The Tort of Negligence

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“The categories of negligence are never closed”. [Lord Macmillan in

Donoghue v. Stevenson- (1932)]

The tort of negligence is a relatively recent phenomenon, which has

come to become the most dynamic and rapidly changing areas of

liability in modern law. Lord Macmillan’s assertion that “ the

categories of negligence are never closed” suggests how courts possess

the power to expand the area of liability by bringing in new duty

situations as a result of new set of facts coming is everyday.

As it is difficult to define negligence in simple terms, it can be

said that the ‘neighbour’ principle for duty of care, remains within

its wider social context one of the most important elements of


The courts had always been reluctant to provide remedy for claims

where there was no contract between the claimant and the defendant in

respect for policy consideration. The main reason put forward for this

was the so-called ‘floodgates’ argument. That the courts should not

allow a remedy in a particular case as it would open the doors to many

claims in similar situation. The same was accepted an obiter dictum by

Lord Buckmaster in his dissenting speech in Donoghue v. Stevenson.

Decided by a 3-2 majority of the House of Lords, Donoghue v. Stevenson

(1932) is regarded as the classic case in this regard, in part because

it laid down the foundational principle for the modern law of


However, this can be better understood by looking at the previous

cases that presided Donoghue v. Stevenson where in similar factual

circumstances negligence was not recognised.

In Bates v. Batey &Co. Ltd., the defendants, ginger beer

manufacturers, were held not liable to a consumer (who had purchased

from a retailer one of their bottles) for injury caused by the defect

in the bottle as it could have been avoided by exercise of reasonable


Like wise, in Winterbottom v. Wright, A contracted with B to provide a

mail-coach to convey the mailbags along a certain line of road.

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