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TORT OF NEGLIGENCE I

DEFINITION OF TORT OF NEGLIGENCE ELEMENTS OF TORT OF NEGLIGENCE DUTY OF CARE (FIRST ELEMENT)

MUHAMAD ABRAL BIN ABU BAKAR, LECTURER,

FACULTY OF LAW & GOVERNMENT.

TORT OF NEGLIGENCE I DEFINITION OF TORT OF NEGLIGENCE ELEMENTS OF TORT OF NEGLIGENCE DUTY OF

LEARNING OUTCOMES:

  • By the end of this chapter you should be able to:

  • Understand that the tort of negligence is structured on the concepts of duty of care, breach of duty and resulting non-remote damage

  • Indicate the social and policy questions that have influenced the development of the tort of negligence

LECTURE OUTLINE

  • 1. Introduction to the Tort of Negligence

  • 2. Definition of Tort

  • 3. Elements in the Tort of Negligence

Introduction to Tort of Negligence

INTRODUCTION

  • The area of Negligence is the most important tort in the law of tort. It is wide in scope. Example?

  • Can injured party claim compensation?

  • Standard of proof?

DEFINITION OF NEGLIGENCE

WHAT is Tort of Negligence?

  • There are various definition given to explain what is tort of negligence.

  • Among others, the following definition may be adopted to assist the

understanding on what is tort of negligence:

  • Alderson B - Blyth v Birmingham Waterworks,

  • Brett MR - Heaven v Pender (1883),

  • Lord Wright - Lochgelly v McMullan[1934],

Alderson B - Blyth v Birmingham Waterworks,

Alderson B - Blyth v Birmingham Waterworks ,

Brett MR - Heaven v Pender (1883),

Brett MR - Heaven v Pender (1883),

Lord Wright - Lochgelly v

McMullan[1934],

Lord Wright - Lochgelly v McMullan[1934],

ELEMENTS IN THE TORT OF

NEGLIGENCE

ELEMENTS IN THE TORT OF NEGLIGENCE

  • Negligence forms the largest area of tort

  • In essence, negligence is a breach of legal duty to take care of another which then results in loss or damage to the claimant (injured party).

  • In order to bring an action under tort of negligence, these elements must be proven by the claimant as per Lord Wright in Lochgelly v Mc Mullan:

    • 1. The defendant owed him a duty of care,

    • 2. There must have been a breach of that duty of care by the defendant,

    • 3. The breach of duty must have caused damage to the claimant, AND

    • 4. The damage suffered by the claimant must not have been too remote from the breach by the defendant.

L.Wright in Lochgelly v Mc Mullan:

Duty of care
Duty of care
Breach
Breach
L.Wright in Lochgelly v Mc Mullan: Duty of care Breach Causation NEGLIGENCE Remoteness
  • Causation

L.Wright in Lochgelly v Mc Mullan: Duty of care Breach Causation NEGLIGENCE Remoteness
NEGLIGENCE
NEGLIGENCE
L.Wright in Lochgelly v Mc Mullan: Duty of care Breach Causation NEGLIGENCE Remoteness
  • Remoteness

1 st ELEMENT: DUTY OF CARE

DUTY OF CARE

  • The test for determining the existence of a duty of care have changed.

  • Prior to 1932, there were numerous incidents of liability for negligence but there was no connecting principle formulated which could be regarded as the basis of all of them. These were referred to as ‘duty situations’.

  • The first attempt to create a rationale for all the discrete duty situations was made by Brett MR in the case of Heaven v Pender [1883], but the most important formulation of a general principle is that of Lord Atkin in the case of Donoghue v Stevenson [1932]. This is known as the ‘neighbor principle’.

Donoghue v Stevenson [1932]

  • Mrs Donoghue went to a café owned by Francis Minchella, known as the Wellmeadow Café.

  • A friend of Mrs D bought a bottle of ginger beer and ice cream for her. The bottle of ginger beer was made of opaque glass.

  • Minchella poured part of the contents into a tumbler containing the ice cream. Mrs D drank some of this and the friend then poured the remainder of the ginger beer into the glass. It was said that a decomposed snail floated out of the bottle.

  • Mrs D claimed that she suffered shock and gastroenteritis, and asked for £500 damages from the manufacturer.

  • Mrs D argued that a manufacturer of product is liable in negligence to a person injured by the product, but the manufacturer argued that there could be no liability as there was no contract between the claimant and the manufacturer.

  • The court held on the point of law involved, that such a defendant could be liable to such a claimant in negligence.

The ‘neighbour principle’ – Lord Atkin:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure your

neighbor. Who, then, in law is my neighbor? The answer seems to be- persons who are so closely and directly

affected by my act that ought reasonably to have them in

contemplation as being so affected when I am directing

my mind to the acts or omissions which are called into

question”

Development and application of neighbour principle’

  • The neighbour principle’ is a test based on reasonable foresight of harm and is a very wide concept. It needed further refining.

  • In the 1970s, there were attempts to extend it by defining it as a general principle.

  • In the case of Home Office v Dorset Yacht Co Ltd [1970], Lord Reid said:

Development and application of ‘ neighbour principle’  The ‘ neighbour principle’ is a test based
  • This had led to Lord Wilberforce’s ‘two stage’ test in the case of Anns v Merton Local Borough Council [1977] at the House of Lords.

‘two stage’ test

  • Lord Wilberforce in Anns v Merton LBC [1977] said:

““First, one has to ask whetherthere is a sufficient relationship of proximityin which case a prima facie duty arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any policy considerations which ought to negative, or to reduce or limit the scope of the duty

  • Lord Wilberforce’s general principle in Anns soon came in for heavy criticism. This began with Lord Keith in Governors of the Peabody Fund v Sir Lindsay Parkinson & Co Ltd [1984], when he said in addition to proximity, the court must decide whether it is ‘fair, just, and reasonable’ to impose a duty of care.

  • The decision in Anns had subsequently being overruled by the House of Lords. The case of Murphy v Brentwood District Council [1990] marked the death knell for the ‘two stage’ test by overrulling Anns.

‘three stage’ test

  • The case of Murphy v Brentwood District Council [1990] talked of adopting an ‘incremental’ approach to determining the existence of a duty of care.

  • The most recent formulation of the principle comes from Caparo Industries plc v Dickman [1990].

Caparo Industries plc v Dickman [1990].

  • FACTS: the appellants had undertaken the annual audit of a public company following the regulations laid out in the Companies Act 1985.

  • The respondents were members of the company and had relied on the accounts to make a successful bid to take over the company.

  • The respondents alleged that the accounts had been prepared negligently and their reliance on them had caused them a loss as a result.

  • The HOL had to decide whether the appellants owed the respondents a duty of care in the preparation of the accounts.

HELD:

When assessing whether a duty of care was owed the courts will take into

account the following criteria (the ‘three stage’ test):

  • 1. Reasonable foreseeability of harm;

  • 2. Proximity of relationship

  • 3. Whether it would be fair, just , and reasonable to impose a duty.

Application of the recent test in

ascertaining ‘duty of care’

YOUR ASSIGNMENT

THANK YOU