Introduction
Keywords:
o Duty of care
o Breach - standard of care
Omission or acting below the degree required
o Loss - or harm caused due to the breach
Legal and factual causation
Factual - Had the doctor not committed the breach, would the victim
has died? => the 'But For' test => causation in fact
Legal => causation in law => damage caused not too remote a
consequence of the D's action
What happened to the victim was a direct result of the negligence => need to
be shown
One of the biggest area in tort law
Negligence - in every day meaning - careless
o In law - a duty of care on a person - and that duty of care was breached - fell below
the standard of care
Negligence goes beyond recklessness => due to the duty of care that exist between the C
and D
o Where there is a particular skill => already have a duty of care attached to them =>
doctors for instance
Possible liability
Personal injury or death
Property damage
Psychiatric injury (additional control mechanisms applicable here - to prevent abuse -
reduce the compensation culture)
o A medically recognised psychiatric condition
o More strict application
o Simple sadness will not qualify for psychiatric injury
Negligence is the breach of a duty of care causing loss or damage
Snehaa Sewpaul 1
, It is a non-intention tort
o Difference from TTTP
General aim for negligence
To make people pay for the damage they cause when their conduct falls below an
acceptable standard1
1
Horsey and Rackley
Snehaa Sewpaul 2
, Duty of Care
What is DoC? When does DoC arises?
o An obligation, recognised by law, to conform to a particular standard of conduct, for
the protection of others against unreasonable risks 2
What is negligence?
o A breach of a legal duty to take care which results in damage to the claimant3
o An obligation - to conform to a particular standard of conduct, for the protection of
others against unreasonable risks
o On obligation imposed on people to not take unreasonable risks
Risks must/may be taken => but should be reasonable
It is the reasonableness that will decide whether there has indeed been a
breach or not
Need to be well-calculated decision - well-informed decision
o Negligence is a non-intentional tort
The key elements in Negligence – elements of negligence is established 4 by the case of
Donoghue v Stevenson [1932] AC 562
o Existence of a legal duty to take care (Duty of Care)
o Care taken has fallen below the standard expected (Breach of Duty)
o Damage/harm that has occurred has been caused by the breach (Factual Causation)
o Damage not too remote a consequence of the defendant’s action (Legal Causation)
2
J. G. Flenning
3
Winfield and Jolowicz
4
Chris Turner. Unlocking Torts, Routledge, 2014. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/uclan-ebooks/detail.action?docID=1579801.
Created from uclan-ebooks on 2024-01-15 07:10:42.
Snehaa Sewpaul 3
, o The 3rd element = damage + causation
DONOGHUE V STEVENSON - SNAIL CASE
The law pre-Donoghue and the law post Donoghue
o The law did recognise the duty of care - but it was within particular situations => pre
Was viewed as an aspect of other torts rather than a tort in itself
The need for contractual relationships or Pre-existing relationship between the
parties => like parents-children; teacher-student
o No general principles of negligence intort law prior to House of Lords judgement in
Donoghue
o Then came in Donoghue – tort of negligence only fully established in Donoghue
Donoghue v Stevenson [1932] AC 562 (HL)
o Ginger ale => dark bottle
When she was pouring the ginger ale in a glass - then the snail fell in the
glass => but had already drunk half of it
Also got sick of it
Privity Rule - Whoever paid for the product becomes the party to the contract
But it was the lady's friend who paid for the drink - not her => not party
to the contract => could not sue
o Court - there is no pre-existing relation between you and the café => flaw
But - could not allow a situation where no remedy was being availed to the
victim
Snehaa Sewpaul 4
Keywords:
o Duty of care
o Breach - standard of care
Omission or acting below the degree required
o Loss - or harm caused due to the breach
Legal and factual causation
Factual - Had the doctor not committed the breach, would the victim
has died? => the 'But For' test => causation in fact
Legal => causation in law => damage caused not too remote a
consequence of the D's action
What happened to the victim was a direct result of the negligence => need to
be shown
One of the biggest area in tort law
Negligence - in every day meaning - careless
o In law - a duty of care on a person - and that duty of care was breached - fell below
the standard of care
Negligence goes beyond recklessness => due to the duty of care that exist between the C
and D
o Where there is a particular skill => already have a duty of care attached to them =>
doctors for instance
Possible liability
Personal injury or death
Property damage
Psychiatric injury (additional control mechanisms applicable here - to prevent abuse -
reduce the compensation culture)
o A medically recognised psychiatric condition
o More strict application
o Simple sadness will not qualify for psychiatric injury
Negligence is the breach of a duty of care causing loss or damage
Snehaa Sewpaul 1
, It is a non-intention tort
o Difference from TTTP
General aim for negligence
To make people pay for the damage they cause when their conduct falls below an
acceptable standard1
1
Horsey and Rackley
Snehaa Sewpaul 2
, Duty of Care
What is DoC? When does DoC arises?
o An obligation, recognised by law, to conform to a particular standard of conduct, for
the protection of others against unreasonable risks 2
What is negligence?
o A breach of a legal duty to take care which results in damage to the claimant3
o An obligation - to conform to a particular standard of conduct, for the protection of
others against unreasonable risks
o On obligation imposed on people to not take unreasonable risks
Risks must/may be taken => but should be reasonable
It is the reasonableness that will decide whether there has indeed been a
breach or not
Need to be well-calculated decision - well-informed decision
o Negligence is a non-intentional tort
The key elements in Negligence – elements of negligence is established 4 by the case of
Donoghue v Stevenson [1932] AC 562
o Existence of a legal duty to take care (Duty of Care)
o Care taken has fallen below the standard expected (Breach of Duty)
o Damage/harm that has occurred has been caused by the breach (Factual Causation)
o Damage not too remote a consequence of the defendant’s action (Legal Causation)
2
J. G. Flenning
3
Winfield and Jolowicz
4
Chris Turner. Unlocking Torts, Routledge, 2014. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/uclan-ebooks/detail.action?docID=1579801.
Created from uclan-ebooks on 2024-01-15 07:10:42.
Snehaa Sewpaul 3
, o The 3rd element = damage + causation
DONOGHUE V STEVENSON - SNAIL CASE
The law pre-Donoghue and the law post Donoghue
o The law did recognise the duty of care - but it was within particular situations => pre
Was viewed as an aspect of other torts rather than a tort in itself
The need for contractual relationships or Pre-existing relationship between the
parties => like parents-children; teacher-student
o No general principles of negligence intort law prior to House of Lords judgement in
Donoghue
o Then came in Donoghue – tort of negligence only fully established in Donoghue
Donoghue v Stevenson [1932] AC 562 (HL)
o Ginger ale => dark bottle
When she was pouring the ginger ale in a glass - then the snail fell in the
glass => but had already drunk half of it
Also got sick of it
Privity Rule - Whoever paid for the product becomes the party to the contract
But it was the lady's friend who paid for the drink - not her => not party
to the contract => could not sue
o Court - there is no pre-existing relation between you and the café => flaw
But - could not allow a situation where no remedy was being availed to the
victim
Snehaa Sewpaul 4
