Tort law lecture notes

LT W1 – NEGLIGENCE: DUTY OF CARE

The place of tort law

 The divide between contract and tort reflects different reasons we may owe
obligations to one another.
 Some obligations, we owe, because this is what we have undertaken to do in the
form of a contract.
 Other obligations arise AUTOMATICALLY (independent of any choice or
undertaking on our part)… and this is tort!

The structure of tort law

 Criminal law; many offences, different offences categorised by the harms they
involve. E.g. homicide offences, offences against the person, sexual offences,
property offences etc.
 Tort law; many torts, different torts reflecting different harms. E.g. assault,
battery (physical contract/injury), trespass (physical intrusion upon another’s
property), nuisance (interference with another’s enjoyment of his property) and
defamation (damage to reputation).

The tort of negligence

 The tort of negligence is a new tort that has developed over the past hundred
years rapidly.
 Negligence is not addressed to any particular type of harm or any particular
activity or setting.
 Focused instead on the quality of D’s conduct; conduct which falls below the
level of care the law expects of you. DID THEY ACT CAREFULLY ENOUGH
AS THE LAW EXPECTS?

Elements of negligence

 The tort of negligence is made up of the following elements;
 Duty
o D owed C duty of care (i.e. duty to take reasonable care not to cause him
a particular type of injury).
 Breach
o D breached that duty of care.
 Causation (and remoteness)
o D’s breach of a duty was a cause of C’s injury
 Defences
o D has no defence to C’s claim

, Duty

 WHEN do we owe duties of care?
 Not always! But then the question becomes, what marks out those situations
where we DO owe duties of care?
 The growth of negligence can be traced back to the case of Donoghue v
Stevenson:
o Snail in the ginger beer. Donoghue who was drunk but did not buy the
drink herself sues to manager, Stevenson. Did Stevenson owe her a duty
of care? YES! This was a difficult case to decide as there was NO
precedent.
o Donoghue marks a break from the approach of the prior cases, by which
duties of care arise only where there is precedent on finding a duty on
such facts.
o “There must be, and is, some general conception of relations giving rise to
a duty of care, of which the particular cases found in the books are but
instances”.
o What is the ‘general conception’ that Lord Atkin discusses (i.e.
principle/test)?
o E.g. the bus driver is under a duty of care when people board the bus,
doctors have a duty of care in treating you etc. and this is a principle.
There is NO CASE for this, but it is like a pre-existing principle that the
Lords used to prove a duty of care. Hence why this principle becomes the
tort of negligence.
o THE NEIGHBOURHOOD PRINCIPLE
 Donoghue v Stevenson (Lord Atkin): ‘You must take reasonable
care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. 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 my contemplation as being so
affected when I am directing my mind to the acts or omissions
which are called into question’



The principle revised

 Anns v Merton LBC (Lord Wilberforce):
 ‘First one has to ask whether, as between the alleged wrongdoer and 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.