The Tort of Negligence

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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also contracted to horse the coach along the same line and his
co-contractors hired C to drive the coach. Held was that C could not
maintain an action against A, for an injury sustained by him while
driving the coach, by its breaking down from latent defects in its
construction as there was no direct contract between A and C. This was
mainly due to the well-established principle that no one other than a
party to a contract can complain of a breach of that contract.

The facts of Donoghue v. Stevenson were such where the appellant drank
a bottle of ginger beer, manufactured by the respondent, which a
friend had bought from a retailer and given to her. The bottle
contained the decomposed remains of a snail, which were detected after
the greater part of contents of the bottle had been consumed. As a
result the appellant alleged to have suffered shock and severe
gastroenteritis. She sought to recover damages and brought proceedings
against the manufacturer in negligence claiming that he had failed in
his duty to provide an efficient system of inspection of the bottles.

In his accenting judgement Lord Atkin claimed such liability to be an
important problem because of its bearing on public health. His famous
‘neighbour principle’, as it is known, laid down the factors upon
which the liability of negligence can be established. This is to say
that you must take reasonable care to avoid acts or omissions, which
you can reasonably foresee, would be likely to injure your neighbours
(described as persons who are closely and directly affected by ones

Lord Macmillan held in that a manufacturer knows that the consumer
will consume his goods. In such cases where there are no alterations
to the product from the manufacturer to the consumer, the manufacturer
does come under a duty of care towards the final consumers.

Subsequent cases such as Anns v. Merton and Home Office v. Dorset
Yacht Co. Ltd. can be cited to better explain the duty of care
principle. In the later case, the Home Office said that the neighbour
principle was applicable in all cases where there was no justification
or valid explanation for its exclusion. The HoLs held the Home Office,
through its careless officers, did owe a duty of care-foreseeable
harm. Where as in Anns case, although overruled on its facts set out
to establish the principle of proximity, consideration that might
reduce liability or scope of the duty or class of persons whom it is
owed or the damages etc. The case that overruled Anns, Caparo v.
Dickman in it, criticized the expansion of liability. It used an
incremental approach based on forseeability, ‘proximity’ and
‘fairness’- (which can be shown where there is forseeability of
damage, that the claimant and defendant were in a relationship of
proximity and that it would be fair, just and reasonable to impose a
duty where the first two conditions are satisfied).

Hence, today, there is the equally well-established doctrine that
negligence apart from contract gives a right of action to the party
injured by that negligence. Of this the best illustration is the right
of the injured railway passenger to sue the railway company either for
breach of the contract of safe carriage or for negligence in carrying
him. And there is no reason why the same set of facts should not give
one person a right of action in contract and another person a right of
action in tort.

Donoghue v. Stevenson hence confirmed negligence as a separate tort in
its own right, and claim for negligence can exist whether or not there
is a contract between the manufacturer and the injured party. Hence
the ratio decendi was formulated, where a claim for negligence will
succeed if the claimant can prove the defendant owes a duty of care to
the claimant, that there should be a breach of that duty by the
defendant; and resulting damage should not be too remote. That is to
say there should be casual link between the defendant and the injury.

So basically the effects of Donoghue v. Stevenson have been extremely
wide. Since its establishment as a separate tort, it has not only
increased available remedies but also taken over a lot of other fields
where it would not have applied before. Policy decisions and the need
to limit the opening of floodgates have forced the courts to take
retroactive steps and limit its scope. This by no means as correctly
stated by Lord Macmillan closes the doors on future developments in
negligence. Negligence claims and categories will develop depending on
the facts and the situation in every individual case.
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