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TORT OF NEGLIGENCE
the dominant tort, gets most academic writing and interest, generates the most appellate case law
you need to show 4 things:
1) the D owed you a DoC
2) D breached the DoC
3) breach of duty caused damage
4) damage caused by the breach of duty was not too remote to be recovered
1) DUTY OF CARE
defines who you have to be careful towards, in respect of whom I have to be careful
not to injure your neighbour, 'neighbour principle', writer: Buller, developed idea using the work of
natural law scholars concerned with not the case law or statutes says, they were moral philosophers,
ideas of morality, moral question
Buller- idea there was a test to explain when you had to be careful, it has been rejected many times
before
law of negligence used to be a list of situations , events you had to be careful
there was no sense of general test, what if a new case came up, they had to develop the law by
analogy, precise facts of a decided case, is the case in hand close enough to the decided case, 18th
century
use of technique of judicial analogy – expansion of law
Donoghue v Stevenson
Mrs D, friend bought her a ginger beer drink, thick dark glass bottle made by the D, claimant poured
some into the glass, drank, seemed ok, drank the rest out the bottle, poured rest into glass and there
was a decomposed snail
she seeks damages from the manufacturer, majority 3:2 , DoC is owed
problem about the relationship between contract and tort, it was thought at the time that if you already
owed a contractual duty to be careful in respect of particular thing, then you could not also owe a duty
in negligence, it effectively excluded liability in tort to anybody else
that was no longer good law, precedent, manufacturers owe a DoC to the end consumer
general way in which the 3 judges in the majority found the DoC existed, Lord Atkin and Macmillan,
there were lots of individual cases and was no general conception
'the love your neighbour' rule. - persons closely and directly affected by my act that I ought to have
them in contemplation (Lord Atkin quote)
1
LECTURE 1 September 28, 2009
general Atkin test doesn’t apply when the only harm happened is psychiatric, eg depression, different
rules for that
Anns v Merton
general test, Atkin didn’t get it right though, expressed it too broadly
Atkin didn’t mention any matters or general policy which should prevent it from being a DoC, it should
be brought in, economic loss to physical injury
test to look at first to settle the ongoing argument
judges didn’t like the test, as it brought in matters of policy, just a principle test wanted, no political
reasons
police ought not to be distracted from their other duties by having to defend themselves by litigation,
allocations of resources, spend a lot of money on lawyers -general good
the idea of a defensive frame of mind, if you impose.. you affect the way they carry out duties, start
arresting people not because they genuinely think they need to be arrested but they think if they don’t
arrest them they might be liable in negligence so it might distort performance of their duties