This document provides a detailed yet easy to understand introduction to the tort of negligence. It covers how this tort came to be and briefly details the elements needed for a negligence claim to be successful. This document also details the facts and holding of all the major negligence law cases...
CHAPTER 2 – INTRODUCTION TO THE TORT OF NEGLIGENCE
Introduction
- ‘Negligence’ in tort law refers to a tort which, since the landmark case of Donoghue v
Stevenson [1932], provides a remedy where injury or loss is caused to the injured
party by the wrongdoer’s failure to keep to a legal duty to take reasonable care
- Negligence liability may arise in relation to a range of diverse types of harm or injury
(personal injury (physical and psychiatric), property damage, financial loss, etc) and
covers a wide range of activities (driving a car, giving financial advice, running a
hospital operating theatre, playing football, etc).
o However, some harms or injuries are better protected by the tort of
negligence than others.
The courts have limited the operation of particularly psychiatric
injuries and pure economic loss – and in claims against certain
defendants – most notably public bodies, for example local
authorities, the police and other emergency services.
Though there is a single tort of negligence covering, potentially, all
possible harms in all possible contexts, the courts have developed
different approaches to deal with different sort of harm in different
contexts.
- However, the general focus of the tort of negligence is to make people pay for the
damage they cause when their conduct falls below an acceptable standard or level.
- The tort of negligence is not defined by or limited to the protection of, any single
type or right or interest.
o Instead, the focus of the tort of negligence is the ‘quality’ of the defendant’s
conduct – what must be shown is that the defendant acted unreasonably.
Liability in negligence can only be established where the defendant’s
breach has resulted in harm.
The wrongdoer will not be liable in the tort of negligence if no
injury results from their careless action.
- Even where a claimant has suffered harm, it doesn’t mean that they will necessarily
have a claim – the harm must be one that is legally recognised.
o The law does not provide compensation for every loss; harms which do not
fall within the scope of negligence law, no matter how great and
notwithstanding a defendant’s clear breach of duty, will ground no liability in
negligence.
As Lord Rodger notes in D v East Berkshire Community NHS Trust
[2005]: ‘the world is full of harm for which the law furnishes no
remedy’.
- The tort of negligence plays a central role in the law of tort. This is for two reasons:
o It is by far the most important tort in practice. More tort law claims are
brought in the tort of negligence than in any other tort.
, o The ideas and principles of negligence have influenced the interpretation of
other torts – such as the infusion of the notion of foreseeability into private
nuisance and the previously strict liability imposed by the rule in Rylands v
Fletcher [1868] and in Cambridge Water Co Ltd v Eastern Counties Leather
plc [1994]
Mapping the historical development of the tort of negligence
- The tort of negligence is a modern tort
- The general principle of negligence as liability for conduct falling below a particular
standard of care was only fully articulated in the early twentieth century in the
House of Lords’ ground breaking decision in Donoghue in the 1930s
- Originally, negligence was understood as a way of committing and understanding
other torts rather than as a distinctive tort in itself.
o The tort of negligence was ‘thoroughly fragmented’.
o A duty of care was recognised only in very limited circumstances – for
example, if someone had control of some dangerous thing, say a gun, they
had a duty of care to prevent it from causing harm (Langridge v Levy [1837])
Thus, though throughout the nineteenth century there were isolated
pockets of negligence liability, there was no general principle of
negligence (Winterbottom v Wright [1842])
These ‘pockets’ began to join up and by the end of the century
the judges were beginning to move towards the articulation of
a general principle of a duty of care. This can be seen in Brett
MR’s judgement in Heaven v Pender [1883]:
o ‘Whenever one person is by circumstances placed in
such a position with regard to another that every one
of ordinary sense who did think would at once
recognise that if he did not use ordinary care and skill
in his own conduct with regard to those circumstances,
he would cause danger of injury to the person or
property of the other, a duty arises to use ordinary
care and skill to avoid such danger.
KEY CASE:
Donoghue v Stevenson [1932] HL:
- Mrs Donoghue and a friend were enjoying a drink in a café in Paisley, near Glasgow.
Mrs Donoghue had already consumed some of her ginger beer (bought by her
friend) when said friend poured the remainder of the beer, from its dark opaque
glass bottle, into a glass tumbler together with what appeared to be the remains of a
decomposed snail.
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