A more recent version of these Negligence Duty Of Care notes – written by Oxford students – is available here.
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NEGLIGENCE: GENERAL PRINCIPLES
McBride & Bagshaw (4th ed), ch 4
- 4 things C must show in case of negligence:
o Owed duty of care
Breached duty of care
Breach caused loss
At least one of the losses is actionable
- Negligence breach can be intentional (I negligently refrain from replacing a rotten floorboard deliberately hoping that my mother-in-law would injure herself on it)
- Negligence v. other torts
Battery: actionable per se - no need to show loss (but if careless and caused V to suffer loss, then both battery and negligence are available, usually negligence is preferred)
o False imprisonment: negligent false-imprisonment can only be negligence (Al-Kandari v Brown: solicitors (D)
under court order to keep husband's passport safe but
D carelessly allowed husband to obtain the passport and he kidnapped children)
o Negligence: overlap created in Spring v Guardian
Assurance where old firm gave unfair and horrible reference for C to new potential employer and suit of defamation would have failed, so invoked negligence instead
Breach of statutory duty: may give rise to action in tort in itself but if Parliament does not so intend, seems that
C is unable to sue in negligence because (per Lord
Hoffmann) a simple breach of statutory duty does not give rise to a common law duty of care
Private nuisance (protects owner's rights not to have his neighbours create/be aware of a risk to his land):
overlap eliminated by HL insistence that private nuisance does not apply to physical injury (eg. inhaling neighbor's smoke) so only negligence applies
Breach of contract: Henderson v Merrett Syndicaes Ltd created overlap by holding that if A breaches a contract with B to do something carefully, B would have an action in contract and tort
Kralj v McGrath: aggravated damages ('revenge'
damages to assuage C's anger) are never available
-Negligence = only tort where this is the case
In principle exemplary damages should be available if wrong is culpable enough and no criminal punishment
No precedent where injunction not to breach the duty of care has been issued
A. Duty of Care: Introduction.
McBride & Bagshaw (4th ed), ch 5
- In negligence claim, first thing that needs to be established =
duty of care
Types of duty
-According to what they require another to do
Take reasonable steps to ensure an outcome
Take reasonable care in an action
-Negative duty (requires D not to act in a certain way)
-According to what interests they protect (eg. a careless driver who crashes into bus shelter)
-Mental (for potential rescuers - mental scars)
-Physical (for people waiting at the shelter)
-Economic (for bus company)
-According to how they arise
-Foreseeable that action will cause harm
-Assumption of responsibility (not giving another bad advice)
o Duty-harm relationship
-Duty must be geared towards the particular kind of harm suffered
-Eg. Train driver carelessly de-rails so C
forgets to sell her shares and they plummet.
C cannot sue D because duty not to drive carelessly is geared towards physical harm,
not economic loss
-In cases where C sues for two independent harms, two duties of care must be shown
-Spartan Steel: D cut through power lines --
causing C to suffer property damage and loss to business because they couldn't work
- first harm recoverable but not second because of foreseeability leading to no duty of care
Duty of care and public policy
-Policy minimalists: duty of care should be determined without public policy in mind
-McLoughlin v O'Brian: Lord Scarman -
courts judge according to principle;
Parliament judges policy
-Policy maximalists: policy is always relevant to duty
-Hill v Chief Constable of West Yorkshire
(whether police owed duty to murder victim)
-Intermediate position: if everything else indicates no duty, policy doesn't justify imposing a duty; if everything else indicates duty, it would still be wrong to impose that duty if contrary to policy
Duty of care tests
Heaven v Pender: If A is placed in a situation with regards to B where any reasonable person would recognize that failure to use ordinary care and skill would endanger B, then a duty of care arises to use ordinary care and skill
Lord Atkin's 'neighbor principle': Must take reasonable care to avoid acts/omissions reasonably foreseen to cause danger to a neighbour (a person so closely and directly affected by my act that I should contemplate them while acting)
o Anns: 1) sufficient proximity gives rise to prima facie duty and 2) any negating/mitigating factors
Incremental test: Law should develop duty incrementally and by analogy to established categories rather than create new ones
Caparo: 1) foreseeability, 2) proximity and 3) "fair, just and reasonable" that law should impose a duty
Lower courts come across fewer and fewer novel cases so don't usually have to apply tests; SC not bound by own decisions, so tests are necessary
Fate of tests
Heaven v Pender and proximity test didn't serve much
use after donogue
Anns test rejected by Caparo and incremental test
Caparo now serves as authority of care factors
Reasonable foreseeability of harm
Reasonableness of D's action (court will not hold that A
owed B a duty to do x if it would be unreasonable for him to do it)
Act or omission (court far more willing to find duty in acts than omissions
Seriousness of harm (court more likely to find duty in cases of physical/property damage than pure economic loss)
Fairness (if finding a duty means A will be liable disproportionately for more than harm caused/degree of fault court will often not find duty)
Individual responsibility (court likely won't find duty if doing so would undermine individual's sense of responsibility by allowing A to blame B for A's own carelessness)
Divided loyalties (court likely not to find duty if doing so would undermine public body's loyalty to job in fear of litigation)
Wasted resources (sometimes finding a duty esp. with regards to public bodies encourages groundless litigation)
Novelty (the more novel a case, the less likely the court will accept it because 1) it won't act as legislator and 2)
just like Parliament courts can make mistakes)
Donoghue v Stevenson  AC 562 (especially Lord
Atkin); 20 MLR 1
Per Lord Atkin: A manufacturer who sells a product in the form of intended consumption with no possibility of intermediate examination, knowing that absence of reasonable care may endanger the consumer's life or property, owes a duty of care to the consumer.
Per Lord Atkin: "There must be, and is, a general conception of relations giving rise to a duty of care" Facts
C claimed that an opaque bottle of beer that D manufactured contained a rotting snail that she only noticed after consuming part of the drink and caused her a serious illness. Argued that, as manufacturer, D owed a duty of care to C to ensure that the drink contained no noxious substances, and that he had negligently breached that duty. D replied that he was, on these facts, not liable in law, and that there should be no trial.
Whether the manufacturer of a drink sold to a distributor that cannot be examined for defects by the distributor or consumer owes a duty of care to the consumer to take reasonable care to ensure that the drink is free from defects that might cause injury.
Allowed C's appeal so case could proceed to trial.
- English law has a n elaborate classification of duties regarding property
Real vs. personal property, further divided into ownership, occupation or control
Relationship between parties: manufacturer, salesman,
customer, tenant etc.
-Thus duty of care may exist where a case fits into a classification, but there are general principles for all liabilities
- There are in English law general conceptions of duty of care based on morals, but in practice these conceptions must not cover everyone, so legal limitations are placed:
o Must take "reasonable care to avoid acts or omissions"
likely to injure one's neighbour
-Definition of "neighbour" restricted through
"proximity" to any person "so closely and directly affected" by one's act that one ought reasonably to contemplate them being so affected while doing the act
- Heaven v Pender: founded upon principle that "proximity"
extends beyond physical proximity to cover those acts that directly affect the injured party
- In the present case: manufacturer negligently mixes a drink with poison that he knows will be consumed by the consumer and cannot be examined by the distributor or the consumer.
o If poisoned consumer has no remedy against manufacturer, it would represent a "grave defect in the law" and "contrary to principle" - he would also have no remedy against anyone else
There are other instances where manufacturers conceive their products to be used by people other than the ultimate purchaser (cleaning products, chocolate etc.) and there is a great social need that these people be protected
- Law does not view carelessness in the abstract: only in circumstances where there is a duty of care does carelessness become negligence in law
Standards of the reasonable man is used to decide which relations involve a duty of care
- In the present case any reasonable man would label D's action as careless, but does it extend to a duty of care?
o A manufacturer owes a duty of care not to carelessly convert a "wholesome and innocent" article into one dangerous to health
Sometimes said that liability arises only if a reasonable man could have foreseen and avoided the consequence:
in this case D did foresee that the article would be consumed by the public and the consequence alleged is not so remote as to be excluded
Present case is no different than a baker inadvertently mixing arsenic into his bread
Currently English civil law gives no redress to such a case (criminal charges available); this is wrong.
- Extent of responsibility:
o Responsibility ceases where control ceases (if harm caused by distributor, manufacturer not liable)
o If product can be examined by intermediary, then this is taken into account; if not, manufacturer's liability extends from control to consumption
Burden of proof on injured party
Lord Buckmaster (dissenting)
- Only two exceptions to principle that manufacturer's duty of
care does not give rise to action when consumer is injured because article was defective:
o Article was dangerous in itself
Defect was known to manufacturer
Majority decision misapplies to tort a doctrine applicable to sale and purchase
Dorset Yacht v Home Office  AC 1004
Custodians owe a duty of care to members of the public for damage caused by those under their care, to take reasonable care to prevent their escape, if such damage is a foreseeable consequence of escape (and damage caused is at a higher risk than the general risk of criminal damage).
Borstal trainees under the supervision of borstal officers escaped and boarded a yacht which collided with another yacht, causing damage. Yacht owner sued the Home Office for the amount of damage.
Whether the Home Office or the borstal officers owe a duty of care to members of the public for damage caused by those under their control.
- Home Office's case is that under no circumstances can the
Home Office owe a duty of care to the public to take care to prevent trainees from injuring their property. Three arguments:
o Virtually no authority
No liability for damage caused by another person of full age and not D's servant or acting on D's behalf
Public policy requires officers to be immune from such liabilities
- Rejects first argument: cites Donoghue v Stevenson
- Rejects second argument: Ground of liability is not the acts of the trainees, but the officers' carelessness in the knowledge that their carelessness may result in the trainees causing damage of the kind caused
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