Chapter:6

NEGLIGENCE
 Introduction

 In everyday terms, negligence means failure to pay attention to what ought to

be done or to take the required level of care. Its everyday usage implies a
state of mind (carelessness).

 Whereas the tort of negligence is concerned with the link between the
defendant’s behaviour and the risk that ought to have been foreseen.

 When revising negligence, be careful not to let the everyday meaning of the
word distract you from the legal meaning of negligence.
 Introduction

 Negligence ,means careless or unreasonable conduct which causes harm to

another.

 A breach of legal duty to take care which results in damage to the claimant.
 Types of Negligence

 There are two types of Negligence

1. Advertent Negligence
 Also called willful negligence or recklessness.
 Harm done is foreseen as possible or probable, but it is not willed.
 Example: Person who drives furiously in a crowded street causes injury
to persons is said to have committed Advertent Negligence.

2. Inadvertent Negligence
 Negligence as a result of ignorance, thoughtlessness or forgetfulness
 Harm is neither foreseen nor willful.
 Example: Doctor who treats a patient with negligence
 Theories about Negligence
 Subjective Theory of Negligence

 According to Austin, negligence results from inadvertence or failure to apply

one’s mind to the nature and consequences of one’s wrongful act. In this
sense, the negligent act is the opposite of an intentional act.
 It is basically mental attitude of undue indifference with respect to one’s
conduct and its consequences.
 Thus, according to this theory negligence is a mode of committing certain
torts and not a separate or specific tort.
 Theories about Negligence

 Objective Theory of Negligence

 According to some jurists, negligence is not a state of mind but a particular

kind of conduct. In this view, negligence is due to failure to take reasonable
precautions.
 According to Clark and Lindsell, negligence consists in the omission to take
such care as under the circumstances it is the legal duty of a person to take.
 It should be treated as a specific tort.
 The house of Lords in Donoghue Vs. Stevenson, (1932) AC 562 recognized this.

 Salmond criticized the objective theory on the following grounds:

 Failure to take care need not always be due to negligence. Failure to take
precautions may be accidental or wilful.
 By merely looking at the conduct of a man, it is not possible to assert whether
the lack of care is negligent, intentional or accidental.
 Elements of the tort

 To succeed in a negligence action the claimant must prove three things:

1. that the defendant owed him a duty of care;
2. that the defendant was in breach of that duty; and
3. that the claimant suffered damage caused by the breach of duty, which was
not too remote.

 The defendant may raise certain defences to the action. The most important
defences are that the claimant consented to run the risk of the injury (volenti
) or that the defendant was contributorily negligent.
 Elements of the tort

 Example
 A drove his car over the speed limit and failed to keep a proper lookout, as he
was talking to the passenger next to him. A’s car struck B, a pedestrian,
causing personal injuries to B.
 Analysing this event in terms of the legal categories, A owed a duty of care to
B as one road user to another.
 A was in breach of the duty in speeding and failing to keep a proper lookout
(i.e. A was ‘negligent’).
 B has suffered damage as a result of A’s negligence.
 If B had failed to look before stepping into the road, it would be open to a
court to find that B had been contributorily negligent and reduce his damages
by the proportion which he was held to be responsible for the accident.
 The interests protected

 Negligence is the most important modern tort. Other torts are normally
identified by the particular interest of the claimant which is protected: for
example,
1. Defamation protects interests in reputation
2. Nuisance protects a person’s use and enjoyment of land.

 Negligence, on the other hand, protects a number of interests and the only
unifying factor is the defendant’s conduct, which must be labelled as
negligent if liability is to arise.
 The interests protected

 Three interests can be identified as being protected by the tort of negligence.

These are: protection against personal injury, damage to property and
economic interests. Economic losses consequential on damage to the person
and damage to property may also be recovered.

 Examples
 A drives his car negligently and collides with B’s car. This causes personal
injuries to B and damage to his car (property damage). B may recover
damages from A for both these losses. B may lose wages as a result of his
injuries and may have to hire a car while his own is being repaired. Both these
losses are recoverable as consequential economic loss.
 A asks his solicitor, B, to draw up a will leaving A’s property to C. B negligently
drafts the will with the result that C is unable to take his bequest under the
will. C may sue B in negligence, for the value of his lost bequest. The interest
protected here is C’s economic interest and C is said to recover damages for
pure economic loss. C has suffered no personal injuries or property damage
and his loss is said to be damage to the pocket or pure economic loss.
 Problem areas

 Negligence expanded so quickly in the twentieth century that, at one time, it

appeared possible that it would make other torts redundant.

 Its popularity was based on a fairly simple formula of fault, backed by

insurance. The structure is now creaking due to problems in the insurance
market and negligence no longer seems the simple panacea for all legal
problems that it once did.

 Insurance factor dilutes the personal deterrence objective of negligence

 Medical negligence There have been claims that India is suffering a medical
malpractice crisis similar to that in the United States and UK. Doctors claim
that the threat of litigation leads to ‘defensive medicine’: i.e. carrying out
procedures in order to avoid being sued, rather than for the benefit of the
patient. The rise in the Caesarean section rate is often pointed to as an
example of defensive medicine
 Liability in contract and tort

 Where the parties have a contractual relationship, can there also be tortious
liability? The answer to this question has practical importance as if the
answer is yes, the claimant will be able to take advantage of tortious rules
which may be more advantageous. This is known as concurrent liability.

 The most important of these will be the rules on limitation. These rules
govern the time period within which a claimant must bring an action. In
contract, time periods generally run from the time a contract is made and in
tort from the time damage is suffered.

 Other rules are those on causation and remoteness. Remoteness principles in

tort are generally thought to be more favourable to the claimant than those
in contract.
 Duty of care

 The first element of negligence is the legal duty of care.

 This concerns the relationship between the defendant and claimant, which
must be such that there is an obligation upon the defendant to take proper
care to avoid causing injury to the claimant in all the circumstances of the
case.

 It is accepted that negligence does not exist in a vacuum and that there is no
all embracing duty owed to the whole world in all circumstances.

 Duty of care, therefore, exists as a control device in order to determine who

can bring an action for negligence and in what circumstances.
 Duty of care

 Demands for protection against negligent conduct are virtually limitless.

When a person suffers loss as a result of negligent conduct, they will want to
shift that loss on to the person who caused it through a negligent action.

 When a negligence action is brought to court, the judge will usually be able to
rely on a precedent to determine whether a duty exists. But what if there is
no precedent? What test should the judge use to determine whether a duty
exists in this particular case?
 Duty of care

There are two ways in which a duty of care may be established:

1. the defendant and claimant are within one of the ‘special relationships’; or
2. outside of these relationships, according to the principles developed by
case law
 Duty of care

Established duty situations: there are a number of situations in which the courts
recognise the existence of a duty of care. these usually arise as a result of some
sort of special relationship between the parties. examples include:

1. one road-user to another

2. employer to employee
3. manufacturer to consumer (see Donoghue v. Stevenson) doctor to patient
4. solicitor to client

Outside of these categories of established duty, a duty of care will be

determined on the basis of individual circumstances. The ‘neighbour principle’
formulated by lord Atkin in Donoghue v. Stevenson [1932] Ac 562 (hl) was
initially used to determine whether a duty of care existed between defendant
and claimant:
 Duty of care

 Donoghue v Stevenson [1932] AC 562

 A friend of the plaintiff purchased ginger beer in an opaque bottle. The
plaintiff poured half of the ginger beer into a glass and drank it. She then
poured the remainder into the glass and saw the remains of a decomposed
snail. She claimed to have suffered illness as a result. She sued the
manufacturers of the ginger beer in negligence as she had no contract with
either the retailer or the manufacturer. The House of Lords laid down that a
duty was owed by the defendant to the plaintiff.
 Duty of Care

 Legal principle
 Since Mrs Donoghue had not bought the bottle of ginger beer herself she
could not make a claim in contract upon breach of warranty. She therefore
brought an action against the manufacturer of the ginger beer.

 The House of Lords had to decide whether a duty of care existed as a matter
of law. The House of Lords held that the manufacturer owed her a duty to
take care that the bottle did not contain foreign bodies which could cause her
personal harm. This is known as the narrow rule in Donoghue v. Stevenson –
that a manufacturer of goods owes a duty of care to their ultimate consumer.
 Duty of Care

 More importantly, the case establishes the neighbour principle which

determines whether the defendant owes a duty of care in any situation. Lord
Atkin stated:

 “You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in
law is my neighbour? The answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to have them in my
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.”
 Duty of Care

 This is probably the most famous case in legal history. Why?

1. It destroyed the privity fallacy.
2. A new category of duty was created: that of manufacturers of products to
their ultimate consumers.
3. The fame of the case rests on the obiter dicta. Lord Atkin stated his famous
neighbour test as a general test for determining whether a duty of care
existed.
 Duty of Care

Caparo Industries plc v. Dickman [1990] 2 AC 605 (HL)

 Concerning: duty of care

 Facts
 The case considered the liability of an auditor for financial loss suffered by
investors. However, it also set out the three points which a court must
consider to establish whether a duty of care exists.

 Legal principle
 The three points are:

1. reasonable foresight of harm.

2. sufficient proximity of relationship.
3. that it is fair, just and reasonable to impose a duty.
 Duty of Care

 It has often been remarked that the boundaries between these three
concepts [from Caparo] are somewhat porous but they are probably none the
worse for that.

 In particular, the requirement that the imposition of a duty should be fair,

just and reasonable :
1. may sometimes inform the decision as to whether the parties should be
considered to be in a relationship of proximity and
2. may sometimes provide a special reason as to why no duty should exist,
notwithstanding that the relationship would ordinarily qualify as proximate.
 Duty of care

The basic elements that need to be considered in establishing duty of care are :

 Was there reasonable foresight of harm?

 Was there sufficient proximity of relationship?
 Was it fair, just and reasonable to impose a duty?

 Note: Please don’t engage in a discussion of the elements of the duty of care
if you are tackling a problem question that deals with an established duty
situation. You will waste words and time going through the Caparo test if the
problem involves, say, an incident between road users. You should simply say
that there is an established duty situation and move on to the key issues
raised by the question.
 Duty of care

 Liability for failing to act

 In general, you do not owe a duty to the world to take positive action to
prevent harm.

 Exceptions
There is a duty to act positively if there is a special relationship or a relationship
of power or control between the parties. examples include:
 prison officers and prisoners
 employer and employee
 occupier and visitor
 parent and child
 Duty of Care

 Unborn children
 The existence of a duty of care requires reasonable foresight of harm.
However, in the case of unborn children, the defendant might not realise that
the female claimant is pregnant, although it is quite possible that a person’s
negligence might harm an unborn child.

 In Burton v. Islington Health Authority [1993] QB 204 (CA) it was held that a
duty of care is owed to an unborn child which becomes actionable on birth.
 Duty of Care

 Police, rescuers and public authorities

 The courts have found that there is no general duty of care owed by the
police to any particular individual.

 In Hill v. Chief Constable of West Yorkshire [1989] AC 53 (HL) it was held that
the duty of the police is to the public at large.

 The mother of his last victim sued the police for negligence for failing to catch
culprit, alleging numerous missed opportunities. The House of Lords held that
the police owed no duty of care towards Susan Hill to protect her from the
Ripper on the basis that if such claims were allowed, the police would be
inhibited in the exercise of their professional judgement and that a significant
amount of police resource would be diverted from investigating crime to the
defence of civil cases brought against them.
 Breach of Duty

 The second element of negligence is breach of duty. Having established that a

duty of care exists in law and in the particular situation, the next step in
establishing liability is to decide whether the defendant is in breach of that
duty – in other words, whether the defendant has not come up to the
standard of care required by law.

 Where anyone is engaged in a profession, the law expects him/her to possess

the average amount of competence in that particular profession and if he
hails to exercise that amount of average skill, he will be held liable for
negligence. The highest competence or skill is not expected.

 Apart from three elements of Duty of care, here learners are required to
check fourth requirement (i.e) Did the defendant fall below the required
standard of care?
 Breach of Duty

 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 prudent and reasonable man would
not do.

 The reasonable person

 The conduct of the defendant will be measured against that of the reasonable
person. What are the characteristics of such a person? In Hall v. Brooklands
Auto-Racing Club [1933] 1 KB 205 (CA), Greer LJ described such a person as:
 ‘the man in the street’; or
 ‘the man on the Clapham omnibus’
 Breach of Duty

 Rural Transport Service vs Bezlum Bibi, AIR 1980 Cal 165

 Deceased boarded a bus run by the appellant. Since the bus was overcrowded
the deceased along with other passengers got on to the roof of the bus as
there was no accommodation available inside the bus. He took his seat on the
right side. The deceased was struck by an overhanging branch of a tree and
he fell down on the ground sustaining multiple injuries in his forehead, chest
etc. He died on the day following as a result of the injuries suffered. The
mother and the brother of the deceased lodged a claim of Rs. 20,000 by way
of compensation against the appellant and the insurer.

 Court held that driver and the conductor were neglient. Inviting passengers to
travel on the roof amounts to rash and negligent act and a great amount of
care and caution is expected from them.
 Breach of Duty

 Muir Vs. Glasgow Corporation, (1943) AC 488

 This action arises out of an unfortunate accident to six young children in the
old mansion house in the King's Park, Glasgow, which belongs to the
appellants. At that time the mansion house was being used inter alia for the
service of teas to visitors to the park.

 Two members of picnic party were carrying big urn containing hot tea to the
tea room. Suddenly one of the person lost the grip of the handle of the urn
thereby injuring the children. It was alleged that manager could not anticipate
such an event would happen as a consequences of tea urn being carried
through passage and therefore, had no duty to take precautions against the
occurrence of this event.
 Breach of Duty

 Lord MacMillan observed:

 “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. Some persons are by nature unduly
timorous and imagine every path beset with lions. Others, of more robust
temperament, fail to foresee or nonchalantly disregard even the most obvious
dangers. The reasonable man is presumed to be free both from over-apprehension
and from over-confidence, but there is a sense in which the standard of care of the
reasonable man involves in its application a subjective element. 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, and what, accordingly, the party sought to be
made liable ought to have foreseen. Here there is room for diversity of view, as,
indeed, is well illustrated in the present case. What to one judge may seem far-fetched
may seem to another both natural and probable.”
 Breach of Duty

 Sushma Mitra vs Madhya Pradesh State Road, AIR 1974 MP 68

 The facts that the plaintiff alleged were was going in Bus belonging to the
Madhya Pradesh State Road Transport Corporation, from Jabalpur to
Chhindwara. There was a head-on collision between the two vehicles at a
distance of about seven miles from Jabalpur. As a result of this impact, the
plaintiff received severe injuries to her right elbow causing multiple fractures.
 Motor Owners Insurance Co., Which is the insurer of the truck, pleaded that
the Plaintiff projected her right elbow outside the bus in which she was
travelling and sustained the injuries on account of her own fault knowing well
that a vehicle was coming from opposite direction.
 In the opinion of the trial Court, the plaintiff herself was negligent in keeping
out her elbow and. therefore, she was not entitled to any damages.
 Breach of Duty

 Justice GP Singh observed

 “I have not been referred to any Indian or English authority in which a duty of care may
have been recognised in favour of a Passenger who keeps his elbow out. But absence
of a direct precedent to cover the facts of the instant case does not imply that no
duty situation can be recognised in this case”.

 “It cannot be disputed that the driver of a bus which carries passengers owes a duty of
care for the safety of passengers. While driving he must have the passengers in
contemplation and he must avoid acts or omissions which can reasonably be
foreseen to injure them and in deciding what acts or omissions he should avoid, he
must bear in mind the normal habits of passengers. It is a matter of common
experience that passengers who sit adjoining a window very often rest their arm on
the window sill by which act the elbow projects outside the window”.

 HC also rejected the argument of contributory negligence as passengers were not

cautioned to not to rest their arm on window.
 Breach of Duty

 NOTE:

 The reasonable person, therefore, is ‘average’, not perfect. In deciding

whether a defendant has breached the duty of care, the court applies an
objective test. In other words, the general question is ‘what would a
reasonable person have foreseen in this particular situation?’ rather than
‘what did this particular defendant foresee in this particular situation?’.

 Don’t confuse the terms duty of care and standard of care. The standard of
care determines whether a particular duty of care has been breached. You
should always consider the existence of the duty itself before discussing
whether or not a particular defendant has reached the appropriate standard
required to absolve him or her from liability.
 Breach of Duty

 Special standards of care

 There are certain situations in which the courts apply a different standard of
care from that of the reasonable person since the application of the general
standard of care as that of the reasonable person would not be suitable:

 where the defendant has a particular skill;

 where the defendant has a particular lack of skill;
 where the defendant is a child;
 where the defendant is competing in or watching a sporting event.

 For instance, a doctor would be expected to show a greater degree of skill

and care to a patient than ‘the man on the Clapham omnibus’
 Breach of Duty

 Bolam v. Friern Hospital Management Committee [1957] 1 WLr 582 (QBD)

 Facts
 the claimant underwent a course of electro-convulsive therapy in hospital as
treatment for severe depression. this involves the application of electrical
current to the patient’s head with the aim of causing seizures. the doctor
failed to provide the claimant with any muscle relaxants or any physical
restraint. the claimant suffered dislocation of both hip joints with fractures of
the pelvis on each side. the court had to decide whether it was negligent not
to provide relaxants or restraints.

 Legal principle
 the standard of care for doctors is ‘the standard of the ordinary skilled man
exercising and professing to have that special skill’. there were conflicting
views from practitioners on the use of relaxants and restraints. As there were
therefore doctors who would have acted in the same way, the doctor treating
the claimant had acted in accordance with a competent body of medical
opinion and was therefore not negligent.
 Breach of Duty

 However, the Bolam test has also been criticized for being too protective of
professionals. in medical negligence cases in particular, it has been argued
that the test allows practitioners to set their own standards, rather than
having those standards set by the courts.
 Breach of Duty

 V.Krishan Rao Vs Nikhil Super Speciality Hospital, (2010) 5 SCC 513

 Krishna Rao, an officer in malaria department filed a complaint against the
hospital for negligent conduct in treating his wife. His wife was wrongly
treated for typhoid fever instead of malaria fever, due to the wrong
medication provided by the hospital.
 Finally, the verdict was given and Rao was awarded a compensation of Rs 2
lakhs. In this case, the principle of res ipsa loquitor (thing speak for itself) was
applied and the compensation was given to the plaintiff.
 Breach of Duty

 Jacob Mathew .V. State of Punjab, 2005 (6) SCC 1

 The Supreme court held that in some cases of medical profession the doctors
are equipped in certain situation where they have to make choices between
a devil and the deep sea.
 Sometimes in certain situation there must be greater risk in the operation but
higher chances of success and in another move there would be lesser risk but
higher chances of failure.
 So the decision, that which course would be follow will depend on facts and
circumstances of case.
 Breach of Duty

 Unskilled defendants
 The general standard of care in negligence is an objective test, judged against
the standards of the reasonable person. this means that no allowance is
made for the inexperience or lack of skill of the defendant.

 Nettleship v. Weston [1971] 2 QB 691 (ca)

 Concerning: negligence; unskilled defendants
 Facts: A learner driver crashed into a lamp post and injured her instructor.
 Legal principle: the driver was liable despite her inexperience. the standard of
care required of all motorists is the same: that of the reasonably competent
driver.
 Breach of Duty

 Children
 Child defendants are expected to reach the standard of care reasonably
expected of ordinary children of the same age.

 Mullin v. Richards [1998] 1 WLr 1304 (ca)

 Concerning: negligence; children
 Facts: two 15-year-old schoolgirls were fencing with plastic rulers during a
class when one of the rulers snapped and a fragment of plastic caused one of
them to lose all useful sight in one eye.
 Legal principle: As hutchison J stated: the question for the judge is not
whether the actions of the defendant were such as an ordinarily prudent and
reasonable adult in the defendant’s situation would have realised gave rise to
a risk of injury, it is whether an ordinary, prudent and reasonable 15-year-old
schoolgirl in the defendant’s situation would have realised as such’.
 Breach of Duty

 Sporting events
 Spectators and competitors in sporting events may be owed a lower
standard of care than the general standard.

 Wooldridge v. Sumner [1963] 2 QB 43 (CA)

 Concerning: standard of care owed to spectators
 Facts: An experienced rider at an equestrian event galloped his horse
around a corner so quickly that the horse went out of control, plunged off
the track and injured a photographer in the ensuing chaos.
 Legal principle: This was held to be ‘an error of judgement’ on the part of
the rider rather than actionable negligence; furthermore, the Court of
Appeal held that the duty of care would only be breached where a
competitor demonstrated a ‘reckless disregard’ for the safety of the
spectator.
 Breach of Duty

 Other relevant factors

 When determining the standard of care, the courts will take all the
circumstances of the case into account. This will possibly involve
consideration of a number of other relevant factors including:

 the magnitude of the risk

 the cost and practicability of precautions
 the social value of the defendant’s activities
 what the reasonable person would have foreseen.

 Note: Many students fail to consider all the circumstances when deciding
whether there has been a breach of duty. Therefore, if the facts of the
question present an opportunity for you to discuss their possible effects on
the standard of care, you should do so.
 Breach of Duty

 Magnitude of risk
 The magnitude of the risk is determined by the likelihood of it occurring
and the seriousness of the potential injury.

 Bolton v. Stone [1951] AC 850 (HL); Miller v. Jackson [1977] QB 966 (CA)
 Concerning: standard of care; likelihood of injury
 Facts: Both cases involved damage caused by cricket balls which had been
hit out of the ground. In Bolton v. Stone the ground had been occupied and
used as a cricket ground for about 90 years, and there was evidence that
on some six occasions in a period of over 30 years a ball had been hit into
the highway, but no one had been injured. In Miller v. Jackson cricket balls
were hit out of the ground eight or nine times a season.
 Legal principle: A greater risk of damage than normal increases the
standard of care required of a potential defendant. Negligence was not
found in Bolton v. Stone but was in Miller v. Jackson.
 Breach of Duty

 Seriousness of injury
 If the defendant knows that a specific individual is at risk of suffering greater damage
than normal, the defendant may be required to reach a higher standard of care.

 Paris v. Stepney Borough Council [1951] AC 367 (HL)

 Concerning: standard of care; seriousness of injury
 Facts: The claimant was a mechanic. His employers knew that he was blind in one eye.
While the claimant was using a hammer to remove a bolt on a vehicle, a chip of metal
flew off and entered his good eye, so injuring it that he became totally blind. The
defendants did not provide goggles for him to wear, and there was evidence that it
was not the ordinary practice for employers to supply goggles to men employed in
garages on the maintenance and repair of vehicles.
 Legal principle: The defendants owed a higher standard of care to the claimant
because they knew that an injury to his good eye would cause him much more serious
consequences than the same injury to a worker with two good eyes.
 Breach of Duty

 Cost and practicability of precautions

 The court will also take into account what (if any) measures the defendant could
have taken to avoid the risk of injury, the cost of those measures and the ease
with which they could have been implemented.

 Latimer v. AEC Ltd [1953] AC 643 (HL)

 Concerning: standard of care; cost and practicability of precautions
 Facts: Owing to an exceptionally heavy storm of rain, a factory was flooded with
surface water which became mixed with an oily liquid used as a cooling agent for
the machines, which was normally collected in channels in the floor. When the
water drained away from the floor, which was level and structurally perfect, it left
an oily film on the surface which was slippery. The defendants spread sawdust on
the floor, but owing to the unprecedented force of the storm and consequently
the large area to be covered, there was insufficient sawdust to cover the whole
floor. In the course of his duty the claimant slipped on a portion of the floor not
covered with sawdust, fell, and was injured.
 Breach of Duty

 Legal principle: The only way to remove the risk would have been to close the
affected part of the factory until it had dried out. This would have been
expensive and disproportionate to the relatively small risk of injury.

 Therefore, the greater the risk of injury, the more a defendant has to do to
reduce or eliminate that risk, even if it is costly. The defendant will not
generally be able to rely on the fact that the cost of precautions was too
expensive to excuse their breach of duty. Impecuniosities is not a defence to a
breach of duty.
 Breach of Duty

 Social value
 Where the defendant’s behavior is in the public interest, it is likely to require
the exercise of a lower standard of care.

 In Daborn v. Bath Tramways Motor Co Ltd [1946] 2 All ER 333 (CA)

 Asquith LJ stated that ‘the purpose to be served, if sufficiently important,
justifies the assumption of abnormal risk’. Where human life is at risk, a
defendant may also justifiably take abnormal risks .

 However, this does not mean that the defendant is justified in taking any risk.
Emergency services, for example, must still take care in passing red traffic
signals and remember to use their sirens and lights to alert other road users
to their presence.
 Breach of Duty

 Proving breach of duty

 The legal burden of proving breach of duty is on the claimant. This must be
established ‘on balance of probabilities’. However, there are certain circumstances
in which the claimant may have some assistance like where the maxim res ipsa
loquitur applies.

 This is a Latin phrase which means ‘the thing speaks for itself’.
 In certain circumstances courts will be prepared to find a breach of duty against
the defendant without hearing detailed evidence and therefore prima facie
negligence. There are three conditions which must be satisfied for the claimant to
be able to use res ipsa loquitur.

 Claimant will be assisted by res ipsa loquitur if:

1. the thing causing the damage is under the control of the defendant or someone
for whose negligence the defendant is responsible;
2. the cause of the accident is unknown;
3. the accident is such as would not normally occur without negligence.
 Breach of Duty

 If res ipsa loquitur is available, then it raises a prima facie presumption of

negligence against the defendant. The defendant must then explain how the
accident could have occurred without negligence. If the defendant succeeds,
then the claimant must try to prove the defendant’s negligence. This will be
difficult, since, if negligence could be proved it is unlikely that the claimant
would have relied on res ipsa loquitur in the first place. The burden of proof
does not shift from the claimant

 MCD Vs Subhagwati, AIR 1966 SC 1750

 Causation and Remoteness of Damage

 Causation and remoteness provide the link between the defendant’s

negligent conduct and the harm suffered by the claimant.
 Causation and Remoteness of Damage

 Causation
 The claimant must show a causal link between the defendant’s act or
omission and the loss or damage suffered. This is often referred to as the
‘chain of causation’.

 Factual causation
 The breach of duty must be the factual cause of the damage. The general test
used by the courts to determine factual causation is known as the ‘but for’
test.
 Causation and Remoteness of Damage

 Cork v. Kirby MacLean Ltd [1952] 2 All ER 402 (CA)

 Concerning: causation; ‘but for’ test

 Facts: A workman, an epileptic, was set to work painting the roof inside a factory,
which necessitated his doing the work from a platform some 23 feet above the floor of
the factory. There were no guard-rails . The workman fell from the platform and was
killed.

 Legal principle: Lord Denning stated that:

 . . . if the damage would not have happened but for a particular fault, then that fault
is the cause of the damage;
 if it would have happened just the same, fault or no fault, the fault is not the cause of
the damage.

 In this case, had appropriate railings been installed, the claimant would not have not
fallen off the platform while having the seizure.
 Causation and Remoteness of Damage

 Barnett v. Chelsea and Kensington Hospital Management Committee [1969]

1 QB 428 (QBD)
 Concerning: causation; ‘but for’ test

 Facts
 A patient was turned away from a casualty department by a doctor who
refused to examine him. He later died of arsenic poisoning. It was shown that
the man would not have recovered even if the doctor had treated him.

 Legal principle
 The hospital was not liable for the clear breach of duty in failing to treat the
patient. The failure to treat was not the cause of death. The patient would
have died just the same.
 Causation and Remoteness of Damage

 Problems in proving factual causation

 Although the ‘but for’ test might seem straightforward, there are situations in
which proving factual causation is more difficult. This can occur in cases
involving:

 multiple causes of damage

 a ‘lost chance’ of recovery
 multiple consecutive causes of damage.
 Causation and Remoteness of Damage

 Multiple causes of damage

 Where there is more than one possible cause of harm to the claimant, the claimant
does not have to show that the defendant’s breach of duty was the only cause of
damage or even the main cause of damage.

 Bonnington Castings Ltd v. Wardlaw [1956] AC 613 (HL)

 Concerning: causation; multiple causes of damage
 Facts
 The claimant contracted pneumoconiosis after working for years in dusty conditions.
There were two main causes of dust in the foundry, one of which was required by law
to be extracted. It was impossible to prove which dust the claimant had inhaled.
 Legal principle
 Since the dust which should have been extracted was at least a partial cause of the
damage, the defendant was liable in negligence. The claimant therefore only needs to
show that a defendant’s breach of duty ‘materially contributed’ to the damage.
 Causation and Remoteness of Damage

 A ‘lost chance’ of recovery

 The courts are extremely reluctant to impose liability where the negligence of the
defendant caused the claimant to lose a chance.

 Hotson v. East Berkshire Area Health Authority [1987] AC 750 (HL)

 Concerning: causation; lost chance
 Facts
 A boy fractured his hip when he fell from a tree. The hospital made a misdiagnosis and
the boy developed a hip deformity. Experts confirmed that he would have had a 75%
chance of developing the deformity with a correct diagnosis. The Court of Appeal
upheld the decision of the trial judge who awarded the boy 25% of the damages that
were considered appropriate for his injury. The Health Authority appealed to the
House of Lords.
 Legal principle
 The decision of the Court of Appeal was reversed. The House of Lords considered that,
since there was only a 25% chance that the negligence had caused the boy’s injuries,
this did not satisfy the balance of probabilities.
 Causation and Remoteness of Damage

 Multiple consecutive causes of damage

 Where there are consecutive causes of damage, the application of the ‘but
for’ test is applied to the original defendant.

 Performance Cars Ltd v. Abraham [1962] 1 QB 33 (CA)

 Concerning: multiple consecutive causes
 Facts
 The first defendant negligently drove into a Rolls-Royce. The Rolls-Royce was
later negligently struck by another car, driven by the second defendant.
 Legal principle
 The first defendant remained liable. The second defendant was not liable for
the cost of the respray since the car already needed a respray on the same
point at the time of the collision with the second defendant.
 Causation and Remoteness of Damage

 Novus actus interveniens

 An intervening act may break the chain of causation between the

defendant’s breach of duty and the loss or damage suffered by the claimant.
 If the novus actus interveniens is sufficient to break the chain, then the
defendant may not be liable despite being in breach of the duty of care. The
intervening act may be:

 a third-party act;
 an act of the claimant; or
 an act of nature.
 Causation and Remoteness of Damage

 For a third-party act:

 In Jobling v. Associated Dairies, [1982] AC 794 (HL)

 Facts: The claimant was injured at work due to his employer’s negligence. He
slipped and injured his back and lost 50% of his earning capacity as a result.
Three years later, he developed spondylotic myelopathy, a spinal disease. This
had not been brought about by the accident. He was consequently unable to
work.
 Legal Principle: The disease of the spine was held to be a novus actus
interveniens which did break the chain of causation.
 Causation and Remoteness of Damage

 Act of the claimant

 In this case, the novus actus interveniens will mean that the claimant is responsible for
his own damage.

 McKew v. Holland Ltd [1969] 3 All ER 1621 (HL)

 Concerning: novus actus interveniens; act of the claimant

 Facts: As a result of the defendants’ negligence, the claimant suffered a leg injury. This
left his leg seriously weakened. He later fell when attempting to descend a steep flight
of steps with no handrail, suffering further serious injuries. He did not seek assistance
in climbing the stairs.

 Legal principle: The claimant’s act in attempting to descend a steep staircase without
a handrail in the normal manner and without adult assistance when his leg had
previously given way on occasions was unreasonable. The court held that his act was
a novus actus interveniens which had broken the chain of causation. As a result, the
defendants were not liable in damages for his second injury.
 Causation and Remoteness of Damage

 Act of nature
 Intervening acts of nature will not generally break the chain of causation.
 However, the defendant will not normally be liable where the intervening act of
nature is unforeseeable and separate from the initial negligent act or omission.

 Carslogie Steamship Co Ltd v. Royal Norwegian Government [1952] AC 292 (HL)

 Concerning: novus actus interveniens; act of nature
 Facts: The claimant’s ship was damaged following a collision. After temporary repairs,
the ship then set off on a voyage to a port in the United States where permanent
repairs could be carried out. During her voyage across the Atlantic the ship sustained
further heavy damage during a storm.
 Legal principle: The defendants were not liable for the damage caused by the storm.
The court held that the storm could have happened on any voyage and therefore the
storm damage was not a consequence of the collision. It was unforeseeable and quite
separate.
 Causation and Remoteness of Damage

 Remoteness
 The final element required in establishing negligence is the extent of the damage
suffered by the claimant which should be attributable to the defendant.
 In other words, for how much of the claimant’s loss should the defendant be
responsible?
 Remoteness is sometimes referred to as ‘legal causation’ or ‘causation in law’.
 It is basically a test to identify whether injury caused was a remote consequences of
the wrongful act or omission of the defendant. Failure to prove by the plaintiff will
result into non imposition of liability on the defendant.
 It is based on a belief that a person can visualise only the natural and proximate
consequences.
 Now the test of remoteness has drifted from earlier established notion that
he who does the first wrong shall answer for all consequential damages.
 Two important tests laid down by courts are test of directness and test of resonable
forseeability.
 Causation and Remoteness of Damage

 Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560 (CA)

 Concerning: remoteness of damage
 Facts: The charterers of a ship filled the hold with a cargo including a number of
containers of petrol. These filled the hold with petrol vapour which ignited when a
heavy plank was dropped into the hold by a labour whilst the ship was unloading,
destroying the ship.
 Legal principle: The Court of Appeal held that the defendant was liable. Although
the fire itself may not have been foreseeable, it was held that the defendant would
nevertheless be liable for all direct consequences of his actions. The court reasoned
that if the act would or might probably cause damage, the fact that the damage it in
fact causes is not the exact kind of damage one would expect is immaterial, so long
as the damage is in fact directly traceable to the negligent act and not due to the
operation of independent causes.
 That a defendant can be deemed liable for all consequences flowing from his
negligent conduct regardless of how unforeseeable such consequences are.
 Popularly knows as test of directness.
 Causation and Remoteness of Damage

 The test in Re Polemis does not limit liability for the direct consequences of a
negligent act, however severe or unforeseeable those consequences may be.
It has been criticised for its unfairness in that respect.
 Causation and Remoteness of Damage

 Overseas Tankship (UK) Ltd v. Morts Dock and Engineering Co Ltd (The Wagon
Mound) (No 1) [1961] AC 388 (PC)
 Concerning: remoteness of damage

 Facts: The defendants negligently leaked a quantity of bunkering oil into Sydney
Harbour from a tanker. This oil drifted into the claimant’s wharf where it mixed
with assorted debris. Welding was taking place in the wharf. The claimants sought
(and received) assurances that it was safe for them to continue welding. However,
sparks from the welding ignited the oily wadding which caused fire to spread to
two ships, damaging them. The wharf was also damaged.

 Legal principle: At first instance, the trial judge applied the principles from Re
Polemis, finding that the defendants were liable for the fire damage, since the
damage to the wharf was a foreseeable consequence of the leakage.
 On appeal, the Privy Council reversed the decision, holding that the correct test
for remoteness is reasonable foreseeability of the kind or type of damage in fact
suffered by the claimant.
 Causation and Remoteness of Damage

 Court observed:
 “Even a fool may be wise after the event. But it is not sight of a fool, it is the
foresight if a reasonable man which alone can determine responsibility. “
 Causation and Remoteness of Damage

 The tests in Re Polemis and The Wagon Mound (No 1) cannot be reconciled.
The decision in Re Polemis was taken by the Court of Appeal and has never
been overruled, since The Wagon Mound (No 1) was heard by the Privy
Council.

 As such both cases remain good law. However, The Wagon Mound (No 1) is
now accepted by the courts (including the Court of Appeal) as the relevant
test to follow in questions of remoteness.

 Indian courts have accepted the test of reasonable foressablity as laid down
in the Wagon mound’s case
 Causation and Remoteness of Damage

 The ‘egg-shell skull’ rule

 If the type of injury is foreseeable, but the severity of the injury is not, due to
some pre-existing special condition on the part of the claimant, then the
defendant remains liable for all the losses.
 In essence, the ‘egg-shell skull’ rule means that defendants must take their
victims as they find them.
 Causation and Remoteness of Damage

 Smith v. Leech Brain & Co Ltd [1962] 2 QB 405 (CA)

 Concerning: remoteness; the ‘egg-shell skull’ rule
 Facts: The claimant was splashed by molten metal as a result of his
employer’s negligence and suffered a burn to his lip. This burn triggered
cancer, from which the claimant died. The claimant’s lip was pre-malignant at
the time of the incident.
 Legal principle: Some form of harm from the burn was foreseeable although
the particular type of harm in the particular circumstances was not. However,
despite the fact that death from cancer was not a foreseeable consequence
of the burn, the employers remained liable in negligence for the full extent of
the damage.
 Defences of Negligence

1. Contributory Negligence: It was the Common law rule that anyone who by his
own negligence contributed to the injury of which he complains cannot
maintain an action against another in respect of it. Because, he will be
considered in law to be author of his wrong.

2. Ex turpi causa non oritur actio: A plaintiff will be unable to pursue legal
remedy if it arises in connection with his own illegal act

3. Volenti Non Fit Injuria

4. The rescue cases