Law of Tort

Negligence

INTRODUCTION
From a practical point of view, negligence is the most important and dynamic of all torts. Its
emergence as a separate tort in the part of the 19th century coincided with the industrial
revolution in Britain and the advent of machinery, railways and motor vehicles. To this day, it
has retained its function as the principal means of compensating the victims of accidents,
particularly those occurring on the roads and in the workplace. More recently, the tort of
negligence has been extended to include certain types of economic loss, including loss caused
by careless words. In the Caribbean, the vast majority of negligence actions are concerned with
road accidents, and in many of these the main issue is the assessment of damages. The courts
in the Commonwealth Caribbean have, in general, adopted a practical approach to negligence
claims and have eschewed the more theoretical discussions relating to the concept of the duty
of care which have so preoccupied the English courts.

DEFINITION

Not every act of carelessness or negligence is actionable under the tort of negligence, for, as
Lord Wright explained in Lochgelly Iron and coal co Ltd v McMullan:1
… in strict legal analysis, 'negligence' means more than heedless or careless
conduct, whether in omission or commission; it properly connotes the complex
concept of duty, breach and damage thereby suffered by the person to whom the
duty was owing.
Elements of negligence

The elements that must be established in every negligence are:

i. A duty of care owed by the defendant to the claimant

ii. Breach of that duty by the defendant; and
iii. Causation;
a) Damages to the claimant resulting from the breach
1[1934] AC 1, at 25
 b) Damages must not be too remote.

Duty of C are
The first question to be determined in any action for negligence is whether the defendant owed
a duty of care to the claimant. In general a duty of care will be owed wherever in the
circumstances it is foreseeable that, if the defendant does not exercise due care, the claimant
will be harmed. The foreseeability test was laid down by Lord Atkin in the celebrated case of
Donoghue v Stevenson,2 and is known as the ‘neighbourhood principle’:
“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 closely and directly affected by my acts that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or
omissions called in question.”

There are a number of common situations in which it is well established that a duty of care
exists, for example:
(a) the driver of a vehicle on the road owes a duty to other road users, pedestrians and
occupiers of premises abutting the highway to drive carefully;
(b) the occupier of premises owes a duty of care to lawful visitors to ensure that the
premises are reasonably safe;
(c) the employer of a workman in a factory owes a duty of care to provide adequate
equipment and a safe system of working;
(d) a bailee of goods owes a duty to the bailor to take care of the goods entrusted to him;
(e) a manufacturer of goods owes a duty to consumers to take reasonable care to ensure
that the goods are free from harmful defects, and this duty has been extended to
assemblers, suppliers and repairers of goods.
There is no closed list of duty situations, and those listed above are merely examples, albeit
those most encountered, of circumstances in which a duty of care will be held to arise. As Lord
Macmillan emphasised, 'the categories of negligence are never closed.3

2 [1934] AC 1, at 25
3Donoghue v Stevenson [1932] AC 562, at 619.
This principle provided a basis for expansion to cover situations not covered by the precedent.

− Donoghue v Stevenson was redefined in Caparo Industries Ltd v Dickman,4 with the
three elements to be satisfied to be discussed below, for negligent acts.

Caparo v Dickman (1990) (general duty of care) – neglect acts

The House of Lords held, there was no duty of care between an auditor of a company
and third-party bidder.
It introduced a threefold test:
1. Harm must be reasonably foreseeable that the defendant’s conduct will cause
harm or loss to the claimant.
2. There must be a relationship of proximity between P and D
3. The situation must be fair, just and reasonable to impose duty of care.
In Austin v Attorney General,5 H, a convicted prisoner, escaped from prison and entered the
claimant’s dwelling house, where he attacked and seriously injured her with a knife. H was one
of several prisoners being instructed in the carpenter’s shop, under the supervision of two
prison officers, one of them left for a short period, during his absence, H escaped.
It was held, that there was no sufficient relationship of proximity between the
Superintendent of Prisons and the claimant such as to give rise to a duty of care towards the
claimant. In the alternative, the damage suffered by the claimant was too remote.
In Everett v Comojo (UK) Ltd,6the main issue was whether the proprietors of a night club
bar in the hotel owed a duty of care to a visitor in respect of the conduct of another guest. The
claimant, a visitor to the club, allegedly touched K, a waitress, in an indecent manner. B,
another guest, and longstanding patron, intervened and demanded an apology from the
claimant on behalf of K. B later requested that his driver, C, be admitted as a guest, he was
described as having ‘an enormous physique’ and a ‘scary’ appearance. B then demanded an
apology from the claimant, when he refused, C punched him in the face, then stabbed him in
the abdomen. The claimant brought an action against the defendants as proprietor of the club,
alleging that the defendants were under a duty to protect him from violent of other persons
and that they were in breach of that duty.

4 [1990] 2 WLR, at 364,365.

5 (1986) 21 Barb LR 259
6 [2012] 1 WLR 150
 The case went all the way up to the Court of Appeal, where it was observed that, albeit
the three elements in the Caparo Case, were satisfied, there was a further question to be
decided. It was noted in part that:
Accordingly, I would conclude that there is a duty on the management of the
night club in respect of the actions of the third parties, but I stress that the
standard of care imposed, or the scope of duty imposed must also be fair, just
and reasonable.
Further, it was noted that, the court took into account the fact that the premises were
a respectable members’ club where ‘violence was virtually unheard of’; in such a case,
in such a case, the duty on management might be no higher than that the staff be
trained to look out for any trouble and to alert security staff. In the present case, K had
alerted the bar manager to the possibility of a confrontation between B and the
claimant, but C was not known to have been armed with a weapon and B was a valued
club patron with no record of causing trouble. In the circumstances there was no
reason to believe violence was imminent. Held, there had been no breach of the
defendant’s duty of care.

Breach of Duty
Having decided that a duty of care was owned to the claimant in the particular circumstance,
the court’s next task is to determine whether the defendant was in breach of that duty. In
Caribbean, the question is one which is most likely to occupy most of the court’s time. In
deciding the question, the court considers whether or not a reasonable man, placed in the
defendant’s position, would have acted as the defendant did.
In deciding what a reasonable man would have done in the circumstances, and in assessing the
standard of care expected of the defendant, the court may take into account what may be
called the 'risk factor'.
This has four elements:

(a) the likelihood of harm,

(b) the seriousness of the injury that is risked,
(c) the importance or utility of the defendant’s conduct,
(d) the cost and practicability of measures to avoid the harm.
The likelihood of harm
The greater the likelihood that the defendant's conduct will cause harm, the greater the
amount of caution required of him. In Lord Wright’s words: 7 ‘The degree of care which the duty
involves must be proportioned to the degree of risk involved if the duty of care should not be
fulfilled.'
This principle is in Bolton v Stone8 where the claimant was struck and injured by a cricket ball as
she was walking along a public road adjacent to a cricket ground. She contended that the
defendant, who was in charge of the ground, had been negligent in failing to take precautions
to ensure that the cricket ball did not escape from the ground and injure passers-by; but the
court held that, taking into account such factors as the distance of the pitch from the road, the
presence of a seven-foot-high fence, and infrequency which balls had escaped previously, the
likelihood of harm to passers-by was so slight that the defendant had not been negligent in
allowing cricket to be played without having taken further precautions such as raising the
height of the fence.
Bolton was followed in the Jamaican case of Hartley v Gray’s Inn Sugar Factory Ltd,9
where it was held that the likelihood of untrimmed cane leaves blowing into the face of a cane
cutter and causing blindness was so slight that the employer was not liable in negligence for his
failure to have the leaves trimmed. In Hilder v Associated Portland Cement Manufacturers Ltd,10
on the other hand, the claimant, whilst riding his motorcycle along a road, crashed and
sustained injuries after being struck by a football kicked from defendant's adjacent land where
children were in the habit of playing. The defendant was held negligent in having failed to take
precautions to prevent footballs from being kicked onto the road since, in the circumstances,
the likelihood of injury to passers-by was considerable.

The seriousness of the injury that is risked

The gravity of the consequences if an accident were to occur must also be taken into account.
The classic example is Paris v Stepney Borough Council.11 There, the defendants employed the
claimant as a mechanic in their maintenance department. Although they knew that he had only
one good eye, they did not provide him with goggles for his work. While he was attempting to
remove a part from underneath a vehicle, a piece of metal flew into his good eye and he was
blinded. It was held that the defendants had been negligent in not providing this particular
workman with goggles, since they must have been aware of the gravity of the consequences if
he were to suffer an injury to his one good eye; though it was pointed out that the likelihood of
injury would not have been sufficient to require the provision of goggles in the case of a two-
eyed workman.

7 Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1936] AC 108, at 126
8 [1951] AC 850
9 (1995) 32 JLR 440 (Supreme Court, Jamaica)
10 [1961] 1 WLR 14N.
11 [1951] AC 267.
The importance or utility of the defendant's activity
The seriousness of the risk created by the defendant's activity must be weighed against the
importance or utility of such activity, and, where the defendant's conduct has great social
value, he may be justified in exposing others to risks which would not otherwise be justifiable.
For instance, 'if all the trains in this country were restricted to a speed of five miles an hour,
there would be fewer accidents, but our national life would be intolerably slowed down. The
purpose to be served, if sufficiently important, justifies the assumption of abnormal risk. 12 Thus,
the driver of an ambulance or fire engine answering an emergency is entitled to proceed at a
speed and take some traffic risks which would be unjustifiable for an ordinary motorist (such as
speeding on the way to a fire) 13 and a policeman, in carrying out his duty to apprehend
criminals, may be justified in resorting to the use of firearms, thereby exposing innocent
bystanders to some risk.5414 In all cases, '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'.15
In Robley v Placide,16 the appellant was the leader of a party of police constables who
went to the compound of the General Hospital, Port of Spain, to investigate a report of
violence. There, they saw a number of men, armed with cutlasses, come out from one of the
buildings. They gave chase and the appellant, and another constable eventually caught up with
the men, who turned around and started to advance menacingly towards the appellant. When
they were at a distance of 20—25 ft from the appellant, he aimed his pistol at one of the men
and fired a shot. The shot missed the man, but struck the respondent, a pedestrian, in her leg.
The trial judge held the appellant liable to the respondent in negligence. The Court of Appeal of
Trinidad and Tobago, however, held that no legal duty to retreat could arise in circumstances
where a police officer acted in the execution of his statutory duty to arrest persons who were
prima facie committing, within his view, the offence of being armed with offensive weapons;
and the necessity of saving life and limb justified the appellant in taking the risk of possible
injury to the respondent. The appellant was, therefore, not liable in negligence.

The cost and practicability of measures to avoid the harm

Another relevant question is how costly and practicable it would have been for the defendant
to have taken precautions to eliminate or minimise the risk, for 'in every case of foreseeable
risk' it is a matter of balancing the risk against the measures necessary to eliminate it' 17 and 'a
reasonable man would only neglect… a risk [of a small magnitude] if he had some valid reason
for doing so, for example, that it involve considerable expense to eliminate the risk'. 18 Thus,
where a factory floor had become slippery after a flood and the occupiers did everything
possible to, make the floor safe, but nevertheless a workman slipped on it and sustained
injuries, the court held that the occupiers had not been negligent.

12 Daborn v Bath Tramways Motor co Ltd 11946] 2 All ER 333, at 336, per Asquith J.
13 WardvLondon CC [19381 2 All 341. But below, p 86.
14 Beim v Goyer [1965] CSR 638
15 Watt v Hertfordshire CC [1954] 2 All ER 368, at 371.
16 (1966) 11 WIR 58
17 Latimer v AEC Ltd [1952] 2 QB 701, at 711, per Lord Denning LJ.
18 The Wagon Mound (No 2) [1966] 2 All ER 709, at 718, per Lord Reid
The only other possible step they could have taken would have been to close the factory, and
the risk of harm created by the slippery floor was not, in the opinion of the court, so great as to
require such a costly and drastic step.19

INTELLIGENCE, KNOWLEDGE AND SKILL OF THE

REASONABLE MAN

Intelligence
In determining whether the defendant's actions satisfied the standard of a reasonable man, the
court will measure those actions against the conduct expected of a person of normal
intelligence, and the defendant will not be excused for having acted 'to the best of his own
judgment' if his 'best' is below that to be expected of a man of ordinary intelligence. 20 Thus, it is
no defence that the particular defendant had unusually slow reactions or a lower than average
IQ. On the other hand, a person of higher than average intelligence or possessing unusually
quick reactions will not be judged by his own high standards, and will not be liable for having
failed to use those exceptional qualities.21

Knowledge
In the first place, a person is expected to have that degree of common sense or knowledge of
everyday things which a normal adult would possess. 22 For instance, a reasonable person
knows that gasoline is highly inflammable; that solid objects sink in water; and that gas is
poisonous when inhaled. Furthermore, where the defendant holds a particular position, he will
be expected to show the degree of knowledge normally expected of a person in that position.
Thus, for example, in The Wagon
Mound (No 2),23 the Privy Council took the view that ship owners were liable for a fire caused
by discharging oil from their ship into Sydney Harbour, because their chief engineer ought to
have known that there was a real risk of the oil catching fire.
Secondly, with regard to the facts and circumstances surrounding him, the defendant is
expected to observe what a reasonable man would notice. 24 The occupier of premises, for
example, will be negligent if he fails to notice that the stairs are in a serious state of disrepair,
or that a septic tank in the garden has become dangerously exposed, so that lawful visitors to
his property are put at risk. Moreover, a reasonable occupier is expected to employ experts to
check those installations which he cannot, through his lack of technical knowledge, check
himself, such as electrical wiring or a lift.
Finally, a related point is this: where the defendant has actual knowledge of particular
circumstances, the standard of care required of him may be increased. An example is Paris v
Stepney Borough Council,25 where, as we have seen, a higher measure of care was owed by an
employer towards a workman who, to the knowledge of the employer, had only one good eye.
Similarly, a higher standard of care will be owed towards, for instance, young children, elderly

19 Latimer v AEC Ltd [1952] 2 QB 701, at 711, per Lord Denning LJ.
20 Vaughan v Menlove (1837) 132 ER 490.
21 Wooldridge v Sumner [19621 2 All ER 978.
22 Caminer v Northern and London Investment Trust [1951] AC 88
23 [1966] 2 All ER 709
24 Mercy Docks Trustee v Gibbs (1866) 11 ER 1500.
25 [1951] AC 367
persons and pregnant women, because of their special susceptibility to injury. In Lord Sumner's
words:26

A measure of care appropriate to the inability or disability of those who

are immature or feeble in mind or body is due from others, who know
or ought to anticipate the presence of such persons within the scope
and hazard of their own operations.

NB
Children – child is expected to show or meet the standard of a reasonable child of the same age

Gough v Thorne,

A 13 ½ year old was not contributorily negligent when she crossed the road without looking as
she was beckoned by a lorry driver and was hit by a car driving at excessive speed.

In Bolitho v City and Hackney, Healthy Authority

The court could in its discretion choose between two bodies expert opinion and to reject an
opinion that was legally indefensible.

Skill
A person who holds himself out as having a particular skill, either in relation to public generally
(for example, a car driver) or in relation to a person for whom he is performing a service (for
example, a doctor), will be expected to show the amount of competence normally possessed by
persons doing that kind of work, and he will be liable in negligence if he falls short of such
standard. Thus, for example, surgeon performing an operation is expected to display the
amount of care and skill usually expected of a normal, competent member of his profession; 27
whereas jeweller who pierces ears is only expected to show the skill of a normal jeweller doing
such work, and not that of a surgeon.28 Somewhat surprisingly, however, it been held that a
learner driver must comply with the same objective and impersonal standard as any other
driver.29 This decision may, perhaps, be explained on the ground that a car is a potentially lethal
weapon, and public policy requires that the strictest possible standards of care be maintained,
even by learners.

Medical Negligence
In the Jamaican case of Millen v University of West Indies Hospital Board of Management,30

26 Glasgow Corporation v Taylor [1922] 1 AC 44,64

27 Whiteford v Hunter [1950] WN 553; Rojannenisha v Guyana Sugar Producers Association Ltd (1973)
High Court, Guyana, No 1713 of 1971 (unreported) [Carilaw 1973 HC 201. See below, p 91,
28 Philips v Whiteley [19381 1 All ER 566.
29 Nettleship v Weston [19711 3 All ER 581.
a surgeon employed by the defendant carelessly failed to remove part of a suture which had
been previously inserted into 'the claimant in an operation called 'cervical encirclement',
thereby exposing the claimant to considerable danger in her subsequent pregnancy and labour.
Vanderpump J said:

Here, there was a situation involving the use of some special skill,
and the test is the standard of the ordinary skilled man exercising
and professing to have that special skill. If a surgeon fails to measure
up to that standard in any respect [clinical judgment or otherwise],
he has been negligent and should be so adjudged. If [the surgeon in
this case) had used proper care in what he was about, he would not
have left part of the suture in the [claimant]. I find him negligent.

On the other hand, in Hind v Craig,31 it was emphasised, following the principle established in
Bolam v Friern Hospital Management Committee,32 that a medical man is not guilty of
negligence if he has acted
'in accordance with a practice accepted as proper by responsible body of medical men skilled in
that particular art... merely because there was a body of opinion which would take a contrary
view'. Thus, the fact that preparations for surgery by the defendant surgeon at the University
Hospital in Jamaica differed from those which were made in the US, was not evidence of
negligence on the defendant's part, it being found that the defendant had followed a general
and approved practice for such surgery.
It was established in Roe v Minister of Health,33that the defendant is to be judged
according to the current state of medical knowledge and the prevailing standard at the time of
the act complained of, and not according to knowledge subsequently gained by the profession.
In that case, the claimant went into hospital 1947 for a minor operation. He was paralysed
because a spinal anaesthetic given to him became tainted with phenol whilst it was in a syringe
which was stored in a phenol solution. In 1947, it was not known by the medical profession that
phenol could seep into a syringe through invisible cracks in the syinge (though the risk was
known by 1934, the time of the action). It was held that the hospital authority was not
negligent, Denning LJ saying that the court should not look at a 1947 accident with a 1954
spectacles'.

Other Skills

Another example of the application of the principles relating to the standard of care in cases
where the defendant holds himself out as possessing a particular skill is Sabga v Llanos,34 in this
case the claimant, who operated a pizza business, wanted to have a water tank installed. The
defendant, a supplier of water tanks and fittings, sent his plumber to install a tank at the
30 (1984) Supreme Court, Jamaica, No CLM-066 of 1980 (unreported) [Carilaw JM 1984 SC 30], upheld by the
Court of Appeal (1986) 44 WLR 274
31 (1983) 19 JLR 81 (Supreme Court, Jamaica).
32 [1958] 1 WIR 582, 587
33 [1954] 2 AII ER 131
34 (1988) High Court, Trinidad and Tobago, No HCA 146 of 1979 (unreported).
claimant's premises. The claimant ordered plumber to place the tank on a wooden stand, which
he did. The plumber had warned the claimant that the wood would eventually rot. Eighteen
months later the stand collapsed, and the tank fell down. It was held that the defendant was
not liable in negligence. The warning given by the plumber was sufficient to discharge his duty
of care.

Omissions
The general rule is that there is no duty to act positively for the benefit of others, 35 and there is
no liability to for a mere omission to act.
It seems the ‘omission’ referred by Lord Atkin is an omission in the course of positive conduct,
e.g., where a driver fails to apply brakes, or where he omits to lookout when overtaking
another vehicle. The common law does not require a person to be a ‘good Samaritan’. 36
Another example of the principle is Campbell v Clarendon parish Council,'37 which shows that a
public authority will not be liable in negligence for a failure to act or to provide a service (that
is, for 'nonfeasance') where there is no positive duty to act or provide the service, even though
it is foreseeable that failure to act may cause damage. Here the claimant's place of business in
Frankfield, a small town in the Parish of Clarendon, Jamaica, was gutted by a fire of unknown
origin and its contents destroyed. The town’s brigade was unable to save the building because
the flow of water in the water mains and fire hydrants was insufficient. The town was supplied
with water from a public supply scheme under statutory provisions. The claimant brought an
action against the local parish council for, inter alia, negligence in respect of its failure to
provide a sufficient water supply for use by the fire brigade.
It was held that the defendant was not liable for its failure to supply water in sufficient quantity
at the material time. An omission to act, otherwise than in the performance of a duty to take
care, does not amount to a breach of duty, even though it can be reasonably foreseen that such
omission is likely to cause damage.

PROOF OF NEGLIGENCE - RES IPSA LOQUITUR

The burden of proving negligence always lies on the claimant; but where the cause of an
accident is unknown,38 he may be assisted by the doctrine res ipsa loquitur ('the facts speak for
themselves’). This doctrine has been very frequently applied by courts in the Caribbean, and a
large body of case law has accumulated on the topic. It should be noted, however, that it has
been rightly pointed out that cases of res ipsa really no more than illustrations of the manner in
which a court may draw an inference of negligence from circumstantial evidence. 39
The best-known definition of res ipsa loquitur is that propounded by Erle CJ in Scott v London
and St Katherine Docks Co.40

35 Winfield and Jolowicz, Tort, 15th edn, 1998, London: Sweet & Maxwell, p177.
36 See Luke 10: 29-37.
37 (1982) 19 JLR 13 (Supreme Court, Jamaica). For this same reason, no action in tort lies against a highway
authority for failure to carry out duties of maintaining and repairing the highway, as the authority is liable for
misfeasance and not for nonfeasance: Graham v St Ann Parish Council (1995) 32 JLR 24 (Supreme Court, Jamaica).
38 Where the facts are sufficiently known, res ipsa loquitur has no application. See Barkway v South
Wales Transport Co Ltd 119501 1 All ER 392 at 394
39 This passage in the text was cited with approval by Blenman J in Gumbs v Browne (2004) High
Court, St Vincent and the Grenadines, No 182 of 2003 (unreported) (Carilaw VC 2004 HC 241
40 (1865) 159 ER 665, at 667.
 Where the thing is shown to be under the management of the
defendant or his servants, and the accident is such as in the ordinary
course of things does not happen if those who have the management
use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from want of
care.

Where res ipsa loquitur is successfully invoked, the effect is:

(a) to afford prima facie evidence of negligence, so that the defendant cannot succeed in a
submission of 'no case to answer'; and
(b) to shift the onus on to the defendant to show either that the accident was due to a
specific cause which did not involve negligence on his part, or that he had used
reasonable care in the matter.

Requirements of the doctrine

In order to rely on the doctrine, the claimant must establish:
a) that the thing causing the damage was under the management or control of the
defendant or his servants; and
b) that the accident was of such a kind as would not, in the ordinary course of things, have
happened without negligence on the defendant's part.

Control

It is a question of fact in each case as to whether or not the thing causing the accident was
under the defendant's control. In the most common type of case, that of negligent driving, the
driver of a motor vehicle will be presumed to sufficient control over his vehicle and the
surrounding circumstances to attract the doctrine.
Where the activity causing the damage is under the control of one of several servants of
the defendant and the claimant is unable to identify which particular servant had control, he
may still invoke the doctrine so as to make the defendant vicariously liable. Thus, for example, a
hospital authority has been held liable to a patient in respect of negligent treatment, even
though the patient could not show which member of the hospital staff was responsible.

Presumed negligence
Negligence will be presumed under the doctrine where the common experience of mankind
shows that the type of mishap which occurred would not normally have happened unless the
defendant had been careless. Thus, res ipsa loquitur has applied in the Caribbean where, for
example, a car being driven along the road suddenly mounted the pavement and (i) injured a
bystander, or (ii) collided with an electricity pole; 41 where a boat's tow rope broke suddenly,
causing the vessel to collide with pipelines; 42 where a large tree was felled onto a neighbouring
house,43 where a dead tadpole was found in a bottle of stout purchased by a customer in a

41 Parejo v Koo (1966-69) 19 Trin LR (Pt IV) 272.

42 Alco Shipping Agencies Co Ltd v Freeport Bunkering Co Ltd, (1965-70) 1LBR 260 (Court of Appeal, The Bahamas)
43 Seeraj v Dindial (1985) High Court, Trinidad and Tobago, No 4696 of 1982 (unreported) [Carilaw TT 1985 HC
108.]
restaurant;44 where a parked bus suddenly caught fire, resulting in the destruction of a nearby
building;45 where scaffolding, on which a workman was standing, collapsed; 46 where a crane
collapsed suddenly;47 where a heavy knife fell from a hotel window, striking a guest in the
garden below;48 and where a fire which started in an electric power line connected to a dwelling
house destroyed the house and its content.49
Res ipsa loquitur is thus a useful evidential aid to a claimant who is unable to establish
precisely how an accident occurred.

Traffic Accidents

A driver of a vehicle on the road is under a duty to take proper care not to cause damage to
other road users50 (including drivers and passengers in other vehicles, cyclists and pedestrians)
or to the property of others. In order to fulfil this duty, he should, for example, keep a proper
lookout;51 observe traffic rules and signals;52 avoid excessive speed;53 and avoid driving under
the influence of alcohol or drugs. It is a question of fact in each case as to whether the
defendant has observed the standard of care required of him in the particular circumstances.
Failure to observe any of the provisions of the Highway Code may be prima facie evidence of
negligence.54
In deciding whether there has been a breach of duty, the courts in the commonwealth
Caribbean have frequently had recourse to certain presumptions of negligence, Negligence is
commonly presumed where, for example, a moving vehicle collides with a stationary one which
is properly parked,55 or correctly positioned in a line of traffic; or where an unlighted vehicle is
parked on the road at night, with the result that another vehicle collides with it; 56 or where the
defendant's vehicle collides with the claimant's vehicle which is travelling in the opposite
direction, the point of collision being on the claimant's side of the road. 57
One particular facet of road accident cases is that 'no one case is exactly like another'. For
instance, the state of the road, the weather conditions and the speed of the vehicles involved
will vary considerably from one case to another. It has thus been emphasised that the courts
should be careful to avoid 'exalting to the status of propositions of law what really are
particular applications to special facts of

44 Barnett v Belize Brewing Co Ltd (1983) 36 WLR 136

45 Barbados Transport Board v Imperial Optical Co Ltd (Barbados) Ltd (1990) 25 Barb LR 346 (Court of Appeal,
Barbados)
46 Nisbet v Wheatly (1993) High Court, British Virgin Islands, No 113 of 1987 (unreported) [Carilaw VG 1993 HC 8].
47 Swan v Salisbury Construction Co Ltd [1965] WLR 208 (Privy Council Appeal from Bermuda)
48 Kohanian v Carnival Crystal Palace Resort and Casino (1999) Supreme Court the Bahamas.
49 Yearwood v Trinidad and Tobago Electricity Commission (1992) High Court, Trinidad and Tobago, No 346 of
1986 (unreported).
50 Bourhill v Young AC 92.
51 Almon v Jones (1974) 12 JLR 1474
52 James v Seivwright (1971) 12 JLR 617
53 Waaldyk v Trim (1977) Court of Appeal Guyana
54
55 Sibbles v Jamaican Omnibus Services Ltd (1965) 9 WIR 56
56 Wong v Campbell (1969) 11 JLR 435
57 James v Seivwright (1971) 12 JLR 617
propositions of ordinary good sense'.

Skids, tyre bursts and latent defects

Where res ipsa loquitur applies, a common plea of defendants is that the collision causing the
damage was due to a skid, a tyre burst or a latent defect in the defendant’s vehicle. It is well
established that such a plea will not in itself absolve the defendant. Rather, he must go further
and show that the skid occurred without fault his part or that the tyre burst or mechanical
failure of his vehicle was not due faulty inspection or maintenance for which he is responsible.
The following are examples of the
application of the doctrine in this context.

Skids
In Parejo v Koo,58 a 14-year-old boy, was fatally injured when he was struck by a car which
skidded on a wet road and mounted the pavement where he was playing with some other boys.
One of the issues in the case was whether, in accordance with 'the maxim res ipsa loquitur, a
presumption of negligence was raised against the driver of the car. Rees J said:

Prima facie, the fact of the car leaving the road and mounting the pavement
on its offside raises a presumption of negligence against the driver of the
car. The evidence clearly discloses that the accident was due to a skid and a
skid by itself is neutral, but the fact that the car skidded on a wet road does
not displace the burden which rests upon the driver of rebutting the prima
facie presumption of negligence which is raised by the extraordinary
manoeuvre of the car and the position in which it struck the deceased. This
is the proposition illustrated in Laurie v Raglan Building Co Ltd,59 the facts of
which bear a close resemblance to the facts of the present case. There, a
lorry was travelling on a road which was in an extremely dangerous
condition from a fall of snow which had frozen. It skidded and killed the
[claimant's] husband, who was on the pavement. At the hearing, counsel for
the defendant submitted that there was no case to answer, on the ground
that it had not been proved that the accident was due to the negligence of
the defendant's driver. Lord Greene MR in his judgment held that there was,
and had this to say:60
the [claimant] gave evidence which showed ... that the position of
the lorry over the pavement was due to a skid, and it is contended on
behalf of the defendants that, assuming that a prima facie case of
negligence arose, the circumstances establishing that the accident
was due to a skid are sufficient to displace that prima facie case. In
my opinion, that is not a sound proposition. The skid by itself is
neutral. It may or may not be due to negligence. If, in a case where a
prima facie case of negligence arises, such as that with which I have
been dealing, it is shown that the accident is due to a skid, and that

58 (1966-69) 19 Trin LR (Pt IV) 272

59 [1941] 2 All ER 332
60 Ibid, at 336
 the skid happened without fault on the part of the driver, then the
prima facie case is clearly displaced, but merely establishing the skid
does not appear to me to be sufficient for that purpose ...

In the present case, there is evidence that, as the car turned into King Street, there was a
screeching of tyres. I am unable to say why this should be so, but it is clear from the authorities
that, if a driver brings a car on to the public road and is involved in an accident which in the
ordinary course of things does not happen if proper care is used, then the driver is prima facie
negligent and he must give some satisfactory explanation that he was not negligent. Benjamin
gave an explanation, but, as it is not acceptable, the prima facie case of negligence has not
been displaced.156 (The car might have skidded through the negligence of the driver or without
his negligence, but it is for the driver to show that the skid occurred without any negligence on
his part.) In the circumstances, I can come to no other conclusion than that this accident was
caused solely by the driver's negligence.

Latent defect
In Brown v Brown, the respondent was driving his taxi with the appellant as a passenger. On
reaching a steep hill, the respondent lost control. The vehicle mounted a bank, and the
appellant was injured. The respondent's defence was that the brakes failed owing to a latent
defect.
St Bernard J held that the respondent had failed to displace the presumption of
negligence raised against him. He said:
In our view, the mere statement 'I had no brakes' is a neutral event
equally consistent with negligence or due diligence on the part of the
defendant. To displace the presumption of negligence, the defendant
must go further and prove, or it must emerge from the evidence, the
specific cause of the failure of the brakes. If the statement 'I applied
brakes, no brakes' were a defence, then all a motorist would have to do
to escape damages for his negligence would be to say 'I had no brakes'.
He must go further and prove that he
exercised due diligence in the driving of his car and equal diligence in
the maintenance and use of his vehicle, and that negligence was not a
probable cause of the accident. The mere statement 'I applied my
brakes, no brakes' is not sufficient to displace the presumption of
negligence on the part of the respondent in this case. The statement 'I
had no brakes' is equal to saying 'My tyre burst' or 'I had a skid'. These
statements are not defences in actions for negligence and do not, in our
view, rebut the presumption of negligence.

Another example of failure to displace the presumption of negligence in the context of latent
defects is Ramdhan Singh Ltd v Panchoo.61 Here the claimant's car was being driven on the
proper side of the road when it was struck by the defendant's van, which was travelling in the
opposite direction. The defendant's defence was that the collision was caused by the sudden
breaking of the main leaf of the right front spring assembly, which caused his vehicle to swerve

61 (1967) High Court, Trinidad and Tobago, No 746 of 1976 (unreported) [Carilaw TT 1975 HC 33]
across the road. The defendant sought to attribute this to a latent defect in the vehicle for
which he was not responsible.
Hassanali J held that the defendant had failed to rebut the presumption of negligence
raised against him. He said:

In this case, the appellant's vehicle ran into the respondent's car
when it was at a stand -still properly positioned in the line of traffic.
This is prima facie evidence of negligence and the burden would,
therefore, lie on the appellant to establish that the collision was due
to any negligence on his part.
The learned trial judge, after a careful analysis of the evidence,
concluded that the appellants had not discharged the onus of
establishing that the failure of the brakes was not due to any
negligence on his part. The broken cylinder or brake line was not
produced.
No evidence was led to show what may have caused the break
whether a latent defect or some other cause which reasonable care
could not have discovered and prevented. No competent mechanic
inspected the vehicle after the accident, so that there was no
technically reliable evidence as to its condition. The evidence was
conflicting and unsatisfactory as to what part of the mechanism had
ruptured whether the master cylinder or the brake line. The service
personnel who attended to the pick-up were not called, so that
there was no evidence as to the nature of the maintenance
inspection which the vehicle regularly underwent. The only evidence
on that point was that of the appellant who said that the vehicle
was regularly serviced. Assuming that the evidence of the appellant
is accepted that the collision was caused by the failure of his brakes,
the conclusion of the learned judge that he had failed to show that
this was not due to negligence on his part appears eminently
correct.

CAUSATION
Having established that the defendant owed a duty of care to him and that the defendant was
in breach of that duty, the claimant must then prove that he has suffered damage for which the
defendant was liable in law. There are two aspects to this requirement:
(a) causation in fact; and
(b) remoteness of damage in law.

Causation in fact
The first question to be answered is: did the defendant's breach of duty in fact cause the
damage? It is only where this question can be answered in the affirmative that the defendant
may be liable to the claimant. A useful test which is often employed is the 'but for' test; that is
to say, if the damage would not have happened but for the defendant's negligent act, then that
act will have caused the damage.
The operation of the 'but for' test is well illustrated by Barnett v Chelsea and Kensington
Hospital Management Committee.62 In this case, the claimant's husband, after drinking some
tea, experienced persistent vomiting for three hours. Together with two other men who had
also drunk the tea and were similarly affected, he went later that night to the casualty
department of the defendant's hospital, where a nurse contacted the casualty officer, Dr B, by
telephone, telling him of the man's symptoms. Dr B, who was himself tired and unwell, sent a
message to the men through the nurse to the effect that they should go home to bed and
consult their own doctors the following morning. Some hours later, the claimant's husband died
of arsenic poisoning, and the coroner's verdict was one of murder by a person or persons
unknown. In a subsequent action for negligence brought by the claimant against the defendant
hospital authority as employer of Dr B, it was held that, in failing to examine the deceased, Dr B
was guilty of a breach of his duty of care, but this breach could not be said to have been a cause
of the death because, even if the deceased had been examined and treated with proper care,
he would in all probability have died anyway. It could not, therefore, be said that 'but for the
doctor's negligence, the deceased would have lived'.
A more severe application of the 'but for' test occurred in McWilliams v Sir 'MilliamArroI & Co
Ltd.63 There, a steel erector was killed when he fell from a building on which he was working.
Had he been wearing a safety harness; he would not have fallen. The defendants, his
employers, were under a statutory duty to provide safety harnesses for all their employees
working on high buildings, and they were in breach of that duty by failing to provide them.
Nevertheless, they were held not liable since they proved that, on previous occasions when
safety harnesses had been provided, the claimant had never bothered to wear one. The
inference, therefore, was that even if a harness had been provided on the day of the accident,
the claimant would not have worn it. Thus, it could not be said that the failure to provide a
harness was a cause of death.

Multiple breaches of duty

It has been pointed out that although the 'but for' test is sufficient for cases in which there is a
single breach of duty and a single defendant, it is not adequate to deal with cases where there
are two or more breaches of duty, that is, where there are multiple causes of damage and two
or more tortfeasors. For example, DI and D2 both negligently start fires, and the two
independent fires converge simultaneously on C's house and destroy it. Assuming that either
fire alone would have been sufficient to destroy the house, the result of applying the 'but for'
test would be that neither DI nor D2 would be liable for the damage, since it could be said that
the damage would not have occurred 'but for' DI's fire or, equally, 'but for' D2's fire. The courts,
therefore, do not apply the test in such cases, but simply hold both tortfeasors fully liable for
the whole loss, subject to the right of each obtaining a contribution from the other. Liability in
such cases is said to be 'joint and several'.

Remoteness of damage

62 [1968] 1 All ER 1068

63 [1962] 1 WLR 295
The consequences of an act of carelessness on the part of a defendant may be far reaching. The
concept of remoteness of damage is one way in which the law sets limits to the extent of a
person's liability for the consequences of his negligence, and the basic rule is that a defendant
will be liable only for those consequences of his negligent act which are not too remote in law,
even though such act may be said, on an application of the 'but for' test, to have caused the
damage complained of.
According to the Privy Council in the leading case of Overseas Tankship (UK)Ltd v Morst
Dock and Engineering Co Ltd (The Wagon Mound (No1)),64 where it was held that since, on the
evidence, the defendants neither knew nor ought to have known that the oil was capable of
catching fire when spread on water, they could not reasonably have foreseen that their act of
discharging the oil would have resulted in the claimants' wharf being damaged. The damage
was thus too remote, and they were not liable for it. However, they were liable for the fouling
of the slipways, since that was a foreseeable consequence of the discharge of the oil.

Other rules regarding remoteness

Apart from the basic rule in The Wagon Mound (No 1), there are certain other well-established
principles, which are discussed below.

Foreseeable type of harm

The harm which was foreseeable must be of the same kind, type and class as that which
actually occurred.65 Thus, for example, if the damage which occurs is damage by fire, the
defendant will be liable only if damage by fire was foreseeable; foresight of any other kind of
damage would not suffice. Similarly, if D carelessly allows an 11 year old boy to handle his gun,
and the boy drops the gun onto C’s foot and injuries it, D will not be liable to C for the injury,
because the type of harm which occurs is of the same kind as which was foreseeable, it matters
not that the precise sequence of events leading to the damage was not foreseeable. In Hughes
v Lord Advocate,66 the defendants left a manhole in the street uncovered and protected only by
a tent and paraffin lamps. A child climbed down into the hole and, as he was coming out, kicked
over one of the lamps, which fell into the hole, causing an explosion by which he was burned.
The lower court held that the defendants were not liable on the ground that, although injury by
burning was foreseeable, as the child might easily have come into contact with one of the
lamps, burning by means of this sequence of events was not. The House of Lords reversed the
lower court, holding that once the type or kind of damage was foreseeable, it was irrelevant
that the precise sequence of events was not.

The 'egg-shell skull" principle

This principle was concisely explained by Kennedy J, thus:67

If man is negligently run over or otherwise

negligently injured in his body, it is no answer to
the sufferer’s claim for damages that he would
have suffered less injury, or no injury at all, if he

64 [1961] AC 388.
65 The wagon Mound (No 2) [19661 2 All ER 709.
66 [1963]AC 837.
67 Dulie v White and Sons [1901] 2 KB 669, 679.
 had not had an unusually thin skull or an
unusually weak heart.

In other words, a tortfeasor ‘takes his victim as he finds him', and the latter can claim damages
for the entire injury to his person even though, because of some special physical weakness or
sensitivity unknown to the tortfeasor, the harm suffered was greater than would have been
suffered by a normal person. Thus, for example, one who carelessly inflicts a minor cut on a
hemophiliac, with the result that the latter bleeds to death, will be fully liable for the
consequences, even though a normal person would have suffered a little injury. 68 Where the
defendant negligently inflicted a burn on the claimant's lip which, owing to a pre-malignant
condition of the tissues of the lip, caused cancer to develop, from which the claimant died,
defendant was held fully liable for the death.
This principle can be reconciled with the rule in The Wagon Mound (No l) by saying that, once
the type of damage (for example, the cut or burn) was foreseeable, 'any consequence which
results because the particular individual has some peculiarity is a consequence for which the
defendant is liable'.69
The ‘egg-shell skull’ principle was applied in the Barbadian case of Brewster v Davis.70 Here, the
defendant negligently drove into the back of the claimant’s car while the latter was waiting in a
line of stationary traffic. Claimant suffered no apparent physical injuries, but she became
anxious and nervous. At the time of the accident, the claimant was suffering from an auto-
immune disease known as
lupus nephritis, and the stress and the anxiety caused by the accident exacerbated her
condition, which ultimately resulted in renal failure. The court held the defendant liable for the
consequences of renal failure.

In Crandall v Jamaica Folly Resorts Ltd,71 C, a guest at the defendant’s hotel, fell from an
unstable chair in the hotel bar and sustained injuries, which necessitated two operations. C was
obese and, after the second operation suffered a heart attack. Ellis J held that the defendant
was in breach of its duty of
care under the Occupiers’ liability Acts and was fully liable for the consequences including the
heart attack, which was not too remote an injury. The learned judge expressly referred to Smith
v Leech Brain and Co Ltd72as laying down the principle that the defendant must ‘take his victim
as he finds him'.

Quantum of damages

Another aspect of the principle that a tortfeasor must take his victim as he finds him is the rule
that if the defendant injures a high-income earner or a particularly valuable chattel, he cannot
argue that he could not have foreseen that the loss would be so great, and he will be liable for
the full loss of the victim or the full value of the chattel, as the case may be.73 Foreseeability is in

68 Bidwell v Briant (1956) The Times, 9 May

69 Warren v Scruttons Ltd [1962] 1 Lloyd’s Rep 497, at 502, per Paull J.
70 (1992) High Court, Barbados, No 944 of 1987
71 Smithfield Digest, 1998 (www.smithfield.com.jm/SDC25098c.htm).
72 [1962] 2 QB 405
73 The Arpad [1934] P189, at 202
any case, irrelevant here, since the issue is one of assessment of damages rather than
remoteness.

Claimant's Impecuniosity

In contrast with the 'egg-shell skull' principle, it has been held that a defendant is not liable to
compensate the claimant for any extra damage he suffers because of his (the claimant's) own
impecuniosity:
The [claimant's] financial disability [is not] to be compared with
the physical delicacy or weakness which may aggravate the
damage in the case of personal injuries, or with the possibility
that the injured man in such a case may be either a poor
labourer or highly paid professional man.74
Thus, where the defendant's ship, through careless navigation, damaged the claimants' vessel,
the claimants were entitled to recover the full value of their ship, but they could not recover
the additional expenses they had incurred in hiring a ship in order to fulfil an existing contract,
because the need to hire the ship only arose on account of the fact that they were too poor to
buy an immediate replacement for their lost vessel.75

Novus actus interveniens

Where, subsequently to the defendant's breach of duty, an independent event occurs which
causes damage to the claimant, the question arises as to whether the defendant is to be held
liable for the damage, or whether the intervening event is to be treated as a novus actus
interveniens which 'snaps the chain of causation' and thus relieves the defendant from liability.
There are no firm principles as to when the court will and when it will not regard an occurrence
as a novus actus interveniens, and the answer depends largely on the policy to be pursued in
allocating responsibility for negligent conduct.
Of the various tests which have been suggested for deciding this difficult question,
perhaps the clearest and most useful is whether a reasonable man would have said that the
damage caused by the intervening event was within the likely or foreseeable risk created by the
defendant's negligence.76 Thus, for instance, where a decorator, working alone in a house, had
been told by the owner to lock the front door whenever he had to go out, and he carelessly left
the door unlocked while he went away for two hours, with the result that a thief entered and
stole some jewellery and clothes, it was held that the act of the thief was within the
foreseeable risk created by the decorator's breach of duty and he could not plead novus actus
interveniens. He was, therefore, liable for the loss.77
Similarly, where the defendant's servant negligently left a horse-drawn van unattended
in a street where children were playing, and a mischievous boy threw a stone at the horses,
causing them to bolt and run the claimant down, the act of the boy was not a novus actus, since
it was a foreseeable consequence of leaving the horses unattended where children were. 78 On
the other hand, a contractor who carelessly leaves an open pit in a road is not liable to a
74 Liebosch Dredger v SS Edison [1933] AC 449, at 461.
75 Ibid 74
76 See Clerk and Lindsell, Torts, 15th edn, London: Sweet & Maxwell, paras 11—53.
77 Stanbie v Troman [1948] 2 KB 48.
78 Alexander v Town of New Castle (Ind 1888) 17 NE 200
policeman who is deliberately thrown into it by an escaping prisoner; 79 nor is a railway
company, negligently allows a train to become overcrowded, liable to a person who has his
wallet stolen by a pickpocket, since such events are not within the foreseeable risk of the
defendant's carelessness.80
Concerning medical negligence, in Iron Steel Holdings and Realisation Agency v Compensation
Appeal Tribunal,81 it was pointed out that there was no warrant for applying the doctrine of
novus actus unless there had been 'grave lack of skill and care on the part of the doctor', and
'only medical treatment so grossly negligent as to be a completely inappropriate response to
the injury inflicted by the defendant should operate to break the chain of causation'. Further, it
has been established in the case law 82 that the exacerbation of an injury by subsequent medical
treatment may 'easily be regarded as a foreseeable consequence for which the first tortfeasor
is liable', and provided the claimant acted reasonably in accepting the treatment offered, any
negligence on the part of the doctor will not be considered to be a novus actus, since 'the
original injury can be regarded as carrying some risk that medical treatment might be
negligently given'.

LIABILITY FOR ECONOMIC LOSS

As a general rule, no damages can be claimed for economic loss in the law torts.83 Pure
economic loss is financial loss which is not consequent upon any physical damage to the person
or property of the claimant. Economic loss which is consequent upon physical damage to the
claimant or his property is compensable. A simple example may clarify the distinction: if D
negligently runs down C, a fashion model, with his car, C can recover damages for loss of
earnings, including such items as a lucrative modelling contract which she is prevented, by her
injuries, from obtaining. But C's agent, Q, who expected to earn a large commission from the
modelling contract, cannot recover damages for his loss of earnings caused by the injuries to C,
because his loss is not consequent upon any physical damage to him; it is consequent only upon
damage to C. The leading case on this point is Spartan Steel and Alloys Ltd v Martin and Co
Ltd,84 where it was held that a person who negligently damaged a cable belonging to the power
authority, thereby cutting off the electricity supply to the claimants' nearby factory, was not
liable to the claimants for loss of profits arising from the stoppage of steel production during
the power cut, because there was no duty to avoid causing purely economic loss. It is
significant, however, that in this case the claimants did recover for financial loss arising from
damage molten metal which was in their furnace at the time of the power cut, because loss was
consequent upon physical damage to the metal.

Negligent misstatement causing economic loss

The most important and well-established exception to the rule that damages pure economic
loss are not recoverable in the law of torts is the principle arising from the case of Hedley Byrne

79 Haynes v Harwood [1934] All ER Rep 103

80 Cobb v Great Wetsern Rly [1894] AC419
81 [1966] 1WLR 480, at 492
82 Webb v Barclays Bank plc [2002] PIQR P8, at para 55
83 Laufer v International Marbella Club SA (1988) 25 JLR 412 (Court of Appeal, Jamaica),

84 [1973] 1 QB 27
and Co Ltd v Heller and Partners Ltd,85 which established that damages can be recovered in tort
for economic loss caused by careless misstatements.
A negligent misstatement may have either of the following effects:86
(a) it may cause physical damage to the person who relies on it; or
(b) it may cause purely financial (or economic) loss to such person.
There has never been any difficulty in holding a defendant liable for physical harm caused by his
careless misstatement. For example, an architect who carelessly gave wrong instructions to a
bricklayer, which resulted in the collapse of a wall and consequent injury to the bricklayer, was
held liable in negligence;87 and a doctor who carelessly certified a man as being of unsound
mind was held liable for the subsequent detention of the man in a mental hospital. 88 Until 1963,
however, it was a rule that, except where there was a fiduciary relationship between defendant
and claimant (for example, as between solicitor and client), there was no duty of care to avoid
causing purely economic loss through negligent misstatements.
It was the leading case of Hedley Byrne and Co Ltd v Heller and Partners, which established for
the first time that a negligent statement, whether spoken or written, which causes financial loss
may give rise to an action in damages for negligence, despite the absence of any fiduciary or
contractual relationship between the parties. The facts of the case were that the claimants,
who were advertising agents, asked their bankers to inquire into the financial stability of E Co,
with whom the claimants were contemplating entering into certain advertising contracts. In
answer to inquiries by the claimants' bankers, the defendants (E Co's bankers) carelessly gave
favourable references about E Co. Relying on these references, the claimants went ahead with
the advertising contracts, but shortly afterwards E Co went into liquidation and the claimants
lost £7,000. The claimants' action in negligence failed because the defendants had expressly
disclaimed responsibility for their references. But the House of Lords held that, if it were not for
this express disclaimer, the defendants would have owed a duty of care to the claimants not to
cause financial loss by their statements. All five judges of the court proceeded to expound their
views as to the basis of liability for negligent misstatements, but unfortunately there was no
uniformity of approach among their Lordships, and subsequent cases have done little to clarify
the position.
However, the following points are sufficiently clear
a) A duty of care will exist only where there is a 'special relationship' between the parties.
A majority of the judges in Hedley Byrne considered that a special relationship would
arise whenever, in the circumstances: (i) it was reasonable for the claimant to have
relied upon the care or skill of the defendant who made the statement; and (ii) the
defendant knew or ought to have known that the claimant was relying on him. Thus,

85 [1963] 2 AllER 575

86 Where a misstatement is fraudulent, ie, made without belief in its truth or made recklessly
whether it is true or false, the representor may be liable for the tort of deceit: Derry v Peek (ISS
App Cas 337
87 Claytiin v Woodman [1962] 2 QB 533
88 De Freville v Dill [19271 All ER Rep 205.
 professional advisers such as accountants,89bankers commission agents and surveyors,
will owe a duty of care to their customers in respect of any professional advice given.
b) No duty of care will arise where advice is given on a purely social occasion (for example,
advice 'cadged' at a cocktail party, or given on a bus, train or plane by one passenger to
another), since it would be neither foreseeable by the defendant that the claimant
would rely on the advice, nor reasonable for the claimant to do so.
c) A non-professional person who gives information or advice on a 'business occasion' (for
example, one trader advising another as to the creditworthiness of a potential buyer)
owes a duty of care, at least if he has a financial interest in the transaction in question. 90

The requirements for liability for economic loss caused by negligent misstatements were
further considered by the Privy Council in Mutual Life and Citizens Assurance Co Ltd v Evatt.91 In
this case, E was a policyholder with the defendant insurance company. He sought gratuitous
advice from the company as to the wisdom of investing in the defendant's sister company. He
was advised that the sister company was financially stable, and so he went ahead and invested
in it. When the sister company crashed, E brought an action against the defendant company
alleging that it had been negligent in giving the advice. The Privy by a majority of 3:2, held that
the defendant was not liable since, being insurance company, it was not in the business of
giving investment advice.
The majority held that, where the defendant is not in the business of giving advice and
does not hold itself out as competent to give the advice sought, the only duty owed is a duty of
honesty, and that duty had been fulfilled in this case. It did, however, recognise that where the
defendant has financial interest the advice given, then the requirement that the defendant be
in the business of giving advice does not apply.
The dissenting minority view in Evatt took the that a duty of care is owed by anyone
who takes it upon himself to make a representation, knowing that another will justifiably rely
on his representation. According to the minority, foresight of reasonable reliance being placed
upon the representor's words is the critical test, and it is this more liberal view of the scope of
Hedley Byrne which has found favour with the English courts.

The proposition that there is no liability under Hedley Byrne for advice given on a social
occasion was put to the test in Chaudry v Prabhakar. 92 In this case, P, who was a friend of C,
offered to help C to find a suitable used car to purchase. P was not a mechanic, but he did
profess to have some knowledge of cars. C had insisted that she did not want a car that had
been involved in an accident. P found and recommended a car which had low mileage but
which he knew had had its hood repaired or placed. C bought the car in reliance upon ID's
recommendation, but it turned out that the car was unroadworthy, having been inadequately
repaired after an accident. C successfully brought an action in negligence against P, the majority

89 In JEB Fasteners Ltd v Marks [19811 3 All ER 289, Woolf J held that auditors preparing company
accounts owed a duty of care to any person whom they ought reasonably to have foreseen might
rely on those accounts; though in Caparo Industries plc v Dickman [19901 2 WLR 358, the House of
Lords held that the duty of care of an auditor of a public company is owed only to his client company
and its shareholders, collectively and individually, and not to potential investors.
90 Anderson v Rhodes [1967] 2 All ER 850
91 [1971] 1 All ER 150
92 [1989] 1 WLR 29
of the Court of Appeal being of the view that this was not a purely social relationship because C
had relied on P's skill and judgment and P was aware of that reliance.

Another somewhat dubious decision is the majority in the Trinidadian case of Royal Bank Trust
co (Trinidad) Ltd v Pampellonne,93 respondents, Mr. and Mrs. were customers of the appellant
invested sums of money in a deposit-taking company (Pinnock Finance Co) on various occasions
over a period of two years. When Pinnock later went into liquidation, the respondents lost most
of their money. They brought an action against the bank. Alleging that the investments in
Pinnock had been made on the advice of K, the bank manager. The trial judge found on the
facts that K had given information to the respondents about Pinnock and had supplied them
with literature and application forms, but that the respondents had not relied upon skill and
judgment of K, nor did K believe that they were relying upon such skill judgment. Thus, no
special relationship between the bank and the respondents giving rise to any duty of care on
the part of the bank had been created. The Court of Appeal of Trinidad and Tobago reversed
the decision of the judge, holding that the information given by K was equivalent to 'advice'. A
relationship had been created between the respondents and the bank which rise to a duty of
care on the part of the bank, 'whose business it was to supply, who supplied, information which
influenced [the respondents to invest' within principle in Mutual Life and Citizens' Assurance Co
Ltd v Evatt. In giving this advice, the bank 'carried on, and held itself out as carrying on, the
business of giving advice as to reliable financial investments' and 'the bank fell short of the
standard of expected of a prudent investment adviser, when it failed to make adequate
inquiries into the personal circumstances of [the respondents] and the financial position of
Pinnock ... before tendering the advice'.
It was held on appeal to the Judicial Committee of the Privy Council, by a majority of 3:2,
that the question of whether the information provided by the bank was equivalent to advice
depended upon the facts of the case, and in particular upon the circumstances in which the
information was given. There was ample evidence on which the trial judge could find that the
bank could not be responsible for any investment or reinvestment by the respondents in
Pinnock, and the Court of Appeal was not entitled to substitute its own view of the facts for
that of the trial judge. Lord Goff (delivering the opinion of the majority of the members of the
Board) said:94

Before their Lordships, Mr. Longmore for the bank submitted that the
Court of Appeal, in reversing the decision of the judge on the question
whether there was a duty of care with regard to the Pinnock
investments, substituted their own view for that of the judge on
questions of fact when they had no right to do so. In the opinion of their
Lordships, that submission is well founded. Kelsick JA treated the
information provided by Mr. Kennedy regarding Pinnock as equivalent
to advice; he held that 'a situation' arose when, at the first meeting, Mr.
Pampellonne requested Mr. Kennedy to a suitable UK deposit-taking
company in which he should invest, and Mr. Kennedy then mentioned
Pinnock and supplied Mr. Pampellonne with relevant literature and
application forms. However, the question whether the furnishing of

93 (1986) 35 WIR 392

94 [1971] 1 All ER 150, at 154
 information is in any particular case to be treated as equivalent to
advice must depend upon the facts of the and in particular upon the
precise circumstances in which the relevant information has been
given. It was the judge who heard, at length, the evidence of Mr.
Kennedy and the Pampellonnes concerning the two meetings in the
autumn Of 1964; and he, having heard that evidence, formed the
opinion that Mr. Kennedy gave no recommendation to the
Pampellonnes that it was safe to 'invest in Pinnock, simply providing
Mr. Pampellonne with such information concerning Pinnock as was
available to him. It was not, in their Lordships' opinion, open to the
Court of Appeal to conclude, on the basis of the judge's notes of the
evidence, that he erred in reaching that conclusion of fact if the bank
had provided advice to the Pampellonnes about their investments, it
would in all probability have been held that the occasion was one of
sufficient gravity to give rise to a duty of care, in which event the
evidence of Mr Girdharrie concerning the extensive inquiries which, in
his opinion, the bank should have made, would have become relevant;
although it is usual for any such advice to be contained in, or regulated
by, some form of document. But once it was held, as the judge held,
that at a brief meeting the bank was prepared to do no more than
provide such information as was available to them, the judge was
entitled to form the opinion on the evidence before him that no duty of
care arose, other than (no doubt) to pass such information accurately
to Mr. Pampellonne. For these reasons, in the opinion of their
Lordships, the decision of Kelsick JA that a duty of care rested upon the
bank in relation to advice concerning the Pinnock investments cannot
stand.

A more recent, and' straightforward, application of the Hedley Byrne principle is the Wiggan v
Morrison.95 In this case, the claimants, a Jamaican couple who were residing in England but
wished to return to live in Jamaica, decided purchase land with the intention of building a
house thereon for their occupation. The lot which they purchased was No 90, Greenwich Park,
St. Ann. Before starting to build, they engaged the defendant, a qualified land surveyor, to
survey the property for the purpose of verifying its location. The defendant carried out a survey
and identified a particular lot as being 'Lot 90'. Relying on the defendant's representation, the
claimants started construction of a house, but when the building was about 40% completed,
they discovered that they had been building on Lot 91, a neighbouring property, which had
been wrongly identified as Lot 90 by the defendant. The claimants were obliged to demolish the
building.
McIntosh J held that under the Hedley Byrne principle, a claimant had to show six factors:
(a) that representations were made by the defendant.
(b) that a special relationship 'equivalent to contract' existed between the parties, and that the
defendant held himself out in his profession or otherwise as being in a position to give an
opinion or advice on which reasonable persons would rely;
(c) that the defendant was aware that the claimant would rely on his representations.

95 (2000) Supreme Court, Jamaica, No E 360 A of 1996 (unreported) [Carilaw JM 2000 SC 14]
(d) that the claimant did rely on those representations.
(e) that the representations were made negligently; and
(f) that, as a result, the claimant suffered loss.

Website Misstatements

The issue of liability for negligent misstatements made on internet websites came to the
forefront in
Patchett v Swimming Pool and Allied Trades Association Ltd.96 The claimants in this case were
looking for a contractor to build a swimming pool for them in their back garden. The defendant
(SPATA) was a trade association whose membership included most of the swimming pool
contractors in the United Kingdom.
The website stated, inter alia, that (i) SPATA pool installer members were ‘fully vetted’ before
being admitted to membership, with checks on their financial record, their experience in the
trade and inspections of their work'; (ii) only SPATA registered pool installers belonged to
'Spatashield', SPATA's unique bond and warranty scheme 'offering customers peace of mind
that their installation will be completed fully to [SPATA's] standards'; and (iii) that SPATA
supplied an information pack including a contract checklist setting out the questions that the
customer should ask a prospective tenderer. The claimants employed a contractor whose
details were listed on the defendants' website, without obtaining the information pack from
the defendants or inquiring of the contractor as to whether it participated in the defendants'
warranty scheme; further inquiry by the claimants would have revealed that the contractor was
not a full member of the association but only an associate member, and that it was not subject
to 'Spatashield'.
A majority of the English Court of Appeal held, applying the Caparo v Dickman test, that there
was insufficient proximity between the claimants and the defendants to give rise to a duty of
care. Certainly, it could not be said that the defendants, as a trade association, and the
claimants were 'strangers' to one another, and the purpose of the website was indeed to
encourage persons such as the claimants to enter into contracts with the members of the
association; however, the defendants could not be regarded as 'advisers' to the claimants;
moreover, the claimants had not consulted the recommended information pack, nor had they
made any further inquiries before employing the contractor. In these circumstances, it could
not be fairly concluded that the defendant had assumed responsibility for the accuracy of the
statements on the website without such further inquiry on the part of the claimants.

Psychiatric Damage or Nervous shock

Emotional distress which may be suffered by normal individuals where someone is injured or
killed must be distinguished from nervous shock which is a medically recognized illness or
disorder that includes mental illness, neurosis and personality change. Unlike nervous shock,
compensation is not available for emotional distress, anguish, or grief unless these defects
cause some psychiatric illness such as heart attack, nervous breakdown or even depression.

96 [2009] EWCA Civ 717

I

Primary and Secondary victims

A distinction must be drawn between situations in which:

i. The claimant suffers psychiatric damage as a result of him having been himself exposed
to a foreseeable risk of physical injury (primary victims)
ii. The claimant witnessed or became aware of death or injury to someone else (secondary
victim)

Primary victims

A person who is physically injured or could foreseeably have been physically injured as a result
another person’s negligence is a ‘primary victim’. Primary victims also include rescuers such as
firemen, policemen or volunteers who put themselves in the way of danger and suffer
psychiatric shock as a result.

The test of liability does appear to be based upon foreseeability alone i.e., foreseeability of
physical injury (whether or not it occurred) whereas in “third party” cases foreseeability of
psychiatric damage itself as insisted upon.

Page v Smith

An accident occurred for which the defendant was blameworthy. The accident led to the
reoccurrence of PD [personality disorder], from which the claimant formally suffered. As a
result of the disability, the plaintiff became incapable of working. The claim for PD was allowed.

Secondary victims

A secondary victim is a person who suffers nervous shock without himself being exposed to
danger. In Mcloughlin v O’Brian, the P’s family was involved in a road accident caused by the
negligence of the defendant. She was later driven to the hospital where her husband and
children were detained. She witnessed her family’s condition herself. The House of Lords
upheld her claim for PD. It was reasoned that the plaintiff’s attendance at the hospital meant
that her situation was not different in principle from what it would have been had she actually
been involved in the accident herself.
There are three (3) elements to be considered:

i. The class of persons, whose claims ought to be recognised

ii. The proximity of such persons to the accident
iii. The means by which the psychiatric illness was caused

The Class of Persons

The possible range of persons lie between either parent and child or husband and wife. Claims
by ordinary by standers are not normally recognised because such persons must be assumed to
be possessed of fortitude which is sufficient to enable them to withstand the calamities of
modern life, Bourhill v Young.

The proximity of such persons to the accident

Proximity to the accident must be close both in time and space, since for the plaintiff’s claim to
succeed, a causal connection between the psychiatric illness suffered and the defendant’s
negligence has to be proved.

How psychoactive illness was caused

P must suffer nervous shock through seeing or hearing the accident himself or must witness its
immediate aftermath (he or she would come immediately on the scene). A person informed of
the accident by a third-party in the aftermath, did not satisfy the test for reasonable
foreseeability and proximity to enable them to recover damages.

Reference

Kodilinye, G. (2015). Commonwealth Caribbean Tort Law (5th ed.). Third Avenue, New York:

Routledge.
 ADDITIONAL READING

When you are looking at general duty of care situation. You look at Donoughue v Stevenson as
the main basis, however Caparo case has refined duty of care.

The Elements of the Caparo Case

i. Foreseeability;

Jolley v Sutton, the council was made liable for a rotten boat that was left abandoned. The
House of Lords held that it must have been foreseeable risk that children would “meddle with
the boat at risk of some physical injury.

ii. Proximity; - has to do with the relationship between parties

Home Office v Dorset Yacht, the question was whether or not an action laid against the Home
Office for the actions of the borstal boys who are not supervised properly by the prison officers,
if they were negligent.

Held the Home Office was negligent, they owed a duty of care to the respondents. The Justices
intended the category of negligence to include the state.

iii. Fair, Just & Reasonable to impose a duty.

Hill v Chief Constable of West Yorkshire

The mother of the deceased victim made a claim against the chief constable on grounds that he
had been negligent in detecting and detaining the murderer. Based on policy reason, “flood
gate” argument the court held that it wouldn’t be fair, just and reasonable to impose liability.
Contributory Negligence

(It always the defendant who proves (asserts) contributory negligence)

This will apply where the damage the claimant has suffered was caused partly by their own
fault and partly by the fault of the defendant. To establish the defence the defendant must
show that the claimant failed to take reasonable care for their own safety and that the failure
was the cause of their damage. If the defendant manages to establish contributory negligence,
the modern position is that the defendant will have their damage reduced by the court in
proportion to their fault.

It is not necessary for the defendant to owe the claimant a duty of care. In respect of the
claimant’s conduct, the court will look at factors which are similar to those, which would render
the defendant negligent. It is basically an objective test and certain subjective factor will also be
taken into account i.e. children.

N.B. Contributory Negligence:

− General; Davies v Swan Motor

− Seat belt; Froom v Butcher

In Davies v Swan Motor, the claimant’s husband rode on a dust cart, he was aware of the
danger of such practice. The dust cart was being overtaken by a bus, there was a collision the
husband was killed, the driver of the dust cart and the bus and husband were all held to be
negligent. The husband, because of the dangerous manner in which he was riding on the cart,
was held to be contributorily negligent and the widow’s damage was reduced.

Law Reform (Contributory Negligence) Act 1945, is relevant for…

Froom v Butcher, the claimant’s car was in a collision with the defendant’s car, caused by the
defendant’s negligence at the time of the accident the plaintiff was not wearing a seatbelt, his
injuries were worse than they would have been if he were wearing a seatbelt. Held: his
damages should be reduced by 25%. The standard of care was to be judged objectively and the
prudent man would wear his seatbelt unless there were exceptional circumstances. (In the
case, it was held that if wearing a seat belt prevented the damage suffered all together, an
appropriate reduction of damages would be 25%. If the injury would have been less severe than
it in fact was, the reduction would be 15%. But if the injury would have been the same whether
the seatbelt was worn or not, there would be no reduction at all).

Children

The courts have held that a very young child cannot be guilty of contributory negligence e.g.,
Gaugh v Thorne, it was held that the child would not be guilty of contributory negligence. If she
had been an adult the position would have been different.

Yachuk v Oliver, a 9-year-old child was not contributorily negligent, after he bought petrol
falsely stating that his mother needed it for her car. The child used it for a game in which he
was burnt. Held, the child was not contributorily negligent as he did not know and could not be
expected to know the qualities of petrol.

If the claimant’s action was the sole cause of the accident, he would get no damage at all since
his action will operate as a novus actus interveniens.