Week 7: Negligence
• The term ‘negligent’ has meant both a basis of liability and as a cause of action itself. We are now
looking at negligence as a cause of action
• Torts so far have protected distinct interests, particularly battery, assault and false imprisonment.
However, the tort of negligence has not one archetypal scenario from which it arises
• The plaintiff bears onus of proof on all elements of the tort of negligence – failure to prove any
element of the tort leads to failure of the plaintiff’s claim
• The tort of negligence is informed by questions of reasonableness
• Elements of the tort of negligence:
1. Duty of care (scope of duty)
o Negligence is concerned with what a defendant has to do in respect of the plaintiff’s
o What is the scope of the defendant’s duty?
o For liability in negligence, the defendant must owe a duty of care to the plaintiff
o ASK: Is there an established duty of care category? Otherwise, there is a ‘novel fact’
scenario → determine reasonable foreseeability (neighbour principle), and incremental
approach and salient features approach ‘
o Consider psychiatric injury – first establish common law duty of care owed, then we
work through the sections of the CLA, beginning with s 32
2. Breach (standard of care)
o Defednant has failed to meet standard of care we would expect of a reasonable person in
the defendant’s position
o What did the defendant do, and what would you expect a reasonable person to have
done in that circumstance?
3. Causation (remoteness/scope of liability)
o There needs to be a causal connection between the breach of duty and the harm
sustained by the plaintiff, otherwise no recovery
o The question to ask: What is the extent of the defendant’s responsibility for the harm
suffered by the plaintiff?
o Negligence is a tort that is an action on the case so damage is the gist of the case
o If there is no recognised form of damage, then the claim will fail
a) The concept of duty of care and judicial methodologies for establishing a duty of care
Donoghue v Stevenson  AC 562
• Foundation of product law liability and modern law of negligenece
• The facts: Donoghue's friend bought her a ginger beer that had an opaque bottle. Finds snail at
bottom. Claims she suffered gastro-intestinal problems and psychiatric harm from shock.
• Question for House of Lords: Can she sue the manufacturer for the ginger beer? Can the
manufacturer owe a duty of care purely in tort to an end consumer?
To our minds, we would think that it is obvious that manufacturers have the liability…
but during this period, it was not clear whether a manufacturer owed a duty of care to
an end consumer
Lord Atkin: Donoghue's claim did not fit within any categories - need to articulate some
general principle that unifies these categories, for negligence - difficulty of fashioning
legal liability and interactions with notions of morality - cannot simply impose legal
liability based on moral liability - legal liability must reflect moral notions but must be
more restricted - liability can be imposed for both positive acts and omissions (which is
▪ In order to owe a duty to the plaintiff, they must be reasonably foreseeable as a
minimum as a class of persons that the defendant ought to have in
contemplation. In this case, consumers are reasonably foreseeable class of
plaintiff. However, is reasonable foreseeability sufficient to impose a duty of