Negligence
Donoghuge v Stevenson
This was the case which defined the “neighbour principle” identifying who was owed
a duty of care.
It defined a neighbour as: “persons who are so closely and directly affected by my
act that I ought reasonably to have had them in contemplation as being so affected, when I
am directing my mind to the acts or omissions which are called in question.”
Put more simply, a neighbour is someone who where directly affected by the act or
omission, and are reasonably foreseeable that they would be affected by that act or
omission.
This rule allowed judges to decide who owed a duty of care, and who didn't.
However they often found themselves making policy decisions to avoid certain groups
owing a duty of care, despite the claimant being closely and directly affected.
Hill V Chief Constable Of West Yorkshire Police (1988)
It was found that the police where not liable to the families of victims for failing to
prevent crime. After the mother of a woman murdered by the Yorkshire ripper tried to claim
against the police for not catching the killer quickly enough, causing her daughters death.
Osman V UK (2000)
This was a case in the European court of human rights. The failure of the police to
follow up the claimant's reports of the death of a man and injuries to that man's son was
held to be a breach of the European convention of human rights.
Z V UK (2001)
Another European court of human rights case, this established that a local
authorities failure to protect a child from abuse by the child's parents was a breach of the
child's human rights.
Both of these cases (Z v UK and Osman V UK) called into question the almost blanket
immunity to claims that the police had enjoyed up to that point (pre 2001) since 2005 and
the case of Brooks V Commissioner of police for the metropolis, the police are considered
not to have a duty of care towards a victim of crime, unless the police “assume a
responsibility towards that person.”
Caparo V Dickman (1990)
This case modified the neighbour principle into a more modern three part test. For a
duty of care to be imposed three questions must be answered:
 Was the damage or harm reasonably foreseeable?
 Was there sufficient proximity between the claimant and the defendant?
 Is it just, fair and reasonable for a duty to be imposed?
Reasonable forseeability
For a duty of care to be owed, it must be reasonably foreseeable that damage or
harm would occur. If a reasonable person could not foresee the damage, then no duty is
owed.
Bourhill V Young (1943)
In this case it was held that it was not foreseeable that a woman would miscarry
after hearing a motorbike accident. And so the defendant owed the woman no duty of care.
Maguire V Harland And Wolff (2005)
The claimant was claiming for illness caused by asbestos that had been carried into
her house on her husbands work clothes. Because the exposure occurred before the
dangers of asbestos where understood, it was ruled that it was not foreseeable at the time
that she would get ill, and so her husbands employers owed no duty of care.
Sufficient proximity
This rule requires that the claimant and defendant have sufficient proximity. This is
where there must be a link between the claimant and the defendant. For example there
would be sufficient proximity between a person hit by a car, for obvious reasons, but there
could also be sufficient proximity to the family of that person, who see them at the hospital.
McLoughin V O'Brian (1983)
The claimant's claim for nervous shock against a lorry driver who hit her family was
successful, as it was ruled that there was a proximity between her and the lorry driver,
after she saw the condition of her family in hospital.
Just, fair and reasonable
This requirement allows judges to make a decision on new situations as they arise.
For example it was established that it was not reasonable for a taxi driver to be
responsible for a drunk passenger, who was run over as he exited the taxi. This is also
used in cases where the police, fire brigade, ambulance service, hospitals or similar
groups are being sued, for example the judgement in Hill would today fall under this rule.
Gritthis V Lindsay (1998)
It was decided by the courts that it was unreasonable for a taxi driver to owe a duty
of care to a drunk passenger, who was run over as he got out of the taxi.
Mulcahy V Ministry Of Defence (1996)
The decision in this case established that it was unreasonable for the MOD to owe a
duty of care to soldiers who are injured in battle. This ruling also means that soldiers do
not owe each other a duty of care during a battle.
Vowles V Evans (2003)
The courts decided that it was reasonable for a referee to owe an injured rugby
player a duty of care.
Breach Of Duty
This section is where fault becomes a factor. It is not simply enough for a duty to
exist, and for an outcome to have occurred, the person who owed the duty must have
failed to perform that duty to the necessary “standard of care”.
For example a doctor owes their patient a duty of care. If the patient dies the doctor
is only liable if they failed to properly treat the patient, not if the patient died despite the
doctors best efforts.
Standard of care
Standards of care are described in general terms. There is no legal requirement to
reach the standards of a good driver, only an average driver. Because of this the standard
test is the “ordinary reasonable person” e.g. “would an ordinary, reasonable doctor have
failed to spot the patients heart condition”
Nettleship V Weston (1971)
This is the case that established that a driver is required to fulfil the standard of care
of an ordinary, reasonable driver. As it is assumed that such a driver has passed their
driving test, the fact that the defendant was a learner driver was unimportant, she had
fallen below the expected standard of care.
Bradford-Smart V West Sussex County Council
The court of appeal made the ruling that the local council was not negligent for
failing to prevent a pupil from being bullied on their way to and from school. Although the
school is responsible for the safety of it's pupils, and while the school may have been able
to stop the bullying, the school was not obliged to guarantee the safety of every pupil on
their way to and from school.
The test
when using this test, the courts take into account factors such as:

The age of the defendant (a child is not expected to reach the standards of a
reasonable adult) Mullin V Richards (1998)

the profession of the defendant (a normal office worker is not expected to have the
medical knowledge of a doctor, and a junior doctor would not be expected to have
the knowledge of a specialist, for example) Bolam V Friern Hospital Management
Comitee (1957)

the characteristics of the claimant (are they more vulnerable to damage, if the
defendant is aware of this, they should have taken more precautions) Paris V
Stepney borough council (1951)

the amount of risk (if the risk was minor, the defendant may not have breached their
duty) Bolton V Stone (1951), Hilder V Associated Protland Cement (1961), Chester
V Afshar (2004)

Reasonable precautions (if the defendant has tried to prevent damage or injury to
others the duty may not have been breached. However these precautions are only
deemed reasonable if they are considered common practice) Wilson V Sacred
Heart primary school (1997), Latimer V AEC ltd (1952)

benefits of the risk (where the risk was acceptable in the circumstances, e.g. there
is a risk of breaking someone's ribs during resuscitation. However as this is a
potentially life saving procedure, this risk is reasonable.) Watt V Heartfordshire
County Council (1954)
Damage
The final requirement for negligence is damage. This means that the alleged
negligence must have caused personal injury, or damage to property. For example if a
driver falls below the required standard of care of an ordinary reasonable driver, but don't
damage anything or anyone, no claim for negligence exists. For damage to be proven, the
negligent act or omission must have caused the damage, and the type of damage must
have been foreseeable.
Causation
This is where the courts must establish that the breach of duty caused the damage
being claimed for. The test for this is the “but for” test. I.e. “but for the defendants act would
the claimant have suffered the damage?”
Barnett V Chelsea and Kensington hospital management committee (1968)
A claim for damages was disallowed as it was shown that a doctors failure to
identify arsenic poisoning was not negligence as the poisoned people would have died
anyway.
Thompson V Home Office (1988)
The claimant was a prisoner who had been injured in a fight by another inmate with
a razor blade. The claim was based on the availability of razorblades in prison being the
cause of his injury. The court ruled that this was not the case, and that the claimant's
attacker would have found another way to inflict the injury.
Type of damage (remoteness)
it is not enough for the claimant to prove that any damage was foreseeable, the type
of damage that occurred must have been foreseeable. However if damage occurs and
then is made worse by non-foreseeable factors.
The wagon mound (1961)
In this case it was established that despite a negligent oil spill having a foreseeable
capacity to cause damage, it was not foreseeable that sparks from welding would ignite
the oil, causing a fire. And so the defendant was not liable.
Smith V Leech Brain and Co. Ltd (1962)
The defendants negligence caused the claimants husband to be burned on the lip.
The burn caused cancer and the claimants husband died as a result. Because the burn
was foreseeable the defendant was held liable for the full extent of the injuries and
therefore the victims death, even though the cancer was not foreseeable.
Huges V Lord Advocate (1963)
Post office workers left a hole in the road unattended. Before they left they closed
the tent covering the hole, and placed paraffin warning lamps around the hole. An 8 year
old (the claimant) played inside the tent, knocking one of the lamps into the hole. This
caused an explosion which badly burned the claimant. They where able to claim because
while the explosion was not foreseeable, burns where a foreseeable result of the paraffin
lamps.
Novus Actus Interveniens
Sometimes a new intervening act can break the “chain of causation” this would
usually be the unexpected actions of a third person, or of the claimant themselves. Proof
of such an act can result in the defendant no longer being responsible for the claimants
injuries.
Baker V Willoughby (1970)
The claimant's leg was injured during a car accident, due to the negligence of the
defendant. The defendant was ordered to compensate the claimant for his injuries.
However before this occurred the claimant was shot in the leg during an unrelated armed
robbery and had to have it amputated (new act). The defendant argued that he should not
have to pay compensation for damage to a leg that no longer existed. The court ruled that
the claimant should still receive compensation.
Jobling V Associated Diaries (1982)
the house of lords ruled that an employer where only liable for an employees
injuries up to the point when an unrelated illness prevented the claimant from working
again.
Res Ispa Loquitur
this translates as “the facts speak for themselves” and is the legal term used when
the exact sequence of events cannot be proven, but the facts show that the defendant
must have been negligent. This is especially important in medical cases, where a patient
wakes up from an operation in which the surgeon has been negligent. Because the patient
was under general anaesthetic, they cannot be sure who exactly was to blame.
Mahon V Osborne (1939)
The claimant underwent an operation during which a cotton wool swab was left in
her stomach. This became infected. The hospital was found negligent based on this
evidence.
Scott V London and St Katherine's Docks
The claimant was hit by a falling bag of sugar while in the defendant's warehouse.
The fact that bags of sugar do not naturally fall out of the sky meant that the court of
appeal felt there was enough evidence to find the defendant liable.