TORT LAW

LECTURE 4 –
NEGLIGENCE AN
INTRODUCTION
Ms Gallop
INTRODUCTION TO
NEGLIGENCE
 For a claimant to pursue a case in negligence
several things must have existed:
 Firstly there must have been a duty of care
 Secondly that duty of care must have been
breached
 Thirdly this breach must have caused an
injury
 Fourthly the injury must be actionable
THE DUTY OF CARE
 Duty of care is a question of law, breach of
that duty is a question of causation
 The duty of care in the context of torts of
negligence is that people should be put at an
unreasonable risk of harm
 In the middle ages this was less problematic
as there were not the machines, cars or
industry with which accidental injury tends
to occur
 Therefore in the middle ages tort law only
really recognised intentional torts
THE DUTY OF CARE

 The duty of care in negligence torts has

become more common as in an industrialised
society there are many more risks to the
person
 The idea of the reasonable person was first
introduced in the case of Vaughn v Menlove
(1837) 132 ER 490 (CP)
THE DUTY OF CARE
 In the case of Vaughn v Menlowe the concept
of a duty of care was first examined. In this
the defendant had stored hay on his property
which, due to his poor care regimen, had
spontaneously combusted. He had been
warned several times the way in which he
had stacked was dangerous. The fire spread
to the Claimant’s land.
VAUGHN V MENLOVE
 At trial the judge instructed the jury to
consider whether the fire had been caused
by gross negligence on the part of the
defendant, and stated the defendant "was
[duty] bound to proceed with such
reasonable caution as a prudent man would
have exercised under such circumstances."
 Consequently the concept the reasonable
man was borne – thus a person must act as a
reasonable man would do in the
circumstances.
WINTERBOTTOM V WRIGHT
(1842)
 The plaintiff entered into a contract with the
Postmaster General to drive a mail coach.
The coach had been supplied by the
defendant to the Postmaster General under a
contract which provided that during the term
of the contract the coach was to be kept in
fit, proper, safe and secure state. The
plaintiff alleged that the defendant
‘negligently conducted himself, and so
utterly disregarded his aforesaid contract
and so wholly neglected and failed to
perform his duty on his behalf’
WINTERBOTTOM V WRIGHT
 Because of this failure to perform his half of
the contract the coach collapsed and the
plaintiff was injured when the coach
collapsed throwing the plaintiff from his
seat.
 This case was outside of contract law as
there was a contract between the
postmaster general and the defendant, and
another contract between the postmaster
general and the plaintiff but no contract
between the plaintiff and defendant
WINTERBOTTOM V WRIGHT
 Because there was no contract between the
claimant and the defendant the courts held
that there was no case
 They said that because every passenger or
even a person passing along the road could
sue the law of tort should not be expanded
to this – this is known as the floodgate
argument.
DONOGHUE V STEVENSON
[1932]
 The change in the law was first identified in
the case of Donoghue v Stevenson
 In this case the plaintiff and her friend
entered a cafe and the plaintiff’s friend
purchased her a ginger beer. The dark green
colour of the bottle made it impossible for
her to see the contents inside. The plaintiff
drank some of the contents of the beer and
then poured the rest into her glass where she
found the partly decomposed remains of a
snail.
DONOGHUE V STEVENSON
 Because of the shock and disgust at what she
found the defendant alleged that she
suffered from gastro-enteritis. The
defendant argued that following the case of
Winterbottom v Wright there was no case for
the plaintiff to pursue.
 The trial court, following Winterbottom,
struck the case out but at appeal the court
accepted that there was indeed a case to
answer.
DONOGHUE V STEVENSON
 In the Appeal Court Lord Atkin introduced
the concepts of the neighbour principle. He
stated that the rule found in the Bible that
‘you should love thy neighbour’ should be
understood in law to mean ‘you must not
injure they neighbour’.
 Who is your neighbour? ‘Persons so closely
and directly affected by my act that I ought
reasonably to have them in contemplation as
being affected’
DONOGHUE V STEVENSON
 Lord Macmillan concurred that the law was
flawed in that it gave no remedy to the
ultimate consumer who have no chance to
discover the fault until they were injured by
that fault
 The immediate effect of the decision was to
impose a duty on manufacturers in respect of
the production of certain types of goods i.e.
those which could not be inspected before
consumption or purchase
DONOGHUE V STEVENSON
 On a wider doctrinal level it was held that the
existence of a contract between the defendant
and a third party did not prevent the
defendant owing a duty to the plaintiff in tort
in relation to the performance of that
contract. In such cases the ‘privity of contract’
fallacy was exposed.
 Winterbottom was distinguished as the plaintiff
in the case had based his case on the claim of
the defendant’s breach of the contract with a
third party, not an independent tortuous duty
owed to the plaintiff
GRANT V AUSTRALIAN KNITTING
MILLS
 The case of Grant saw the extension of the
Donoghue principle to any product which
reached the ultimate consumer unchanged.
 In this case the consumer bought two pairs of
long underwear from a retail shop. The
defendant manufactured the underwear.
After wearing the underwear the claimant’s
legs became red and itchy. Because of the
rash the plaintiff collapsed and ended up in
hospital for 3 months where he was told he
might die.
GRANT V AUSTRALIAN KNITTING
MILLS
 He sued the manufacturers (the defendants)
for negligence. The manufacturers stated
that they had taken precautions to ensure
that there were chemicals remaining in the
clothes and stated that they had received no
other complaints.
 The Court discussed the existence of the
duty of care and concluded that if there was
no duty then failure to take reasonable care
could not give rise to liability.
GRANT V AUSTRALIAN KNITTING
MILLS
 The court held that there had been a tort of
negligence – all the defendant had to do was
point to the existence of the sulphur in the
clothing – he did not need to suggest how
why or why the sulphur was present, or who
was responsible for it.
 The court also concluded that there must be
a causal link between the claimant’s injury
and the defendant’s breach
GRANT V AUSTRALIAN KNITTING
MILLS
 For causation to be established the court held
that it must be established that the defendant’s
negligent conduct was the factual cause of the
claimant’s loss, in the sense that the loss would
not have occurred but for negligence.
 E.g. Evans v Triplex Safety Glass Co Ltd – the
plaintiff’s sued in respect of an allegedly
defective windscreen which had broken and
showered them with glass. The claim failed as
there was no evidence that this, rather than
various other factors caused the windscreen
disintegration.
GRANT V AUSTRALIAN KNITTING
MILLS
 Secondly there is the requirement of legal
causation where the court may have to
consider any acts or omissions intervening in
point of time between the defendant’s
breach of duty and the claimant’s injury
breaking the chain of causation so as to
negate the defendant’s liability.
 Burrows v March Gas & Coke Co – the D
supplied P with a defective pipe, when a gas
fitter called round to look for the source of
escaped gas which caused an explosion.
GRANT V AUSTRALIAN KNITTING
MILLS

 Although the explosion would not have

happened but for the defendant’s earlier
breach of duty the chain of duty was broken
by the negligent actions of a third party.
 Lastly the court looked at the question of
remoteness where it was held that the loss
suffered by the claimant must be a
reasonably foreseeable consequence of the
defendant’s negligence.
DAMAGES

 Unlike trespass to the person, negligence is

not actionable per se – it is necessary to
prove that the Claimant suffered legally
recognised damage as a result of the
defendant’s breach of duty.
THE DUTY OF CARE IN MODERN
LAW
 As we can see from Donoghue v Stevenson
fault, causation and damages are all
irrelevant if the defendant is under no duty
to the claimant
 In some ways duty of care is best viewed as a
control device for determining when
Defendants will or will not be placed under a
generalised duty to exercise reasonable care
in respect of their conduct, and held liable
for damages for failure to do so.
THE DUTY OF CARE IN MODERN
LAW

 In later cases the principle of duty of care

was further clarified and extended
 In the case of the Home Office v Dorset
Yacht Company it was held that a duty of
care was owed whenever injury to the
claimant was foreseeable, unless there is a
policy reason not to impose such a duty.
THE DUTY OF CARE IN MODERN
TORT LAW
 Thus in the case of D v East Berkshire
Community Health NHS Trust – the claimants
alleged negligence on the part of the
defendant child welfare professionals who
had formed the opinion (shown to be
erroneous) that the claimants were guilty of
abuse towards their children.
 Held – in this case there was no duty of care
owed to the parents, only a duty of care to
the children.
THE FORESEEABLE CLAIMANT
 An important way of limiting a wrongdoer’s
liability for the consequences of his
negligence came with the recognition that
the ‘duty’ recognised by the tort of
negligence is a relative concept.
 The duty is not owed to the world at large
(as in criminal law) but only to an individual
with the scope of the risk created, that is, to
a foreseeable victim.
THE FORESEEABLE CLAIMANT
 This idea was well-explored in the American
case of Palsgraf v Long Island Railroad Co.
The plaintiff was standing on a platform of
the defendant’s railroad when a train
stopped at a station. A man carrying a
package tried to get on the train, but
appeared to be having difficulties, so a
railway guard on the car, reached forward to
help him in and another guard on the
platform pushed him from behind. In doing
this the package was dislodged and fell on
the tracks.
THE FORESEEABLE CLAIMANT
 Palsgraf v Long Island Railroad Co – because of
the shock of the explosion of the package
falling on the track, threw down some scales
at the other end of the track. The scales
struck the claimant causing injuries, for which
she sued.
 The claimant’s claim was rejected as it was
not foreseeable that the allegedly careless
acts of the guards could create a risk of harm
foreseeable to the claimant. The fact that the
guards owed a duty of care to others was
irrelevant.
THE FORESEEABLE CLAIMANT
 Bourhill v Young – the claimant was a
passenger in a tramway car. After she
alighted at her stop and was lifting her basket
from the driver’s platform she heard a crash
between a car and motorbike. The
motorcyclist was killed, but the accident was
out of her line of sight. After the body was
removed the claimant came across the blood
in the street. She alleged that because of this
she wrenched and hurt her back in terror, and
sustained shock to her nervous system, and
gave birth to a stillborn child as a result.
THE FORESEEABLE CLAIMANT

 The House of Lords held that the claimant in

this case was not foreseeable. Whilst he was
guilty of negligence in relation to the car
crash but not in relation to the claimant who
suffered nervous shock.
 Whilst Lord Wright submitted that the
question of what someone could foresee was
‘somewhat vague’
THE FORESEEABLE CLAIMANT
 In Haley v London Electricity Board the
claimant, a blind man, who walking along a
pavement when he tripped over a long
hammer left on the ground by the
respondent company’s employee with the
object of warning passers-by of a trench
which he had been digging. The appellant
was alone and had approached with
reasonable care, waving his white stick in
front of him to detect objects in his way.
THE FORESEEABLE CLAIMANT
 It was accepted that the defendant had given
adequate warning to the able sighted persons
walking down the street.
 It was held that the duty of care was owed by
persons was to ensure reasonable safety of all
persons whose use of the highway was
reasonably foreseeable, not excluding the blind
or infirm.
 It was reasonable foreseeable that a blind
person would be walking down a city street
and as such the defendant owed the claimant a
duty of care
ADDITIONAL REQUIREMENTS FOR THE
EXISTENCE OF A DUTY OF CARE
 In many cases the denial of the existence of a
duty of care seems to have been as a result of
policy decisions (see the case of Bourhill v
Young, where it has been suggested that the
real consideration was concern that allowing
claims for ‘nervous shock’ would open the
floodgates
 Nowadays courts seem more willing to discuss
public policy in the open – in such cases the
court may find that injury to the C was
foreseeable but for public policy reasons no
duty of care exists
CAPARO INDUSTRIES V
DICKMAN
 The facts of the case will be discussed in
greater detail later in the semester.
 In this case the House of Lords established a
formula for determining whether there was a
duty of care (formulated by Lord Bridge):
 (1) The Harm to the Claimant must be
reasonably foreseeable
 (2) There must be reasonable proximity
 (3) It must be fair, just and reasonable to
impose a Duty of Care
PROXIMITY
 The exact nature of proximity remains
somewhat elusive, as Lord Nicholls noted in
Stovin v Wise where he noted that ‘proximity’
is a ‘slippery word’
 In general ‘proximity’ is used to restrict
liability for certain types of loss (e.g. pure
economic loss and psychiatric injury)
 Thus in the case of Murphy v Brentwood
District Council the proximity requirement was
found to be difficult to satisfy in the case of
economic loss, but easier to satisfy in the case
of physical injury
PROXIMITY
 As a general rule physical injury only requires
foreseeability whereas other injuries demand
proximity
 Many have argued that ‘proximity’ is just
another way of looking at whether something
is ‘fair, just and reasonable’
 In general proximity can be seen as
demanding that there is a sufficient link
between the defendant and claimant
PROXIMITY

 McLoughlin v O’Brian – in this case the

claimant’s claim for nervous shock against a
lorry drive who hit her family was successful,
as it was ruled that there was sufficient
proximity between her and the lorry driver
after she saw her family in hospital after the
crash.
FAIR, JUST AND REASONABLE
 This generally includes policy based
arguments for why a duty of care should not
exist
 These are undefined in scope and in number,
and are applied in an ad hoc and haphazard
fashion by the courts
 In the Nicholas H, for example, the
Defendants, a shipping classification society,
were alleged to have been negligent in
certifying a particular ship as seaworthy
after it had undergone temporary repairs.
FAIR, JUST AND REASONABLE
 The Nicholas H – shortly after it left port the
vessel sank causing the claimant’s cargo to
be lost. Despite the fact that the harm
suffered was property damage the House of
Lords held that there was no duty in the
case.
 This was because the rights and liability of
ship owners were subject to an international
convention which limited liability (the Hague
Rules), which stated that the cargo owner
must bear the loss of cargo.
FAIR, JUST AND REASONABLE
 The Nicholas H – it was held that to impose a
duty in tort would upset these rules,
furthermore the defendant was a non-profit
making entity created for collective welfare.
 Primarily the ‘fair, just and reasonable test’
is used to prevent the overburdening of the
defendant, and all defendant’s in similar
cases
 This is partly a question of fairness as it would
be unreasonable to impose liability on the
defendant grossly disproportionate to his fault
FAIR, JUST AND REASONABLE

 There is also scope for the floodgates

argument in this context
 Here it is argued that if a duty of care is
imposed too liberally then it might
encourage detrimental practice on the part
of defendants
FAIR, JUST AND REASONABLE
 Hill v Chief Constable of West Yorkshire – in this
case the claimant claimed that the Police failed
to conduct a proper investigation into the
Yorkshire Ripper Case, which consequently led
to the death of the claimant’s daughter, as the
police should have identified Sutcliffe as the
killer at an earlier date.
 In this case the court held that there was no
duty of care as it would not be fair, just and
reasonable to impose a duty, especially as there
was no pre-existing relationship between the
victim and Ripper, so no true foreseeability.
FAIR, JUST AND REASONABLE

 Consequently there can never be a duty on

an officer for failing to catch an offender,
because the police never assume a duty of
care
 This is in comparison to a doctor who
assumes a duty of care in each of their cases
FAIR, JUST AND REASONABLE
 Thus in the case of Brooks v Police Chief
Commission - a friend of Stephen Lawrence
(a boy who was murdered in an infamous
race crime in London) was treated as a
suspect rather than a victim.
 It was held that for public policy reasons that
he could not sue the police force – it would
not be fair, just and reasonable to impose a
liability on the police in circumstances of
investigation of a crime
FAIR, JUST AND REASONABLE

 In the case of Osman v UK threats were made

against a family, who complained to the
police. Following the complaint one member
of the family was killed and another seriously
injured. The English court held that there
was no duty of care in this case, so the
family appealed to the European Court of
Human Rights, stating that their rights to life
and fair trial were violated.
FAIR, JUST AND REASONABLE
 The ECHR held that this should be upheld
and the Government should protect members
of the public from known violence and that
the immunity given to the police under the
‘Hill’ decision prevented the claimants with
a right to trial
 However in Z v UK the ECHR recognised that
they had misunderstood English law, and it
was again recognised that in negligence
police cannot be held liable for careless
conducting of a crime
FAIR, JUST AND REASONABLE
 This does not mean that the police have
blanket immunity, several cases have
recognised a duty of positive intervention on
the part of the police e.g. The police must
protect a person in custody from his own acts
of self-injury (Kirkham v C.C. Of Manchester)
or from attacks from other inmates (Ellis v
Home Office).
 Additionally police officers owe a duty to one
another e.g. To intervene when one is
ostelloassaulted in the cells (C v C.C. of
Northumbria)
OTHER IMMUNITIES
 The number of specific immunities
recognised by the courts is significant
 One of the most important old immunities is
enjoyed by barristers and solicitors in
respect of conduct of their litigation
 However this immunity was recently
abolished in Hall v Simons, by the House of
Lords