The History of the Tort of Negligence
- Alfred Eng
- Jun 7, 2021
- 5 min read
Updated: Aug 18, 2021
Looking at the historical development of the tort that shaped the legal system of the United Kingdom.
Prelude
If a driver collides with a pedestrian, he is negligent in the tort of negligence. If a doctor fails to disclose certain risks to his patient, he too is negligent in the tort of negligence. However, what is this tort of Negligence and to what extent does it play in the legal system today?
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The Tort of Negligence is an extremely old tort and most cases that comes before the court are based on the very foundation the tort of negligence has built itself on. Negligence is a tort which determines legal liability for the careless actions or inactions that causes injury or by putting another party at a loss. Negligent conduct is that which falls below an acceptable standard of keeping a legal duty to protect their neighbour. This is taken from the judgement stated by Judge Baron Anderson in the case of Blyth v Birmingham Waterworks Co (1856).
“Negligence is the omission to do something in which a reasonable person, guided upon considerations which ordinarily regulate the conducts of human affairs would do, or something which a prudent and reasonable man would not do.”
If a reasonable person in the shoes of the defendant would not have done such an action, the claimant is seen to have fallen under their duty of care and is then liable for their negligent actions. However, what legal cases and historical precedents have the tort of negligence based its judgement on? This essay will discuss the establishment of the tort of negligence and how it has developed over the years.
The case of M'Alister (or Donoghue) (Pauper) v Stevenson (1932)
The case of Donoghue v Stevenson is one the landmark cases every person who flips through the pages of a law book would know. The tort of negligence has based its origins in the neighbour principle in this case where Lord Atkin states that.
You shall take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
In this case, Mrs. Donoghue went to a café with her friend to buy a drink. Her friend then ordered a bottle of ginger beer for Mrs. Donoghue and without much thought, she poured the ginger beer into a glass and drank it. However, as she approached the very end of her drink, a decomposed snail popped out from bottle and in her horror, she fell extremely ill. Mrs. Donoghue brought a claim against the manufacturer but however, at that point of time, the only remedy for a defective product is to bring an action under the law of contract. The contract was made between her friend and the seller and therefore, Mrs. Donoghue was not in the position to bring a claim under contract law.
The case eventually went to the House of Lords and having consider the legal position between Mrs. Donoghue and the manufacturer, Lord Atkin laid down the legal principle that there exist a legal duty in tort to take reasonable care to protect those that might be reasonably be foreseen to be affected by one's negligent actions or inactions.
The case of Anns v Merton London Borough Council (1978)
The case of Anns v Merton is one of the main cases that has based its legal judgement on the neighbour's principle, but later developed what is now known as the 2-stage test. In this case, a local authority had been negligent in surveying the construction of a new block of marionettes and as a result, they failed to notice that the foundations were not dug to adequate depths. The claimant then brought an action against the council for the cost of rebuilding after realizing cracks that appeared on the wall. The House of Lords held that there was a duty of care owed to the claimant due to the material physical damages he has suffered as a result of the council's negligence. The two stage test is then laid down for a successful negligence claim.
The neighbour test must be satisfied
Is there any issues concerning public policy in which a duty of care should not be established.
The House of Lords in the case of Junior Books Ltd v Veitchi & Co (1983) is seen to favour the decision laid down by Merton and further allow pure economic loss to be compensable. However, the courts were seen to be struggling in defining the boundaries of negligence and its role in society. The sudden expansion of duty of cares has led to an imbalance in the interests of claimants and the defendant, and as a result, this has led to an opening of the floodgates to litigation.
The Judicial Retreat in the case of Murphy v Brentwood District Council (1990)
The Practice Statement laid down in the year 1966 was used by the House of Lords to overrule their past decisions laid down in Merton and Veitchi & Co. In the case of Brentwood, a house was built on a concrete raft laid on a landfill shite, the council had been asked to inspect to inspect and had approved the design of the raft which later turned out to be inadequate and cracks later appeared when the house subsided. The claimant tried to being a claim of damages amounting to 35,000 pounds. However, the House of Lords held that there was no duty of care as the council could not owe a greater duty of care to the claimant than builder. It was held that the 2 stage test was not good law and it was overruled as a result.
The reduction of the scope of duty of care is seen to be approved in the case of Sutherland Shire Council v Heyman (1985), where it states that a duty of care is only needed to be established in novel cases only.
Caparo Industries plc v Dickman (1990)
A modified 3 stage test was then laid down as a result to prove whether a duty of care will arise. However, this 3 stage test is only used in novel situations.
Duty of care, as its name implies, is a legal duty of a person owed to another person who comes within the proximity of the person's actions or inactions. An employer owes a duty of care for their employees, in terms of supplying safety gear or giving adequate training. An occupier of a building is also seen to owe a duty of care to visitors or trespassers alike - Occupiers' Liability Act 1957 and Occupiers' Liability Act 1984 by protecting them from dangers that might be present in the premises. These legal relationships are established in past cases that acts as precedents for future cases to follow. But what if there is a completely new relationship between the claimant and the defendant? The 3 stage test in Dickman (1990) explains relationships that arises in novel situations.
Subscribe Alfred's Blog as we dive into the 3 stage test laid down in novel situations in my next blog.
For more information on case laws, click the links below.
Case Facts and Judgement in Blyth v Birmingham Waterworks Co (1856)
Anns v Merton London Borough Council (1978)
Caparo Industries plc v Dickman
We are able to see that the courts have now limit the scope of duty of care owed between parties basing on precedents on similar facts. This provides certainty and fairness in the legal system as similar cases will be treated alike. (Stare decisis)