Tort of Negligence

• The tort of negligence involves breaching a legal duty of care, resulting in damage to the claimant.
• The modern law of negligence was established in Donoghue v Stevenson [1932], where the "neighbour principle" was articulated by Lord Atkin.

Key Elements of Negligence

• Duty of Care: Determined by proximity, foreseeability, and whether it's fair, just, and reasonable to impose a duty, as established in Caparo Industries plc v Dickman [1990].
• Breach of Duty: Occurs when the defendant fails to meet the standard of care expected of a reasonable person. The standard varies based on the defendant's profession or role (see Bolam v Friern Hospital Management Committee [1957]).
• Causation:
  • Factual causation: "But for" test (Barnett v Chelsea and Kensington Hospital [1969]).
  • Legal causation: Remoteness of damage; compensation is only provided for reasonably foreseeable damage (The Wagon Mound (No 1) [1961]).
• Damage:
  • Must be actual and not hypothetical.
  • Includes physical harm and psychiatric harm (subject to proximity rules).
  • Pure economic loss is restricted (Spartan Steel & Alloys Ltd v Martin & Co Ltd [1973]).

Defenses in Negligence

• Contributory negligence (Law Reform (Contributory Negligence) Act 1945).
• Volenti non fit injuria (consent to the risk).

Nuisance

• Nuisance is a tort that protects the claimant's interest in the use and enjoyment of land.

Types of Nuisance

• Private Nuisance:
  • An unlawful interference with a person's use or enjoyment of land.
  • The interference must be substantial and unreasonable.
  • Case law:
    • Sedleigh-Denfield v O'Callaghan [1940]: Flooding caused by a blocked drain.
    • Sturges v Bridgman [1879]: The character of the neighbourhood is a relevant factor.
• Public Nuisance:
  • Affects a class of people but can be actionable by an individual who suffers special damage.
  • Attorney-General v PYA Quarries Ltd [1957]: Established the requirement of a "class" being affected.
  • Tate & Lyle v GLC [1983]: Special damage from silting in the Thames.
• Statutory Nuisance:
  • Defined by legislation (e.g., Environmental Protection Act 1990 in the UK).
  • Local authorities may issue abatement notices.

Factors for Reasonableness

• Locality
• Duration and frequency
• Malice or motive (e.g., Hollywood Silver Fox Farm v Emmett)
• Sensitivity of claimant (Robinson v Kilvert)
• Utility of the defendant's conduct

Defenses

• Prescription
• Statutory authority
• Public benefit
• Coming to the nuisance (generally not a full defence)

Remedies

• Damages for loss of amenity, property damage, etc.
• Injunctions to prevent the continuation of the nuisance (Kennaway v Thompson).
• Abatement self-help remedy to stop the nuisance.

Rylands v Fletcher

• Rylands v Fletcher (1868) is a separate tort that creates strict liability for escapes of dangerous things from a defendant's land.

Key Elements

• Brings onto land something likely to do mischief:
  • Must be a substance or thing that poses an exceptional risk if it escapes.
• Non-natural use of land:
  • Defined as use that increases risk beyond ordinary use (e.g., Rickards v Lothian; Transco plc v Stockport MBC [2003]).
• Escape:
  • The thing must move from the defendant's land to the claimant's land.
  • Personal injury is not recoverable under Rylands (see Read v Lyons [1947]).
• Foreseeable damage:
  • Added by Cambridge Water Co v Eastern Counties Leather plc [1994]; damage must be foreseeable.

Defenses

• Act of a stranger
• Act of God
• Statutory authority
• Consent of the claimant
• Contributory negligence

Current Status and Criticism

• The rule is now narrow in scope and often overlaps with nuisance and negligence.
• Its strict liability character has been diluted with the addition of foreseeability.
• In Transco, the House of Lords reaffirmed the rule but limited its scope to exceptional cases.
• It has been abolished in jurisdictions like Australia (Burnie Port Authority v General Jones Pty Ltd [1994]).

Conclusion

• Negligence focuses on fault, while nuisance and Rylands v Fletcher primarily regulate land use.
• Nuisance addresses ongoing, unreasonable interferences.
• Rylands concerns isolated incidents with dangerous substances.
• The relevance of Rylands is limited, but all three doctrines shape private law responses to personal and environmental harms.

Tort of Negligence - Study Notes

• Negligence is a breach of a legal duty to take care, resulting in damage the defendant did not desire to cause to the claimant.

To succeed in a negligence claim, the claimant must prove

• Duty of Care (DoC)
• Breach of Duty
• Causation (both factual and legal)
• Damage (not too remote)

Establishing a Duty of Care

• Classic Case: Donoghue v Stevenson (1932)
  • Introduced the 'neighbour principle'.
  • A duty of care is owed to persons closely and directly affected by one's actions.
• Caparo v Dickman (1990) 3-Part Test
  • Foreseeability of damage
  • Proximity of relationship
  • Fair, just and reasonable to impose duty

Breach of Duty

• The defendant must fail to meet the standard of care of a reasonable person.
• Nettleship v Weston: Even learners are held to the standard of a reasonable driver.

Factors to consider when determining breach of duty

• Magnitude of risk
• Cost of precautions
• Social utility of action

Causation

• Factual causation: ‘But for' test (e.g. Barnett v Chelsea Hospital)
• Legal causation: Remoteness of damage (e.g. Wagon Mound case)

Damage

• Damage must not be too remote
• Damage must be a recognized form of harm, such as personal injury or property damage

Omissions in Negligence

• General rule: No liability for pure omissions

Exceptions to the "no liability for pure omissions" rule

• Special relationship (e.g. parent/child)
• Assumption of responsibility (e.g. lifeguard)
• Creation of risk
• Contractual duty
• Public authorities (e.g. Gorringe v Calderdale, Mitchell v Glasgow)

Economic Loss

• General rule: No duty for pure economic loss
• Two types:
  • Consequential economic loss: Claimable (e.g. Spartan Steel v Martin)
  • Pure economic loss: Not claimable unless under negligent misstatement

Negligent Misstatement

• Claim is allowed after Hedley Byrne v Heller
• Three key requirements:
  • Special relationship
  • Assumption of responsibility
  • Reasonable reliance
• Other relevant cases:
  • Patchett v Swimming Pool Association
  • Merrett v Babb
  • Goodwill v BPAS

Psychiatric Harm (Nervous Shock)

• Claimant must suffer a medically recognized psychiatric illness (e.g. PTSD, depression)
• The harm must be more than normal grief/stress

Primary Victims

• Are directly involved in the incident (e.g. McLoughlin v O’Brian)

Secondary Victims

• Must witness the event
• Must satisfy Alcock criteria:
  • Close tie of love & affection
  • Proximity in time and space
  • Sudden shocking event
  • Foreseeability

Additional Categories for Victims of Psychiatric Harm

• Rescuers (e.g. Chadwick v British Rail)
• Assumption of responsibility
• Involuntary participants

Public Authorities

• Public bodies can be liable if:
  • They assume a duty of care to an individual
  • Their actions create a new risk of harm
  • Failure to act does not always equal liability (e.g. Gorringe)