The Tort of Negligence further references: Over much of the first semester you will be looking at the Tort

of Negligence. This is only one tort (others include defamation, nuisance), however we will be spending more time on this tort than the others. This is largely due to the fact that negligence is an important way of seeing the various influences that have affected the development of Tort. It also protects more than one interest. Many of the other torts only protect one defined interest. There are a number of hurdles a claimant must jump before they can successfully recover in negligence. Over the coming weeks we will be looking at these in this order: 1. 2. 3. 4. 5. Establishing a duty of care Standards of behaviour Proving breach Causation Remoteness

See http://www.youtube.com/watch?v=jlzsIME4p38 For an amusing introduction to some of what is to come! Establishing a Duty of Care: The duty of care that one person owes to another is, in most situations in daily life, established. The main issue we will be considering here is whether the claimant can establish a duty of care in a new duty situation. In the lecture we will consider the following cases and consider the shift in attitude between 1932 and the present day. You will be looking at some of these cases in more detail in a tutorial in a few weeks time. Lord Atkin is credited with an attempt to establish a general principle of a duty of care in negligence in Donoghue v Stevenson [1932] AC 562: " the rule that you are to love your neighbour becomes in law, you must not injure your neighbour ; and the lawyer's question, Who is my neighbour? receives a restricted reply . You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to 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."

The general principle elucidated by Atkin was reiterated by Lord Reid in Home Office v Dorset Yacht Co (1970) 2 All ER 294. " in later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue v Stevenson may be regarded as a milestone, and the well known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion." Atkin's principle allowed for the general development of the tort of negligence, this approach was confirmed by Lord Wilberforce in Anns v Merton L.B.C. (1978) AC 728: "in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be 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 the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise." This two stage test relegates issues of policy to the second stage once a proximate relationship has been established, yet the initial relationship must have policy considerations in itself. The courts have found the two stage test problematic. See Peabody Donation Fund v Sir Lindsay Parkinson (1984) 3 All ER 5291 for a start to the retreat from Anns with Lord Keith And see Leigh & Sillivan Ltd v Aliakmon Shipping Co. (1986) and Curran v N.I. Co- ownership housing Association (1986) 2 All ER 145.

The climax to this retreat was Yuen Kun- yeu v A- G of Hong Kong (1988) AC 175. Lord Keith: " Their Lordships venture to think that the two stage test formulated by Lord Wilberforce for determining the existence of a duty of care in negligence has been elevated to a degree of importance greater than it merits, and greater perhaps than its author intended. Further, the expression of the first stage of the test carries with it a risk of misinterpretation. As Gibbs CJ pointed out in Sutherland v Heyman there are two possible views of what lord Wilberforce meant. The first view, favoured in a number of cases mentioned by Gibbs, is that he meant to test the sufficiency of proximity simply by the reasonable contemplation of likely harm. the second view, favoured by Gibbs himself, is that Lord Wilberforce meant the expression "proximity or neighbourhood' to be a composite one, importing the whole concept of necessary relationship between plaintiff and defendant described by Lord Atkin. In their Lordships opinion the second view is the correct one." Requirements for a Duty of Care to exist In Caparo v Dickman 1990 1 All ER 568 The House of Lords emphasised the post Ann's debate and the fact that there is no single general principle that provides a practical test which can be applied to every situation to determine whether a duty of care exists and its scope. "What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other." (Lord Bridge) Therefore we now require (for a duty of care to exist): - foreseeability of damage (harm). - a relationship of proximity (which includes policy). - it must be fair, just and reasonable to impose a duty. In addition to consolidating the post Anns position the House of Lords also approved the statement of Brennan in Sutherland v Heyman 1985 60 ALR at 4344.

"It is preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or reduce or limit the scope of the duty or the class of person to whom it is owed.'" See Hayne J in Brodie v Singleton S.C. [2001] 180 ALR 145 at 318 See Spring v Guardian Assurance [1995] 2 AC 296, 3 All ER 129

Here is a link to the Scottish Council of Law Reporting's website on the most famous tort case ever, Donoghue v Stevenson (http://www.scottishlawreports.org.uk/resources/dvs/donoghue-v-stevenson.html) including pictures of the cafe where May Donoghue drunk the ginger beer with the snail(?). There's a picture of the ginger beer too. This case gave rise to the multi-billion pound personal injury industry in law. Every time you see a commercial on TV which says, "Have you been injured? You might be entitled to compensation...", remember the snail started it all. If you would like to see a background short film on the Scottish system re Donoghue v Stevenson see http://youtu.be/fZNOnMb8le8 And a silly one! http://www.youtube.com/watch?v=zWia3GCzyLQ History and Development of Tort tutorial: This is a case based tutorial that will introduce you to some areas of negligence that have been affected by particular judicial attitudes (in turn influenced by the economic and political philosophies of the time), and affected by judicial and statutory developments in the UK with regards to the European Convention of Human Rights. Consider with each set of cases what the major differences are between the approaches of the court and why these differences might exist, with what justification.