, Tort Law:
Unit 1: Negligence (Duty of Care and Breach)
Negligence = carelessness
● A Tort of Negligence = a breach of a legal duty of care, owed to a claimant, that results
in harm to the claimant, undesired by the defendant
There are 3 elements which a claimant has to prove in negligence cases:
1) Did the defendant owe the claimant a duty of care?
2) Was the defendant in breach of that duty?
3) Did the defendant’s breach of duty cause damage/harm to the claimant?
Duty of Care:
● A defendant will be liable, only if they are under a legal duty to take care for the person
who is injured
1) Is it an established duty station?
Established Duty Station = where it is already clear from case law that a duty of care is owed
(usually when there is a relationship between the parties)
Case Law Examples:
a. Doctor and Patient (Cassidy v Ministry of Health)
b. Employer and Employee (Wilsons & Clyde v English)
c. Road users to other road users and pedestrians (Nettleship v Weston)
d. Occupier to visitors (Occupiers’ Liability Act 1957)
,e. Occupier to trespasser (Occupiers’ Liability Act 1984)
f. Manufacturer to end user (Donoghue v Stevenson)
g. Where a defendant’s actions have created a dangerous situation where it is reasonably foreseeable
that someone may attempt a rescue, the defendant owes a duty of care to the rescuer (Baker TE
Hopkins and Son Ltd [1959])
2) Or is it a novel duty station?
→ When the court has to decide whether or a not a duty of care should be imposed
‘The Neighbour Principle’ (Donoghue v Stevenson)
● Donoghue v Stevenson [1932] sets out the test for establishing if a duty of care
exists in a novel situation
Case Overview:
○ Donoghue drank half a ginger beer, before realising there were the remains of a
decomposed snail inside. Her friend had bought her the drink so she had no
contractual relationship with the seller (which would have fallen under the
established duty of care)
○ This led to the creation of the ‘neighbour principle’
The Neighbour Principle:
● ‘You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour’
● Legal definition of ‘neighbour’ = persons who are so closely and directly affected
by my act that I ought reasonably to have them in my contemplation as being so
affected when I am directing my mind to the acts or omissions which are called in
question’
, → The Caparo Test
● The neighbour principle was redefined in Caparo Industries plc v Dickman [1990].
The HoL set out a three part test to determine if a duty is owed in novel situations:
1) Reasonable Foresight of Harm to the Claimant:
Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant?
○ In Bourhill v Young [1943]: it was found that harm to the claimant was not reasonably
foreseeable. Claimant sued the estate of the dead motorcyclist whose negligence had
caused a car crash for the shock and miscarriage that she suffered as a result of witnessing
the crash
- Whilst the motorcyclist owed a duty of care to the car it hit in the accident (damage
to the driver of a vehicle on the road is foreseeable). Claimant was not a foreseeable
victim so no duty of care
2) Sufficient Proximity of Relationship between the Claimant and
Defendant
3) It’s fair, just and reasonable to impose a duty:
○ In Marc Rich v Bishop Rock Marine Co Ltd [1996]: the claimant’s valuable cargo was lost at
sea when the ship carrying it sank. Made a claim against a ship classification society, NKK
who had inspected the ship and deemed it satisfactory
- BUT was an independent and non-profit making entity, created and operating for
the sole purpose of promoting the safety of lives and ships at sea
- Satisfied the first 2 conditions but court found it would not be fair, just and
reasonable to impose a duty
, No duty for an omission to act
General Rule:
● The general rule is that you do not owe a duty to the world for your omissions (i.e. for doing
nothing to prevent harm)
● E.g. there is no duty to rescue someone whom you see in danger → if you do rescue someone, you
are liable in Negligence only if you positively make the situation worse
○ Stovin v Wise [1996]: the Highway Authority knew that a road junction was dangerous but
failed to exercise its powers to reduce the danger → accident occurred
- Held that the authority owed no duty of care to road-users to alleviate the danger
Exceptions - Special Relationship rule:
Where there is a special relationship, one party may have a duty to take positive action to
safeguard another
● There is a duty to act positively in tort if a person has some sort of power or control over
the other person or object (e.g. a driving instructor isn’t just a regular passenger)
Case Law example:
○ Home Office v Dorset Yacht Co Ltd [1970] → a group of incarcerated young offenders
are left unsupervised by the officers in charge and board a yacht where they collide
with another causing damages
- A duty of care is owed by the Home Office → liable for the negligent acts of
its employees
- Was due to an omission act from the offices but they had control over the
boys
○ Barrett v Ministry of Defence CA 1994: Barret, naval airman on remote base in
Norway was very drunk and collapsed unconscious → friends found him and put
him to bed
- Continued to check on him. Went to check later and found he had died by
choking on his vomit
, - His widow sued the Ministry of Defence as vicariously liable for the
negligence of those who looked after him
- Court of Appeal found that as soon as his friends found him, they assumed
responsibility → Barrett wasn’t solely responsible for his own death
BUT: Policy Considerations:
● In some cases of negligently caused harm, the courts declined to find that the
defendant owed the claimant a duty to take care, because of policy:
⥤ The floodgates argument, deterrence, resources (e.g. no insurance), public
benefit (e.g. safety), or upholding the law
● Public body liability is the only area where the type of defendant is taken into
account in terms of whether recovery is appropriate
- Often felt that political, moral and economic reasons justify the non-imposition
of a private law duty on public bodies
- Making public bodies pay compensation would be through tax-payer money
● A general exclusionary rule operates, often preventing a duty of care from arising:
a) Where the actions of the public body are not direct
b) Do not cause these ‘easily recognised’ harms
c) Do not make the situation worse
○ East Suffolk Rivers Catchment Board v Kent [1941]: public bodies
would be liable only for the negligent exercise of statutory power
where doing so had made matters worse
The Police:
Duty of Care to Public at Large:
○ Hill v Chief Constable of West Yorkshire [1989]: police were exonerated from liability after
failing to properly investigate previous murderers in an area where
the claimants daughter was then murdered
, - Held that the police do not owe a duty of care to any individual, but the public at
large
- If the duty had been imposed, the duty owed to the public would be too wide →
every time the police failed to apprehend a criminal, they would be liable in a civil
claim
- Obiter comments by Lord Keith: ‘there is another reason why an action for
damages in negligence should not lie against the police in circumstances such as
those of the present case, and that is public policy’
➢ The general duty of public duty which motivates police forces
won’t be appreciably reinforced by the imposition of a duty of care
➢ May lead to the exercise of a function being carried on in a detrimentally
defensive frame of mind
➢ Significant diversion of police manpower and attention from suppression of
crime to defending negligence cases
Unless they have assumed responsibility:
○ Kirkham v Chief Constable of Greater Manchester Police [1990]: after arresting Kirkham
(who had recently attempted suicide twice), police failed to pass on the information to the
prison authorities (despite Kirkham’s wife telling them). Kirkham committed suicide
whilst on remand
- Here, the police had assumed a responsibility towards the prisoner → proximity
- If a prisoner dies or is injured in custody there is an enquiry → carry a lot
of public attention → courts may take public view into account
Or harm a third party:
○ Robinson v Chief Constable of West Yorkshire Police [2018]
- Supreme Court held that where a third party is injured or has suffered damages due
to the negligence of a police officer, the police would be
liable (if the damage or injury caused to a third party was reasonably foreseeable)
- Here, if the police have themselves created the damage, no
immunity
, Fire Service Ambulance Service
Duty of Care to Public at Large: Duty of Care to Individuals to Respond:
○ Capital & Counties plc v Hampshire ○ Kent v Griffiths [2001] CA: The
County Council and other cases [1997]: ambulance service owes a duty of care
the Court of Appeal said that the fire to individuals in certain circumstances
service owes no private duty of care to & has a duty to respond to an
individuals calling in an emergency emergency call.
- There is no obligation to - Distinguished from fire service
respond and no obligation to as an extension of the National
take care having Health Service who have a duty
done so, unless there is a of care towards its patients
negligent positive act on the - Seen as providing a service to
part of the fire service which individuals, rather than public
makes the situation worse than at large
it would have been if the
fire service failed to respond
Coastguard: Education Authorities:
Duty of Care to Public at Large: ○ Phelps v Hillingdon London Borough
○ OLL Ltd v Secretary of State for Council and other cases [2001]: an
Transport [1997]: the coastguard owes authority owes a duty of care in respect
no duty to respond to calls from people of the provision of an education
in trouble at sea, only a duty not to appropriate to a child’s needs and there
make the situation worse when they do where this fails to materialise due to
the negligence of a teacher or other
employee, the authority could be liable
according to the principles of vicarious
liability
Human Rights as an avenue for tortious redress?
,Where the defendant is a public body, the HRA may provide a direct alternative to a claim in
court
● Provision 6 of the HRA provides that it is unlawful for a public authority to act in a way
which is incompatible with a Convention right
● Under the HRA, a victim is able to bring proceedings against the public authority and the
court can provide remedy for such a breach
● Courts are also considered private bodies so they must also ensure that their judgements
are compatible with Convention rights → allows human rights to have an indirect
influence on the development of the law of tort
Case Law Example:
○ Osman v UK [1999] ECtHR: human rights violations occurred when UK domestic courts
refused to consider their negligence claim against the police
- Whilst the ECHR found that the decision was accurate, the way the decision had
been made was a violation of Article 6 rights
- Decided that if there was serious negligence alleged against a public body’s acts or
omissions, coupled with serious harm attributable to that negligence, a case
against a public body should not necessarily be struck on policy grounds
- Overturned in Z and others v UK [2001] and TP and KM v UK [2001] ECtHR
Breach of Duty of Care:
The defendant must be at fault by failing to come up to the standard required by law for
fulfilling the duty.
Two stage test:
a) The court will determine the standard that the defendant was expected to reach
b) The court will then assess whether the defendant has breached that standard
The Standard of a Reasonable Person
This is a question of law → assessment of how the defendant ought to have behaved
, ● The defendant must meet the standard of ‘the reasonable person’ → i.e. take as much care
as would be taken by an average person
→ Blyth v Birmingham Waterworks (1856): Alderson B → ‘Negligence is the
omission to do something which a reasonable man ... would do, or doing
something which a prudent and reasonable man would not do’
● It is an objective and impersonal test
○ Glasgow Corp v Muir [1943]: Lord MacMilan - ‘the issue to be decided is not ‘what
did this defendant foresee? But what would a reasonable person have foreseen in
the particular circumstances’
Exceptions
→ There are 3 special standards where it is considered unfair to measure the defendant’s
conduct against that of a reasonable person:
1) The Skilled Defendant:
Instead of being compared to a reasonable person, they are compared to a reasonable person with
the same degree of skill
Case Law Examples:
○ Bolam v Friern Hospital Management Committee [1957]: doctors must meet the standard of
their profession.
- Found that the defendant would not be in breach of their duty, as long
as their actions were supported by a reasonable body of professional
opinion
- This applies to anyone who exercises a special skill
○ In Bolitho v City and Hackney Health Authority [1997]: the court acknowledged that in
some cases it cannot be demonstrated that the body of opinion relied on by the defendant
is reasonable or responsible → it will always be the court to make the final decision on
whether a skilled defendant acted reasonably
