Chapter 2 Negligence: basic principles

Contents
Introduction 13 2.1 2.2 2.3 Structure of the tort 13 Organisation of the chapters 14 Policy questions 14

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 outcomes By 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.

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
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the claimant will be a member of a very large and possibly illdefined 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

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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 socalled 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
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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).

Activity 2.1 Write 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.

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

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