Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
2.1 Structure of the tort . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
2.2 Organisation of the chapters . . . . . . . . . . . . . . . . . . . . . . . .11
2.3 Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
2 Negligence: basic principles
page 10 University of London International Programmes
Introduction
Negligence is the most important modern tort: its study should occupy about half the
course. It is important because of the great volume of reported cases and because it is
founded on a principle of wide and general application. This chapter explains the basic
structure of the tort and describes the organisation of the material in subsequent
chapters.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
understand that the tort of negligence is structured on the concepts of duty of
care, breach of duty and resulting non-remote damage
indicate some of the social and policy questions that have influenced the
development of the tort of negligence.
Law of Tort 2 Negligence: basic principles page 11
2.1 Structure of the tort
Negligence of course means carelessness, but in 1934 Lord Wright said:
In strict legal analysis, negligence means more than heedless or careless conduct,
whether in omission or commission: it properly connotes the complex concept of duty,
breach and damage thereby suffered by the person to whom the duty was owing.
(Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25)
This sentence encapsulates the traditional tripartite structure of negligence as a tort. It
is not enough to show that defendant was careless: the tort involves a breach of duty
that causes damage that is not too remote. Each of the emboldened words will in due
course require detailed examination. The successful claimant in a negligence action
must establish three propositions:
a. that the defendant owed the claimant a duty of care. The claimant will in some
circumstances be the only person to whom the duty was owed (a surgeon and
patient for example): in others the claimant will be a member of a very large and
possibly ill-defined class of persons to whom the duty was owed (a car driver and
other road users).
b. that the defendant broke the duty of care. This means that the defendants
conduct fell below the standards that the law demands.
c. that as a result of the breach the claimant suffered damage of a kind that the law
deems worthy of compensation.
However these propositions are not rigidly separate. They are convenient for the
purpose of explaining the law, but they overlap to a great extent. Occasionally, but
not very often, a court will indeed explicitly organise its judgment under these three
headings. There is an example in Al-Kandari v Brown [1988] QB 665, referred to in
Chapter 4. In other cases however a judge might on the same set of facts deny liability
on the grounds that no duty was owed and another deny liability on the grounds
that, although a duty was owed, it had not been broken. An issue such as the scope of
liability for economic loss has sometimes been regarded as part of the duty question
and sometimes as part of the remoteness of damage question. You will find other
examples where a single set of facts can be analysed in different ways.
2.2 Organisation of the chapters
Negligence is now a tort of great size and complexity. Most textbooks set out the
questions of duty, breach, causation and remoteness in that order. This often means
that some of the most complex issues are dealt with at great length under the heading
of duty of care. Other textbooks are organised differently.
In the chapters that follow in this guide the material on negligence is organised in the
following way:
Chapters 3 (duty and breach) and 4 (causation and remoteness of damage) offer a
general overview of the tort of negligence, illustrated mainly, but not exclusively,
by cases involving careless conduct giving rise to death, personal injuries or
damage to property.
Chapter 5 deals with more complex areas that have been the subject of much
litigation in recent decades: liability for careless advice or information; liability for
psychiatric injuries and for purely economic damage; liability for failures to take
action to avoid harm; liability for failures of supervisory or regulatory functions.
Chapter 6 deals with the liability of two particular categories of defendants: that
of occupiers towards those on their premises, and that of employers towards their
employees.
page 12 University of London International Programmes
2.3 Policy questions
The law of negligence has undergone enormous change and development in the
past 50 years. Mostly this has involved an expansion of liability, but quite often the
courts have retreated and cut back on the extent of liability. This in turn leads to
inconsistency and uncertainty. The reasons for this are complex, but they have in part
to do with conflicting policy objectives. The importance of understanding these policy
objectives and the way that they are contributing to the development of the law was
explained in Chapter 1.
Here are some of the most important philosophical and policy issues that you should
keep in mind and refer to as you prepare the material in the next four chapters.
The underlying idea in a negligence action is very simple. If the claimants injuries
result from behaviour that falls short of socially acceptable standards, then there
should be compensation. If they do not, then the victim should bear the loss
without compensation. Since carelessness is not generally criminal, the tort of
negligence is the means by which the law attaches consequences to unacceptable
behaviour. Lord Diplock once described negligence as the application of common
sense and common morality to the activities of the common man (Doughty v
Turner Metal Manufacturing Co [1964] 1 QB 518, noted in Chapter 4). In a number of
recent cases the House of Lords has based its conclusions for or against liability by
reference to what people generally would regard as fair. See for example Alcock
v Chief Constable of South Yorkshire (Chapter 5) and Rees v Darlington Memorial
Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309 (Chapter 3). The public view
of what is fair may change over time. One question to consider is how far the law
correctly reflects a public sense of fairness.
One consequence however of the emphasis on fault is uncertainty. It may
be difficult to get agreement as to whether the defendant was careless, and
entitlement to substantial compensation may depend on the strength of the
evidence before the court or (since all except a very tiny proportion of negligence
claims for personal injuries are settled by negotiation or agreement) the strength
of the bargaining positions of the parties. The ability to obtain compensation
may also depend on the financial resources available to the defendant. A high
proportion of successful claims are in areas (medical, road and industrial accidents
for example) where defendants are either rich or are insured.
One purpose of the tort might be thought to be to enforce standards of good
behaviour: to deter people from being careless. In many situations the deterrent
effect is limited. Car drivers are likely to drive carefully because of a fear of death or
injury, or of prosecution resulting in fine or imprisonment. Fear of a civil action for
damages hardly figures, since the damages will come from an insurance company
(although admittedly the driver may find insurance more expensive or even
impossible in future).
There is a way in which liability in negligence does indeed affect behaviour and may
force defendants in ways that are arguably not to the general benefit. Courts are
increasingly aware of the so-called compensation culture, the desire to identify
someone who is able to pay for injuries. The fear is that there will be a defensive
reaction that drives out many socially useful activities. Schools may stop arranging
excursions for pupils for fear of claims by injured pupils. Institutions such as homes for
the elderly or nurseries for children may close if the costs of liability insurance become
prohibitive. There may be other defensive consequences. Family doctors may refer
too many healthy patients to specialists to protect themselves against negligence
claims, thereby adding to the costs of the health service and delaying appointments
for patients in need of specialist services. As a recent example of a judicial fear of the
compensation culture, see Tomlinson v Congleton Borough Council [2003] UKHL 47:
[2004] 1 A.C. 46 (Chapter 6).
Law of Tort 2 Negligence: basic principles page 13
Activity 2.1
Write down brief notes on what Tomlinson v Congleton Borough Council [2003] tells
you about the effects of compensation culture.
You will return to this case in Chapter 6: you will find an easy introduction to the
ideas of compensation culture in the speech of Lord Hoffmann.
No Feedback provided
Conclusion
You should bear the contents of this chapter, particularly the policy issues that keep
arising in negligence claims, as you study the chapters that follow.
page 14 University of London International Programmes
Notes