Tutorial 2

NEGLIGENCE (FUNDAMENTAL PRINCIPLES)

1. How worthwhile is it to identify a common principle linking all the
different "duty situations" in negligence?
Outside the categories of established duty of care, e.g. doctor to patient, a
duty of care in negligence will be established on the basis of individual
circumstances.
The neighbour principle formulated by Lord Atkin in Donoghue v Stevenson
[1932] AC 562 (HL)
- You must take reasonable care to avoid acts or omissions which you can
reasonably forsee would be likely to injure your neighbour.
- Your neighbours are persons who are so closely and directly affected by
the act that I ought to have them reasonably in my contemplation.
Caparo v Dickman adds the requirement that there must be a relationship of
sufficient proximity, and that the imposition of a duty of care must be fair, just
and reasonable.
-

Reasonable foresight of harm

Sufficient Proximity of Relationship
Fair, Just and Reasonable to impose a duty?

2. How useful is the "but for" test of causation? What alternative

approaches have developed and why? (consider in particular the
problems created by the industrial disease cases).
Cork v Kirby MacLean Ltd, Lord Denning stated:
if the damage would not have happened but for that particular fault, then
that fault is the cause of the damage
bur for the defendants breach of duty, would the loss or damage have
occurred?
Proof of damage is essential, proving factual causation can sometimes be
difficult.
e.g. Rothwell v Chemical & Insulating Co Ltd: Re Pleural Plagues [2007] 3 WLR
876 (HL), the court considered a number of conjoined appeals in which the
claimants had been exposed to asbestos dust.
HoL held that symptomless plagues were not compensatable damage, the
risk of future damage, nor anxiety of that future arising amount to damages
for creating a cause of action. Not possible to establish a viable claim in
negligence.
But for test is straightforward, proving factual causation is more difficult
when:
- Multiple causes of damage e.g. Bonnington Castings Ltd. V Wardlaw:
Partial Cause, Liable if defendants breach of duty is the main
contribution
- A lost chance of recovery/ avoiding injury e.g. Gregg v Scott, Majority
chance generally needed, loss of chance does have value and can be used
to establish a breach.
- Multiple consecutive causes of damage e.g. Performance Cars v
Abraham (but for test applied to original defendant)

3. Ann owns a semi-detached house. Ben, a decorator, is working in the

adjoining house while the owner is away. Unfortunately, Ben forgets to lock
the door while he is out for lunch. Thieves enter the house and drill through
to Ann's house where they steal several valuable items.
P10, Stansible v Troman, liable
The thieves escape, although a passer-by who has seen them do so
telephones the police.
The patrol car at the local station is answering another call but Jim, a
constable who has only recently passed his driving test and is not a trained
police driver, gives chase in his own car. In so doing, Jim swerves across the
road and collides with a car driven by Ronald. P.52 Bonnington Castings Ltd v
Wardlaw, mainly contributed to the damage, liable
Foreseeable as only recently passed test
Advise Ann and Ronald.
4. Alan, a vet, is driving his car in response to an urgent call to free a trapped
dog when he begins to feel unwell. He continues driving but soon suffers a
heart attack which causes him to lose control of the car. The car mounts the
grass verge and collides with a temporary stall from which Bill is selling tea to
passers-by. Although he is not injured by the collision the sudden jolt causes
Bill to drop the kettle which he was holding resulting in burns to his hand. A
group of infants who were walking towards the stall anticipated the collision
and ran into the road to get out of the way. Charles, their teacher,
immediately rushes after them to protect them from the traffic. Charles and
the children escape injury but Dave, who is driving along the road, has to
swerve to avoid Charles and is injured when his car collides with a tree. Dave
had not been wearing a seat belt. Unfortunately the scalding of Bill's hand
exacerbates an underlying condition resulting in a need for several skingrafting operations.
Discuss.
Cases
Caparo Industries plc v Dickman
[1990] 2 AC 605
Donoghue v Stevenson [1932] AC
562
Fairchild v Glenhaven Funeral
Services Ltd [2002] 3 All ER 305
Gregg v Scott [2005] 2 AC 176
Knightley v Johns [1982] 1 All ER
851; [1982] 1 WLR 349

Mansfield v Weetabix [1998] 1 WLR

1263
Sienkiewicz v Greif [2011] UKSC 10,
[2011] 2 WLR 523
Smith v Littlewoods Organization Ltd
[1987] AC 241
Smith v. Leech Brain & Co, (1962) 2
QB 405
The Wagon Mound (No1) [1961] AC
388
Watt v. Herts. C.C. [1954] 1 WLR 835

Legislation
The Compensation Act 2006 s 3
Texts
Winfield & Jolowicz:Chp 5, esp sections 1, 2A-B, 3,4; Chp 6, esp sections 1-3.
Street: ch 2; ch 4; ch 5.