TUTOR LED WORKSHOP 2

PART ONE
NEGLIGENCE – INTRODUCTION TO
NEGLIGENCE

Essential Reading

K.Horsey & E.Rackley, Tort Law (7th Ed, OUP 2021) - Chapter 2

Learning Outcome for this Workshop

Students will be able to:

 Understand the historical developments of negligence.
 Understand the basic elements of negligence.

1. INTRODUCTION

 Largest area of Tort Law.

More claims are brought in negligence than in any other
area of tort.
Debate: Are we part of the ‘Compensation Culture’?!
The ‘Where there’s a blame, there’s a claim’ Culture?!

 In layman terms, a failure to take proper care over

something.

 In legal terms, a link between the defendant’s

wrongful behaviour, and what should have been
foreseen.

An accident or injury which is the fault of someone other

than the injured person.

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 The tort of negligence provides a remedy where injury or
loss is caused to the injured party by the wrongdoer’s
failure to keep to a legal duty to take reasonable
(Donoghue v Stevenson [1932]).

 Remedy is usually damages.

2. INJURY / HARM

 In any event, the claimant must show that harm has been
caused. There must be injury. This can be in the form of
either:
o Physical injury.
o Psychiatric harm.
o Economic loss.

 Caution – The injury/harm must be one that is legally

recognised.

‘The world is full of harm for which the law furnishes no

remedy’
(Lord Rodger in D v East Berkshire Community NHS
Trust [2005]).

3. ORIGINS

 Contract Law - Prior to Donoghue v Stevenson [1932]

(see below), generally speaking, an individual owed a duty
of care to another only in situations where they had
specifically agreed to do so – usually through a contract

 The general principle of negligence - origins from

Donoghue v Stevenson [1932] AC 562 (HL).
 Landmark decision - Relatively modern. 1930’s.
 A duty of care outside of the contractual relationship.
 Expansion of the consumer goods market.
 Recourse for consumers against manufacturers.

In August 1928, Mrs Donoghue’s friend bought her a

ginger-beer from a cafe in Paisley. She consumed
about half of the bottle, which was made of dark
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 opaque glass, when the remainder of the contents
was poured into a tumbler. At this point, the
decomposed remains of a snail floated out causing
her alleged shock and severe gastro-enteritis.

Mrs Donoghue was not able to claim through breach

of contract: she was not party to any contract. (Her
friend who purchased the ginger-beer was the party
to contract, not Mrs Donoghue.) Therefore, Mrs
Donoghue issued proceedings against Stevenson, the
manufacture. The case went all the way up to the
House of Lords.

 This landmark case also established the important

Neighbour Principle.

`The rule that you are to love your neighbour becomes in

law, you must not injure your neighbour; and the lawyer's
question, who is my neighbour? receives a restricted
reply. 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 contemplation as being so
affected when I am directing my mind to the acts or
omissions which are called in question.'
(per Lord Atkin in Donoghue v Stevenson (1932) A.C.
562).

 However, due to ‘Compensation Culture’ claims in the

1980’s / 1990’s, the Neighbour Principle was reformulated
in Caparo Industries plc v Dickman [1990] 2 AC 605
(HL).

This case concerns liability of an auditor for financial

losses suffered by investors.

o A more restrictive approach to claims:

 Reasonable foresight of harm.
 Sufficient proximity of relationship.

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  That it is fair, just and reasonable to
impose a duty.

4. THE ROLE OF INSURANCE

 Increase in liability insurance.

 Discuss - Is it worth suing an uninsured defendant?
 Subrogation.

5. THE ELEMENTS OF NEGLIGENCE

1. Duty of Care
2. Breach of duty
3. Causation and remoteness

All of the elements are required!

*Caution* - Remember that a defendant may still be able to

raise a defence to defeat the claim entirely (or at least
reduce damages).

1) DUTY OF CARE
 There must be a legal duty of care.
 Usually quite straightforward to establish. The law
has already provided for certain situations.
 Duty to give a reasonable standard of care.

2) BREACH OF DUTY
 Where there is harm/injury as a result of failing to
show reasonable care.

3) CAUSATION AND REMOTENESS

 The harm/injury must have been caused by the
defendant’s breach of their duty.
 Causal link between the harm/injury and the
defendant’s fault.
 The loss cannot be too remote.

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6. DEFENCES

 Can the defendant raise any partial or full defences?

o Voluntarily assuming the risk (volenti).
o Illegality.
o Contributory negligence.
o Defences are covered in detail in Part Two of the
module.

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 TUTOR LED WORKSHOP 2
PART TWO
NEGLIGENCE – DUTY OF CARE – BASIC
PRINCIPLES, ACTS & OMISSIONS

Essential Reading

K.Horsey & E.Rackley, Tort Law (7th Ed, OUP 2021) -

Chapter 3 and pages 78-84 of Chapter 4.

Learning Outcome for this Workshop

Students will be able to:
 understand and explain the concept of duty of care
and its role in determining liability in negligence
generally.

INTRODUCTION

 Duty of care - One of the key ingredients to a negligence

claim.
 Concerns the relationship between the claimant and the
defendant.
 Is carelessness enough?

 Establishing a duty

Thoroughly review the flow diagram

(Establishing a duty of care in new cases)
on page 75 of the Core Text.

1. CASE LAW – DEVELOPMENTS

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  Donoghue v Stevenson [1932]
 Neighbour principle.

‘You must take reasonable care to avoid acts or

omissions which you can reasonable 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
reasonable 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, Donoghue v Stevenson [1932] at

580)

 Caution – Note that the principles set out in

Donoghue v Stevenson have developed over time.
They are merely the origin. (Caparo [1990] is the
most accurate test in the modern era.)

 Anns v Merton London Borough Council [1978].

 The neighbour principle was refined – Lord
Wilberforce.

o 'The position has now been reached that in order to

establish that a duty of care arises in a particular
situation, it is not necessary to bring the facts of the
situation within those of previous situations in which
a duty of care has been held to exist. Rather the
question has to be approached in two stages.

First one has to ask whether, as between the alleged

wrongdoer and the person who has suffered damage
there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable
contemplation of the former, carelessness on his part
may be likely to cause damage to the latter, in which
case a prima facie duty of care arises.

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 Secondly, if the first question is answered
affirmatively, it is necessary to consider whether
there are any considerations which ought to
negative, or to reduce or limit the scope of the duty
or the class of person to whom it is owed or the
damage to which a breach of it may give rise.'

(Lord Wilberforce in Anns v Merton London Borough

Council (1977) 2 All ER 492)

 In short:
o The defendant owes the claimant a duty to take
reasonable care;
o Unless there is some policy reason why no duty
should be owed.

 Yuen Kun-Yeu v A-G of Hong Kong (1988) AC

175
o Expansion of negligence claims in the 1970’s /
1980’s as a result of Anns.
o The test in Anns was therefore rejected in Yuen
Kun-Yeu.

 Murphy v Brentwood DC (1991) UKHL 2

o Overruled Anns.

 Caparo v Dickman (1990) UKHL 2

o The basic neighbour principle was reformed in
this landmark case.

 Facts of the case:

A firm of accountants wrote an audit report

about a firm. Shareholders (Caparo) relied upon
that report and bought shares in the firm as a
result. However, it was later found that the
results of the report had misrepresented the
profits of the firm, in turn causing a loss for the
shareholders. The appellant shareholders
(Caparo) argued that the accountants owed a

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 duty of care when producing an audit report
required by statute.

Held: No duty of care had arisen in relation to

existing or potential shareholders. (The only
duty of care the auditor`s owed was to the
governance of the firm.)

 Caparo - The 3-Stage Test

o 1) Reasonable foresight of harm

o 2) Sufficient proximity of relationship
o 3) That it is fair, just and reasonable to impose a
duty.

‘In addition to the foreseeability of damage, necessary

ingredients in any situation giving rise to a duty of care
are that there exists between the party owing the duty
and the party to whom it is owed a relationship
characterised by the law as one of “proximity” or
“neighbourhood” and that the situation should be one
in which the court considers it fair, just and reasonable
that the law should impose a duty of a given scope on
the one party for the benefit of the other.’ (Lord Bridge
in Caparo v Dickman (1990) UKHL 2)

2. WHERE DOES THIS LEAVE US?

o Remember – It is only a small minority of cases

where the courts will need to determine
whether a duty of care exists.
o Caparo no longer determines whether there is a
duty of care in new cases.
o See the flow diagram at page 75 of the Core
Text for clarification.

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  Thoroughly review the flow diagram
(Establishing a duty of care in new cases) on
page 75 of the Core Text.

3. OMISSIONS

 Failing to act.
 For example, Graham, a 63 year old man, is at the
bowling alley. He has a heart attack and, despite the
bowling alley being very busy, no one comes to assist
him.
 A child is drowning in a pond. A person sees him and
does nothing to help.

 The law does not recognise a duty of care owed to

the whole world to take positive action to prevent
harm.

 General rule – You can only be liable for things that

you do, not the things you do not do.
If you see someone in danger, you are not legally
obliged to assist.

Smith v Littlewoods Organisations Ltd [1987] 1

AC 241 (HL) – ‘the common law does not impose
liability for what are called pure omissions’. (Lord
Goff).

 Exception to the rule - However, when someone does

not do something that they ought to have done, a
duty of care might be found. Particularly if there is a
special relationship. (A duty to act can be positively
imposed.)

 The US case of Osterlind v Hill [1928]. The

claimant rented a canoe from Hill and took it out on
the water. The canoe capsized and Hill, who was a
strong swimmer, sat on the shore and did nothing.
The claimant drowned.

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 Held: Hill was not liable. Despite the fact he had
rented out the canoe, there was no special
relationship, and therefore no duty of care.

 Special relationship examples:

o School teacher and pupil
o Parent and child
o Occupier and visitor
o Prison officer and prisoner
o Employer and employee

 Going back to this example … A child is drowning in a

pond. A person sees him and does nothing to help.
Does the situation change if that person is the child’s
parent or school teacher?

4. ACTS OF THIRD PARTIES

 There is no general duty of care in relation to the

acts of third parties (unless there is a special
relationship with that third party).
 Smith v Littlewoods Organisations Ltd [1987] 1
AC 241 (HL)

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