Tort Subjectguide All

Law of tort

Ian YeatsPaula GilikerMary Luckham

This guide was prepared for the University of London International Programmes by:

Ian Yeats, MA (Aberdeen), BCL, MA (Oxford), Barrister, Senior Lecturer in Law, Queen Mary College, University of London.

Paula Giliker, MA (Oxon), BCL, PhD (Cantab), Barrister at Law, Fellow and Senior Law Tutor, St Hildas College, Oxford.

Mary Luckham, LLB, Assistant Director, University of London Undergraduate Laws Programme.

This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.

If you have any comments on this subject guide favourable or unfavourable please use the form at the end of this guide.

University of London International ProgrammesPublications OfficeStewart House32 Russell SquareLondon WC1B 5DNUnited Kingdom

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Published by: University of London University of London 2005Reprinted with minor revisions 2012

The University of London asserts copyright over all material in this subject guide except where otherwise indicated. All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher. We make every effort to contact copyright holders. If you think we have inadvertently used your copyright material, please let us know.

Law of Tort page i

Contents

1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.1 Definition, aims and functions of tort . . . . . . . . . . . . . . . . . . . . . 3

1.2 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.3 Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.4 How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . . . 6

1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2 Negligence: basic principles . . . . . . . . . . . . . . . . . . . . . . . . 9

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

2.1 Structure of the tort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

2.2 Organisation of the chapters . . . . . . . . . . . . . . . . . . . . . . . . .11

2.3 Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

3 Negligence: duty of care and breach of duty . . . . . . . . . . . . . . 15

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

3.1 Duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

3.2 Functions of the duty concept . . . . . . . . . . . . . . . . . . . . . . . . .18

3.3 Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Reflect and review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

4 Negligence: causation and remoteness of damage . . . . . . . . . . . 29

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

4.1 Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

4.2 Causation: special problems: multiple causes . . . . . . . . . . . . . . . . .34

4.3 Remoteness: the basic rule . . . . . . . . . . . . . . . . . . . . . . . . . .38

4.4 Qualifications of the basic test. . . . . . . . . . . . . . . . . . . . . . . . .39

4.5 New and intervening cause . . . . . . . . . . . . . . . . . . . . . . . . . .40


5 Negligence: special problems . . . . . . . . . . . . . . . . . . . . . . 45

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

5.1 Liability for pure economic loss and for negligent mis-statements. . . . . . .47

5.2 Liability for psychiatric injury . . . . . . . . . . . . . . . . . . . . . . . . .53

5.3 Liability for omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55

5.4 The liability of public authorities . . . . . . . . . . . . . . . . . . . . . . .58

5.5 Rescuers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63


6 Negligence: particular relationships . . . . . . . . . . . . . . . . . . 69

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70

6.1 Liability of occupiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71

6.2 Liability of manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . .76

6.3 Liability of employers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76


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7 Breach of statutory duty. . . . . . . . . . . . . . . . . . . . . . . . . 83

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84

7.1 Tort and illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85

7.2 Breach of statutory duty . . . . . . . . . . . . . . . . . . . . . . . . . . . .86

7.3 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . .88


8 Particular statutory regimes: strict liability . . . . . . . . . . . . . . . 93

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94

8.1 Product liability: Consumer Protection Act 1987. . . . . . . . . . . . . . . .95

8.2 Liability for animals: Animals Act 1971 . . . . . . . . . . . . . . . . . . . . 100

Reflect and review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

9 Intentional injuries to the person . . . . . . . . . . . . . . . . . . . . 107

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

9.1 Trespass and case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

9.2 Trespass to the person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

9.3 False imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

9.4 Intentionally causing nervous shock. . . . . . . . . . . . . . . . . . . . . 115

9.5 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116


10 Interference with economic interests . . . . . . . . . . . . . . . . . . 123

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

10.1 Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

10.2 The economic torts: general considerations . . . . . . . . . . . . . . . . . 126

10.3 The economic torts: fundamentals . . . . . . . . . . . . . . . . . . . . . 127


11 The law of nuisance and the rule in Rylands v Fletcher . . . . . . . . . 135 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

11.1 The different forms of nuisance . . . . . . . . . . . . . . . . . . . . . . . 137

11.2 Private nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

11.3 The rule in Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . . . . . 145

11.4 Public nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

11.5 The relevance of the Human Rights Act 1998 . . . . . . . . . . . . . . . . 148


12 Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

12.1 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

12.2 What does the claimant have to prove? . . . . . . . . . . . . . . . . . . . 156

12.3 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

12.4 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165


Law of Tort page iii

13 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

13.1 Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

13.2 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

13.3 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181


Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . 189

Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

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Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.1 Definition, aims and functions of tort . . . . . . . . . . . . . . . . . . . 3

1.2 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.3 Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.4 How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . 6

1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1 Introduction

University of London International Programmes

Introduction

Tort is a branch of the civil law (as opposed to criminal law) based on a claim that the defendant has caused injury or loss to the claimant by breaking a relevant obligation imposed by the general law. This definition tells you nothing about what conduct is tortious. You will understand that only when you know what counts as injury or loss and what obligations the law imposes. Very broadly, tort law is one of the methods by which people who have suffered injuries are compensated. It deals with whether losses should lie where they fall or should be transferred to someone thought to be to blame (not necessarily in a moral sense) for what has happened. Of course the person to blame will often be insured or will be a large company or government department and so the losses will often be spread more widely. For example, when a person is injured by a careless motorist, the motorists insurance company will pay the damages and the ultimate costs of the accident will fall on the general community who pay insurance premiums.

Broadly speaking, the law of tort took its present shape in the nineteenth century although of course it has developed considerably since then. Those interested in a historical introduction may refer to Lunney and Oliphant, Chapter 1: General Introduction, Section I Historical development of tort law; Winfield and Jolowicz, Chapter 2: The structure if tort law: history and influences, Section 1 The forms of action: trespass and case.

Objectives of this subject guideBy the end of this subject guide, you should be able to:

describe the relationship between tort and certain other branches of law

explain the relationship between different torts and the bases of liability in each tort

identify the principal policy difficulties with the contemporary law of tort

identify and describe the sources of law relevant to tort.

On the impossibility of a definition of tort see Murphy, Chapter 1: Overview of the law of torts, Section 1 What is a tort; Winfield and Jolowicz, Chapter 1: The Nature and Functions of the Law of Tort, Section 1 Nature of the law of tort; on the aims or functions of tort again see Winfield and Jolowicz, Chapter 1: Nature and Functions of the Law of Tort, Section 1 Nature of the law of tort; and Markesinis and Deakin, Chapter 1: Introduction, Section 1 Tort at the crossroads and Section 5 Functions of tort.

Law of Tort 1 Introduction page 3

1.1 Definition, aims and functions of tort

1.1.1 Structure of tortThere is no single principle of tort law but a series of different torts with different origins and purposes. They protect a number of different interests against different kinds of interference (usually by compensation for the consequences that is, damages; but sometimes by an order to stop that is, an injunction).

In studying each tort (and even each element in each tort) you should ask yourself:

what interests are being protected

and against what sorts of interference (see below).

For example, the tort of defamation (see Chapter 12) protects the distinct interest of reputation: in respect of some elements liability is strict and in respect of others liability depends on proof of fault.

What interests are protected by the law of tort?

The law of tort protects to different degrees and in different ways the physical integrity of the person, property interests, reputation and economic interests. There are arguments about how far it should protect other interests, such as a persons right to privacy. In many torts material damage has to be caused before there can be an action. In others there is no need for material damage to the claimant, but one of the claimants rights has been interfered with. It is for instance an actionable tort deliberately to touch another person (subject to many defences) even though no damage is caused (see Chapter 9) and to defame someone in writing even though no damage is caused (see Chapter 12). In such cases the tort is said to be actionable per se (i.e. in itself).

What kind of conduct by the defendant accompanied by what kind of mental state is tortious if it produces an invasion of a relevant interest? Liability may be:

strict (e.g. consumer protection legislation): liability does not depend on proof of fault on the defendants part

based on negligence by defendant

based on intentional conduct by defendant

based on the ultimate motive or purpose of the defendant (rare in English law).

Relations between tort and other forms of liability

Some tortious conduct is at the same time illegal in some other sense (e.g. criminal): a person who deliberately strikes someone else commits both a tort and a crime. But tort and other forms of illegality do not wholly coincide. Some action is tortious but is not criminal or illegal in any sense other than being tortious: conversely some conduct is illegal (e.g. criminal or unlawful in a public law sense) but is not tortious even if it causes loss or damage (this point is developed more fully in Chapter 7).

The relationship between tort and breach of contract is also of interest. The distinction between the two has usually been explained in this way. Tort involves the breach of an obligation imposed by the general law (if I knock you down by carelessly driving my car, I am liable to compensate you because the law imposes a duty to drive carefully and not because I have promised you that I will do so). Breach of contract involves the breach of an obligation voluntarily undertaken by the person in breach (if I fail to deliver the car that you have bought from me, I am liable to compensate you because I have failed to carry out my promise). This distinction is however not watertight. In particular in recent decades a whole area of tort law has developed based on a voluntary assumption of responsibility (see liability for mis-statements in Chapter 5) and this has blurred the traditional distinction between tort and contract.

Note: tortious is pronounced torshus.


1.1.2 Policy questionsYou should consider as you study this subject a number of policy questions related to the purposes to be served by the law of tort. Examples are:

How should the law of tort relate to alternative sources of compensation? (See Winfield and Jolowicz, Chapter 1: Nature and Functions of the Law of Tort, Section 3 Tort and other sources of compensation and Markesinis and Deakin, Chapter 1: Introduction, Section 7 Alternative systems of compensation.) The main sources are the social security system and insurance either by potential claimants (e.g. life insurance) or by potential defendants (e.g. car insurance). You are not expected to know the details of these systems but their existence affects (and perhaps should affect more) the content of tort law, and the relation between different sources of compensation is relevant to the calculation of damages (see Chapter 13).

How far should liability be based on fault? (See Markesinis and Deakin, Chapter 1: Introduction, Section 6 Fault as the basis of tortious liability).

To what extent should public bodies be liable for failures in regulatory systems? (See Chapter 5).

1.2 Sources

In your study of this subject, you will have to consider the following sources of law.

Cases

Most of the law of tort is judge-made and is to be found in reported cases. This process is continuing and you should think about the direction in which the courts are moving as well as the content of decided cases (see, for example, the developments in relation to economic loss, in Chapter 5). In answering a question, as in advising a client or employer, you have to be able to judge how a court might decide a future case as well as describing what has been decided in past cases. You should also consider how appropriate judge-made law is as a source of new developments. Compare the willingness of the courts to be creative in relation to economic loss (see Chapter 5) and their refusal to be so in relation to environmental protection (see Chapter 11). Some cases are merely illustrations and applications to particular facts of well-established principles: they can be used as illustrations in handling problem questions in examinations. Other cases are the source of important principles: the judgments are discursive, discuss issues of policy and suggest lines of development for the future. These cases have to be studied with more care. The ability to identify important cases increases with experience, but you can be guided by the way in which particular cases are discussed in the textbooks.

Statutes

Some statutes replace or partly replace areas of the common law (e.g. Occupiers Liability Acts 1957 and 1984); some provide additional protection over a wide field (e.g. Consumer Protection Act 1987); some effect minor amendments only.

Impact of European Community law

The impact has been slight on the law of tort. The Consumer Protection Act 1987 gives effect to a Community directive and there is potential for development in employers liability and environmental protection. The tort of breach of statutory duty (Chapter 7) might be developed to provide remedies for certain infringements of community law.

Impact of the Human Rights Act

The Human Rights Act 1998 gave effect in domestic law to the European Convention on Human Rights (ECHR) with effect from October 2000. It is now a much more pervasive source of the law of tort than is Community law. You will be familiar with the general principles of the ECHR from your study of the British Constitution. You will find references to the ECHR at various points in this guide. It is convenient to set out now some relevant


general principles: in some respects the ECHR has introduced new ways of thinking into the domestic law.

a. Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. This section therefore has its greatest impact where the defendant to a tort action is a public authority such as a local council.

b. The courts are however themselves public authorities: they therefore have to take account of the ECHR in developing the law even in tort actions between private citizens or private bodies such as companies to ensure that the United Kingdom is not in breach of the ECHR. This is perhaps most obvious in relation to the tort of defamation (Chapter 12) and Art 10 ECHR (freedom of expression).

c. The ECHR is based on a series of Convention rights of a general kind that have to be respected. This is an unfamiliar kind of classification in English law. In order to provide compensation for an interference with Convention rights the courts may do one of the following:

They may apply an existing tort. If a public authority in England kills someone (contrary to Art 2) or tortures someone (contrary to Art 3) this plainly falls within the existing English law of tort.

They may modify an existing tort. For example, Art 2 requires the state to provide protection against being killed and Art 3 requires the state to provide protection against inhuman and degrading treatment. An existing English tort may have to be modified in order to provide the necessary protection. See in particular Chapter 5.

They may create a new right of action in damages: this is analogous to the existing tort of breach of statutory duty. This is discussed more fully in Chapter 7. It should be noted that section 8 of the Human Rights Act 1998 provides that a person is not entitled to an award of damages merely because a public authority has acted unlawfully under the ECHR, and the court has a discretion to decide whether an award is necessary in a particular case.

1.3 Recommended reading

There are several textbooks of different lengths on the law of tort. It is suggested that you use at least one of these:

Lunney, M. and K. Oliphant Tort Law: Text and Materials. (Oxford: OUP, 2010) fourth edition [ISBN 9780199571802].

Markesinis and Deakin Tort Law. (Oxford: Oxford University Press, 2008) sixth edition [ISBN 9780199286577 (hbk); 9780199282463 (pbk)].

(Note: detailed reading references in this guide refer to the edition of Markesinis and Deakin listed above. A seventh edition of this textbook is due to publish in late 2012 after the publication of this guide. However, you can still use the most recent edition of the textbook by using the detailed chapter and section headings given (as well as the index) to identify relevant readings.)

Murphy, J. Street on Torts. (Oxford: Oxford University Press, 2012) thirteenth edition [ISBN 9780199554447].

Rogers, W.V.H. (ed.) Winfield and Jolowicz on Tort. (London: Sweet & Maxwell, 2010) eighteenth edition [ISBN 9781847037930].

These are quite lengthy and explore topics in greater depth and with more background than is essential, and also cover topics which are not included in your syllabus. Reference may also be made to:

Howarth, D. Textbook on Tort. (Oxford: Hart Publishing, 2005) second edition [ISBN 0406959463].


Useful collections of cases and materials:

Hepple, Howarth and Matthews Tort: cases and materials. (London: LexisNexis, 2000) fifth edition [ISBN 0406063265].

Weir, T. A Casebook on Tort. (London: Sweet and Maxwell, 2004) tenth edition [ISBN 0421878800].

Shorter and/or more introductory books include:

Giliker, P. and S. Beckwith Tort. (London: Sweet and Maxwell, 2004) second edition [ISBN 0421859806].

Mullis, A. and K. Oliphant Torts. (Basingstoke: Palgrave Macmillan, 2003) [ISBN 0333963792].

McBride, N. and R. Bagshaw Tort Law. (Harlow: Longman, 2005) second edition[ISBN 027368678X].

These give an overview of the subject and its role but are not sufficiently detailed to serve as textbooks. A stimulating socio-legal work which addresses many of the policy issues (see Policy questions, section 1.1.2 above) is:

Cane, P. Atiyahs Accidents, Compensation and the Law. (Cambridge University Press, 2004) sixth edition [ISBN 0521606101].

although it is not suitable as a textbook.

It would be sensible to buy one of the standard textbooks referred to and, especially if you do not have access to a library, one of the casebooks. Many cases are decided each year on this subject: you will find helpful notes on recent cases in the leading academic journals such as:

the Modern Law Review (MLR)

the Law Quarterly Review (LQR)

the Cambridge Law Journal (CLJ).

These journals may also contain general articles of interest. Judges increasingly make reference to such articles in developing principles in new or difficult areas of law. Such articles also frequently draw attention to the way in which particular problems are dealt with in other countries with similar problems.

1.4 How to use this subject guide

This subject guide is not a textbook or even an introduction to the subject. It is intended to direct you through the subject and to give an indication of how to tackle each topic. It would be sensible to read through each chapter of this guide to identify the main topics with which it deals and any particular problems or policy issues and then to read the relevant sections in the textbooks. More detailed guidance is given in the chapters of this subject guide where the law is in a state of development than in those where the law is fairly well settled. You should be able to identify from this reading the most important cases in more detail (see also under Sources, section 1.2). The cases in this guide are not necessarily listed in order of importance: there are of course many more relevant cases than are referred to here.

The introductory chapters of the books (and this chapter of the guide) deal with a number of issues. It is not wise to try to learn these at once. These should be read quickly now so as to get an idea of what the subject is about: some questions can be identified (see Policy questions, section 1.1.2) which should be kept in mind as the substance of the subject is studied. The introductory chapters should be considered more carefully when the whole subject has been digested; then, some of the issues raised will make more sense.


1.5 The examination

Important: the information and advice given in the following section are based on the examination structure used at the time this guide was written. However, the University can alter the format, style or requirements of an examination paper without notice. Because of this, we strongly advise you to check the instructions on the paper you actually sit.

You are likely to be asked to answer four questions in the examination from a selection of about eight. They are of two kinds.

Problem questions

You will be given a set of facts and either asked to advise one or more of the characters or to discuss issues of tortious liability which arise. You must avoid simply identifying the subject matter of the problem (for example, negligent mis-statements) and writing all you know about it. Before writing, you should analyse the facts carefully to work out the relation between the parties and the legal issues to which they give rise. You can then select the legal principles which are relevant and marry the facts and the legal principles into a logically structured answer. You do not literally set out your answer in the form of advice but you must remember that you are solving a problem and not simply writing an account of a particular area of law. Most problems contain at least some issues where the law is not entirely clear; you have to identify these and suggest the solution to which you think a court will be likely to come and give your reasons for doing so. Problem questions seldom relate only to material in a single chapter. You may expect to have to answer questions that involve more than one tort or involve issues that are discussed in different chapters. In this guide specimen questions are not found at the end of every chapter.

Essay questions

Such questions rarely ask for a straightforward account of a particular topic. They ask you to write critically about a particular topic, to compare one topic with another, to suggest reforms and improvements, to analyse the reasons which lie behind particular areas of law and so forth.

In both kinds of question the most common error is irrelevance. You must identify the precise issues(s) raised and direct your answer to it (them).

Example of an examination questionThe role of strict liability in the law of tort should be greatly increased.

Discuss.

You can look at previous years exam questions and examiners comments on them in the University of London External Programme Laws web site.

Most importantExamination questions DO NOT ask you to write down everything you know about a topic. Your aim should be to answer the questions that the examiners have asked, and use only material relevant to those questions.

Why critically? Because the examiners want to see if you understand the subject well enough to write about it as a lawyer would sometimes a particular point of view has to be argued and sometimes you have to write from both sides of the issue.


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

2.1 Structure of the tort . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

2.2 Organisation of the chapters . . . . . . . . . . . . . . . . . . . . . . . .11

2.3 Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

2 Negligence: basic principles


Introduction

Negligence is the most important modern tort: its study should occupy about half the course. It is important because of the great volume of reported cases and because it is founded on a principle of wide and general application. This chapter explains the basic structure of the tort and describes the organisation of the material in subsequent chapters.

Learning outcomesBy the end of this chapter and the relevant readings, you should be able to:

understand that the tort of negligence is structured on the concepts of duty of care, breach of duty and resulting non-remote damage

indicate some of the social and policy questions that have influenced the development of the tort of negligence.

Law of Tort 2 Negligence: basic principles page 11

2.1 Structure of the tort

Negligence of course means carelessness, but in 1934 Lord Wright said:

In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. (Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25)

This sentence encapsulates the traditional tripartite structure of negligence as a tort. It is not enough to show that defendant was careless: the tort involves a breach of duty that causes damage that is not too remote. Each of the emboldened words will in due course require detailed examination. The successful claimant in a negligence action must establish three propositions:

a. that the defendant owed the claimant a duty of care. The claimant will in some circumstances be the only person to whom the duty was owed (a surgeon and patient for example): in others the claimant will be a member of a very large and possibly ill-defined class of persons to whom the duty was owed (a car driver and other road users).

b. that the defendant broke the duty of care. This means that the defendants conduct fell below the standards that the law demands.

c. that as a result of the breach the claimant suffered damage of a kind that the law deems worthy of compensation.

However these propositions are not rigidly separate. They are convenient for the purpose of explaining the law, but they overlap to a great extent. Occasionally, but not very often, a court will indeed explicitly organise its judgment under these three headings. There is an example in Al-Kandari v Brown [1988] QB 665, referred to in Chapter 4. In other cases however a judge might on the same set of facts deny liability on the grounds that no duty was owed and another deny liability on the grounds that, although a duty was owed, it had not been broken. An issue such as the scope of liability for economic loss has sometimes been regarded as part of the duty question and sometimes as part of the remoteness of damage question. You will find other examples where a single set of facts can be analysed in different ways.

2.2 Organisation of the chapters

Negligence is now a tort of great size and complexity. Most textbooks set out the questions of duty, breach, causation and remoteness in that order. This often means that some of the most complex issues are dealt with at great length under the heading of duty of care. Other textbooks are organised differently.

In the chapters that follow in this guide the material on negligence is organised in the following way:

Chapters 3 (duty and breach) and 4 (causation and remoteness of damage) offer a general overview of the tort of negligence, illustrated mainly, but not exclusively, by cases involving careless conduct giving rise to death, personal injuries or damage to property.

Chapter 5 deals with more complex areas that have been the subject of much litigation in recent decades: liability for careless advice or information; liability for psychiatric injuries and for purely economic damage; liability for failures to take action to avoid harm; liability for failures of supervisory or regulatory functions.

Chapter 6 deals with the liability of two particular categories of defendants: that of occupiers towards those on their premises, and that of employers towards their employees.


2.3 Policy questions

The law of negligence has undergone enormous change and development in the past 50 years. Mostly this has involved an expansion of liability, but quite often the courts have retreated and cut back on the extent of liability. This in turn leads to inconsistency and uncertainty. The reasons for this are complex, but they have in part to do with conflicting policy objectives. The importance of understanding these policy objectives and the way that they are contributing to the development of the law was explained in Chapter 1.

Here are some of the most important philosophical and policy issues that you should keep in mind and refer to as you prepare the material in the next four chapters.

The underlying idea in a negligence action is very simple. If the claimants injuries result from behaviour that falls short of socially acceptable standards, then there should be compensation. If they do not, then the victim should bear the loss without compensation. Since carelessness is not generally criminal, the tort of negligence is the means by which the law attaches consequences to unacceptable behaviour. Lord Diplock once described negligence as the application of common sense and common morality to the activities of the common man (Doughty v Turner Metal Manufacturing Co [1964] 1 QB 518, noted in Chapter 4). In a number of recent cases the House of Lords has based its conclusions for or against liability by reference to what people generally would regard as fair. See for example Alcock v Chief Constable of South Yorkshire (Chapter 5) and Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309 (Chapter 3). The public view of what is fair may change over time. One question to consider is how far the law correctly reflects a public sense of fairness.

One consequence however of the emphasis on fault is uncertainty. It may be difficult to get agreement as to whether the defendant was careless, and entitlement to substantial compensation may depend on the strength of the evidence before the court or (since all except a very tiny proportion of negligence claims for personal injuries are settled by negotiation or agreement) the strength of the bargaining positions of the parties. The ability to obtain compensation may also depend on the financial resources available to the defendant. A high proportion of successful claims are in areas (medical, road and industrial accidents for example) where defendants are either rich or are insured.

One purpose of the tort might be thought to be to enforce standards of good behaviour: to deter people from being careless. In many situations the deterrent effect is limited. Car drivers are likely to drive carefully because of a fear of death or injury, or of prosecution resulting in fine or imprisonment. Fear of a civil action for damages hardly figures, since the damages will come from an insurance company (although admittedly the driver may find insurance more expensive or even impossible in future).

There is a way in which liability in negligence does indeed affect behaviour and may force defendants in ways that are arguably not to the general benefit. Courts are increasingly aware of the so-called compensation culture, the desire to identify someone who is able to pay for injuries. The fear is that there will be a defensive reaction that drives out many socially useful activities. Schools may stop arranging excursions for pupils for fear of claims by injured pupils. Institutions such as homes for the elderly or nurseries for children may close if the costs of liability insurance become prohibitive. There may be other defensive consequences. Family doctors may refer too many healthy patients to specialists to protect themselves against negligence claims, thereby adding to the costs of the health service and delaying appointments for patients in need of specialist services. As a recent example of a judicial fear of the compensation culture, see Tomlinson v Congleton Borough Council [2003] UKHL 47: [2004] 1 A.C. 46 (Chapter 6).

Law of Tort 2 Negligence: basic principles page 13

Activity 2.1Write down brief notes on what Tomlinson v Congleton Borough Council [2003] tells you about the effects of compensation culture.

You will return to this case in Chapter 6: you will find an easy introduction to the ideas of compensation culture in the speech of Lord Hoffmann.

No Feedback provided

ConclusionYou should bear the contents of this chapter, particularly the policy issues that keep arising in negligence claims, as you study the chapters that follow.


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

3.1 Duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

3.2 Functions of the duty concept . . . . . . . . . . . . . . . . . . . . . . .18

3.3 Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

3 Negligence: duty of care and breach of duty


Introduction

This chapter introduces the first two elements in establishing an action in the tort of negligence. Did the defendant owe the claimant a duty to take care? Was the defendant in breach of that duty?

Learning outcomesBy the end of this chapter and associated readings, you should be able to:

explain the concept of duty of care and its purposes

identify the various tests that have been suggested for the existence of a duty of care

discuss the duty concept in the context of some particular situations, namely, controlling others, duty of lawyers and duty to unborn children

describe the standard of care required of defendants both in general and in respect of particular skills

Essential reading Lunney and Oliphant, Chapter 3: Negligence Introduction, Section I

Formulation of a general duty of care, Part 1 Historical introduction, Section II The duty of care in the modern law, and Chapter 4: Breach of Duty.

Markesinis and Deakin, Chapter 3: Establishing liability in principle, Section 2 Formulating the duty of care and Chapter 4: Other elements of liability, Section 1 Breach of duty: negligence as fault.

Murphy, Chapter 2: Duty of care I: foundational principles, Section 1 Introduction and Section 2 The emergence of a general test and Chapter 4: Breach of duty, Section 1 The standard of care.

Winfield and Jolowicz, Chapter 5: Negligence: Duty and Breach, Section 1 Duty of care: general and Sections 35.

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3.1 Duty of care

The duty of care concept has at least two purposes. The first is to provide an overall framework for the huge variety of situations in which liability may arise. For centuries the law has recognised relationships in which one person owes a duty to another. What was lacking was a general principle of which the various cases were illustrations. The second purpose is one of limitation, setting the boundaries within which one person could be liable to another for the consequences of careless behaviour.

3.1.1 Finding a general testA number of attempts have been made to expound such a general test. We will look at four of the most influential.

a. The neighbour principle

Donoghue v Stevenson [1932] AC 562 was important in two respects.

First, by a majority, the House of Lords recognised a new relationship as giving rise to a duty of care, that between manufacturers and the ultimate consumers of manufactured products (in this particular case a bottle of ginger beer). This is sometimes called the narrow rule in Donoghue v Stevenson: it still survives but has in practice been superseded by a new kind of liability established in the Consumer Protection Act 1987 (see Chapter 8).

Secondly, Lord Atkin enunciated a broad principle of liability. A duty was owed to persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected He described such people as my neighbours: so his definition of the duty is called the neighbour principle.

b. A revised test

There were many developments in the law of negligence in the years following that decision. These led Lord Wilberforce to redefine the neighbour principle. He turned it into a two-stage test in Anns v Merton London BC [1978] AC 728 at 75.

The first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant. If so, a prima facie duty of care arose. The second question was whether there were any considerations which ought to negative or reduce or limit the scope of the duty of care or the class of persons to whom it was owed.

This test came under criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991 (see Chapter 5).

c. The current test: foresight, proximity and fairness

The test is now stated in this form. The claimant has to show three things if there is to be a duty of care:

It was reasonably foreseeable that a person in the claimants position would be injured.

There was sufficient proximity between the parties.

It is fair, just and reasonable to impose liability.

There is no single case identified with this test, but one of its best expositions is in Caparo Industries v Dickman [1990] 2 AC 605. There is a particularly helpful discussion of the test by Bingham LJ in the Court of Appeal in the same case: Caparo Industries v Dickman [1989] QB 653 at 678-680. Notice that the decision of the Court of Appeal in that case was overruled by the House of Lords. For details, see Chapter 5.

Four tests: The neighbour principle A revised test (Lord Wilberforce) The current test: foresight, proximity and fairness An alternative test: assumption of responsibility

BC = Borough Council, an administrative division, particularly in London.


These three tests are very similar. In particular, notice that:

They are very general. It is possible to understand what they mean in practice only after studying a number of illustrative cases.

Policy considerations are explicit in the second and third tests, but are implicit in Lord Atkins test as well. Notice his use of ought and reasonably. There is a large moral component to his test. It is not just about what can be foreseen, but about what ought to be foreseen.

These tests are of most use when the law is uncertain. These are concepts that judges use when deciding whether or not a duty of care ought to be recognised in new situations. Once a duty situation is recognised, the test in a sense drops out of the picture. So, in an examination context, there is no need to go through the Caparo test unless either the situation is a novel one, where there are no clear precedents, or you are trying to argue that the law ought to be changed (as was done by the House of Lords in respect to the liability of lawyers; see Duties of lawyers in 3.2.1 below). If the question you are answering is about a motorist knocking down a pedestrian, the duty of care is established by many previous cases and there is no need to go through the tests for establishing a duty afresh.

d. An alternative test: assumption of responsibility

For some purposes, an alternative test has been developed, namely whether there had been a voluntary assumption of responsibility by the defendant for the claimant. This test is particularly used in cases of liability for omissions, for mis-statements and for economic loss as discussed in Chapter 5.

3.2 Functions of the duty concept

Traditionally the duty concept has been seen as serving two separate functions:

Is there a duty at the abstract level (the notional duty or duty in law): e.g. does a motorist owe a duty of care to other road users? Or do barristers owe a duty of care to their clients?

Is the particular claimant within the scope of the duty of care (duty in fact or the problem of the unforeseeable claimant): e.g. was this particular road user owed a duty by this particular motorist?

Notice that many commentators prefer to treat the second question duty in fact either as a matter of breach of duty or as a matter of remoteness of damage.

Some cases then are clear. Users of machinery, etc., on the roads, on building sites, in workplaces owe a duty of care to those likely to be affected. So do doctors, nurses, dentists, hairdressers, etc., providing services to the public. Below there is a series of illustrations of the application of the concept of duty of care, in situations where there has been doubt. More complex and developing examples are discussed in Chapter 5.


3.2.1 Duty at the abstract level

Is there a duty to prevent X injuring C?

An important problem is how far the defendant owes a duty to stop or prevent another person (X) injuring the claimant. This can be illustrated thus:

Conduct causing damage

X (Third party)

D (Defendant)

C (Claimant)

Proposed action

Examples of this problem would include the following:

a. Should a school (or a parent) owe a duty of care to passing motorists to see that a child does not run out of the school and cause an accident?

b. Should a host at a party owe a duty of care to prevent a guest driving home drunk and injuring a pedestrian?

c. Should a car owner owe a duty of care to keep it locked up to prevent a thief stealing it and knocking down a pedestrian?

In the diagram above X is the child, the guest and the thief.

As a general rule English law does not impose a duty, reasoning that the fault is that of X and not that of D. But exceptionally a duty may arise. In deciding whether a duty of care arises, it is relevant to ask:

What is the relationship between X and D? Does D have some responsibility over X?

What is the relationship between C and D? Does it involve some obligation on Ds part to protect C against harm?

See Home Office v Dorset Yacht Co [1970] AC 1104; Carmarthenshire County Council v Lewis [1955] AC 549; Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976; Attorney-General of British Virgin Islands v Hartwell [2004] UKPC 12: [2004] 1 WLR 1273.

The issues discussed in this paragraph are similar to, and overlap with, issues discussed later in this guide: (a) whether the act of X amounts to a new and intervening cause breaking the link between C and D (see Chapter 4); (b) whether D can be liable for an omission to act where he fails to take steps that would prevent X from causing harm (see Chapter 5).

The issues discussed in this paragraph must be distinguished from the question of vicarious liability (see Chapter 13). This paragraph concerns the primary liability of defendants for their own tort in failing to control others. In vicarious liability the defendant is liable for a tort committed by someone else. In the Dorset Yacht case both


ideas are present. The Home Office were vicariously liable for the torts of the borstal officers. But the borstal officers were not vicariously liable for the torts of the boys: they were primarily liable for their own torts in allowing the boys to escape and cause harm. In the Hartwell case both vicarious liability and primary liability were considered as alternative causes of action.

A very similar problem arises where in effect C and X are the same person. In the examples given above would the school, host or car owner owe a duty of care to the child, guest or thief? How far should defendants have to protect claimants against their own folly? Of course there are many cases where the defendant has specifically accepted responsibility for the safety of others, but the principle may extend further than that. See: Jebson v Ministry of Defence [2000] 1 WLR 2055.

Duties of lawyers

Lawyers of course owe a duty of care to their clients, but until recently it was thought that no duty was owed by barristers (and later solicitors also) in respect of work closely connected with the presentation of their case in court. Putting it in terms of the Caparo test, it would be said that, while there was foresight and proximity, it was not fair, just and reasonable to impose liability.

The House of Lords has now decided that in contemporary conditions there are no policy reasons sufficient to justify this immunity and it should be abolished: Arthur J. S. Hall v Simons [2002] 1 AC 615.

The circumstances in which a duty is owed and the scope of the duty are considered by the House of Lords in Moy v Pettman Smith (a firm) [2005] UKHL 7: [2005] 1 WLR 581.

Activity 3.1Examine the reasoning of the House of Lords in Hall v Simons. What policy reasons previously were thought to justify the immunity? Why are those policy reasons no longer thought enough to justify it?

Duty of care to unborn children

A doubt as to whether the common law recognised a duty of care to unborn children in respect of damage done before birth was resolved by statute: the Congenital Disabilities (Civil Liability) Act 1976. The Act originally envisaged a child being born with disabilities as the result of damage to the mother (or sometimes the father) occurring during pregnancy or sometimes before conception. Typical examples were physical injuries to a pregnant woman in, say, a car crash, or the side effects of drugs. It had to be amended in the light of advancing medical technology to deal with damage to stored sperm or eggs: Human Fertilisation and Embryology Act 1990.

These Acts impose liability only where the damage caused the disability from which the baby suffers when it is born. They do not allow an action where the negligence caused the baby to be born, but did not cause the disabilities. A doctor may, for example, negligently carry out a sterilisation procedure on either a man or a woman, or may fail to recommend an abortion: any child born as the result of this negligence has no claim.

These ethical reasons do not apply where the claim is by the father or mother (or both) who have to bring up the child. For a time the courts seemed likely to allow such claims. The ethical issues (together with a wide-ranging review of how these issues are decided round the world) are discussed:

where the child is healthy and is being raised in a loving family (McFarlane)

where the child is disabled (Parkinson)

where the child is healthy but the mother did not want children because of her own disability (Rees).

See McFarlane v Tayside Health Board [2000] 2 AC 59; Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530: [2002] QB 266; Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52: [2004] 1 AC 309.

You should think about the ethical reasons for the childs inability to claim negligence and for the reluctance in most cases to allow the parents to claim.


Novel situations

Other examples of cases where the courts have had to decide in novel situations whether they should hold that there was a duty of care are: Mulcahy v Ministry of Defence [1996] QB 732 (liability of injuries to soldiers on active service; Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607 (liability of rugby referee to injured player).

3.2.2 Scope of the duty of careEven if the defendant owed a duty of care to some people, there remains the question of whether the particular claimant was within the scope of that duty. See Bourhill v Young [1943] AC 92; Palsgraf v Long Island Railroad Co (1928) 248 NY 339; Haley v London Electricity Board [1965] AC 778: Urbanski v Patel (1978) 84 DLR (3rd) 650; Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161.

In the last case (Goodwill) the points made about the woman claimants position are still of interest, although the courts assumptions about the position of her partner have been undermined by the cases referred to in 3.2.1.

Activity 3.2a. How do the tests of a duty of care in Donoghue v Stevenson, Anns v Merton London

Borough Council and Capro Industries v Dickman differ? In what respects are they similar?

b. D is gardening at the front of her house. She goes into the house to pour herself a drink and leaves a spade lying in the garden. X, a passer-by, picks it up and attacks C, Ds neighbour. Is D liable to C? (In answering this question, think about various possibilities as to who X is, which might affect your answer.)

c. To what extent is there (and should there be) liability:

iv. if a person negligently injures a pregnant woman and the child is born dead

v. a doctor negligently fails to identify a risk that a foetus has been damaged and does not suggest an abortion: the child is born disabled

vi. a mother takes drugs throughout pregnancy: the child is born with a severe problem of drug dependency.

d. Clarissa thinks that she may be pregnant and consults a pregnancy advisory service. They confuse her records with those of another client and inform her that she is not pregnant. By the time she discovers that she is pregnant, it is too late for an abortion. Advise her.

SummaryThere is no liability in negligence unless there is a duty to take care. This establishes the necessary link between the claimant and the defendant. Such duties are widely recognised. In cases of doubt the modern test is whether there was foreseeability and proximity and it was fair, just and reasonable to impose the duty.


3.3 Breach of duty

The next question is whether there has been a breach of the duty of care. Has the defendant actually been negligent?

As a practical matter, this is very important. It will often be a major issue between the claimants advisers and the defendants advisers or insurers in attempting to reach a settlement. If there is a trial, much time may be spent on deciding what actually happened and whether that amounted to negligence on the defendants part. In that end this is a question of fact. It is however a question of fact that has to be answered within a structure of legal rules. You cannot be expected to decide in an examination answer whether or not the defendant was in fact negligent, but you can be expected to identify in a question the respects in which the claimant could argue that the defendant has been negligent and also explain how the question will be approached within the structure of legal rules.

3.3.1 The basic ruleThe basic rule is that the defendant must conform to the standard of care expected of a reasonable person.

Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable and prudent man would not do. (Blythe v Birmingham Waterworks (1856) 11 Exch 781)

Ordinary person in ordinary circumstances

One of the few cases in which the House of Lords has had to consider the behaviour of an ordinary person in ordinary circumstances (not involving special skill or knowledge) is Glasgow Corporation v Muir [1943] AC 448. Lord Macmillan highlighted two important aspects of the test:

a. The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.

b. It is an objective test. (For a situation in which it may be appropriate to take a more subjective view of the defendants conduct, see 5.3.1 and the case of Goldman v Hargrave.) The abstract reasonable person is put into the shoes of the defendant, who is expected to have the same general knowledge and understanding of risks (say, that icy roads are slippery or that children may get up to mischief) as the reasonable person. The actual defendant may be stupider or more ignorant, or may be cleverer or more knowledgeable, but is still judged by this abstract impersonal standard.

c. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation. Here there is room for diversity of view. What to one judge may seem far-fetched may seem to another both natural and probable. The outcome is therefore to that extent unpredictable even in the tiny minority of cases that are resolved in court.

3.3.2 Defendant with special skills or qualificationsMost of the difficult reported cases however involve defendants with special skills or qualifications. It would be silly to ask whether a reasonable person would have driven the car, removed the appendix or designed the building in the same way as the actual motorist, surgeon or architect who is being sued. In such cases the defendant is to be compared to a reasonable person with the relevant skill or qualification. This is not always as easy as it might be.

For one thing, there is sometimes doubt as to exactly what skill or qualifications the defendant professes to have.

The Glasgow Corporation case is a good illustration of the point made in Chapter 2 about the artificiality in many questions of looking separately at the three issues of duty, breach and damage. In this case there was only one simple question. Should Mrs Alexander, the manageress of a teashop, have told her child customers to stand outside while two people carried an urn of hot tea through the shop? The answer depends on what dangers a reasonable person would have expected and what steps (if any) such a person would have taken to avoid them. Lord Macmillans words are appropriate whether you think of this primarily as a question of breach of duty or as a question of remoteness of damage.


For another, there may be doubt as to whether a large group (say car drivers or doctors) should be sub-divided into smaller categories for the purpose of comparison with reasonable members of the group.

In the examples that follow it is more important to understand the reasoning and how it might be applied in other contexts than to know whether a particular defendant was or was not held to be negligent on a particular set of facts.

Defining the groupIn these cases the problem was one of defining the group to which the defendant belonged: Phillips v Whiteley [1938] 1 All ER 566. Did the defendant, who had pierced the claimants ears, have to show the care of a reasonable surgeon or of a reasonable jeweller?

In Shakoor v Situ [2000] 4 All ER 181 there is an interesting analysis of how to treat a practitioner of traditional Chinese medicine working in England. Was he to be compared to a reasonable orthodox doctor, a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England?

Many cases involve car drivers. The only standard of care is that of a reasonable driver, whether the actual driver is highly experienced, newly qualified or even just a learner. It is irrelevant that the learner driver defendant was doing as well as she could, given her lack of experience, if a reasonable driver would have done better: Nettleship v Weston [1971] 2 QB 691.

Medical negligence

A large number of the cases involving special skills concern medical negligence. The defendant is to be compared with a reasonable person of the same specialism and status: a general practitioner is not judged by the same standards as a consultant cardiologist and so on.

There is a special problem with medical defendants (and to some extent with members of other professions). There is often no single right way of proceeding. Faced with a particular patient, one doctor might recommend surgery, but another might recommend treatment with drugs. The courts do not insist that one of these approaches must be right and the other wrong: they require that the defendant has acted in a way that would be supported by a body of respectable medical opinion. This is sometimes called the Bolam test as set out in that case. This test allows the medical profession to some extent to determine appropriate standards for itself, but the courts reserve the right to strike down a medical practice as unreasonable (as explained in Bolitho).

Other examples of the application of this principle are: Whitehouse v Jordan [1981] 1 WLR 246; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634; and Wilsher v Essex Area Health Authority [1987] QB 730. (This is the decision of the Court of Appeal. The case went to the House of Lords, but only on the issue of causation and not on the issue of breach of duty (see Chapter 4).)

The most controversial application of the Bolam test occurs where it is alleged that the doctor failed to give the patient sufficient warning of the risks of the proposed treatment (or possibly of the risks of not having the treatment). English law in principle applies the Bolam test and asks whether the information given was in accordance with what a respectable body of medical opinion would have done, but Australian courts have taken a view more generous to the patient and ask what a reasonable patient would expect to be told. See Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 and Rogers v Whitaker (1992) 175 CLR 479.

The English approach is sometimes criticised as showing a doctor knows best attitude and ignoring the autonomy of the patient. The professional bodies now encourage greater openness and encourage doctors to explain the advantages and disadvantages of particular treatment unless there is a good reason for not doing so. It will now be more difficult for a doctor to argue that a reluctance to be open about the advantages

Ask yourself what conclusion the judge reached, and why he did do so.

You should read and make notes on:Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bolitho v City and Hackney Health Authority [1998] AC 232


and risks of treatment is in accordance with medical opinion. For a more recent example, although it is principally concerned with causation issues (see 4.1.1), see Chester v Afshar [2005] UKHL 1 AC 134.

If you are considering a claim for the consequences of medical treatment, you should think of different ways of presenting the argument. Most cases are based on the idea that the individual doctor (or nurse, etc.) is negligent and that the health authority or private hospital is vicariously liable. For the details of vicarious liability, see Chapter 13. In some cases it may be appropriate to consider arguing whether the health authority or hospital is itself negligent, e.g. by entrusting a procedure to an inappropriately junior doctor, or by overworking its staff so that they are too tired and make mistakes.

The approach described in medical cases would certainly apply to professions similar to medicine, such as dentistry or physiotherapy. The extent to which the courts will be willing to defer to professional opinion in other professions is less certain, although it is likely to apply in all cases where different members of the profession might reasonably take different views. For the example of solicitors, see Edward Wong Finance Co Ltd v Johnson, Stokes and Master [1984] AC 296, and of rugby referees, see Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607.

3.3.3 Related issues

Children

Children may be liable in negligence and are judged by what might be expected of a reasonable child of the defendants age, and the courts appear to be indulgent towards high spirits and horseplay: Mullin v Richards [1998] 1 All ER 920 and Blake v Galloway [2004] EWCA Civ 814: [2004] 3 All ER 315.

Defendant unable to perform competently

A defendant may be liable even if he was doing his incompetent best. But if his behaviour was the result not of inexperience or incompetence, but of illness or other external forces, then he may be found not liable. See Mansfield v Weetabix Ltd [1998] 1 WLR 1263. (But the result would have been different if the driver had known of the medical condition.)

Eliminating harm must be proportional to the danger

A defendant is not required to eliminate all risk of harm even when it is foreseeable: to do so might be out of all proportion to the danger. The defendant must do something only if a reasonable person would have thought it right to do so. In deciding what precautions have to be taken to minimise a perceived risk, the following guidelines may be taken into account:

a. How likely was it that injury would occur?

b. How serious was the injury likely to be if it did occur?

c. How difficult and/or expensive would it be to eliminate the risk?

d. How important or urgent was the action of the defendant?

See: Bolton v Stone [1951] AC 850 (explained by Lord Reid in Wagon Mound (No. 2)) [1967] 1 AC 617 at 642; Latimer v AEC [1952] 2 QB 701; Paris v Stepney BC [1951] AC 367; Watt v Hertfordshire CC [1954] 2 All ER 368.

It is important to remember that the defendant is to be judged by how a reasonable person with the same skill, etc. would have behaved at the same time and in the same circumstances. The defendant must not be judged with the benefit of hindsight (making use of knowledge not available at the time of the alleged tort) and allowance must be made for any special circumstances affecting the defendant (e.g. having to act under pressure or with limited time for full consideration). For examples, see: Roe v Minister of Health [1954] QB 66; Luxmoore May v Messenger, May- Baverstock [1990] 1 All ER 1067; and Moy v Pettman Smith [2005] UKHL 7: [2005] 1 WLR 581.


3.3.4 Are decisions on breach questions of fact or law? Everything in the last few paragraphs involves propositions of law which are binding on the courts. Once these principles have been applied, however, the decision on the particular facts of a case does not constitute a binding precedent. The fact, say, that it was held in a particular case that an employer was negligent in failing to ensure that an employee wore a particular kind of safety equipment does not mean that all other employers will also be held negligent if they behave in the same way. The issue will have to be decided in the light of the particular facts each time it occurs. See Qualcast v Haynes [1959] AC 743.

This approach is not very helpful to potential defendants such as building contractors, who do not want to know that they have to take reasonable care, but do want to know exactly what instructions, equipment and so on they have to supply. So it is very common for regulations under the authority of various Acts of Parliament to set out detailed rules on such matters. The basis of liability for breaches of such regulations is explained in Chapter 7.

3.3.5 Proving breach of dutyVery often the claimant may not be able to find out what happened. A parked car, for example, may have moved off without warning down a hill. All the claimant can do is show that such a thing does not normally happen unless there has been negligence. The claimant can then make use of a rule of the law of evidence called res ipsa loquitur (the facts speak for themselves). You must ask yourself:

a. when it is legitimate to use the maxim

b. what the effect of invoking it is. See Scott v London & St. Katharines Dock (1865) 3 H. & C. 596; Henderson v Henry E. Jenkins [1970] AC 282; Ng Chun Pui v Lee Chuen Tat [1988] RTR 298.

You should be warned that this doctrine applies only exceptionally. You should not make use of it in answering questions unless there is a clear suggestion that there is no explanation for what has happened and the only inference is that the defendant must have been negligent.

SummaryThe actual defendant is to be compared with how a reasonable person would have acted in the same circumstances. Where a particular skill (driving for example) or professional expertise (medical for example) is involved, the appropriate comparison is with a person with the same skill or expertise.

Activity 3.3a. What is the level of the duty of care to be shown by:

a newly qualified solicitor

a learner driver

a 12-year-old child?

b. What standard of care would have to be shown by Deirdre, an ambulance driver, (i) when taking a seriously ill patient to hospital and (ii) when driving her family to the seaside in the family car?

c. D is a general practitioner. He prescribes certain tablets for his patient C, who is very fat. A recent article in a specialist journal of cardiology has suggested that there may be some risks in giving these tablets to overweight patients. C has a heart attack. Is D liable?

d. D parks his car on a hill and walks away. Shortly afterwards, the car moves off downhill and strikes C. It is not clear why this has happened. Advise C.


General examination adviceAll claimants in a negligence action must establish that there has been a breach of a duty of care. This does not mean that all examination questions require an extended discussion of these topics. If a problem involves a driver of a car hitting someone while proceeding at 80 mph down a one-way street in the wrong direction, then these issues can be disposed of in two sentences. A problem question may involve only issues discussed in this chapter, but is likely also to involve topics from other chapters. An essay question of a general kind on the duty of care will almost certainly require information and ideas from Chapter 5 as well as this chapter.


Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to move on

Need to revise first

Need to study again

I can explain the concept of duty of care and its purposes

I can identify the various tests that have been suggested for the existence of a duty of care

I can discuss the duty concept in the context of some particular situations, namely, controlling others, duty of lawyers and duty to unborn children.

I can describe the standard of care required of defendants both in general and in respect of particular skills

If you ticked need to revise first, which sections of the chapter are you going to revise?

Mustrevise

Revision done

3.1 Duty of care

3.2 Functions of the duty concept

3.3 Breach of duty


Notes

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

4.1 Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

4.2 Causation: special problems: multiple causes . . . . . . . . . . . . . . .34

4.3 Remoteness: the basic rule. . . . . . . . . . . . . . . . . . . . . . . . .38

4.4 Qualifications of the basic test . . . . . . . . . . . . . . . . . . . . . . .39

4.5 New and intervening cause . . . . . . . . . . . . . . . . . . . . . . . .40

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

4 Negligence: causation and remoteness of damage


Introduction

Negligence is one of those torts in which damage must be proved (see Chapter 1). Once a breach of duty has been established, the claimant must therefore also show that the breach has resulted in injury or damage (the causation issue) and that the injury or damage is sufficiently closely connected to the breach (the remoteness issue). You will understand what is meant by sufficiently closely connected in the particular context of negligence after studying this chapter.

Causation and remoteness are the essential links between the breach of the obligation imposed by law and the damage. It is commonly said that causation is essentially a factual and logical question, but that remoteness is a legal question, based on policy considerations about the appropriate extent of a defendants liability. In broad terms this is true, but Lord Hoffmann has recently stated that the rules laying down causal requirements are creatures of the law and that it is possible to explain their content on the grounds of fairness and justice in exactly the same way as the other conditions of liability (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 at [54]).

You must therefore consider the policy reasons behind most of the decisions in this chapter.

Learning outcomesBy the end of this chapter and the relevant readings, you should be able to:

state and explain the basic rule defining the causal link between the breach of duty and the damage

identify the causal link that has to be established in hypothetical situations

identify circumstances in which the basic rule produces unacceptable results and may have to be modified

explain the policy considerations underlying those modifications

explain the concept of remoteness of damage in general and identify the basic rules of remoteness in the tort of negligence

identify the policy reasons for choosing that rule of remoteness

explain the concept of new and intervening cause and relate it (a) to the actions of third parties and (b) to actions by the claimant subsequent to the negligence of the defendant.

Essential reading Lunney and Oliphant, Chapter 5: Causation and remoteness.

Markesinis and Deakin, Chapter 4: Other elements of liability, Section 2 Causation of damage and Section 3 Remoteness of damage.

Murphy, Chapter 5: Causation and remoteness.

Winfield and Jolowicz, Chapter 6: Negligence: causation, remoteness (scope of liability) and contributory negligence, Sections 13.

Law of Tort 4 Negligence: causation and remoteness of damage page 31

4.1 Causation

Causation is relevant to all torts in which proof of damage is essential. The problem is usually discussed in detail in the context of negligence, but the principles apply more broadly, and some of the cases referred to in this section involve claims in other torts as well as in negligence. You must always remember to link the tort (i.e. the breach of duty in the case of negligence) and not merely the defendant to the damage. An example will illustrate the importance of this.

A baby has brain damage: it has recently been vaccinated. If there is a claim for compensation, it will always be necessary to establish (on scientific evidence) that the vaccine caused the damage. If the claim can be brought within a tort of strict liability (see Chapter 1 for definition), nothing more need be proved in terms of causation. This is not so if the claim is in negligence, e.g. alleging that a doctor in breach of the duty of care failed to carry out proper tests to discover whether the baby had an allergy to the vaccine. It will then be necessary, in addition to showing that the vaccine caused the damage, to show that the breach of duty caused the damage. If the proper tests carefully administered would not have revealed the allergy, then the baby would still have been damaged and the breach of duty would not be a cause of the brain damage.

You will find that the causation issue sometimes (though exceptionally) gives rise to difficult questions, but the underlying idea is very simple. We use the language of causation every day without much difficulty, and we understand that the language of causation is used in different ways in different contexts. We may for instance say, I was late for work to-day because the 7.30 train was cancelled. Here we know that the cancellation made lateness inevitable. But we do not know for certain that we would have been on time if the train had been running. Something else might have happened to delay us. On the other hand we often hear about research into the causes of disease. Advertisements for cigarettes may carry a warning that smoking causes lung cancer, but we know that here there is no inevitability: many non-smokers develop cancer and many smokers do not. We need more information before we can talk of the cause of the disease in any particular sufferer. You should make use of your knowledge of the ordinary usage of the language of causation in analysing problems.

4.1.1 The basic rule The basic rule may be stated positively or negatively. If the damage would still have occurred, even if the defendant had not broken the duty of care, then the breach did not cause the damage. If the damage would not have occurred but for the defendants breach of duty, then the breach of duty is a cause of the damage. For this reason, the basic rule is often referred to as the but for test. Its main purpose is to exclude things that have no bearing on the damage. It is for the claimant to show that the breach of duty w

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