rigins of the tort of negligence
ï‚· Elements of the tort of negligence
ï‚· Development of liability for pure economic loss
ï‚· Tort of negligent misstatement
ï‚· Defences to an action in negligence
ï‚· Vicarious liability of employers
The tort of negligence provides one the greatest independent causes of action
outside contract law actions. Negligence means a breach of duty to take reasonable
care to prevent damage or loss where the existence of such a duty has been legally
identified. This topic describes the elements that must be established for a
successful action in the tort of negligenceTort
The Law of Torts is a branch of civil law that is concerned with civil wrongs, other
than a breach of contract, which the law will usually redress through an order
damages. Some torts include negligence, trespass, conversion, detinue, nuisance
and defamation. The most litigated tort is the tort negligence. Negligence is defined
as breach of a duty of care owed by the defendant to the plaintiff through the
defendant’s failure to comply with an appropriate standard of care thereby causing
the plaintiff loss or damage.
Origins of the tort of negligence
A decomposed snail in Scotland was the humble beginning of the modern English
law of negligence. It all began with the House of Lords decision in Donoghue v
Stevenson  AC 562. The facts of the case are as followsMrs Donoghue and a friend were at the Wellmeadow Cafe. Mrs Donoghue’s
friend purchased a bottle of ginger beer for her which she poured into a glass
and drank. On pouring out the remainder, Mrs Donoghue also poured out the
remains of a decomposing snail which had got into the bottle at the
manufacturers. The bottle was described as opaque so that its contents could
not be observed. As a result of the contamination Mrs Donoghue suffered
nervous shock, severe gastro-enteritis and depression, and was no longer
able to work. She sued the manufacturers for compensation; however, the
lower courts rejected her claim since there was no direct contractual
relationship between her and the manufacturer. Undaunted Mrs Donoghue
appealed the matter to the House of Lords (as the highest court in the UK)
where it was held by a 3:2 majority that a manufacturer owes a duty of care to
the consumer to ensure that manufactured goods do not have hidden (latent)
defects that are likely to cause injury upon use.
The duty of care concept forms the basis of the common law action for negligence
and was established through the application by Lord Atkin’s ‘neighbour principle’ as
The rule that you are to love your neighbour becomes, in law, you must not
injure your neighbour; and the lawyer’s question, who is my neighbour?
Receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour. Who in law is my neighbour? The answer seems to be - persons
who are so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question”In a common law action for negligence the plaintiff must prove the following elements
on the balance of probabilities:
1. The defendant owed the plaintiff a duty of care;
2. The defendant breached that duty of care by failing to comply with the
requisite standard of care;
3. The plaintiff suffered loss or damage as a result of the breach.
Duty of care – ‘salient features’ approach
The question whether or not a duty of care is owed is a question of law and has
traditionally been determined with reference to the ‘reasonably foreseeability’ test as
stated by Lord Atkin in Donoghue v Stevenson. Outside the established categories
this test has since been rejected in Australia as too broad and an approach that
looks to the ‘salient features’ is now to be preferred:
aintiff and control of the defendant. Relevant questions to ask are as follows:
1. Was the defendant in a controlling position through access to greater
resources and knowledge than the plaintiff?
2. Was it reasonable for the plaintiff to be reliant on the defendant?
3. Did the defendant assume responsibility for the plaintiff?
4. Was the defendant in such a position that required them to be protective of the plaintiff?
Policy considerations also determine whether a duty of care is owed in the
circumstances. This can include a wide range of factors such as the risk of creating
unlimited liability amongst an indeterminate class, possible commercial or financial
consequences, the impact on social or moral values, or even whether it is fair and