THE UNIVERSITY OF THE WEST INDIES

FACULTY OF LAW

LAW OF TORTS 1
WORKSHEET 3

NEGLIGENCE (Part 1)

Existence of duty: The duty is owed to one’s neighbours.

Note the categories of activity illustrated by the cases in which the duty has been found to
exist.

(i) Manufacturer to ultimate consumer

(ii) Road users to other road users.

See dicta by Asquith, L.J., in Candler v. Crane,

There is no closed list of “duty situations” and the courts are free to recognise new categories.
“The categories of negligence are never closed” (Lord Macmillan in Donoghue). In recognising
new situations, the courts are constantly expanding the tort of negligence. It is a matter of
public policy whether a new duty situation should be recognised. Note Anns v. London Borough
of Merton [1978] A.C. 728; White v. Jones [1995] 2 A.C. 207; Henderson v. Merrett Syndicates
Ltd. [1995] 2 A.C. 145; Home Office v. Dorset Yacht Co. [1970] AC 1004; Peabody v. Parkinson
[1985] A.C. 201; Yuen Jun Yeu v. A.G. of Hong Kong [1988] A.C. 175; Hill v. Chief Constable of
West Yorkshire [1989] A.C. 53; Austin v. Attorney-General of Barbados (1986), (Cases, p.55);
Ashton v. Turner [1980] 3 All ER 870; Caparo v. Dickman [1990] 2 WLR 358.

Categories of restricted duty

(1) Pure economic loss. The general rule is that ‘pure’ economic loss unaccompanied by
physical injury or damage to property is not actionable (note Spartan Steel and Alloys
Ltd. v. Martin [1973] A.C. 27), but there are exceptions. In Hedley Byrne and Co. v.
Heller [1964] A.C. 465, the House of Lords held that recovering in respect of pure
economic loss was possible even in respect of negligent misstatements.

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(2) Liability of Lawyers. Attorneys might owe a duty of care to clients in respct of
paperwork, but when acting in court they appear to enjoy some immunity from suit.
The immunity is based on public policy. Note Rondel v. Worsley [1969] 1 A.C. 191; Saif
Ali v. Sydney Mitchell & Co. [1980] A.C. 198; Maharaj v. Bank of Commerce.

(3) Company directors Jeremie, Vol.2 No.2 Carib L.R.

(4) Nervous Shock. There is a duty not to cause nervous shock to others, but because of the
peculiar subtlety of such injury (as opposed to physical injury) the courts are reluctant to
apply an ordinary foreseeability test (note McLoughlin v. O’Brien [1983] A.C. 410).

(5) Careless statement. Under Hedley Byrne & Co. v. Heller [1964] A.C. 465 D will be liable
to P where P relies upon D’s careless mis-statement and suffers financial loss, but only
where a ‘special relationship’ exists between D and P. Note Mutual Life Ass. Co. v. Evatt
[1971] A.C. 793; Anderson v. Rhodes [1967] 2 All E.R. 850; Howard Marine Ltd. v. Ogden
[1978] A.B. 574; Royal Bank v. Pampellone (1986) 35 W.I.R. 392; Imperial Life Ass. Co. v.
Bank of Commerce (1985); Esso Petroleum v. Mardon.

(6) Professional (mis)conduct. Rance v. Secretary of State [191] 1. 801; R. v. Islington Health
Authority, ibid, 825.

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NEGLIGENCE (Part 11)

BREACH OF DUTY

In deciding whether D committed a breach of his duty of care, the court considers whether
or not a reasonable man, placed in D’s position, would have acted as D did. This depends upon
the “risk factor”, which has four elements:

The likelihood of harm: “The degree of care which the duty involves must be proportionate to
the degree of risk involved if the duty of care should not be fulfilled.” (Lord Wright). Compare
Bolton v. Stone, [1951] A.C. 850 and Hilder v. Portland Cement Ltd., [1961] 1 W.L.R. 1434.
Note also Mowser v. De Nobriga (1969) 15 W.I.R.147 (Cases, p.66).

The seriousness of the injury risked: The gravity of the consequences if an accident were to
occur is an element of weight in assessing a breach of duty. Note also Paris v. Stepney Borough
Council, [1951] A.C. 367; Rhyna v. Transport and Harbourrs Dept. (1985). (Cases, p.60).

The Utility of D’s Activity: “One must balance the risk against the end to be achieved, and the
commercial end to make a profit is very different from the human end to save life or limb” –
note Watt v. Hertfordshire C.C., [1954] 2 All E.R. 368; Robley v. Placide (1966) 11 W.I.R. 58);
Byfield v. A-G. (1980)

The Cost of measures to avoid the harm: “[This] is a matter of balancing the risk against the
measures necessary to eliminate it” – Latimer v. A.E.C. Ltd., [1952] 2 Q.B. 701. Note also
Mowser v. De Nobriga (1969) 15 W.I.R. 147.

INTELLIGENCE, KNOWLEDGE AND SKILL OF THE REASONABLE MAN –

(a) Intelligence. In deciding whether D in his actions complied with the standard of the
reasonable man, the court will measure those actions against the conduct expected
of a person of normal intelligence.

(b) Knowledge. D is expected to have that degree of knowledge of everyday things

(c) Skill. A person who holds himself out as having a certain skill will be expected to
show the average amount of competence normally possessed by persons engaged in
that kind of activity. Note Nettleship v. Weston, [1971] 2 Q.B. 691; Phillips v.
Whitley, [1938] 1 All E.R. 566; Wilsher v. Essex Area Health Authority, [1987 Q.B.
83; Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 5821; Roe v.
Ministry of Health, [1954] 1 Q.B. 66; Hinds v. Craig (1982); Millen v. UWI Hospital

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 Board (1984); Sabga v. Llanos (1988); cf. Royal Bank v. Pampellone; Esso Petroleum
v. Mardon.

PROOF OF NEGLIGENCE – ‘RES IPSA LOQUITUR’

The burden of proof of negligence lies on P, but he may be assisted by the res ipsa loquitur
principle, whereby negligence is presumed, thus requiring D to show either that the damage
was due to a specific cause which did not involve negligence on his part, or that he had used
reasonable care. (Scott v. London and St. Katherine’s Dock, 159 E.R. 665).

In order to rely on the doctrine, P must establish two things:

(1) That the thing causing the damage was under the management or control of D or his
servants. Note Jamaica Omnibus Services v. Hamilton (1970) 16 W.I.R.

That the accident was of such a kind as would not, in the ordinary course of things, have happened
without negligence on D’s part. For examples in the W.I. Note Parejo v. Koo (1966-69) 18 Trim L.R. (Part
iv) 272; McAree v. Chille (1970), McAree v. Achille (1970); Smith v. C.O. Williams (Construction) Co.
(1981), 16 Barb L.R. 282; Browne v. Browne (1967); Ramdhan Singh Ltd. v. Panchoo (1975); Granger v.
Murphy (1975), cases, pp. 83-92; Barnett v. Belize Brewing Co. (1983, 36 W.I.R. 136.

CAUSATION AND REMOTENESS OF DAMAGE

Causation:

P must prove that D’s act of negligence caused him loss. The ‘but for’ test (that the loss would not have
occurred ‘but for’ D’s carelessness) is often employed. Note Barnett v. Chelsea and Kensington
Hospital, [1968] 1 All E.R. 1068; McWilliams v. Arroll, [1962] 1 W.L.R. 295; McGhee v. N.C.B., [1973] 1
W.L.R. 1. Note also Wilsher Essex Area Health Authority, [1987] Q.B. 730; Baker v. Willoughby, [1970
A.C. 467; Jobling v. Associated Diaries, [1982] A.C. 794.

Remoteness of Damage

The concept of remoteness enables the law to impose limits on the extent of D’s liability for the
consequences of his negligence. The basic rule is that D will be liable only for those consequences of his
carelessness which were foreseeable (The Wagon Mound (No.1), [1961] A.C. 388). Public policy may
also be a factor in a court’s dismissing damage as “too remote” (Note Pritchard v. Cobden, [1988] Fam.
22). See Jeremie, Carib. L.R. op.cit.

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The harm which was foreseeable must be of the same kind, type or class as that which actually occurred
(note Hughes v. Lord Advocate, [1963] A.C. 837; Tremain v. Pike, [1969] 1 W.L.R. 1556; Bradford v.
Robinson’s Rentals, [1967] 1 W.L.R. 337.

D must take his victim as he finds him (the ‘egg-shell skull’ rule). Note Smith v. Leech-Brain & Co.,
[1962] 2 Q.B. 405.

Novus actus interveniens

Where, subsequent to D’s breach of duty, an independent event occurs which causes damage to P, this
event may ‘break the chain of causation” and absolve D from liability. The ‘novus actus’ may be either
(a) a natural event, or (b) the act of a third party, or (c) the act of P himself. Note Carslogie v. Royal
Norwegian Gov’t., [1952] A.C. 292; Rouse v. Squires, [1973] Q.B. 889; Knightly v. Johns, [1982] 1 W.L.R.
349; Lamb v. Camden Borough Council, [1981] Q.B. 625; Stansbie v. Trotman, [1948] 2 K.B. 48; McKew
v. Holland, [1969] 3 All E.R. 1621; Emeh v. Kensington and Chelsea Health Authority, [1985] Q.B. 1012.

February 11, 2011

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NEGLIGENCE (Part 111)

DEFENCES

1. Contributory Negligence

C.N. is essentially a failure to take care for one’s own safety: Jones v. Livox Quarries Ltd., [1952]
2 Q.B. 608.

This is to say it is carelessness on the part of P., which combines with D’s negligence to bring
about P’s injuries. C.N. may sometimes be a contributing cause of the accident (e.g. where P
and D. Both drive negligently and P. is injured as a result), but it need not be so. It is sufficient if
P’s negligence contributed to his damage (e.g. where P., a motor-cyclist, is knocked down by a
vehicle carelessly driven by D., and P. sustains head injuries due to his failure to wear a crash
helmet: (O’Donnell v. Jackson, [1972] 1 Q.B. 270).

Typical examples of C.N. are:

(i) failure of motor-cyclist to wear a crash helmet;

(ii) failure of motor-cyclist to wear seat belt – Froom v. Butcher, [1976] Q.B. 286; Woods v.
Francis,[1985] C.I.L.R. 510 (Cases, p.278); taking a lift with a driver known to have
been drinking alcohol (Owens v. Brimmell, [1977] Q.B. 859) or in a car known to have
defective brakes (Gregory v. Kelly, The Times, March 15, 1978; disobedience of
employer’s orders by employee (Davies v. Swan Motor Co., [1949] 2 K.B. 291.

For examples in the West Indies, see Khan v. Bhairoo (1970) 17 W.I.R. 192; Charran v. Singh
(1981) 30 W.I.R. 148; Kunwarsingh v. Ramkelawan (1972) 20 W.I.R. 441; Mangaria v. Pasram
(1960) 3 W.I.R. 151; Young v. Stone (1964)7 W.I.R. 316; Dhoray v. Dabiesaran (1975);
Premsagar v. Raj Kumar (1978).

Standard of Care

The standard of care expected of the plaintiff in defence of himself is that of a reasonable,
prudent person, but in two cases a lower standard is accepted viz: (i) children (note Ghanie v.
Bookers Shipping (Demerara) Ltd. (1970) 15 W.I.R. 403; Perch v. Transport Board (1981) 16
Barb. L.R. 102; and (ii) workmen (note Bailey v. Gore Bros. (1963) 6 W.I.R.23).

The “Dilemma” Principle

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 P will not be held to have been contributorily negligent if his action was taken on the horns of a
“dilemma” produced by D. Note Jones v. Boyce, (1816) 171 E.R. 540.

Apportionment

Statutory provisions modelled on s.1(1) of the Law Reform (Contributory Negligence) Act U.K.
provide for appointment of damages by the Court. In appointing damages, the court is directed
to do what is “just and equitable having regard to the share of the claimant in the responsibility
for the damage”. See e.g. Law Reform (Miscellaneous Provisions) Act, Cap. 6:02 s.9 (Guyana).

2. Volenti non Fit Injuria

This is the defence of “consent” or “voluntary assumption of risk”. Volenti has declined in
importance in recent years, because it is a complete defence, and the courts prefer to apportion
loss under the C.N. doctrine. The defene rarely succeeds in “negligence” actions. (Note Rhyna
v. Transport and Harbours Dept. (1985); Hinkson v. C.O.X. Ltd. (1985). D must prove either:

(I) that there was an express contract whereby P agreed to exempt D from legal liability
(unlikely), or

(II) that there was an express or implied consent to run the risk of harm which absolves D of
responsibility.

Mere knowledge of a risk does not mean there is consent to run it (Note Dann v. Hamilton,
[1939] 1 K.B. 509; Smith v. Baker, [1891] A.C. 325; Gooding v. Jacobs (1973).
Volenti does not apply where P runs the risk in order to rescue a third party from a danger to
which D has carelessly exposed him (Haynes v. Harewood), [1935] 1 K.B. 146.