Negligence
For a PQ – who can sue whom, in what tort, for what damage, and are there any defences?
→ Identity legal issue and resolve it (speak about each element of tort negligence equally)
Elements of the tort of negligence:
1) Actionable damage (not actual)
2) Duty of care
3) Breach of duty
4) Causation
o Factual causation
o Legal causation / remoteness
1) Damage
Oberdiek J ‘Philosophical Issues in Tort Law’ (2008) - Though damage is considered the ‘last element of a negligence claim
temporally speaking, it really is the tail that wags the dog…’
Cane.- ‘to provide guidance to individuals about how they may and ought to behave in their interactions with others [and] to
provide protection for certain interests of individuals.’
Physical Harm
Limitation Act 1980 s.38(1) In this Act, unless the context otherwise requires—
- “personal injuries” includes any disease and any impairment of a person’s physical or mental condition, and “injury” and
cognate expressions shall be construed accordingly;
Gregg v Scott
• Lady Hale said ‘damage is the gist of negligence’ – we have to go back to square 1 and look at damage.
• Patient presented lump to doctor being concerned that it was cancerous but doctor said it was just benine – turns out it
wasn’t and a few months later a second doctor confirmed that it was cancerous. As a result of time delay between
confirmed diagnosis and getting treatment the potential for claimant’s recovery were significantly decreased to 25%.
• Doctor did not cause cancer (harm) as it was already there – he simply lessened process of success (court had decide
whether that constituted harm? – it was deemed not to)
Rothwell v Chemical and Insulating Co
• Employer/employee tight duty of care. Employee diagnosed with pleuroplax (thickening of lungs caused by exposure to
asbestos) – claimed that anxiety arose that one day it would develop into something more severe.
• Lord Hoffman – need proof of damage. Tort compensates for a loss to put you back into position before you suffered
wrong. If, however, harm is disease of pleuroplax (unsure as to side effects of having condition in the future therefore
cannot put back into that position.
• Confirmed diagnosis of anxiety / depression that developed was confirmed as an actionable harm
1
, • Issue with duty of care of psychological harm
The De Minimis Non Curat Lex rule (point of change regarding physical harm) – has to be more than trivial (can’t award for
something that is harmless)
Property Damage
Lord Brandon in The Aliakmon stated that to claim you must own property
Yearworth v North Bristol NHS Trust (2010)
• Once man started chemotherapy there is a high chance he can become sterile so can cryogenically freeze sperm for
future (men signed up). This freezer was negligibly maintained and they all thawed out. Brought action against trust as
suffered psychological trauma
• not enough – tried for personal injury but LJ Judge said it wouldn’t work and that it ‘would be a fiction to hold that
damage to a substance generated by a person’s body, inflicted after its removal for storage purposes, constituted a
bodily or ‘personal injury’ to him’
• tried for damage to property and succeeded
Hinz v Berry
• husband and wife pregnant with ninth child went on summer vacation to Kent. (‘bluebell season in Kent’ said Denning).
Wife picked bluebells with wife and husband stays there. Hinz comes round corner with Jaguar and tyre blows and hiits
caravan and kills husband and badly injures children. Wife hears it and goes to help
• woman goes from strong, loving, warm mother to a woman who has suicidal ideologies and becomes quite angry
towards children therefore changes personas a lot dramatically (at time he was sole bread-winner and she was a stay at
home wife who she now needed to support children)
• granted £4,000 – insurance company appealed saying it was too much
• Denning said he can’t award for general emotional distress as not enough for tort. He said the £4,000 was justified for
the morbid depression she suffered.
→ emotional v psychiatric damage (law says psychiatric damage must be diagnosed to be sufficient)
2) Duty of Care
Establishing duty of care:
Donoghue v Stevenson 1932 – articulation of when liability should be imposed. Not a test.
Friend pours ginger beer into ice cream and a decomposing snail comes out in second round of pouring. Claimant went into
shock and suffered severe gastronomitus (damage). Mrs Donoghue was a porper (had to declare to get legal aid)
• Bottle dark so could not inspect it.
• Manufacturer and seller of good there was a contract. Seller sells to friend. Friend gives to Mrs Donoghue.
• It is therefore Mrs Donoghue’s friend who can sue café owner, however she did not suffer any harm. (no privity of
contract here – no relationship). Therefore the only person who can be sued is manufacturer but had not been
considered.
• Extends law to make neighbourhood principle. Lord Atkin states boundaries of it.
o You must take reasonable care to avoid acts or omissions which you can reasonably foresee
o Close proximity persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected
• It is not at all necessary that there should be any direct contract between them, but there must be an obligation to
exercise diligence.
Ratio from D v S:
1. The manufacturer owes a duty to take reasonable care that the consumer is not injured as a result of a snail in ginger
beer
2. The manufacturer owes a duty to take reasonable care that the consumer is not injured by a foreign body in a container
3. The manufacturer owed a duty to take reasonable care that the consumer is not injured by defective products
4. A person owes a duty to take reasonable care that he does not commit any act which he could reasonably foresee as
injuring another person
Lord Macmillan said - The categories of negligence are never closed (should always be aware that there may be room for
expansion of the law, such as here with the neighbourhood principle)
2
, Test for Duty of Care (quest that was ongoing for ages)
Anns v Merton London BC (1978)
Claimants purchased home on long lease and builders put forward plans to council which were approved based on building
speculation. When they started building they didn’t follow plans approved (foundations only built to 2 inches when said they’d
be 3 inches). Inspector came from council and negligently certified site (didn’t see problem with foundations). Claimants moved
in and within a few months cracks developed and floor problems.
• Home owners go after inspector from council
• Houses suffered harm but owners not hurt (damage) by any walls falling down etc. not even property damage, it is
defective product issue.
• Lord Wilberforce tried to put forward a 2 part test –
o 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
o any reason as to why a duty of care should not be found?
Caparo v Dickman
Pure economic loss. Group of shareholders (claimants) in manufacturing company who want to buy enough to take over
(outside investors not a board of directors). The actual board want an audit to get an update on financial stability so employ
defendants (intended just for company directors so they could make decisions) but claimants got hold of report. It looks
prosperous so they acquire 91% of stock and do take over company. BUT report negligently compiled so company actually doing
badly. Shareholders said they’d sue auditors to try and restore losses.
• Lost case as report never generated for outside investors to look. Not in contemplation of auditors, if it had been
directors who wanted to sue it would be a different outcome.
• Lord Bridge comes up with 3 stages test
o Reasonable Foreseeability – at duty of care, breach and causation stage. At duty of care stage, was claimant
was at foreseeable risk of harm by the D’s action(s) (what is scope of risk?)
o Proximity – foundation of duty of care analysis. Neighbour principle. Who is our neighbour? – geographical (in
same place), time (arrive at accident at same time), relational (strong such as knowing doctor for many years
but weaker if only just met).
o Fair, Just and Reasonable to Impose the Duty - Policy reasons that would militate against the imposition of a
duty (eg conflicting duties)
• Limitations to its application –
o Not susceptible of any such precise definition as would be necessary to give them utility as practical tests (little
more than convenient labels)
o The law has now moved in the direction of attaching greater significance to the more traditional categorisation
of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties
of care which the law imposes.
o → should reason by finding similarities / precedent from similar previous situation
• Incrementalism - The Nicholas H per Lord Steyn (1996) said that in negligence, the common law ‘develops incrementally
on the basis of a consideration of analogous cases where a duty has been recognised or desired.’ (let law develop step
by step – look at previous situations and see if there are other factual matrixes that can apply then develop law. When
there is no other analysis case should you look to Caparo.)
• → Lord Bridge in Caparo (1990) - …thus we should look to ‘the more traditional categorisation of distinct and
recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law
imposes.
Michael v South Wales Police (2015)
Victim (who had 2 children) broke up with a man who was physically abusive to her and police had been called before where
they made reports and issued him a caution but nothing more. Started relationship with someone else, ex-boyfriend came
round and became physically/verbally abusive (eg bit her – obvious assault). She calls police demanding immediate help in
interim period whilst ex-boyfriend decides to drive home new boyfriend and just before he leaves he issues her threat of ‘when I
come back I’m going to kill you’. Call handler says someone will come immediately but call transferred to neighbouring county
so needed to be transferred to her county’s police then gets downgraded to ‘needs assistance’ instead of ‘needs immediate
assistance’. Police arrived later to find she had been brutally stabbed to death by ex-boyfriend in front of 2 young children.
→ Estate of Miss Michael claimed police had been negligent with how they dealt with situation and they wanted compensation
for loss of a daughter and mother.
• Although intuitively police owe duty of care, they do not legally owe a duty of care owed
• Lord Toulson (majority) – (recognising DvS Macmillan’s statement) It is true that the categories of negligence are never closed and it
would be open for the court to create a new exception to the general rule about omissions [more about this later!!]. The
development of the law of negligence has been by an incremental process rather than giant steps. The established method of the
court involves examining the decided cases to see how far the law has gone and where it has refrained from going…’
3
For a PQ – who can sue whom, in what tort, for what damage, and are there any defences?
→ Identity legal issue and resolve it (speak about each element of tort negligence equally)
Elements of the tort of negligence:
1) Actionable damage (not actual)
2) Duty of care
3) Breach of duty
4) Causation
o Factual causation
o Legal causation / remoteness
1) Damage
Oberdiek J ‘Philosophical Issues in Tort Law’ (2008) - Though damage is considered the ‘last element of a negligence claim
temporally speaking, it really is the tail that wags the dog…’
Cane.- ‘to provide guidance to individuals about how they may and ought to behave in their interactions with others [and] to
provide protection for certain interests of individuals.’
Physical Harm
Limitation Act 1980 s.38(1) In this Act, unless the context otherwise requires—
- “personal injuries” includes any disease and any impairment of a person’s physical or mental condition, and “injury” and
cognate expressions shall be construed accordingly;
Gregg v Scott
• Lady Hale said ‘damage is the gist of negligence’ – we have to go back to square 1 and look at damage.
• Patient presented lump to doctor being concerned that it was cancerous but doctor said it was just benine – turns out it
wasn’t and a few months later a second doctor confirmed that it was cancerous. As a result of time delay between
confirmed diagnosis and getting treatment the potential for claimant’s recovery were significantly decreased to 25%.
• Doctor did not cause cancer (harm) as it was already there – he simply lessened process of success (court had decide
whether that constituted harm? – it was deemed not to)
Rothwell v Chemical and Insulating Co
• Employer/employee tight duty of care. Employee diagnosed with pleuroplax (thickening of lungs caused by exposure to
asbestos) – claimed that anxiety arose that one day it would develop into something more severe.
• Lord Hoffman – need proof of damage. Tort compensates for a loss to put you back into position before you suffered
wrong. If, however, harm is disease of pleuroplax (unsure as to side effects of having condition in the future therefore
cannot put back into that position.
• Confirmed diagnosis of anxiety / depression that developed was confirmed as an actionable harm
1
, • Issue with duty of care of psychological harm
The De Minimis Non Curat Lex rule (point of change regarding physical harm) – has to be more than trivial (can’t award for
something that is harmless)
Property Damage
Lord Brandon in The Aliakmon stated that to claim you must own property
Yearworth v North Bristol NHS Trust (2010)
• Once man started chemotherapy there is a high chance he can become sterile so can cryogenically freeze sperm for
future (men signed up). This freezer was negligibly maintained and they all thawed out. Brought action against trust as
suffered psychological trauma
• not enough – tried for personal injury but LJ Judge said it wouldn’t work and that it ‘would be a fiction to hold that
damage to a substance generated by a person’s body, inflicted after its removal for storage purposes, constituted a
bodily or ‘personal injury’ to him’
• tried for damage to property and succeeded
Hinz v Berry
• husband and wife pregnant with ninth child went on summer vacation to Kent. (‘bluebell season in Kent’ said Denning).
Wife picked bluebells with wife and husband stays there. Hinz comes round corner with Jaguar and tyre blows and hiits
caravan and kills husband and badly injures children. Wife hears it and goes to help
• woman goes from strong, loving, warm mother to a woman who has suicidal ideologies and becomes quite angry
towards children therefore changes personas a lot dramatically (at time he was sole bread-winner and she was a stay at
home wife who she now needed to support children)
• granted £4,000 – insurance company appealed saying it was too much
• Denning said he can’t award for general emotional distress as not enough for tort. He said the £4,000 was justified for
the morbid depression she suffered.
→ emotional v psychiatric damage (law says psychiatric damage must be diagnosed to be sufficient)
2) Duty of Care
Establishing duty of care:
Donoghue v Stevenson 1932 – articulation of when liability should be imposed. Not a test.
Friend pours ginger beer into ice cream and a decomposing snail comes out in second round of pouring. Claimant went into
shock and suffered severe gastronomitus (damage). Mrs Donoghue was a porper (had to declare to get legal aid)
• Bottle dark so could not inspect it.
• Manufacturer and seller of good there was a contract. Seller sells to friend. Friend gives to Mrs Donoghue.
• It is therefore Mrs Donoghue’s friend who can sue café owner, however she did not suffer any harm. (no privity of
contract here – no relationship). Therefore the only person who can be sued is manufacturer but had not been
considered.
• Extends law to make neighbourhood principle. Lord Atkin states boundaries of it.
o You must take reasonable care to avoid acts or omissions which you can reasonably foresee
o Close proximity persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected
• It is not at all necessary that there should be any direct contract between them, but there must be an obligation to
exercise diligence.
Ratio from D v S:
1. The manufacturer owes a duty to take reasonable care that the consumer is not injured as a result of a snail in ginger
beer
2. The manufacturer owes a duty to take reasonable care that the consumer is not injured by a foreign body in a container
3. The manufacturer owed a duty to take reasonable care that the consumer is not injured by defective products
4. A person owes a duty to take reasonable care that he does not commit any act which he could reasonably foresee as
injuring another person
Lord Macmillan said - The categories of negligence are never closed (should always be aware that there may be room for
expansion of the law, such as here with the neighbourhood principle)
2
, Test for Duty of Care (quest that was ongoing for ages)
Anns v Merton London BC (1978)
Claimants purchased home on long lease and builders put forward plans to council which were approved based on building
speculation. When they started building they didn’t follow plans approved (foundations only built to 2 inches when said they’d
be 3 inches). Inspector came from council and negligently certified site (didn’t see problem with foundations). Claimants moved
in and within a few months cracks developed and floor problems.
• Home owners go after inspector from council
• Houses suffered harm but owners not hurt (damage) by any walls falling down etc. not even property damage, it is
defective product issue.
• Lord Wilberforce tried to put forward a 2 part test –
o 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
o any reason as to why a duty of care should not be found?
Caparo v Dickman
Pure economic loss. Group of shareholders (claimants) in manufacturing company who want to buy enough to take over
(outside investors not a board of directors). The actual board want an audit to get an update on financial stability so employ
defendants (intended just for company directors so they could make decisions) but claimants got hold of report. It looks
prosperous so they acquire 91% of stock and do take over company. BUT report negligently compiled so company actually doing
badly. Shareholders said they’d sue auditors to try and restore losses.
• Lost case as report never generated for outside investors to look. Not in contemplation of auditors, if it had been
directors who wanted to sue it would be a different outcome.
• Lord Bridge comes up with 3 stages test
o Reasonable Foreseeability – at duty of care, breach and causation stage. At duty of care stage, was claimant
was at foreseeable risk of harm by the D’s action(s) (what is scope of risk?)
o Proximity – foundation of duty of care analysis. Neighbour principle. Who is our neighbour? – geographical (in
same place), time (arrive at accident at same time), relational (strong such as knowing doctor for many years
but weaker if only just met).
o Fair, Just and Reasonable to Impose the Duty - Policy reasons that would militate against the imposition of a
duty (eg conflicting duties)
• Limitations to its application –
o Not susceptible of any such precise definition as would be necessary to give them utility as practical tests (little
more than convenient labels)
o The law has now moved in the direction of attaching greater significance to the more traditional categorisation
of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties
of care which the law imposes.
o → should reason by finding similarities / precedent from similar previous situation
• Incrementalism - The Nicholas H per Lord Steyn (1996) said that in negligence, the common law ‘develops incrementally
on the basis of a consideration of analogous cases where a duty has been recognised or desired.’ (let law develop step
by step – look at previous situations and see if there are other factual matrixes that can apply then develop law. When
there is no other analysis case should you look to Caparo.)
• → Lord Bridge in Caparo (1990) - …thus we should look to ‘the more traditional categorisation of distinct and
recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law
imposes.
Michael v South Wales Police (2015)
Victim (who had 2 children) broke up with a man who was physically abusive to her and police had been called before where
they made reports and issued him a caution but nothing more. Started relationship with someone else, ex-boyfriend came
round and became physically/verbally abusive (eg bit her – obvious assault). She calls police demanding immediate help in
interim period whilst ex-boyfriend decides to drive home new boyfriend and just before he leaves he issues her threat of ‘when I
come back I’m going to kill you’. Call handler says someone will come immediately but call transferred to neighbouring county
so needed to be transferred to her county’s police then gets downgraded to ‘needs assistance’ instead of ‘needs immediate
assistance’. Police arrived later to find she had been brutally stabbed to death by ex-boyfriend in front of 2 young children.
→ Estate of Miss Michael claimed police had been negligent with how they dealt with situation and they wanted compensation
for loss of a daughter and mother.
• Although intuitively police owe duty of care, they do not legally owe a duty of care owed
• Lord Toulson (majority) – (recognising DvS Macmillan’s statement) It is true that the categories of negligence are never closed and it
would be open for the court to create a new exception to the general rule about omissions [more about this later!!]. The
development of the law of negligence has been by an incremental process rather than giant steps. The established method of the
court involves examining the decided cases to see how far the law has gone and where it has refrained from going…’
3
