Negligence - Introduction

Question 1

What is the concept or Tort of Negligence?

Answer 1

Negligence is a relatively new Tort, developed significantly in the 19th Century and centring around a need for liability for careless acts founded upon a ‘duty of care’.

Question 2

What are the four key elements or pre-requisites of a successful negligence claim?

Answer 2

1. There must be a duty of care owed by the defendant to the claimant
2. The defendant must have breached the aforementioned duty of care
3. The defendants breach must have caused the claimants loss
4. There cannot be any applicable defences

Question 3

How did the Tort of Negligence develop through the 19th Century?

Answer 3

The concept of a ‘duty to take care’ was incrementally widened on a case-case basis until the crucial case of Donoghue v Stevenson which succeeded in setting out a more general concept of duty.

Question 4

What were the details of the Donoghue v Stevenson Case?

Answer 4

1. Donoghue (the claimant) and a friend went to a café owned by M.
2. The friend ordered for Donoghue a bottle of ginger beer.
3. Donoghue drunk some of the contents and then poured out the rest.
4. A decomposing snail came out of the bottle and Donoghue became ill.
5. Donoghue sued Stevenson (the defendant), the manufacturer of the ginger beer
   Held – by 3:2 majority, Donoghue’s claim could succeed.

Question 5

What is the significance of the Donoghue v Stevenson Case?

Answer 5

1. Establishes that duty of care owed to ultimate consumer by manufacturer and rejection of ‘privity fallacy’
2. Starting point for the modern single tort of negligence
3. Lord Atkin attempts to set down a test for when duties of care will arise – the neighbour principle

Question 6

What is the ‘neighbour principle’?

Answer 6

This was a principle laid down by Lord Atkin in the the Donoghue Case which attempts to set down a test for when duties of care will arise.

Question 7

What did Lord Atkin say in regards to the ‘neighbour principle’ in the Donoghue Case?

Answer 7

He said - “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into questions”

Question 8

What does the structure of Lord Atkin’s words on the ‘neighbour principle’ suggest?

Answer 8

Lord Atkin’s development of the ‘neighbour principle’ hints at a two-part structure to the concept of duty of care;
1. Is this a case of the type to which the law of negligence is applicable? If so;
2. Was it foreseeable that this claimant would be harmed by the defendant’s act?
The ‘neighbour principle’ seemingly addresses the first of these questions.

Question 9

What is the function of the duty of care requirement central to Lord Atkin’s ‘neighbour principle’?

Answer 9

The Duty of Care can be said to serve the function of controlling the reach of law of negligence - without it the potential for liability would be virtually unlimited.

Question 10

How did the courts position on liability stemming from carelessly causing harm develop into the 1970s?

Answer 10

Gradually thinking began to change and, by the 1970s, the tort of negligence had come to be seen as ‘an ocean of liability for carelessly causing foreseeable harm, dotted with islands of non-liability, rather than as a crowded archipelago of individual duty situations’.

Question 11

What was the perceived issue with this position of the courts?

Answer 11

It appeared that, rather than a gradual widening of specific duties, the courts appeared to be operating from an (excessively) broad principle of (almost) default liability wherever harm was caused by a defendant’s careless conduct.

Question 12

Which cases are key in demonstrating the post-Donoghue expansion of liability referred to above?

Answer 12

1. Home Office v Dorset Yacht Co Ltd
2. Anns v Merton LBC
3. Hedley Byrne v Heller & Partners Ltd
4. Junior Brooks Co Ltd v Veitchi Co Ltd

Question 13

What were the details of the Dorset Yacht Case?

Answer 13

Some boys escaped from a weekend outing and damaged the plaintiffs yacht. Did the Prison Authorities owe a duty of care in respect of the actions of youth offenders in custody?

Question 14

What was the finding in the Dorset Yacht Case?

Answer 14

The House of Lords held by a majority of 4 to 1 that there was a duty of care owed by the Home Office to the plaintiff.

Question 15

How did the Dorset Yacht Case represent an expansion of post-Donoghue liability?

Answer 15

1. The wrong against the plaintiff had not been committed by the defendant or his employees but rather a third party - the boys - so liability must have been based upon an omission (to control the boys actions)
2. The defendant was a public body and was therefore subject to statutory and resource constraints

Question 16

What were the details of the Anns v Merton LBC case?

Answer 16

The Claimant alleged that the local authority had negligently failed to supervise the construction of a building, with the result that cracks had appeared in the walls caused by sinking foundations.

Question 17

What was the finding in the case of Anns?

Answer 17

Lord Wilberforce classified the harm suffered as ‘material physical’ damage (for which a duty of case could be owed) rather than pure economic loss (no duty of care) and therefore damages for the cost of repair were recoverable.

Question 18

How did the case of Anns contribute to the post-Donoghue expansion of liability?

Answer 18

Lord Wilberforce said in the Anns Case that - ‘[I]n order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist’.

Question 19

What did Lord Wilberforce suggest would be an appropriate test for a Duty of Care in the Anns Case?

Answer 19

He said - ‘the question has to be approached in two stages. First … whether, … there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former [defendant], carelessness on his part may be likely to cause damage to the latter … . Secondly, … whether there are any considerations which ought to negative, or to … limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise”

Question 20

Which case represented a return to ‘incrementalism’ or a constriction to post-Donoghue liability?

Answer 20

Hill v Chief Constable of West Yorkshire

Question 21

What were the details of the Hill v CCWY Case?

Answer 21

The Claimant’s daughter was killed by a serial killer, who had previously murdered a number of young women in the area. The Claimant claimed that the police owed a duty of care to her daughter to conduct their investigations with reasonable care.

Question 22

What was the finding of the Hill v CCWY Case?

Answer 22

There was said to be no duty of care, because this might lead police officers to act in a “detrimentally defensive” manner, it would require the courts to evaluate decisions beyond their expertise and competence, and it would be a wasteful diversion of public funds and manpower. Thus, this case broke from the typically expansive nature of post-Donoghue Cases and acted to constrict liability.