#16156 - Negligence Duty Of Care - Tort Law

McBride & Bagshaw (4^th ed), ch 4

• 4 things C must show in case of negligence:

  • Owed duty of care

  • Breached duty of care

  • Breach caused loss

  • At least one of the losses is actionable

• Negligence breach can be intentional (I negligently refrain from replacing a rotten floorboard deliberately hoping that my mother-in-law would injure herself on it)

• Negligence v. other torts

  • Battery: actionable per se – no need to show loss (but if careless and caused V to suffer loss, then both battery and negligence are available, usually negligence is preferred)

  • False imprisonment: negligent false-imprisonment can only be negligence (Al-Kandari v Brown: solicitors (D) under court order to keep husband’s passport safe but D carelessly allowed husband to obtain the passport and he kidnapped children)

  • Negligence: overlap created in Spring v Guardian Assurance where old firm gave unfair and horrible reference for C to new potential employer and suit of defamation would have failed, so invoked negligence instead

  • Breach of statutory duty: may give rise to action in tort in itself but if Parliament does not so intend, seems that C is unable to sue in negligence because (per Lord Hoffmann) a simple breach of statutory duty does not give rise to a common law duty of care

  • Private nuisance (protects owner’s rights not to have his neighbours create/be aware of a risk to his land): overlap eliminated by HL insistence that private nuisance does not apply to physical injury (eg. inhaling neighbor’s smoke) so only negligence applies

  • Breach of contract: Henderson v Merrett Syndicaes Ltd created overlap by holding that if A breaches a contract with B to do something carefully, B would have an action in contract and tort

• Remedies

  • Kralj v McGrath: aggravated damages (‘revenge’ damages to assuage C’s anger) are never available

    • Negligence = only tort where this is the case

  • In principle exemplary damages should be available if wrong is culpable enough and no criminal punishment

  • No precedent where injunction not to breach the duty of care has been issued

McBride & Bagshaw (4^th ed), ch 5

• In negligence claim, first thing that needs to be established = duty of care

  • Types of duty

    • According to what they require another to do

      • Positive duty

        • Take reasonable steps to ensure an outcome

        • Take reasonable care in an action

      • Negative duty (requires D not to act in a certain way)

    • According to what interests they protect (eg. a careless driver who crashes into bus shelter)

      • Mental (for potential rescuers – mental scars)

      • Physical (for people waiting at the shelter)

      • Economic (for bus company)

    • According to how they arise

      • Foreseeable that action will cause harm (driving dangerously)

      • Assumption of responsibility (not giving another bad advice)

  • Duty-harm relationship

    • Duty must be geared towards the particular kind of harm suffered

      • Eg. Train driver carelessly de-rails so C forgets to sell her shares and they plummet. C cannot sue D because duty not to drive carelessly is geared towards physical harm, not economic loss

    • In cases where C sues for two independent harms, two duties of care must be shown

      • Spartan Steel: D cut through power lines causing C to suffer property damage and loss to business because they couldn’t work – first harm recoverable but not second because of foreseeability leading to no duty of care

  • Duty of care and public policy

    • Policy minimalists: duty of care should be determined without public policy in mind

      • McLoughlin v O’Brian: Lord Scarman – courts judge according to principle; Parliament judges policy

    • Policy maximalists: policy is always relevant to duty

      • Hill v Chief Constable of West Yorkshire (whether police owed duty to murder victim)

    • Intermediate position: if everything else indicates no duty, policy doesn’t justify imposing a duty; if everything else indicates duty, it would still be wrong to impose that duty if contrary to policy

• Duty of care tests

  • Heaven v Pender: If A is placed in a situation with regards to B where any reasonable person would recognize that failure to use ordinary care and skill would endanger B, then a duty of care arises to use ordinary care and skill

  • Lord Atkin’s ‘neighbor principle’: Must take reasonable care to avoid acts/omissions reasonably foreseen to cause danger to a neighbour (a person so closely and directly affected by my act that I should contemplate them while acting)

  • Anns: 1) sufficient proximity gives rise to prima facie duty and 2) any negating/mitigating factors

  • Incremental test: Law should develop duty incrementally and by analogy to established categories rather than create new ones

  • Caparo: 1) foreseeability, 2) proximity and 3) “fair, just and reasonable” that law should impose a duty

• Lower courts come across fewer and fewer novel cases so don’t usually have to apply tests; SC not bound by own decisions, so tests are necessary

• Fate of tests

  • Heaven v Pender and proximity test didn’t serve much use after donogue

  • Anns test rejected by Caparo and incremental test

  • Caparo now serves as authority

• Duty of care factors

  • Reasonable foreseeability of harm

  • Reasonableness of D’s action (court will not hold that A owed B a duty to do x if it would be unreasonable for him to do it)

  • Act or omission (court far more willing to find duty in acts than omissions

  • Seriousness of harm (court more likely to find duty in cases of physical/property damage than pure economic loss)

  • Fairness (if finding a duty means A will be liable disproportionately for more than harm caused/degree of fault court will often not find duty)

  • Individual responsibility (court likely won’t find duty if doing so would undermine individual’s sense of responsibility by allowing A to blame B for A’s own carelessness)

  • Parliamentary intentions

  • Divided loyalties (court likely not to find duty if doing so would undermine public body’s loyalty to job in fear of litigation)

  • Wasted resources (sometimes finding a duty esp. with regards to public bodies encourages groundless litigation)

  • Novelty (the more novel a case, the less likely the court will accept it because 1) it won’t act as legislator and 2) just like Parliament courts can make mistakes)

Donoghue v Stevenson [1932] AC 562 (especially Lord Atkin); 20 MLR 1

Per Lord Atkin: A manufacturer who sells a product in the form of intended consumption with no possibility of intermediate examination, knowing that absence of reasonable care may endanger the consumer’s life or property, owes a duty of care to the consumer.

Per Lord Atkin: “There must be, and is, a general conception of relations giving rise to a duty of care”

Facts

C claimed that an opaque bottle of beer that D manufactured contained a rotting snail that she only noticed after consuming part of the drink and caused her a serious illness. Argued that, as manufacturer, D owed a duty of care to C to ensure that the drink contained no noxious substances, and that he had negligently breached that duty. D replied that he was, on these facts, not liable in law, and that there should be no trial.

Issue

Whether the manufacturer of a drink sold to a distributor that cannot be examined for defects by the distributor or consumer owes a duty of care to the consumer to take reasonable care to ensure that the drink is free from defects that might cause injury.

Held (HL)

Allowed C’s appeal so case could proceed to trial.

Judgments

Lord Atkin

• English law has a n elaborate classification of duties regarding property

  • Real vs. personal property, further divided into ownership, occupation or control

  • Relationship between parties: manufacturer, salesman, customer, tenant etc.

    • Thus duty of care may exist where a case fits into a classification, but there are general principles for all liabilities

• There are in English law general conceptions of duty of care based on morals, but in practice these conceptions must not cover everyone, so legal limitations are placed:

  • Must take “reasonable care to avoid acts or omissions” likely to injure one’s neighbour

    • Definition of “neighbour” restricted through “proximity” to any person “so closely and directly affected” by one’s act that one ought reasonably to contemplate them being so affected while doing the act

• Heaven v Pender: founded upon principle that “proximity” extends beyond physical proximity to cover those acts that directly affect the injured party

• In the present case: manufacturer negligently mixes a drink with poison that he knows will be consumed by the consumer and cannot be examined by the distributor or the consumer.

  • If poisoned consumer has no remedy against manufacturer, it would represent a “grave defect in the law” and “contrary to principle” – he would also have no remedy against anyone else

  • There are other instances where manufacturers conceive their products to be used by people other than the ultimate purchaser (cleaning products, chocolate etc.) and there is a great social need that these people be protected

Lord Macmillian

• Law does not view carelessness in the abstract: only in circumstances where there is a duty of care does carelessness become negligence in law

  • Standards of the reasonable man is used to decide which relations involve a duty of care

• In the present case any reasonable man would label D’s action as careless, but does it extend to a duty of care?

  • A manufacturer owes a duty of care not to carelessly convert a “wholesome and innocent”...