The tort of negligence

Question 1

The tort of negligence

Answer 1

The defendant will be found liable in respect of this tort where the following conditions are present:

• Duty of care
• Breach of that duty
• Causation
• Remoteness of damage

Question 2

Fixed duties of care

Negligence

Answer 2

There are some situations where a duty of care can be assumed to exist:

• Parent - child
• Doctor - patient (‘Bolam test’, s. Bolam v Friern Hospital Management Committee [1957], Bolitho v City and Hackney HA [1998])
• Employer - employee (s. Wilsons and Clyde Coal Ltd v English [1938])
• School - students (s. Woodland v Swimming Teachers Association [2013])
• Occupier of premises - lawful visitors / trespassers (Occupier’s Liability Act 1957)
• Manufacturer/retailer - consumer (s. Donoghue v Stevenson (1932))
• Motorist to other road users? (s. Bourhill v Young [1943])
• Lawyer - client (s. Moy v Pettman Smith (A Firm) [2005])

Question 3

The test for duty of care

Negligence

Answer 3

Now the test for duty of care set out by the House of Lords in the case Donoghue v Stevenson (1932) comprises of two elements:

• Foreseeability (‘eggshell skull rule’, s. Robinson v Post Office (1974))
• Proximity (s. Sutradhar v NERC [2006])

Caparo Industries plc v Dickman [1990] introduced an additional requirement, which is only to be applied in novel cases (‘fair, just and reasonable’ test, incrementalism) as reaffirmed by Reed LJ inRobinson v Chief Constable of West Yorkshire Police (2018).

Generally, a duty will easily be established in cases where the direct act of the defendant caused physical damage to the person or to property of the claimant.

Question 4

Assumption of responsibility

Negligence

Answer 4

A duty of care may be found where there was a voluntary assumption of responsibility by the claimant (s. Burgess v Lejonvarn [2017]). This test is particularly relevant to cases of liability for misstatements and for economic loss.

Question 5

Rules excluding a duty of care

Negligence

Answer 5

Under certain circumstances the courts have been hesitant to find a duty of care:

• Public authorities are generally exempt from liability in negligence, though there may be exceptions **(s. Hill v Chief Constable of West Yorkshire [1989], Robinson v Chief Constable of West Yorkshire Police (2018)).
• Claims in negligence for ‘wrongful life’ are excluded under the Congenital Disabilities Act 1976 (to be distinguished from claims for ‘wrongful conception’ or ‘wrongful birth’, s. McFarlane v Tayside Health Board (1999))

Question 6

Causation

Negligence

Answer 6

There must be a direct and unbroken chain of causation between the defendant’s breach of duty and the damage incurred by the claimant (s. Barnett v Chelsea and Kensington Hospital Management Committee [1968])

Question 7

Remoteness of damage

Negligence

Answer 7

The word damage is to be given its ordinary meaning, which is “to make a thing worse” (s. D&F Estates Ltd v Church Commissioners for England (1989)).

The remoteness of damage is assessed by reference to two factors:

• The specific type of damage must have been a reasonably foreseeable consequence of the defendant’s acts (s. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) (No.1) [1961]).
• The type of damage must be legally recognised (s. Bradford Corporation v Pickles (1895)).

In the assessment of the remoteness of damages policy considerations may play an important role (s. Lamb v Camden LBC (1981)).