NEGLIGENCE

There exist considerable difficulty in fashioning out an exhaustive list of

circumstances under which a duty of care exists between a plaintiff and a defendant.
Whilst the courts have traditionally stuck to certain specific categories of duty, the
demands of modernity and complex social life has necessitated the need to expand and
sometimes redefine the parameters of the concept of duty. There are many strands in
the requirement of duty. So for example there is generally no duty to intervene to
rescue a stranger from peril nor are soldiers under a duty to their comrades in battle.

Again there are circumstances when a duty of care is ousted on grounds of the fact
that the ensuing damage is not one which neither could nor should be within the
reasonable contemplation of the defendant. For example, where a father teaches a son
how to shoot, the father would not be liable where the son drops the gun on the foot of
a neighbour.

In Heaven v. Ponder,1 Brett MR produced a formula for the ascertainment of a duty

situation. He said:
“Whenever one person is by circumstances placed in
such a position with regard to another that everyone of
ordinary sense who did think would at recognise that if
he did not use ordinary care and skill in his own
conduct with regard to those circumstances he would
cause danger or injury to the person or property of the
other, a duty arises to use ordinary care and skill to
avoid such danger”

In Donoghue v. Stevenson,2 Lord Atkin laid down what have been famously referred
to as the ‘neighbour principle’:
“The rule that you are to love your neighbour becomes
in law, you must not injure your neighbour; and the
lawyer’s question, (Who is my neighbour?) receives a
restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably
1
(1883)11 QBD 503 at 509
2
(1932) AC 562 at 580 HL

Lecture Notes – Law of Torts 1

 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 contemplation as being so affected when I am
directing my mind to the acts or omissions which are
called in question.”

In Carmarthenshire County Council v. Lewis,3 it was held that an education

authority owes it a duty to the driver of a vehicle to exercise reasonable supervision of
those children in respect of an adjourning highway so as to prevent them from
endangering the safety on the highway by for example un attended out of the nursery
through an unlocked gate onto the roadway and causing him to swerve to avoid
injuring them.

Again in the case of Buckland v. Gilford Gas Light and Coke Co.,4 it was held that
an electricity authority which has high voltage wires near a climbable tree was liable
to the personal representatives of a child who trespass off a nearby footpath, climb the
tree and was killed.

In Ann v. Merton London Borough Council,5 Lord Wilberforce laid down two
critical tests for establishing a duty whenever there is a breach of the duty. He said:
“. . . the position has now been reached that in order to establish that a
duty of care arises in a particular situation, it is necessary to being the
facts of that situation within those of previous situations in which a
duty of care has been held to exist. Rather the question has to be
approached in two stages. First, one has to ask whether, as between
the alleged wrongdoer and the person who suffered damage there is a
sufficient relationship of proximity or neighbourhood such that, in the
reasonable contemplation of the former, carelessness on his part may
be likely to cause damage to the latter, in which case a prima facie
duty of care arises. Secondly, if the first question in answered
affirmatively, it is necessary to consider whether there are any
considerations which ought to negative, or to reduce or limit the scope
of the duty of the class of person to whom it is owed or the damage to
which a breach of it may give rise.”
3
(1955) AC 549, HL
4
(1949)1 KB 410; (1948)2 All ER 1086
5
(1978) AC 1004 at 1027

Lecture Notes – Law of Torts 2

The two-stage test looked deceptively simple. Applied fairly, a judge ruling on a
novel duty-situation might reason thus, (1) Was the harm to the claimant foreseeable
bringing him within the ‘neighbour principle’? (2) Was there any valid policy reason
to deny the existence of a duty to the claimant?

The Unforeseeable Plaintiff

The general position is that under the common law a duty of care does not exist in the
air. A duty of care can only arise where there are clear relationships and where
relationships are grounded in law.

In Palsgraf v Long Island Railroad Co,6 an employee of the defendant railway

company in helping a passenger on a train negligently dislodged a parcel which the
passenger was carrying. Unbeknown to the employee, it contained fireworks. These
exploded and the shock upset some scales at the other end of the platform. The scales
struck the plaintiff who was standing on the platform. The court held that the plaintiff
must fail because although the conduct was careless no duty was owed to the plaintiff
to protect him against this hazard. The basis of the courts decision rests on the fact
that there was no liability to a plaintiff towards whom harm could not be anticipated.

Again in Bourhill v. Young,7 a motor cyclist carelessly collided with another vehicle.
The plaintiff who was outside the area of foreseeable danger suffered nervous shock
as a result of hearing the noise of the collusion. The House of Lords held that the fact
that the plaintiff was outside the area of foreseeable danger in itself prevented her
form succeeding.

Furthermore in the case of Goodwill v. British Pregnancy Advisory Services,8 the

defendants performed a vasectomy on man who three years later became the
plaintiff’s lover. Knowing that he had had a vasectomy, the couple did not use

6
(1928) 284 NY 339
7
(1943) AC 92, HL
8
(1996)1 WLR 1397

Lecture Notes – Law of Torts 3

contraception and the plaintiff became pregnant and gave birth to a child. It happened
that the procedure had spontaneously reversed. The plaintiff claimed that the
defendant’s owed her a duty of care and was negligent in failing to warn her lover of
the possibility that he might regain his fertility. Her action was dismissed on grounds
of the fact that the parties were not married and that she simply was a member of an
indeterminate class of women with who the plaintiff could have sex during his
lifetime.

Duty to the Unborn

In the case of Burton v. Islington Health Authority,9 the court of Appeal finally held
that a duty is owed to the unborn child, but that the duty does not crystallise until the
live birth of the child. What this means therefore is that in the event of injury to the
child during conception a duty would be deemed to have been owed and breached by
a defendant towards the unborn child. A drunken and smoking mother, for example,
as well as other injury caused to a pregnant woman resulting in congenital deformity
shall be deemed to constitute a breach of a duty owed to a child where such injuries
are established.

Furthermore, in the case of McKay v Essex Area health Authority,10 it was held that
the court recognises no claim for wrongful life. In this case, the plaintiff was born
with terrible disabilities resulting from her mother having contracted rubella or
German measles during pregnancy. The mother had undergone test when she realised
that she had been in contact with the disease and had been negligently told that she
was negative. She would have opted for abortion had the test proved positive. The
child through its parent sued in respect of the harm caused to her by her birth
encumbered by manifold disabilities. In rejecting her application the court argued that
it was impossible to measure the harm resulting from injury into a life afflicted by
disability where the only alternative was life at all.
Duty to Rescuers

9
(1993) QB 204
10
(1982) QB 1166, CA

Lecture Notes – Law of Torts 4

The general principle of law is that a person who endangers another person by reason
of his negligent conduct owes a duty of care to a third party where that party is injured
in the process of rescuing the victim. It is important to recognise however that the
rescuer is only indirectly at risk from negligent conduct. This is due to the fact that
the rescuer elects to undertake the rescue and therefore has the option of staying away
from harms way. The basis of the rescue principle finds expression in the American
case of Wagner v. International Railway Co, Ltd.,11 in which Cardozo J., stated:
“Danger invites rescue. The cry of distress is a summons to relief.”

The essence of this statement to establish a connection between the creation of a

situation of danger and the instinctual tendency of a person within the range of rescue
attempting rescue.

In the case of Videan v. British Transport Commission,12 it was held that a duty was
owed to a station master rescuing his small son who has been trespassing on the land.
Note however that the son is a trespasser and there is no duty owed to a trespasser.

Liability for Psychiatric Harm

The position of the law is that the courts have generally been cautious about awarding
damages for any non-physical harm to the person. Such harms are sometimes
classified as post traumatic stress disorders. The need to discuss psychological harm
arises out of three fundamental reasons:

First physical injury is usually followed by psychological harm. Secondly, an

accident may trigger psychological harm without resulting in any physical injury.
And finally an accident may cause the plaintiff mental anguish as a result of his
proximity to the accident or due to his or her special relationship to the victim of the
accident. In the case of Page v Smith,13 the plaintiff was involved in collusion in a
car negligently driven by the plaintiff. He suffered no physical injury. He however

11
232 NY Rep 176 (1921)
12
(1963)2 QB 650, CA
13
(1996)AC 155, HL; (1995)2 All ER 736

Lecture Notes – Law of Torts 5

immediately succumbed to a revival fatigue syndrome which he had suffered in
various times in his life. He became so ill thus he was unable to work. The court held
that defendant liable even though he had suffered no physical injury.

Similarly in the case of Vernon v. Bosley,14 the plaintiff’s two young children were
passengers in a car driven by their nanny. The car veered off the road and crashed
into a river. The plaintiff did not witnessed the original accident but was called to the
scene immediately afterwards and watched unsuccessfully attempts to salvage the car
and rescue the children. The children drowned. The plaintiff became mentally ill and
his business and marriage both failed. The court held that although damages for
ordinary grief and bereavement were irrecoverable, a secondly victim was entitled to
recover damages for psychiatric illness where he could establish that he met the
general preconditions for such a claim, that is, a close relationship with the primary
victim. In this connection the plaintiff had met this condition and the court accepted
the fact that the negligence of the defendant contributed to the mental illness.

Up until 1982, the position at common law as reflected in the English cases required
that for a plaintiff to succeed in a claim of negligence for psychiatric illness he must
establish that he was present at the scene of the accident or very near to it so that with
his unaided senses he realised what had happened and finally that he must be very
close in relationship to the victim.
Reference:
 In Agbenyega (an infant) v. Ghana national Construction Co.,15 the
plaintiff, a school boy aged thirteen, was ferried across the Volta River by the
defendants' launch. He sustained serious injuries when his right foot was
trapped as a result of the launch moving backwards suddenly while he
disembarked. He sued the defendants for damages for personal injuries caused
by their negligence. The defendants contended that the accident occurred
when the plaintiff was pushed by another child while they and some other
children attempted to catch fish from the river. They sought to establish their
defence by two statements exhibits 1 and 2, by the operator and coxswain
respectively, to the police two weeks after the accident and a third (exhibit 3)
by the plaintiff to the police while in hospital. All the statements were
14
(1997)1 All ER 577, CA
15
(1968) GLR 969

Lecture Notes – Law of Torts 6

 tendered and received in evidence without objection from the plaintiff's
counsel. Held: Since the presence of the plaintiff was known to the servants
and agents (operator and coxswain) of the defendants, those servants did
impliedly undertake to perform a contract of carriage by ferrying him across
the river and landing him safely on the other bank, notwithstanding that the
ferrying was being done gratuitously. They therefore owed the plaintiff a duty
of care.

 In McLaughlin v O’Brian,16 the plaintiff’s husband and three children were

involved in a car accident caused by the defendant’s negligence. All four of
the family were injured, one so seriously that she died almost immediately.
An hour afterwards a friend told her of the accident at her home two mile
away. He drove her to the hospital where she was told of the death and saw
the three injured. The plaintiff suffered severe shock, organic depression and a
change of personality. Medical report indicated that there were numerous
symptoms of a psychological nature. The court held that the plaintiff had to
establish proximity to the event but coming as she did upon the immediate
aftermath of the accident in which her family have been so grievously injured,
she was within the scope of the duty of care.

 In Alcock v. Chief Constable of South Yorkshire Police,17 in April 1989, 95

people died and over 400 were injured when South Yorkshire police allowed
an excessive number of spectators to crowd into Hillsborough football ground.
People were quite literally crushed to death. The plaintiff’s actions were for
psychiatric illness ensuing from the horror of what had happened to their
relatives (or in one case fiancé). In the House of Lords two issues were pre-
eminent. Could relatives other than parents or spouses bring an action for
psychiatric harm? Could those who witnesses coverage of the disaster on
television recover?

Their Lordships refused to prescribe rigid categories of potential claimants in

nervous shock claims. They held that there must generally be a close tie of
love and affection between the claimant and the primary victim of the sort
generally enjoyed by spouses and parents and children.

Reference:
1. Overseas Breweries Ltd. v Acheampong18

16
(1983)1 AC 410 AT 430, HL
17
(1991)4 All ER 907
18
(1973)1 GLR 421

Lecture Notes – Law of Torts 7

 2. Donoghue v. Stevenson19
3. Aboagye v. Kumasi Crewery Ltd.20
4. Boateng v. Oppong & Another21
5. Asafo v. Catholic Hospital of Apam22
6. Fodwoo v. Law Chambers & Co23.
7. Mensah v. Appiah & Another24
8. Alhassan Kotokoli v. Moro Hausa & Another25

BREACH OF DUTY
Several principles have been established that can guide us towards coming to a
conclusion that there has been a breach of duty.

19
(1932) AC 562
20
(1964) GLR 242
21
(1980) GLR 946
22
(1973)1 GLR 282
23
(1965) GLR 363
24
(1964) GLR 248
25
(1967) GLR 298

Lecture Notes – Law of Torts 8

 (1) Likelihood of Harm
It was held in the case of Northwestern Utilities Ltd. v. London Guarantees &
Accidents Co. Ltd.26 that there must be a proportional relationship between the
degree of risk and the duty of acre involved in deciding whether there has been a
breach.

(2) The Seriousness of the Risk & the Risk of Serious Injury
Again at this point we ask one question: What is the seriousness of the risk that is
likely to arise out of the defendant’s action? In other words the gravity of the
potential risk determines the standard of care to which the dependant would be held
bound. In the case of Paris v. Stepney Borough Council,27 the court held that where
the disability of the workman did not increase the risk of an accident, but it only
increase the risk of serious in jury the disability was irrelevant in determining the
question of breach. The House of Lords reversed this decision holding that the gravity
of the consequences if an accident did occur have to be taken into account in fixing
the standard of care.

(3) The Utility of the Act of the Defendant

Under this head the court considers the social value underpinning the defendants
conduct. In other words the court indulges in a balancing act of adjusting mutual and
reciprocal interests of the plaintiff and defendant. For example, the conducts of bus
drivers, ambulance drivers, fire service vehicle drivers, police and military car drivers
and other social services. In the case of Daborn v. Bath Tramways Motor Co. Ltd.
& Smithey,28 the defendant who was driving a left hand vehicle which was an
ambulance during the 2nd World War was excused of negligence when he switched
into another lane without giving signal on grounds of the social utility of his action

(4) The relative cost of avoiding harm

26
(1963) AC 108
27
(1951) AC 367
28
(1946)2 All ER 333, CA

Lecture Notes – Law of Torts 9

Another consideration made by the court is the cost be it social or economic of
avoiding harm to the plaintiff. In this case as in the previous the court considers a
balancing scheme in which the cost arising out of rectifying a defect appears
unreasonable vis-à-vis the likelihood of harm or injury resulting from the a particular
dangerous situation. In Latimer v. ACE Ltd.,29 a storm caused the floor of a factory
to be flooded. When the water receded the floor was found to be covered with a slimy
mixture of oil and water so that its surface was slippery. The issue was whether the
factory owners were in breach of their duty towards a workman who, some hours
later, was injured through slipping on the floor. In holding there to have been no
breach, Lord tucker said; “ The only question was: Has it been proved the floor was so
slippery that, remedial steps not being possible, a reasonable prudent employer would
have closed down the factory rather than allow his employees to run the risks involved
in continuing work?”

In the Wagon Mound (No.2), the court said a reasonable man would only neglect . . .
a risk of small magnitude if he had some valid reason for doing so. For example that
it would involve considerable expense to eliminate the risk.

THE REASONABLE MAN

In Blythe v. Birmingham Water Works Co.,30 it was held that, “negligence is the
omission to do something which a reasonable man guided upon those consideration
29
(1952)2 QB 701
30
(1856)11 Exch 781

Lecture Notes – Law of Torts 10

which ordinarily regulates the conduct of human affairs, would do or doing something
which a prudent and reasonable man would not do.” It is important to understand that
the reasonable man is a hypothetical man and he is a man of average or normal
lifestyle. He is neither a demon nor an angle.

Different People under different circumstances

(1) Children
In relation to children the court considers their particular age, appreciation of the
factual circumstances and other peculiarities akin to children of the age of the
defendant in determining the question of liability. In the case of Mullin v Richards,31
the court held that in relation to children the test is what degree of care and foresight
can reasonably be expected of a child of the age of the defendant? A similar
conclusion was arrived in the case of Mattale v. Watson.

(2) Disabled Adults

In considering the liability of disabled adults the courts assume a similar position by
placing that adult in the class of similarly situated persons. For example it has bee
held in the case of Daly v. Liverpool Corporation32 that in deciding whether a 67
year old woman of her age was guilty of contributory negligence in crossing a road on
had to consider a woman of her age not a hypothetical pedestrian.

It is also important to state at this point that here a person who suffers some form of
disability embarks on a conduct which he knows or ought to have known could pose a
danger to others and where danger in fact ensues as a result of his conduct eh shall be
deemed liable. In the case of Roberts v. Ramsbottom,33 the defendant suffered a
slight stroke just before getting into his car. He was completely unaware that he had
had a stroke although he felt some what dizzy. A few minutes after starting his
journey he was involved in a collision with the plaintiff. The court held that even

31
(1998)1 All ER 920
32
(1939)2 All ER 142
33
(1980)1 All ER 7

Lecture Notes – Law of Torts 11

though the defendant was under some form of disability at the time of the accident he
was liable in negligence because he ought to have known his impaired physical state.

(3) Intelligence & Knowledge

The defendant’s action must conform to the intelligence expected of a normal person.
In other words the defendant must exhibit such intelligence and knowledge of an
average person of his calling, status or situation in life. Two branches of knowledge
must be considered. The first is memory and the second one is experience. In the
Wagon Mound (No.2) the Judicial Committee of the Privy Council said that the ship
owner was liable for a fire caused by discharging oil in Sydney harbour because the
chief engineer should have known that the discharge created a real risk of the oil on
water catching fire. This case stands for the proposition that in determining the issue
of liability in respect of knowledge the court will consider the status or position of the
defendant.

(4)

Lecture Notes – Law of Torts 12