Chapter 2: Negligence – Duty of care

-Negligence is concerned with compensating people who have suffered damage as a result of
carelessness of others. For instance, personal injury, property damage and economic loss.
-Baron Alderson in Blyth v Birmingham Waterworks Co (1856), stated “Negligence is the
omission to do something, which a reasonable man would do, or doing something which
reasonable man would not do.”
-It involves four elements such as duty of care, breach of duty of care, causation and remoteness
which stated by Lord Wright in Lochgelly Iron and Coal Co v McMullan (1934).

1. Duty of care
The purpose of duty of care is to restricted compensation in order to prevent floodgates litigation
as it must exist before an action can be brought.
1.1. General Duty of Care
Development
-In the early 19th Century, the concept of negligence was developed when liability for careless
acts was founded upon a duty to take care owed by defendant to plaintiff.
-Under common law, there must have established categories of duty to bring an action of
negligence to court such as employer-employee, driver-road user and doctor-patient relationship
which have established by case law or statutes.
-In Heaven v Pender (1883), Master of Roll, William Brett stated obiter there was a wider duty
to be responsible in tort to those who might be injured if ‘ordinary care and skill’ was not
exercise. It encourages new categories to be established for novel situation. However, this attempt
had failed until 1932.
-The iconic case for negligence is Donoghue v Stevenson (1932), Mrs Donoghue drank a bottle
of ginger beer bought by her friend in the café. She discovered there was a snail inside the beer
and she felt ill. She brought an action to the manufacturer but there was no contractual
relationship between them. The claim was successful based on neighbourhood principle laid
down by Lord Atkin as reasonable foreseeability and proximity. Lord Atkin stated obiter that ‘a
person must take reasonable care to avoid acts or omissions which he can reasonably foresee
would be likely to injure his neighbour.’

 Reasonable Foreseeability
Can the defendant reasonably foresee his action causing harm?
 Proximity
Can the defendant reasonably foresee his action causing harm to the claimant or group of
claimant?
-In Anns v Merton London Borough (1978), Lord Wilberforce proposed two limb test such as
whether there is a sufficient relationship of proximity between the wrongdoer and the person who
had suffered. If the answer was yes, a prima facie duty of care would arise. Second, whether there
were any policies limit the scope of duty in the situation.
It expanded the area of duty of care. Therefore, in Junior Books v Veitchi (1983), the court
allowed the claim of pure economic loss. * These test has been criticised as it will lead to
floodgates cases of pure economic loss and the members of judiciary became a dangerous
principles as they represent a considerable change in the approach to be taken in novel cases.
-It was overruled by Murphy v Brentwood District Council (1990) to support judges using
established categories rather than test stated in Anns. The decision in Anns was wrong as the
defective property falls under pure economic loss rather than property damage. However, Junior
Books v Veitchi has not been overruled but has not been followed.
-After Anns was overruled, the HOL set down a new test in Caparo Industries Plc v Dickman
(1990), Caparo purchased shares in Fidelity Plc in reliance of the accounts which stated the
company making profit. In facts, Fidelity was making losses. Caparo brought an action against
the auditor regards negligent in certifying the account. The court held no duty of care was owed
due to insufficient proximity between Caparo and auditor since auditor did not aware the
existence of Caparo nor the purpose for which the accounts were being used by them.
Lord Bridge created Singular Composite Test:
*It will only be used when there is no established categories of duty or there are some situations
in which it is not clear whether there is a duty of care.
 Reasonable Foreseeability
The issue is whether a reasonable person in the defendant’s position would have foreseen the risk
of damage.
Langley v Dray (1998)
The defendant was driving a stolen car was crashed by claimant, a policeman. The claimant was
injured in the accident. The court held defendant owed a duty of care as the defendant knew or
ought to have known that he was being pursued by the claimant and therefore increasing his
speed would result the claimant drive faster, the defendant had duty not to create such risk.
Haley v London Electricity Board (1965)
The defendant dug a hole in the street to do repair work and laid a shovel across the hole to attract
pedestrian’s attention. The claimant who was blind felt into the hole and seriously injured. The
court agreed that the precaution taken was adequate to protect a sighted person. However,
considering the amount of blind people in London, the defendant owed a duty of care to the
defendant.
Plasgraf v Long Island Railroad (1928)
A member of the railway staff negligently pushed a passenger who carrying a box contained
fireworks, it dropped and exploded which injured the claimant who was several feet away. The
court held that it could not be reasonably foreseen that pushing the passenger would injure
someone several feet away. Therefore, no duty of care was owed to the claimant.

 Proximity
-In law, it means relationship between the defendant and claimant.
Muirhead v Industrial Tank Specialities (1985)
The plaintiff bought a tank to rear lobsters. The seller bought the pump from French manufacturer
for oxygenation. It was not suitable to the voltage in UK resulting the lobsters died from lack of
oxygen. The court held the death of lobster was physical damage and was recoverable. Lord Goff
stated obiter the defendant could reasonably foresee his actions could cause damage to the
claimant.
Caparo Industries Plc v Dickman (1990), the court held no duty of care was owed due to
insufficient proximity between Caparo and auditor since auditor did not aware the existence of
Caparo.
Watson v British Boxing Board of Control (2000)
The claimant was a famous professional boxer who suffered brain damage after being seriously
injured during a match. He sued the board on the basis that they did not make sufficient safety
arrangement. The COA held there was sufficient proximity as they were the only body in UK
which could license professional boxing matches, therefore they had responsibility over the
situation.

 Fair, Just and Reasonable

McFarlane v Tayside Health Board (1999)
The claimant had become pregnant after her partner’s vasectomy failed, and claimed for the costs
of bringing up the child. The court denied her claim on the grounds that it was not just and
reasonable to award compensation for the birth of healthy child. It also encourage public to have
intercourse safely.
Parkinson v St James & Seacroft University Hospital (2001)
The case was similar as McFarlane but here the child was disabled and the court only allowed
claim for extra costs which arose from the child’s disability but not the full cost of bringing up
the child. This is because the court believe children is a blessing not a damage.