Tort 3 - Development of Negligence and the Key Concepts PDF

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Development of Negligence and the Key Concepts Focus Today:  Today – look at basic idea that underpins negligence and look at its emergence into a distinct tort  To do this, we’ll create a road map to see how negligence fits with other torts, and to explore how it has emerged as a skyscraper on the tort landscape.  Overview of the ‘ingredients’ of the tort of negligence Tort of Negligence  Negligence – a special place o Important in practice o Principles spill over into torts  Basic idea of Negligence: ‘the fault principle’ o The simple answer is when conduct falls below a certain level of standard the defendant will be required to pay the damage that causes o Totally general in its application o Negligence is concerned with conduct that falls below a certain standard. We can summarise that by saying that negligence is a conduct-based tort. Development of Negligence  Negligence relatively new tort – Donoghue v Stevenson [1932] AC 562  Negligence originally just a way of committing other torts  Until 19th century, torts isolated legal remedy slots (“Forms of action”) o Specific situations where duty to take care arose e.g. Innkeepers, things dangerous in themselves  Toward end of 19th Century, Courts searching for a general principle to unite those dots of liability o A general principle that would establish the circumstances in which someone owed a duty of care to other people. The Contractual Ideal  The idea that you are only liable if in fact you have promised to do something  Outside special relationships, the dominant judicial idea was that only if you had positively or specifically promised, taken on an obligation, outside of that then you had no obligation  This ‘contractual fallacy’ posed the particular problem in Donoghue v Stevenson Donoghue v Stevenson [1932] A general principle – Lord Atkin’s ‘neighbour principle’:  “The rule that you must love your neighbour becomes in law you must not injure your neighbour… 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/omissions which are called into question.”

Development of Negligence  18th Century we start with these dots of liability  Struggle until 1932 to try and find a general principle that brings those dots together: o Lord Atkin: “…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’ – Donoghue. o Expanding liability 1970s to keep principles within bounds. The Search for Principle  An age of principles? – P S Atiyah  Moving from ‘forms of action’ where writs not ‘based on a substantive legal category or any legal plan’ but merely created an ‘adequate royal remedy for a number of very common wrongs, which upset society and with which the existing courts dealt in too slow, cumbersome and incalculable a way’  Abolition of the forms of action (Common Law Procedure Act 1852) led to need to reclassify the law in substantive terms  Still tough for judges: ‘courts rather grappling with unpromising material drawn from the old cases in which liability in negligence derived largely from categories based upon the status of the defendant’  General theory of contract and tort appears; forms of liability based upon general principles The Elements of Modern Law of Negligence  Fault elements o ‘standard of care’  Duty element o ‘duty of care’  The causing damage element o ‘causation’ The Fault Element  Fault = liability  No fault = no liability o But that loss still has to be absorbed by someone: what about the claimant who has to bear the costs of his injuries?  Note Language – ‘standard of care’ (where the defendant has fallen below the requisite standard, we say that he or she is in ‘breach of [their] duty’)  What does fault in negligence mean? o Conduct which is careless – in the sense of not taking sufficient care in relation to the foreseeable risks that it creates of injuring others The Duty Element  Why do we say there must be a duty to take care in the first place? o Carelessness only gives rise to liability where there was a pre-existing duty in the first place  Situations where there is no duty of care  Duty of care as A ‘control mechanism’

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Role of policy But note – in vast majority of situations the existence of duty can be taken for granted (e.g. doctor to patient, road users to other road users and pedestrians).

The Causal Element  ‘Damage’ in a necessary ingredient of negligence  Negligence must have caused the damage o E.g. while defendant may be at fault, we must ask: ‘did that cause the damage complained of?’ (or would it have happened anyway in the absence of a breach of duty?)  There must be A causal link between defendant’s lack of care and claimant’s damage Putting it all together…  Negligence is the breach of a legal duty to take care resulting in damage, undesired by the defendant, to the claimant  All three ingredients required  Next lecture we look at one of those elements – namely the ‘fault element’ – standard of care...