LAW1014 Law of Torts

2. Negligence
Dr David Keane, Assistant Professor in Law

Lecture notes compiled from slide content and speaker notes.

1. History of Negligence
● Until the earlier part of the last century, negligence was not regarded as a separate tort
● The word was used in a number of senses, generally suggesting inadvertence or inattention on the part of
the defendant
● In the 19th century, negligence began to emerge as a separate basis of liability. However the road to
compensation was ‘long, hard and full of obstacles’ and the system provided little compensation for most
victims of accidents
● Heaven v Pender [1883] 11 QBD 503 - suggested there was a wider ‘duty to use ordinary care and skill to
avoid danger’
● Lievre v Gould [1893] 1 QBD 491 – ‘What duty is there when there is no relation between the parties by
contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to
them’
● It was not until the 20th century that the conceptual elements of the tort of negligence were fully developed
Lecture Notes
Pender owner of a dry dock; Heaven ship painter using staging over side of a ship supported by ropes. The
ropes had previously been damaged and unfit for use. HoL decided the case on basis of duty of care owed by
occupier to invitees but Brett (obiter) suggested wider duty to be responsible in tort to those who might be
injured if ‘ordinary care and skill’ was not exercised (later adopted by Lord Atkin). The court found ‘he was led
into what has been called a trap …’
Lievre: Plaintiffs were the mortgagees, who pursuant to the building agreement, paid the mortgage money in
instalments at different stages in the progress of the building relying on the certificates that the defendant
surveyor produced about the progress of the building. However, the claimants later found out the statements
that the surveyor made in the certificates were incorrect. There was no fraud on the surveyor's part, the
claimants brought an action against him for negligence.

2. Negligence
● Negligence is a tort in its own right. There are four main elements:
● 1. Duty of care;
● 2. Breach of that duty;
● 3. Causation;
● 4. Loss or damage to recognised interests of the plaintiff
● Key case is Donoghue v. Stevenson [1932] UKHL 100
3. 1. Duty of Care
● A moral - or legal? - obligation to ensure the safety or well-being of others
● Pre-1932, the manufacturer of an article, other than one that was either dangerous to the knowledge of the
manufacturer or dangerous per se, owed no duty of care outside that imposed by the contract under which
the article was sold
● Initially, the argument appeared relatively narrow but was of major legal significance
● That a new category of liability should be opened up where a manufacturer puts onto the market a product
intended for consumption and packaged in such a way that inspection prior to consumption is impossible
● Liability would apply whether or not there was a contract

4. The Snail and the Ginger Beer

[Image: Wellmeadow cafe 1928-1932. "Snail in bottle case" Donoghue Stevenson]
● May Donoghue took a train to Paisley, Scotland, where she went to the Wellmeadow Café
● A friend was with her and ordered a pear and ice for herself; and a float, a mix of ice cream and ginger
beer, for Donoghue
● Owner of the café brought over a tumbler of ice cream and poured ginger beer on it from a brown and
opaque bottle labelled “D. Stevenson, Glen Lane, Paisley”
● Donoghue drank some of the ice cream float. However, when Donoghue's friend poured the remaining
ginger beer into the tumbler, a decomposed snail also floated out of the bottle
● Donoghue claimed that she felt ill from this sight, complaining of abdominal pain
● Subsequently diagnosed with severe gastroenteritis and shock

5. An Earlier Case
● Walter Leechman, a local solicitor was contacted
● His firm had acted unsuccessfully for the claimants in a factually similar case, Mullen v AG Barr & Co Ltd
[1929] ScotCS CSIH 3, less than three weeks earlier
● This concerned the finding of dead mice in bottles of ginger beer by three children
● In Mullen, the Scottish Court of Session dismissed the plaintiffs' claims on the basis that there was no legal
relationship between the drinks producer and the final consumer upon which to sue
● Despite the ruling in Mullen, Leechman issued a writ on Donoghue's behalf against David Stevenson on 9
April 1929 for £500 in damages (equivalent to £27,000!)

6. Donoghue v. Stevenson [1932]

● Donoghue claimed that Stevenson had a duty of care to Donoghue to ensure that snails did not get into his
bottles of ginger beer, but that he had breached this duty by failing to provide a system to effectively clean
bottles, and that this breach caused Donoghue's illness
● The ineffectiveness of the cleaning system was alleged to result from the bottles being left in places ‘to
which it was obvious that snails had freedom of access ... and in which, indeed, snails and the slimy trails
of snails were frequently found’
● Stevenson pleaded: (1) that the claim had no legal basis; (2) that the facts could not be substantiated; (3)
that he had not caused Donoghue any injury; and (4) that the claimed amount was excessive
● The court focused on the issue of law - assuming that Donoghue's claims were true, was there a cause of
action available?
 ● Mullen: manufacturers only owed a duty of care to ultimate consumers if there was a contractual
relationship between the parties; Donoghue had no contractual relationship as she had not purchased the
ginger beer. Mullen was followed and the decision was appealed to the House of Lords

7. On the Law
● Injuries resulting from defective products were normally claimed on the basis of a contract of sale between
the seller and the consumer. However, Donoghue had no contractual relationship with café owner as she
had not purchased the ginger beer.
● While her friend did have a contract due to placing the order, she had not suffered any injury. Moreover,
neither had a contract with Stevenson, the manufacturer
● Mullen: manufacturers only owed a duty of care to the ultimate consumers if: there was a contractual
relationship between the parties; if the dangerousness of the product was intentionally withheld from the
consumer (i.e. fraud); or if there was no warning of the intrinsic dangerousness of certain products, such as
explosives
● Mullen was followed also in Donoghue and the decision was appealed to the House of Lords

8. Lord Atkin: Duty of Care

● At present I content myself with pointing out that in English law there must be, and is, some general
conception of relations giving rise to a duty of care, of which the particular cases found in the books are but
instances
● The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa”,
is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay
● But acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to
give a right to every person injured by them to demand relief
● In this way rules of law arise which limit the range of complainants and the extent of their remedy

9. The Neighbour Principle

[Image: Lord Atkin]
● 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
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

10. Outcome
[Image: (photograph, unlabelled)]
● Varied from the narrowest that there was merely a duty ‘not to sell opaque bottles of beverage containing
dead snails to Scots widows’, to the widest that Lord Atkin's neighbour principle was the ratio
● Case supported the claim that there can be duties in Tort even if there is no contract; that manufacturers
owed a duty of care to the ultimate consumers of their goods; and that negligence is a separate tort
 ● Legal basis for the claim now settled, Donoghue had to prove the facts including that there had been a snail
in the ginger beer as a result of Stevenson's negligence, and that this snail had caused her illness
● However, the defendant, Stevenson, died in November 1932 and claim was settled out of court for £200 (v
£27,000)
● What happened in the Wellmeadow Café was not proven (there was no trial and no witnesses gave
evidence) and will not be known for certain, leading some to suggest the snail is a legal fiction
Lecture Notes
Picture is the only known photo of May Donoghue. See also: [Link]
snail-in-the-bottle-legal-heroine-unveiled-in-paisley-street-where-it-all-began/

11. Development of Duty of Care

● Donoghue v. Stevenson - there is a duty to take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour
● As time went on, a variety of situations in which duty of care arose were considered
● Quickly established for example that motorists owed a duty of care to other road users. But what about new
situations?
● It would only be deemed to arise if there were policy reasons for doing so – whether society would benefit
from the existence of a duty
● Many other branches did arise, such as medical negligence which accelerated from the 1950s - although
note that the earliest reported case of medical malpractice was Stratton v Swanlond which was decided in
1374
Lecture Notes
A surgeon tried to repair a woman's mangled hand. The woman claimed the surgeon said he could cure her,
but after the procedure she was still deformed.

12. US Origins
[Image: Oliver Wendell Holmes (postage stamp)]
● ‘Torts is not a proper subject for a law book’ – Oliver Wendell Holmes (1871)
● In his book review, he found an absence of a ‘cohesion or legal relationship’ between the variously treated
topics
● But 2 years later he attempted to formulate his own, The Theory of Torts (1873)
● Noticed that in the case of certain civil wrongs, such as allowing dammed water or wild animals to escape,
liability was found regardless of the culpability of the actor
● Absolute (or strict) liability such as for railroad companies
● The significant contribution Holmes made was the isolation, in academic literature, of negligence as a
substantive tort doctrine
● Signalled the expansion of negligence to a general standard of care

13. “Stranger” Cases

● Modern negligence principle seems to have been a response to the increased number of accidents not
involving persons in pre-existing relationships with each other - “stranger” cases
● Identification of the rise of Torts with the advent of industrialisation – mills, dams, ships, trains – making
injuries involving strangers more common
 ● Increasingly, parties involved in accidents owed no previously imposed duties to one another, so that
Holmes would ask – ‘what general duties were owed to all by all’? Became a generalized theory of legal
carelessness with an objective standard as a principle of tort liability. Modern negligence was born
● E.g. Kline v. Central Pacific Railroad 37 Cal. 400 (1869)
● Kline, a teenager, illegally boarded a train. After the railroad conductor employed sharp language and put a
hand on his shoulder in ordering him off the train, he jumped from a moving car and suffered injury
● Although the California Court agreed that the plaintiff was a ‘wrongdoer’, it granted him a recovery,
finding that his wrongdoing was ‘remote’ and that the railroad was legally required, having discovered his
presence, to use reasonable care in removing him from the railroad car
Lecture Notes
Kline was the personal injury action against a major railroad. 'What is impressive is how frequent tort suits
were from the outset and how immediately negligence emerged as the almost unquestioned liability standard'.
See further Gary T. Schwartz, 'Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation'
(1981) 90(8) Yale Law Journal 1717-1775. Schwartz comments on the Klein case: 'The Court thus
commemorated the imminent completion of the Central Pacific's transcontinental by requiring the railroad to
compensate a mere trespasser.' (at 1742). Note that there was no tendency on the part of the judiciary to shelter
emerging industries such as railroads from what would otherwise be their liability in tort. If anything, novel
forms of risk-taking generated by the profit motive were viewed with enhanced, rather than reduced, suspicion
– in California, railroad companies suffered defeat on the vast majority of contested issues.

14. US Railroads
[Image: Transcontinental Railroad of 1869]
● Two basic tort issues persist throughout the various courts' opinions - the negligence/wrongdoing of the
railroad; and the contributory negligence of the plaintiff-victim
● In passenger cases, only rarely did the railroads escape liability on the grounds that they were not negligent
● Because the high speeds of the new railroads created ‘hazards to life and limb’, and because the railroads
were ‘entrusted [with] the lives and safety’ of their passengers, the New Hampshire Supreme Court, for
example, held railroads liable to passengers for ‘even the smallest neglect’
● If a railroad car derailed, the California Supreme Court declared a presumption of negligence on the
railroad's part (in 1890!)
● Railroad passengers were only rarely denied a recovery on account of contributory negligence even if a
passenger was injured while boarding or deboarding a moving railroad car

15. Further Expansion from Donoghue

● Grant v. Australian Knitting Mills [1935] UKPC 2: Similar to Donoghue but manufacturers found liable
even where there is a possibility of intermediate examination by a third party or the consumer
● Wilson & Clyde Coal v. English [1938] AC 57: employers have a non-delegable duty of care to their
employees
● Stansbie v Troman [1948] 2 KB 48: a decorator failed to secure a household he was decorating, resulting in
a burglary while he was absent. It was found he owed a duty to the household owner to adequately secure
the premises in his absence
● Hedley Byrne v. Heller [1964] AC 465: Professionals owed a duty of care for statements which clients rely
on (e.g. banks, solicitors) – negligent misstatement
● But what about new situations? It would only be deemed to arise if there were policy reasons for doing so –
whether society would benefit from the existence of a duty
Lecture Notes
 On road user standards, see Chan v Peters Advantage Insurance Company Ltd [2021] EWHC 2004 (QB).

16. A Prima Facie Duty of Care

● Dorset Yacht Co Ltd v Home Office [1970] UKHL 2: widened further the circumstances in which a court
was likely to find a duty of care
● House of Lords held that the Home Office was liable to the Dorset Yacht Co Ltd for the damage the boys
had caused
● Dorset Yacht involved liability of government bodies as well as a person's liability for the acts of third
parties that he has facilitated
● Anns v. Merton London Borough [1977] UKHL 4: Lord Wilberforce reversed the approach for new
categories of duty of care; if neighbour test satisfied, a prima facie duty of care arose, unless there were
policy considerations that meant it would not be desirable to allow a duty
● Anns prioritised reasonable foreseeability and proximity over the policy concerns that had previously
dominated this area of tort law
● However expansion would be limited from 1990 by the “retreat from Anns”
Lecture Notes
Dorset Yacht: Ten borstal trainees were working on an island in the harbour under the control of three officers
employed by the Home Office. Seven trainees escaped one night, at the time the officers had retired to bed. The
seven trainees boarded a yacht and collided with another yacht, the property of the respondents, and damaged
it. The owners of the yacht sued the Home Office in negligence for damages. The Home Office argued
unsuccessfully that it should owe no duty of care as there was no precedent for any duty on similar facts. It was
put forward in the decision that the neighbour principle should be applied 'unless there is some justification or
valid explanation for its' exclusion'.
Anns: Council approved building works without checking foundations, which it was not obliged to do. The
House of Lords found the Council did owe a duty of care towards owners as regards inspection.

17. Reining in the Duty of Care

● Murphy v. Brentwood District Council [1991] UKHL 2: House of Lords overruled Anns
● It is preferable to 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
● Does not mean categories of negligence are closed, only creation of new duties of care must be gradual,
and by analogy with similar factual situations
● Set out in more detail in Caparo Industries PLC v Dickman [1990] UKHL 2
Lecture Notes
Murphy: A builder failed to build proper foundations to a house. The defendant local authority, approving the
building for its building regulations, failed to recognise the problem. Again, councils have the power to inspect
the foundations and to require any corrections necessary to bring the work into conformity with the bylaws, but
they are not under an obligation to do so. In Anns the House of Lords considered whether the local council
were under any duty of care toward owners or occupiers of houses as regards inspection during the building
process, and unanimously decided that a duty of care did exist. This was reversed in Murphy - a person who
has a right has no duties implicitly attached to that right.

18. Caparo Test

[Image: Caparo Industries v Dickman]
 ● Caparo v. Dickman [1990] UKHL 2
● 3-stage test for establishing whether a duty of care is owed:
● 1. Was the damage caused reasonably forseeable?
● 2. Was there a relationship of proximity between claimant and defendant?
● 3. Is it fair, just and reasonable to impose a duty?
● Note that even if defendant had caused the harm alleged, if there is no duty of care between them, there can
be no successful claim
● Results in a striking out application - even if facts are true, this might not give a legal claim against the
defendant

19. Facts in Caparo

● Caparo was a company who had made a takeover bid for another company, Fidelity. They used figures
prepared by Dickman, the auditors, showing Fidelity made a good profit. Takeover complete, they
discovered Fidelity was in fact making a loss!
● Dickman: they did not owe a duty of care to Caparo. Audit was in the context of Companies Act 1985 (UK)
by which all firms must have an audit for shareholders to exercise control over company
● Those figures are not intended to be a source of guidance for new investors or takeovers
● House of Lords: no relationship of proximity, therefore no duty of care
● Hence, even though Dickman was “negligent” in its accounting, they were not liable to Caparo as they
owed them no duty of care

20. Duty of Care in Ireland

[Image: Personal Injury Claims for Children Ireland]
● Donoghue v Stevenson endorsed by the Irish courts in early caselaw
● Purtill v Athlone UDC [1968] IR 205 - injury of a young boy at an abattoir. The abattoir claimed that as he
was a trespasser, it did not owe him a duty of care
● The Court held that the relationship was proximate, given the frequency with which children visited the
abattoir. They were thus classified as being owed a duty by employees of the abattoir. Harm was
foreseeable, given easy accessibility of detonators
● McNamara v ESB [1975] IR 1 - injuries sustained by a child when he broke into an ESB substation. ESB
knew at the time that children were entering the substation
● The Court considered steps taken by the ESB to prevent entry into the substation, and decided that they
were unreasonable in the circumstances
● Again, the Court found the ESB liable on the basis of proximity and foreseeability
Lecture Notes
Purtill: The Court did accept however, that the plaintiff had contributed to his own injuries and a 15% liability
was apportioned to him.

21. Ireland and Anns

● Lord Wilberforce's two-step test in Anns was also endorsed by the Irish courts in Ward v McMaster [1985]
IR 29
● Plaintiff bought a house found to be substandard with aid of local authority grant. He had relied on the
valuation provided by the local authority
 ● That valuation was not provided by a competent person and the plaintiff had not been informed of this
● It was held in Ward that the duty of care arose from the proximity of the parties and the foreseeability of
the damage, balanced against the ‘absence of any compelling exemption based upon public policy’
● However, this seemed harsh on the local authority - as in the UK, the Irish courts retreated from this
approach
● Glencar Exploration plc and Andaman Resources plc v Mayo County Council [2002] 1 IR 84

22. Glencar
[Image: Mineral Provinces]
● The plaintiffs in the Glencar case had been granted licences by the Minister for Energy to explore for gold
in the Westport, Mayo area and had invested heavily in such mining
● In 1991, they set up a joint venture with an Australian company
● However, this joint venture collapsed following the introduction of a mining ban by Mayo County Council
pursuant to its 1992 draft county plan
● The plaintiffs successfully challenged the mining ban in a judicial review proceeding in the High Court
where it was held to be ultra vires
● They subsequently sought to recover damages from Mayo County Council for breach of duty in an action
before the High Court, which dismissed the claim
● Although Mayo County Council had been negligent in adopting the mining ban, this negligence did not
give rise to any right to damages
Lecture Notes
Traces of gold mining on Croagh Patrick, County Mayo. See: [Link]
croagh-patrick/

23. Glencar, Supreme Court

● Appealed to the Supreme Court, which again dismissed the action
● Held by the Supreme Court that the county council had owed no duty of care to the applicants and thus they
were not liable for any economic losses that had been sustained
● Keane CJ proposed that ‘that no injustice would be done if, in such circumstances, a court was required to
take the further step of considering whether, in all the circumstances, it was just and reasonable that the law
should impose a duty of care on the defendant for the benefit of the plaintiff’
● Thus in Glencar, a new test was created to establish whether or not a duty of care in negligence cases
existed

24. Glencar Test

● The steps of Keane CJ's test were as follows: ‘reasonable foreseeability, proximity of relationship,
countervailing public policy considerations and the justice and reasonableness of imposing a duty of care’
● Policy is considered to be an especially important concern in cases which involve public bodies
● Glencar has slowed down the development of new categories in which a duty of care could be established
● For many years, the Irish courts generally adhered to the broad conceptual language of proximity and
neighbourhood with little or no reference to policy considerations, even in cases where they must have been
obvious to the judges
● Policy considerations can now more easily, and certainly more overtly, trump the claim of the duty of care