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LECTURE 1 September 28, 2009

LECTURE 1 – TORT OF NEGLIGENCE, DUTY OF CARE

3rd edition book


tort means a wrong, a civil wrong
there’s no offences, but compensation for harm caused by wrongful act
no unifying test of what makes an act or omission, wrong, series of specific torts and wrongs, each
with separate ingredient, eg. tort of negligence

negligence, nuisance ( unreasonable interference), assault and battery, defamation


most based on case law, two statutory torts
how these distinct torts interact with each other, interact with other areas of law, eg. criminal

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)

Lord Macmillan: the categories of negligence are never closed


he felt that existing categories could be expanded to cover the facts of the case
Alan Rodger
There’s an ongoing dispute about the case
authority for three ideas:
- a DoC in negligence isn’t prevented by the existence of a DoC in contract
- general theory of DoC by Lord Atkin, when you ought to contemplate that sb will be injured by your
careless act
- what negligence is about is about expanding existing categories of liability, based on decided cases
and applying them to the case in hand

Does the general Atkin principle apply to everything?


1974 HoL couldn’t apply when the damage was purely economic
financial loss - Donoghue doesn’t apply

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LECTURE 1 September 28, 2009

general Atkin test doesn’t apply when the only harm happened is psychiatric, eg depression, different
rules for that

Dorset Yard Home Office


young offenders taken to island(Dorset) for team building exercise, morality boosting, guards went to
sleep, offenders stole a yacht and crashed it trying to escape, yacht company used Home Office
to impose liability for damage cause by sb else, HoL split, you could/couldn’t apply Atkin test - DoC
more incremental approach? linked to analogy, you should only take small steps forward in expanding
negligence liability

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

Caparo Industries v Dickman


three stages to the test:
1) ought the D foresee the damage (foreseeability)
2) is there sufficient relationship of proximity - there has to be a sufficiently direct and close
relationship between claimant and D (proximity)
3) whether its fair, just and reasonable to impose liability
- it doesn’t exclude matters of policy, brings in aspects Parliament ought to deal with

eg. Hill v CC of West Yorkshire


claimant was suing on behalf of daughter murdered by Yorkshire ripper, killed lots of women in
particular area, controversy, why it has taken the police so long to catch him while he operated within
particular zone and targeted the same victims, claimant : if the police have investigated earlier
murders committed by him in careful way they would have caught him so he would be unable to
murder the daughter as in prison - police's failure to investigate the previous crime properly, daughter
lived in the area and was the kind of person he had killed before
decided: police owe no DoC - although reasonably foreseeable certain group is at risk, there’s no
relationship of proximity between daughter and the police, she was simply one of a large class of
women being at risk of him, might have been different if the police promised to protect her or knew
she was particularly at risk - not fair, just or reasonable

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