LAW OF NEGLIGENCE

OVERVIEW
Definition of Negligence
The Elements of Negligence
Duty of Care
The Test for Determining the Existence of a Duty of Care
Breach of Duty of care
Standard of care
Professional standard of care
Causation
Remoteness of damage
 DEFINITION
Dictionary definition : Carelessness, Careless conduct.

Legal definition : a breach of a legal duty to take care, which result in

damage, undesired by the defendant, to plaintiff (Winfield & Jolowicz
on Tort).

Blyth v Birmingham Waterworks Co (1856)

Alderson B stated that negligence is the omission to do something which a

reasonable man, guided upon those considerations which ordinarily regulate the
conduct of human affairs, would do; or doing something which a prudent and
reasonable man would not do.
 ELEMENTS OF NEGLIGENCE
There are basically four main elements of negligence. The four elements are:

a) Duty of care;
b) Breach of that duty;
c) Damage resulting from that breach; and (causation)
d) A compensable damage, the damage is not too remote. (remoteness of
damage).

NOTES: All these elements need to be established by the claimant to succeed

in negligence claim.
 DUTY OF CARE
The claimant need to prove that the defendant owes him a duty of
care. Duty in law of negligence means duty recognised by law or legal
duty.

How is duty of care established?

There are several tests in determining the existence of duty
of care. These tests has been laid down in these cases:
a) Donoghue v Stevenson [1932]
b) Anns v Merton London Borough Council [1978]
c) Caparo Industries PLC v Dickman [1990]
Donoghue v Stevenson ( the neighbour principle)

FACTS : The plaintiff became ill after drinking ginger beer manufactured by the
defendant. The plaintiff's friend bought the bottle of ginger beer for her in a cafe.
The plaintiff drank some of the ginger beer before realising that there was a snail
at the bottom of the bottle. Due to privity of contract rules, the plaintiff, as a
third party, was unable to sue the defendant under contract law. Therefore, she
sought to make a claim against the defendant in Negligence.
ISSUE : Did the defendant owe the plaintiff a duty of care?

HELD : The plaintiff could pursue a claim against the defendant because a manufacturer
owes a consumer a duty of care. The wider importance of the case is the reasoning which
establishes the neighbour principle.

Lord Atkin : 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 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 neighbour principle is an objective test in the sense that the court
will ask the hypothetical question: would a reasonable man, who is in
the same circumstances as the defendant, foresee that his conduct will
adversely affect the plaintiff? If the answer is no, the plaintiff is not a
neighbour of the defendant and no duty of care arises. Conversely, if the
answer is yes, this means that the plaintiff is a neighbour of the
defendant and the latter owes the former a duty of care.
 The two-stage approach/ the Anns test

2-Stage Test laid down by Lord Wilberforce in Anns v Merton LBC :

a) First it requires a sufficient relationship of proximity based upon

foreseeability ;
a) and secondly considerations of reasons why there should not be a duty
of care.
The second stage expounded by Lord Wilberforce in essence means that
once it is reasonably foreseeable that the defendants act or omission may
cause damage to the plaintiff, there is a presumption of the existence of a
duty of care. This duty will only be reduced or negatived if there are policy
factors which require the reduction or negation of that duty.
Case: Governors of the Peabody Donation Fund v Sir Lindsay Parkinson and
Co Ltd 1985
 The three folds test/ Caparo Industries PLC v Dickman [1990]

1. Was the damage suffered by the claimant a reasonably foreseeable consequence of the
defendants actions?
The damage must be foreseeable, if damage is not foreseeable then there is no duty of
care
Bourhill v Young (1943)- pregnant lady saw an accident and had miscarriage. She sued
the defendant for damages. Court held: The defendant could not forsee that someone
who is 50 feet away from him will suffer damages from the accident.

2. Was there a relationship of proximity/neighbourhood between the claimant and the

defendant?
Proximity in time, space or relationship.
see the case Mcloughlin v Obrian [1983]- a lady suffered shock after seeing her
husband and children in hospital after an accident. The court held: lady can claim for
the shock since she is in proximity of relationship with the victim.

3. Is it fair, just and reasonable for the law to impose a new duty of care in the situation?
McFarlane v Tayside Health Board (1999)- husband had a vasectomy procedures.
Hill v Chief Constable of West Yorkshire [1988]- peter suctliffe. Suing for failure to
 BREACH OF DUTY OF CARE
Standard of Care
The claimant must establish that the defendant breached the duty of care owed to the
claimant

A defendant breaches a duty of care when she/he falls below the standard of care that
was expected from the defendant

The standard of care therefore, is the level of care which a reasonable or prudent person
would exercise in the same circumstances as the defendant. this is known as the
reasonable man test. See Blyth v Birmingham Waterworks Co [1856] see the case of
Nettleship v Weston.

Therefore, in cases where the defendant is an expert, for example, a doctor or dentist,
than the standard of care is the level of care to be expected from such an expert (the
reasonable doctor or the reasonable dentist.)
Professional Standard of Care
Professionals will be judged by the standard of the ordinary skilled man exercising
and professing to have that special skill.
i. Medical Profession
a) Bolam v Friern Hospital Management Committee [1957]
b) a medical professional is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of medical men skilled
in that particular art
c) Bolitho v City and Hackney Health Authority [1997]
d) In applying the Bolam test where evidence is given that other practitioners
would have adopted the method employed by the defendant, it must be
demonstrated that the method was based on logic and was defensible.
ii. Legal Profession
a) Mohd Nor Dagang Sdn. Bhd. v Tetuan Mohd Yusof Endut [2001]
Lawyer sued for negligently not informing about trial date.
iii. Teaching profession
a) Mohd Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981]
Plaintif struck by a cangkul in gardening class.
 CAUSATION
Where it is proved that the defendant owes the plaintiff/claimant a duty of
care and that the duty has been breached, then the court must turn to the
question of causation.

The plaintiff must prove that the damage he suffered was caused by
defendants breach of duty.

The plaintiff must also prove the damage he suffered is not too remote but
rather reasonably foreseeable.

Causation concerns with the physical connection between the defendants

negligence and the plaintiffs damage.

The defendant can be made liable only if the chain of causation is unbroken.
Causation in fact
i. BUT FOR TEST
The claimant must prove that harm would not have occurred 'but for' the negligence of the defendant. It
is possible to apply the 'but for' test where there is speculation as to how the claimant would have
behaved in a given situation.

The question of causation may also arise where there is a dispute about what the defendant would have
done in a given situation.

Sometimes, it may be clear that the defendant's breach of a duty did not actually cause the harm
suffered by the claimant.

Case : a) Barnett v Chelsea & Kensington HMC [1969]

The plaintiffs husband had an arsenic poisoning. He went to the the hospital, but the
doctor asked the nurse to send him home. Mr.Barnett died a few hours later. The court
held that the doctor act did not cause the Mr. Barnett death. Mr.Barnett would have
died anyway even if the doctor has treated him.
ii. Several successive cause
The but for test is inapplicable in cases where the plaintiff suffers damage through one cause and
subsequently suffers damage through another cause.

In the case of two successive cause of harm, the court may regard the first event as the cause of the
harm.

iii. Multiple causes

if there more than one causes to plaintiff injury. The defendant who materially increase the plaintiffs
injury/damages will be liable for the damages.
fairchild v Glenhaven Funeral Services ltd 2002
The plaintiff worked with several employer which exposed him to asbestos. The plaintiff has contracted
with skin cancer because of too much exposure with asbestos. The plaintiff sued all his employer for
damages. The court held : the plaintiff can sue the defendant which materially increase his risk to cancer.

iv. Loss of chance

If P fails to prove on balance of probabilities that D`s breach of duty caused P`s damage, then he cannot
claim loss of chance.
 CAUSATION IN LAW
Direct consequence test/ traditional approach
the defendant is still liable for plaintiff damages even he/her could foresee such
damages will occurred- case Re Polemis.

Reasonable foresight test

The defendant is only liable if he can foresee the damages caused to the plaintiff.
Case Wagon mound 1.

Egg skull rule

The defendant is still liable for the injury even if the plaintiff condition contributed
and worsened the injury. Case: Smith v Leech brain & co.
Novus causa interveniens.
Novus actus interveniens.
Causation in law/ remoteness of damage

Reasonable foresight test

Wagon Mound case 1

The defendants named the wagon mound leaked furnace oil at a wharf in Sydney. The leaked has
caused fire to the wharf.
the court held that: The defendant is not liable for causing fire to the wharf, since the defendant
could not foresee that the oil leak will cause fire to the wharf.