1
Negligence
Table of contents
Duty of care 2
Omissions 3
Liability for the acts of 3rd parties 3
Public authorities 4
Nervous shock/psychiatric harm 6
Wrongful life/conception/birth 9
Breach of duty 10
What is the standard of care? 10
Professional defendants 12
Did the defendant meet the standard of care? 13
Damage, causation, remoteness 13
Damage 13
Causation 20
Factual causation 15
Tests 15
Loss of chance 19
Liability 20
Remoteness and scope of duty (legal causation) 20
Remoteness/foreseeability of damage 20
SAAMCO principle/scope of duty 21
Novus actus interveniens/chain of causation 22
Negligence and economic loss 24
Negligent statements and provision of services 24
Negligent damage to property 27
Relationship to contract 29
Contributory negligence 30
Exclusion 32
Volenti non fit injuria 32
Illegality (claimant’s or joint illegal enterprise) 33
Wider vs narrower illegality 34
Causation 34
Public policy 35
, 2
Negligence
In a negligence enquiry, there is a series of requirements to look for:
● Duty of care (in respect of the particular type of harm suffered)
● Breach of duty
● Causation and (lack of) remoteness
○ Factual causation (but for test)
○ Legal causation
○ Remoteness
○ Novus actus interveniens
● Actionable damage (see psychiatric illness and pure economic loss)
We also have to ask if there is a
● Defence
Duty of care
The correct approach, outlined in Robinson, is:
● Established category: apply existing precedents
○ Analogise to a pre-existing case with similar/same facts
○ Certain categories e.g. omissions have special rules
● Novel situation: reason incrementally, by analogy with existing precedents
○ If no precedents, use Caparo guidelines (Robinson v CC West Yorkshire Police)
What are the established categories?
● Positive act causing physical injury to person
● Positive act causing property damage
● Psychiatric injury (see below for special rules)
● Omissions (see below for special rules)
● Pure economic loss (see below for special rules)
The Donoghue ‘neighbour test’ is the general test for duty of care: a) reasonable foresight of
harm and b) a relationship of proximity
The Caparo guidelines are only used for novel scenarios, where the duty is novel and there is
no precedent:
● Reasonable foresight of harm
● Relationship of proximity
● Fair, just, and reasonable to impose a duty
○ If a duty of care would undermine some important public interest, it would fail this
portion of the test (Robinson v CC West Yorkshire Police)
The Caparo guidelines should only be used in entirely novel situations, so the starting point for
duty of care is to look to existing precedent. The question is not just whether there is a duty of
care at all, but whether the scope of the duty is wide enough to cover the scenario in question
, 3
- Robinson v CC West Yorkshire Police: the Caparo guidelines are not to be used where
there is already an analogous case
- The Caparo guidelines are only used in 3 situations:
- Genuinely novel situations, where established precedent does not
provide an answer
- Where the court is asked to depart from authority
- Incremental development of the case law
Omissions
General rule: there is no liability for omissions (Stovin v Wise)
Exceptions:
● The defendant has control over/responsibility for the claimant
● The defendant has assumed responsibility for the claimant’s wellbeing/safety (e.g.
Mitchell v Glasgow CC), by words or conduct
● The defendant has created or adopted a risk
- Mitchell v Glasgow CC: a duty of care to take positive steps to warn a person of a risk
posed by a 3rd party arises only where the defendant has (by words or conduct)
assumed responsibility for the person at risk (Lord Scott)
- The Caparo guidelines were applied; it wouldn't be fair/just/reasonable to impose
liability for omissions to warn (Lord Hope)
- E.g. in the instant case the council, as landlord of both the 3rd party and the
person at risk, had not assumed responsibility for the safety of the person at risk
(Lord Scott)
- See Home Office v Dorset Yacht Co below
- Lord Reed in N v Poole: there has to be an undertaking that reasonable care will be
taken; that undertaking is relied upon; that undertaking can be either express or implied
- Implied undertaking usually based on foreseeable reliance
Liability for the acts of 3rd parties
General rule: there is no duty of care to prevent other people causing damage/liability for the
acts of 3rd parties
Exceptions:
● Where there is a special relationship between the defendant and the 3rd party (Home
Office v Dorset Yacht Co)
● Where there is a special relationship between the defendant and the claimant (CN v
Poole BC)
- Home Office v Dorset Yacht Co: for there to be liability for the acts of 3rd parties, the
act of the 3rd party must have been ‘very likely’ to happen due to the defendant’s
behavior
, 4
- The ‘very likely’ criteria may be met where there is a supervisory relationship
between the defendant and the 3rd party, and the harm-causing conduct of the
3rd party was the natural and probable result of the failure of supervision
- E.g. in the instant case, the actions of the boys following the negligent
supervision by the Home Office officers was the very thing that was ‘likely to
happen’ should that supervision fail. The Home Office officers had a duty to take
reasonable care in supervising the boys, so as to prevent the Yacht Company
suffering loss
- CN v Poole BC: the council was not liable for the acts of 3rd party abusive neighbours
who lived next door to where the council had placed the claimants, because the council
had not brought about the risk of abuse, nor did it have control over the 3rd party
who represented the risk
Public authorities
General rule: public bodies are liable in negligence according to the sme principles applicable to
private individuals (Stovin v Wise). This means that:
● Public bodies do owe a duty of care for acts which, if done by a private individual, would
give rise to a duty of care
● The omissions principle applies to public bodies
● A public body doesn't owe a duty of care just because it has a statutory power or duty
● Policy considerations are only relevant in novel situations (e.g. Kent v Griffiths) or
challenges to established authority
Statutory/public law power
General rule: even when a statute only creates a public law power for a public body to act, the
public body can be liable for negligence if there is also a common law duty to act, based on the
facts of the case
- Stovin v Wise: a public body’s statutory/public law power does not, in itself, give rise
to a duty of care
- The minimum conditions for imposing a duty of care based on a public law power
are
- a) it would have been irrational in the circumstances not to have
exercised the power (so that there was effectively a public law duty to
act), and
- b) there are ‘exceptional grounds’ for holding that the statute requires
compensation to be paid to people who suffer due to the non-exercise of
the power
- Kent v Griffiths: the ambulance service owed a duty of care to respond promptly and
care for the patient; the duty of care arose once the service accepted the emergency call
and agreed to attend
- NB the situation with the ambulance service was distinguishable from the
police and the fire service because the police/fire service protect the general
public; while ambulance services, as part of the health service, are more akin to
Negligence
Table of contents
Duty of care 2
Omissions 3
Liability for the acts of 3rd parties 3
Public authorities 4
Nervous shock/psychiatric harm 6
Wrongful life/conception/birth 9
Breach of duty 10
What is the standard of care? 10
Professional defendants 12
Did the defendant meet the standard of care? 13
Damage, causation, remoteness 13
Damage 13
Causation 20
Factual causation 15
Tests 15
Loss of chance 19
Liability 20
Remoteness and scope of duty (legal causation) 20
Remoteness/foreseeability of damage 20
SAAMCO principle/scope of duty 21
Novus actus interveniens/chain of causation 22
Negligence and economic loss 24
Negligent statements and provision of services 24
Negligent damage to property 27
Relationship to contract 29
Contributory negligence 30
Exclusion 32
Volenti non fit injuria 32
Illegality (claimant’s or joint illegal enterprise) 33
Wider vs narrower illegality 34
Causation 34
Public policy 35
, 2
Negligence
In a negligence enquiry, there is a series of requirements to look for:
● Duty of care (in respect of the particular type of harm suffered)
● Breach of duty
● Causation and (lack of) remoteness
○ Factual causation (but for test)
○ Legal causation
○ Remoteness
○ Novus actus interveniens
● Actionable damage (see psychiatric illness and pure economic loss)
We also have to ask if there is a
● Defence
Duty of care
The correct approach, outlined in Robinson, is:
● Established category: apply existing precedents
○ Analogise to a pre-existing case with similar/same facts
○ Certain categories e.g. omissions have special rules
● Novel situation: reason incrementally, by analogy with existing precedents
○ If no precedents, use Caparo guidelines (Robinson v CC West Yorkshire Police)
What are the established categories?
● Positive act causing physical injury to person
● Positive act causing property damage
● Psychiatric injury (see below for special rules)
● Omissions (see below for special rules)
● Pure economic loss (see below for special rules)
The Donoghue ‘neighbour test’ is the general test for duty of care: a) reasonable foresight of
harm and b) a relationship of proximity
The Caparo guidelines are only used for novel scenarios, where the duty is novel and there is
no precedent:
● Reasonable foresight of harm
● Relationship of proximity
● Fair, just, and reasonable to impose a duty
○ If a duty of care would undermine some important public interest, it would fail this
portion of the test (Robinson v CC West Yorkshire Police)
The Caparo guidelines should only be used in entirely novel situations, so the starting point for
duty of care is to look to existing precedent. The question is not just whether there is a duty of
care at all, but whether the scope of the duty is wide enough to cover the scenario in question
, 3
- Robinson v CC West Yorkshire Police: the Caparo guidelines are not to be used where
there is already an analogous case
- The Caparo guidelines are only used in 3 situations:
- Genuinely novel situations, where established precedent does not
provide an answer
- Where the court is asked to depart from authority
- Incremental development of the case law
Omissions
General rule: there is no liability for omissions (Stovin v Wise)
Exceptions:
● The defendant has control over/responsibility for the claimant
● The defendant has assumed responsibility for the claimant’s wellbeing/safety (e.g.
Mitchell v Glasgow CC), by words or conduct
● The defendant has created or adopted a risk
- Mitchell v Glasgow CC: a duty of care to take positive steps to warn a person of a risk
posed by a 3rd party arises only where the defendant has (by words or conduct)
assumed responsibility for the person at risk (Lord Scott)
- The Caparo guidelines were applied; it wouldn't be fair/just/reasonable to impose
liability for omissions to warn (Lord Hope)
- E.g. in the instant case the council, as landlord of both the 3rd party and the
person at risk, had not assumed responsibility for the safety of the person at risk
(Lord Scott)
- See Home Office v Dorset Yacht Co below
- Lord Reed in N v Poole: there has to be an undertaking that reasonable care will be
taken; that undertaking is relied upon; that undertaking can be either express or implied
- Implied undertaking usually based on foreseeable reliance
Liability for the acts of 3rd parties
General rule: there is no duty of care to prevent other people causing damage/liability for the
acts of 3rd parties
Exceptions:
● Where there is a special relationship between the defendant and the 3rd party (Home
Office v Dorset Yacht Co)
● Where there is a special relationship between the defendant and the claimant (CN v
Poole BC)
- Home Office v Dorset Yacht Co: for there to be liability for the acts of 3rd parties, the
act of the 3rd party must have been ‘very likely’ to happen due to the defendant’s
behavior
, 4
- The ‘very likely’ criteria may be met where there is a supervisory relationship
between the defendant and the 3rd party, and the harm-causing conduct of the
3rd party was the natural and probable result of the failure of supervision
- E.g. in the instant case, the actions of the boys following the negligent
supervision by the Home Office officers was the very thing that was ‘likely to
happen’ should that supervision fail. The Home Office officers had a duty to take
reasonable care in supervising the boys, so as to prevent the Yacht Company
suffering loss
- CN v Poole BC: the council was not liable for the acts of 3rd party abusive neighbours
who lived next door to where the council had placed the claimants, because the council
had not brought about the risk of abuse, nor did it have control over the 3rd party
who represented the risk
Public authorities
General rule: public bodies are liable in negligence according to the sme principles applicable to
private individuals (Stovin v Wise). This means that:
● Public bodies do owe a duty of care for acts which, if done by a private individual, would
give rise to a duty of care
● The omissions principle applies to public bodies
● A public body doesn't owe a duty of care just because it has a statutory power or duty
● Policy considerations are only relevant in novel situations (e.g. Kent v Griffiths) or
challenges to established authority
Statutory/public law power
General rule: even when a statute only creates a public law power for a public body to act, the
public body can be liable for negligence if there is also a common law duty to act, based on the
facts of the case
- Stovin v Wise: a public body’s statutory/public law power does not, in itself, give rise
to a duty of care
- The minimum conditions for imposing a duty of care based on a public law power
are
- a) it would have been irrational in the circumstances not to have
exercised the power (so that there was effectively a public law duty to
act), and
- b) there are ‘exceptional grounds’ for holding that the statute requires
compensation to be paid to people who suffer due to the non-exercise of
the power
- Kent v Griffiths: the ambulance service owed a duty of care to respond promptly and
care for the patient; the duty of care arose once the service accepted the emergency call
and agreed to attend
- NB the situation with the ambulance service was distinguishable from the
police and the fire service because the police/fire service protect the general
public; while ambulance services, as part of the health service, are more akin to
