One of the main aspects
covered by the Tort of Law is Negligence. Negligence is diverse source of
litigation. This essay will analyse how the courts uphold an objective standard
to distinguish a claim and to identify whether a defendant is in breach of duty
of care in negligence. To determine whether a particular defendant has breached
a duty of care, it will be necessary for the court to examine the rules
relating to a claim in negligence. There are two sides to this question, first
I will show how the courts maintain an objective standard by employing certain
tests to assess whether there a duty of care is present. The second, will reveal
how the courts maintain an objective standard by neutrally assessing the basic
standard of care through the eyes of the reasonable man to clarify whether a
particular defendant is in breach of duty of care.
If a Claimant wants to
sue the defendant, four elements must be made out by the court for a claim to
be made. First, is that the defendant owed the claimant a duty of care; second,
the defendant has breached that duty of care; third
that the defendant’s breach caused the claimant to suffer some kind of damage
or loss; finally, at least one of the losses that the defendant’s breach caused
the claimant to suffer is, actionable. Although the concept of the Duty of
care is self-explanatory and has been used for many years throughout legal
history, Hitherto, the concept of Duty of care was decided on a case-by-case in
addition to a pre-existing relationship between the two parties; defendant and
the plaintiff. In recent years courts have made certain developments to the
tests when determining whether a defendant has breached their duty of care in
respect to the Claimant. Four of the main tests are now used in relation to
claims brought under Negligence in Tort.
One of the main tests
that has been raised by courts is Lord Atkin’s ‘neighbour principle’ calls for
two key labels; first being Reasonable foreseeability, second being the
relationship between the parties; more commonly know as ‘proximity’. When
assessing foreseeability courts allow for a hypothetical stance of the
reasonable man to be tested, the reasonable man being any individual, worker or
citizen to foresee the circumstances. The reasonable man excludes children and
those with a disability whom may not consciously be able to foresee certain
situations. In the case of Bhamra v Dubb 20101 it was necessary for the
courts to examine the rules relating to the neighbour principle; foreseeability
of the defendant owing the Claimant a duty not to causing physical harm.
Furthermore, a prominent case that has applied Lord Atkin’s neighbour principle
is Donoghue v Stevenson 19322 which was arguably the
stepping stone for the development of duty of care tests for future claims. In
the case of Donoghue v Stevenson 1932 two essential steps were taken; first
was that the court outlined an independence of tort claims from that of contract.
The second, was recognition of a general tort of negligence; whereby a manufacturer
has a definitive Duty of care for its consumers.
The second test is known
as the Ann’s Test; it will be asked whether the harm was foreseeable thus
conveying the neighbour principle be contained by the plaintiff. Similarly, was
there any valid policy consideration? In
the case Anns V Merton 19783 Despite the evidence on
the contrary the Ann’s test has been scrutinised for its two-stage test for the
following reasons; first, foreseeability is seen as a prima facie duty which
refers to taking a duty at face value; plausible unless proven otherwise.
Second, the Ann’s test can be seen as too much of a liability avoiding
liability is made hard.
The third test is the
incremental approach that should be based on precedent in case law
jurisdictions, it is an approach employed to cease or curb massive extensions
of the Duty of care, in the law based on new or differing events.
Caparo is the fourth and
final test, it is often seen as a new solution to the previous tests. Caparo is
a three-stage test, it calls for three equally important ingredients that are
set to formulate whether a duty of care is owed. Caparo looks at the following
principles; first is the foreseeability of harm; second is proximity and; third
is fair just and reasonable. Fair, just and reasonable refers to proximity
satisfied but where there is an overriding public interest in denying a
particular type of claim.
Another point of view
suggests, however, that the criteria’s termed are mere labels with the
exception of foreseeability; it can also seem pragmatic in the sense that it
bases on practical as opposed to theoretical considerations and thus is
questioned whether it is a plausible; accurate way of articulating legal
The main point is that
courts are able to maintain an objective standard when imposing liability as
they are often reluctant to impose liability. For instance, liability on local
authorities particularly where it would impact on decision making of allocation
of resources. By its nature the Stovin v Wise 19964 case it was held that the
council was not liable as foreseeability of an accident was seen over a certain
period, i.e. 5 years as opposed to a series of accident of the course of 12
years which was an inadequate measure to render the junction under the Council’s
policy for funding.
In the case Caparo v
the Caparo test was put to the review and the court held that no duty of care
was owed as there was no sufficient proximity between the two parties. For a
situation to give rise to a duty of care it is necessary for all ingredients in
the Caparo test to be present. The tests are used not only as guidelines but as
scope for the court to consider whether a law should impose a duty.
Similarly, in Marc Rich
& Co v Bishop Rock Marine 19966 the House of Lords recapitulated
the three elements of the Caparo test for the obligation of a duty of care as
set out in the Caparo v Dickman 1990 case.
On the contrary, the
Watson V British Boxing Board of Control 20017 was a unique case as the
defendant owed a duty of care to the Claimant, and although the claimant was
conscious of the implications of rigorous sporting activities, inadequate
safety measures in hindsight “broke new ground” the liability was held by differing
courts over the years from 1999-2001 and although the damages were significantly
reduced from £1 million to £400,00. The defence of this decision was enough to
permit justice of finding liability as set out by the Caparo three-staged test-
the three preeminent elements were present; foreseeability, proximity and fair,
just and reasonable; outcome as exceptions for a duty of care to be held under
This essay will now
present how courts conserve their objective standard when determining whether a
defendant has breached their duty of care through the reasonable man approach,
this includes but not limited to the following two instances.
First, a renowned case
that concerns the reasonableness in the law of negligence, is that of the Blyth
v Birmingham Waterworks Co 18568 case, the judgement held
that the defendants could not have been negligent as it was unreasonable to
contemplate the circumstances of poor weather and therefore, through the test
of the reasonable man it was decided that such a rare occurrence could not have
been within the scope of the company’s duty of care and therefore not a breach.
Similarly, the second is
the case of Glasgow Corp v Muir 19439 whilst the manageress in
charge owed a duty of care to a certain extent. She did not owe a duty to take
additional precautions beyond that of the regular safety standards expected, as
it was out of the scope of reasonable probability. As such, Glasgow Corp did
not owe the child harmed a duty of care as they had not breached their obligation
and the case dismissed a non-preventable accident.
Furthermore, other measures
are taken in determining claims in negligence, for instance the Compensation
Act of 2006 has been used to stipulate certain factors that may be taken into
account by a court by regarding whether liability; may avert desirable activity
from being commencing at all, to a certain degree, precisely or; discourage
persons from taking on functions in relation with a preffered activity.
Moreover, two of the four
elements that remain when a Claimant wants to sue the defendant, must be made
out by the court for a claim to be made. Those are that the defendant’s breach
caused the claimant to suffer some kind of damage or loss; finally, at least
one of the losses that the defendant’s breach caused the claimant to suffer is,
actionable. Causation of damage refers to a form of damage or loss that is
recognised as compensatory in its own right. For instance, not mere anxiety and
grief, another requirement is that it must be sufficiently substantial injury. Principally,
‘factual causation’ is primarily considered through the ‘but for’ test; ‘but
for’ the breach of duty- rests where the injury would have materialised but for
the breach, the ‘but for’ test is not satisfied.
In the case of Barnett v
Chelsea & Kensington Hospital 196910 the ‘but for’ test implied
the end result; death of the deceased would have occurred for the act or
omission of the defendant, in this case yes as death was inevitable and beyond
the duty of the doctor. Thus, the claim was to be ceased as a cause of the
Finally, one of the four
elements; remoteness of damage is a measure of the certainty of injury/harm/loss
is contained within the scope of consequences for which liability is exhibited.
The remoteness of damage extends to the following; reasonable foreseeability of
damage and the chain of causation. Novus Actus Interveniens refers to
intervening acts that would break the chain of causation in hindsight; namely
intervening acts of the Claimant or of the third parties.
An instance where novus
actus interveniens of the Claimant took hold include the Corr v IBC Vehicles
200811 as a result of the
near-fatal work accident, the Claimant suffered prolonged physical and
psychological hardships. The House of Lords upheld this claim as it was
considered death within ‘compensable damage’. The aftermath of the accident
left the Claimant in a state of depression (clearly foreseeable), suicide was
considered a worldly-known trait of depression. The House of Lords with reason
came to conclude that whilst it could neither be labelled as reasonable or foreseeable,
the suicide did not break the chain of causation.
In summation then, the
main point is that the work of the English Courts is to uphold an objective
standard, especially in respects to claims in tort and negligence which can too
often be morally and ethically challenging. Th job of the courts is to maintain
impartiality and neutrality by use of the guidelines mentioned above, to
determine an outcome that will satisfy justice.