Negilgence

Question 1

What is meant by negligence?

Answer 1

Negligence is a tort that occurs when a person breaches a legal duty of care owed to another, causing unintended harm or damage. To establish negligence, it must be shown that the defendant owed a duty of care to the plaintiff, breached that duty, and that the breach resulted in injury or damage to the plaintiff.

Question 2

Case for duty of care

Answer 2

This describes Donoghue v Stevenson, a landmark negligence case. Mrs. Donoghue became ill after drinking ginger beer that contained a decomposed snail. Although she had no contract with the manufacturer, the House of Lords held that the manufacturer owed her a duty of care as the ultimate consumer.

Lord Atkin established the “neighbour principle”, stating that a person must take reasonable care to avoid acts or omissions that could foreseeably harm those closely and directly affected by their actions. The court found that the manufacturer breached this duty, and as a result Mrs. Donoghue suffered harm, so negligence was established.

Question 3

What is meant by the neighbour principle?

Answer 3

The duty of care is owed to one’s neighbour, meaning any person who can be reasonably foreseen as being affected by one’s acts or omissions. In Home Office v Dorset Yacht Co (1970), the House of Lords applied the neighbour principle and held the Home Office liable for damage caused by Borstal boys who escaped due to the warders’ negligence. Lord Reid confirmed that the neighbour principle should apply unless there is a valid reason to exclude it, placing the burden on the defendant to justify why a duty of care should not exist.

Question 4

What is the extent of duty for the duty of care?

Answer 4

The duty of care is limited by what the defendant can reasonably foresee. In Bourhill v Young (1942), no duty was owed because the motorcyclist could not reasonably foresee harm to a woman who only heard, but did not see, the accident from a distance. Similarly, in King v Philips (1953), a taxi driver was not liable for a mother’s shock because her distress, caused by misinterpreting her child’s screams from far away, was not a foreseeable result of the driver’s actions.

Question 5

Limitations to duty of care principle

Answer 5

Judges are immune from actions in tort for acts carried out in the course of their judicial duties, and arbitrators enjoy similar immunity when acting in a quasi-judicial capacity. Barristers also have immunity, which, following Saif Ali v Sidney Mitchell & Co Ltd (1980), extends beyond courtroom advocacy to include pre-trial work, as long as it is closely and directly connected to the conduct of the case.

Question 6

limitations of duty of care for solicitors

Answer 6

Although solicitors can be sued for negligence, their duty of care is limited. In Clarke v Bruce Lance & Co (1988), the Court of Appeal held that solicitors owed no duty of care to a plaintiff who was not their client. The solicitors acted for the testator, not the devisee under the will, and therefore were not liable when the devisee suffered loss due to unfavourable lease terms attached to the gifted property.

Question 7

limitations to police of duty of care

Answer 7

The police may have immunity or owe only a limited duty of care. In Hill v Chief Constable of West Yorkshire (1989), the House of Lords held that although the police are not generally exempt from negligence claims, no duty of care was owed in this case because the victim was not at a special or identifiable risk, and the police’s failure to catch the offender did not give rise to liability.

Question 8

what is meant by a breach of duty

Answer 8

This means that although the police are not automatically immune from negligence claims, their duty of care is limited. In Hill v Chief Constable of West Yorkshire (1989), the House of Lords decided that the police owed no duty of care because the victim was not at a special or identifiable risk, so the police’s failure to apprehend the offender did not make them liable in negligence.

Question 9

roe vs minister of health (1954)

Answer 9

Roe v Minister of Health (1954) shows that liability in negligence depends on what risks were reasonably foreseeable at the time. Because it was not known in 1947 that phenol could seep into syringes and cause paralysis, the harm was not foreseeable and the defendants were not liable.

Even where harm is foreseeable, liability may still be avoided if the risk is very small. In Bolton v Stone (1951), the chance of a cricket ball leaving the ground and injuring someone was so remote that the defendants were not required to take further precautions and were not negligent. By contrast, in Miller v Jackson, where balls frequently left the ground, the risk was significant and negligence was established.

Question 10

what is meant by risk?

Answer 10

In negligence, courts balance the likelihood of injury against the cost and practicality of preventing it. Where the risk of harm is high and the cost of avoiding it is low, failure to take precautions is more likely to be negligent. Conversely, if the risk is small and the cost of prevention is high, a breach of duty is less likely.

In Latimer v AEC (1953), after flooding caused oil to spread across a factory floor, the defendants spread sawdust to reduce the danger. Although the plaintiff was injured, the court held the employer was not negligent because they had taken reasonable precautions and were not required to close the factory entirely.

Question 11

What are other factors for determining breach?

Answer 11

In assessing negligence, courts consider factors like the seriousness of potential harm, the utility of the defendant’s activity, and common practice.

In Paris v Stepney Borough Council (1951), a one-eyed employee lost sight in his remaining eye while working without goggles. The court held that because the potential harm was extremely serious—total blindness—the employer should have provided protective goggles. Failing to do so was a breach of duty, even if injuries were rare in similar work.

Question 12

what is meant by utility

Answer 12

The social utility of the defendant’s actions can affect whether they are negligent. In Watt v Herts County Council (1954), a fireman was injured while a jack was being transported to rescue a trapped woman. The court held that the urgent, life-saving purpose outweighed the risk of injury, so the defendants were not in breach of duty.

Common practice is also relevant: if a defendant acts in line with widely accepted practices, this is strong evidence that they were not negligent.

Question 13

proof of a breach

Answer 13

Proof of breach in negligence usually requires the plaintiff to show that the defendant failed to exercise reasonable care. The standard of proof is on the balance of probabilities, which is lower than the criminal standard of beyond reasonable doubt.

In some cases, the burden of proof can shift to the defendant under res ipsa loquitur (“the thing speaks for itself”). This applies when the circumstances make it obvious that negligence occurred, even if the plaintiff cannot show exactly what the defendant did wrong. For example, in Scott v London and St Katherine Docks Co (1865), barrels of sugar fell from a warehouse, and the court inferred negligence from the mere fact that the accident happened.

Question 14

Liability for negligent misstatements

Answer 14

Here, advertising agents (Hedley Byrne) asked Easipower’s bankers for a credit reference. The bankers gave a favourable reference but included a disclaimer denying responsibility. Hedley Byrne relied on the reference and suffered financial loss when Easipower went into liquidation.

The House of Lords held that the disclaimer protected the bankers, so no duty arose. However, absent the disclaimer, a duty of care would have existed, establishing that one can be liable for financial loss caused by negligent statements. Today, such disclaimers could potentially be challenged under the Unfair Contract Terms Act 1977.

Question 15

effect of hedley byrne vs heller

Answer 15

Effect of Hedley Byrne: The case established that a person can be liable for negligent misstatement causing economic loss if there is a special relationship between the parties.

Meaning of special relationship:

It exists where a professional or expert gives advice to a person who relies on it for a known purpose.

Liability arises only in a professional or business context, not in casual, social, or informal situations.

The defendant must be in the business of giving advice, and the statement must be made as part of that professional role.

Question 16

caparo industries vs dickman

Answer 16

Caparo Industries v Dickman (1990) clarified the modern test for imposing a duty of care, especially for economic loss.

Facts: Caparo, a shareholder, bought shares in F plc after relying on the company’s audited accounts, which showed a profit when there had actually been a loss. After a takeover bid, Caparo sued the auditors, claiming they owed a duty of care to investors and potential investors who might rely on the accounts.

The case is significant because it introduced the three-part test for duty of care:

Foreseeability – Was harm to the claimant a foreseeable result of the defendant’s conduct?

Proximity – Was there a sufficiently close relationship between the parties?

Fair, just, and reasonable – Would it be fair to impose a duty of care in the circumstances?

This case limited the scope of duty in negligent misstatement: auditors do not owe a general duty to all investors, only to those with a special relationship.

Question 17

caparo vs dickman held

Answer 17

Caparo Industries v Dickman (1990) – Held:

The court established three criteria for a duty of care:

Foreseeability: The harm must be a reasonably foreseeable result of the defendant’s actions.

Proximity: There must be a sufficiently close relationship between the parties. For statements, this means the statement must be communicated to the claimant as an individual or member of an identifiable group, for a particular transaction, and the claimant relies on it. Factors include the purpose of the statement, the defendant’s knowledge of the claimant, and the type of transaction.

Fair, just, and reasonable: Imposing a duty must be consistent with public policy and not impose unfair burdens.

Application to Caparo: The auditors owed no duty of care to the public at large or to individual shareholders buying additional shares. Liability was limited because there was no sufficiently proximate relationship, and it would not be fair or reasonable to impose such a duty broadly.

Question 18

where there is a special relationship

Answer 18

A duty of care arises when advice or financial statements are prepared for a specific purpose, and the claimant is relying on them for that purpose. This means the defendant must know the purpose and who will rely on the information, creating the necessary proximity for liability

Question 19

Morgan Crucible vs Hill samuel bank (1991)

Answer 19

Morgan Crucible v Hill Samuel Bank (1991) illustrates the application of the Caparo proximity test in negligent misstatement.

Facts: MC made a takeover bid for FCE plc. FCE issued circulars with profit forecasts recommending shareholders not to accept MC’s bid. MC later increased its bid, relying on these circulars. After completing the takeover, MC discovered the accounts grossly overstated profits, and the company was worthless. MC sued FCE’s bank, directors, and accountants for negligence.

Held: Unlike in Caparo, there was sufficient proximity because the circulars were prepared knowing that MC would rely on them for a specific purpose—deciding whether to increase its bid. Liability in negligent misstatement can therefore arise when:

The advice or information is prepared for a particular purpose,

The defendant knows the claimant will rely on it, and

The reliance is foreseeable and intended.