Liabilities in Tort: Examining Negligence and Duty of Care Principles

This essay delves into the intricacies of liabilities in tort, focusing on the crucial concept of duty of care and its relationship with negligence. It begins by defining negligence as the failure to exercise reasonable care, outlining the essential elements required to establish liability: a duty of care owed by the defendant to the plaintiff, a breach of that duty, and resulting damage. The essay then explores the legal duty of care, differentiating it from social or moral obligations, and emphasizes the plaintiff's burden of proof. Landmark cases like Donoghue v Stevenson are examined to illustrate the establishment of duty of care, considering factors like foreseeability and proximity. The essay further analyzes the three-stage test from Caparo Industries PLC v Dickman, and other relevant cases, and the significance of reasonable care and the standard of care expected of a defendant. Additionally, it discusses the concept of foreseeability and its impact on determining a breach of duty, as well as the factors considered by courts in assessing unreasonable risk and the magnitude of harm. The essay also touches upon cases involving special skills and qualifications, highlighting how negligence is viewed in such contexts.

Running head: LIABILITIES IN TORT
Liabilities in Tort
Name of the Student
Name of the University
Author Note

1LIABILITIES IN TORT
Answer 2:
It is worthwhile to mention here that cases involving negligence usually refers to the
failure to take reasonable care. Therefore, it is worth stating that in order to be held liable for
negligence under the law of torts, it is important on the part of the defendant to owe-
1) A duty of care to the plaintiff.
2) A breach of that duty of care.
3) The damage suffered by the plaintiff because of such breach.
The duty of care under the law of tort includes legal duty rather than mere social or moral
duty. The onus of proof lies upon the plaintiff. It is important to prove on the part of the plaintiff
that the defendant owned him specific legal duty of care, which has been breached by the
defendant. However, any statutory law has not defined such legal duty of care. It merely depends
on the consequences of the case that whether such duty exists. In the landmark case of
Donoghue v Stevenson [1932] UKHL 1001, it was observed the appellant brought a bottle of
ginger beer from a retailer. Before consuming the beer, some of the contents were poured in a
tumbler while the remaining part was consumed. However, when the appellant was pouring the
contents of the ginger beer into the tumbler, a dead and decomposed snail came out floating. The
appellant alleged the she seriously suffered medically as a consequence of drinking that ginger
beer. As a result of this, she brought an action against the manufacturer.
The principle of duty of care was first established in the case Donoghue v
Stevenson [1932] UKHL 100. Therefore, the courts applied various factors in order to determine
that whether there was a duty of care on the part of the defendant. In the beginning, it has been
1 [1932] UKHL 100.

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difficult for the Courts to determine the fact that whether there exists a contractual relation
between the plaintiff and the defendant, which would give rise to duty of care. The end result
was that the Courts have engaged into a series of classifications of duties regarding their
existence in property that may be real or personal. These classifications are based on further
relations for instance, property owner, sales representative, manufacturer or a stranger.
Therefore, in this regard, it is noteworthy to mention here that, I this way it has been possible for
the courts to ascertain from time to time that whether a duty of care on the part of the defendant
has been recognized by the application of law. It is worth examining that the duty to take care on
the part of the defendant may arise out of various relations that may not enumerate exhaustively
however; the Courts are at the authority to identify these duties when it seems to the Court to be
fair and just.
In case of Donoghue v Stevenson [1932] UKHL 100, the defendants presented a number
of defenses. One of the most important points of defense from the part of the defendant was that
there was no duty of care on his part towards the plaintiff. Therefore, in this case it was held by
the House of Lords that the manufacturer owes a duty of care to its customers. Similarly, there
was a duty of care on the part of the manufacturer because at the time of manufacturing it was
stated that the bottle do not contain any noxious materials and that he shall be liable for breach of
duty in its presence. According to Lord Atkin, a manufacturer of products sells his products with
an intention to represent to the consumers that the products are safe from any kind of noxious
matter. Therefore, it was held that manufacturers are aware of the fact that in the absence of
reasonable care in the preparation of products that may end up causing injury to the life or
property of the consumer. The Courts held that there is a duty of reasonable care on the part of
the defendant to the plaintiff.

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In certain cases, whether the defendant owes a duty of care to the plaintiff also depends
on the nature of foreseeability. In this regard, it is worthwhile to mention here that the nature of
the damage should be such, which could be foreseeable by any reasonable man of prudent
nature. The principle of foreeseability was applied by the courts for the purpose of determining
the fact that whether there was a duty of care on the part of the defendant. Under the tort of
negligence, this principle was first established in Caparo Industries PLC v Dickman [1990]
UKHL 22. In this case, it was observed that the auditors of the company assembled accounts,
which could not show valid evidences regarding the loss incurred by the company. Therefore, it
occurred to Caparo that as the company has not incurred any losses in the past according to the
accounts prepared by the auditors, it will be convenient to buy shares from such company.
However, later it was observed that the company had incurred loss and is still making losses. It
was held by the Court in this case, that there was a duty of care on the part of the defendant,
which he breached. Therefore, in this regard, the Courts were of the authority to determine the
fact that whether there was a duty of care and the nature of such reasonable care was such as it
could be foreseeable by any reasonable person. Duty of care was also established by the Courts
in Watson v British Boxing Board of Control [2001] QB 11343. In this case, it was observed
that the defendant breached duty of care by not avoiding the cause of personal injury however; it
was breached by not taking reasonable care of the duty owed. Therefore, the court considered
two factors- reasonable care and foreseaability in order to establish the fact that whether the
defendant is in breach of duty of care.
It is worthwhile to mention here that the Courts are of the opinion that it is important on
the part of the defendant to take reasonable care for the purpose of avoiding acts or omissions
2 [1990] UKHL 2.
3 [2001] QB 1134

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which could be reasonable foreseeable by them. In this regard, it is worth stating that, in order to
detect that whether the defendant has breached the duty, it is important that the defendant must
owe duty of care to the plaintiff. In the case of Caparo Industries PLC v Dickman [1990]
UKHL 2, a three-stage test was involved for determining that whether the defendant Was in
breach of duty. The three-stage test involves-
1. The nature of the injury was such as it could be foreseeable by a reasonable man of
prudent nature.
2. There was a presence of insufficient proximity between the plaintiff and the defendant.
3. It is reasonable to impose duty of care on the part of the plaintiff to the defendant under
certain circumstanced mentioned above.
Therefore, in order to prove that the defendant has breached duty of care, the Courts ensures
that the plaintiff falls within the scope of foreseability which has been put at risk by the
defendants as a result of failure to take due care of the duty assigned to them. In the case of
Bourhill v Young [1943] AC 924, it was observed that a woman had sudden miscarriage because
of shock, which she witnessed during a horrific road accident. Therefore, in this case, the Court
was of the opinion that, there was no duty of care on the part of the defendant and the nature of
the harm involves was such which could not be foreseeable by the plaintiff. It was held by the
Court that the nature of proximity should rely upon circumstances involving physical injury and
foresight of such physical or psychiatric injury. In MacFarlane and Another v Tayside Health
Board HL 21 Oct 19995, the question was raised regarding the fact that whether it is reasonable
and fair and just to impose a duty of care to any person. In this regard, the Courts have applied an
4 [1943] AC 92.
5 HL 21 Oct 1999

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alternative test in order to detect the nature of responsibility on the part of the defendant in cases
involving liability for economic loss, misrepresentations and omissions on the part of the
defendant.
The Courts were of the opinion that once a duty of care has been established on the part of
the defendant, an obligation develops on his part to owe a duty of care to the plaintiff. However,
the defendant should not breach such duty of care. In this context, it is required that the
defendant must fulfill standard of care according to the application of law. In order to determine
that whether there was been breach of standard of care, it has to be done in relation to the
conduct of a person rather than his state of mind. It is noteworthy to mention here that, the
defendant should conform and at the same time comply with the standard of care that has been
expected by any reasonable person. The concept of reasonable person under the law of
negligence has been created because of legal fiction. Such legal fiction takes the form of the
defendant and emphasis has been laid on the act of such reasonable person with ordinary
prudence in certain circumstances.
In most of the cases, the Courts are at the authority to consider the actual knowledge and the
experience of the defendant while decding the nature of the breach. In this regard, focus has been
made on the nature of foreseeability other than probability. It is worth noting that the subject
matter of foreseeability depends upon the knowledge and the actual experience of the defendant.
On the other hand, probability depends upon certain circumstances, which can be explained with
the help of an example. For instance, it can happen that the defendant while loading large and
heavy bags containing materials into the truck unintentionally strikes a passing child. In this
regard, the Court shall take into consideration the actual knowledge of the defendant and shall
determine that whether the defendant has acted reasonably. In this case, the defendant would be

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held liable for breach of duty, if he owed a duty of care to the child. In cases, where the
defendant has breached the duty of care, then there is an unreasonable risk of harm on the part of
the plaintiff. In this regard, the Court while deciding the nature of the unreasonable risk must
consider a number of factors. There is an authority on the part of the Courts to determine the
nature of magnitude of risk and the burden upon the defendant. The nature of risk magnitude
must be such as it would likely to harm the plaintiff. The magnitude of risk was first determined
in Bolton v. Stone [1951] AC 850, [1951] 1 All ER 10786. In this case, it was observed that a
ball from a cricket ground has hit the plaintiff. In this case, the House of Lords held that there
was no breach of duty on the part of the defendant as he did not owe a duty of care to the
plaintiff. The nature of the harm was not so serious as a reasonable man of prudent nature could
foresee. Similarly, in Paris v Stepney [1951] AC 3677 there involved a risk of eye injury.
However, in this care there was a duty of care on the part of the plaintiff himself and the
defendant was not held liable for breach of duty.
There are some cases under the law of negligence, which involves special skills and
qualifications on the part of the defendant. When the defendant possesses special skills or
qualifications or belongs to a particular profession, then the Courts shall consider any negligence
on his part as a breach of duty. In these cases, there is a duty on the part of such professionals to
take reasonable care. In Bolam v Friern Hospital Management Committee [1957] 1 WLR 5828,
a test has been established for the purpose of evaluating the skills of an expert. In this case, it
was observed that the doctor failed to prescribe an appropriate drug and was negligent in his act.
The Court did not hold the doctor (defendant) liable. The Court was of the opinion that though
the doctor being a professional and after possessing special skills was negligent in his act
6 [1951] AC 850, [1951] 1 All ER 1078.
7 [1951] AC 367.
8 [1951] AC 367.

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however; he could not be held liable because the nature of the harm could not be reasonable
foreseeable by him. In Wilsher v Essex Area Health Authority [1988] AC 10749, the argument
regarding the fact that a junior inexperienced doctor owes a lesser duty of standard of care has
been rejected by the Court of Appeal. It was held that a junior doctor or a general practitioner
possesses the same skills as that of an experienced specialist however; it is required that such
practitioner should work according to the advice of the specialist. In Moy V Pettman Smith (A
Firm) And Another: Hl 3 Feb 200510, it was observed that, the Courts relied upon their own
knowledge and experience in order to detect that whether the defendant was in breach of duty. In
cases involving medical profession, the Courts are not at the authority to evaluate the factors
contributing breach of duty by relying upon its own knowledge and experience, which was held
in Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 87111.
It is worthwhile to mention here that, in some cases, the Courts might modify the nature of
the duty on the part of the defendants where the plaintiff was of the knowledge that the duty of
care has been carried out by someone who had limited competence and skill. In the case of
Nettleship v Weston [1971] 2 QB 69112, it was held by the Court that a learner driver should
possesses the same standard of care as owed by any ordinary competent driver. In Mullin v
Richards [1998] 1 All ER 92013, the Court was of the opinion that children may be held liable in
negligence and the nature of the standard of care must be determined in the same way as it would
have been evaluated in the case of an adult. However, in such cases, the burden of proof lies on
the plaintiff.
9 [1988] AC 1074.
10 Hl 3 Feb 2005
11 [1985] AC 871.
12 [1971] 2 QB 691.
13 [1998] 1 All ER 920.

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In the conclusion, it can be stated that the Court by its conduct, in cases involving
negligence, compares the nature of breach on the part of the actual defendant with that of a
reasonable man. However, the circumstances and the standard of care must be such as the
defendant would have breached it. In this regard, the Courts are at the authority to determine the
actions of the defendant for measuring the standard of care on their part. However, if the
standard of care on the part of the defendant does not match the standard of care as determined
by the Courts, then the defendant is in breach of duty.

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References:
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078.
Bourhill v Young [1943] AC 92.
Caparo Industries PLC v Dickman [1990] UKHL 2.
Donoghue v Stevenson [1932] UKHL 100.
MacFarlane and Another v Tayside Health Board HL 21 Oct 1999
Moy V Pettman Smith (A Firm) And Another: Hl 3 Feb 2005
Mullin v Richards [1998] 1 All ER 920.
Nettleship v Weston [1971] 2 QB 691.
Paris v Stepney [1951] AC 367.
Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871.
Watson v British Boxing Board of Control [2001] QB 1134
Wilsher v Essex Area Health Authority [1988] AC 1074.