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Introduction to Tort and Negligence

Discuss about the Law for Donoghue v Stevenson 1932 AC 562.

Tort is considered as civil wrong under which innocent party has right to claim damages. Tort is derived from an old French word which literally meaning as wrong. In Australia, law is derived from English common law and tort is also deriving from the history of English common law. Tort is defined as situation when any person caused any harm to another person, and injured party sues the person for damages (ALRC, 2017).

Tort of negligence- generally, tort of negligence is defined as legal action which can be taken by one person against another person who owned duty of care to precedent person. Liabilities of person under tort of negligence arise when person owns duty of care towards another person and breach of such duty cause damage to another person. Tort of negligence included three important factors and it is necessary for plaintiff to satisfy all these factors for being successful under claim:

  1. Duty of care owned by defendant towards plaintiff at the time of the act of negligence.
  2. Defendant must breach such duty of care by not meeting the expected standard of care.
  3. Damage caused to plaintiff from such breach. In general way negligence is recognized as act of carelessness but it must be noted that not every careless act result in liability. Only those act result in liability which satisfy all three elements (Law Vision, 2017). 

During the period of 18tth and 19th century, duty of care is recognized by common law in number of relationships which are limited in nature. Some example of limited relationships is innkeeper and guest, doctor and patient, and driver and road user. It is necessary for existence of duty of care that some form of relationship exists between the plaintiff and defendant. For the purpose of making successful claim it is necessary that any one of these categories must be established. These categories are extended as per the development of society, especially after the industrial revolution in 1800s. It must be noted that if plaintiff fails to establish any category then there is no remedy in law for him.

After the period of 1932, law of tort expands through the case law Donoghue v Stevenson 1932 AC 562. In this case Mrs. Donoghue went to Wellmeadow Café in Paisley, Scotland with her friend and purchased bottle of ginger beer from the café. She was not able to check the contents of the bottle because she purchased sealed and opaque bottle. After consuming one glass of ginger-beer she found decomposed snail in the bottle when she poured another glass of beer. Because of the snail in ginger bottle Mrs. Donoghue claimed that she suffered from gastroenteritis and nervous shock. She file claim against the manufacturer of the ginger-beer Mr. Stevenson for negligence.

Limited Relationships and Duty of Care

In this case relationship exists between the parties to the case that is manufacturer of the ginger beer sold beer to the shopkeeper of the Wellmeadow Café. This is considered as contract and remedies are available for any breach related to the terms of the contract. Shopkeeper of café sold that bottle of ginger beer to Mrs. Donoghue, and in this no contract is exists, so there are no remedies available under the law of contract. This case was entertained by House of Lords in London. Main issue in this case is whether Mrs. Donoghue has power to bring an action for negligence against the manufacturer.


House of Lords stated in this case that manufacturer of the product while preparing the product owns duty of care towards the ultimate consumer. Lord Atkin in this case stated the general principle related to the liability of tort of negligence. He stated in this case that “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 into question”.

This statement made by Lord Atkins includes two tests that is foreseeability test and the proximity test. As per these tests foreseeability test means any act or omission which are reasonable foresee that they causes injury or damage and proximity test state that it is necessary that there must be some level of closeness arises from the relationship of defendant and plaintiff, either physical relationship or some other relationship. After concluding this case, Court clearly established the concept of tort of negligence.

It must be noted that this concept is not only applicable on some fixed rules but it is applicable on all sort of circumstances conditions and problems. Law of negligence must fit in the facts of the case which are coming before the Court for decision. In case law Donoghue v Stevenson, manufacturer manufactured the drink with the intention to reach that drink to consumer unopened and being without inspected, it is necessary that he must foresee the injury in case he fails to ensure that harmful objects must not find their way in bottles. Therefore, Court stated that manufacturer owned duty of care towards the plaintiff.

Parliament of Australia made some changes in law of negligence through Civil Liability Acts such as in case of personal injury act replaced the reasonable person test with a three step test, but this Act still use the word reasonable and foreseeability which are developed  by lord Atkin (Legal service commission, 2017; Uni study guides, 2017). 

The Case of Donoghue v Stevenson 1932 AC 562

Now, Court considers following points to determine whether negligence occurred or not:

  • Whether defendant owned the duty of care towards the plaintiff or not?
  • Whether such duty of care is breached by defendant towards the plaintiff?
  • Whether plaintiff suffers injury or damage or not?
  • Whether plaintiff suffers injury or damage from such breach of duty?

It must be noted that for successful claim plaintiff must satisfy all these points and even if one point is not satisfied then plaintiff cannot establish the liability of defendant (Blay, n.d.) 

Duty of care- duty of care is considered as legal obligation for the purpose of avoiding causing harm in case risk was foreseeable if care was not taken by person. Sometime proximity test is applied for establishing the duty of care, in other words relationship of closeness must exist between the parties of care for establishing duty of care. This can be understood through example such as relationship exists between doctor and patient and relationship exists between driver and road user.

Breach of duty of care- For the purpose of establishing breach of duty of care, Court will consider the standard of care expected in such circumstances. Standard of care is determined by Court by considering the actions of reasonable person in similar circumstances. In case defendant does not acted as per those standards or fails to match the standard of care then it will be considered as breach of duty. There are some common examples of breach of duty which can be seen in everyday activities such as driving. It is expected from al road users that they must conduct their actions as per the actions of reasonable person. Some examples of failure to meet the standard of care are stated below (The law handbook, 2017):

  • In case driver fails to look at front and as a result runs into the car in front of them.
  • In case driver fails to obey the traffic lights and hit the pedestrian in front of the car. 

Determining the cause of injury from breach of duty- there are some cases in which it is easy to determine cause of injury because in these cases cause of injury is only one, but there are few cases in which it is difficult to determine the cause of injury because in these cases there is more than one cause of action.

For example- in case person fell from terrace and breaks his arm, then there is clear connection between the fall and injury suffered by person.

In case person fall from bicycle and breaks his arm, and on same day morning he slips on wet floor and injured the same arm then there is issue between the determination of cause of action.

Contributory Negligence- in case injured person themselves contributed in the cause of injury or damage then it is considered the case of contributory negligence. Contributory negligence occurred when plaintiff fails to take reasonable care for ensuring his own safety or loss which must be foreseeable. In this case, amount awarded as damages will be reduced up to the extent which person contributed in the loss or damage. Some examples of contributory negligence are stated below:

  • Slip or fall occurred because injured person fails to take reasonable care for ensuring his own safety or loss which must be foreseeable.
  • Person engages in activity which involves high level of risk such as person driving into water from pier.
  • Passenger fails to wear the seat belt (Basten, n.d.; Marks, n.d.).

The Concept of Tort of Negligence

In the present case, Keith is working as home handyman, and he advertises in the local Buderim Bugle that he is a qualified carpenter, but in actual he does not have any trade qualifications. Ruth worked as a teacher at local school, and owns a home. Ruth contacted to Keith for the purpose of replacing the rotting timber tread on her back stairs. He replaces the tread but for replace he uses a piece of left over untreated chipboard instead of hardwood.

After some weeks and after some heavy rainfall at nights the replaced tread swells and collapses overnight. Each morning Ruth walks down the backstairs for the purpose of feeding her caged birds. After the following morning of that collapse tread Ruth walks down from backstairs with large number of feeding dishes and cleaning equipment’s. Things carry by Ruth obstructs her vision and she is not able to see the missing tread, as result she fell down from missing tread and dislocating her knee.

On next morning in hospital, Ruth called the Keith, and Keith apologized from Ruth for injury caused to Keith. Ruth recovered after the period of two months and not able to return to her paid employment. Because of all these she resigned from her employment and decided to stay at home.

In this case there is close relationship between the Keith and Ruth as the relationship of buyer and seller, and because of this Keith owns duty of care towards the Ruth.

Keith breaches this duty because she use piece of clipboard instead of hardwood for the purpose of replacing the tread. In this case collapse of tread from burden is risk which is foreseeable in nature. Therefore, Keith breaches his duty towards the Ruth. From such breach Ruth suffers injury.

In this case all four questions for determining the tort of negligence are satisfied such as:

  • Keith owns duty of care towards the plaintiff.
  • Keith breaches such duty of care he owns towards the Ruth.
  • Ruth suffers injury by dislocating her knee.
  • Such injury was caused from fell down from missing tread.


In this case, defense of contributory negligence cannot be used by Keith because it is the daily routine of Ruth to walk down from such stairs and she is in believe that Keith uses hardwood to replace the tread.

In the present case, all three elements of tort of negligence are satisfied that is Keith owns duty of care towards Ruth, Keith breach such duty, and breach of duty cause injury to Ruth. Therefore, Ruth can take legal action against Keith under tort of negligence and seek damages from Keith for injury caused to Ruth.

References:

Law Visison. (2017). The Law of Torts. Available at: https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf. Accessed on 29th May 2017.

Legal Service commission. (2017). Negligence. Available at: https://www.lawhandbook.sa.gov.au/ch01s05.php. Accessed on 29th May 2017.

ALRC. (2017). Authorising what would otherwise be a Tort. Available at: https://www.alrc.gov.au/publications/right-sue-tort. Accessed on 29th May 2017.

Uni study guides. (2017) The rise of the tort of negligence. Available at: https://www.unistudyguides.com/wiki/The_rise_of_the_tort_of_negligence. Accessed on 29th May 2017.

Blay, S. The nature of tort liability. Available at: https://www.findlaw.com.au/articles/149/the-nature-of-tort-liability.aspx. Accessed on 29th May 2017.

The Law handbook 2017. Duty of care. Available at: https://www.lawhandbook.org.au/04_08_02_duty_of_care/. Accessed on 29th May 2017.

Basten, J. Personal Injury – Contributory Negligence. Available at: https://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2017%20Speeches/Basten_20170311.pdf. Accessed on 29th May 2017.

Marks, W. d. Professional Negligence: Contribution and Contributory Negligence. The University of Queensland Law Journal, Vol. 15(2), Pp- 209-227.

Donoghue v Stevenson 1932 AC 562.

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My Assignment Help. Donoghue V Stevenson 1932 AC 562 - Tort Of Negligence [Internet]. My Assignment Help. 2018 [cited 18 July 2024]. Available from: https://myassignmenthelp.com/free-samples/law-donoghue-v-stevenson-1932-ac-562.

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