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LAW OF TORT- LESSON 1 2012

1.0 NEGLIGENCE: DUTY OF CARE

Negligence means carelessness, but in 1934 Lord Wright said:

in strict legal analysis, means more than heedless or careless conduct,

whether in omission or commission: it properly connotes the complex

concept o duty, breach and damages thereby su!ered by the person to

whom the duty was owing"#$ Lochgelly Iron and Coal Co V c!llan

"1#$%& AC 1 a' ()

%his sentence encapsulates the traditional tripartite structure o

negligence as a tort" &n order to success in negligence action, the

claimant must pro'e that:$

%he deendant owed him a duty o care

%he deendant was in breach o that duty

%he claimant su!ered damage, which was caused by that breach o

duty( and

%hat the damage was not too remote

What must e'ery claimant pro'e in a negligence action)

*inding a general test

+ number o attempts ha'e been made to expound such a general test"

eore 193-, there was no recogni.ed general test or determining

whether a duty existed in circumstances which had not pre'iously come

beore a court" +lthough the rapid speed o change brought about by the

&ndustrial /e'olution in the 19thcentury made such a test necessary, the

dominance o contract law at that time meant that the de'elopment o

tort was subdued" +n early attempt to de'elop a test occurred inHeaven

v Pender[18830, but the most amous attempt came in Donoghue V

Stevenson1

1.1.1 The Ne*gh+o!r ,r*nc*-le

&n the /ation o the ase innDonoghue v Stevenson, Lord +t2in states

his amous neighbor principle test as a de'ice to determine when a

duty o care is owed"

you must take reasonable care to avoid acts or omission which you can

reasonably forsee would be likely to inure your neighbor ! who then " in

law is my neighbor# $he answer seems to be % &ersons who are so

11932 AC 562

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closely and directly a'ected by my act that ( ought to have them in

contem&lation as being so a'ected when ( am directing my mind to the

acts or omission which are called in )uestion!*

%his statement o legal principle orms the basis or modern law o

negligence" &t is an attempt to pro'ide a test which both explains why

duties o care ha'e been recogni.ed in the past and enables 5udges with

situations in the uture no'el "

%he case was important in two respects

*irst, by a ma5ority, the 6ouse o Lords recogni.ed a new relationship as

gi'ing rise to a duty o care , that between manuacturers and the

ultimate consumers o manuactured products7 ginger beer8" %his issometimes called the narrow rule in onoghue ' te'enson: it still

sur'i'es but has in practice been superseded by a new 2ind o liability

established in the onsumer ;rotection +ct 19

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Yeun Kun Yeu v Attorney General for Hong Kong [1988] and

Murphy v Brentwood D!tr"t #oun"l[199$]

Ane o the criticism o Lord Wilberorce#s two$stage test was that inappeared to enable the claimant to establish a prima acie duty o care

'ery easily by reerence to oreseability o harm" &t could then be argued

that the second stage presented the deendant with the tas2 o producing

policy reasons to con'ince the 5udge to re5ect or limit that duty" +lthough

the word policy is not one which Lord Wilberorce used in his statement

o the test, is usually regarded as implicit"

1.1.$ The Three/'age 'e/': Fore/ea+*l*'y -ro2*3*'y and 45a*r 6!/'

and rea/ona+le7

%he test is now stated in this orm" %he claimant has to show some three

things i there is to be a duty o care:

&t was reasonably oreseeable that a person in the claimant#s

position would be in5ured"

%here was su!icient proximity between the parties

&t is air , 5ust and reasonable to impose liability"

%his three$tage B%est was gi'en the highest 5udicial support in 0a&aro

(ndustries &lc v Dickman3

1!3!1 2oreseability and &roimity

&t is clear that proximity ad oreseability are essential ingredients o the

test " what is meant by these terms) +re they di!erent or merely

interchangeable terms used to describe the same concept)

*oreseability means that the deendant should ha'e oreseen some

damages to the claimant at the time o his alleged negligent act or

omission" What is important here is that the claimant must pro'e thatdamage to him was oreseeable" Negligence does not exist in the air"

ee

ourhill ' Coung D19430

E'ans and +nother ' FowlesD-GG30

utradhar ' Natural En'ironment /esearch ounncil D-GG30

1.1.% An al'erna'*e 'e/': A//!3-'*on o5 Re/-on/*+*l*'y

3[1989] ! 653 at 678-68"

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+n alternati'e test has been de'eloped , namely whether there had been

a 'oluntary assumption o responsibility by the deendant or the

claimant" %his test is particularly used in cases o liability or omission,

or mis$statements and or economic loss"

1.( F!nc'*on o5 'he D!'y Conce-'

%raditionally the duty concept has been seen as ser'ing two separate

unction:

7i8 &s there a duty at the abstract le'el 7the notional duty or duty in

law8: e"g" does a motorist owe a duty o care to other road users)Ar do barristers owe a duty o care to their clients)7ii8 &s the particular claimant within the scope o the duty o care

7 duty in act or the problem o the unoreseeable claimant8: e"g"

was this particular road user owed a duty by this particular

motorist

1.(.1 D!'*e/ o5 La8yer/

%he ourts are concerned that certain tas2 which ha'e a high 'alue to

society as a whole may not be carried out e!iciently i the threat o a ci'il

action or negligence is always present" &mmunities rom liability or

negligence must be 'ery careully delineated because all members o

society will su!er is that wor2 or s2ill is no longer a'ailable to us"

&n 4ondel v 5orsley 719H98, the 6ouse o Lords held that a barrister

could not be sued by his client in respect o the conduct o the case in a

court and the immunity extended to some o the preliminary wor2

connected with the court proceedings" %he latter point was urther

clari?ed in Saif +li v -itchell D19

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%he circumstances in which a duty is owed and the scope o the duty are

considered by the 6ouse o Lords in Joy ' ;ettman mith 7a ?rm8 "K

1.(.( D!'y o5 Care 'o Un+orn Ch*ldren

+ doubt as to whether the common law recogni.ed a duty o care to

unborn children in respect o damages done beore birth was resol'ed by

statute: the ongenital isabilities 7i'il Liability8 +ct 19=H" %he +ct

originally en'isaged a child being born with disabilities as the result o

damages to the mother7 or sometimes the ather8 occurring during

pregnancy or sometimes beore conception" %ypical examples were

physical in5uries to a pregnant woman in , say, a car crash, or the side

e!ects o drugs" &t had to be amended in the light o ad'ancing medical

technology to deal with damage to stored sperm or eggs: 6uman

*ertili.ation and Embryology +ct 199G"

%hese acts impose liability only where the damages caused the disability

rom which the baby su!ers when it is born" %hey do not allow an action

where the negligence caused the baby to be born, but did not cause the

disabilities" + doctor may, or example , negligently carry out a

sterili.ation procedure on either a man or a woman, or may ail to

recommend an abortion: any child born as the result o this negligence

has no claim"

%his ethical reason do not apply where the claim is by the ather or

mother 7or both8 who ha'e to bring up the child" *or a time the courts

seemed li2ely to allow such claims" %he ethical issues 7together with a

wide$ranging re'iew o how these issues are decided round the world8

are discussed:

Where the child is healthy and is being raised in a lo'ing amily$

-cfarlane v $ayside Health /oard"H

Where the child is disabled" Parkinson v St 6ames and Seacroft7niversity Hos&ital HS $rust"=

Where the child is healthy but the mother did not want children

because o her own disability! 4ees v Darlington -emorial Hos&ital

HS $rust

cls 106- lesson 1

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