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Introduction to Negligence and Duty of Care
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Notes from a lecture introducing the concepts of duty of care and negligence
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Tort LectureWeek 2 - Intro to Negligence and Duty of Care
ELEMENTS OF A NEGLIGENCE CLAIM
➔ Duty + Breach + Causation in Law & Causation in Fact = Negligence
➔ Duty is the first thing that must be established
➔ A breach of this duty must then be found
➔ Then establish cause
◆ the breach of that duty was the cause of the harm that the claimant suffered
DUTY OF CARE
➔ The law of negligence, and the approach to duty of care in particular, has been subject to change over time
➔ Donoghue v Stevenson is the case that, arguably, gave birth to the modern law of negligence
➔ Prior to Donoghue - recognised pockets of liability but no broad principle imposing a duty of care
DONOGHUE V STEVENSON [1932] AC 562
➔ Claimants friend bought her a drink (ginger beer in a black bottle)
➔ C drank from the bottle then poured it into a class and a decomposed snail fell out
➔ No contractual relationship between C and the cafe owner as C had not bought her own drink - at the time, this meant
that C could not seek compensation. Before this case, you could only claim where there was a contractual relationship
➔ Scottish case
THE NEIGHBOUR PRINCIPLE
◆ Two Ratios emerged from Donoghue:
● Narrow - Manufacturers owe a duty of care to end consumers in the absence of a contractual
relationship
● Wide - Neighbour principle
● This principle forms the basis of the modern law of negligence
○ ‘You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. [FORESEEABILITY] / 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 affected when I
am directing my mind to the acts and omissions which are called in question [PROXIMITY]’
Per Lord Atkin, 580
➔ Two key elements of duty:
◆ Reasonable foreseeability
◆ Proximity
● The connection between the person acting and the person that suffers harm
REASONABLE FORESEEABILITY
➔ Objective test -
◆ the court asks not what the defendant actually foresaw but what a reasonable person could have
been expected to foresee
, LEGAL PROXIMITY
➔ Not literally your neighbour or someone you know/live close to
➔ Anyone who is so closely affected by your actions that you should have them in mind when acting
◆ For example, road users - you don’t know other road users, but they are directly affected by the
manner in which you drive
DUTY OF CARE AFTER DONOGHUE
➔ Initially, the neighbour principle wasn’t strictly adopted
➔ A series of cases expanded upon the narrower ratio, widening the pockets of liability that existed in negligence
◆ Home Office v Dorset Yacht
● Group of boys had been detained at a youth detention centre known as Borstal
● Were working on an island as part of the detention, being supervised by a group of officers
● The boys escaped the island on the claimant’s yacht, the yacht was damaged
● Claim brought against the Home Office for damages
● Did the Home Office owe the claimant a duty of care?
● Neighbour principle received significant recognition in this case, becoming the foundation for
establishing a duty of care
ANNS V LONDON BOROUGH OF MERTON [1978] AC 728
➔ ‘First one has to ask whether, as between the alleged wrongdoer and as 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. /
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
damages to which a breach of it may give rise’ Lord Wilderforce [751-2]
➔ Established a two stage test for determining whether a duty of care existed
◆ Did not have a test of the existence of the duty of care before
➔ Built upon the neighbour principle
➔ Stage 1: Proximity + Reasonable foreseeability
➔ Stage 2: Policy
◆ Is there any reason we should not impose a duty? Is there any policy concern?
WHAT IS POLICY?
➔ A broad term used to refer to the wider social/political/economic merits of establishing a legal precedent
➔ Common examples:
◆ The floodgates argument
◆ Avoiding crushing liability
➔ The courts ask what the consequences would be for society at large if they impose liability in a given situation
➔ Tort law is not here to crush defendants
DUTY OF CATER AFTER ANNS
➔ The Anns made it fairly difficult to claim that a duty of care was not owed - led to an expansive approach to duty
➔ Junior Books v Veitchi [1983]
◆ the defendants were subcontractors hired to lay a concrete floor
◆ concrete cracked
◆ claimants bought a claim in negligence and sought damages
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