Principles/Test/Formalities Caselaw Statute Positive considerations

Negative considerations

NEGLIGENCE - Skip to page 10 for summary

1. Duty of Care:

Negligence is the breach of a duty of care, owed by the

defendant to the claimant, which results in damage to the
claimant that is not ‘too remote’.

-Donoghue v Stevenson [1932] AC 562 Scotland: Claimant

got his friend a float, but there was a snail in it and she got
sick. No claim in contract law, claimant didn't have a contract
with the producer cause he didn't buy it…..

So sued as a tort instead -> producer did have a duty of care (should have inspected it;
defective product) (bottle was opaque, so cafe couldn’t see it and be liable)

Established the Neighbor Principle: ‘You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbor.’

Neighbor includes: ‘persons who are so closely and directly 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 omissions which are called in question’ Lord Atkin

-Dorset Yacht v Home Office [1970] AC 1004- Established the Two Stage Test post
prisoners escaping and damaging some yachts.
1) Neighbor Principle
2) Is there any reason for there not to be a duty of care (reasonable exclusions)?

-Caparo v Dickman (1990) - Established the Three Stage Test. Case to do with shares and
fraud.
1) Could the defendant have reasonably foreseen that his or her negligence would harm the
claimant?
2) Is there a sufficiently proximate relationship between the claimant and the defendant?
3) Is it fair, just and reasonable to impose a duty?

-Proximity is based on the following:

(i) the relationship between the defendant and the claimant; e.g. whether the defendant
and the claimant were personally known to each other prior to the alleged tort or whether
there was an economic relationship between the parties (Osman v Ferguson [1993] 4 All ER
344- Creepy school teacher that shot the kid and his father; Everett v Comojo Ltd UK [2011]
EWCA Civ 13)

(ii) whether there was an ‘assumption of responsibility’ by the defendant in relation to the
alleged tort (Kent v Griffiths [2001] QB 36- ambulance took too long to show up)

(iii) the relevant type of harm (Vowles v Evans [2003] 1 WLR 1607- Rugby player sued
ref) (it will be difficult to establish proximity in relation to types of harm that judges are slow
to recognise as being worthy of compensation)

(iv) whether the claimant is part of a class of people who were, or could have been,
affected by the relevant harm, and, if so, the size of the class - NO flood gates (Hill v Chief
Constable of West Yorkshire [1989] AC 53- Yorkshire Ripper’s last victim)

Duty of Care- Public Authorities

In Hill v Chief Constable of West Yorkshire (1989), The House of Lords said public policy
could protect liability and listed some factors:
1) Fear of ‘defensive policing’ (the police being more concerned with warding off legal
action than with doing their job).
2) There was no need for tort liability as a spur to make the police do their job, as ‘from time
to time they make mistakes … but it is not to be doubted that they apply their best endeavours
to the performance of [their duty]’ (per Lord Keith [1989] AC 53, 63).
3) The appropriate bodies to monitor police efficiency were the bodies appointed for that
purpose, rather than the courts.
4) Defending court cases would lead to undesirable diversion of police resources from their
job of suppressing crime.

• However, it has long been clear that public authorities do not have blanket immunity
in tort: see e.g. Hill v Chief Constable of West Yorkshire [1989]

-X v Bedfordshire CC [1995] 3 WLR 155 (County Council)

Two points: Failing to stop child abuse, failing to take them into care. Also, Didn't provide
good education for children with special needs. they had the power to provide these services
Abuse: Claim failed (not fair, just, reasonable). Might make them more cautious- don’t want
them to be too worried that they don’t do their job properly
Education: The statute didn't say they had to do so, but if they did provide those services
anyways, then they had a duty of care.

2. Standard of Care

The courts THEN apply an ‘objective’ standard of care test, if a duty IS FOUND. This
means that D’s own view of the reasonableness of his conduct is irrelevant. It also seems to
entail that the courts should ignore certain characteristics of D. Thus, D cannot plead an
impulsive or a careless disposition.

Crucial Factors here:

1) Foreseeability: ‘what could reasonably have been expected of the defendant ought not be
affected by hindsight or by subsequent developments in technological skill or scientific
knowledge’. Like in Roe v Minister of Health (1954)- anaesthetics got damaged due to
broken containers and people didn’t know that could happen at the time.

2) Magnitude of the Risk: Likelihood of harm and severity of damage- such as in Bolton v
Stone (1951) where a cricket ball hit a lady from so far away that it was not likely. In Harris
v Perry (2008) a child got hurt on a bouncy castle but this was held as the parents were told to
keep an eye out.

3) Practicality of Precautions: Like in Latimer v AEC (1953) the defendant put up signs in his
factory saying it was slippery (a precaution) and the claimant slipped.

4) Potential utility of the defendant’s conduct: Watt v Hertfordshire [1954] – tried to save a
life by doing some strange stuff with a fire truck, and because they’d acted to save a life and
with such urgency, the fact that the way they did it was weird was not considered.

5) Responsibility: Social Action, Responsibility and Heroism Act 2015, s. 2: The court must
have regard to whether the person, in carrying out the activity in the course of which the
alleged negligence or breach of statutory duty occurred, demonstrated a predominantly
responsible approach towards protecting the safety or other interests of others.’

6) Heroism: Social Action, Responsibility and Heroism Act 2015, s. 4: ‘The court must have
regard to whether the alleged negligence or breach of statutory duty occurred when the
person was acting heroically by intervening in an emergency to assist an individual in danger.

7) Common Practice: The defendant has acted in accordance with common or general
practice of others in a similar situation that will be strong evidence that he has not been
negligent … It is not, however, conclusive. The court may find that a common practice is
itself negligent’ Bolitho v City and Hackney HA (1997) – a number of doctors said they
wouldn’t have used a particular method to save a child (common practice.)

Special Circumstances:

a) ‘[a] person who professes a special skill is not judged by the standard of the man on the
Clapham omnibus, but by the standard of his peers’.
Bolam v Friern Hospital Management Committee (1957): The House of Lords formulated the
Bolam test: "a medical professional is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of medical men skilled in that
particular art . . . Putting it the other way round, a man is not negligent, if he is acting in
accordance with such a practice, merely because there is a body of opinion who would take a
contrary view." This is the electro-therapy case.

b) The standard of care applied when assessing negligence by children is such care as can
reasonably be expected of an ordinary child of the same age as the defendant. In Mullin v
Richards (1998) one girl blinded another with a ruler, but was not held to be in breach of duty
of care as she was just a kid.

Proving Negligence: Sometimes the courts may apply the maxim res ipsa loquitur (latin: the
thing speaks for itself).

3. Causation

Claimants must satisfy the “but for” test- To demonstrate causation in tort law, the claimant
must establish that the loss they have suffered was caused by the defendant. In most cases a
simple application of the 'but for' test will resolve the question of causation in tort law. Ie 'but
for' the defendant's actions, would the claimant have suffered the loss? If yes, the defendant is
not liable. If no, the defendant is liable.

Barnett v. Chelsea and Kensington Hospital Management Committee (1969): Night

watchman poisoned by arsenic, went to hospital because he felt ill, doctors said he wasn't
really sick and sent him home and he died. Breach of duty because he wasn't examined -
claim failed because the watchman probably would have died even if he did get treatment
(there was a breach, but it didn't cause the death.)

The usual rule is that it is for the claimant to prove, on the balance of probabilities, that the
defendant’s breach caused the damage. The claim is determined on all-or-nothing basis.

Hoston v East Berkshire (1987)

13 year old boy fell out of tree and hurt his hip. Went to hospital and wasn't treated well for
5 days and became permanently disabled.
Was this the negligence the cause? Medical evidence showed that with proper treatment,
there was a 25% chance that he would have been ok. Judge gave 25% of the compensation to
the family. Went to appeal, and the claim failed entirely because of the ‘but for’ test.

Usual rule does not always apply:

Cook v Lewis [1952] 1 DLR 1. Two hunters negligently discharged their shotguns
simultaneously in the vicinity of the claimant, who was struck by a single pellet. The
claimant could not identify which hunter shot him. The Supreme Court of Canada held that,
in the circumstances, both defendants must be found liable.

Sindell v Abbott Laboratories 26 Cal 3d 588 (1980). The claimant was injured by exposure to
a drug (‘DES’). A number of manufacturers had produced and marketed DES. The claimant
could not prove which manufacturer had produced the specific DES to which she had been
exposed. The Supreme Court of California applied a ‘market share’ rule: the claimant sue
could a number of manufacturers who might have produced the specific DES that caused her
injury, who would each be liable according to their market share of the product.

Exceptions to Rule

Baker v Willoughby (1970) - Baker was run over by the defendant while crossing the road,
sued him for negligence. Suffers from a second injury (shot) and the leg had to be amputated
before the claim was settled. Court said they would ignore the amputation and that the
defendant had to pay for the leg damage even for the time after the amputation!!!

McGhee/Fairchild Principle: If the claimants could demonstrate that one employer had
materially increased the risk of the harm occurring they were entitled to claim full
compensation from that one employer.

McGhee v NCB [1972] 3 All ER 1008- Single claimant had been employed by the defendant
(worked in hot and dusty conditions), used to cycle to and from work, making him hotter.
Developed a skin condition over time, sued his employers, saying that they should have
provided a shower at work. Had to show that the breach caused the damage- showed that it
would have reduced the risk, but not that it would have completely gotten rid of it. BUT- won
the case - said they were being fair and that there was a good chance it would have reduced
the risk a lot

Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32- Didn't think it was fair to stick
to the ‘but for’ test. Number of different works were exposed to something due to negligence
of employers (a number of them) - got cancer. Shown that even one strand of this could cause
cancer workers couldn't point just to one particular employer for this. Ruled that they could
sue even though the but for test wasn't satisfy. Thought that the injustice that would arise
from denying the claims was greater than the injustice against the defendants.

Gregg v Scott [2005] UKHL 2- C tries to be an exception to the ‘but for’ test. C found a lump
under his arm, GP negligently misdiagnosed it as benign. Lump didn't go away, went to a
different doctor, found out it was cancerous, and was pretty advanced by this time. Sued the
initial doctor, but even if he had been correctly diagnosed, he would have died in 10 years
anyways.Claimant wanted to be an exception to the test. But, they followed the test here, so
the claim failed - didn't want to make too many exceptions to the test. - FLOODGATES

4. Remoteness

Even where it is clear that the defendant’s breach of a legal duty caused the claimant’s
damage, the court may feel that it would not be appropriate to hold the defendant liable for
the damage; e.g. because the injury was of an unexpected type. If so, the court may hold that
the damage is ‘too remote’.

Third Party:

The courts are generally unwilling to hold a defendant responsible for the act(s) of a third
party who took advantage of the defendant’s negligence to commit a tort against the claimant.
An act of a third party may break the ‘chain of causation’ and thereby render the claimant’s
loss ‘too remote’ where the act of the third party is, morally speaking, much more
blameworthy than the defendant’s act, or where the third party’s act is unlikely.

The Sivand [1998] 2 Lloyd’s Rep 97, 104, per Evans LJ: When the independent act
of a third party is properly regarded as the effective cause of damage … then that is
because the intervening act was independent… This… is a question of fact, to be
answered on a common sense basis… although considerations both of negligence
and reasonable foreseeability may be relevant.

Lamb v Camden London Borough Council [1981] QB 625- Claimant owned

property. The council through their negligence damaged their water piper, and it
flooded the property. Tenants had to move out; squatters moved in and caused more
damage. Council argued that they were only liable for the flood damage, but the
claimant argued that they set off a chain of events that led to the squatter damage.
Claim failed cause the squatter’s damage was too remote (also said that he should have had
insurance against them — not best reason). Judge criticised for saying that he had an
‘instinctive feeling’ that the damage was too remote (also partially cause the squatters did that
on purpose - squatters more to blame, but no point in suing them as they have no money) —
vague.

Knightly v Johns [1982] 1 WLR 349- Defendant, through his own negligence, overturned his
car in a tunnel with one-way traffic. Police officer forgot to stop traffic from coming in. Then
he made another mistake in trying to get the claimants to drive back, but one was hit by a
motorcyclist coming in the tunnel.
Claim against the initial driver who started the sequence of events and another one against the
police officer in charge. Court said the officer broke the chain of causation by being
negligent twice. Acts more likely to break the chain than omissions. Negligent
mistakes/actions are more likely to break the chain too.

Intervening Act of the Claimant: The claimant’s unreasonable conduct may break the
‘chain of causation’ and relieve the defendant from responsibility for damage suffered after
the intervening act.

McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 House of Lords
case.
Claimant injured at work, defendants admitted they were liable for this initial injury
(something about the leg), but not very serious. Went to look a flat with a steep flight of
stairs, fell down the stairs (maybe due to the weakness of the leg) while holding young
daughter. Managed to throw the daughter back, and jumped down the stairs cause he didn't
want to fall on his head, broke his leg.
Found that it was the claimant’s fault for the way he fell down his stairs. If it was steep and
had no hand railings and was holding daughter- could be foreseeable if his leg had been
hurting for a while (other adults were there too so they could have helped with daughter)

Where D’s tort interfered with the claimant’s mental stability or mental health, subsequent
activity by claimant will not necessarily be judged by ordinary standards of reasonableness,
but may be judged by more generous standards of ‘foreseeability’.

Meah v McCreamer[1985] 1 All ER 367- Claimant was a passenger in the defendants car, he
was drunk and crashed the car. Claimant’s personality changed due to this crash (proof for it)
- then committed violent crimes (sexual attacks on 2 women and convicted for it), sentenced
to life imprisonment. Was able to show that before the crash he wasn’t a violent criminal.
Sued for initial pain from crash and for compensation for being in prison. Approved the
claim, but the defendant claimed that the compensation should be lowered due to the fact that
the claimant had free board in prison, compensation did reflect that.
In criminal law, claimant is responsible for what happened, but in tort he isn't

Meah v McCreamer (No 2) [1986] 1 All ER 943- The two women the claimant had attacked
sued him after he got his compensation as he had money now. Claimant went back to court
and sued the driver again for the compensation again that he would have to give the women.
Went to the High Court but it failed because he had behaved unreasonably. Doesn't seem
consistent (even though its the same judge). One explanation could be that there wasn’t a
strong argument for break in causation in first case, but was there in second (second one more
likely to be stronger precedent nowadays).

5. THEN Foreseeable Type of Harm?

If the claimant’s harm is not to be ‘too remote’, it must be of a kind, type or class that was
reasonably foreseeable as a result of the defendant’s negligence. You had to have seen it
coming.

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No
1)) [1961] AC 388- Defendants, through negligence, allowed large quantities of oil to escape.
The oil spread throughout the harbor, including an area owned by the claimants. Acted like a
wick and caught fire when there was welding done. A lot of fire damage. Was this
foreseeable? Court said pollution damage was foreseeable but the fire wasn’t (distinguishing
b/t different types of property damage).

If the type of harm suffered was foreseeable, the precise sequence of events by which the
injury was brought about need not have been.

Hughes v Lord Advocate [1963] AC 837- Left manhole open on street, covered it with a tent
and put lights around it so people would be aware of it. Claimant (8 years old) and his uncle
were wandering around and started playing with the lights, knocked one into the manhole. It
exploded because there was gas there. Claimants said that the explosion wasn’t reasonably
foreseeable but what led to it was. Playing with the lamps that could burn people so that was
foreseeable, were burnt by the explosion, so doesn't matter how it happened.
If the type of damage suffered was reasonably foreseeable, the defendant will be liable for it
even if the actual damage is far greater in extent than could have been foreseen.

Smith v Leech Brain and Co Ltd [1962] 2 QB 405- Smith was burned by splashing molten
metal. Burning caused cancer that was pre-malignant (pre-disposed to be more likely to have
cancer), died.
Similar to Blaue in criminal. High Court said that ‘you take your victim as you find them’ -
extent of injury wasn't reasonably foreseeable but type of it was.

6. Defences to Negligence Claims

There are three main defences to an otherwise successful claim:

(1) contributory negligence,
(2) consent (volenti non fit injuria: ‘no injury is done to one who consents’)
(3) illegality (ex turpi causa non oritur actio: ‘an action in law cannot be founded on an illegal
or immoral act’).

Contributory Negligence: Law Reform (Contributory Negligence) Act 1945, s 1(1): Where
any person suffers damage as the result partly of his own fault and partly of the fault of any
other person or persons, a claim in respect of that damage shall not be defeated by reason of
the fault of the person suffering the damage, but the damages recoverable in respect thereof
shall be reduced to such extent as the court thinks just and equitable having regard to the
claimant’s share in the responsibility for the damage.

In order to use the defence of contributory negligence, the defendant has to prove (a) that the
claimant was at fault and (b) that the claimant’s fault was a cause of the damage.

Froom v Butcher (1976) – Road accident where claimant wasn’t wearing a seatbelt. Lord
Denning said that a reasonable person should have been wearing a seatbelt. Compensation
was reduced by 25%; it’d have been higher if he was wearing the seatbelt and still got
injured.

Gough v Thorne (1966) – Three young kids were crossing the street and a car hit them. At
trial the judge held that the young girl was 1/3 to blame for the incident and reduced her
damages accordingly under the Law Reform (Contributory Negligence) Act 1945. But Lord
Denning said she was a kid and had no contributory negligence here, simply crossed a street
when asked to.

Badger v Ministry of Defence (2005) – Badger had contracted lung cancer from Ministry of
Defence (employer) but continued to smoke. The court decided that from the 1970s onwards,
Badger was at fault for continuing to smoke- the government started producing warnings
about smoking risks at this point.
Damages were reduced by 20%.

Consent: The defence of consent reflects the common sense notion that ‘[o]ne who has
invited or assented to an act being done towards him cannot, when he suffers from it,
complain of it as a wrong’ (Smith v Baker [1891] AC 325, 360, per Lord Herschell). An
assumption of risk may be either express or implied.

Baker v TE Hopkins [1959]- Dr Baker went down a well filled with fumes to rescue some
idiots who went down there despite being told not to. Dr. Baker was trying to rescue them so
he wasn’t being reckless.

ICI v Shatwell [1965]- Some brothers had disobeyed their employer (ICI)’s warnings about
not using short-wire and got hurt. It was their fault. They had no claim here when they tried
to sue ICI.

Legislation regulates the extent to which a defendant can use consent as a defence- a) Unfair
Contract Terms Act 1977, ss 1 and 2- business to business contracts and consumer to
consumer contracts- no person can use any contract or notice to restrict his or her liability for
death or personal injury relating to negligence; Consumer Rights Act (2015), s. 65 and 62-
business to consumer transactions
b) Road Traffic Act 1988, s 149

Illegality/Immorality: The courts have often said that no action may be founded upon an
immoral or an illegal act. However, it is difficult to predict when the courts will apply the
illegality defence.

Revill v Newbery (1996) – Mr Newbery shot Revill when he tried to break into his shed. The
degree of force used here, according to the Court of Appeal, was unreasonable. The Court
found that the defendant was negligent in shooting his gun. The Court reduced damages by
2/3rds, but allowed the Claimant to receive some money.

Pitts v Hunt (1990)- The defendant and plaintiff were on a bike, drunk. Defendant died in
the accident and plaintiff was left disabled. In the circumstances the plaintiff could not
recover; he played a full and active part in encouraging the young rider to commit offences
which, if a death other than that of the young rider himself had occurred, would have
amounted to manslaughter by the commission of a dangerous act.

Joyce v O’Brien (2013) EWCA Civ 546- The Claimant and first Defendant were together
stealing some ladders. The Claimant fell from the getaway vehicle as they were fleeing the
scene and sustained serious injuries. He brought an action in negligence against his co-
conspirator and the insurer of the getaway vehicle.

The Court of Appeal held that while the Claimant might not have been injured but for the
negligence of the First Defendant, since the reckless driving which caused his injury was
within the scope of contemplated risks which the Claimant took when he entered a criminal
joint enterprise with the First Defendant, his injury was the consequence of his own criminal
conduct and as such he could not recover damages.

Structure of negligence problem question

1. Apply Caparo to establish duty (Unless case of the same facts has been used) - Could the
defendant have reasonably foreseen this ? sufficient proximate relationship? (relationship?
Osman v Ferguson/assumption of responsibility? Kent v Griffiths/ relevant harm? Vowles v
Evans /big class size? Hill v Chief Constable of West Yorkshire) Is it fair, just and
reasonable to impose a duty? (probably not if its a public authority…but a case involving
children may sway it X v Bedfordshire CC)

2. Objective standard of care test - (foreseeable? Roe v Minister of Health /high magnitude
of risk? Bolton v Stone /any practical precautions taken? Latimer v AEC /potential utilty of
negligent act? Watt v Hertfordshire /were they trying to be a hero? Heroism Act 2015/would
others have acted the same? Bolitho v City and Hackney HA ) - Exceptions: high standard
expected for skilled professionals Bolam v Friern Hospital /lower for negligent children
Mullin v Richards

3. The ‘But-For’ test establishing causation -> did on the

balance of probabilities, the defendant’s breach caused the
damage ? Hoston v East Berkshire Exceptions: Shoot outs?
both are liable. Cook v Lewis Uncertain? Sue all potential
damagers. Sindell v Abbott Laboratories Employers?
Ooo….McGhee/Fairchild Principle. Only have to prove they
materially added to the RISK . Wide scope McGhee v NCB

4. Remoteness of damage -> Did a third party intervene? Lamb

v Camden London / Did the claimant do something stupid after to damage themselves?
McKew v Holland & Hannen & Cubitts (This will most likely break the chain of causation if
its an ACT, omissions generally do not count) Exceptions: did the tort effect the claimants
mental state, which then lead to the claimant doing an act to damage themselves/others?
Judge on foreseeability only not ‘reasonable assumption of remoteness’. Narrowed scope
Meah v McCreamer

5. Was the damage foreseeble? (If actual damage was more extencive than foreseeable still
counts) Hughes v Lord Advocate

6. Defences of defendent: contributory negligence - was the claimant at fault? AND was
this fault a cause of the damage? Froom v Butcher/Gough v Thorne

7. Did claimant consent? ICI v Shatwell

8. Was the claimant in pursuit of an illegal or immoral act? (Relatively weak defence/courts
rarely apply) Pitts v Hunt