TORT OF NEGLIGENCE I

DEFINITION OF TORT OF NEGLIGENCE

ELEMENTS OF TORT OF NEGLIGENCE
DUTY OF CARE (FIRST ELEMENT)

MUHAMAD ABRAL BIN ABU BAKAR,

LECTURER,
FACULTY OF LAW & GOVERNMENT.
LEARNING OUTCOMES:

By the end of this chapter you should be able to:

Understand that the tort of negligence is structured on the concepts of duty
of care, breach of duty and resulting non-remote damage
Indicate the social and policy questions that have influenced the development
of the tort of negligence
LECTURE OUTLINE

1. Introduction to the Tort of Negligence

2. Definition of Tort
3. Elements in the Tort of Negligence
Introduction to Tort of Negligence
INTRODUCTION

The area of Negligence is the most important tort in the law of tort. It is wide
in scope. Example?

Can injured party claim compensation?

Standard of proof?
DEFINITION OF NEGLIGENCE
WHAT is Tort of Negligence?

There are various definition given to explain what is tort of negligence.

Among others, the following definition may be adopted to assist the
understanding on what is tort of negligence:
Alderson B - Blyth v Birmingham Waterworks,
Brett MR - Heaven v Pender (1883),
Lord Wright - Lochgelly v McMullan[1934],
Alderson B - Blyth v Birmingham
Waterworks,
Brett MR - Heaven v Pender (1883),
Lord Wright - Lochgelly v
McMullan[1934],
ELEMENTS IN THE TORT OF
NEGLIGENCE
ELEMENTS IN THE TORT OF NEGLIGENCE

Negligence forms the largest area of tort

In essence, negligence is a breach of legal duty to take care of another which
then results in loss or damage to the claimant (injured party).
In order to bring an action under tort of negligence, these elements must be
proven by the claimant as per Lord Wright in Lochgelly v Mc Mullan:
1. The defendant owed him a duty of care,
2. There must have been a breach of that duty of care by the defendant,
3. The breach of duty must have caused damage to the claimant, AND
4. The damage suffered by the claimant must not have been too remote from
the breach by the defendant.
L.Wright in Lochgelly v Mc Mullan:

Duty of care Breach Causation

NEGLIGENCE Remoteness
1st ELEMENT: DUTY OF CARE
DUTY OF CARE

The test for determining the existence of a duty of care have changed.
Prior to 1932, there were numerous incidents of liability for negligence but
there was no connecting principle formulated which could be regarded as the
basis of all of them. These were referred to as duty situations.
The first attempt to create a rationale for all the discrete duty situations was
made by Brett MR in the case of Heaven v Pender [1883], but the most
important formulation of a general principle is that of Lord Atkin in the case
of Donoghue v Stevenson [1932]. This is known as the neighbor principle.
Donoghue v Stevenson [1932]
Mrs Donoghue went to a caf owned by Francis Minchella, known as the
Wellmeadow Caf.
A friend of Mrs D bought a bottle of ginger beer and ice cream for her. The bottle
of ginger beer was made of opaque glass.
Minchella poured part of the contents into a tumbler containing the ice cream. Mrs
D drank some of this and the friend then poured the remainder of the ginger beer
into the glass. It was said that a decomposed snail floated out of the bottle.
Mrs D claimed that she suffered shock and gastroenteritis, and asked for 500
damages from the manufacturer.
Mrs D argued that a manufacturer of product is liable in negligence to a person
injured by the product, but the manufacturer argued that there could be no
liability as there was no contract between the claimant and the manufacturer.
The court held on the point of law involved, that such a defendant could be liable
to such a claimant in negligence.
The neighbour principle Lord Atkin:

You must take reasonable care to avoid acts or omissions

which you can reasonably foresee are likely to injure your
neighbor. Who, then, in law is my neighbor? The answer
seems to be- persons who are so closely and directly
affected by my act that 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 into
question
 Development and application of
neighbour principle
The neighbour principle is a test based on reasonable foresight of
harm and is a very wide concept. It needed further refining.
In the 1970s, there were attempts to extend it by defining it as a
general principle.
In the case of Home Office v Dorset Yacht Co Ltd [1970], Lord Reid
said:

This had led to Lord Wilberforces two stage test in the case of
Anns v Merton Local Borough Council [1977] at the House of Lords.
two stage test
Lord Wilberforce in Anns v Merton LBC [1977] said:
First, one has to ask whetherthere is a sufficient relationship of proximityin
which case a prima facie duty arises. Secondly, if the first question is answered
affirmatively, it is necessary to consider whether there are any policy considerations
which ought to negative, or to reduce or limit the scope of the duty
Lord Wilberforces general principle in Anns soon came in for heavy criticism.
This began with Lord Keith in Governors of the Peabody Fund v Sir Lindsay
Parkinson & Co Ltd [1984], when he said in addition to proximity, the court
must decide whether it is fair, just, and reasonable to impose a duty of
care.
The decision in Anns had subsequently being overruled by the House of Lords.
The case of Murphy v Brentwood District Council [1990] marked the death
knell for the two stage test by overrulling Anns.
three stage test

The case of Murphy v Brentwood District Council [1990] talked of adopting an

incremental approach to determining the existence of a duty of care.
The most recent formulation of the principle comes from Caparo Industries
plc v Dickman [1990].
Caparo Industries plc v Dickman [1990].

FACTS: the appellants had undertaken the annual audit of a public company
following the regulations laid out in the Companies Act 1985.
The respondents were members of the company and had relied on the
accounts to make a successful bid to take over the company.
The respondents alleged that the accounts had been prepared negligently and
their reliance on them had caused them a loss as a result.
The HOL had to decide whether the appellants owed the respondents a duty
of care in the preparation of the accounts.
HELD:

When assessing whether a duty of care was owed the courts will take into
account the following criteria (the three stage test):
1. Reasonable foreseeability of harm;
2. Proximity of relationship
3. Whether it would be fair, just , and reasonable to impose a duty.
Application of the recent test in
ascertaining duty of care

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