Plaintiff's counsel concluded his averments by arguing that even if brought in assumpsit,
the action would have alleged the same basis for recovery because the law implied a
promise "co-extensive" to the violations of duty alleged under case in the declaration.
 In response, the Chief Baron opined that liability would exist in those circumstances if
either the master had "maliciously designed" to injure his servant, or he had
"positively guaranteed" his safety. Seizing upon this opening, Serjeant Goulbourne
stated that after the verdict "it will be intended that the master was aware of the
danger, and that lie denied to the servant that there was any danger."
 Parke, B. then posed a hypothetical: "Suppose I send my servant on the roof, to clear away
the snow; if the roof gives way am I liable?" Serjeant Goulbourne replied that the present
case differed because "it is not a mere state of insufficiency; for the overloading of the cart
is a positive act, which occasions the accident."
 At no point during the repartee did either Serjeant Goulbourne or the Exchequer Barons
touch on the likelihood of Priestley's injury originating from the oversight of a fellow
servant.
 In arrest of the judgment, Serjeant Adams contended that the plaintiff had improperly
framed his action in case rather than in assumpsit. This error was dispositive, for in order
to maintain an action, five circumstances had to exist:
 First, that the van was overloaded, by defendant's order.
 Second that plaintiff was ignorant of its being overloaded.
 Third, there must be an order by the defendant, to plaintiff, to go on the van.
8
 Fourth, that it was necessary for the plaintiff to do so, in order to perform his duty in
respect of the goods.
 Fifth, that the order shall be a lawful command which the servant is hound to obey.
 The action having raised three of Adams's prerequisites to liability, the Barons of the
Exchequer engaged defendant's counsel in a protracted discussion of whether Priestley
was required to ride in the wagon or could have walked alongside it, then intended that the
declaration was sufficient on this point.
 Serjeant Adams concluded his submissions by proclaiming that "there is nothing in the
declaration which shows that this was anything more than a mere accident; and for a
mere accident which happens in a master's service, the master is not responsible."
 As with the arguments presented by his opposing counsel, Adams never raised the
prospect of vitiating his client's liability, due to the intervening act of a fellow servant.
 Abinger, C.B. delivered a rambling opinion arresting the

judgment. The Chief Baron began by dismissing as a matter of
law the assertion that Fowler's knowledge of overloading could
be intended after verdict.
 Lacking "precedent for the present action," the Court was at

"liberty to look at the consequences of a decision the one way or
the other.”
 Deciding "the question upon general principles," Abinger, C.B.

cautioned that if legal culpability was upheld under these
circumstances "the principle of that liability will be found to
carry us to an alarming extent?"
 He then put forward a number of examples in dicta illustrating

the magnitude to which such a rule would cause principals to be
responsible to their "inferior agents":
9
 If the owner of the carriage is responsible for the sufficiency of
his carriage to his servant, he is responsible for the negligence
of his coach-maker, or his harness-maker, or his coachman.
 The footman, therefore, who stands behind the carriage, may

have an action against his master for a defect in the carriage,
owing to the negligence of the coach maker, or for a defect in
the harness arising from the negligence of the harness-maker,
or for the drunkenness, neglect, or want of skill in the
coachman.
 Even more distressing to Lord Abinger was that the rationale of

the case could be broadened further, allowing, for example, a
master to "be liable to the servant, for the negligence of the
chambermaid, in putting him into a damp bed.""
 In other words, Abinger, C.B. clearly foresaw that permitting

Priestley to recover directly against his master in this novel
action would open the floodgates to vicarious liability, entitling
servants injured by their peers to recover against their common
masters.
 Because the consequences of such an extension would engender

both "inconvenience" and "absurdity," general principles
provided "a sufficient argument" against liability.
 Acknowledging that the master/servant relationship bound the

master directly to "provide for the safety of his servant ... to the
best of his judgment, information, and belief," the Chief Baron
emphasized that it could "never" imply an obligation for the
master "to take more care of the servant than he may
reasonably be expected to do himself."
10
 At the same time, the servant was "not bound to risk his safety
in the service of his master" and was free to "decline any
service in which he reasonably apprehended injury to himself".
 This was because servants were in as good, if not better

positions, than their masters to appreciate possible hazards.
 Lord Abinger concluded with a last policy argument against

upholding the jury's verdict. Allowing this action "would be an
encouragement to the servant to omit that diligence and caution
which he is duty bound to exercise on behalf of his master," and
which offers much better protection against injuries "than any
recourse against his master for damages could possibly afford."
 From the facts of this case, there is evidence of negligence but in

spite of the employer owing a duty of care to his employees to
provide safe means of work, court did not find Fowler
negligent.
 The doctrine of common employment was unjust.
 Hence the doctrine of common employment reversed the

principles of law based on the Poor Laws in response to the free
market.
 This was because the law was still in its infancy. There was no
statutory law to cover such cases.
 Today, liability could have been held under negligence or under

11
the Workers Compensation Act under which a worker can file
for a quasi-tort, regardless of their co-worker's fault. See the
Uganda Workers’ Compensation Act, Cap 225
 The doctrine of common employment was eventually abolished

altogether by the Law Reform (Personal Injuries) Act 1948 in
the United Kingdom and under Section 15 of the Law Reform
(Miscellaneous Provisions) Act Cap 79 laws of Uganda and
under the Workers Compensation Act.
 However in spite of the enactment of legislation, negligence was

not an independent tort and duty of care only applied to third
parties in cases of fraud.
 Ths explains why statutes had to be enacted to cover certain

specific acts of injury that could not be covered under tortous
liability.
 In other jurisdictions like in the US, the doctrine has been

superseded by the enactment of the Workers’ Compensation
laws by which a worker can file for a quasi-tort, regardless of
their co-worker's fault. See the Uganda Workers’
Compensation Act, Cap 225
 In other jurisdictions like in the US, the doctrine has been

superseded by the enactment of the Workers’ Compensation
laws by which a worker can file for a quasi-tort, regardless of
their co-worker's fault. See the Uganda Workers’
Compensation Act, Cap 225
 S3 of this Act provides for the employer’s liability.
(1) If personal injury by accident arises out of and in the course of a worker’s employment,
the injured worker’s employer shall be liable to pay compensation in accordance with this
Act.
(2) The employer shall not be liable in respect of an injury which
does not either—
12
(a) result in permanent incapacity; or
(b) incapacitate the worker for at least three consecutive days from earning full wages at
the work at which he or she was employed.
(2) An act shall be deemed to be done out of and in the course of employment when a worker
(3) acts to protect any person on the employer’s premises whom the worker believes to be
injured or imperiled, or when a worker acts to protect property on the employer’s
premises.
(4) Any personal injury by accident arising while the employee is travelling directly to or
from his or her place of work for the purpose of employment shall be deemed to be an
accident arising out of and in the course of his or her employment.
(5) For the purposes of this section, it shall be for the employee who suffers injury by
accident arising while travelling to or from his or her place of work to show that such
travel was direct.
(6) Compensation shall be payable under this section whether or not the incapacity or death
of the worker was due to the recklessness or negligence of the worker or otherwise
(7) Any accident arising in the course of employment shall, unless the contrary is proved, be
presumed to arise out of employment.
(8) Compensation in cases of permanent incapacity or death shall, in principle, be paid in the
form of periodic payments; otherwise, they may be awarded in lump sums as provided
under this Act.
The transformation of common law and emergency of the law of negligence

 Fifoot points out that the “prime factor” in the transformation of negligence into an
independent tort was “the luxuriant crop of ‘running-down’ actions” created by the
economic prosperity of the late eighteenth and early nineteenth centuries.
 Thus, instead of the industrial machinery of the second quarter of the nineteenth century,
it was the road machinery of the preceding fifty years that “multiplied accidents and
fertilized litigation,” propelling forward the doctrine of negligence.
 Prichard moved Fifoot’s chronology forward by asserting that a “thin trickle” of running-
down actions from the late seventeenth century “should be regarded as the beginnings of
the tort of negligence.”
 Prichard maintained that plaintiffs brought their actions in case, alleging a form of
negligence in the attendant cum clauses due to two procedural reasons.
13
o First, plaintiffs were unable to join trespass and case actions because the first were
considered appropriate for claims of directly caused harm, the latter for
consequentially engendered injury.
o Second, pleading trespass engendered a significant risk for defendants to avoid

liability by averring that although the injury was direct, their servants’ driving
caused it.
o Last, Prichard demonstrated that a likely origin of negligence is the 1676 case of
Mitchil v. Alestree, which describes the defendant’s liability as arising out of his
servants’ carelessness.
 The first discussion on whether a duty of care could extend to third parties was raised in
Langridge v Levy[1837] 2 M&W 519
In his case, the defendant gun merchant sold a rifle to plaintiff’s father, knowingly
misrepresenting that the respected craftsman Nock had made it for the late King George
IV. Subsequently, the younger Langridge used the gun, which exploded, causing him
injury. An action in case was brought before Alderson, B. at the 1836 Somersetshire
Summer Assizes, the declaration alleging that “the defendant was guilty of great breach
of duty,” violation of warranty, and knowing deceit. Baron Alderson left the jury to
decide on the existence, breach, and possible scienter of the warranty, but did not charge
them as to the possible violation of a duty of care. Consequently, the jury found a 400
general verdict for the plaintiff. In Michaelmas Term, 1836, Levy’s counsel obtained a
rule nisi for arresting the judgment on the grounds that an action on the case was
inappropriate where the parties lacked privity of contract, and that in any event “no duty
could result out of a mere private contract, the defendant being clothed with no official or
professional character out of which a known duty could arise.”
The motion to arrest judgment was argued before the Court of Exchequer in Hilary Term,
1837. Plaintiff’s counsel showed cause by contending that actions on the case were
“peculiarly applicable” to circumstances where harm arose from a contractual breach
upon which the injured party could not directly sue. This was because even in the absence
of privity between the parties, the law “imposes” a duty upon an individual furnishing
“that which by his misconduct may become dangerous to another” to take “reasonable
care” that the article not cause injury. When a breach of this duty of reasonable care
caused harm, the plaintiff could sue upon either the duty arising out of the contract, or the
one imposed by law. Hence “the present case may be rested on both these grounds.”
Discharging the rule in arrest of judgment, the Court of Exchequer held that lack of
privity most assuredly prevented the plaintiff [*PG708]from recovering directly upon the
contract. Nonetheless, Parke, B. ruled that an implied duty arose from the affirmative act
of falsely misrepresenting the gun’s safety. By doing so, the defendant had created a
dangerous situation—and thus a duty—where none had previously existed. Parke, B.,
however, explicitly rejected the broad principle of duty suggested by plaintiff’s counsel:
14
We are not prepared to rest the case upon one of the grounds on which the learned
counsel for the plaintiff sought to support his right of action, namely, that wherever a
duty is imposed on a person by contract or otherwise, and that duty is violated, any one
who is injured by the violation of it may have a remedy against the wrong-doer: we think
this action may be supported without laying down a principle which would lead to that
indefinite extent of liability . . . and we should pause before we made a precedent by our
decision.
Thus, although approving liability within the narrow context of a defendant having
knowingly created a danger, the Court of Exchequer explicitly rejected any broader
expansion of a general duty of care.
The Defendant knew the product was used on behalf of the wife, and therefore the duty
extends to her.
o The court refused to set a precedent by imposing a duty of care to third parties,
because this might result in indefinite liability ('open the floodgates' and everyone
could sue).
o However, the court awarded damages to the plaintiff on the basis of fraud - a duty
that arose that the gun should be safe because of the defendant's representation
that it was.
o That duty extended to the plaintiff because the defendant knew the plaintiff would
be using it.
o The debate continued in Winterbottom v Wright, 1842 10 M& R 109 which was
equally reluctant to extend a duty of care towards third parties:
o No contract existed between the injured party and the party which is actually at
fault (instead, there were a series of fragmented contracts), and therefore the
plaintiff is excluded from suing. Allowing him to sue would open the floodgates.
 There is no fraud here, and so the Plaintiff has no remedy.
 The judge was careful not to introduce what would be 'bad law' just
because he is sympathetic to the injured and remedy-less plaintiff.
 And also in George and Wife v Skivington,[1869-70] LR 5which was

complicated because a defective product was bought by a husband for a
wife (a wife could not be a party to a contract back then.
 Applying Langridge v Levy, [1837] 2 M & W 337 a case of product

liability, a duty arose that the product should be safe, and that duty
extended to those who the Defendant knows will be using it.
15
 A major breakthrough occurred in Heaven v Pender, [1882-83] 11 QBD
503where the court finally recognized that a duty of care can be owed to third
parties:
 In a scenario where ordinary care or skill is required to prevent injury to the

plaintiff, a duty of care exists even in the absence of a contract.
Whenever one person is by circumstances placed in such a

position with regard to another...
whereby he may cause danger of injury... a duty arises to

use ordinary care and skill to avoid such danger.
 This duty exists without an implied contract or fraud like in previous cases.
o This paved the way for the landmark case which created modern negligence, Donoghue v
Stevenson [1932] AC 562, which laid down the neighbourhood principle as we shall see
subsequently.
16
Duty and standard of care in negligence as laid down in Donoghue’s case
 When does liability in negligence arise?
 Liability in negligence arises from a breach o duty, which causes injury to another.
 For that duty of care to arise, there are certain elements that have to be established:
(1) a duty of care owed by the defendant to the plaintiff
2) a breach of that duty
3) damages resulting from the defendant's breachof duty.
4) Foreseeability of harm
5. Proximity: an actual causal connection between the defendant's conduct and the
resulting harm
 In some instances, a statute or other law may define specific duties, such as the duty of a
person to rescue another.
 Professionals, such as doctors and lawyers, are also required to uphold a standard of care
expected in their profession.
 When a professional fails to uphold such a standard of care, the professional may be
liable for malpractice, which is based on the law of negligence.
The Concept of Duty of Care
 In English law it is essential that duty to be careful must be established.
 Duty means a restriction to defendant’s freedom of conduct and is about restrictions on

how one should behave and is expected to be careful and the question court would ask is
whether a prudent and reasonable man would have behaved in the manner the defendant
has done.
 According to Clerk and Lindsell, duty of care is about carefulness, therefore courts are
concerned with the careless infliction of damage which is the subject of complaint.
17
 Breach of care constitutes the core ingredient of the tort.
 It is the primary control device which allows the courts to keep liability for negligence
within what is regarded as acceptable limits although this is an issue of opinion.
 Duty of care involves taking all possible measures to avoid injuring others and it does not
matter whether the other party is in breach of the law and was negligent.
 Read the case of Paulo Kato v Uganda Transport Corporation Civil Suit No 334/1974
A student aged 17 was riding a bicycle from Mengo to join
Gaba road when he was knocked down by the defendant’s
bus. An action for damages was filed for the injuries
sustained by the plaintiff on grounds that D’s driver/servant
was negligent. The D avered that the plaintiff was
contributory negligent as he did not comply with the traffic
rules, and that there was no duty of care owed by the D as
other traffic was in breach of traffic regulations.
Held
 A driver on a major road or round –about as in the instant case was not entitled to
assume that a driver on a minor road would comply with traffic signs instructing
him to yield.
 The general rule is that a driver of a motor vehicle was under a duty to take
reasonable care for the safety of other traffic on the road to avoid collusion. Other
traffic on the road, include pedestrians and cyclists.
 The duty to take reasonable care involved taking all possible measures to avoid
collusion, it did not matter that the other traffic was in breach of some of the
traffic regulations and in the same way, it was immaterial that the other driver or
other traffic was negligent.
 If the possibility of danger was reasonably apparent, then to take no precaution

was negligence. A driver could guard against reasonable probability of danger
arising from the carelessness of other drivers.
 It was quite clear that the driver of the defendant’s bus was negligent. He saw the
plaintiff coming in the side road of Mengo road, but in disregard of the
possibilities of the cyclist attemptingto cross the road, he kept the same speed and
negotiated the round-about towards South Street and in the process, he collided
with the plaintiff.
18
 The driver of the bus should have foreseen that at the clock tower round-about,
cyclists and other drivers were in the habit of crossing from a sideroad, across the
round-about without stopping to allow the traffic on the round about to pass.
 The round-about at the clock tower was a notorious place for that because of the
usually heavy traffic. In the circumstances the driver of the bus should have
slowed down considerably before taking the bend and crossing over to the South
Street.
 There was no contributory negligence on the part of the plaintiff as there was no
evidence that he rode the bicycle in disregard of his own safety.
 Duty of care applies to persons who may get injured out of the negligent conduct of the
defendant, and it is those who might happen to be in the neighbourhood.
 The duty of care may depend on the type of damage inflicted.
 According to Winfield and Jolowicz, a duty of care may arise from physical damage to
property but such duty may not exist with respect to economic or pure financial loss, loss
arising out of incorrect evidence given in court, failing to assist or protect others (W & J
p152).
 In determining whether there is a duty of care, courts base their decision on what is fair,
just and reasonable.
 Whether a duty of care exists is a question of law, which is determined using three tests
as laid down in Winfield and Jolowicz at p 161 para (5-8) based on the leading authority
of Caparo Industries Plc v Dickman [1990] 2 AC 605 :
o The tripartite test invokes the following questions

 Whether the harm was foreseeable;
 Whether there was sufficient proximity between the parties; and,
 Whether the imposition of a duty of care would be fair, just and
reasonable.
 These according to Lord Roskill in Caparo v Dickman are phrases describing the
different factual situations which may exist in particular cases and which must be
carefully examined in each case before it can be pragmatically determined whether a duty
of care exists and, if so, what is the scope and extent of that duty.
 Therefore, defendant is assumed to be responsible for the harm caused.
 Duty may arise from any situation depending on the circumstances of each case. For
example, a driver owes a duty to other motorists to drive safely and observe the rules of
the road.
19
 By running a stop sign, the driver arguably breaches that duty. If someone was injured as
a result of the driver’s failure to stop, the injured party would have a good argument that
the breach was both the cause in fact and proximate cause of his or her injuries. See the
case of Kato v UTC (supra)
 In some instances, a statute or other law may define specific duties, such as the duty of a
person to rescue another. Professionals, such as doctors and lawyers, are also required to
uphold a standard of care expected in their profession.
 When a professional fails to uphold such a standard of care and an injury results, the
professional may be liable for malpractice – a tort based on the law of negligence.
 Scope of duty is assessed basing on the foreseeability and proximity tests and whether it
would be fair, just and reasonable as discussed in the case of Home Office v Dorset
Yacht Co Ltd [1970] AC 1004, Donoghue v Stevenson [1932] AC 562 and in the
judgment of Caparo v Dickman [1990] 2 AC 605
Foreseeability and the neighbourhood principle
 Foreseeability of harm is one of the criteria for determining whether a duty of care was
owed with respect to the type of conduct the defendant should be held liable.
 This therefore means that the damage occasioned to the plaintiff must be foreseeable and
therefore preventable.
 Foreseeability is about reasonable foresight and is the same as the natural and probable
consequence of the action of the defender, a consequence which the defender ought to
have foreseen. And if this is so the defendant’s acts are the direct cause of the damage
done. (Lord Reif in Home Office v Dorset Yacht Co)
 It may mean a substantially closer relationship between the parties. For instance allowing
prisoners to escape (Home Office v Dorset Yacht Co (supra)) rendered the prison
authority to be in close relationship with the owner of property in the immediate vicinity,
which was damaged by the prisoners.
 Or where human action forms one of the links between the original wrongdoing and the
loss suffered by the plaintiff, that action must at least have been something very likely to
happen if it is not to be regarded as novous actus interveniens breaking the chain of
causation.
 The foundation of the duty in this case is the custody of the offenders.
 Foreseeability may therefore imply sort of a special or close relationship according to

Hill v CC West Yorkshire [1989] AC 53 which was an action against the police for
failing in duty to deal with a serial criminal. Court was of the view that since the criminal
20
suspect was not in custody of the police, they owed no duty of care over a member of the
public at large.
 In determining the question of foreseeability, court considers the following:
o Measure of responsibility by determining the class of people or situations over

which the D has responsibility as laid down in Home Office v Dorset Yacht Co
Ltd [1970] AC 1004. Students should read this case.
o By assessing whether the Plaintiff comes within this class of people.
o Whether D’s failure to control activities likely to be a source of injury to others.
The neighbourhood principle
 All these are linked to causation which is used to determine whether a duty of care
existed and on this basis court developed the neighbor principle.
 The neighbourhood principle as laid down in Donoghue v Stevenson [1932] AC 562 is

the modern test used in determining whether the claimant was a foreseeable victim of
defendant’s negligence.
 The facts of this case:
Ginger Beer in an opaque bottle was sold to a retailer and by

him to a customer, which was consumed by the plaintiff which
had been offered by a friend who purchased it. As she poured
herself a second helping, the revolting remains of a
decomposing snail floated into her glass.
The unhappy combination of this nauseating sight and the

impurities in the ginger beer she had already drunk produced
both shock and gastroenteritis for which Mrs. Donoghue had
to be hospitalized.
The plaintiff under existing law was not party to the sale
contract. With no contractual remedy available from the
manufacturer, she sued in tort. A preliminary issue of law was
whether the manufacturer could be liable. The House of Lords
ruled in the affirmative.
 Ultimately, the House of Lords had to decide: if a company has manufactured a drink
and sold it to a distributor, was it under any legal duty to the ultimate purchaser or
21
consumer to take reasonable care that the article was free from defect likely to cause
injury to health?
 Lord Atkin laid down the basis of the present law in the doctrine of the ‘neighbour’
principle in this often quoted passage:
The rule that you have to love your neighbor becomes in

law, you must not injure your neighbor; …..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 your
neighbor. Who then, in law is my neighbor? ….. persons
who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as
being so affected by my act that I ought reasonably to
have them in contemplation as being so affected when I
am directing my mind to the acts or omission which are
called in question…
 According to Clerk and Lindsell, courts were very reluctant to follow the decision until
the case of Dorset Yacht Co Ltd v Home Office. In this case the foreseeability and
proximate tests were used to determine whether the prison authority owed a duty of care
to owners of a nearby property likely to be damaged if the prisoners under their custody
escaped.
Facts of the case

 This case arose out of damage caused by trainees who were in custody of Portland
Borstal Institution under the Home Office.
 The officers accompanying them for a training exercise with instructions to keep them in
custody went to sleep and the boys escaped and boarded a yacht which they set in motion
but collided with another belonging to the respondent, causing substantial damage. The
respondent sued for damage.
 The Home Office raised three arguments against the action.

o There was no authority under which such liability could be
imposed on the defendant.
o No person can be held liable for wrongs by another who is a full

age and capacity and who is not a servant or acting on his behalf.
o Public policy requires that officers should be immune from any

such liability.
22
 The issue for court to decide was whether the Home office was under a duty of care and
therefore liable in damages.
 It was argued by the Home Office that it was wrong to hold the office liable for any
failure of duty or carelessness.
 In response court posed the question as to who would bear the loss and the judges made
several observations.
o Lord Reid pointed out that if the Borstal Officers had obeyed the instructions they
would have prevented them from escaping, especially given the criminal records
these trainees had.
o The escape was a likely consequence of the neglect of duty of the Borstal officers.
They had a duty to protect public interest and in promoting rehabilitation and this
gives them discretion, which however has to be exercised with care.
o Reid held that there was no good ground in public policy to give immunity to
government department I under such circumstances.
o He pointed out novous actus interveniens is a defense, because the events leading
to the damage are broken down. It is a new cause of action which is not a
consequence of the original wrong doing. But if it is then novous actus
interveniens would stand.
 Lord Diplock was of the view that

o for liability to arise out of the situations like the one under them, there must be
some relationship between the custodian and the person to whom the duty is
owed.
o Such a relationship depends on the facts of each case. In this case, the Borstal
officers had a duty to take reasonable care to prevent the boys under their custody
from escaping.
 The possibility of damage to property meant that the owners were closely and directly
affected by the prison authorities’ conduct which was proximate to the plaintiff.
 Responding to the grounds of appeal namely; court made several

observations
o Absence of authority under which such liability could be imposed on

the defendant.
23
 This was based on the argument that there were separate torts
involving negligence each with its own rules and if there was a
claim, it had to be based on a recognized tort. This was not
conclusive as courts from time to time recognized new duties
and grounds of action. But Lord Reid was of the view this was
no more.
 It was high time to cultivate certainty and security in the law

and categories of negligence were virtually closed.
 Therefore, Donoghue v Stevenson made a breakthrough in

getting read of ancient common law, when courts moved away
from whether a particular claim was covered by authority to
whether recognized principle covered it and which is to be
applied depending on new circumstances.
o No person can be held liable for wrongs by another who is a full age and capacity
and who is not a servant or acting on his behalf.
 Under this argument court pointed out that liability in negligence does not
arise from responsibility for acts of the escaping trainees as in this case,
but it is liability for damage caused by the carelessness of these officers in
the knowledge that their carelessness would probably result in the trainees
causing damage of this kind.
 So under this case, could the damage be considered as too remote? This
would be so if there was a break in the chain of causation between
defendant’s carelessness and the damage caused to the plaintiff.
 Lord Reid observed that the damage was a result of the careless act or
omission and it was of the kind which was foreseeable.
 However, Reid was of the view that foreseeability is not sufficient.
 Unforeseeability under the Re Polemis was a defense which has now

changed requiring foreseeability as an essential element in negligence as
laid down in the Overseas Tankship (UK) Ltd v Morts Docks &
Engineering Co Ltd (The Wagon Mound) [1961] 2 WLR 126, [1961] 1
All ER 404.
o Public policy requires that officers should be immune from any such liability.
 Under this argument, the appellants were relying on common law
principle which excludes liability for injury cause in execution of a
24
statutory duty done without negligence. An action lies where an act though
authorized by law is done negligently.
 The rationale is based on public interest, under which things which

otherwise are unjustifiable are done properly with due care, this imposes
immunity from liability to persons who may suffer thereby.
 But as court observed, parliament does not sanction things to be done

negligently in disregard of the interests of others so as to cause them
needless harm.
 But where parliament grants discretion, liability may not lie where there
may be an error in the exercise of discretion and members of the public
may not sue in respect of such errors.
 But where discretion is exercised carelessly or unreasonably it is presumed

that parliament never authorized it as it amounts to abuse or excess of
power.
 Parliament is presumed not have granted such immunity.
 In the present case, the Borstal officers were not exercising discretionary
power but were acting under orders which had been given which they
negligently failed to carry out.
Proximity
 It is a concept that imposes a duty of care between plaintiff and defendant. It simply
means reasonable foreseeability of injury and in determining it court has to consider other
matters. It is about nearness but not just in space but close and direct relations that the act
complained of directly affects a person that neighbor is bound to take care to avoid
careless acts.
 It is about “persons closely and directly affected by the D’s acts and they should be in
contemplation”. This is wider than that of physical closeness.
 But there is no standard measure of proximity as it depends on a particular situation.

However where a defendant directly causes damage or injury, a duty is readily
established by showing foreseeability.
 In Ann v Morton London Borough [1978] AC 728 court has to determine whether there
is sufficient proximity (neighbourhood) between claimant and defendant in anticipation
that his/her carelessness would cause damage.
 Proximity may have different meanings.
25
o It may be a sort of a contract. Because of the defendant and the plaintiff are in
close proximity, a duty of care is contractual. (See Lord Devlin in Hedley Byrne v
Heller & Partners [1964] AC 465 at p529
o It may be a relationship between defendant and the source of harm. This happens
where the defendant’s performance of an activity is wanting and causes injury,
depending on the measure of control. (Corrective justice theory).
 Though the test of reasonable foreseeability is also about proximity in the

measure of liability, it was held in McFarlane v EE Caledonia Ltd [1994] 2
All ER 1 that the test of proximity is not simply about reasonable
foreseeability.
Fair, just and reasonable…

 This is another consideration for courts when determining whether the defendant should
be held liable in negligence.
o Fairness, justice and reasonableness provide courts with discretion.
o Court may not decide in favour of the plaintiff, if its decision would not be fair,
just and reasonable.
o What is fair, just and reasonable is based on ordinary reason and common sense.
Court should impose a duty of care if it is right to do so.
o The theoretical basis of what may be fair, just and reasonable is derived from
corrective, distributive justice, and justice, morality and policy theories.
o These theories are based on a principle that disputes should be resolved in a way
which is fair and reasonable in accordance with the general perception of what is
fair and just, what is fit and proper.
o Distributive justice is based on moral theory. Much as court must act as a court of
law, it has also to act as a court of morals.
o Secondly, based on corrective justice theory, justice requires that wrongs should
be remedied. Someone should indemnify the other for harm caused without
justification.
o On the other hand, it is also based on distributive justice theory which is for
balancing interests by distributing burdens and losses.
o Students should read the cases of Marc Rich & Co A.G v Bishop Rock Marine
Co Ltd [1996] AC 211 and Perret v Collins [1998] 2 Lloyd’s Rep 255 or @pp
171-172 in Winfield and Jolowicz and Clerk and Rindsell at pp424-425). The
26
former rejected the claim and the latter accepted plaintiff’s action. What is the
distinction between the two cases?
 There are other factors courts consider in deciding what is fair, just and reasonable
o Judicial/Legal Policy
o The rationalization on whether it is fair, just and reasonable is based on judicial

pragmatism or judicial and legal policy. Court will decide whether it is just and
fair for the parties on the basis of the legal system and its principles,taking into
account the social and public policy implications of imposing a duty.
o Legal policy is based on the floodgates principle which requires that if a duty is to
be imposed based on the facts of the particular case, it will have to be imposed on
in a wider range of similar situations.
o This has the danger of offsetting the balance to the disadvantage of the defendants
as it is likely to be disproportional to the conduct involved.
 Public policy
o It may be in the interest of the public if a decision is made or not. For instance,
duty may be denied if it will lead to defensive decision making in the provision of
services or inhibit the work of lawyers or doctors. Compare the Bolam and
Canterbury tests in consent in medical practice.
o However, one has to be cautious when considering public policy, which should be
taken into account only in situations where the potential harm to the public is
great.
o Whether the public will be affected must be based on strong evidence and the
burden of proof lies on who ever invokes public policy.
 Discretion
o In deciding what may be fair, just and reasonable principles courts have to
exercise discretion. In using its discretion courts have to consider the implications
of the decision, whether it is likely to cause defensiveness, statutory implications,
and increased litigation.
o Read Marc Rich & Co v Bishop Rock Marines Co Ltd [1996] 1 AC 211.
o In this case, was a cargo ship which developed a crack in the hull and at its next
stop, it was inspected by a marine surveyor employed by the D. The surveyor
inspected the ship on behalf of an association of shipowners. The surveyor
approved a temporary repair and permitted the ship to continue but the repair
27
failed and it sunk. The owner of the cargo sued the defendants for negligence and
the issue was whether the D owed a duty of care.
o Held: No duty was owed. Though there was proximity, the imposition of a duty of
care would not be fair, just and reasonable on three grounds:
 It would undermine the limits to shipowner’s liability under the contract

with cargo owners, which was formed the basis of insurance of
international trade transactions.
 Potential liability would lead to defensiveness.
 Liability would lead to increase in litigation, with greater expenses and

diversion of human resources which might create more risks.
o Lord Lloyd dissented by holding that physical damage had been occasioned
which was in breach of duty of care.
o A close scrutiny of this decision, suggests that the majority decision was
concerned with protecting the shipping community who were concerned with the
proliferation of sub standard classification societies.
o This is the economic argument behind this decision.
 Incrementalism and the incremental test

o Under the incremental test courts are expected to be innovative in developing step
by step and by analogy, categories of negligence based on previous decisions.
o Under the principle of incrementalism, court weighs the consequences of its

decisions. See the case of White v Jones [1995] 2 AC 287, in which court was
prepared to impose a duty of care on a solicitor over matters of a client’s will
which was beyond the accepted principles and limits.
o In so doing, court was guided by the practical impasse for justice requiring courts
to recognize the role of solicitors in writing wills for their client.
o This plays an important role in developing the law of negligence requiring Court
considerin each case whether its decision would be fair, just and fair and in case
of a gap in the law it may extend the duty, if the interest of fairness, justice and
foreeseaiblity would justify such an extension.
o Winfield and Joliwicz quote Lord Goff in White v Jones who in deciding this case
had this to say:
28
In my opinion, …your Lordships … should in
cases such as these extend to the intended
beneficiary a remedy under the Hedley Byrne
principle by holding that the assumption of
responsibility by the solicitor towards his client
should be held in law to extend to the intended
beneficiary who (as the solicitor can reasonably
foresee may, as a result of the solicitor’s
negligence be deprived of his intended legacy in
circumstances in which neither the testator nor the
estate will have a remedy against the solicitor.
 In this case a testator had made a will in which he disinherited his daughter but changed
his mind after he had been reconciled with her. He instructed his solicitor to write
another will but the testator died before he wrote it. The delay was a result of the
solicitor’s negligence. Therefore the old will governed the estate, in which the petitioner
had been disinherited.
 The delay was a breach of contract but due to the negligence as the solicitor failed to
carry out the client’s instructions. In this case, court extended fair, just and reasonable
expectations.
 The groundfor extending was that there was a contract between the solicitor and the
testator, which created a special relationship between the solicitor and the testator,
thereby giving rise to a duty of care in negligence.
 This duty of care arose from the fact that the testator relied on the solicitor for his legal
protection.
 This case illustrates instances when a contract may give rise to tortuous liability because
by the solicitor failing to carry out the instructions, much as was a breach of contract was
also a breach of duty of care.
 However, an action for breach of contract would not have been possible as the daughter
was not a party to the contract under the doctrine of privity of contract.
Pragmatism
 Incrementalism may determine the scope of duty of care. Under incrementalism courts
have to be pragmatic, which essentially requires them to be flexible. This enables them to
use analogy to reach decisions and develop principles by either using past experience
where possible or predicting the future.
29
Standard and duty of care
 The standard of care depends on what is reasonable in the circumstances. A duty of care is
about the duty to take reasonable care to prevent the claimant getting injured.
 With duty, the issue is whether the nature of the relationship requires care to be taken
while the issue of standard, is about what conduct is generally required in a particular
situation.
 The duty of care imposes some standards of care and in negligence it is about what is
expected of a reasonable and a prudent person who is ordinarily expected to regulate his
conduct,and to be a prudent and reasonable person.
 But whether the acts are expected to be prudent and reasonable depends on the facts of
each case. A surgeon is expected to act in accordance with what is expected of a skilled
one but a person who gives first aid would not be expected to have the same skills of a
doctor.
 A driver of a motor vehicle is expected to be more careful than a pedestrian or cyclist.
 But what Court would inquire into is whether a reasonable person would have foreseen his
acts or omissions would result into injury or damage.
The objective test
 The standard of a reasonable man is based on an objective test. The standard is not about
what a person may believe to be right, or his weaknesses or inexperience which is the
subjective test, but it is about expectation of what a reasonable and prudent person, with
foresight would do.
 Objectivity is based on the type of activity the defendant is engaged not on the category of
the actor to which the defendant belongs. Duty is tailored to the actor’s position he or she
occupies not to his/her acts.
 The standard of care is also about balancing costs and benefits by inquiring whether it
would be reasonable for the defendant to bear the cost of a particular form of
precautionary conduct.
 The third category of standard of care is based on practice and expectations. In deciding
whether there was a duty of care court will inquire whether engagement in a particular
activity is balanced with the reasonable expectations of those who may be affected by the
activity. In such cases court will consider the practice.
30
 The Bolam test is a good example on practice in which court stated that a doctor is not
guilty of negligence if acted in conformity with a practice accepted as proper by a
responsible body of skilled medical doctors. A person is not liable in negligence if the
injury arose out of what accepted as common practice, much as there may be contrary
opinion.
 The Bolam test was further expanded by the Bolitho test which puts emphasis on how
logical an opinion might be. This test is based on weighing risk against benefit
 Failure to follow common practice with regard to safety precautions is strong evidence of
careless. It is evidence that the defendant did not do what the community considers
reasonable.
 But common practice may in fact also be evidence of negligence. See Clerk and Lindsell
8-165 and the case of Lloyds Bank Lt v Savory & Co [1933] AC 20. In this case the bank
followed standard practice by other banks but court found the defendant liable.
 Therefore, common practice may or may not be conclusive of negligence. It is just prima
facie evidence that reasonable care was taken.
Factors court puts into consideration in determining standard of care and liability
o Where there is a special relationship, the duty of care will be the same as
owed by any other person for instance a driver, who is expected to take
reasonable care t avoid injury to others whether he is a learner driver or not.
o But where the special relationship is based on knowledge of the defendant

being greater than the average knowledge of the risk, then such special
knowledge may raise the standard of what is reasonably expected of a
reasonably skilled person.
o A house holder has been judged as having a duty expected of a reasonable

carpenter rather than that of an engineer. (see Wells v Cooper [1958] 2 QB
265).
o So duty of care in such situations will be based on the skills of the defendant.
See the case of Philips v Whitely [1938] 1 All ER 566, where a simple
jeweler wrongly pierced the ear of the plaintiff. The standard of care expected
of the defendant was that of simple jeweler not that of a surgeon.
 Situations of emergencies are judged different from those outside emergencies.

Full allowance must given to situations of battle conditions. Though there are
situations when emergencies may be expected, when there is opportunity for
reflection.
31
 In such situations, professionalism is expected and therefore there will be breach of
duty if such professionalism is not exhibited. In Condon v Basi 1985 1 WLR 866,
a reckless tackle against the plaintiff in a football march was held to be a breach. It
was unreasonable for the defendant to have acted in the manner that resulted into
injury, much as court also observed that it was in itself negligent.
 Therefore those engaged in games which involve vigourous activity, should not act
carelessly. Referees have been held liable for failing to control a game, which
failure exposes the participants to unnecessary risk of injury.
 A disability has been held to be an issue which has to be considered when making
judgment whether, a person with a disability who causes injury can be held liable.
In such cases, court considers how a competent person in such situations would
have acted.But this depends on whether, the defendant was aware of his disability
and limitations in discharging his duty.
 Where there is a limitation of capacity of foresight, prudence based on

characteristics of human development, such as age, court will consider it
determining whether there was breach of duty. In such situations court will put into
account the age of the defendant, much as all defendants of whatever level of age,
whether quick tempered, absent minded or inexperienced are expected to act
carefully and reasonably.
 In McHale v Watson (1966) 115 CLR 213, a boy’s conduct in throwing a sharp
rod which bounced off a post and hit a girl was held not be a negligent act taking
consideration an ordinary boy of that age and maturity.
 Liability for known vulnerability of potential victims
 The duty of care for such people is based on the assumption that a person
acting carefully would be aware of the presence of people with disabilities
such as the blind and the deaf. But if there is evidence suggesting that such
awareness would not be possible in the circumstances, the defendant may not
be liable.
 Similarly where there is likelihood of harm liability would lie. The law
assumes that people must guard against reasonable probabilities of likelihoods
of harm but they are not expected to guard against fantastic possibilities.
o Two cases illustrate the point: Bolton v Stone [1951] AC850 and Miller v
Jackson [1977] QB 966. In Bolton v Stone, a cricket ball hit the plaintiff and
this was the sixth time in 30 years that it would happen. Though the harm was
foreseeable, the chance of risk was small. Whereas in Miller v Jackson balls
from a cricket ground hit the plaintiff’s property on a number of occasions.
Court held that the risk of damage was foreseeable and was so great that the
32
defendants were found to have been negligent each time the ball was hit of the
ground and caused damage.
Severity of harm
 Cost and benefit
o In assessing liability court will put into consideration the costs and benefits in
determining whether there is a duty, which was breached. In its assessment
court will put into account the following:
 Likelihood of harm.
 Knowledge and time will determine whether injury is foreseeable.
 In Roe v Minister of Health [1954] 2 QB 66 a disinfectant seeped

into the ampoules through invisible cracks. The possibility that this
would happen was not generally known at the time of the incident.
The plaintiff who received a spinal injection of aneasthia became
paralyzed. The hospital was not liable on grounds that the risk was not
reasonably foreseeable at the time.
 Court put into account the existing knowledge and time within which
existing risks have to be assessed.Read the Wagon Mound No 1
[1961] AC 38 and No 2 [1967] 1 AC 617.
 Cost of precaution
o This is an issue which court considers when assessing whether reasonable care
has been taken. Whenever there is a foreseeable risk courts take into account
the nature of the risk and balancing it with the measures taken to prevent it.
o The defendant is not required to take extreme measures to eliminate the risk.
Court puts into account the cost necessary to put measures in place to prevent
the risk.
 If the cost is substantial, and the risk was minimal, court may not hold the
defendant liable for breach of duty. Students should read Latimar v AEC
Ltd [1953] AC 643. For example in one case B(A Child) v London
Borough Council Camden [2001] PLQR 9, court observed that the
defendant incurred a high cost of building a parameter wall making the
hospital become a fortress and which has also prevented the public passing
through the ground.
 But where the cost of prevention is minimal court expects the defendant to
take measures to eliminate the risk as it was observed in the Wagon Mound
(No 2). Court was of the view that the cost of repairs was low and simple,
which involved closing of the valve to prevent the oil from flowing.
33
 Lack of resources
 Inadequate resources cannot be a defense for injuries arising out

provision of services. The law is such that if a provider of service has
inadequate resources, he should avoid in providing a service. (See
Clerk and Lindsell @ p531 )
 For instance the standard of care expected in testing blood for HIV
should be measured in terms of the risk involved in providing
contaminated blood and the availability of resources for testing. If
there are no resources, the service should not be rendered.
o The utility of the activity

 According to Lord Denning in Watt v Herfordshire CC [1954]
1WLR 835, stated the law on this issue that measuring due care you
must balance the risk against the measures to eliminate the risk.
 However, in Daborn v Baath Tramways Motor Co Ltd 1946 2 All

ER 333, an ambulance which was being driven on the wrong side of
the road which caused an accident was found not to have been
negligently driven court putting into account the social responsibility
of saving life.
 Compare the two cases: fire fighting and saving life were decided
different. Why? Fire fighting was to save property while an ambulance
was to save life.
 In Bolton v Stone playing cricket for 30 years was considered to have

more social benefits when the times were very when the cricket ball
fell into plaintiff ‘s premises.
 But where the likelihood of injury happens to be high, the social utility
would be outweighed. See the case of Hilder v Associated Portland
Cement Manufacturers Ltd [1961] 1 WLR 1434 at p 535 in Clerk
and Lindsell.
 Balancing the risk against the end result to be achieved, the social
benefit and freedom of choice will be considered. If social benefit will
be lost, then risk may not be taken. Similarly, if individual freedom
will be affected it will have a bearing on the risk taken.
 For example court puts into account the freedom of people to decide
for themselves and the law does not impose a duty of care on another
where an individual has freedom to choose what is beneficial to
herself.
34
 The degree of risk will be assessed taking into account its importance,
whether the level of risk is low or high, freedom of choice and social
utility.
 Reasonable care may be based on the cost benefit considerations.

American approach to measuring standard of care, puts into
consideration the cost benefit analysis which is based on three things:
 The probability of an accident occurring;

 The magnitude of loss occurring; and,
 The burden or cost of taking precaution to be taken.
 If the benefit exceeds the cost of the precaution to be taken, the failure
to undertake the precautions amounts to negligence.
 The cost benefit analysis therefore is a valuable aid on the factors to be

considered in making a judgment on negligence.
 However, what is fair and reasonable makes the big difference

between what is expected and the cost/ benefit expectations of the
defendant.
35
2.0 DUTY OF CARE AND PRODUCT LIABILITY
Objectives
 Understanding the legal concept of product liability in the law of torts.
o Liability for defective product services is focused on because different rules

and specific control measures apply to such liability under different
legislation.
o It covers two categories of products or services:
 Those which are dangerous, and;
 Cannot be used to the full advantage either because of its likelihood of
causing damage or it does not work, which cause the claimant damage.
 The former is subject of the law of torts while the latter can be covered
under contract.
Leading case law:
Donoghue v Stevenson
 Who can be sued?

o These may fall under manufacturer, seller, wholesaler or other those involved
in the distributive chain such as electricity, water or gas have a duty to
exercise reasonable care in the processing of manufacturing, selling a product
or providing a service and failed to fulfill that duty, resulting in injury to the
plaintiff.
o Under common law, those engaged in satisfying safety owe a duty of care.
Read the case of Driver v William Willens Ltd [1969]1 All ER 665.
o Such categories may include those involved in quality control such as the
UNBS, UNDA. If they fail to discharge their duties, they may be held laible.
o However, practice indicates courts are very reluctant to award damages to

claimants under such cases.
o In Kalemera Godfrey and 2 others (All minors v Unilver (U) Ltd and EA
Industries (U) Ltd, HCT-OO-CV-CS-1181-1997:which was before Justice
Yorokamu Bamwine outlined the law on product liability. He defines product
liability as:
 Product liability is the area of law that deals with the liability of the
manufacturer, wholesaler or retailer of a product for injuries resulting
from that product. This includes the manufacturer of component parts of
the product, an assembling manufacturer, the wholesaler, the retail store or
other ultimate seller of the product, and any other party in the distributive
chain, regardless of whether you actually purchased the item yourself.
36
 Where a product leaves a factory through a process of manufacture and
packaging that does not or is designed not to allow for its opening by an
intermediary until it reaches the final consumer, then common law
imposes a duty of care on the manufacturer to ensure that it does not harm
the final consumer.
 That by reason of such manufacture and packaging, the consumer

becomes proximate to the manufacturer in respect of whom therefore the
latter bears a duty of care breach of which gives rise to liability of the
manufacturer in negligence.
 It was testified that the product, margarine, is packed in varying weights in

plastic containers sealed with foil and capped with a plastic lid. It was
explained that the product is meant to be kept airtight until it gets to the
consumer.
 Learned Counsel for the plaintiffs submitted that the product in issue is of
such kind which creates a duty of care by a manufacturer toward a
consumer by reason of its mode of packaging. The judge accepted the
submission.
 To succeed in an action of this nature, it is incumbent on the plaintiffs to

prove that there was a defect in the product latent therein at the time it left
the factory; that the defect was occasioned by the carelessness of the
manufacturer; and, that the circumstances were such as to place upon the
manufacturer a duty to take care not to injure the plaintiff as the consumer.
This much was considered in Sendi Edward vs. Crown Beverages Ltd
C. A. No. 17/2002 (C. A unreported).
 For the manufacturer to be liable there must be proof of a latent defect in

the product at the time it left the factory. This is of course a rather
technical area.
 As regards a manufacturer’s duty of care, a manufacturer is liable for its

failure to exercise due care to any person who sustained an injury
proximately caused by the manufacturer’s negligence in:
 designing the product;

 selecting materials (including any component products purchased from
another seller that are incorporated into a finished product.
 using appropriate product processes;
 assembling and testing of the product; and
 placing adequate warnings on the product, which inform the user of
dangers of which an ordinary person might not be aware.
37
o If the product in issue is of such kind by reason of its mode of packaging, it
creates a duty of care by a manufacturer toward a consumer.
o In the instant case Justice Bamwine was of the view that when a product is
exposed to oxidation, becomes rancid; but if enriched with an anti-oxidant, during
its manufacture, such an occurrence would be prevented.
o In this case the manufacturer chose not to use any anti-oxidant but rather to
manage it by making the packaging air-tight.
o Based on evidence, court was satisfied that the danger of the product going bad
(rancid) as a result of oxidation was a latent defect that existed in the product at
the point of manufacture only that the 2 nd defendant considered it a minor risk for
purposes of using an antioxidant as more full proof preventive measure compared
to air-tight packaging, the 2nd defendant’s preferred choice.
o In a negligence claim arising from product liability, plaintiff must show that a
manufacturer, seller, wholesaler or other party involved in the distributive chain
had a duty to exercise reasonable care in the processing, manufacturing or selling
a product and failed to fulfill that duty, resulting in injury to the plaintiff.
o Negligence consists of doing something that a person of ordinary prudence would

not do under the same or similar circumstances; or failing to do something that a
person of ordinary prudence would do under the same or similar circumstances.
o Negligence may arise in the following circumstances:
 drawing up or reviewing plans of a product;

 in maintaining the machines that make component parts of the product;
 in failure to anticipate probable uses of the product;
 negligence in failure to inspect or test the product adequately;
 issuing inadequate warnings or instructions regarding the use of the
product or any other aspect of the manufacturing or distribution process
where due care is not used.
o In the instant case, the plaintiffs demonstrated to the satisfaction of the court that
the negligence in this suit arises from the fact that the mode of packaging could
not withstand the natural wear and tear involved in the distribution of the product
yet they have continued to rely on it as a safe mechanism to check the risk of
oxidation.
o It is immaterial that cases of this nature are uncommon. In all these

circumstances, court is satisfied that the second defendant is liable to the plaintiffs
for the loss and damage caused to them, in its capacity as the manufacturer of the
product, and the first defendant as its distributor.
38
o By dealing in products manufactured by the second
defendant and marketing them in Uganda, the first defendant gave an implied
warranty as to the safety of the 2nd defendant’s product. It is therefore immaterial
that the retailer, Daddy Frank, has not been sued. The plaintiffs were at liberty to
sue him jointly with the defendants or not to sue him at all. It is trite that the
plaintiff is at liberty to sue anybody he thinks he has a claim against and cannot be
forced to sue somebody: Bahemuka vs. Anywar [1987] HCB 71.
o UNBS has the following functions as stipulated in section 3

a) formulate national standard specifications for commodities and
codes of practice as may from time to time be required;
b) promote standardization in commerce, industry, health,

safety andsocial welfare;
c) determine, review, modify or amend standard specifications
and codes of practice as may from time to time be required;
d) endorse or adopt any international or other country’s specification

with or without any modification as suitable for use in Uganda;
e) require certain products to comply with certain

standards in manufacture,composition, treatment or
performance and to prohibit substandard goods
where necessary;
f) enforce standards in the protection of the public
against harmful ingredients, dangerous components,
shoddy material and poor performance;
g) …………..
provide for the testing of locally manufactured or
importedcommodities with a view to determining whether
thecommodities conform to the standard specification declaredunder
this Act;
i) make arrangements or provide facilities for the examination,

testing or analysis of commodities and any material or
substancefrom which or with which and the manner in which they
may bemanufactured, produced, processed or treated;
j) make arrangements or provide facilities for the testing

andcalibration of precision instruments, gauges and scientific
apparatus, for determining their degree of accuracy by
comparingthem with the devices approved by the Minister on the
o Liability under Donoghue v Stevenson is only possible where the claimant

has suffered:
39
 Personal damage or
 Damage to property.
o No liability for damage for financial loss under Dononghue’s authority

whether the person has suffered for being supplied defective goods.
o Or where a product suffers damage owing to its internal defects, for instance
where a car with defective breaks runs astray into a wall causing damage.
o In Hamble Fisheries Ltd v Gardner at p763 para 11-19 in Clerk and

Lindsell, manufacturers of a marine engine which had a defective piston and
the manufacturers knew about were not held liable.
 It is also a requirement of the law that liability for defective goods or services would lie if
foreseeable.
 Does the principle of res ipsa loquitur apply to product liability?
 In the past, this principle was not applicable to product liability. However, courts in
England (See Clerk and Lindsell in para 11-26) have held this principle to be applicable
to product liability.
 Why? We shall discuss it when discussing res ipsa loqutur.
 Manufacturing and Design defects

o Where there are design defects, whether the danger was foreseeable or not, the
defendant rarely escapes liability in negligence, except where the defect was
unforeseeable or not reasonably avoidable.
o However, for such cases the claimant bears a high burden of proof that the danger
was foreseeable at the time the product left defendant’s control, for instance by
showing inadequate testing of drugs or machinery.
o Where the defendant takes a foreseeable risk because the product will be
beneficial to the public or society, and if an adequate warning is given, the
defendant may escape liability.
o For example medicines, which may have adverse effects provided such a product
satisfies a genuine demand and its danger is not out of proportion to the social
benefits. In such cases an action in negligence will fail.
 The duty to warn
40
o A producer of a dangerous product has a duty to warn or provide safety
guidelines. But where misleading guidelines are provided, the manufacturer
would be held liable. See Clerk and Lindsell para 11-30.
o However, courts are guided by the necessity to keep liability within reasonable
bounds.
o Whether a warning is necessary depends on the circumstances of each case and

also the practicability of issuing a warning.
o Where a warning is necessary, it serves the purpose of ensuring that a user of a

product is as safe as it is reasonably possible. A retailer is therefore under a legal
duty to fix warning labels if the danger or risk is known to them.
o The duty to warn is limited to dangers that should have been apparent when the
product left defendant’s hands and where there is indication of a serious danger,
the manufacturer may be under a duty to take reasonable steps to bring it to the
attention of those likely to be affected.
o But courts take into account the effects of a warning, whether it would create
undue.
o Where there is a statutory requirement to provide a warning failure to do would

make the manufacturer liable in negligence.
 Proof of causation and warning:

o Where a warning is supposed to be given, the burden of proof rests on the
claimant to prove causation that is by proving that if there was warning, the
claimant would have complied.
o But where a duty to recall exists it is the responsibility of the plaintiff to prove
that failure to do so caused injury.
41
Causation and remoteness of damages
 In negligence, defendant’s wrong must have caused the claimant’s injury or damage.
There must be connection between defendant’s act and the loss suffered by the claimant.
Court will have to decide whether defendant’s act or omission were the cause of injury or
damage.
 In matters of causation, court will base its decision on what it considers is fair, basing it
on legal policy of setting limits to claims in negligence.
Causation in fact
 Court must establish as fact whether the breach of duty was the cause of the damage. In
determining causation, common law has adopted what is called the “but for” test which in
Latin is called “causa sine qua non,” under which court considers
whethertheinjurywouldnothaveoccurredbutforthedefendant'snegligentact.
 The defendant’s act must have been “the cause in fact” the “substantial factor” proximate
cause” or what the Americans call “scope of liability”.
 A findingthat an injurywouldnothaveoccurredbutfor a
defendant'sactestablishesthattheparticularact or omission is the “cause in fact” the
“substantial factor” proximate cause” or “scope of liabilityor theharm,but it
doesnotnecessarilyestablishliabilitysince a variety of otherfactorscancomeintoplay in
tortactions.
 Cause in fact, proximate cause” or scope of liability is based on the foreseeability of

injury, harm or loss. This how courts have set limits to defendant’s responsibility.
 The claimant must prove, on the balance of probabilities that the defendant's breach of
duty caused the harm but the defendant does not have to provide an explanation for the
cause of harm but a failure to do so may be a factor in deciding whether the claimant's
explanation of the cause should be accepted.
 Court will have to examine the facts to establish whether damage could not have occurred
if there was no event that caused it.
 The leading authority on “but for” test is Bernett v Chelsea and Kensington Hospital
Management Committee [1969] QB 428
42
In this case, the plaintiff’s husband was taken to hospital for
treatment with complaints of vomiting after drinking tea. He was
advised to go to his personal doctor, which amounted to a breach
of duty of care. The patient eventually died. The claimant who was
the widow filed an action in negligence but failed, because death
was not due to the negligence of the defendants. It was established
that whether the deceased had been treated in the defendant’s
hospital, it would have been impossible to save his life.
 Court based its decision on the “but test”.
MULTIPLE CAUSES
 There may be cases where there may be indivisible loss or injury is a result of
many causes.
 The law does not expect tortfeasors to pay for damages they have not caused
though there are may be situations when the other party may be regarded to
have contributed to his injuries.
 For instance where the plaintiff contributes to his/her own injury or is partly to
blame.
 In such situations the defendant’s act is contributory to the plaintiff’s injury.
 In such cases, the claimant does not have to prove that the defendant's breach of
duty was the main cause of the damage provided that it materially contributed
to the damage.
 But there may be situations when a party may notbear the blame for the injuries
or damage caused.
 For instance when injury is caused by a combination of a person’s act or fault

and an act arising out of nature. Or where there may be an intervening cause
which comes between the original negligence of
thedefendantandtheinjuredplaintiff,whichwilleitherreducetheamount of
responsibility or if this intervening cause is the substantial reason for the injury,
then the defendant will not be liable at all.
 Where there are a number of possible causes, the claimant must still prove the
defendant's breach of duty caused the harm or was a material contribution. In
43
such situations, the defendant is responsible only for that part of the damage to
which his negligence has contributed.
 Or where an act of a person aggravates conditions of another, like causing the

death of a terminally ill person, such a person may be liable for the death but his
liability may be lower.
 In such cases compensation is for the loss suffered not for the physical injury
which causes the loss. It is not for stiffness of the leg which was caused by the
injury but the diminished abilityas was the case in Jobling v Associated
Dairies Ltd 1982 AC 794 in which court rejected plaintiff’s claim for a
condition which was aggravated by another condition independent of the earlier
injury. The illness was not caused by the initial injury. If it had been, the
defendant could have been liable.
 It may be sufficient for the claimant to show that the defendant's breach of
duty made the risk of injury more probable.
 In another case of Corr v IBC Vehicles [2008] AC 884 the defendant was
held liable for the death of person who committed suicide following
depression induced by an injury arising out of an accident. But if he had died
in accident before the trial, there would have been no liability.
Remoteness of damages
 Remoteness of damages is based on the foresseeability, culpabilityand

consequences of defendant’s conduct. If there are intervening acts which
interfere with causation, then such damage may be considered remote.
 The argument behind this concept is that a person may not be responsiblead
infinitum for all the consequences of his wrongful actions as this would put
human action in a situation of tension. This argument is based not on pure
logic but practical reasons.
 Remoteness of damages is based on two theories. First in the history of torts,

consequences of an injury were considered too remote if a person would not
44
have foreseen them. This principle was first laid down in Rigby v Hewitt
(1859) Ex 243.
 This however changed when duty of care was recognized for claims in tort if
there was a breach of duty of care. This change was brought about in the
case of Re: Polemis [1921] 3 KB 560.
 In this case, a ship was being unloaded when servants of the charterer
offloading it negligently left a plank in the hold. Part of the cargo was
benzene in tins which had leaked and a lush of flames followed totally
destroying the ship.
 The charterers were held liable for the loss which was a direct consequence
of their negligence even though they could not have reasonably foreseen it.
 One of the judges defined direct consequences by pointing out that damage
is indirect if it is due to the operation of independent causes having no
connection with the negligent conduct of the defendant.
 In Re: Polemis, it was foreseeable that the ship would suffer some damage
from the dropping of the plank and the initial breach of duty was therefore
established.
 According to Clerk and Lindsell, Re: Polemis can be interpreted in two

ways:
o As long as damage is done and however slight it might be and was

foreseeable, the plaintiff can recover to the full extent of it though the
extent, or the precise manner of its occurrence was not foreseeable.
What court is concerned with is the damage caused regardless of the
extent.
o The second interpretation is that once the defendant’s conduct was

foreseeable to be likely to cause injury to anyone, the defendant would
be liable for all the direct consequences even for the unforeseeable
kind of damage.
 However, Re: Polemis was overruled in the Overseas Tankship (UK)Ltd v

Morts Docks Engineering Co Ltd (TheWagon Mound) [1961] AC 388.
45
 In this case the Wagon Mound an oil burning vessel was chartered by O.T
oil and moored at the C. Oil Co’s wharf in Sydney harbor for purposes of
loading it with oil. Due to the negligence of O.T’s servants, a large quantity
of fuel was spilt and spread on the water to M.D Ltd wharf about 600 ft
away where another ship was being wielded. The MD’s manager became
aware of this problem and stopped the wielding and inquired from C. Oil Co
whether they could continue. Following the inquiry and belief that the oil
would not catch fire resumed the wielding but taking precautions to prevent
inflammable materials from falling on the water. Two days later, the oil
caught firewhen molten metal fell on the wharf and set fire to some cotton
waste or rag floating in the oil on a piece of debris. The wharf also caught
fire causing damage to M.D’s ship.
 The trial judge found defendant had not known and could not have
reasonably had expected known the oil was capable of catching fire when
floating on water and that although some damage was a result of the spilling
of oil, no compensation was claimed.
 The supreme court of South Wales dismissed the appeal holding that it was
unforeseeable that oil floating on water would catch fire though some
foreseeable damage had been caused to M.D’s ship and there was a breach
of duty, the damage did not flow directly from the spilled oil and was
unforeseeable.
 Court was of the view that it is the foresight of a reasonable person which
can determine liability and the Polemis’ substitution of direct for reasonably
foreseeable was un-logical and unjust.
 A man must be considered to be responsible for the probable consequences

of his act.
 To demand more from him would be too harsh and to demand less would be
to ignore the requirement of civilized order for observance of minimum
standard behavior.
 Court observed that damage caused by the fire was different from that
caused by fouling and since the fire was unforeseeable the defendants could
not be held liable.
46
 In reversing the decision, in Re: Polemis, the Privy Council laid emphasis on
the difficulties of the directness test and its unfairness.
 The essence of the Wagon Mound is thatforeseeability is the criterion for

only the existence of a duty of care and for the remoteness of damages.
 Under such circumstances foreseeability is understood as being within the

general range which any reasonable person may foresee and which is
different from what could have been anticipated.
 The defendant becomes liable only for the damage a reasonable man can
foresee and for the full extent of the damage. The damage must be within the
general range of the risk created by the negligence
 For instance where you leave a manhole though covered and with lighting,
but a young person plays around it and falls into it together with the lamp
which explodes and causes him injuries, the law imposes a duty of care as it
is foreseeable that a young person may be attracted to play around with the
lamp. See the case of Hughes v Lord Advocate [1964] 1 QB 518 or 1963
AC 837
 Though under the circumstances of this case the sequence of events were
unforeseeable the lamp is known source of fire, which seems to have been
the basis of the decision.
 Contrast this with the decision in Wagon Mound 2 [1967] 1 AC 617, which
was an action by the ship owner for the damage caused to his ship by the
fire. The trial court found there was a minimal risk of fire and it was so
slight as to be negligible and based on the requirement of the Wagon Mound
1 that damage had to be foreseen, court dismissed the claim.
 This is why this decision in Re: Polemis was reversed by the Privy Council
on grounds that a) foreseeability was the appropriate test of remoteness in
public nuisance and b) since a slight risk of fire had been found to be
foreseeable the defendants were found liable.
 Court does not put emphasis on the likelihood of occurrence of damage, but
whether it is foreseeable. A tortfeasor is liable for damage which is
47
foreseeable however unlikely it may be, unless it can be established to have
been farfetched.
 Foreseeable damage must be which actually occurs but whether it is unlikely

to occur may not relieve the defendant liability if the conduct is
unreasonable.
 The precise damage may not be an issue for court to look into. As long
damage was foreseeable is what court considers as was the case in Hughes v
Lord Advocate [1964] 1 QB 518 or 1963 AC 837
48
Duty of care and the scope of liability
 The scope of liability is dependent on the consequences and nature of the

loss and therefore court will look at each act which is capable of causing
damage.
 Court looks at the kind of damage to determine whether it is what is

expected from the conduct of the defendant. In other words, court looks at
the consequences of the defendant’s conduct.
 Where the wrongdoing is intentional, damage caused may not be remote but
damage may extend even to unintended consequences which are foreseeable.
 Take an example where a person negligently throws a tear gas canister to

scare A, who in turn throws it to B who also throws it away and explodes
and injures C, the person who first threw the canister cannot argue that he
did not intend to injure C.
 Under such circumstances the law holds such people as fools and
mischievous persons who should answer for the consequences of their act, as
the injury is a consequence of their intended act.
 Those consequences are foreseeable.
The Egg Shell Skull principle

 It is assumed that every person is normal and you have to take your victim
as you found him/her. It is no answer to a claim that an injury caused
negligently that such a person would have suffered less if he had not been
sick or weak.This principle is applicable to nervous shock as well as other
injuries. It was enunciated in Dulieu v White & Sons[1901] 2 KB 669.
 The egg shell skull principle applies to situations where the claimant’s pre-
existing condition is triggered by the defendant’s act. However, mere
acceleration of claimant’s damage will not make the defendant liable unless
caused by defendant’s action.
49
 A person may have problems with controlling bleeding and if such a person
is negligently injured causes bleeding which results into serious
consequences, the defendant will not escape liability.
 Or where an existing injury is aggravated by the defendant’s act. But where

the injury pre- exists and was not caused by the defendant, or is merely or
merely accelerated and not caused by the defendant, he would not be liable.
 In the case of Owens v Liverpool Corp [1939] 1 KB 396, Mackinnon LJ

said
One who is guilty of negligence to another must put up

with the idiosyncrasies of his victim that increases the
likelihood or extent of damage to him: it is no answer to
a claim for a fractural skull that its owner had an
unusually fragile one
 What court will look into in such situations will be to determine whether
there was a breach of duty owed to the claimant and damage could have
been foreseen to a person of normal sensitivity and the claimant’s abnormal
sensitivity was unknown to the defendant there would be no liability.
 Injury must be reasonably foreseeable as a natural and probable consequence

of the tortfeasor’s breach of duty.
 Read the case of Bourhill v Young [1942] All ER 396, Cook v Swinfen
[1967]1WLR410 or [1967]1 ALL ER 299 and Smith v Leech Brain & Co
Ltd [1962] 2QB 405
 In Bourhill v Young, court was of the view that if a reasonably strong

nerved person would foreseeably have suffered shock, then a more sensitive
person may also be able to claim. But this will depend on proof of causation
and breach of duty.
 In Smith v Lee Brain & Co Ltd, a workman suffered a burn on lip out of a
molten metal splashing on it. The splashing was attributable to the
employer’s negligence. But due to a pre malignant condition, the burn
triggered a cancerous growth which resulted into death of the workman. It
50
was proved the deceased had a predisposition to cancer but this condition
might not have become malignant had it not been for the burn.
 Court held that a tortfeasor must take his victim as he finds him. Court was
not concerned whether the injury could trigger a cancer but whether the type
of injury sustained could have been foreseen. Court put into account the
character and constitution of the victim.
 According to Clerk and Lindesll, the egg shell skull contains a strong
element of policy especially in cases of personal injuries.
The crumbling skull

 It is no defense that the plaintiff got injured because he had a crumbling
skull. This was an issue in Environment Agency v Ellis See Clerk and
Lidsell at p 159 para 2-161 in which the claimant had no symptoms of a
degenerative condition in his spine, which based on medical evidence might
have started producing symptoms in the next ten years. He suffered an injury
to his back attributable to his employer’s negligence. Later the plaintiff fell
down off a stair at home as his back gave way and suffered serious injury to
his right knee and was unable to continue working.
 The defendant argued that among others that there were multiple causes of
the claimant’s loss and 70% of the loss to be attributed to the pre-existing
degeneration. This argument was rejected. Court held that this was a case of
the egg shell skull.
 In Robinson v Post Office [1974] 1 WLR 1176, the plaintiff was given an
anti tetanus treatment which developed into an allergic reaction. The
defendant was held liable on grounds that if a person would reasonably
foresee that the victim of his negligence may require medical treatment there
is liability for the consequences although he could not reasonably foresee
those consequences or that they could be serious there was reasonable. What
court considers is whether there was need for treatment
 As long as the defendant is part of the injury, he should be held liable even
though his act alone could not be enough to create the injury.
51
 Liability exists for all injuries caused or contributed to by the negligence of
the defendant. The defendant is liable for any additional injury or damage.
Remoteness and mitigation

 There is a distinction between what court considers as damages being remote
and mitigation of losses. It seems the law is that when a person has suffered
damage, he or she is required to mitigate losses that may arise out of the
damage, if the losses could have been mitigated.
 In Liesboch Dregder v Edison SS [1933] AC 448 court rejected a claim for

extra expenses incurred after the plaintiff lost a dredger and could not afford
to purchase one and incurred extra expenses in hiring one for him to
complete his contract. Court considered the extra expenses as an extraneous
matter and too remote. Basing on the re: Polemis case court’s concern was
the immediate physical consequences of the negligence.
 The claimant’s claim was impecunious. The injury was not an immediate
consequence of the negligence and was an extraneous matter. However this
decision is difficult to distinguish from other cases based on the egg shell
skull principle.
 This is because if the defendant has to take his victim as he finds him, why
should court not taken into account the victim’s impecuniosities?
 After all the law is that the defendant has to take his victim as he finds him.
However, plaintiff’s impecuniosities were not the sole cause of the loss.
 For this reason the decision in Liesboch Dregder v Edison SS was

overruled for having been wrongly decided on the grounds of the egg shell
skull principle and therefore court take claimant’s impecuniosities as
relevant if foreseeable.
 However, the defendant bears the burden to prove that the failure of the
plaintiff to take reasonable measures to mitigate losses.
 But what amounts to remoteness and mitigation and the distinction between
what may be remote or mitigation is not yet clear in common law. That is
why court in Lagden v O’Conner [2004] AC 1067 held that the claimant in
such cases is entitled to the extra cost, which may arise out of
52
impecuniosities. But it is up to the defendant to convince court that the
plaintiff’s extra losses could have been mitigated.
 Damage may also be remote if there are intervening acts or events. This may
arise out of the following situations:
o Where there is a natural event independent of any human activity;
 Will be a defense if proved that the breach of duty might not

have caused damage but for the natural event occurring
independently, the defendant would not be held liable.
 This was the case in Carslogie Steamship Co Ltd v Royal

Norwegian Government [1952] AC 292 in which defendant’s
ship collided with another which continued to sail to the US
after temporary repairs had been made on it. However, it would
not have sailed to the US had there been no collision. While
sailing across the Atlantic, the ship suffered heavy damage due
to bad weather and was permanently repaired. The action of the
owners of this ship failed on grounds that the claimant would
not have been entitled to damages for the loss of the use of the
ship because that time was used for repairing the first damage
and the subsequent heavy weather damage. That subsequent
damage was not in any-way a consequence of the collusion as
was a supervening event which occurred in the course of the
normal voyage.
o Where the event is a result of willful acts or interventions of a third

party (Rickards v Lothian [1913]AC 263) and Edwin, Lord v
Pacific Steam Navigation Co (Oropesa) [1943]1 All ER 211.
 In the latter case, court pointed out that to break the chain of
causation, there must be evidence that there was something
which was ultroneous, something unwarrantable, a new cause
which disturbs the sequence of events, something which can be
described as either unreasonable or extraneous or extrinsic.
 In a situation where A may be at fault, he may not be

responsible for damages caused to B by the deliberate acts of C
even though C’s mischievous conduct could have been
53
attributed to fault of A. This is to prevent willful injury by a
third party.
 The law is that defendant should not be held liable for the
willful acts of a third party and such damage therefore will be
treated as too remote.
 But where there are special circumstances requiring a person to

guard against interferences of third parties, then such
interventions of a third party will not act as defense. Under
those circumstances defendant assumes a duty of care to guard
against the wrong doing of third parties.
 For instances in cases of bailees, they have a contractual

obligation to secure the property under their custody as baliees
in case of damage or loss.
 But this will not apply to a taxi driver for the theft of a
passenger’s cargo.
o Claimant’s acts or omissions is responsible or has contributed to his

damage or loss under the Latin maxim nova causa intervenient.
Duty of care and economic loss(Read Clerk and Lindsell para 2-171-177
(pp164-170)
 There is no general duty of care not to inflict pure economic loss
on others because the normal cause of action for economic loss
may be in contract because the contemplation test in contract is a
greater degree of probability than the fore sight test in tort.
 In tort, the defendant should be held liable only for the kind of loss
which falls within the scope of duty of care.
 Secondly, types of economic loss are also categorized more

narrowly than types of physical damage.
54
Injury without impact (Psychiatric injury)
Objective
 To understand what constitutes psychiatric injury as an actionable in
negligence.
 Outline the differences between liability arising out of psychiatric

injury in negligence and trespass.
 Outline the elements constituting psychiatric injury in negligence.
Introduction
 In D v National Society for Prevention of Cruelty to Children,

psychiatric harm or mental suffering was defined as a tort of wrongful
interference distinct from trespass.
 Psychiatric injury constitutes a variety of actions for personal injury

and such claims may be based on the thin skull principle.
 We saw in semester 1 that liability may arise out of trespass for

psychiatric harm if there was intentional conduct resulting into injury.
 The law has also evolved to make negligence actionable in psychiatric

injuriesand has usurped trespass in such cases. That is why the
difference between trespass and negligence in such injury is hard to
define.
 The development of the law of negligence had considerable influence

in shaping the law relating to injury without impact.
 Since the law of negligence imposes duties on individuals, wrongful

acts that cause mental anguish have been brought under the ambit of
breach of duty of care.
 However, it is still the law that fear, mental distress or grief do not in
themselves give rise to a cause of action in negligence because of the
necessity of proof of physical injury.
55
 Requirement of physical injury in cases of psychiatric harm imposed
restrictions on claims and therefore, pure psychiatric harm may not be
actionable.
 Liability for causing shock may only arise if the defendant owed a
duty of care and the injury was foreseeable.
 Foreseeability extends to other serious injuries which may arise out of

the claimant’s weaknesses.
 The previous two and the next one case deal with the compensation of what used to be known in English law as nervous
shock but nowadays goes by under the name of psychiatric injury.
 In the United States the term used is emotional harm and this is wider than the English term for two reasons. First, this is
seen to include distress, anxiety, and diminished enjoyment of life, types of harm which are seen with greater distrust by
English law.
 Secondly, American lawyers award compensation for emotional harm in factual instances such as discrimination (sexual or
racial), violation of religious freedom, sexual harassment, and other such instances in which English courts (and the
legislature) have yet to make comparable inroads. In these notes we shall thus focus on the factual situations covered by the
three German cases, all of which involve psychiatric injury inflicted as a result of experiencing unusually distressing
scenes. Seen in this context, the first two cases raise four important points.
Theories under which psychiatric injury can be based
 The impact theory

Under this theory, a person can recover damages for shock upon proof that he also suffered physical harm flowing from the
shock. The first such case is Wilkinson v Downton [1897] 2 QB 57.
In this case the defendant willfully deceived the plaintiff that he had been sent by her husband to inform her that he been
smashed in a car accident with both legs were broken, was lying in hospital and for he r to pick him. It turned out to be a
joke and caused the plaintiff severe nervous shock, vomiting violently and being affected mentally, in that she could not
reason properly at times. She had not suffered from such medical condition before and she sued in trespass on grounds that
the defendant’s deceit was willful.
The issue for determination was whether defendant’s act was plainly calculated to produce some effect of the kind, which
was produced that an intention ought to be imputed to the defendant regard being had to the fact that the effect was
produced on a person proved to be in an ordinary state of health of mind.
In this regard court had to answer the question as to whether the natural effect of reasonable persons or the possible
influence of infirmities of human nature ought to be recognized in dealing with such cases.
Basing on the Langridge v Levy where court held that “ a person who makes a false statement intending it to be acted upon
must make good the damage naturally resulting from its being acted on.”
Wright J held that:

a) If a person willfully does an act calculated to cause harm to another and thereby infringe his legal rights to personal
safety and in consequence causes physical harm through metal distress, a cause of action arises without lawful
excuse.
b) The defendant desired to cause harm or fright or that he knew such shock would arise.
It therefore follows that the plaintiff must establish the following in his/her claim
 Mental distress accompanied with illness. Mental shock per se therefore will not be actionable without proof of some
physical injury. Though physical illness must be established, plaintiff is required to prove that the illness directly flowed
from the wrongful act of the defendant.
56
 Willful, calculated and unreasonable: intention of the defendant must be established and court may impute knowledge to
the defendant that he ought to have known the consequences of his conduct. Such consequences may include alarm, fright
and shock.
 Reasonable foresee ability is what brings in negligence in cases of

psychiatric injury.
 Therefore under the impact theory, mental distress to be actionable there must be some recognizable and acknowledged
psychiatric illness which may be or not accompanied with physical illness such as heart failure, a miscarriage etc.
 In Janvier v Sweeney [1918-1919] All ER 1056, the defendants reported to the plaintiff claiming they were from Scotland
Yard and told her she was the woman they were looking for corresponding with a German spy. The appellants had
intended to frighten the respondent for purpose of attaining an unlawful breach of duty she owed to her employer Sweeney.
The respondent was frightened by the utterances which caused her to suffer nervous illness, neurasthenia, shingles and
other ailments. She attributed a long period of nervous illness to the shock she received from the language used to her on
that occasion. She sued and was awarded damages hence this appeal.
 In McLaughlin v O’Brian court observed that reasonable

foreseeability is a necessary and sufficient condition for liability
arising out of nervous shock. The damage recoverable can be some
psychiatric illness or some physical illness caused by shock.
 See also the case of Hay or Borhill v Young [1942] 2 All ER 396
 This case illustrates actions arising out not only physical injury but
shock per se can eb actionable. Action may be sustained by someone
who has suffered shock arising out of hearing or seeing an event that
cause shock.
 The claimant argued that she suffered loss, damage and injury through
the fault of the Borhill.
 Court thought that she could only recover damages for psychiatric
harm if she could demonstrate that Bourhill was negligent.
 In so doing she had to prove that Bourhill owed a duty of care, which
he failed to observe and she suffered injury arising out of this failure.
 The jude defined the duty to care:
“…duty to avoid doing or omitting to do anything the doing or

omitting to do which may have as its reasonable and probable
consequence injury to others and the duty is owed to those whom
57
injury may reasonably and probably be anticipated iof the duty is not
observed”
 However court observed that there is no absolute standard of what is
reasonable and probable.
 Court observed that Bourhill over speeding was evidence of
foreseeability of possible collision and injury to others.
 It was foreseeable he could collide with other motorists and cause

injury to the tramcar but not the claimant.
 The claimant was not within line vision of the deceased and the facts
indicate she was on the other side of the tramway car and the
collusion arose after the deceased had by passed her by some distance
beyond her.
 The claimant neither saw the accident nor expressly admitted that her
terror did not involve any element of reasonable fear of immediate
bodily injury to herself.
 It was not foreseeable she could have been in close proximity of the
deceased’s careless driving.
 This means that a person can recover damages for nervous shock alone or nervous shock accompanied with physical harm.
Lord Wilberforce had this to say on liability from shock:
While damages cannot at common law be awarded for grief and sorrow, a claim for
damages for nervous shock caused by negligence can be made without the necessity of
showing impact or fear of immediate personal injury for one’s self…p418.
 For shock to be actionable, there must be proof that there was apprehension of fear of danger to one’s safety (primary
victim) or safety of one who is closely related to the plaintiff (secondary victim).
Primary and secondary victim

 In negligence, there are two categories of claimants in psychiatric
injury: primary and secondary victims.
 Who is a primary victim?
o This is a person who suffers shock arising out of fear for his/her
own safety due to defendant’s negligence.
o Such person is a direct victim falling in categories of those in

proximity and direct perception.
58
o The decision in Dulieu v White&Sons [1901] 2KB 669 See
p115 in Hepple and Mathews (supra)illustrates the point. In
this case, the plaintiff suffered a miscarriage out of fear of a
horse which was negligently driven into the bar where she was
working.
o Court pointed out that in such cases, it is not necessary that

plaintiff must be in danger but she must have reasonable belief
that he or she is.
o However, where the plaintiff has hysteria and suffers shock

from the noise of a collision, the victim cannot sustain an action
in negligence.
o In Page v Smith [1996] AC 155, the plaintiff was involved in a

collision caused by defendant’s negligence, which caused
property damage which resulted into the plaintiff experiencing
chronic fatigue syndrome, which was on and off for 25 years
but eventually became chronic and permanent.
o Court held that psychiatric injury might not have been

foreseeable in a situation of a person of normal fortitude but the
physical injury was foreseeable from it.
o This was a case which was based on the thin skull principle.
Once a defendant owes a duty to the claimant and is breached,
liability is not limited to the injuries reasonably foreseeable at
the time of the accident but extends to more serious injuries
sustained by the plaintiff’s thin skull.
o Liability in such cases is open to those whose activities put the

plaintiff in the zone of physical danger.
Close proximity test

o Liability for psychiatric injury is not confined to only those
who suffer mental injury out of fear of their own safety.
59
o But if the negligence of the defendant triggers off an illness,
such a claimant is within the zone of danger even if what
triggers off the mental injury is the sight of what happens to
others.
o In such cases courts examines whether there is close proximity

between the defendant’s negligence and the infliction of mental
harm.
Secondary victim
 Is one who is a passive and unwilling witness of danger or injury caused to
others provided psychiatric injury is foreseeable.
 The secondary victim must prove the following:
o Close relationships or ties of love and affection with the

victim.These may include parent and children, husband and wife as
opposed to an ordinary by-stander.
 However under such circumstances, courts consider reasonable
foreseeability as the guide but closeness is the measure of
foreseeabilty. Closeness is not only limited to husband and wife
or parent and children, but may include siblings and
cohabitants. Clerk and Lindsell @ para 8-69 p466.
 Bystanders therefore, are excluded under such claims.

However, where there may be situations of such horror likely to
traumatize even the “most phlegmatic spectator” they may be
covered.
o Close to the scene in time and space.

 This may be a measure of proximity. (See Mclaughlin v
O’Brian [1983] 1 AC 410) in which the claimant did not
witness the accident which caused injuries to her family but she
saw them in hospital two hours later.
 The appeal was allowed and the claimant was entitled to

recover for the psychiatric injury received. The House of Lords
extended the class of persons who would be considered
60
proximate to the event to those who come within the immediate
aftermath of the event.
 Court held that duty could extend to such cases as the

claimant’s shock is a result of the direct perception of some of
the events which make up the accident as an entire event.
 Lord Wilberforce delivered the leading speech, and laid out the
test for recovery of damages for personal injury resulting from
nervous shock.
 First, a close familial relationship must exist between claimant

and victim. (The Court disqualified an ordinary bystander.)
 Second, the claimant must be close proximity to the accident

"in both time and place".[2]
 This includes witnesses of the immediate aftermath of the

accident.
 Third, and last, the shock suffered by the claimant must "come
through sight or hearing of the event or of its immediate
aftermath".[
 The plaintiff was in similar situation as if she was at the scene of the accident, though family member who go to
a mortuary to identify a relative after nine hours or more were not considered to be in this category.
 To be part of the accident, the experience must be sufficiently

related in both time and nature to the original accident.
 However it is the nature of the experience which is crucial.
 The longer it takes for the claimant to witness a shocking event

the more likely that what the plaintiff witnesses will differ in
nature from the experience of the original accident.
 “Experience has shown that to insist on direct and immediate sight or hearing would be
impractical and unjust and that under what may be called the " aftermath " doctrine, one
who, from close proximity comes very soon upon the scene, should not be excluded….
and by way of reinforcement of " aftermath " cases, I would accept, by analogy with "
rescue " situations, that a person of whom it could be said that one could expect nothing
else than that he or she would come immediately to the scene—normally a parent or a
61
spouse, could be regarded as being within the scope of foresight and duty. Where there is
not immediate presence, account must be taken of the possibility of alterations in the
circumstances, for which the defendant should not be responsible. Subject only to these
qualifications, I think that a strict test of proximity by sight or hearing should
be applied by the courts."
 A plaintiff may recover damages for " nervous shock " broughton by injury caused not to
him or herself but to a near relative, or bythe fear of such injury.
 So far (subject to 5 below), the cases do notextend beyond the spouse or children of the
plaintiff (Hambrook v. Stokes,U.S., Boardman v. Sanderson [1964] 1 WLR 1317. Hinz v.
Berry[1970] 2 Q.B. 40—including foster children—(where liability was assumed)and see
King v. Phillips [1953] 1 Q.B. 429).
 Subject to the next paragraph, there is no English case in whicha plaintiff has been able to
recover nervous shock damages where theinjury to the near relative occurred out of sight
and earshot of theplaintiff.
 In Hambrook v. Stokes an express distinction was madebetween shock caused by what

the mother saw with her own eyes andwhat she might have been told by bystanders,
liability being excludedin the latter case.
 An exception from, or I would prefer to call it an extension of the latter case, has been
made where the plaintiff does not see or hearthe incident but comes upon its immediate
aftermath.
 In Boardman v.Sanderson the father was within earshot of the accident to his childand
likely to come upon the scene: he did so and suffered damage fromwhat he then saw. In
Marshall v. Lionel Enterprises [1972] 2 Ontario
 Both Stephenson L.J. and Griffiths L.J. accepted that the" shock" to the plaintiff was
foreseeable; but from this, at least inpresentation, they diverge. Stephenson L.J.
considered that the defendantsowed a duty of care to the plaintiff, but that for reasons of
policy the lawshould stop short of giving her damages: it should limit relief to those on
or near the highway at or near the time of the accident caused by thedefendants'
negligence. He was influenced by the fact that the courts ofthis country, and of other
common law jurisdictions, had stopped at thispoint: it was indicated by the barrier of
commercial sense and practicalconvenience. Griffiths L.J. took the view that although the
injury to theplaintiff was foreseeable, there was no duty of care. The duty of care
ofdrivers of motor vehicles was, according to decided cases, limited to personsand
owners of property on the road or near to it who might be directlyaffected.
 A common principle is that, at the margin, the boundaries of a man's responsibility for
acts of negligence have to be fixed as a matter of policy. Whatever is the correct
jurisprudential analysis, it does not make any essential difference whether one says, with
Stephenson L.J., that there is a duty but, as a matter of policy, the consequences of breach
of it ought to be limited at a certain point, or whether, with Griffiths L.J., one says that
the fact that consequences may be foreseeable does not automatically impose a duty of
care, does not do so in fact where policy indicates the contrary. This is an approach which
one can see very clearly from the way in which Lord Atkin stated the neighbour
principle in Donoghue v. Stevenson [1932] AC 562, 580:
62
 A " duty of care " denotes a conclusion into the forming of which considerations of
policy have entered. That foreseeability does not of itself, and automatically, lead to a
duty of care is, I think, clear. 1 gave some examples in Anns v. Merton London Borough
[1978] AC 728, 752, Anns itself being one. I may add what Lord Reid said in McKew v.
Holland & Hannen & Cubitts, "
 As a matter of policy, A defender is not liable for a consequence " of a kind which is not
foreseeable. But it does not follow that he is liable " for every consequence which a
reasonable man could foresee." [1969] 3 All E.R. 1621, 1623.
 We must then consider the policy arguments. In doing so we must bear in mind that cases
of " nervous shock " and the possibility of claiming damages for it, are not necessarily
confined to those arising out of accidents in public roads. To state, therefore, a rule that
recoverable damages must be confined to persons on or near the highway is to state not a
principle in itself, but only an example of a more general rule that recoverable damages
must be confined to those within sight and sound of an event caused by negligence or, at
least, to those in close, or very close, proximity to such a situation.
 The policy arguments against a wider extension can be stated
under four heads.
 First, it may be said that such extension may lead to a proliferation of
claims, and possibly fraudulent claims, to the establishment of an industry of
lawyers and psychiatrists who will formulate a claim for nervous shock
damages, including what in America is called the customary miscarriage, for
all, or many, road accidents and industrial accidents.
 Secondly, it may be claimed that an extension of liability would be unfair
to defendants, as imposing damages out of proportion to the negligent
conduct complained of. In so far as such defendants are insured, a large
additional burden will be placed on insurers, and ultimately upon the class of
persons insured—road users or employers.
 Thirdly, to extend liability beyond the most direct and plain cases would
greatly increase evidentiary difficulties and tend to lengthen litigation.
 Fourthly, it may be said—and the Court of Appeal agreed with this—that
an extension of the scope of liability ought only to be made by the
legislature, after careful research. This is the course which has been taken in
New South Wales and the Australian Capital Territory.
 As regards proximity to the accident, it is obvious that this must be close
in both time and space. It is, after all, the fact and consequence of the
defendant's negligence that must be proved to have caused the " nervous
" shock ".
 Experience has shown that to insist on direct and immediate
sight or hearing would be impractical and unjust and that under what may
be called the " aftermath " doctrine, one who, from close proximity comes
very soon upon the scene, should not be excluded.
63
 In my opinion, there sult in Benson v. Lee (u.s.) was correct and indeed
inescapable.
 It was based, soundly, upon " direct perception of some of the events which
go" to make up the accident as an entire event, and this includes ... the
" immediate aftermath ".
 The High Court's majority decision in Chester v.
Waverley Council (1939) 62 C.L.R. 1. where a child's body was found
floating in a trench after a prolonged search, may perhaps be placed on
theother side of a recognisable line (Evatt J. in a powerful dissent placed it
on
the same side), but in addition, I find the conclusion of Lush J. to reflect
developments in the law.
 Finally, and by way of reinforcement of " aftermath " cases, I would

accept, by analogy with " rescue " situations, that a person of whom it could
be said that one could expect nothing else than that he or she would come
immediately to the scene—normally a parent or a spouse, could be regarded
as being within the scope of foresight and duty.
 Where there is notimmediate presence, account must be taken of the

possibility of alterationsin the circumstances, for which the defendant should
not be responsible.
 Subject only to these qualifications, I think that a strict test of proximity

by sight or hearing should be applied by the courts.
 Lastly, as regards communication, there is no case in which the law
has compensated shock brought about by communication by a third party.
In Hambrook v. Stokes (u.s.), indeed, it was said that liability would not
arise in such a case and this is surely right. It was so decided in Abramzik
v. Brenner (1967) 65 D.L.R. (2nd) 651.
 The shock must come through sight

or hearing of the event or of its immediate aftermath. Whether
someequivalent of sight or hearing, e.g. through simultaneous
television,wouldsuffice may have to be considered.
64
 The ambit of duty of care owed by a motorist is restricted to
persons " on or near the highway at or near the time of the
accident" ([1981] 2 W.L.R. 1014, at 1028D), and by Griffiths L.J.
to those "on the " road or near to it who may be directly affected by
the bad driving.
 It " is not owed to those who are nowhere near the scene "(ibid., at
1037E).
 Reasonable foreseeability is the only test of the validity of a claim

brought in negligence. If it is surmounted, the defendant would
probably be hard put to escape liability.
 Direct perception of the incident rather than hearing about it from a

third party.
 Shock must be through sight or hearing of the event or its
immediate aftermath. It must not be in
 Information from a third party.
 The trauma has to arise from the original impact of the

transmitted image not news. News of an event and not
witnessing the event are two different things and it is the latter
which court considers in finding for the plaintiff.
 Therefore news of the death and not witnessing death are two
different events. Shocking news arising from someone’s death
however close you may be not be sufficient because it is after
the fact of the event causing death.
 This legal principle has been subject of criticism because of its

restrictiveness and there has been a call to repeal it.
o The illness is induced by a sudden shocking event.

 Shock arising out of an event must be sudden which violently
agitates the mind. It is a sudden and unexpected assault on the
nervous system.
65
 Therefore the TV pictures in the Alcock v Chief Constable of
South Yorkshire 1991 1 WLR 1057 or [1991] 4 All ER 907
grave concerns rather than shock are not actionable, but where
part of the illness emanates from the shocking experience it
may be actionable even if it may not be easy to distinguish it
from abnormal grief.
 The illness must be an aspect of the shocking experience.

 Other examples may be where a person witnesses a vehicle losing control
into the direction where she had left her children. Courts assume that the
defendant should have foreseen the possibility of someone getting
psychiatric injury for being terrified for her children’s safety. See the case of
Hambrook v Stokes [1925] 1 KB 141
 In Borhill v Young [1942] AC 92, court rejected a claim of psychiatric

injury of a bystander who heard noise of a collision but did not witness the
accident. This was because the plaintiff could not have been foreseen to be
capable of suffering nervous shock out of defendant’s negligent driving.
 Such claims may however be entertained if the defendant has special

knowledgeof the plaintiff normal standard of susceptibility to psychiatric
illness. Under such cases liability will apply under the egg shell skull
principle.
 The question in such cases is whether the psychiatric illness is reasonably

foreseeable arising from the accident as was the case in Borhill v Young.
 In such cases court assesses the facts as may have been known to the
defendant at the time the plaintiff suffers such injury. Foreseeability is based
on court’s assumption that the defendant knows what might have happened
to his victim.
 Another situation is where an accident out of the victim’s negligence results

into nervous shock to others. On grounds of policy, court would exclude
liability of this nature. This is because imposing a duty on a victim to avoid
self inflicted injury would impose limitations on the right of self
determination.
66
 Read the case of Greatorex v Greatorex [2000] 1 WLR 1970 where a
father got nervous shock when acting as a fireman in response to an accident
and found the victim to be his son. In an action against his son in an
insurance claim, court rejected the claim on grounds that though the
claimant satisfied all the conditions of a secondary victim, making his son
liable would be imposing a duty to him to avoid self inflicted harm and
would undermine the son’s rights of self determination. It would not be just,
fair and reasonable to impose such duty.
 Greatorex v Greatorex raised the question whether a “primary victim” owed

a duty of care to a “secondary victim” not to harm himself. The (first)
defendant was injured in an accident caused by his grossly negligent driving.
The plaintiff, his father, a professional fire officer, suffered nervous shock as
a result of attending his son at the scene of the accident. As stated, Cazalet J.
acknowledged that there was no binding authority on this issue. Interestingly
enough, his conclusion was, to a large extent, influenced by BGHZ 56, 163
(case 1) which was cited to him by counsel. The question the judge asked
himself was whether a person owes a duty of care to other persons not to
harm himself. It will be recalled that the BGH had suggested that the
imposition of such a duty would unduly restrict the person’s right to self-
determination. We also noted that an exception might have to be considered
where the suicide was committed in a “deliberately shocking manner”.
(Similarly, in BGH ZIP 1990, 1485, the court held that as a general rule a
lessor did not owe a contractual duty to the lessee not to commit suicide and
as a result the estate was not answerable for the termination of the lease. To
impose such a duty would have amounted to an unjustifiable intrusion of the
right to self-determination of the lessor.) Cazalet J. expressly followed the
reasoning of the BGH and regarded the argument derived from the right to
self-determination in case 1 as “powerful”. (See also the Law Commission’s
report on Liability for Psychiatric Illness Law Com. No. 249 (1998) para.
5.34-5.44). Matters might be different where, by harming himself, the
“primary victim” causes damage other than nervous shock to another. (See
A v. B's Trustees (1906) 13 SLT 830.) The ethical duty not to harm oneself
becomes a legal duty as soon as the self-harming activity also causes
physical harm to another person. From this perspective the “primary
victim’s” immunity from liability for nervous shock (suffered by others)
constitutes an exception. In other words, the “primary victim’s” right to self-
determination prevails only if we regard this injury as special. Cazalet’s J.
constant reference to “policy” lends credence to this view and illustrates,
67
once again, the legal system’s difficulty to cope with the ramification of
nervous shock and emotional injuries.
 In case 1, above, the issue was whether the contributory negligence by the
primary victim could be imputed to the secondary victim and his claim for
damages against a third party accordingly reduced. At this stage, it is useful
to reconsider the argument in favour of imputing the primary victim’s
contributory negligence to the secondary victim in the light of Cazalet’s J.
analysis of the “primary victim’s” (limited or non-existent) liability to others
for causing harm to himself. For the two issues are interrelated.
 The rationale seems to be this. If, generally speaking, a person (“primary

victim”) does not owe a duty of care to others (“secondary victims”) not to
harm himself, then “it is only fair” that if a third person causes physical
injury to the primary victim, the secondary victim should bear the primary
victim’s causal contribution to the accident. This problem has occurred also
in other contexts of adjustment among multiple ‘debtors’ and the BGH has
(not always consistently) applied similar considerations. (Thus, e.g. BGH,
JR 1989, 60, but see BGHZ 12, 213). Because of special circumstances,
characteristic of the relationship between primary and secondary victim, the
secondary victim does not have a cause of action against the primary victim
(all other conditions of liability for nervous shock being fulfilled). This is
because such a cause of action would be contrary to the primary victim’s
right to self-determination; but one could easily replace this with an
exclusion clause. So the secondary victim sues the third party (case 1). If the
third party could subsequently claim contribution from the primary victim,
then in the end the primary victim would be held liable for his causal
contribution to the accident. (Albeit the risk of insolvency of the primary
victim would be transferred from the secondary victim to the third party.)
But this result of holding the primary victim liable is regarded as undesirable
(because of his right to self-determination). Therefore, the third party cannot
claim contribution from the primary victim even if the latter was primarily
responsible for the accident. (Cf. Alcock v. Chief Constable of South
Yorkshire Police [1992] 1 AC 310, 418 per Lord Oliver.) This result may
not be satisfactory. It would not seem fair in such circumstances, the BGH
stressed, to impose full liability on the third party, especially if his
68
contribution to the harm was in causative terms very low and that of the
primary victim very high. Why should the third party (rather than the
secondary victim) bear the primary victim’s causal contribution to the
accident? After all, it is because of special circumstances arising out of the
relationship between primary and secondary victim, that the primary victim
cannot be made liable for causing nervous shock. It is therefore plausible to
apply the rationale of § 846 BGB also to claims of secondary victims in
respect of nervous shock and to reduce the secondary victim’s claim
accordingly. This implies that where the primary victim is solely answerable
for the accident, the secondary victim cannot recover. We are thus back to
our point of departure
 Psychiatric injury associated with damage to property

As a matter of law, injury to property causing psychiatric illness may be
actionable if it is reasonably foreseeable. But court will have a finding based
on evidence to decide whether liability exists or not.
 Stress from work which causes psychiatric harm or illness is actionable. This
is what Clerk and Lindsell describe as occupational stress.
 Employees may recover damages from their employers for psychiatric injury
sustained in the course of employment due to the employer’s negligence.
 The issue for court to decide in such casesis whether such stress is
reasonably foreseeable. This is because the employer is in the best position
to provide for the welfare of his/her employees. Court passes over stress to
the employer.
 However, to recover, the employee must satisfy court that:
o He or she was an endangered, primary or a secondary victim with

close ties to the person imperiled.
 In cases of distress Medlin v Allied Investment Coan American decision

laid down the test for determining liability arising from statements or acts
that cause distress.
69
 Court was of the view that where the defendant’s conduct is extreme and
outrageous, intentional or reckless and causes severe emotional distress to
another, the defendant would liable for such emotional distress and if bodily
harm results from it for such bodily harm.
 Court went further to point out that conduct will be extreme and outrageous
if it is as extreme in degree as to go beyond all bounds of decency and to be
regarded as atrocious and utterly intolerable in a civilized community. But in
cases of psychiatric injury, liability does not extend to mere insults,
indignities, threats, annoyances, petty oppression or other trivialities.
 Hypothetical issue for discussion. Take an event where X’s boyfriend is

crashed in a road accident in the morning and as the girl friend gets the
news at 9.00pm on TV and sees the body of her boy friend being loaded
on a police van and suffers psychiatric harm. Can she sue?
Restrictive approach in cases of psychiatric harm
 There are four features of claims for psychiatric injury upon which the
restrictive approach is based. See White v Chief Constable of the South
Yorkshire Police [1999] 1 AC 410
o Drawing the line between acute grief for which damages are
irrecoverable and psychiatric harm which is actionable is difficult.
Secondly, proof of psychiatric harm requires expert evidence. It is
costly and time consuming and therefore, has been found to impair
administration of justice.
o There is the danger of expanding claims for potential claimants who

might have witnessed gruesome events.
o The abolition of special rules governing recovery of damages for

psychiatric harm would increase the class of claims.
o Imposition of liability for pure psychiatric harm in a wide range of

situations would result in a burden of liability on defendants which
may be disproportionate to tortuous conduct.
70
o It would be difficult to limit claims of bystanders for what should be
regarded as horrific as reactions to horrific events is entirely
subjective.
o Court also relies on policy in deciding cases of psychiatric injury for

secondary victims. Policy imposes restrictions on courts’ decision in
such cases.
71
Rescue Situation
Introduction
 Common law imposes a duty of care on those whose negligence may require
rescuers whose rights are protected.Originally the law did not provide
remedies to a person who got injured when rescuing another.
 The rationale was that such a person volunteered to undertake a risk and the
direct cause of the injury may not be a result of defendant’s conduct.
 But has evolved to the extent that where a person is injured when rescuing
another who faces injury or a threat to property arising out of his own
negligence, the rescuer may be entitled to damages.
 In Videan v British Transport Commission [1963] 3 All ER 860, a

claimant who was an infant succeeded in a survivorship action against the
defendant, when his father was crushed to death by a rail truck in an attempt
to rescue him on grounds that his father met his death when he was rescuing
him. However the claim by the plaintiff for negligence leading to his injury
failed on grounds that he was trespasser.
 The changes in the law are based on the principle that danger invites rescue.
A wrong that imperils life is a wrong to the imperiledvictim; it is also a
wrong to the rescuer.
Origin of the principle

 This principle is derived from an American decision of Cardozo J in
Wagner v International Railway Co (1921) 133 NE 437; 232 NY 176.
 English courts followed suit when in Haynes v Harwood [1934] 1 All ER

103, the CA held the owner of a horse which injured a policeman when
attempting to rescue a child who threw a stone at it causing it to be
aggressive.
72
 The horse was left unattended. Court held that the act was foreseeable and so
were the claimant’s rescue attempt.
 Court will award damages if the rescuer is injured when exercising a

reasonable attempt to rescue.
 This was the case in Ward v T.E. Hopkins & Sons Ltd [1959] 3 All ER 225.
In an attempt to rescue workers who had been caught up in fumes in a well,
a doctor W was caught up in the pit and died.
 It was argued by the defendants that the doctor’s intervention was novus
actus non interveniens and the defendant could have reasonably foreseen the
possibility of such a disaster.
 The issues in this case were outlined as follows:
o Whether the defendant’s company were negligent towards their

employees;
o Whether this negligence caused the employees to be at peril;
o Whether this could have been reasonably foreseen; and,
o Whether it could have been reasonably foreseen that someone was
likely to rescue them from their peril and might either suffer injury or
lose life.
 Court based its decision on the judgment in Haynes v Harwood [1934] 3 All
ER 103 in which it was held:
o There may be circumstances in which if A by the negligence places B
in peril, A ought reasonably contemplate toor have contemplated that
C might endeavour to rescue B; or to have contemplated that C might
be hurt he may recover damages from A;
o If in such circumstances C suffers damages, he may recover them

from A.
 The defendant company was held liable for negligence causing death of the
doctor because it was a natural and proper consequence of the defendant’s
company’s negligence towards the two workmen that someone would
attempt to rescue them and the defendant company should have foreseen that
73
consequence; accordingly the defendant company were in breach of duty
towards the doctor.
 Court had to decide

o On the duty owed by the defendant company to the deceased
employees in the circumstances of this case; and
o The nature of the instruction given and the effect of giving it.
 In its decision, court was of the view that the duty of the defendant company
was to take reasonable care by providing for their well being and safety to
avoid exposing them to any unnecessary risks.
 Though the defendant company was not indifferent or callous in regard to

the welfare of their employees, the unawareness which allowed them to
follow a most hazardous and dangerous method of operation cannot in law
absolve or excuse them.
 In response to the argument that the deceased had been instructed not to
enter the pit before they were given instructions by Hopkins, court pondered
whether the defendant company did all what is expected of them to take
reasonable care demanded given the nature of the instructions.
 In response, the judge was of the view that the system the defendant
company had used was the cause of the well being dangerous and there was
no suggestion to them before they left for home the previous day that the
operations in the well were to be abandoned or suspended and there was a
failure on te part of the defendant to warn the deceased about eminent death
by going into the well. In this regard the defendants were found to have been
wanting. Common sense and humanity would have compelled the
defendants to warn in clear terms about the risk of death by going into the
well and disobedience of such a warning would have meant death. The
defendants would have discharged their duty of care.
 Mere uttering of words by Hopkins did not make the company discharge
their duty. The nature of instructions were not adequate and properly
understood and to the judge the deceased acted to avoid being idle. Court
decided in favour of the claimants on grounds that the risk they were
74
exposed to was high and without adequate warning the defendants were
negligent.
 It was foreseeable that a high concentration of carbon monoxide would

increase to fatal levels at the bottom of the well and without ventilation it
was a matter of time that fumes would increase. Hopkins was aware of the
dangers of carbon monoxide fumes and that is why he advised the deceased
not go into the well until he was present.
 It was natural and probable that someone would attempt to rescue those in
peril.
 Court ruled against the argument that the act of the Dr. Baker climbing down
the well was novous actus non intervienens. “There is happily in all men of
good will an urge to save those who are in peril. Those put men in peril can
hardly be heard to say that they never thought that rescue might be attempted
or be heard to say that the rescue attempt was not caused by the creation of
the peril”.
 If what is relied upon as novus actus interveniens is the very kind of thing
which is likely to happen if the want of care which is alleged takes place, the
principle embodied in the maxim is no defense.
 If the death would have been a result of novus actus interveniens, the
claimant would be taken to have volenti non fit injuria. If the defendants
desire to succeed on the ground that the maxim volenti non fit injuria is
applicable, the defendants must obtain a finding of fact that the plaintiff
freely and voluntarily, with full knowledge of the nature and extent of the
risk he ran, impliedly agreed to incur it.
 Dr. Baker’s intervention came about following a situation of peril and the
cause of the peril was unknown to him. A rescuer cannot be taken to have
voluntarily undertaken the risk of rescue.
 Ogwo v Taylor [1987]3 All ER 961 was a case in which it was

argued by the appellant that this was case to be decided on issues of
foreseeability, proximity and causation. It was argued further by the
appellant that negligence per ser in starting the fire is not sufficient to
establish liability to a fireman, requiring extraneous and exceptional
75
feature in the circumstances of the fire which imposes additional
hazard for which the tortfeasor can be held liable.
The facts of this case are that the appellant set fire to his house when
he attempted to burn off with a blowlamp, paint from the facie boards
beneath the caves of his house. The fire brigade was called and the
plaintiff in the attempt to locate the source of the fire inside the roof
space sustained burns much as he was dressed in protective cover.
In deciding the matter the issue was whether the damage caused was
one which is different from what is foreseeable. In its judgment, court
found as fact that the fire was started negligently, it was foreseeable
the fire brigade would be called, that the fireman would use his
professional skill to do whatever was possible to extinguish the fire
and that this involved entering the loft and playing the hose on the fire
and were subjected to any risk which the defendant could have
avoided by elementary care and without difficult or expense to
himself.
The plaintiff was one who was closely and directly affected by
defendant’s act that he ought to have reasonably have had him in
contemplation as likely to be affected.
The chain of causation between negligence and the injury must not be
broken and it is the responsibility of the plaintiff to establish the chain
of causation.
Chain of causation may be broken in different ways. The most

obvious is where the plaintiff’s injuries are sustained by plaintiff’s
foolhardy exposure to an unnecessary risk either of his own volition
or acting under the orders of a senior fire officer. But where the fire is
caused by the negligence of the tortfeasor which injures a fireman
doing no more or no less than his proper duty and acting with skill and
efficiency in fighting an ordinary fire who gets injured by of the risks
to which the particular circumstances of the fire give rise.
Fire out of control is inherently dangerous if not brought under

control; it may in most cases cause considerable damage to property
and life.
76
Notwithstanding the special training received by a fireman, to deal
with the dangers inherent in fires, the duty owed by an occupier
causing fire on premises extended to the ordinary risks and dangers
inherent in a fireman’s occupation and was not limited to a
requirement to protect the fireman only against special occupational
or additional risks. The fireman’s special skills and training were
relevant in determining liability but if it was foreseeable that a
fireman exercising those skills would be injured through the
negligence of the occupier, the occupier was in breach of his duty of
care. The fire had been caused by the defendant’s negligence and
since it was foreseeable that the plaintiff would be required to attend
the fire and would be at risk of the type of injuries he received from
the explosion which had been caused by the negligence, the
defendants would be liable for those injuries and damages were
recoverable.
77
Negligent statements and economic loss
1. Objectives
 To explain circumstances under which negligent misstatement can give rise
to liability in tort.
2. Introduction
 The evolution of the law on this subject has been controversial.
 It covers liability from negligent misstatement in contract and

fiduciary relationship.
 Negligent misstatements by professionals (or professional negligence)

which lead to damage are actionable as laid down in the dissenting
judgment of Lord Denning in Candler v Crane Christmas & Co [1951]
1 All ER 426.
 They owe a duty of care not only to the persons who employ them but
also to others who rely on them. For instance auditors of a company
were held liable in negligence for failing to sport irregularities in their
annual accounts for a company which was being taken over by the
plaintiff.
 Liability arises if the negligent statements are to be relied upon for a

particular purpose by a client. But there will be no liability if the
statement is for the public.
 The law imposes such a duty because in cases of this nature,such a

professional is supposed to be relied upon.
3. Evolution of common law

o When one reads Candler v Crane, Christmas & Co,(Citation)
the evolution of common law on the subject has been
controversial.
o There are two views:
 Liability only falls in contract, and which was the majority

judgment in the above case,
78
 The other opinion says it is possible for defendant to be
liable in such cases, which was the dissenting judgment of
Denning.
o Under the first view from the judgment of Lord Cohen, a defendant
could be liable for negligent misstatement only in cases of
contractual relationship or a fiduciary relationship between him
and the plaintiff.
o Without such relation no liability lies in negligence.
o With regard to professionals, the law does not hold them liable in
negligence for advice they may be requested to provide unless they
under contract.
o They can be held liable in negligence if they deceive.
o Liability in negligence based on Donogue v Stevenson is one

which results in damage to person of the plaintiff. This decision is
said to apply to dangerous things either to life or limb. It must be a
thing which was carelessly handled, carelessly made or carelessly
mended and would become dangerous to life, limb or health.
o The rule in Donogue v Stevenson, which is an exception to the

general rule, a man is obliged to be careful not only to those to
whom he owes a duty by contract, but in exceptional
circumstances, those he owes a duty of care, breach of which
results into danger to life, limb or health.
o Under the first opinion, negligent misstatement can give rise to a

cause of action in tort only in contract or where there is a fiduciary
statement.
o Or as it was held in Cann v Willson (1888) 39 Ch D 29 or 59 LT

723 that the defendants independent of a contract owed a duty to
the plaintiff for wrong valuation of property intended for
mortgaging.
79
o Where the mortgagor defaults and the mortgagee suffers loss, can
file an action in negligence, misrepresentation and breach of duty.
o It is on this account that Lord Reid in Hedley Byrne & Co v

Heller & Partners [1963] 2 All ER at p 584 para F-G, was critical
of Bowen LJ in Donoghue v Stevenson. He points out that Bowen
LJ was wrong in limiting duty of care to guns or other dangerous
things and in limiting the duty of care to statement cases where
there is a contract.
o Reid argued Bowen imposed limitations based on the law as it then

was but they have been removed in subsequent decisions.
o In Cann v Willson (1888) court held for the plaintiff after being
satisfied that the valuation was made for purposes of an advance
payment which the defendant knew it was not valuation at all. The
defendants were liable on two grounds:
 That independent of contract owed a duty of care and they

failed to discharge it.
 They had made reckless statements on which the plaintiff

acted upon.
o But the decision in Cann v Willson (1888) 39 Ch D 29 or 59 LT

723was overruled in Derry v Peek (1889) 14 App Cas. 337 or 61
LT 265.
o It was held in Derry v Peek that there is no action for negligent

misstatements even though they may be intended to be acted upon
by the plaintiff.
o However,liability for negligent misstatement can only be

actionable if there is contract. No action lies in law or equity.
o Though counsel for the plaintiff submitted the decision in Derry v

Peek was based on fraud, court argued that the claim could still
have succeeded if it was based on negligence if there was a duty to
be careful.
80
o Court made a distinction between deceit and the duty to be careful.
o Negligent misstatements do not amount to deceit butsuch

statements may give rise to an action in a tort of negligence only if
there exists a duty to be careful, following careful inquiry and this
depends on the circumstances of each case.
o Negligent misstatements afford no action in tort if there is no duty

to be careful.
 According to Salmond on the law of torts,
“a false statement is not actionable as a tort unless it is

willfully false. Mere negligence in making false
statements is not actionable either as deceit or as any
kind of tort.”
 Lord Cardozo in one American decision of Ultramarrea Corp v Touche

[1931] 174 NE 441 OR 255 NY 170 was of the view that liability for
negligence to exist in such cases, a thoughtless slip or blunder or the
failure to detect a theft or forgery beneath the cover of deceptive entries
may expose accountants to liability indiscriminately for an
indeterminable time to an indeterminate class. Such a situation would
create hazards.
 See also Glanzer v Shepard (1922) 233 N.Y. 236 another American
decision in which there was a direct relationship between the weigher
who gave a certificate and the purchaser of the goods weighed, who the
weigher knew was relying on his certificate. The weigher was held to
have had a duty to the purchaser with whom he had no contract.
 Therefore in such cases, court has to ascertain whether there was a duty
to be careful in giving advice to the plaintiff.
 Courts are against decisions for negligent misstatements in the law of

torts.
4. Rationale for restricting the rule for negligent misstatements
81
 The rationale for the rule restricting liability in tort for negligent
misstatements is based on causation.
 It would appear that damage arising from negligent misstatements is too

remote to be foreseeable. Such damage is not like delivery of defective
motor vehicle.
 Imposing liability for negligent misstatements ithas been argued, would

create lots of uncertainties if they were to be actionable in tort.
 Extending liability for negligent misstatements would be equivalent to

fraud which is not the case.
 Liability lies only if there was deceit. In such cases scienter is an

important element.
 Cardozo in Ultramarrea Corp v Touche [1931] 174 NE 441 OR 255

NY 170was of the view that an expert opinion would be rendered
fraudulent if the grounds supporting it are so flimsy as to lead to the
conclusion that there is no genuine belief to back it.
 But flimsiness and laxity in investigation alone may not be sufficient to

render the defendant liable for negligent misstatements. This is because
negligence cannot be a substitute for fraud.
 To conclude, courts have been careful not to treat negligent

misstatements as actionable in tort outside contract. But if the opinion has
been so negligent as to justify a finding there was no genuine belief in the
adequacy of the opinion, then this may be actionable in fraud. If there is
honest blunder negligence can only be actionable if there is a contract.
 However Lord Denning was a contrary opinion in his dissenting

judgment when he insisted that Donogue v Stevenson can apply in such
cases and when one reads subsequent decision, there is agreement with
Denning. His reasons are based on the fact that in all cases such as
Ashby v White, Parsley v Freeman and Donohue v Stevenson, there
was no unanimity and all the views were based on novelty.
5. The other opinion based on Denning’s dissenting judgment
82
 Lord Denning argued that it is wrong for financial loss not be entertained
in negligence for lack of sufficient proximity to give rise to a duty of
care. He rejected what he called the 19th C fallacy, which treated tortuous
liability as only arising out of contract, which was rejected in Donoghue
v Stevenson.
 He said that accountants, surveyors, doctors, valuers, and analysts are

required to make reports, which have to be relied upon either by their
clients or by others.
 Therefore, they have a duty to use care in their work, not only in
preparing their reports, but they have a duty to use care in their work,
which results into their report.
 It is only non-professionals whose advice does not impose on them a duty

of care.
 They are only liable in the law-affecting persons generally, in contract,

estoppels, innocent misrepresentations or fraud.
 This is different with persons who engage in a calling, which requires

special knowledge and skill.
 Such persons owe a duty to those closely and directly affected by their
work apart from contract or any other undertaking.
 The rationale under Denning’s arguments is based on the assumption that

the situation of professionals and employment imply competence and
knowledge in making decisions.
 Such professionals owe their duty to their employers, clients and to any
other person to whom they show their reports, accounts to induce them
may be to invest money or take some other action.
 But such duty may not be extended further to strangers.
 They are not liable for causal remarks made in the course of conversation
or for any statements made outside the scope of their employment or not
made in their professional capacity.
83
 Liability will arise if the accountants for example know that their
employer will show their reports to third parties to induce them to act on
them.
 Under such circumstances, a duty of care arises to third parties.
 There is proximity relationship in such situations as the accountants

know that their reports will be submitted to others for use.
 Denning’s observations were based on the decision of Cann v Willson

which had been overruled in Derry v Peek (1889) 14 App Cas. 337.
 But Lord Denning argued that the overruled decision was based on a
decision which had been overruled that is George v Skivvington but
which was fully restored in Donoghue v Stevenson and therefore, Cann v
Willson was also restored as good law.
 Therefore, under this case the accountant owed a duty of care to the
claimant and the circumstances of this case according to Denning are
indistinguishable.
 He pointed out that the defendant knew the accounts were required to
guide the plaintiff to invest and relied on them to invest his money.
 Denning was however cautious of extending liability that far to

accountants as they would expose them to indeterminate amount for an
indeterminate time to an indeterminate class.
 Finally, Lord Denning expressed reservations on the majority decision on

grounds that the law would fail to serve the best interests of the
community if it should hold that accountants and auditors owe a duty to
no one but only to their client.
 Accountants owe a duty not only to their client but to all whom they
know will rely on their accounts in the transactions for which those
accounts are prepared.
84
 What theories influenced majority decision and the dissenting
judgment in this case?
 Was the majority decision per incuriam?
85
Economic Loss, remoteness and actionability
1. Objectives:
 To understand when economic loss can give rise to tortuous liability.
2. Introduction
 Until 1964, the common law position was that there was no remedy for a
negligently false statement in negligence causing economic loss.
 Pure economic loss may arise in cases where there is no physical damage
but is caused by a negligent statement, rather than a negligent action.
 The issue of contestation in common law is whether economic loss is

recoverable in tort.
 A claimant's pure economic loss resulting from a defendant's carelessness

can only give rise to a claim in negligence if a duty of care is established.
 There a number of decisions which outline the law for liability for pure
economic loss.
 Candler v Crane, Christmas & Co 1951 1 All ER 420
o The plaintiff lost money on his investment after relying on the

defendant's carelessly compiled audit reports. The issue was whether
pure economic loss be recovered.
o It was held the plaintiff could not bring an action because there was
no contractual or fiduciary relationship between the parties.
o However, the common law position was significantly altered by the

House of Lords in Hedley Byrne& Co Ltd v Heller & Partners Ltd
1964AC 465 which introduced an exception.
o In this case, the plaintiffs, an advertising firm, extended credit for a

third party (Easipower) on the basis of creditworthiness reference
provided by the defendants, Easipower's bank.
86
o The reference was an innocent but negligent misrepresentation.
Easipower went out of business and the plaintiff sought damages for
pure economic loss from the defendants.
o The issue was whether defendant owed a duty of care for causing pure
economic loss?
o The lower courts found that the pure economic loss could not be
recovered as the defendant did not owe the plaintiff a duty of care.
o However, the House of Lords found that a duty of care was owed but
because the defendants had used an effective disclaimer of liability,
the claimant could not recover. However, court laid down what is
called the Hedley Byrne rule.
o The rule states that a duty of care is owed if there is a special

relationship between the claimant and defendant.
o A special relationship arises if there is an assumption of responsibility

by the defendant (if the defendant knows the claimant is relying on
their special skill) and the claimant reasonably relies on the
defendant's statement.
o The Hedley Byrne decision has been applied in a number of cases.
o Do you see Lord Denning’s influence on this decision in his

dissenting judgment in the case of Candler v Crane, Christmas &
Co?
 Cornish v Midland Bank plc [1985] 3 All ER 513

Facts:
The plaintiff agreed to guarantee her husband's loan application, by signing a
second mortgage on her house. The bank clerk, employed by the defendant,
advised the plaintiff of the implications of signing the mortgage. However,
the clerk inadequately explained the document and failed to highlight that
signing meant the plaintiff was liable for all her husband's past, present and
future borrowings. Shortly after the mortgage was signed the marriage broke
up. Despite being aware of the marriage breakdown the defendant made
87
further loans to the husband. When the mortgage was redeemed the plaintiff
was left with very little money from the sale of the house.
Issue:
Was a duty of care owed?
Held:
A duty of care was owed as the bank clerk had taken it upon himself to
advise the plaintiff, it was reasonably foreseeable that she would rely on the
advice and he should have made sure it was complete and correct.
Chaudhry v Prabhakar [1989] 1 WLR 29

Facts:
The plaintiff asked the defendant, a friend who claimed to be knowledgeable
about cars, to help her purchase a vehicle. The plaintiff bought a car after the
defendant recommended a car which he stated had not been in any accidents.
The car had visible damage and the defendant had not enquired about the
cause. The car was in fact unroadworthy, due to a previous accident.
Issue:
Held:
Court of Appeal found that a duty was owed by the defendant as he knew the
plaintiff had relied on his advice, on the basis of his claim that he was
knowledgeable about cars.
The decision in Chaudhry v Prabhakar [1989], has been criticised as it seems

to contradict dicta in Hedley Byrne that suggested a duty could only arise
where the advice was sought and given in a business context.
Welton v North Cornwall District Council [1997] 1 WLR 570

Facts:
The plaintiff spent money on extensive refurbishment of their guest house,
after being negligently informed by an environmental health officer,
88
employed by the defendant that the premises would be shut down if the work
was not carried out.
Issue:
Held:
A duty of care was owed. It was reasonable for the plaintiffs to rely on the
advice of the environmental health officer, who was in a position of
authority.
Therefore, the case law followed the Hedley Byrne rule and found that a special
relationship, would give rise to a duty of care in relation to negligent statements.
 Spartan Steel and Alloys Ltd v Martin and Co (Contractors) Ltd [1971] 3 All
ER 557,
 Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd, the Mineral
Transporter ]1985] 2 All ER 935
2. However, it should be noted that the majority decision in Spartan Steel

created lots of uncertainties and was not followed for a while until the
mid1980s when the rule that a person must have proprietary interest i.e.
ownership or possession in the damaged property at the time of the damage
was inflicted to recover economic loss and which results from not being able
to use the property, was reaffirmed in the Privy Council in Candlewood
Navigation Corp Ltd v Mitsui OSK Lines Ltd, the Mineral Transporter
[1985] 2 All ER 935
 In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575
or [1964] AC 465 was a claim against a bank for having negligently given a
reference as to the standing of one of its customers on which reference the
plaintiff were alleged to have acted upon to their detriment. The appellant
were bankers of a customer who wanted information about the financial
position and respectability of a customer E. Ltd and whether they would be
good for an advertising contract.They were entrusted to know whether the E
Ltd was trustworthy in the way of business. The respondent assured the
appellant about the respectability of the company the appellants, in the way
of business. The information was communicated to the customer who started
investing in an advertising business. E. Ltd went into liquidation and
89
appellants lost 17000 pounds on advertising contracts. Hence this action to
recover the loss, alleging negligence for misjudgments which created a false
impression as to E Ltd’s credit. There was no contract between the plaintiff
and defendants and the claim was based on negligence at common law, the
injury to the plaintiff being the foreseeable consequence of the defendant’s
failure to take care.
 The giving of the reference was not an act which could conceivably do direct
injury to the person or property of anyone, and the claim was a kind
sometimes described as an action for negligent words rather than for
negligent acts and of a kind which had not previously been recognized in the
absence of a contractual or fiduciary relationship between the parties.
 The appellants argued that the respondents created a false impression and
that they ought to have realized it. However, though the trial judge found the
respondent company negligent he decided in favour of the respondents on
grounds that no such action lies without a contract or fiduciary relationship.
This judgment was affirmed by the court of appeal.
 Held:
“If in the ordinary course of business or professional affairs, a

person seeks information or advice from another, who is not
under contractual or fiduciary obligation to give the
information or advice in circumstances in which a reasonable
man so asked would know that he was being trusted or that his
skill or judgment was being trusted or that his skill or
judgment was being relied on and the person asked chooses to
give the information or advice without clearly so qualifying his
answer as to show that he does not accept responsibility, then
the person replying accepts a legal duty to exercise such care as
the circumstances require in making his reply; and for a
failure to exercise that care an action in negligence will lie if
damage results”.
 Highlights of the judgment
90
 The question of law in this case was whether in the circumstances of this
case, there was a duty of care owed by the respondent.
 In answering this question, Lord Morris put it this way: in order to recover,
the appellant had to establish that the bank owed him a duty, that the
bank failed to discharge such duty and that as a consequence, he
suffered loss.
 But the issue to decide on as stated by Lord Reid was whether

and in what circumstances a person can recover damages for
loss suffered out of reliance on an innocent but negligent
misrepresentation.
 But in deciding on these issues the judges had to decide

whether in this case there was a relationship between the
parties which created a duty and if so such a duty created a
duty of care.
 Before he proceeded to the substantive issues, the judge had to dispose of a

preliminary issue that there was no sufficiently close relationship between
the parties to give rise to a duty of care.
 Under this issue the respondents argued that they did not know
the precise purpose of the inquiry and did not know whether
the bank acting for the appellant wanted the information for
its own use or for use by a customer.
 Lord Reid rejected this argument on grounds that they knew that the
inquiry was in connection with an advertizing contract. Though
appellants tried to invoke Donoghue v Stevenson, Lord Reid rejected it
saying there was no relation with the case before him.
 The judge argued that negligent words must be treated differently from
negligent acts.
91
 For negligent words, he said that in day to day communication, people
express definite opinions even when they see that others are likely to act
on this information.
 They often do that without taking due care.
 This may be different from putting into the market products which may
cause injury to others. Such a product will cause one accident and
therefore it is not very difficult to find the degree of proximity.
 But words may be communicated with or without the consent of the

speaker or writer. In such cases it would be difficult to suggest that such
a person owes a duty to every reader, listener or consumer of such
information.
 Therefore the law that an innocent but negligent misstatement does not
give rise to a cause of action is based on those assumptions. For such
misrepresentations to be actionable there must be something more than
the mere statement.
 There must be fraud and there cannot be fraud without dishonest. The
judge rejected the interpretation of Derry v Peek that it did not
establish a universal rule and in the absence of a contract, negligent
misrepresentation cannot give rise to an action in tort.
2. The issue of special relationship (ARISING OUT OF TRUST and whether

creates a duty of care
 Lord Reid addressed the issue of special relationship and said that it
does not only lie where there is a fiduciary relationship but may also
arise in situations where a party may seek information or advice based
on trust requiring the provider to exercise such degree of care as the
circumstances may require and when the provider of the information
knows that the inquirer would rely on such information.
 A reasonable man who is expected to be trustworthy and that his skill

and judgment was being relied upon has three courses open to him.
92
o Keeping quiet or declining to provide the information or advice
sought;
o He can answer with clear exclusion clauses of disclaimer of

liability or that it was given without reflection or inquiry which a
careful answer would require or;
o Could answer without any qualification. In such situation, he

would be taken to have guaranteed that whatever he said can be
relied upon and takes responsibility as the inquirer would have
expected him to have acted with reasonable care as the
circumstances may require.
 The judge then declared Candler v Crane, Christmas & Co 1951 1 All
ER 420 to have been wrongly decided. In this case the accounts had been
carelessly prepared but were discussed with the claimant but they provided a
misleading picture on the liquidity of the company. In his view, Lord Reid
said that the accounts in question were going to be relied upon because they
were assumed to have been professionally and skill fully prepared and the
judge was of the view that any reasonable man would have relied on
them.Students should read and discuss why this case was
overruled
 They knew why the plaintiff wanted the accounts without any suggestion
that he should not rely on them.
 However, Lord Reid dismissed the appeal on grounds that what the
appellant was concerned about was not negligence in the ordinary sense
of carelessness but misjudgment based on a honest belief that the
respondent was giving a fair assessment, but which turned out to be
false and misleading statement of his customer’s credit.
 He argued that banks may not always provide accurate and objective
assessment of their customers’ affairs and therefore it becomes difficult
to determine what duty beyond duty to be honest a banker would
undertake if he gave a reply without a disclaimer of liability or other
warning.
93
 In such cases, it is the general duty of common honest which is expected
applies in this case. Where a mere inquiry is made by one banker to
another, without any special relationship then in the absence of special
circumstances from which a contract to be careful can be inferred, there
cannot be duty of common honesty.
 Lord Morris in his judgment outlined the law on such cases. He pointed out
that if A assumes responsibility to B to tender him deliberate advice
there could be liability if the advice is negligently given. The use of
“could be” was meant not attaching legal obligation to every kindly and
friendly act in ordinary courtesies and exchanges of life.
 Life would become impossible if it createdobligations.
 If advice is sought and it is given negligently, creates liability on the

giver to pay damages. Advice given in words does not prevent liability
to arise. This is because there may be circumstances in which a duty to
exercise care arises if a service is voluntarily undertaken.
 For example a doctor who comes across an unconscious person who is in

urgent need of medical treatment, proceeds to treat him gratuitously, he must
exercise reasonable skill and care. An omission of that skill and knowledge
he possessed or professed to possess would render him guilty of gross
negligence if he omitted to do so.
 The same was said to apply to a banker who upon a formal request by a
person who is not a customer of the bank seeks advice on a certain financial
matter concerning an activity which the bank ordinarily deals with, it is
under an obligation to respond to the request. Though gratuitousand the
advice is not based on a casual and perfunctory conversation, the bank may
be under a duty to exercise reasonable duty of care in giving it. They would
be held liable in negligence even if there was no consideration.
 Basing on a number of decided cases, Lord Morris said that irrespective

of contract or fiduciary relationship and irrespective of any direct
dealing, a duty may be owed by one person to another.
 Lord Morris could not distinguish damage arising out injury to person
or property from injury arising out of misstatements. The important
94
question to ponder in either case, is whether defendant in such cases
owed a duty of care and what is the nature of duty.
 If the nature of duty of care is just being honest, liability does not arise
even if there was negligence. But where a relationship depends on
honest taking reasonable care, and which induces another person to
respond to one’s advice, the defendant would be liable.He will be
required to use due diligence. But where there is an innocent
misrepresentation, there will be no liability.
 Therefore in addition to liability arising from an implied contract at law

or a fiduciary obligation in equity, there is liability out of duty owed to
the whole world alterum non laedere, duties arising out of trustees to a
guardian.
 Liability will also arise if there was fraudulent misrepresentation. Fraud

in such situations may relate to moral delinquency which will require
proof of mens rea. But where there is innocent misrepresentation, there
will be no cause of action and where there is no duty.
 In his decision Lord Morris stated the law on negligent misrepresentation:

that if someone possessed of a special skill undertakes, quite irrespective
of contract, to apply that skill for the assistance of another person who
relies on such skill, a duty of care will arise. The fact that the service is
to be given by means of, or by the instrumentality of, words can make
no difference. ..if in a sphere in which a person is so placed that others
could reasonably rely on his judgment or his skill or on his ability to
make a careful inquiry, a person takes it on himself to give information
or advice to, or allows his information or advice to be passed on to,
another person who, as he knows or should know, will place reliance on
it, then a duty of care will arise.”
 However, it seems Lord Reid decided this case in favour of the respondent
on a very flimsy ground and which was the disclaimer that “they wanted to
know in confidence and without responsibility on our part” (the
respondents).
95
 But the question if there was no such disclaimer, would have the appeal been
allowed?
 Lord Morris answers this question when he had to tackle the issue whether
the bank was engaged in an inquiry as part of its usual business. The bank
did not undertake to search records, studying documents, weighing and
comparing the favourable and unfavorable features and producing a well
balanced andwell worded report.
 It was not part of a banker’s duty when asked for a reference to make
inquiries outside as to the solvency or otherwise of a person asked about or
to do more than answer the question put to him honestly from what he knew
from the books and accounts before him.
 In this case Lord Morris was of the view that there was no contemplation of
receiving anything like a formal and detailed report such as might be given
by some concern with a duty (probably for reward) of making all proper and
relevant inquiries concerning the nature, scope and extent of the company’s
activities and obtaining and marshalling all available evidence as to its
credit, efficiency, standing and business reputation.
 If a banker gives a reference in a form of a brief expression of opinion in

regard to credit-worthiness he does not accept and is not expected from him
any higher duty than that of giving an honest answer.
 Lastly the bank also disclaimed any assumption of duty of care.
Weller & Co and another v Foot and Mouth Disease Research Institute[1965]
3 All ER 560
 A virus which had been imported by the D for experimental purposes on foot
and mouth disease at land and premises owned and occupied by them
escaped and infected cattle in the neighbourhood. An order had been made
to close the cattle market in the district. This affected the plaintiffs who were
auctioneers and were temporarily unable to continue their trade at those
markets which caused them to suffer loss.
96
 The issue was whether an action in law for damages would lie for economic
loss. In deciding the issue court also raised another issue whether
auctioneers were within the scope of duty owed by the research institute.
 In this case court held that damage would lie for 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.
 In the present case the defendants were held 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 affect cattle in the neighbourhood and
thus owed to the cattle owner but as the plaintiffs were not owners of cattle,
no such duty was owed to them.
 However the judge pointed out that a duty of care may arise in the giving of
advice and the person who may act on it and having recognized the existence
of the duty it goes on to recognize that indirect or economic loss will suffice
to support the plaintiff’s claim.
 If the plaintiff can show that the duty was owed to him he can recover both
direct and consequential loss which is reasonably foreseeable and proof of
direct loss is not an essential part of such claims.
 On this basis counsel for the plaintiff in his urged court to find for the
plaintiff to recover the indirect or consequential loss which they suffered.
 In response the judge was cautious arguing that the world of commerce
would come to a halt and ordinary life would become intolerable if the law
imposed a duty on all persons at all times to restrain from any conduct which
might foreseeably cause detriment to another. But the judge also observed
that where there is an absence of reasonable care and there is foreseeability
of injury to another or property of another a duty to take care exists.
 It therefore would appear as if it is possible for recovery of damages for

indirect or consequential loss, much as a duty to take care is not
automatically imposed on the defendant to avoid the loss.
97
 Let us examine the decision in Spartan Steel and Alloys Ltd v Martin and
Co (Contractors) Ltd [1971] 3 All ER 557, in which there are two views
the majority and minority decision. In this case the defendant was a
contractor hired to do road works. Defendant was informed about underlying
electricity cables feeding plaintiff’s factory. When using an excavator, the
defendants negligently damaged the cables resulting into stoppage of work
at the factory. It took over 12 hours to repair the damage, which interfered
with ongoing smelting and the plaintiff had to use oxygen to complete the
work, which affected the quality of the product. This was to avoid damage
to the furnace. Court assessed the physical damage at 368 pounds but
claimed that if this steel had undergone the usual smelting process, would
have earned 400 pounds. The plaintiff demanded 1,767 pounds lost for extra
work when the smelting had stopped. The defendants admitted liability but
disputed liability for the loss of 1,767 pounds in the smelts which were not
done, which was an economic loss for which they were not liable. This
argument was rejected hence this appeal to the HL.
 Lord Denning had this say:
o Recovering economic loss is one of policy. Whenever the courts

draw a line to mark out the bounds of duty, they do it as a matter
of policy so as to limit the responsibility of the defendants.
Whether damages are recoverable for economic loss, court’s
decision is one of policy so as to limit liability of the defendant.
o He illustrated his holding using several examples: a driver may be

liable for injuries negligently caused but owes no duty to the
servant of the injured man nor the master or any other person
who may suffer economic loss who had a contract with the injured
man.
o Likewise when property of another is damaged negligently, the

owner or possessor is entitled to a remedy but not one who suffers
loss simply because he had a contract entitling him to use the
chattel or giving him a right to receive it at some later date. Those
working in a mine may recover damages for loss of their tools but
not for losing their wages. This is because their loss is regarded as
being too remote.
98
o Economic loss is only recoverable where there is a duty to the
plaintiff and the loss was not too remote. For instance where a
ship negligently runs down another ship and damages it with the
result that the cargo has to be discharged and reloaded. The
negligent ship was under a duty to the cargo owners and therefore
they can recover the cost of discharging and reloading, for such
loss is not too remote. Or where a banker negligently gives a
reference to one who acts on it, there is a duty and the damage is
also not too remote.
o The economic loss is not recoverable because it is too remote.
o Lord Denning expressed hardship as to where to place such loss

whether it should be based on existence of duty or on remoteness and
he discarded these two concepts and instead considered it as a matter
of policy to decide whether economic loss should be recoverable.
o Reviewing a number of court decisions, Lord Denning identified five

factors why courts have declined to grant a remedy for economic loss.
o The first factor is what parliament has decided. For such cases
therefore, the question to ponder is whether it was the intention of
parliament to exclude liability. In such cases no distinction may be
made between economic loss and physical loss. Therefore, where
there is parliamentary policy, common law has also to follow suit
and courts have base their decisions on policy.
o The second factor court considers is the nature of the hazard. If it

is a hazard which affects everyone, and causes inconveniences and
economic loss, it is a hazard people have to accept to put with
without seeking compensation from anyone.
o The third factor is if economic loss were to be recoverable for a

hazard like power breakdowns there would no end of claims
though some might be genuine but may be inflated or even false.
It is impossible to check the claims. So courts expect individuals to
mitigate their losses. Rather than exposing claimants to such
temptations and defendants to such hard labour on small claims,
99
it is better to disallow economic loss altogether especially if
independent of physical damage.
o Fourthly, for a hazard like power failure, the risk of economic loss
should be borne by all who suffer the loss as their losses are
usually small and if imposed on one it might be unbearable.
o The last consideration is that the law provides for deserving cases.
Where due to defendant’s negligence there is a power failure
which causes actual physical damage to person or property, the
claimant can recover damages for such damage and also any
economic loss which is consequential of the material damage.
o Therefore, Lord Denning decided that the plaintiff should recover

the physical damage to the one melt (368 pounds) and the
consequential damage arising from loss of profit (400 pounds) but
not for four melts (1,767 pounds) as this was economic loss
independent of the physical damage. He allowed the appeal and
reduced the damages to 768 pounds.
 The dissenting Judge Edmund Davies LJ had the following grounds:

o An action lies in negligence for damages for purely economic loss,
provided that it was reasonably foreseeable and direct
consequence of the failure in duty of care.
o However the judge was cautious that application of such a rule

can undoubtedly give rise to difficulties in certain sets of
circumstances just like the rule that economic loss may be
recovered if it is directly a consequence of the physical damage.
100
Pure Economic Loss:Statements
Introduction
Pure economic loss may arise in cases where there is no physical damage but loss
has been caused by a negligent statement, rather than a negligent action. A
claimant's pure economic loss resulting from a defendant's carelessness can only
give rise to a claim in Negligence if a duty of care is established.
Until 1964, the common law position was that there was no remedy for a
negligently false statement in Negligence.
Candler v Crane Christmas & Co [1951] 2 KB 533
Facts:
The plaintiff lost money on his investment after relying on the defendant's
carelessly compiled audit reports.
Issue:
Could the pure economic loss be recovered?
Held:
The plaintiff could not bring an action because there was no contractual or
fiduciary relationship between the parties.
Hedley Byrne rule
The common law position was significantly changed by this House of Lords
decision. It created an exception to the general rule that pure economic loss could
not be recovered in tort if caused by negligent statements.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Facts:
The plaintiffs, an advertising firm, extended credit for a third party (Easipower) on
the basis of creditworthiness reference provided by the defendants, Easipower's
bank. The reference was an innocent but negligent misrepresentation. Easipower
went out of business and the plaintiff sought damages for pure economic loss from
the defendants.
Issue:
101
Does the duty of care apply to statements that cause pure economic loss?
Held:
The lower courts found that the pure economic loss could not be recovered as the
defendant did not owe the plaintiff a duty of care. The House of Lords found that a
duty of care was owed. However, the defendants had used an effective disclaimer
of liability, so the losses were not recoverable.
The Hedley Byrne rule states that a duty of care is owed if there is a special
relationship between the claimant and defendant. A special relationship arises if
there is an assumption of responsibility by the defendant (if the defendant knows
the claimant is relying on their special skill) and the claimant reasonably relies on
the defendant's statement.
Application
The Hedley Byrne decision has been applied in a number of cases.
Cornish v Midland Bank plc [1985] 3 All ER 513
Facts:
The plaintiff agreed to guarantee her husband's loan application, by signing a
second mortgage on her house. The bank clerk, employed by the defendant,
advised the plaintiff of the implications of signing the mortgage. However, the
clerk inadequately explained the document and failed to highlight that signing
meant the plaintiff was liable for informed all her husband's past, present and
future borrowings. Shortly after the mortgage was signed the marriage broke up.
Despite being aware of the marriage breakdown the defendant made further loans
to the husband. When the mortgage was redeemed the plaintiff was left with very
little money from the sale of the house.
Issue:
Held:
A duty of care was owed as the bank clerk had taken it upon himself to advise the
plaintiff, it was reasonably foreseeable that she would rely on the advice and he
should have made sure it was complete and correct.
Chaudhry v Prabhakar [1989] 1 WLR 29
102
Facts:
The plaintiff asked the defendant, a friend who claimed to be knowledgeable about
cars, to help her purchase a vehicle. The plaintiff bought a car after the defendant
recommended a car which he stated had not been in any accidents. The car had
visible damage and the defendant had not enquired about the cause. The car was in
fact unroadworthy, due to a previous accident.
Issue:
Held:
Court of Appeal found that a duty was owed by the defendant as he knew the
plaintiff had relied on his advice, on the basis of his claim that he was
knowledgeable about cars.
The decision in Chaudhry v Prabhakar [1989], has been criticised as it seems to
contradict dicta in Hedley Byrne that suggested a duty could only arise where the
advice was sought and given in a business context.
Welton v North Cornwall District Council [1997] 1 WLR 570
Facts:
The plaintiff spent money on extensive refurbishment of their guest house, after
being negligently informed by an environmental health officer, employed by the
defendant, that the premises would be shut down if the work was not carried out.
Issue:
Held:
A duty of care was owed. It was reasonable for the plaintiffs to rely on the advice
of the environmental health officer, who was in a position of authority.
Therefore, the case law followed the Hedley Byrne rule and found that a special
relationship, would give rise to a duty of care in relation to negligent statements.
Refining the rule
The criteria for establishing a special relationship has been further defined by the
House of Lords.
103
Caparo Industries v Dickman [1990] 2 AC 605
Facts:
The plaintiff bought shares in a company, Fidelity, in order to make a successful
takeover bid. The plaintiff relied on Fidelity's accounts prepared by the defendant
auditors. The accounts showed that Fidelity were making a profit but in fact the
company was making a loss. The plaintiff made a loss as they bought the shares for
an excessively high price.
Issue:
Held:
The House of Lords found that the defendants did not owe a duty of care to the
plaintiff because the necessary special relationship could not be established.
A defendant will have assumed a responsibility towards the plaintiff and a special
relationship established if the following four stage test is satisfied:
The adviser knew the purpose for which the advice was required.
The adviser knew that the advice would be communicated to the advisee, either
specifically or as a member of an ascertainable class.
The adviser knew that the advisee was likely to act on the advice without further
independent inquiry.The advice was acted on by the advisee to his detriment.
The courts have tended to narrowly construe the requirement that the adviser knew
the purpose for which the advice was required.
James McNaughton v Hicks Anderson [1991] 2 QB 295
Facts:
The plaintiff was negotiating with a third party about a takeover bid. The third
party instructed the defendant, their accountants, to prepare accounts as quickly as
possible. The plaintiff relied on the accounts which were carelessly drawn up to
make a bid. The plaintiff subsequently made a loss.
Issue:
104
Held:
The Court of Appeal found that the defendant did not owe a duty of care to the
plaintiff. There was insufficient proximity for a special relationship as the
defendant did not know the accounts would be sent to the bidder for the particular
transaction.
Morgan Crucible v Hill Samuel [1991] Ch 295
Facts:
The plaintiffs were bidding to take over a third party company, to whom the
defendants were advisers. During the bidding process a number of negligent
representations were made, which led to the plaintiff making a loss.
Issue:
Held:
The defendants did owe a duty not to negligently mislead the plaintiff. There was
sufficient proximity because the plaintiff's identity and the nature of the transaction
were known.
Extending the rule
The exception seems to have been extended in some specific circumstances, where
the Hedley Byrne and Caparo requirements have not been satisfied.
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145
Facts:
The plaintiffs made substantial losses through investing in Syndicates, negligently
managed by the defendants.
Issue:
Held:
The House of Lords found a duty of care existed as the defendant had negligently
performed a professional service. Furthermore, damages could be recovered for a
105
negligent omission in the performance of a professional service which led to pure
economic loss.
Spring v Guardian Assurance plc [1995] 2 AC 296
Facts:
The plaintiff was not employed due to a negligent reference provided by the
defendant, his previous employer, to a third party (prospective employer).
Issue:
Held:
The House of Lords found that a duty of care was owed. The case is not a
traditional Hedley Byrne case, as the defendant did not provide the plaintiff with
advice which he relied upon.
However, Lord Goff reasoned that the scope of the Hedley Byrne rule could be
extended, as the decision was originally based on the fact that the defendant had
assumed responsibility for the plaintiff's economic welfare. Therefore, he put
forward that the plaintiff in this case had entrusted his affairs to the defendant
tasked to write the reference.
White v Jones [1995] 2 AC 207
Facts:
The defendant, a solicitor, was asked to prepare a will, but negligently failed to do
so before the testator died. The plaintiffs would have been beneficiaries had the
will been completed.
Issue:
Held:
The House of Lords found that the defendant's assumed responsibility to the
testator could be extended to the plaintiffs.
Therefore, the courts have extended the Hedley Byrne rule, based on the
assumption of responsibility, beyond the original scope of negligent statements and
have included negligent provision of services. The reasoning for these extensions
106
have been varies however, there seems to have developed two tests for establishing
a special relationship either: the Hedley Byrne and Caparo principles in negligent
statement cases or the broader assumption of responsibility test in relation to the
provision of services.
Disclaimers
The most common defence to a claim to recover damages for pure economic loss
caused by a negligent statement is that a valid disclaimer exists. This defence was
relied upon in Hedley Byrne. However, there are now statutory limitations on
defendant's attempting to exclude liability for negligence.
Unfair Contract Terms Act 1977
S1: Scope of Part I
S(1): For the purposes of this Part of this Act, 'negligence' means the breach -
S(1)(b): of any common law duty to take reasonable care or exercise reasonable
skill (but not any stricter duty);
S1(3): In the case of both contract and tort, sections 2 to 7 apply (except where the
contrary is stated in section 6(4)) only to business liability, that is liability for
breach of obligations or duties arising –
S1(3)(a): from things done or to be done by a person in the course of a business
(whether his own business or another's); or
S2: Negligence liability
S2(1): A person cannot by reference to any contract term or to a notice given to
persons generally or to particular persons exclude or restrict his liability for death
or personal injury resulting from negligence.
S2(2): In the case of other loss or damage, a person cannot so exclude or restrict
his liability for negligence except in so far as the term or notice satisfies the
requirement of reasonableness.
S2(3): Where a contract term or notice purports to exclude or restrict liability for
negligence a person's agreement to or awareness of it is not of itself to be taken as
indicating his voluntary acceptance of any risk.
S11: The 'reasonableness' test
S11(3): In relation to a notice (not being a notice having contractual effect), the
requirement of reasonableness under this Act is that it should be fair and
107
reasonable to allow reliance on it, having regard to all the circumstances obtaining
when the liability arose or (but for the notice) would have arisen.
S11(5): lt is for those claiming that a contract term or notice satisfies the
requirement of reasonableness to show that it does.
S14 : Interpretation of Part I
In this Part of this Act – 'business' includes a profession and the activities of any
government department or local or public authority; 'negligence' has the meaning
given by section 1(1); 'notice' includes an announcement, whether or not in writing,
and any other communication or pretended communication; and 'personal injury'
includes any disease and any impairment of physical or mental condition.
Therefore, the limitations of a purported disclaimer under UCTA 1977 applies only
to business liability (s.1(3)). Under s.2(2) UCTA 1977, liability for other loss, such
as pure economic loss, can only be excluded if it satisfies the reasonableness test,
set out in s.11 UCTA 1977.
Smith v Eric Bush and Harris v Wyre Forest DC [1990] 1 AC 831
Facts:
The conjoined cases involved plaintiffs who were house buyers who suffered pure
economic loss. The houses were negligently valued by the defendants, who were
surveyors employed by third parties, the mortgage lenders. The defendants argued
that disclaimers exempted them from liability.
Issue:
Were the disclaimers valid?
Held:
The House of Lords found that the defendants owed a duty of care to the plaintiffs as they
were proximate third parties. The UCTA 1977 applied as the valuations were provided in
the course of business. The courts found that the disclaimers were unreasonable.
Lord Griffiths highlighted the following factors as important in determining whether a

disclaimer is reasonable: Did the parties have equal bargaining power?Would it have
been reasonably practicable to obtain the advice from an alternative source taking into
account considerations of costs and time?How difficult is the task being undertaken for
which liability is being excluded?What are the practical consequences of the decision in
relation to the parties' ability to bear the loss involved, especially with regard to
insurance?
108
109
Failure to act as negligent omission/nonfeasance
1. Objectives
 To understand the law governing liability arising from failure to act or

negligent omissions.
2. Introduction
 The law of negligence imposes a duty of care on all persons in respect of
their neighbor as decided in Donoghue v Stevenson.
 This duty of care requires individuals to carry out activities in anticipation

that they might cause injury to others and therefore, have to be careful.
 However, a personwillnot be heldliablefor a failure to actunless

he or shehad a preexistingrelationshipwiththeinjuredperson.
 Failure to takeaffirmativesteps to
preventharmdidnotcreateliability.
 In all these events, it would be possible that someone’s

intervention could have reduced the risk. But failing to act
does not render you liable.
 It is another thing for the law to require that a person who is doing nothing
in particular shall take steps to prevent another from suffering harm from
acts of a third party or natural causes.
 It is no justification that someone should spend money on another or doing

anything for someone else.
 Common law does not reward anyone for voluntarily spending money on
another or confer a benefit to another. This is based on policy, morality and
economics.
 As a policy consideration, it will be an invasion of freedom for the law to

require someone to protect or rescue others.
110
 The moral aspect is based on “why pick” me argument.
 The economic argument is based on the rationale that efficient allocation of

resources requires an activity to bear its own costs. There is no justification
for someone to spend money on behalf of another.
 The law recognizes autonomy of an individual under the

theory that a person should not be compelled to act as if he or
she were “my brother’s keeper”.
 One should not be responsible for the safety of others or have a duty to
prevent harm to others or to render assistance to a person in danger or
distress.
 This theory is based on economic argument that someone should not

incur costs to assist another who may be in distress.
 It is assumed that each individual should bear his own cost to address
his needs.
 Therefore, in the absence of a special reason neither a private person

nor a public servant owes a duty of care to respond to an emergency by
attempting a rescue. See the case of Capital and Counties Plc v
Hampshire CC [1997] QB 1004
 However, overtheyearscourtshaverecognized a number of situations in

which a personwhodoesnotcreate a
dangeroussituationmustneverthelessact to preventharm.
 This is liability in negligent omissions.
3. What is an omission?
 Patricia Smith in her commentary on Feinberg’s work on the Failure to
Act,1defines an omission --
…as a nonperformance of a duty of care or a general
obligation of custom to make something happen or
1
.Legal Theory, 11 (2005) pp237-250, Cambridge University Press
111
prevent it to happen in breach of reasonable
expectation by a reasonable person that a duty ought
to have been performed and failure to perform would
cause undue hardships.
 It is a state of affairs brought about by a person’s deviation from what is

expected of him to meet a standard of normal behavior.
 It is also a negative element of conduct departing from normal behavior.
 It is an assumption of responsibility, which if not discharged renders the

defendant as having omitted to discharge his duty.
 Here the defendant assumes responsibility to perform a service or and

failure to do so creates liability for the loss suffered by the claimant
based on the undertaking.
 However, there are pure omissions which may not be subject of litigation
for instance failing to respond to an alarm of a person in danger or failing
to extinguish a fire.
 Or where a bystandersees a strangerdrowninganddoesnotattempt a rescue,

he or she cannot be liablefornonfeasancebecause he had no
preexistingrelationshipwiththedrowningperson.
 Thebystanderwouldnot be liableforthedrowningeven if a
rescuewouldhaveposed no risk to him.
 A pure omission principle applies in situations where the failure to act

can be viewed in isolation from other aspects of the defendant’s activity
and classed as nonfeasance.
 Nonfeasance in the law of torts is about inactionthatallows or results in

harm to a person or to property.
 An act of nonfeasancecanresult in liability if
o theactorowed a duty of caretowardtheinjuredperson,

o theactorfailed to act on thatduty,and
112
o thefailure to actresulted in injury.
 Therefore failure taking affirmative action would be actionable if only

there is a special reason.
 For instance,where defendant has played some causative part in the

course of events that have led to the risk of injury, a duty to take
reasonable steps to avert or lessen the risk may arise.
 Or where a person creates danger, he may be required to take

precautions to prevent possible injuries. A motorist who parks a car
unlit may be under a duty to warn other motorists of the obstruction.
 Thus the law of negligence imposes a duty of care on individuals for

the non-performance of duty or failure to act,--nonfeasance, which
may be regarded in the law of torts as omission.
 Where a defendant without wrongful doing, creates a source of danger is

liable if he does not take proper steps to safeguard others against it. If
you dig a hole in the pathway you have to take steps to safeguard.
4. Omissions may arise from the following circumstances

a. a duty of care imposed under common law;
b. Where there is a special relationship;
c. A legal duty imposed by a statute and failure to exercise
such a statutory duty may amount to an omission; and,
d. Under contract.
e. Aversion of a risk arising out of events by the defendant.
This may happen where the defendant has played a
causative role in the course of events that lead to the risk
of injury, a duty to take reasonable care arises to avert or
lessen the risk which may arise.
5. Liability in failure to act under common law

 Where there is a common law duty to act imposed on individual’s
failure to act which results into injury may be actionable in
negligence.Medical doctors are expected to attend to patients and
provide treatment.
113
 Case law to illustrate the point above:
o Barnett v Chelsea & Kensington Hospital Management
Committee [1968] 1 All ER 1068 0r [1968] 2 WLR 422was a
case on a doctor failing to respond to a call to attend to patients
who had been poisoned. Three night watchmen drunk tea that
caused them vomiting and they proceeded to hospital for treatment.
But the doctor who was not well advised them to see their personal
doctors and in the process one of them died out arsenical
poisoning.
o However, even if the deceased had been subjected to treatment,

chances of survival were remote due to the delays.
o There was an action for negligence on grounds that the deceased’s

condition had not been diagnosed nor treated at the hospital.
o In the judgment, Nield J quoting Denning in Cassity v Ministry of

Health [1951] 1 All ER 574, held that medical doctors and workers
have a duty to use reasonable care and skill to cure patients of their
ailments. If they are negligent in giving treatment, they are as
liable for that negligence.
o The doctor on duty was found to have been negligent in failing to

offer the deceased treatment. His failure to offer treatment was a
negligent omission.
o But in such cases it is the duty of the patient to prove the omission
and in this case court found the plaintiff to have failed to prove the
claim.
o In Clay v A.J Crump and Sons and Others [1963] 1 All ER 687,
the plaintiff a potter was injured when a wall that was supposed to
be demolished but was not, collapsed causing injury to the
plaintiff.
o The defendants were three: the architect, who was supervisor of

the project, the building contractor and the demolition contractor.
114
o A neighbor objected to the demolition which was accepted by the
architect after consulting with W and the foreman who did not
object and the wall was left standing.
o It was found that the wall left in that condition was dangerous and
a reasonable contractor would not have left the wall standing and
its danger was not obvious to an ordinary person.
o The wall collapsed injuring the plaintiff. At the trial, all the three
were found liable under common law duty to the plaintiff and in
breach of a statutory duty.
o They appealed on grounds that they were not negligent.
o The appeal court found as fact that the wall left in that state was
unsafe and its condition was one which should have been apparent
to any person making even a cursory examination.
o The architect contended that since he was independent contractor,

he was answerable to the employers even if by any act or omission
he was in breach of that contract and that this was case which did
not fall under Donoghue v Stevenson.
o The issue for determination was whether leaving the wall standing
in a dangerous state was an omission that would entitle the plaintiff
to damages.
o In deciding the issue court had to determine whether the architect

owed a duty to the plaintiff;
 was in breach of that duty and whether the plaintiff suffered

damage
 whether the plaintiff was foreseeable and;
 whether there was proximity enough to give rise to duty of

care.
 It was held:
115
o The plaintiff was closely and directly affected by the acts of the
architect and should have been in their contemplation.
“The architect by reason of his contractual arrangements with the

building owner was charged with his contractual arrangements
with the building owner was charged with the duty of preparing the
necessary plans and making arrangements for the duty of preparing
the necessary plans and making arrangements for the manner in
which the work could be done.
This involved taking precautions or giving instructions for them to

be taken so that the work could be done safely…there can be no
doubt …that the workmen of the holder must have been in
contemplation of the architect when he formulated his plans and
made his decisions…The builder’s workmen were within the class
of people to whom the architect owed a duty of care..
o Therefore by failing to inspect the wall or failing to see the danger

of the foundation which was visible and failing to take precaution
or closer examination amounted to an omission and breach of duty
that made the defendants liable.
o Read the judgments of Upjohn LJ and Davies LJ.
 Special relationships
o A relationship may assume an affirmative duty to prevent harm to
a claimant’s safety and well being. The rationale is that the
claimant is made to rely on the other for his or her safety.
o Such a relationship may arise from the following circumstances:
 Dependence: This may arise where the claimant is under the

care or control of the defendant and is incapable of
protecting oneself. For instance in schools where failure to
safeguard pupil against injury; police failure to protect a
mentally disabled in their custody from self inflicted harm; a
hospital for failing to take care of a mentally disabled
against threats of suicide or parents taking care of their
116
children, to provide food, medical treatment etc.See The
Children’s Act, The Police Act, Public Health Act,
 Other relationships with the victim which may benefit the

defendant.
 This may arise in situations where the defendant stands to

benefit from the plaintiff.
 For instance a worker is entitled to safety at work to benefit

the employer, and therefore, the employer is required to
ensure safe conditions of work.
 So is a career with regard to his passengers. In a Canadian

case of Horsley v Maclaren, The Ogopogo [1971] 2 Lloyd’s
Rep 410, in which a private boat owner was required to take
steps to rescue a guest who fell overboard. So is an occupier
who has a legal duty to ensure his premises are safe enough
for his guests.
 In another Canadian decision of Stewart v Petite (1994) 121

DLR (4th) 222, a commercial vendor of alcohol was held to
owe a duty of care to persons who can be expected to use the
highways.
 However, this poses challenges of proof as the barman

cannot be expected to keep watch over the consumption of
alcohol by his customers.
 Property owners have a duty to ensure their property is safe

and does not become a source of danger to others.
STOPPED
o Other situations of special relationship which may render
defendant liable in omission:
 Where there is dependence of the claimant on the defendant,
 Where there is a special relationship between defendant and
third party based on control by defendant;
 Where the defendant is responsible for a state of danger
which may be exploited by a third party; and,
117
 Where the defendant is responsible for property which may
be used by third parties to cause damage.
 Under contract or implied duty

 Where a defendant assumes responsibility to perform a
service and fails to do so, he can be liable for the loss
suffered be another when relying upon the undertaking.
 The undertaking may be express or implied. Where it is

implied like in the case of Barret v Ministry of
Defense[1955] 1 WLR 1217, in which the CA did not find
the defendant liable for allowing the plaintiff excessive
consumption of alcohol but for their negligence in failing to
provide medical treatment after he had been taken to his
room and their failure to provide medical assistance
rendered the defendant liable.
 Stansbie v Troman 1948 2 KB 48 was a case based on

contract. Here the defendant was a decorator and was
advised to lock the building if he left. He forgot to lock
and a thief gained entrance. He was held liable because he
was under a contractual obligation to ensure the building
was under lock.
 However, Lord Goff pointed out that there may be

situations when such cases may be decided outside
contract.
 Such cases may arise when a person assumes

responsibilities, which imposes an obligation to act and
failure of which will constitute an omission.
 Liability may also arise where the defendant has made the
plaintiff to rely on him for his physical safety.
 In Mercer v South Eastern & Chatham Ry Co’s

Managing Committee [1922] 2 KB 549, the defendant
were held liable for failing to lock when trains are passing,
with the re4sult that a pedestrian was injured by a train when
118
crossing the line. Its practice of locking it made the public to
believe that it could be crossed whether locked or not.
119
SKILLFUL (PROFESSIONAL) DEFENDANTS IN NEGLIGENCE
Objectives
 To understand the circumstances under which liability may arise in
professional negligence
Introduction
 Professional defendants are duty bound to exercise reasonable care and
skill in advising their clients or in performing their professional duties.
 Failure to exercise their skills may lead to liability as was held by justice
Egonda Ntende in the case of Ernest Katende v AG 1992 KALR 413.
 The plaintiff who was a soldier got shot and sustained serious injury in one
of his arms which required an operation. He underwent an operation in East
Germany and a metal was fixed in the injured part which he was advised to
be removed after 18 months. He underwent an operation in Mulago Hospital
where due to medical negligence of the doctors carrying out the surgery, he
suffered injury to his arm and lost strength and required another operation to
correct.
 It was held that the doctors failed to exercise reasonable skill and care
expected of surgeons carrying out surgery, which resulted into the injury
claimed by the plaintiff.
 Similarly in Bolam v Frien Hospital Management Committee [1957] 1 WLR

592
 The plaintiff suffered fractures following an electro-convulsive therapy at

the defendant’s mental hospital. The treatment consisted passing an electric
current through the brain which when given without prior administration of a
relaxant drug resulted into violent muscular contractions and spasms which
was followed up though slight, a risk of bone fracture. The treatment
followed normal practice of giving ECT unmodified and with applying any
form of manual restraint other than to support the plaintiff’s chin and
holding his shoulders, nurses being present on either side of the couch in
case the plaintiff fell off the bed.
 Plaintiff’s case was that :
120
o The defendants were negligent in failing to give the plaintiff a
warning of the risks involved in the treatment to enable him to have
decided whether to take the risks or not;
o They were negligent in failing to use any relaxant drugs which

admittedly is used would have to all intents and purposes excluded
the risk of fracture; and,
o In failing to warn him of the risk involved in the treatment.
 In deciding the matter, the judge put the question for the jury to decide:
 Whether the doctor was following a standard practice, doing something

using due care, and acting in accordance with a perfectly well recognized
school of thought. In other words whether the doctor was acting negligently.
 In medical or legal practice negligence means failure to act in accordance

with the standards of a reasonably competent medical man or lawyer at the
time. And where there is conformity with those standards, he cannot be held
liable in negligence.
 Therefore in medical practice, a mere belief that a particular technique is

best is no defense without reasonable grounds for such belief.
 In determining liability in professional negligence, court looks at practice
 But what constitutes proper practice?
 Where there is claim based on professional negligence, the issue for court to
determine is whether the defendant in acting the way he did was acting in
accordance with a practice of competent, respected professional opinion.
 A professional is not negligent if he has acted in accordance with a practice

accepted as proper by a reasonable body of his professional men skilled in
that particular art.
 Someone would not be negligent simply because there is another body of

opinion which suggests an another option, but so long as he acts in
121
conformity with another acceptable body of opinion he cannot be held liable
in negligence.
 But where a procedure has been discarded, the doctor would be held liable in
negligence.
 Where there is more than one practice, it is not essential to decide which of
the two practices is the better procedure as long as you accept that what the
defendants did was in accordance with a practice accepted by responsible
persons, and if based on evidence that the practice adopted is better then you
have a strong case.
 In medical practice for example, court was of the view that in giving medical
advice, the doctor has to assess whether the patient is likely to be influenced
by the advice.
 The doctor must be left with discretion whether giving information to a

patient would be beneficial or not to tell him of the possible dangers.
 However, it is also advisable to give a patient advice to understand the

importance of a warning. If a patient inquires about a possible risk, the
doctor must honest and if they do not ask anything, then the doctor need not
say anything about the risk.
 There is a risk of disclosing dangers of an operation to a patient because of

the likelihood of declining the prescribe treatment like in Njireketa v
Director of Medical Services, which case the plaintiff had declined to be
amputated but the doctor went ahead to do so in order to save his life. It was
the only remedy available to him and that is what underlies the discretional
approach to medical practice in England.
 Much as a patient should be left with the option of deciding whether to take
on the treatment, that should be left to him. He should not be told all the
risks but that some risks are there but not the worst case scenario.
 The doctor should use his judgment and giving full details may drive the
patient away. If they are nervous, the doctor should not tell more than what
is necessary. If patients ask questions, they should be told the truth.
122
 The practice is to tell little and waiting for questions from the patient is good
practice was put to the jury.
 The rationale behind the decision against the claimant was based on
arguments medical science has conferred great benefits on mankind but
these benefits are attended by considerable risks.
 Every advance in technology is also attended by risks. It will be doing a

disservice to the community at large if we were to impose liability on
hospitals and doctors for everything that happens to go wrong.
 Doctors would be made to think more of their safety than the good of their
patients. Here, it is the practice which is the criterion for determining duty of
care.
 However, compliance with general practice is not conclusive against

negligence if the risks are obvious the defendant may be held liable.
 In such cases the defendant ought to foresee the risk of loss or damage and
should have taken precautions to avoid the risk.
123
Res Ipsa Loquitur
 This Latin maxim (the thing speaks for itself) is just an assumption that
things happening would not have happened without negligence. It is an
inference and a rule of evidence and not a principle of law.
 It is only a convenient label applying to a set of circumstances in which a

claimant proves a case requiring the defendant to rebut the evidence, without
any specific allegation and proof of it.
 It is an assertion by the claimant that he has a prima facie case of negligence

against the defendant. The rationale is that there are certain happenings that
do not occur in the absence of negligence and upon proof court will probably
say there is a case to answer. See Roe v Minister of Health [[1954] 2 QB
66
 It is based on circumstantial evidence. The essential element is the mere fact

the accident happened tells its own story and is prima facie case against the
defendant that he was negligent.
 Under res ipsa loquitur, particulars of negligence need not be stated in the
claim as may be required in other pleadings of negligence.
 There must be reasonable evidence of negligence that the thing was under
the management of the defendant or his servants and the accident does not
happens in the ordinary course of events.
 It is a failure of duty and in the absence of an explanation by defendants, it is

presumed that the accident arose from want of care.
 Therefore there are three elements to be established: a) Control; b) an

accident which does not normally occur without defendant’s fault or
negligence; and, c) there must be no evidence of the actual cause of the
accident and that the accident occurred in circumstances beyond his control.
(See Nsuri Muhiddin v Nassar Bin Seif [1960] EA 201), Uganda Motors
v Wavah Holdings Ltd [1992]2 KALR 8.
 The absence of control makes it less likely that the accident arose from his
fault. In Easson v L.N.E Ry 1944 2 KB 421, court did not find res ipsa
loquitur applicable when a child of 4 fell through a corridor train because
124
along the way, there was a lot of opportunity for the door to be tampered
with by passengers which could have been the cause of the door coming
open as the fault of the railway company. Res ipsa loquitur did not apply.
 On the second element there is no hard and fast rule for the inference of
negligence which must be based on evidence before court. For instance
when a car skids off the road and causes injury, it is not normal for that to
happen and therefore that is enough evidence for an inference of negligence
to be made without convincing explanation as to why it skidded. Where a
fire escapes, and causes damage to the plaintiff, it is evidence for an
inference of negligence to be made.
 On the third element, inference of negligence is only necessary to fill the gap
in evidence by the claimant for instance where brakes fail, there may be
need for evidence to explain why there was failure to rule out negligence.
 When that is established, the defendant has to provide a reasonable

explanation of how the accident could have occurred without negligence.
 However, res ipsa loquitur does not shift the burden of proof to the
defendant. In Ng Chun Pui v Lee Cheun Tat cited by Clerk and Rindsell at
p545 in para 8-176, a coach veered off the road across a carriageway,
crossing the central reservation and collided with a bus coming in the
opposite direction. The claimant did not give any evidence and court held
that the facts would have been sufficient to establish an inference of
negligence. The defendants however, gave a plausible explanation that an
unidentified car had suddenly cut across their coach, whose driver braked
immediately and then skidded. In view of this evidence, the Privy Council
held that there could be no inference of negligence as the driver’s reaction in
the emergency was not negligent.
 The principles on which res ipsa loquitur is based is:

o The occurrence of the event would not have been possible without
negligence.
 For example, there would be no injury without trains or buses
colliding, aircrafts crashing or fire breaking out of a house and
spreading causing damage to a neighbor, where a motor vehicle
veers off the road and knocks down a person, or skids, there is
likelihood of inference of negligence.
125
 For example in the Bennet v Chemical Construction (GB)
Ltd [1971] 1 WLR 1571, two heavy panels fell on the plaintiff
and the defendants did not call any evidence, they could have
fallen as a result of fault of the defendant. Res ipsa loquitur was
applied. Lord Denning in the case of Cassidy v Ministry of
Health 1951 2 KB 343 in applying res ipsa loquitur, said “I
went to hospital to be cured of two stiff fingers. I have come
out with four stiff fingers and my hand is useless. That should
not happen if due care had been used. Explain it if you can”.
o The thing causing damage was under the sole management and
control of the defendant or someone for whom he is responsible or
whom he has a contract.It is on a balance of probability that the
defendant or his agent must have been negligent.
o There must be no evidence why or how the occurrence took place and
if there is then pleading res ipsa loquitur would not be necessary.
 When the cause of the occurrence is known, res ipsa loquitur

will not apply. It is only raised when the cause is not known. In
Henderson v Jenkins & Sons 1970 AC 282, a failure of
brakes occurred on a lorry because of leakages of oil fluid
through a corroded hole in a tube. The owners of the lorry
showed that the leakage could have been due to a latent defect
which caused corrosion. This was rejected by the HL and
inferred negligence. The owners had failed to show evidence
that the lorry had not been used in such an unusual way.
 Rebuttal of the inference

o Once Res ipsa loquitur applied, the burden of proof shifted to the
defendant to explain why he or she could not be held liable or to rebut
the inference that the event was due to defendant’s negligence.
o However, this in a way conflicts with the evidential rule that who
asserts a claim must prove it. It is up to court to decide whether the
rebuttal is sufficient to make the defendant escape liability.
126
o For the rebuttal to be successful it must not be speculative or
theoretical. The defendant must adduce plausible evidence that he or
she exercised reasonable due care not to have caused the injury or
damage negligently.
o Thus in Henderson v Henry E. Jenkins & Sons 1970 AC 282, the

defendant were held liable for the negligent cause of death of a
woman when their heavy truck brakes failed when climbing a hill.
This was a case in which res ipsa loquitur was pleaded. In reply the
defendant explained the brake failure to have been caused by a latent
defect in the main brake fluid pipe. They adduced evidence that they
had cleaned and carried out visual inspection of the pipe at proper
intervals and that cause of the failure was due to corrosion in the pipe,
which could be inspected after the removal of the pipe from the
vehicle. Neither the ministry of transport nor the manufacturer
recommended removal of the pipe for inspection under normal
circumstances. The CA by majority decision found the defendant
liable for they had not sufficiently rebutted the inference of
negligence. Court suggested they were required under these
circumstances to show that nothing had occurred in the life of the
vehicle which would cause abnormal corrosion or call for special
inspection or treatment.
127
Death and survival of causes of action
Objectives
 To enable students understand the law applicable to survival of causes of
action of deceased person.
Introduction
 It is a common law principle that a person dies with his or her rights and
obligations.
 There was a rule as laid down in Baker v Bolton (1808) 1 Camp 493,
under which a person could not recover damages in tort for the death of
another. The death of another could not be complained of as injury. So at
common law, a husband cannot recover damages for the death of his wife
nor a parent for that of his child.
 This is expressed under a Latin maxim actio personalis moritur cum

persona
 However, this common law rule has been reversed under the Fatal
Accidents Act of 1976 of England and when one reads the Law Reform
Miscellaneous Provisions Act Cap 79 of Uganda, it only gives effect to
some provisions of the Fatal Accidents Act of 1846-1908.
 However, Cap 79 of the Laws of Uganda is more or less a replica of the

Law Reform Miscellaneous Provisions Act of 1934.
 Under section 11 of this legislation, all causes of action subsisting against

or vested in the deceased shall survive for the benefits of his estate.
 It is only causes of defamation, seduction or for inducing one spouse to

leave or remain apart from the other or a claim under section 21 of the
Divorce Act for damages on grounds of adultery, which die with
deceased.
 Under the Fatal Accidents Act of 1976 of England bereavement damages

do not survive.
128
 Under part II of Cap 79 in section 5 covering Fatal accidents,
liability or claims under negligence may survive if the death is caused
by negligence or default of any person if the act would have entitled
the deceased to an action and recover damages. Any person who
would have caused the death shall be liable for an action in damages.
 Under section 6 such actions brought before court shall be for the benefit
of members of the family of the person who has been killed and such an
action can be brought by the executor or administrator of the estate of the
deceased.
 Once compensation is paid out, no one else can make claims in court.
The law only requires that compensation given shall be shared in such
proportion as court may determine.
 Funeral expenses are recoverable by the beneficiaries of deceased’s

estate.
 Under s 11 (2) an action under survivorship shall not include exemplary

damages. Why? Because they are punitive.
 This is the same under S1(2)(a) of the Law Reform Miscellaneous

Provisions Act of 1934 of England, a claimant's estate may not recover
(i) exemplary damages or (ii) damages under the head of loss of income.
Monies received by the estate from insurance claims or pension payouts
due to the death will not be taken into account (S1(2)(c)). Similarly
expenses paid from the estate will not be considered, apart from
reasonable funeral costs (S1(2)(c)).
 In cases of promise to marry under Cap 79, damages are limited to what
flows from breach of promise to marry.
 Damages exclude loss or gain to the estate of the deceased except funeral
expenses.
 Proceedings against estate of the deceased are only maintainable if they

were pending at the death of the deceased or
129
 The cause of action arose not earlier than six months before the death of
the deceased and proceedings are instituted not later than six months after
deceased’s personal representatives took out representation.
 Rights and obligations of the deceased continue in case of damage which

would have given rise to an action if he was alive and not died before or
at the time damage was suffered. Such rights and obligations are assumed
to subsist.
 But where there may be rights to a beneficiary under survivorship, this

will not disentitle such a beneficiary to any rights which would accrue to
him or her separate from any right conferred to members of the family of
deceased.
 Joint Tortfeasors (S 12)
o Every tortfeasor is jointly liable for damagesand an action against

one joint tortfeasor is not a bar against an action by any other
claimant if such defendant would have been sued as joint tort
feasor.
o Where there may be more than one cause of action damages in

such cases shall not exceed in aggregate those first awarded to the
other and the plaintiff shall not be entitled to costs unless there is
reasonable ground for court to decide otherwise.
o Any tortfeasor liable may recover contributions from the other

tortfeasors if when sued would have been found liable whether as
joint feasors or otherwise.
o Contribution by joint tortfeasors is based on what each of them

would pay as would be just and equitable basing on each of the
tortfeasor’s contribution to the damage. Court has powers to
exempt any of the joint tortfeasors from making any contribution
and to order that contribution from one tortfeasor constitutes
complete indemnity.
o Where there is contributory negligence under4 section 13 (1) a

claim in respect of that damage shall not be defeated by reason of
130
fault of the person suffering the damage, but court will consider the
damage contributed by the claimant as court will consider what is
equitable and just taking into account the claimant’s share of
responsibility.
o Under sub section 2, court will record the total damage awarded
which would have been recoverable if the claimant would not have
been at fault.
o Damages will also be proportionate to contributions of a tortfeasor

if he had not died and any damages recoverable in an action for the
benefit of the members of the family of that person shall be
reduced basing on his or her contributions.
 How are damages assessed

o The multiplier method: It is used by calculating the deceased’s
annual earnings less his living expenses, what he would have spent
exclusively on himself. Adjustments may be made putting into
account the variations in deceased’s earnings.
o However this method may not be appropriate where the pecuniary

benefits were provided in kind.
o In assessing damages, court will consider how duties which

constitute contributions to the family by the deceased may be
replaced by someone else. For instance where there may be
children, the cost of hiring a house helper will be calculatedor loss
of earning which may result from death of a husband or wife.
o Students should read the case of Creswell v Eaton [1991] 1 WLR

1113 and Melmet v Perry [1977] 2 All ER 529
o The figure is then calculated based on a multiplier effect, basing on

the number of years of dependence and the expected working life
of the deceased. Court must estimate how long dependence would
have continued even after a child gets to adulthood. For instance if
tuition was expected, after 18 years when dependence would have
ceased, court will consider it.
131
o In deciding the period of dependence where there is a claim by
cohabitee, court will take into account the fact that he or she did
not have enforceable rights to financial support by the deceased as
a result of living together.
o Another factor considered is dependant’s future prospects after the

death of his supporter.
132
Passing off
 It is a tort which covers unfair competition practices.
 As a tort, a person is not to sell goods or services pretending that they are
those of another.
 Nobody has a right to represent his goods as the goods of somebody else.
 The tort therefore mainly covers infringement of trademarks. It is based on

common law but it may also be statutory under the trademarks legislation.
 As to whether the representation is the name of the plaintiff’s brand is a

question of fact. The judge must examine the mark to determine the
similarities
 The representation must have the effect of creating confusion among

consumers. This may give rise to an action of malicious falsehood or libel.
 The legal basis for an action of passing off is that it is wrong for D to
represent, for trading purposes, that his or her goods on the market or
business are that of the plaintiff.
 It is immaterial whether the representation made is effected by direct

statements or by using the badges or get-up by which the goods or business
or the plaintiff are known by the ordinary consumers.
 For liability to arise in such cases, the defendant should have made a
representation calculated to deceive.
 A common form of passing off involves copying or imitating the claimant’s

trademark.
 For instance using a variation of a name of a well known name of a phone

brand Noki, which may be confused with Nokia. There have been
counterfeit like Sonia which is close to Sony.
 A case in point is NICE HOUSE OF PLASTIC v MOSES BUULE [2007]

KALR 419 in which the defendant was marketing toothbrushes with a trade
133
name “Nice” packaged as a product of Nice House of Plastics which was the
plaintiff’s trademark and business name.
 The defendant paid taxes to URA but his goods were confiscated. Plaintiff
sued seeking an injunction, an order to destroy the goods and damages.
 Held:
o Passing off is a common law wrong and is committed when the
defendant represents his goods as if they those of the plaintiff.
o Section 1(c)defines a trademark as a mark used or proposed to be used

in relation to goods for the purpose of indicating or so as to indicate
connection in the course of trade between the goods and some person
having the right either as proprietor or as a registered user of the mark
whether with or without any indication of the identity of that person
and mean in relation to a certificate trademark a mark registered or
deemed to have been registered under section 39.
Zeneca Ltd v Vivien Enterprises Ltd [199] KALR 858: This was a suit in
passing off for an injunction, destruction of the drug and damages. The
plaintiff was a manufacturer of a drug called Ketrax since 1970 and it was
extensively sold in Uganda.
In 1992, the Defendant started packaging and selling a drug called Vetrax in
packaging which was similar to that of the plaintiff’s drug. Many people in
the country thought it was the same drug as Ketrax.
The defendant contended that the drug Vetrax is manufactured abroad and
the National Drug Authority had authorized its importation. For the plaintiff
contended that he was injured in its reputation and consequently suffered
damage arising out of the false belief endangered by defendant’s
misrepresentation that the defendant’s goods are those of the plaintiff.
Defendant denied the claim that its conduct was calculated to deceive and
mislead members of the public
Among issues for determination:

 whether the defendant sold and passed off Vetrax as plaintiff’s
product and
134
 whether the alleged conduct was calculated to deceive the general
public to believe that Vetrax was plaintiff’s product.
Evidence was adduced indicated that Ketrax was a registered trademark and
a certificate of registration was submitted as evidence.
It was further shown that the appearance of Vetrax was same in packaging,
red in colour like their product and it was for de-worming and therefore it
was difficult for a consumer to distinguish between the two products.
The company was selling 18000 packets a year but because people were
unable to distinguish between Ketrax and Vetrax, which was cheaper. One
witness said that he was working with the defendant company and the
manager brought an empty pack of Vetrax to him seeking his opinion and he
advised him about the striking similarities with Ketrax which were likely to
mislead. But his opinion was ignored. Soon after Vetrax appeared in the
pharmacy and was sold well at the counter as it was cheaper. Other evidence
was given indication that appreciation of the reduced price of Ketrax which
was confused with Vetrax.
In her judgment, Justice Byamugisha laid down the legal basis for a claim in
passing off as enunciated in the case of Reddway v Banham [1886] AC
199.
“Nobody has the right to represent his goods as the goods

of somebody else. How far the use of particular words,
signs or pictures does or does not come up to the
proposition which I have enunciated in each particular
case must be a question of evidence”.
The judge outlined the evidence required based on Porke David Co v Opa
Pharmacy [1961] EA 556:
 There has been confusion,
 The circumstances usually attendingto the distribution and sale of the

goods under consideration of the type of customer; and
 Of the degree of discrimination commonly experts evidence as to the

circumstances attending the sale of goods in the particular trade and as
135
to the ordinary class of customers served their intelligence and
education what they particularly look for in purchasing plaintiff’s
goods.
 There must be proof that the use of plaintiff’s mark or name was
likely to or calculated to deceive and therefore cause confusion and
injury actual or probable to the goodwill of his business.
 The test applied in such cases is laid out in Haria Industries v P.J.
Products Ltd [1970] EA 365 is whether an average customer without
any precise recollection of the article he wants but acting with
reasonable care would if he saw the article complained of be likely to
be confused.
 The burden is on the plaintiff court that there has been an

infringement of its trademark, the resemblance between the two get-
ups which is deceptive.
 Therefore the issue in such cases is to decide whether the get-up

complained of does not so nearly resemble the plaintiff’s registered
trademark as to be likely to deceive or cause confusion in the minds of
the public. (Payton & Co Ltd v Snelling Lambarde & CO Ltd
[1901] AC 308.
 The judge was of the view that a drug which has been on the market
for 25 years is enough to generate goodwill and reputation. What
constitutes reputation is a question of fact.
 She went further to say that there is no passing off where there is no
interference with another person’s trade and no intent to injure or
deceive.
 In this case proof of passing off according to the judge, Vetrax
actually connotes goods manufactured by the plaintiff which is likely
to cause confusion in the minds of the consumer,
 An assessment of damages for passing off depends on the loss of

business profits caused by diversion of plaintiff’s customer to the
defendant as a result of defendant’s misrepresentation, and in addition
136
damages may be awarded for any loss of business, goodwill and
reputation resulting from passing off.
 There are five elements which have to be proved:
o Misrepresentation;
o By a trader in the course of trade;
o To a prospective customer;
o Calculated to injure the business or goodwill of another; and,
o Causes or threatens actual damage to business or goodwill of another
trader who is the claimant.
Q. Discuss five element that have to be proved in an action of passing off
and the burden of the claimant in proving his or her action
 Marks include a device, brand, heading, label, ticket, signature, word, letter,
numeral of any combination of them.
 Proof of ownership of a trademark is by registration. When a person

registers a name under S. 6, he is entitled to exclusive right to the use of the
trademark. Infringement arises when a trademark is used in a trademark
sense.
 Remedies available:
o Permanent injunction;
o Destruction of the goods;
o General damages, which are awarded to place an injured party in as
good as a position in money terms as he would have been had the
wrong complained of not occurred.
 Defenses
 Use of a Registered Trade mark
 If the alleged passing off relates to the defendant’s use of a registered trade mark in
association with the wares or services of the registration, the existence of the registration
will be a defence to a claim for passing off. This is because the defendant has the
exclusive statutory right to use the mark in association with the wares or services for
which it is registered. If the plaintiff has a claim that it is entitled to the mark in priority
to the registrant consideration should be given to bringing proceedings to expunge the
registration.
137
 Use of an Individual’s Own Name
 An individual defendant has a right to use his or her own name and the fact that
confusion may occur does not constitute passing off by itself. However, if confusion
occurs, which is brought to the attention of that defendant, the defendant is under an
obligation to take reasonable care to qualify the representation implied in his or her
conduct in order to avoid confusion.
 It is not passing off to use the plaintiff’s name or mark in connection with wares that are
the plaintiff’s original wares. But a trader cannot represent that wares, which are the
plaintiff’s wares, are of a particular class or quality if they are not. For example, it is
actionable to offer wares of inferior or deteriorated quality as the plaintiff’s original
goods or the plaintiff’s wares in an materially altered form as the original. The fact that
notice of the difference is given to consumers at the time of sale may avoid a finding of
passing off.
 Like trade marks any combination of elements which are primarily designed to perform a
function cannot be protected through a claim for passing off. The fact that the party
seeking protection obtained a patent relating to the article in question is evidence of
functionality. For example, the manufacturer of LEGO brand toy building blocks, after
the patents relating to its product expired, was not able to protect the elements that make
up its product through an action for passing off.
138
Insurance and the law of torts
o The main objective of tort law is – or should be – the protection of

victims and achieving the ultimate goal of optimal protection of
victims.
o Negligence becomes an insurable risk. For example, negligence

committed by a business entity (or its agents or employees) that
results in an accident that causes bodily injury or property damage is
covered under a general liability policy.
o Negligence committed by a commercial auto driver who causes an

accident which results in bodily injury or property damage is covered
by a commercial auto policy (third party insurance).
o Some businesses may include indemnity agreements in contracts in an

attempt to forestall negligence claims.
o The insurance company is the ultimate risk bearer who will then
distribute the costs incurred by compensating the victim among the
pool of policyholders.
o Since insurance is mandatory or may be bought on a voluntary basis,

the risk is spread among the general public.
 Without insurance, there would be lots of problems in dealing with

tortuous claims in courts.
 Insurance therefore serves as a valuable tool by transferring the risk of

crushing liability to an insurance company.
 It is pooled with other similar but non-cumulative risks such that the
uncertainties cancel each other out.
139
 In this sense, the risk disappears in the hands of the insurance
company by becoming an actuarial certainty.
 Insurance transforms the threat of an uncertain, large loss into the

certainty of a constant stream of relatively small premium payments.
 These benefits of insurance have to be compared with its costs in

terms of a lower level of care as a consequence of moral hazard.
 The insurance covers sums defendant is legally obliged to pay as

damages because of bodily injury or property damage.
 That is, it covers claims or suits against you or your company by a

person or organization that has sustained bodily injury or property
damage as a result of your firm’s negligence. For A to apply must be
legally responsible for the injury or damage.
 There are two types of insurances: 1st and 3rd party insurance. 1st
insurance covers claims over losses of property for instance in a fire.
This insurance is for liability whether arising from fault or no fault of
the insured.
 Third party insurance is a contract between the insured, the insurer for
the benefit of a third party. Unlike 1st insurance, third party insurance
must establish the insured’s liability.
 It is called third party because three people are involved: the insurer,
the insured and the person who caused the accident.
 However, this coverage is very small to cover liability that may be

suffered by a claimant.
140
 These insurance covers are for personal injuries or death.
 1st insurance covers three types of risks: life assurance, personal

accident insurance and health insurance.
 Persons injured in motor vehicle accidents may claim special and

general damages so are people who have not been directly involved in
an accident for instance those suffering mental breakdown because of
injuries sustained by a close relative or witnessing such accidents.
 For this reason all car owners in Uganda are required to take insurance
against third party risks and the claim is up to a certain amount of
money which I think is 1 million shillings.
 Hence one can get comprehensive insurance coverage over and above
the damage claim by the injured.
 Indemnity Agreements and Negligence: this covers professionals like

lawyers, doctors for any professional negligence liability, which may
arise out of their practice. Since the damages may be high, insurance
becomes important for the operation of the system.
 Insurers have influence on the law of torts because they determine

which cases go to court and very few cases end up there.
 Cases that may go on appeal will depend on the insurer’s assessment

as their interest may be to leave the law uncertain. Other cases are
settled by the insurance company, which may not be successful in
court. In some cases a party may be coerced by the insurer to accept a
lesser sum that he would have recovered in court.
 The Compensation Model uses tort law in tandem with liability insurance as a
mechanism to provide victims of accidents with adequate compensation of their losses
and to distribute the costs incurred among society at large. In such a world, the tort/
insurance device is something like a market-type substitute for public compensation
schemes, which dominate the practice of personal injury compensation all across Europe.
From this point of view, the relationship between tort and insurance is turned upside
down, as liability insurance takes priority over liability in tort. Whereas the traditional
principle of separateness places tort first, in the sense that liability in tort must be
established on its own turf and regardless of insurance coverage, the alternative approach
141
is to look for insurance first and then to fix liability with those actors who have
contracted for insurance coverage.
 Third party insurance
 Nettleship v Weston [1971] 2 QB 691
 Dutton v Bognor Regis UDC [1972] 2 QB 373 [1972] 1 All ER 462 CA; [1972]
2 WLR 299;
 In Nettleship v Weston, Lord Denning MR, Edmund Davies LJ

the plaintiff was a spectator at a motorcycle scramble race, and was injured. Held:
Edmund Davies LJ: ".... although in the very nature of things the competitor is all
out to win and that is exactly what the spectators expect of him, it is in my
judgment still incumbent upon him to exercise such degree of care as may
reasonably be expected in all the circumstances. For my part, therefore, I would
hold him liable only for damages caused by errors of judgment or lapse of skill
going beyond such as, in the stress of circumstances, may reasonably be regarded
as excusable."
142
Economic torts
Introduction
 This topic is to introduce students to understanding what constitute economic
torts.
 Under this category, students will exposed to the different types of economic torts
which include the following:
o Tort of inducing breach of contract;
o Tort of inducing someone doing something wrong; and,
o Tort of conspiracy causing another to suffer loss by unlawful means.
o The tort of deceit
o The tort of passing off
 Tort of inducing breach of contract

o This is caused by one persuading another to breach a contract between that
person and another. Any loss suffered by the induced breach will be
actionable in tort. In Lumley v Gye (1853) Wagner was a well known
soprano who entered into a contract with Lumley to sing at her Majesty’s
Theatre and not to sing anywhere. A rival Gye persuaded Wagner to sing
for him at the Royal Italian opera which was in breach of her contract with
Lumley. The QB found for the plaintiff on grounds that Gye persuaded
Wagner to breach her contract, which was tortuous. This case is usually
cited in cases of procuring a breach of contract or of inducing a breach of
contract.
o But where a person makes it impossible for a party to a contract not to

perform it, this may not be a breach of contract. A person would not have
committed a tort in relation to a breach of contract where it is made
impossible for one to perform a contract.This may because such situation
might have been provided for in the contract. Instead the defendant may
be held liable for the tort of intentionally causing loss by use of unlawful
means.
o In cases of persuading someone to breach of contract as tort, there must be

two liabilities: secondary liability and primary liability. For persuading a
breach to be actionable in tort, it must be unlawful. But it is lawful in
cases where the someone could have avoided the contract.
 Intentional infliction of harm by unlawful means is a tort where the defendant

intentional harms another by committing or threatening to commit a civil wrong
like a breach of contract, a tort or an equitable wrong.
 The plaintiff has to prove the following:

o Defendant caused the plaintiff to suffer loss;
143
o By interfering with the freedom of a third party to deal with the plaintiff;
o The means with which the defendant interfered with plaintiff’s freedom
were unlawful; and,
o Defendant acted in a manner which was intended to cause harm to the
plaintiff.
 This tort has two sub torts which may be actionable.

o The first of such torts is where defendant makes use of unlawful threats to
intimidate a third party not to deal with plaintiff. This tort is sometimes
referred to as a three-party intimidation. In Rookes v Barnard [1964] AC
1129, a threat to break a contract was an unlawful threat for purposes of a
tort three party intimidation, which is part of a general tort of unlawful
means.
o The second is where defendant makes use of unlawful means in order to

interfere with a third party’s performance of a contract with the plaintiff.
This is sometimes considered as a common law tort of interfering with the
trade or business of another person by doing unlawful acts. For instance in
the case of Merkur Island Shipping Corp v Laughton [1983] 2 AC 570
in which a tug company was persuaded to break their contracts of
employment was considered as an unlawful interference with contractual
rights which constituted an extension of the tort of inducing breach of
contract.
 What constitutes unlawful means?
o This can best be illustrated by the example of A causing B to suffer some

kind of loss by committing a tort in relation to C which interferes with C’s
freedom to deal with B, A would have caused B to suffer loss through
unlawful means. Unlawful means may also be a breach of contract, where
A has breached a contract with C in order to harm B, this is an unlawful
act vi-a-vis C.
o Committing a crime may be considered as an unlawful means because

they constitute acts which the defendant is prohibited to do under criminal
law especially if the crime is committed against the claimant or the
defendant intentionally caused loss to the claimant by committing or
attempting to commit a crime against a third party in order to cause loss to
the claimant through the instrumentality of third party.
 Interference with a third party’s freedom.

o This usually happens whenever plaintiff’s economic interests depend on a
third party dealing with him. If you are a lawyer with clients, you will lose
business if those clients are diverted in breach of contract or other business
interests you are dealing with refuse to continue dealing with you in
breach of a contract with you.
144
o Another illustration is where defendant runs down a well known footballer
with the intention of causing economic loss to the club owning this
footballer, plaintiff cam make a claim against the driver for committing a
tort of using unlawful means to cause loss to another in relation to the
club. Such a wrong will be additional to the one the striker can bring
against the driver.
o Or if defendant makes it impossible for a third party to behave in a

particular manner towards another or preventing a third party performing a
contract;
o Threatening a third party to persuade him to behave in a particular way

towards plaintiff.
o Misleading a third party to lead him to behave in a particular way towards

the plaintiff.
 Conspiracy to injure
o This arises where there is agreement between two or more to do unlawful
harm or to do a lawful act by unlawful means. It becomes a tort when
there is conspiracy to injure or to use unlawful means.
o For this tort to be proved, there must be

 The act may be intentional or deliberate unlawful act to injure the
plaintiff.
 It may be an act committed by unlawful means.
145

Tortt 2

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Tortt 2

Uploaded by

Copyright:

Available Formats

.

 In Bolam v Frien Hospital Management Committee 1957 1 WLR 582, negligence in

 The following can be noted:

o Negligence connotes “a conduct that follows below the standard established by

 Therefore negligence consists of

o or failing to do something that a person of ordinary prudence would do

 In tort law, negligence is a distinct cause of action.

History of the tort of negligence

 Pre-nineteenth century negligence actions are attributable to the governing procedural

 Specifically, if a plaintiff was injured by an intentional harm he would sue

The Doctrine of common employment

 The history of the doctrine

 Under the doctrine of common employment, a worker could not

 In putting Priestley's case to the jury, Goulbourne played to their sympathies,

 Abinger, C.B. delivered a rambling opinion arresting the

 Lacking "precedent for the present action," the Court was at

 Deciding "the question upon general principles," Abinger, C.B.

 He then put forward a number of examples in dicta illustrating

 The footman, therefore, who stands behind the carriage, may

 Even more distressing to Lord Abinger was that the rationale of

 In other words, Abinger, C.B. clearly foresaw that permitting

 Because the consequences of such an extension would engender

 Acknowledging that the master/servant relationship bound the

 This was because servants were in as good, if not better

 Lord Abinger concluded with a last policy argument against

 From the facts of this case, there is evidence of negligence but in

 The doctrine of common employment was unjust.

 Hence the doctrine of common employment reversed the

 Today, liability could have been held under negligence or under

 The doctrine of common employment was eventually abolished

 However in spite of the enactment of legislation, negligence was

 Ths explains why statutes had to be enacted to cover certain

 In other jurisdictions like in the US, the doctrine has been

 In other jurisdictions like in the US, the doctrine has been

The transformation of common law and emergency of the law of negligence

o Second, pleading trespass engendered a significant risk for defendants to avoid

 There is no fraud here, and so the Plaintiff has no remedy.

 And also in George and Wife v Skivington,[1869-70] LR 5which was

 Applying Langridge v Levy, [1837] 2 M & W 337 a case of product

 In a scenario where ordinary care or skill is required to prevent injury to the

Whenever one person is by circumstances placed in such a

whereby he may cause danger of injury... a duty arises to

 When does liability in negligence arise?

(1) a duty of care owed by the defendant to the plaintiff

2) a breach of that duty

3) damages resulting from the defendant's breachof duty.

The Concept of Duty of Care

 In English law it is essential that duty to be careful must be established.

 Duty means a restriction to defendant’s freedom of conduct and is about restrictions on

 If the possibility of danger was reasonably apparent, then to take no precaution

 The duty of care may depend on the type of damage inflicted.

o The tripartite test invokes the following questions

 Therefore, defendant is assumed to be responsible for the harm caused.

Foreseeability and the neighbourhood principle

 Foreseeability may therefore imply sort of a special or close relationship according to

 In determining the question of foreseeability, court considers the following:

o Measure of responsibility by determining the class of people or situations over

o By assessing whether the Plaintiff comes within this class of people.

o Whether D’s failure to control activities likely to be a source of injury to others.

The neighbourhood principle

 The neighbourhood principle as laid down in Donoghue v Stevenson [1932] AC 562 is

 The facts of this case:

Ginger Beer in an opaque bottle was sold to a retailer and by