NEGLIGEN

CE
TORT LAW - SECTION C
Dr Gayathri D Naik

05/08/2024 Negligence - Part I 1

 Structure of the session
● Negligence – theories, meaning and definition
● Essential elements
o Duty of Care
o Breach of Duty
o Consequent damage (personal injury, psychiatric illness,
property damage)

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 M’Alister (or Donoghue) v Stevenson, (1932) AC 562

Winfield (para 5-001 to 5-005) (General discussion on

the elements of negligence)
Winfield (paras 5-015 to 5-025) (Developments on
establishing the duty of care)
Caparo Industries plc v Dickman, (1990) 2 AC 605
Readings
Blyth v. Birmingham Waterworks co., 11 Ex Ch 781

Delhi v. Subhagwanti Municipal Corporation, AIR 1966

SC 1750
Achutrao Haribhau Khodwa v. State of Maharashtra,
(1996) 2 SCC 634

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Negligence - Part I

Meaning of Negligence – 3 forms

STATE OF MIND CARELESS CONDUCT BREACH OF DUTY TO TAKE

CARE IMPOSED BY LAW

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 Tort of Negligence- Central to Tort Law

MOST TORT CLAIMS BROUGHT UNDER IDEAS AND PRINCIPLES OF NEGLIGENCE

NEGLIGENCE INFLUENCED THE INTERPRETATION OF OTHER
TORTS- STRICT LIABILITY

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Tort of Negligence
• negligence in tort law refers to a tort which , since the land mark 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.

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 Negligence and
wrongful intent
• In some cases, wrongful
intent or negligence is
required by law as a condition
of liability.
• Both these are inconsistent
and mutually exclusive status
of mind. He who causes a
result intentionally cannot
also have caused it
negligently and vice-versa

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 • Breach of duty caused by the omission to do
something which a reasonable man guided
by those considerations which ordinarily
regulate the conduct of human affairs would
Meaning of do, or doing something which a prudent and
reasonable man would not do…
negligence • Blyth v Birmingham Waterworks Co (1856)11
as tort Ex 781
• Winfield - negligence as a tort is a breach of
a legal duty to take care which results in
damage, undesired by the defendant to the
plaintiff.

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• So three elements

DUTY OF CARE OWED BY BREACH OF THAT DUTY DAMAGE

D -C

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 • according to Winfield – three
elements – negligence
• These three can over lap with
each other – how ?
Element of tort • A threw a firework to the café.. It
– over lap or reached near C. B saw that he
threw it away– caused chain of
any sequence? events- injured E.

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 • Though the elements overlap,
the courts tried to follow a
sequence –
• Duty of care- breach of duty-
damage- remote or not
Sequence of • Broadest – breach of duty- here
elements the focus – injury to the plaintiff
– reasonably foreseeable?

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 • Breach of duty- directed - whether
a reasonable man in D’s place
would have foreseen the risk of
injury
• Damage- most specific- damage
reasonably foreseeable or not

• Neindorf v Junkovic [2005] HCA 75

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 • Negligence liability may arise about
various types of harm or injury – personal
injury (physical and psychiatric ), property
damage, financial loss, and covers a wide
range of activities.
• Liability is imposed in negligence for
causing harm rather than failure to
prevent harm caused by other people or
natural causes.
• Sometimes, a person may be responsible
for the act but may not be negligent… can
you think about any situation?

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History of development
of tort of negligence
• Relatively new in development
• General principle of negligence as a liability
for conduct falling below a particular
standard of care was only fully articulated
in the early 20th century in the House of
Lords decision in Donoghue – 1930s
• Originally, negligence was considered as a
way of committing and understanding other
torts rather than a distinctive tort in itself
• Tort of negligence was nearly fragmented.

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 Duty of care was recognized only in very limited circumstances and between
particular relationships – can you think which relation would it be ?

isolated pockets of negligence liability – no general principle of negligence till

19th century

But by end of 19th century – a general trend in judiciary to move to

articulation of a general principle of duty of care..

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 Isolated pockets

• Contract relationships.
• By 19th century – a party to contract might be
able to sue the other party for breach of tortious
liability imposed by law.
• Can a stranger to contract sue ? Any instances
which you can think ?

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Stranger to a contract might, in certain cases sue for injury caused
by negligent behaviour where the activity was undertaken
pursuant to contract- eg pedestrian knocked down by coachman

Initial tendency was to limit the claims under his contract and to
rule out any attempt to rely on an obligation arising under a
contract to which he was not a party.

Each of the parties was expected to protect his interest by

securing an appropriate warranty in the contract to which he was
a party.

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Negligence - Part I

• P entered into a contract with the post master general to drive a mail coach. Coach had
been supplied by D to PG under a contract which provided that during the term of
contract the coach was to be kept in a fit, proper, safe and secure state. At one instance,
coach collapse, P was thrown away from his seat and injured.
• The P alleged that D negligently conducted himself and so utterly disregarded his contract,
and so wholly neglected and failed to perform his duty-
• Was there any duty on D to P?

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 • No privity of contract between
parties
• If P can sue – every passenger also
can.or pedestrian too can .
Winterbottom • Some classes of cases are there
v Wright where law permits a contract to be
turned into a tort, but unless there
(1842) 10 M has been some public duty
&W 109 undertaken or a public nuisance
committed there are all cases which
an action might have been
maintained on the contract..

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 • P’s father bought a gun for his own
and his son’s use. The D falsely
stated that it was made by a
reputed maker. It was not. It later
exploded when P fired it and
caused him injury.

• Is D liable to P?

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 • Langridge v Levy (1837) 2 M&W 519-
• For fraudulent action – yes BUT refused to accept
liability under breach of contract owed to a third party.

• A bought an electric lamp from D’s shop for his shop. It

exploded while use injuring A’s wife. A and his wife sued
D who was a retailer and didn’t sue the manufacturer.

• Longmeid v Holliday - usually no liability for

manufacturer or seller. Exception in case of articles
dangerous in themselves

• Till Donoghue, no action maintainable -

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 • P was injured after using hair wash which was
sold to her husband by D for her use. No fraud on
the part of D. No dangerous thing involved here .
Is there any duty of D towards A? Will P succeed
against D?
• There was no contract between P and D
Instance
• Here the court tried to showcase the negligence
aspect- ‘unskilfulness and negligence in the
manufacture of the product – causing injury -

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 • P was painting a ship when one of
the ropes holding up the staging on
which he was working broke. He
fell and was injured. Staging –
erected by D – D the dock owner
under a contract with P’s employer.
Rope was found unfit for use at
the time it was supplied by D.
• Is there any cause of action for P?

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 • P succeeded in county court- QB ordered
in favour of D- now court of Appeal.

• Brett, MR – judge
Heaven v • If a person contracts with another to use
Pender ordinary care and skill towards him or his
property, the obligation need not be
(1833) 11 considered in the light of a duty; it is a
contractual obligation. It is undoubted,
QBD 503 however, that there may be the obligation
of such a duty from one person tp another
although there is no contract between
them with regard to such duty..

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 • Whenever a 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 recognize that if
he didn’t 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 other, a
duty arises to use ordinary care and skill to
avoid such danger.

• Traces of beginning of recognition of duty of

care
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 • This case:
• The attempt to clarify the law of liability
for defective products brought with it
the common law’s first attempt for a
normative explanation of duty of care

• Till Donoghue , outside the limited

pockets of liability, an individual owed a
duty of care to another only in situations
where they had specifically agreed to do
so.. Usually through contract.

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 Donoghue V Stevenson

• Facts :
• Ginger beer case

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 28

Why was this case so important?

Overruled privity of contract

Negligence - Part I
05/08/2024

Categories of negligence- not a closed loop

Neighbourhood principle
Negligence - Part I

Privity of contract fallacy- overruled

Recognised the existence of a new pocket of liability – where a duty of care was owed
outside a contractual relationship
Expansion of liability beyond the contractual liability and rejection of privity of contract
fallacy which prevented tory claims where any contract existed between any of the parties
laid the foundations of developments in consumer protection

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 • This was a watershed in tort. ---
• ‘ you must take reasonable care to avoid acts
or omissions which you can reasonably
foresee would be likely to injure your
neighbour…
• who is your neighbour?
Neighborhood
principle • 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.’

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• i.e. an individual must take reasonable care to avoid injuring those
they can or should reasonably foresee would be injured if they don’t
take such care.

• After this case, in common law courts, the courts, rather than a
gradual widening of specific duties, preferred broader principle of
default liability wherever defendants’ careless conduct caused harm.

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 • 1978 – Anns v Merton London Borough
Council – local authority was held liable for
negligently failing to supervise the
construction of a building
• This was overruled in 1991- Murphy v
Some cases Brentwood District Council
• 1988- Benarr v Kettering H.A – Claimants
were awarded damages for the cost of
bringing up the child including his private
school ffees where a child was born after a
negligently performed sterlisation operation.

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• 1970- Home Office v Dorset Yacht Co Ltd – liability was imposed on
Home Office for damage inflicted by escaping young offenders.
• However, 1980-1990 cut back – adopted a restrictive mode-
• Courts exercised greated caution in imposing liability – did only
where there were clear precedents to do so or by relatively
incremental steps
• Why do you think this period was very significant for this?

• Caparo industries plc v Dickman-1990

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Negligence - Part I

• Now a circle completed-

• Rejecting a single general principle,
judges once more adopted a more
restrictive approach to claims
working from established pockets of
liability
• Do you correlate with two theories
of tort anywhere here? Salmond or
Winfield?
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 First
phase-
restrictive

Negligence

III- Caparo II-

and after- Donoghue-
restrictive expansive

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