Tort - Negligence - Duty Of Care

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Introduction to the tort of negligence

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Negligence emerged in the 19th/20th Centuries, evolving from a number of diverse forms of action.

Covers many different forms of behaviour and rights.

The connecting feature is that a defendant has failed to exercise the level of care which the law deems he owes to the plaintiff.

Unusual in the common law: general principle (duty of care) formed basis of law, not individual precedents.

However, now the approach is often quite common law based: looking to cases for principles.

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Elements of negligence

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a. Duty of care;
b. Breach of duty;
c. Damage;
d. Causation;
e. Lack of defence.

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Duty of care

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Legal liability of a defendant to a plaintiff is based on the defendant’s failure to fulfil an obligation or duty.

In negligence, this obligation is termed the “duty of care”.

“Duty” and “liability” should not be confused: the former is one element of the latter.

Note that there are two elements to the duty of care: proximity (closeness between Pl and Def in time, space, relationship, etc.) and reasonable foreseeability (the Def must be able to reasonably foresee damage to the Pl).

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Historical development in England and Wales - The neigbour principle

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The establishment of the general principle was in Donoghue v. Stevenson (1932), where Lord Atkin set out the neighbour principle: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be 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 in question”.

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Historical development in England and Wales - Anns and the "Two Stage Test".

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In Anns v. Merton London Borough Council (1978), Lord Wilberforce held that:

i. It was now established that negligence cases did not need to fit into older precedents where a duty of care had been established.

ii. The test is as follows: (a) is there such proximity that the Def should reasonably foresee that carelessness is likely to case the Pl damage, (b) is there a consideration which negate, reduce or limit the scope of the duty?

Although framed a scientific test (proximity, then policy), this actually involves policy value judgements at every stage – proximity cannot be scientifically calculated – so this is no more of a “test” than Lord Atkin’s formulation.

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Historical development in England and Wales - Caparo and the "Three Stage Test".

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In Caparo Industries v. Dickman (1990), the HL refined the test further, as follows:

i. there must be sufficient proximity;

ii. the harm must have been reasonably foreseeable;

iii. the imposition of a duty must be fair, just and reasonable in the circumstances.
This approach is virtually identical to the two-stage test (difference = proximity and foreseeability are separated out, and the neutral language removes the pro-plaintiff slant).

NB: Byrne and Binchy criticise the third limb, as policy is already used to apply stages (i) and (ii), thus rendering the third limb redundant.

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Historical development in Australia England and Wales - the incremental approach.

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In Sutherland Shire Council v. Heyman (1985 – aus), Brennan J. set out a test whereby new categories of duty could be created only by analogy to already extant ones. This has been cited with approval on numerous occasions by the HL, including in Caparo, and has been highly influential since. It significantly reduces the potential for the spread of the tort of negligence, and is often criticised as being too restrictive and artificial.

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Historical development in Ireland

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First approval of neighbour principle = Gavan Duffy J. in Kirby v. Burke & Holloway (1944): he relied on both Donoghue and on the writings of Oliver Wendell Holmes, who had written in his general theory of liability that the crucial element was a failure to act as a prudent man would have acted.

American influence disappeared subsequently, and our courts appeared to follow the English approaches.

In Ward v. McMaster (1988), Anns was approved, and the majority rejected the incrementalist approach.

Glencar v. Mayo County Council (2001): Facts – Pl had a mining licence, Def put in motion a development plan banning mining, rendering the Pl’s licence obsolete. Court held that Def had acted ultra vires. New proceedings for damages arising out of ultra vires.

Glencar v. Mayo County Council (2001): Decision –

i. ultra vires gives rise to damages only where actor was knowing, negligent or malicious;

ii. thus, crucial question: was there a duty of care?

iii. much weighing up of English case law; adopted three-stage test, with an incremental element. This has been criticised, as the three-stage approach can function independent of analogy with previously accepted areas of negligence law. However, the general tenor of the case is that our approach to the duty of care is less restrictive than the English approach now.

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Kirby v. Burke & Holloway (1944)

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Gavan Duffy J.:

First approval of neighbour principle, relied on both Donoghue and on the writings of Oliver Wendell Holmes, who had written in his general theory of liability that the crucial element was a failure to act as a prudent man would have acted.

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Ward v. McMaster (1988)

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Anns was approved, and the majority rejected the incrementalist approach.

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Glencar v. Mayo County Council (2001)

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Facts – Pl had a mining licence, Def put in motion a development plan banning mining, rendering the Pl’s licence obsolete. Court held that Def had acted ultra vires. New proceedings for damages arising out of ultra vires.

Decision –

i. ultra vires gives rise to damages only where actor was knowing, negligent or malicious;

ii. thus, crucial question: was there a duty of care?

iii. much weighing up of English case law; adopted three-stage test, with an incremental element. This has been criticised, as the three-stage approach can function independent of analogy with previously accepted areas of negligence law. However, the general tenor of the case is that our approach to the duty of care is less restrictive than the English approach now.

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Policy Considerations

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Judicial decisions often involve making decisions on matters of public policy.

In the realm of duty of care, this requires a policy choice on (a) whether the duty exists, or (b) the extent of the duty.

The following are policy issues which influence the judiciary in establishing the duty of care:

(i) Public expectations and reliance
(ii) Self-responsibility
(iii) Responsibility for others
(iv) Public Interest
(v) The integrity of other legal rules
(vi) Administration of Justice
(vii) Constitutional rights and convention rights

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Public expectations and reliance

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Services provided by public bodies and private individuals generate an expectation as to the standard of their provision.

These expectations add weight to an argument that there is a duty of care.

Also, there is usually an imbalance of power: the special skill of the provider leads to dependence by the availer of the service.

Counterbalancing this is the notion that the legal duty should not hamper the provision of the services.

Example: public dependence on medical services places a duty on doctors, but this duty should not be so onerous as to discourage doctors from providing the service.

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Self-responsibility

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Sometimes, a person is party responsible for his own injuries.

This leads to considerations such as contributory negligence, assumption of risk, and causation.

The question sometimes arises whether any duty at all exists, because a person is fully responsible for the damage.

Example 1: fire-fighters assuming the risk of inhalation: are they owed a duty of care?

Example 2: owners of property may be held to be responsible for it, despite intervening carelessness by others.

Self-responsibility also considered in cases involving soldiers: does the job involve self-responsibility? Yes, but there is still a duty of care on their employers not to carelessly cause their injuries, albeit a lower standard of care.

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Doherty Timber v. Drogheda Harbour Commissioners (1993)

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Pl had permission to leave a cargo of timber on a quay which was also a public thoroughfare; no security personnel were engaged to protect the goods; they were set on fire by children.

Flood J. held that the Pl, as owner, was responsible for the goods in the absence of bailement (= leaving goods in the care of another person temporarily). Simply leaving goods on another’s property did not negate self-responsibility.

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McComiskey v. McDermott (1974)

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SC held that engaging in rally driving = self-responsibility; duty of care owed to a nagivator lower than the duty owed by a normal road user.

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Phillips v. Durgan (1991)

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Despite the fact that a rescuer assumes responsbility, a person who negligently creates a situtation requiring a rescuer then owes a duty of care to a rescuer – self-responsibility partly overlooked.

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Responsibility for others

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Two discrete issues: (a) a certain relationship creating a duty toward a related person, and (b) a certain relationship creating a duty for the actions of a related person.

Policy is dispensed in different ways:

Example 1: for a person’s children: (a) there is a duty of care for their protection, but (b) there is no responsbility for a person’s children’s torts.

Example 2: for a person’s employees: (a) there is a duty of care for their protection, and (b) there is responsbility for an employee’s torts.

Interesting area = a mother’s duty of care towards her foetus. Society expects her to care for it, but still wants to respect the woman’s autonomy. Canadian SC in Dobson v. Dobson (1999): the imposition of a duty in respect of not drinking, not smoking, not driving dangerously would be contrary to public policy.

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Public interest

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Policy consideration go beyond justice for the individual litigants: broader implications are also considered.

Classic example = floodgates arguments (i.e. the courts being flooded with unmeritorious claims or defendants undergoing economic disaster).

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Marc Rich v. Bishop Rock Marine (1996)

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Pl owned cargo which was lost when a ship sank. They recovered some loss from the ship owners, and claimed the rest from various Defs, including a maritime classification society whose surveyor had negligently said the ship was fit to sail despite a crack in the hull. HL: contrary to public policy to impose imposition on the society – it was independent, non-profit, and saved public expense; its sole purpose was safety at sea. Imposing a duty in this case would add expense to all maritime cases; also, the Pl could recover losses elsewhere (insurance etc.).

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The integrity of other legal rules

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Respect for existing rules of law can constrain the courts in recognising a duty of care.

Interaction between tort and contract: Kennedy and Others v. AIB (1996): Pl sued in both contract of tort because the Defs failed to advance money in respect of property transactions, and failed to inform Pl that money would not be forthcoming. SC: contractual relationship was sufficient to give rise to a duty of care in torts, but only to the extent of the contract – not further. Pls had a choice as to which type of action to pursue, but the choice would not affect the legal obligation: this is dictated by contract. Under Hedley Byrne, an extra agreement could give rise to extra duty, but there was no such agreement here.

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Leigh & Sillavan v. Aliakmon (1986)

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Pl suffered economic loss because cargo they had agreed to buy was damaged by the Defs. Clearly a case where a duty of care could be established, but the rule of bailment provided that, to have locus standi, proprietary rights had to be shown (which they had not, because the purchase had not occurred yet). HL: refused to extend duty of care. Decision debatable, but illustration of the courts’ right to prefer existing legal rules over new duties of care.

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Kennedy and Others v. AIB (1996)

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Pl sued in both contract and tort because the Defs failed to advance money in respect of property transactions, and failed to inform Pl that money would not be forthcoming.

SC: contractual relationship was sufficient to give rise to a duty of care in torts, but only to the extent of the contract – not further. Pls had a choice as to which type of action to pursue, but the choice would not affect the legal obligation: this is dictated by contract.

Under Hedley Byrne, an extra agreement could give rise to extra duty, but there was no such agreement here.

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Administration of justice

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Individual justice sometimes has to give way to the proper administration of justice.

Example: barrister’s immunity for liability in negligence (see Topic 1.5)

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Constitutional rights and convention rights

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Rarely referred to in negligence cases.

Glencar’s requirement for a Pl to articulate clear policy reasons for an extension of duty of care, these rights may be invoked more in tort.

Incorporation of ECHR in 2003 bolsters Convention rights, and enhances the Convention as a policy tool in duty of care arguments (although constitutional rights still far more pervasive generally in our courts).

Constitutional point also raised in

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Kelly v. Minister for Agriculture (2001)

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Pl’s signature forged by officers of the Def at a beef processing plant, leading to trial for an offence; trial judge acquitted him. Preliminary hearing held to establish whether the Def owed the Pl a duty of care under (a) common law, or (b) the Constitution.

Applying two-stage test (pre-Glencar), HC found that there was a duty of care in tort – proximity etc. Obiter, Butler J. noted that interference with the plaintiff’s liberty would give rise to a “constitutional duty”. Butler J. treated common law and constitutional law separately, but one could easily be incorporated into the other to extend the duty of care.

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Barristers' Immunity

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5 Barrister’s immunity

 Individual justice sometimes has to give way to the proper administration of justice.
 This provides the basis for the barrister’s immunity from liability in negligence.
 It may seem that the relationship of dependence on the advocate gives rise to a duty of care, but actions by clients would undermine the administration of justice in two ways:
 (a) it would lead to losers in trials then questioning their advocate, implicitly questioning the court’s final decision, and
 (b) it would hamper the advocate’s input because he is concerned about insulating himself from a professional negligence action.

 In addition, the barrister has certain public duties which distinguish him from other professionals. Costello P. in HMW v. Ireland (1997) held that a barrister’s primary (“overriding”) duty is to the court in its administration of justice. Even if it is in his client’s interest, a barrister must not mislead the court or withhold documents etc. Because of this public duty, policy requires that a barrister be immune from suit.

 Qualification: immunity applies only to advocacy (DC = Sol, CC up = Barr) and the necessary preparatory paperwork, not to non-advocacy work such as advice on legal implications of transactions etc.


 The law in Ireland is now uncertain: HL says no immunity, but on the basis of the mistaken ECtHR; Australia is casting doubts over barrister’s immunity.
 Public policy concerns leading to immunity extends to judges, witnesses and expert witnesses, all in the interest of the administration of justice, however to differing degrees. These other actors in the justice system are viewed separately from advocates, so a change to one immunity would not necessarily affect others.

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HMW v. Ireland (1997)

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Costello P. held that a barrister’s primary (“overriding”) duty is to the court in its administration of justice.

Even if it is in his client’s interest, a barrister must not mislead the court or withhold documents etc.

Because of this public duty, policy requires that a barrister be immune from suit.

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Hall v. Simons (2000)

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HL abolished barrister’s immunity and opted to view the issue on a case-by-case basis. Part of the reasoning was the fact that policy concerns could be met with less drastic measures than immunity from suit.

However, Hall was based on Osman v. UK (1999), where ECtHR held that dismissal of a claim against the police on the grounds of public policy immunity infringed the right of access to the courts.

The ECtHR later stepped backwards in Z v. UK (2001), saying it had misunderstood the nature of public immunity.