1. Negligence – 1. Duty of Care
• DUTY OF CARE
• BREACH OF THE DUTY OF CARE
• CAUSATION
• LOSS OF INJURY

2. Duty of Care
 The first consideration is to establish whether the
claimant was owed a duty of care by the defendant.
 The category of duty of care owed
 Traditional Categories (patient/doctor relationship, driver and
passenger, driver and other road users, manufacturer and
consumer, lawyer and consumer)
 Novel Cases, not yet categorized then the test for determining
duty of care must be applied, establishing that one or more of
the three factors is present. – foresight, proximity and
justice/fairness

3. The traditional/established categories
 Consumers : - Donoghue and Stevenson, Grant v Australian Knitting Mills
 Road Users: - A driver of a car owes a duty of care to other road users
including pedestrians. The Plaintiff must still prove that a duty of care was
owed to him specifically by the defendant to the road user. The court will
not duty of care if the P fails to prove it.
 Users and Purchasers of premises : - An occupier of care towards visitors,
whether invited or trespassing, whose presence is lawful or otherwise, who
suffers injury during the course of their visit to the occupier’s premises.
(see Occupiers Liability Act 1984)

4. The traditional/established categories
 The unborn Child :- A duty of care can be owed by the defendant to a
plaintiff who was an unborn child at the time of the accident.
 Watt v Rama 1972 – (Australian Case) –
 P’s mother who was pregnant with her suffered injuries as a result of a motor accident due to D’s
negligent driving.
 P was subsequently born and she suffered from brain damage and epilepsy.
 It was alleged that P’s handicap was due to the injury sustained by her either in the accident while
unborn or in the course of her birth as a result of injury to her mother .
 D denied that he owed a legal duty of care to P while she was still in her mother’s womb.
 Victorian Supreme Court held that since was born as a handicap because of the injuries sustained
by her as the result of the accident involving her mother who was pregnant with her at the time of
the accident, D owes P a duty of care.
 It was immaterial whether at the time of the negligent act whether the victim was in existence or
not, so long as the victim was the member of the class reasonably likely to be adversely affected by
that act.

5. The Unborn Child
 Lynch v Lynch 1991– (Australian Case) –
 P was born disabled as a result of injuries sustained by P’s pregnant mother, when she lost
control of her truck which she was driving and crashed into a bank.
 P sued her mother for negligence.
 Court held that a mother owed a duty of care to her unborn child not to cause him to suffer
injury as a result of her conduct and the child can bring an action against the mother where her
negligence has caused P to suffer the alleged injury.

6. Rescuers
 A defendant who owes a duty to another will also owe duty to
those who might foreseeably attempt to rescue that other from
the acute danger in which D’s negligence has placed the other.
 HAYNES V HARWOOD 1935
 D’s delivery man left his horse-drawn van unattended on the street
 A boy mischievously threw a stone at the horse which ran away
 A policeman who saw the runaway horses posing a danger to the lives of a
woman and a number of children decided to give a chase and seize the horses.
 P was successful in seizing the horses but he was severely injured when a
horse fell on him.
 COA held that D owed a duty of care to the plaintiff because it was reasonably
foreseeable that D’ conduct of leaving the horses unattended in a place where
mischievous children may be about and where something may happen to
cause the horses to run away and thereby endangering the public and rescuers
like P might be attracted to help the situation.
 If such a rescuer should be injured in the course of such a rescue then D shall
be liable for the injuries.

7. Chapman v Hearse 1961
 An accident was caused by Chapman's negligent driving.
 Dr. Cherry, the plaintiff went to help Mr. Chapman who was thrown free
fro his car and was lying injured on the road.
 While Dr. Cherry was attending to Chapman, Dr. Cherry was run over
and killed by another which was driven by Hearse.
 Dr. Cherry’s estate sued Hearse for negligently causing Dr. Cherry’s death
and Hearse joined Chapman as a third party alleging that Dr. Cherry’s
death caused by Chapman’s initial negligent driving.
 The issue before the court was that Chapman owed a duty of care to Dr
Cherry, his rescuer.
 Held: Chapaman owed a duty of care to Dr. Cherry because it was
reasonably foreseeable that Chapman’s negligent driving would attract
rescuers like Dr. Cherry who would foreseeably be harmed due to
Chapman’s failure to take reasonable care in driving.

8. What if the “P” is abnormal?
 In general the duty is owed to a foreseeable plaintiffs. A duty is not
normally owed to an “abnormal plaintiff” unless they were within a
foreseeable class.
 Levi v Colgate Palmolive Ltd 1941
 P, a woman aged 21 received from D free box containing their samples of its products.
 One was an envelope of bath salts.
 She dissolved most of the contents of the envelope in a bath of warm salt, in which she
soaked herself in it for 2o minutes.
 While in the bath she felt a tingling sensation to her skin and by the time she emerged
from her bath, her face and other parts were all red.
 The redness continued and the itch developed and the P sued D for negligence.
 HELD: D does not owe P a duty of care.
 Where the act is incapable of injuring an ordinary normal person, or is so done that, it
is incapable of injuring and ordinary normal person, the person who does it owes no
duty to do more by reason only of the possibility that a person of abnormality
accentuated susceptibility may be affected by it.

9. HALEY V LEB 1965
 D with statutory duty excavated a trench in the street.
 D took precautions for the protection of passerby’s which was
sufficient for normal sighted people but P, who was blind suffered
injury because the protection taken by D were insufficient for P.
 HELD: In the view of the blind persons who go about the streets
alone was sufficient to require D to have them in contemplation
and to take precautions appropriate to their condition.
 LORD REID, “ In deciding what is reasonably forseeable one
must have regards to common knowledge. We are all accustomed
to meeting blind people walking with their stick on the city
pavements, no question can arise in this case any diffciculty in
affording adequate protection to the blind. In considering what is
adequate protection one must again have regard to common
knowledge.”

10. Duty of Care and Omissions
 The rule in negligence is that the defendant owes a duty of care not to harm his
neighbor but he does not owe a duty of care to save his neighbor. However, the
situation is different, if it is an omission that is giving rise to a duty to act.
 This is where some special or exceptional relationship exists between the parties
which give rise to the liability for failure to act such as control and supervision role,
duty of protection – school and student, parent and child.
 Home Office v Dorset Yacht Co Ltd 1970
 7 boys from a reform school who were working on an island under the control and
supervision of 3 prison officers
 Boys escaped from the island at night and boarded a yacht owned by P
 Boys cast the yacht adrift and damaged it.
 Owners of the yacht sued the prison authority alleging that the damage to the yacht had
been caused by the prison officers negligence in allowing the boys to escape.
 The issue was whether D owed any duty of care to P.
 HELD: D did owe P a duty of care not to cause damage to his yacht. The relationship
between the prison officers and the boys imposed on the former a duty to control the
latter, that the duty was owed to all those whom it was reasonably foreseeable might suffer
to injury if the boys were allowed to escape.

11. TEST for determining the existence of Duty of
Care
 Neighborhood principle established in Donoghue
and Stevenson
 The two stage test and open discussion of policy
 The re-treat from the two stage test
 The current test: foresight, proximity and fairness

12. Neighborhood Principle
Case of Donoghue and Stevenson in 1932 –
 appellant brought an action against the manufacturer of ginger beer bottle.
 She drank some of the ginger beer bottle and some was poured into her glass
she noticed the remains of what appeared the decomposed snail floating out of
the opaque bottle into her tumbler.
 Appellant claimed damages for personal injury from having suffered
gastroenteritis and nervous shock
 At that time, an action can be brought against the manufacturer if there is a pre-
existing contractual relationship between the parties.
 However the basis of this case was that a manufacturer owed a duty of care to
the consumers to take care that there was no harmful substance in his product
 Lord Buckmaster (dissenting) said if the case is decided on the favour of the
appellant, it was difficult to see how trade could be carried on.
 However Lord Atkin (Majority) emphasized the need for proximity which limits
the range of claimants and the “neighborhoods principle” which focuses on the
foreseeability.

13. Significant in the case of Donoghue and Stevenson
 Negligence is a separate tort in its own right
 Claim for negligence can exist regardless whether there is a contract between
the manufacturer and the injured party
 A claim for negligence can exist if the claimant can prove that there is a duty
of cared by the defendant to him, and that there is a breach of that duty of
care and it has resulted in damage which is not too remote.
 In order to establish duty of care, the “neighborhood principle” based on
reasonable foresight must be applied.
 The manufacturer owes a duty of care to the consumer by not allowing
foreign bodies to contaminate the products by negligence on his side
 This decision was confirmed in Grant v Australian Knitting Mills 1936
– claimant suffered dermatitis caused by a chemical used in a
manufacture of woolly underpants made by the defendant. It was held
that a duty of care was owed to him and the defendant were liable even
though the illness he suffered was extremely rare.

14. Two Stage Test and Open Discussion to Policy
 Developments in the law of negligence that followed.
 Anns v Merton Borough Council 1978 – Lord Wilberforce made a
statement which established the famous two-stage test / which
was responsible for the expansion of the law of negligence in
relation to nervous shock and economic loss in 1980’s
 “Firstly one has to ask whether, as between the alleged wrong
doer and the person who has suffered the damage, there is
sufficient relationship of proximity or neighborhood such that, in
the reasonable contemplation of the fomer, carelessness on his
part maybe likely to cause damage to the latter in which case a
prima facie duty of care arises. Secondly, if the first question is
answered affirmatively, it is necessary to consider whether there
are any considerations which ought to negative or to reduce or
limit the scope of duty of the class of the person to whom it is
owed or the damages to which a breach of it may give rise.”

15. Retreat from the “two-stage test”
 Governors of the Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd 1985 – Lord
Keith, “a relationship of proximity in Lord Atkin’s sense must exist before any duty of care can
arise, but the scope of duty must depend on all the circumstances of the case, in determining
whether or not a duty of care of particular scope was incumbent upon a defendant it is material
to take into account considerations of whether it is just and reasonable that it should be so”
 Leigh and Sullivan Ltd v Aliakman Shipping Company Ltd 1985 – Lord Oliver expressed the
view that the two stage test should not be regarded. “Nor, as it seems to me, can it properly be
treated either as establishing some new approach to what the policy for of the law should be or
as conferring upon the court a free hand to determine for itself in each case what limits are to be
set.”
 Yuen Kun-yeu AG of Hong Kong 1988 – Lord Keith, “The two stage test formulated by Lord
Wilberforce for determining the existence of a DOC has been elevated to a degree of importance
greater than its merits and greater perhaps than its authors intended”
 Rowling v Takaro Properties Ltd 1988 – Lord Keith again expressed fears about the application
of the two stage test as a general principle of the grounds that to attach too much importance to
policy matters might detract from real issues in a case, so that important and relevant
considerations might be overlooked.
 (This test was overruled in Murphy v Brentwood DC because duty too general based on policy
only and gave judges too much power. )

16. Current test ; foresight, proximity and fairness.
 The courts now appear to favour what has been
described as the incremental approach
recommended in Caparo Industries v Dickman 1990
and it deals with the question in four stages;
 First Stage is to consider whether the consequences of the
defendant’s act were reasonably foreseeable
 Second stage is to ask whether there is relationship of
proximity between the parties
 Third Stage is to consider whether in all the circumstances it
would appear to be fair, just and reasonable that the law
should impose a duty of a given scope upon one party to the
benefit of other.

17. First Stage: Foresight
 The notion of foresight is derived from the case of Donoghue v
Stevenson 1932 in which - the claimant as a member of group who
is likely to suffer harm as a result of the defendant’s acts or
omissions was notionally of importance as a deciding factor for
liability.
 Topp v London Country Bus (South West) Ltd 1993, - the claimant
was unsuccessful because he was unable to establish that the
defendant ought reasonably to have foreseen that a joy-rider would
has stolen the bus which his employee left unattended in a lay by.
His wife was killed through the negligence of the unidentified joy
rider when he collided with her and knocked her off her bicycle.
 Margereson v JW Roberts Ltd, Hancock v Same (1996) – it was held
that the owner of an asbestos factory should reasonably have
forseen that who children who played near the factory might later in
life develop plumatory injury through dust contamination. A DOC
was owed to them.

18. Second Stage: Proximity
 This concept was considered in the case of Donoghue v Stevenson itself, this is an
important device for controlling the existence and scope of the duty of care in
personal injuries cases.
 In Yuen Kun Yeu v Attorney General of Hong Kong 1988, Lord Keith
referred to proximity as a synonym of foreseeability on the one hand, and on the
other as referring to the whole concept of the relationship between the claimant
and the defendant as described in Donoghue and Stevenson by Lord Atkin.
 In Sutradhar v Natural Environment Research Council 2006, is an
example of a case in which the HOL decided that there was insufficient proximity
between the parties to establish the existence of the duty. On the defendant’s
departments, BGS has conducted a survey of water supplied in Bangladesh . In
keeping with the usual practice, it did not test the water for arsenic. The result of
the survey was sent to various organizations. The claimant alleged that he had
sustained serious injuries as a result of drinking water contaminated by arsenic.
 HOL held that there was insufficient proximity between the parties , in the sense of
control over responsibility for the danger to give rise to duty of care. In any event, there
was no duty to test for arsenic. There was also no implied representation from BGS that
the water was arsenic.

19. Third Stage; What is fair, just and reasonable that the law
should impose a duty
 Considerations of “what is fair, just and reasonable” are in reality co-
extensive with policy arguments.
 In conclusion, while the courts maybe disinclined to take on the role of
legislators, they do have to take steps to keep the tort of negligence
within reasonable bounds and it is the use of policy considerations which
allows them to do this.
 Winfield and Jolowicz defined policy as; “ The use of the word “policy”
indicates no more than that the court must decide not simply whether
there is or is not a duty, but whether there should or should not be one,
taking into account both the established framework of law, and also the
implications of a decision that one way or the other might have for the
operation of law in our society.”
 What this means is that judges can and do make up law as they go along
in response to changing social conditions.

20.  Factors which influence judges may include the following non-exhaustive list:-
 Loss of allocation, which party can best afford to bear the loss? Nettleship v
Weston 1971
 The Floodgates argument. This involves the fear that a flood gate of claims
may follow a particular decision and is found in a number of “grey areas” of
negligence, such as nervous shock.
 Moral considerations
 Practical considerations such as forward planning for manufacturers.
 The notion that professional people like doctors and barristers need to be
protected from the threat of negligent actions which could inhibit their
professional skills and the judgment. Hatcher v Black 1954
 The respective constitutional roles of parliament and the judiciary
 Judicial reluctance to create new common law duties where none previously
existed.