KAMPALA CAMPUS

COURSE UNIT: TORT LAW II

LECTURER: MR. KANYIKE YUSUF BUULE
YEAR: LLB -2 EVENING STREAM -B
GROUP: GROUP 1
SEMESTER: TWO
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NEGLIGENCE [BREACH OF DUTY, DAMAGES]

 TABLE OF CONTENTS
Introduction .............................................................................................................................. 1
DUTY OF CARE. .................................................................................................................... 2
To Whom is a Duty of Care Owed? ....................................................................................... 5
BREACH OF DUTY OF CARE ............................................................................................. 7
Who is a reasonable person? ................................................................................................... 7
Variations in the objective test................................................................................................ 8
Applying the objective test .................................................................................................... 12
FACTORS TO CONSIDER WHILE DETERMINING THE STANDARD OF CARE 15
THE STANDARD OF CARE AND DIFFERENT CLASSES OF DEFENDANT .......... 17
DAMAGE/INJURY ............................................................................................................... 18
Problems in proving causation ............................................................................................. 19
Novus actus interveniens ....................................................................................................... 20
Damages caused duty to breach of duty of care .................................................................. 25
Reference ................................................................................................................................ 29

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 NEGLIGENCE

Introduction
According to Black’s law dictionary, negligence is the failure to exercise the standard of care
that a reasonable prudent person would have exercised in a similar situation. Any conduct that
falls below the legal standard established to protect others against unreasonable risk of harm
except for conduct that is intentionally wanton or wilfully disregarding of other’s rights.
Negligence is also defined in the case of Blyth vs. Birmingham Waterworks Co.1 as the
omission to do something which a reasonable man guided upon those considerations which
ordinarily regulate conduct of human affairs, would do or doing something a prudent/
reasonable man would not do.
Until 1932, common law did not recognise a cause of action in negligence as it exists today.
All there was an action on the case, which had developed to tame the harshness of the law of
trespass. A plaintiff could only have an action in negligence where there was a contractual
relationship between the plaintiff and the defendant.
The branch of law that we now know as negligence has its origins in one case, Donoghue v
Stevenson.2
Facts.
Mrs Donoghue and a friend went into a café for a drink. Mrs Donoghue asked for a ginger beer,
which her friend bought. It was supplied, as was customary at the time, in an opaque bottle.
Mrs Donoghue poured out and drank some of the ginger beer, and then poured out the rest. At
that point, the remains of a decomposing snail fell out of the bottle. Mrs Donoghue became ill
and sued the manufacturer.
In the case of Donogue v Stevenson, the cause of action of negligence was propounded by
Lord Atkin.
a) After reviewing the authorities on the question, he laid down the rule that
“A manufacturer of products which he sells in such a form as to show that he intends them to
reach the ultimate consumer in the form in which they left with no reasonable possibility of
intermediate examination, and with the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an injury to the consumers’ life or
property, owes a duty to the consumer to take reasonable care.”
b) The general principle was laid down by Atkin as he stated.
“In English law there must be and is some general conception of relations, giving rise to a duty
of care, of which the particular cases found in the books are but instances. The liability for
negligence whether you style it such or treat it as in other systems as a species of " culpa " is
no doubt based upon a general public sentiment of moral wrongdoing for which the offender
must pay. But acts or omissions which any moral code would censure cannot in a practical

1
(1856) 11 Exch 781.
2
[1932] EA 305.

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world be treated so as to give a right to every person injured by them to demand relief. In this
way rules of law arise which limit the range of complainants and the extent of their remedy.”
c) He propounded the neighbour principle to establish a duty of care.
“The rule that you are to love your neighbour becomes in law you must not injure your
neighbour; and the lawyer's question " Who is my ' neighbour?" receives a restricted reply.
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.
The case of Donoghue v Stevenson,3 is important in the sense that it establishes the concept
of negligence which is not, an abstract notion of carelessness, but a question of legal duty. The
duty is not established by contract or fiduciary relationship as in the era preceding Donoghue
v Stevenson but based on a duty of care created by law.
ELEMENTS.
Negligence is a tort constituted by the breach of a duty of care owed by the defendant the
plaintiff which results in the damage of the plaintiff. Therefore, the elements include;
 Duty of care owed by the defendant to the plaintiff
 Breach of duty of care
 Damage results to the plaintiff.

DUTY OF CARE.
The existence of a duty of care is an essential ingredient of negligence. Duty of care refers to
the circumstances and relationships which the law recognises as giving rise to a legal duty to
take care. A failure to take such care can result in the defendant being liable to pat damages to
a party who is injured or suffers loss as a result of their breach of duty of care. Therefore, it is
necessary for the claimant to establish that the defendant owed them a duty of care. Whether
or not one owes a duty of care to another is a question of law. This duty must also be owed to
the plaintiff. A person cannot take advantage of a duty that is owed to another.
Question of duty of care.
The question of whether a duty of care exists or not in a particular set of facts is a question of
law. In Donoghue v Stevenson, the duty was owed to the ultimate consumer by the
manufacturer because of the fact that there was no possibility of inspection by the distributor
or consumer.
In Mwananchi Service Station v Minga.
The landlord’s house was damaged by fire as a result of defective nature of petroleum products
supplied to his tenants. The defendants supplied petroleum products to a service station which
included kerosene. The kerosene was adulterated which resulted into fire.

3
Ibid.

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The manufacturer was held liable on ground that he owed a duty of care to the ultimate
consumer to ensure that the fuel products were not defective. In this case it was held to be
foreseeable that the plaintiff would suffer damage as a result of defects in their products. The
court of Tanzania pointed out that kerosene was a household product widely used in Tanzania
and such damage was foreseeable. The difficulty in the decision lies in the holding the service
station liable and yet there was no possibility of intermediate inspection.
In Grant vs Australia Knitting Mills.4
The defendant manufactured underwear. On one occasion they produced 4,737,600 of which
the plaintiff purchased when she wore it she developed dermatitis, which resulted in gentle
malfunctioning.
The court held that the duty of care was absolute and although all the others were not defective
the fact that one was defective was enough to establish a cause of action. The court did not take
into account the fact that the plaintiff did not wash the underwear before wearing it. It contained
excess sulphide. In this case the duty of care is analogous to a duty of guarantee but it is as of
necessity subject to the standard of reasonableness.
In Uganda, the liability is not practical. Uganda is an import economy. It imports most of the
products. The manufacturers are outside the jurisdiction. Ugandans are therefore consumers of
used goods. So, a lot happens between the manufacturer and the consumer. In Uganda it is not
practicable as a matter of evidence. Few people can even think of keeping some kerosene for
examination.
The duty of care for personal injury and property damage.
The existence of a duty of care for personal injury and property damage was originally decided
by Lord Atkin’s neighbour test from Donoghue v Stevenson.5
Lord Atkin in this case stated that;
“The rule that you are to love your neighbour becomes in a law you must not injure your
neighbour; and the lawyer's question " Who is my 'neighbour?" receives a restricted reply. 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.”
The duty therefore is the duty to take reasonable care not to injure your neighbour.
Requirements for establishing a duty of care in the neighbour test.
The neighbour test for establishing a duty of care can be broken down into two requirements.

 Reasonable foresight of harm.

Foreseeability determines whether a duty of care exists.

4
1936 AC 85.
5 [1932] AC 562.

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Application of reasonable foresight in establishing a duty of care was considered in Topp v
London Country Bus.6
Facts.
The defendant bus company left a mini bus in a lay overnight. It was unlocked and the keys
left in the ignition. The driver who was expected to pick the bus did not turn up for his shift.
Thieves stole the bus and drove it away. Unfortunately, the bus knocked a woman off her
bicycle and killed her. Her husband brought an action in negligence to recover damages.
Held; the bus company did not owe a duty of care for the acts of the third party. It was not
foreseeable that thieves would take the bus and run a woman off her bicycle.

 A relationship of proximity.
With Jaensch v Coffey, a new element of negligence was required to establish a duty of care
in cases where there isn’t an established duty of care, there is a requirement of proximity
between the parties, for negligence to lie. However, this has increasingly been put in doubt in
the cases of Hill v Van Erp and Perre v Apand, where the HC has raised grave doubts as to its
usefulness as a universal determinant of a duty of care.
In the case of Jaensch v Coffey,7
Deane J cited Lord Atkin’s explanation that,
‘where there is a chance for intermediate examination, of the bottle before it reached the
consumer, then there was no longer a requisite ‘proximity’ and that the consumer is no longer
within the class of ‘neighbours.’
That is Deane J cited that Lord Atkin stated that the duty of care based on reasonable
foreseeability would be too wide unless restricted by the notion of proximity.
The plaintiff’s husband had been injured due to the defendant’s negligence, in a motor cycle
accident. The plaintiff, having seen her husband struggling for life in the hospital, developed
severe anxiety and depression caused by her worry about her husband’s state of health over a
period of weeks. Mrs Coffey argued that it was reasonably foreseeable that a spouse would
suffer psychiatric disability as a result of injury to her husband.
However, the Court held that reasonable foreseeability alone was too broad a principle. It was
held that Mrs Coffey’s involvement at the hospital when her husband was injured, in the
aftermath was sufficient to satisfy proximity requirements. It was developed as a limitation on
the neighbour principle.
The question is what is involved in the notion of nearness and closeness. The HC held that
there were three kinds of relationships, which fulfilled this:
a) physical proximity (in the sense of space and time)
b) circumstantial proximity, such as an overriding proximity
c) causal proximity.

6 [1993]1 WLR 976.

7 (1984) 155 CLR 549.

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To Whom is a Duty of Care Owed?
 Consumers.
In Donoghue v Stevenson.8
The Court found that there was a sufficiently close relationship between the consumer and the
manufacturer to attract a duty of care. Ld Atkin enunciated the neighbour principle which
stated that there is a requirement to take reasonable care to avoid acts/omissions which you can
reasonably foresee will injure your neighbour. Further, a neighbour was held to be anyone who
is so closely and directly affected by your acts. They are people who you ought to reasonably
have in contemplation when acting or refraining from acting.
In Grant v Australian Knitting Mills9 [1932] AC 85 Dr Grant bought two pairs of underpants
and singlets. He developed an acute rash, and spent three months in hospital as a result, and his
doctor feared for his life. This was caused by an excess of sulphates The HofL, applying
Donoghue v Stevenson found that the manufacturer was liable. The manufacturer argued that
there was no duty of care, as there was an opportunity for intermediate examination.
However, the HofL held that as the defect was latent, Dr Grant couldn’t reasonably be expected
to know of the defect, and further, as the garments were worn as expected to be worn, there
was a duty of care.

 Road Users.
In Bourhill v Young.10
Young, a motorcyclist was killed in a motorcycle accident, due to his negligence. Bourhill was
a bystander, who was standing on the other side of a tram when the accident occurred. He sued
Young’s estate for nervous shock resulting from the accident.
The HofL held that whilst Young owed a duty of care to many, there was no such duty towards
an unseen bystander.
 Users and Purchasers of Premises.
Australian Safeway Stores v Zaluzna.11
Before this case, the duty of care owed to users of premises differed upon the category of the
user. For example, a different duty was owed to invitees compared to that owed to a trespasser.
Facts:
In this case, Zaluzna, upon entering Safeway store in an affluent Melbourne suburb, slipped
and fell on the floor, as a result of the floor being damp. She sued the store.
Held:

8
[1932] AC 562.
9
[1932] AC 85.
10
[1943] AC 92.
11
(1987) 162 CLR 479.

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The HC held that occupiers have a general duty to take reasonable care to safeguard from injury
to those who enter the land. The Court further held that the distinction between invitees,
licencees and trespassers was artificial, and thus, was abolished.

 School Children.
In Geyer v Downs.12
An eight year old child was hit on the head with a bat by another child when they were playing
before school. The Court held that the principal of the school owed a duty of care to its students,
and that this is to be fulfilled by providing supervision while the school gates are open.

 The Unborn Child.

Watt v Rama.13
The plaintiff’s mother was involved in a car accident whilst pregnant. The child was born with
brain damage as a result of the defendant’s negligence in the accident. The plaintiff argued that
her injuries occurred during the course of the accident, or because of it.
The Court held that the plaintiff was born with injury due to pre-natal negligence can sue. It
held that the duty of care involved a duty to take care not to injure a person where it is
reasonably foreseeable that the injury will occur.
In the current circumstances, a potential duty exists if and when the child is born. The actual
duty is crystallised when the child is born and acquires a legal identity.

 Rescuers.
Chapman v Hearse.14
The question in this case was whether Chapman had been contributorily negligent in relation
to Dr Cherry’s death, who was struck by Hearse when he was rescuing Chapman, who was
lying on the road as a result of a car accident caused by his negligence.
The Court held that the threshold for establishing a duty of care is low when dealing with a
rescuer, and thus, Chapman was contributorily negligent.
The Case of the Unforeseeable Plaintiffs.
Bourhill v Young.15
In this case, the plaintiff was unable to recover, as it was held that it was unforeseeable that an
unseen bystander would suffer from nervous shock as a result of an accident, and thus, no duty
of care existed.

12
(1977) 138 CLR 91.
13
[1972] VR 353.
14
(1961) 106 CLR 112.
15
[1943] AC 92.

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BREACH OF DUTY OF CARE
Breach of a duty of care essentially means that the defendant has fallen below the standard of
behaviour expected in someone undertaking the activity concerned, so, for example, driving
carelessly is a breach of the duty owed to other road users, while bad medical treatment may
be a breach of the duty owed by doctors to patients. In each case, the standard of care is an
objective one. The defendant’s conduct is tested against the standard of care which could be
expected from a reasonable person. This means that it is irrelevant that the defendant’s conduct
seemed fine to them; it must meet a general standard of reasonableness.16
For there to be negligence, there must be breach of duty of care. It may be found to exist where
the defendant fails to meet the standard of care required by law. Once it has been that the
defendant owed a duty of care, the claimant must also demonstrate that the defendant was in
breach of duty.
Test for breach of duty of care.
The test of breach of duty is generally decided by the objective test i.e. the defendant is
expected to meet the standard of a reasonable person.

Who is a reasonable person?

A reasonable person is defined as a hypothetical person used as a legal standard specially to
determine whether someone acted with negligence. A reasonable person is one who exercises
the degree of attention, knowledge, intelligence and judgment that society requires of its
members for the protection of their own and others’ interests. A reasonable person acts
sensibly, does things without serious delay and takes proper but not excessive precautions. The
most popular definition of the reasonable man is that he is the ordinary man, the average man,
or the man on the Clapham omnibus.17
The reasonable person belongs to a family of hypothetical figures in law including;
 The right-thinking member of the society.
 The officious bystander.
 The reasonable parent.
 The reasonable landlord.
 Fair-minded and informed observer
Such a “person” is really an ideal, focusing on how a typical person, with ordinary prudence,
would act in certain circumstances.
The test as to whether a person has acted as a reasonable person is an objective one, and so it
does not take into account the specific abilities of a defendant. Thus, even a person who has
low intelligence or is chronically careless is held to be the same standard as a more careful
person of higher intelligence.
In Vaughan v Menlove.18
This is a leading English tort law case that first introduced the concept of reasonable person.

16
Catherine Elliott and Frances Quinn, TORT LAW, 8th edition, page 106.
17
Ibid.
18
(1837) 3 Bing NC 467.

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Facts.
The defendant built a haystack near the boundary of his land which bordered the plaintiff’s
land. The defendant’s haystack had been built with a precautionary “chimney” to prevent the
hay from spontaneously igniting. He had been warned several times over a period of five weeks
that the manner in which he built the haystack was dangerous, but he said “he would chance
it.” Consequently, the hay ignited and spread to the neighbour’s property burning down two
of the plaintiff’s cottages.
Judgment.
 Trial
At trial the judge instructed the jury to consider whether the fire had been caused by gross
negligence on the part of the defendant and stated the defendant “was [duty} bound to proceed
with such reasonable caution as a prudent man would have exercised under such
circumstances.” The jury found the defendant negligent.
 Appeal
The defendant appealed the trials court’s verdict, arguing the jury should have instead been
instructed to consider “whether he acted bona fide to the best of his judgment, if he had, he
ought not to be responsible for the misfortune of nor possessing the highest order of
intelligence.”
The court, composed of Tindal CJ, park J and Vaughan J, rejected the defendants argument,
holding that the lower courts jury instructions were corrected and therefore affirming the
verdict. The court stated that to judge,
Whether the defendant had acted honestly and bona fide to the best of his own
judgement…would leave so vague a line as to afford no rule at all… [Because the judgements
of individuals are…] as variable as the length of the foot of each… we ought rather to adhere
to the rule which requires in all cases a regard to caution such as a man of ordinary prudence
would observe.
The court also viewed the “reasonable man” standard as supported by the long-settled principle
that persons must use their property so as not to harm that of other (sic utere tuo ut alienum
non laedas).

Variations in the objective test

The objective test can be variable and may depend on the circumstances of the particular
defendant or the situation. For example;
a) An amateur footballer is not expected to meet the standard of a footballer
in the first division.
In Condon v Basi.19

19
[1985]1 WLR 866.

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The Claimant suffered a broken leg during a tackle from the Defenders during a football match.
The Claimant was playing for Whitle Wanderers and the Defendant for the Khaiso Football
club. Both clubs wore in the Leamington local league.
The question for the court was the standard of care expected of a football player.
Held:
The standard of care varies according to the level of expertise the player has. The Defendant
was in breach of duty as the tackle was reckless even with regards the standard expected of a
local league player. Whilst a participant can be taken to accept the risks of injury inherent to
such sporting activities, they do not accept the risk of injury which occurs outside the rules of
the game.
According to Sir John Donaldson MR:
The standard is objective in a different set of circumstances. Thus, there will of be a higher
degree of care required of a player in a first division football match than of a player in a fourth
division football match.
b) The context of ‘horseplay’, there is a breach of duty of care only where the
defendant’s conduct amounts to reckless or a very high degree of
carelessness.
In Blake v Galloway.20
The claimant, a 15-year-old boy, was out with four of his friends including the defendant. The
boys started throwing pieces of bark chippings and twigs at each other. The claimant did not
join in at first but then threw a piece of bark chipping at the defendant hitting him in the leg.
The defendant picked it up and threw it back at the claimant. The piece of bark struck the
claimant’s eye resulting in serious injury. The claimant brought an action contending that the
injury was caused by the battery and or negligence of the defendant. The defendant raised
volenti non fit injuria. The trial judge rejected the defence of volenti but held that the damages
should be reduced by 50% under the Law Reform (Contributory Negligence) Act 1945. The
defendant appealed contending that there was no breach of duty and that the judge was wrong
to reject the defence of volenti. Held:
Appeal allowed into the context of ‘horseplay’ there is a breach of the duty of care only where
the defendant’s conduct amounts to recklessness or a very high degree of carelessness. The
defendant had consented to the risk of injury occurring within the conventions and
understanding of the game.
According to Lord Justice Dyson.
“If the defendant in the present case had departed from the tacit understandings or conventions
of the play and for example, had thrown a stone at the claimant, or deliberately aimed the piece
of bark at the claimant’s head, then there might have been a breach of the duty of care. But
what happened here was, at its highest, “an error of judgement or lapse of skill” (to quote
from Diplock L.J), and that is not sufficient to amount to a failure to take reasonable care in
the circumstances of horseplay such as that in which these youths were engaged. In my view,

20 [2004] 3 All ER 315.

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the defendant’s conduct came nowhere near recklessness or a very high degree of
carelessness.”
c) If the defendant is a professional, they will be held to the standard of a
reasonable person within that profession. This applies also to trainees.
In Willsher v Essex Area Health Authority.21
A premature baby was given too much oxygen by a junior doctor. The baby suffered from a
condition affecting his retina which left him totally blind in one eye and partially sighted in the
other. The condition could have been caused by the excess oxygen he had been exposed to or
it could have been caused by four other factors unrelated to the oxygen but related to the
premature birth.
The trial judge found the Health Authority liable. He applied McGhee v NCB but stated that
McGhee had reversed the burden of proof where there was more than one possible cause. The
Health Authority appealed.
Held: Appeal allowed.
The defendant was in breach of duty. A junior doctor owes the same standard of care as a
qualified doctor. McGhee did not reverse the burden of proof which always remains on the
claimant.
d) Likewise, a learner driver is expected to meet the same standard as a
reasonable competent qualified driver, otherwise be found in breach of
duty.
In Nettleship v Weston.22
Facts:
The defendant was a learner driver. She was taking lessons from a friend. The friend checked
that the defendant’s insurance covered her for passengers before agreeing to go out with her.
On one of the lessons Mrs. Weston turned a bend, Mr. Nettleship told her to straighten the
wheel but Mrs. Weston panicked and failed to straighten the wheel. She approached the
pavement and Mr. Nettleship grabbed the handbrake and tried to straighten the wheel but it
was too late. She mounted the pavement and hit a lamp post. Mr. Nettleship fractured his knee.
The defendant argued that the standard of care should be lowered for learner drivers and she
also raised the defense of volenti no fit injuria in that in agreeing to get in the car knowing she
was a learner, he had voluntarily accepted the risk.
Held:
A learner driver is expected to meet the same standard as reasonable qualified competent driver.
Volenti did not apply as he had checked the insurance cover which demonstrated he did not
wave any rights to compensation. His damages were reduced by 50% under the Law Reform
(Contributory Negligence) Act 1945 to reflect the degree to which he was also at fault.

21
[1988] 1 AC 1074.
22
[1971] 3 WLR 370.

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 e) Where there is divided opinion within a profession as to the appropriate
course of action in a particular situation then a defendant is not to be
treated as in breach of duty by following one body of opinion rather than
the other.
In Bolam v Friern Hospital Management Committee.23
The claimant was undergoing electro convulsive therapy as treatment for his mental illness.
The doctor did not give any relaxant drugs and the claimant suffered a serious fracture. There
was divided opinion amongst professionals as to whether relaxant drugs should be given. If
they are given there is a very small risk of death, if they are not given there is a small risk of
fractures. The claimant argued that the doctor was in breach of duty by not using the relaxant
drug.
Held:
The doctor was not in breach of duty. The House of Lords formulated the Bolam test.
“a medical professional is not guilty of negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that particular art….
Putting it the other way round, a man is not negligent, if he is acting in accordance with such
a practice, merely because there is a body of opinion who would take a contrary view,”
However, the opinion must be defensible and rooted in logic.
In Bolitho v City & Hackney Health Authority.24
Facts:
A 2-year-old child was admitted to hospital suffering from breathing difficulties. A doctor was
summoned but did not attend as her bleep was not working due to low battery. The child died.
The child’s mother brought an action claiming that the doctor should have attended and
intubated the child which would have saved the child’s life. The doctor gave evidence that had
she attended, she would not have intubated. Another doctor gave evidence that they would not
have intubated. The trial judge applied the Bolam test and held that there was no breach of
duty. The claimant appealed.
Held:
In applying the Bolam test where evidence is given that other practitioners would have adopted
the method employed by the defendant, it must be demonstrated that the method was based on
logic and defensible.
f) A child is not expected to meet the standard of a reasonable adult, but will
be judged by the standard of reasonable child of the same age.
In Mullin v Richards.25
Facts:

23
[1957] 1 WLR 583.
24
[1997] 3 WLR 1151.
25 [1998] 1 WLR 1304.

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In this case, two 15-year-old school girls were fighting with plastic rulers. A ruler snapped and
a splinter went into one of the girls’ eyes causing blindness. The girl brought and action against
the other girl for her negligent action.
Held:
The girl was only expected to meet the standard of reasonable d15-year-old school girl not that
of a reasonable man. She was found not to be in breach of duty.
The courts have not taken a consistent approach in relation to where the defendant’s conduct
is affected by illness. Compare the cases:
In Roberts v Ramsbottom.26
The defendant suffered a stroke whilst driving and knocked into a pedestrian.
Held:
The defendant was in breach of duty. He had to meet the standard of reasonable competent
driver no account could be taken of his illness.
However, in Mansfield v Weetabix.27
The defendant drove his lorry into a shop owned by the claimant. At the time of the incident
the defendant had a malignant insulinoma which resulted in him being in hyperglycemic state
although he was unaware of this. On the day of the crash, he had also been involved in minor
incidents.
Held:
The defendant was not in breach of duty
According to Leggatt L.J
“In my judgement the standard of care that Mr. Tarleton was obliged to show in these
circumstances was that which is to be expected of a reasonable competent driver unaware that
he is or may be suffering from a condition that impairs his ability to drive. To apply and
objective standard in a way that did not take account of Mr. Tarleton’s condition would be to
impose strict liability. But that is not the law.”
The inconsistencies are often explained on policy grounds, in that Roberts concerned personal
injury sustained by a pedestrian and thus a breach of duty was found in order to ensure the
victim was compensated whereas Mansfield involved property damage which would have been
covered by insurance.

Applying the objective test

In deciding whether the defendant has acted reasonably or is in breach of duty, the courts weigh
up four factors:
a) Likelihood of harm.

26 [1980] 1 WLR 823.

27 [1997] EWCA Civ 1352.

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The defendant is not expected to guard against events which cannot be foreseen.
In Roe v Minister of Health28
Facts:
Two claimants had been given an anaesthetic for minor operations. The anesthetic had been
contaminated with a sterilizing fluid. This resulted in both claimants becoming permanently
paralyzed. The anesthetic had become contaminated during storage. The anesthetic was stored
in glass ampoules which were emerged in the sterilizing fluid. It transpired the ampoules had
minute cracks which were not detectable with human eye. At the time it was not known that
the anesthetic could be contaminated in this way and the hospital followed a normal procedure
in storing them this way.
Held:
There was no breach of duty. The risk was not foreseeable as it was and unknown risk at the
time
b) Seriousness of harm.
In The Wagon Mound.29
Facts:
The defendant’s vessel, The Wagon Mound, leaked furnace oil at a wharf in Sydney Harbor
due to the failure to close a valve. Some cotton debris became embroiled in the oil and sparks
from some welding works ignited the oil. The fire spread rapidly causing destruction of some
…….and the wharf.
Held:
The defendants were in breach of duty Although the likelihood of harm was low, the
seriousness of harm was high and it would have cost nothing to prevent it.
According to Lord Reid:
In the present case the evidence shows that the discharge of so much oil on to the water must
have taken a considerable time, and a vigilant ship’s engineer would have noticed the discharge
at an early stage. The findings show that he ought to have known that it is possible to ignite
this kind of oil on water, and that the ship’s engineer probably ought to have known that this
had in fact happened before. The most that can be said to justify inaction is that he would have
known that this could only happen in very exceptional circumstances. But that does not mean
that a reasonable man would dismiss such a risk from his mind and do nothing when it was so
easy to prevent it. If it is clear that the reasonable man would have realized or foreseen and
prevented the risk then it must follow that the appellants are liable in damages. The learned
Judge found this a difficult case: he says that this matter is “one upon which different minds
would come to different conclusions.” Taking a rather different view of the law from that of

28
[1954] 2 WLR 915.
29
No.2 [1967] 1 AC 617.

13 | P a g e
the learned Judge, their Lordships must hold that the respondents are entitled to succeed on this
issue.
In Paris v Stepney30
Facts:
The claimant only had sight in one eye due to injury sustained in the war. During the course of
his employment as a garage hand, a splinter of metal went into his sighted eye, causing him to
become completely blind. The employer did not provide safety goggles to workers engaged in
the type of work the claimant was undertaking. The defendant argued that there was no breach
of duty as they did not provide goggles to workers with vision in both eyes and it was not
standard practice to do so. There was therefore no obligation to provide the claimant with
goggles.
Held:
There was a breach of duty. The employer should have provided goggles to the claimant
because the seriousness of harm to him would have been greater than that experienced by
workers with sight in both eyes. The duty is owed to the particular claimant not to a class of
persons of reasonable workers.
c) Cost of prevention.
In Latimer v AEC.31
Facts:
The claimant worked in the defendant’s factory and slipped up on the factory floor. The factory
had become flooded due to the adverse weather conditions. The defendants had put up warning
signs mopped up and placed sawdust in the most used places to make it as safe as possible. The
trial judge held that there had been a breach of duty as the defendants should have closed the
factory if it was unsafe. However, no argument had been advanced on this.
Held:
There was no breach of duty. There was no duty to close the factory. The defendant only had
to place reasonable precautions to minimize the risk which they had done. There was no need
to go to great expenses to eliminate any possible risk and this no obligations to close the factory.
d) Utility of the defendant’s conduct.
In Walt v Hertfordshire32
Facts:
The claimant was a fireman. A woman had been involved in a traffic accident and was trapped
underneath a lorry. This was 200-300 yards away from the fire station. The fire services were
called to release the woman. They needed to transport a heavy lorry jack to the scene of the
accident. The jack could not go on the fire engine and the normal vehicle for carrying the jack

30
[1951] AC 367.
31
[1953] AC 643.
32 [1954] 1 WLR 835.

14 | P a g e
was not available. The fire chief ordered the claimant and other firemen to lift the jack on to
the back of a truck. There was no means for securing the jack on the truck and the firemen were
instructed to hold it on the short journey. In the event the truck braked and the jack fell onto
the claimant’s leg causing severe injuries.
Held:
There was no breach of duty. The emergency of the situation and utility of the defendant’s
conduct in saving a life outweighed the need to take precautions.

FACTORS TO CONSIDER WHILE DETERMINING THE STANDARD OF CARE

Foreseeability of risk
The black’s law dictionary33 defines foreseeability as a reasonable or likely consequence of
an act. There is no obligation on the defendant to guard against risks other than those that are
within his/her reasonable contemplation. It would be unfair to make a defendant responsible
for the unforeseeable.
In Roe v Minister of Health34, where a patient became paralysed after being injected with
nupercaine, a spinal anaesthetic. This had been stored inside glass ampoules themselves stored
in a sterilising fluid, phenol. Evidence at the trial showed that the phenol solution had entered
the anaesthetic through hairline cracks in the ampoules, contaminating it and causing the
paralysis. There was no liability because such an event had not previously occurred and was
unforeseeable as a result.
Nevertheless, if the defendant is aware of the possibility of harm he must guard against it, and
it will be a breach of the duty of care to fail to.
Walker v Northumberland County Council35. Here a senior social worker had suffered a
nervous breakdown. His employers knew that he might suffer another breakdown when he
returned to work if the pressures of his work were too severe and stressful. They took
insufficient steps to reduce the pressures of his workload and, when he was again made ill, they
were in breach of their duty to take reasonable steps to avoid psychiatric injury knowing of his
state of health.
The magnitude of the risk
Wherever we owe a duty to another person we must all guard against the risk of doing harm.
This is only reasonable. The degree of caution that we must exercise will obviously be dictated
by the likelihood of the risk. The magnitude of the risk then can be balanced against the
extremes that must be taken in order to avoid it.
Bolton v Stone36. Miss Stone was standing outside a cricket ground and was hit by a cricket
ball that had been hit out of the ground. She was actually 100 yards from where the batsman
had struck the ball. The batsman was 78 yards from a 17 foot high fence over which the ball

33
2nd edition
34
[1954] 2 QB 66
35
[1995] 1 All ER 737
36
[1951] AC 850 HL
15 | P a g e
had travelled. This was quite incredible and it was shown that balls had only been struck out
of the ground six times in 28 years. There was no negligence. The cricket ground had done
everything reasonably possible to avoid risks of people being hit.
Lord Radcliffe identified the connection with the basic ‘reasonable man’ test:
‘the fact remains that, unless there has been something which a reasonable man would blame
as falling beneath the standard of conduct that he would set for himself and require of his
neighbour, there has been no breach of legal duty’.
The social utility of the activity
A defendant can sometimes escape liability in a case because it is possible to show that there
was a justification for taking the risk in question. This might be so for instance where the
defendant acts to avoid a potentially worse event.
Watt v Hertfordshire County Council37. A woman was trapped in a car crash. The fire station
summoned to the incident had a special heavy jack for using in such circumstances. It would
normally be taken to the scene properly secured in its own vehicle, but the vehicle was
elsewhere. The jack was taken unsecured in another vehicle because of the emergency and
when the driver was forced to brake sharply the jack moved injuring a fireman. There was no
negligence because the situation was an emergency and justified the risk.
The practicability of precautions
The reasonable man only has to do what is reasonable in order to avoid risks of harm. This
means that there is no obligation to go to extraordinary lengths, particularly if the risk is slight.
Latimer v AEC Ltd38. A factory became flooded after a torrential rainstorm. The water mixed
with oil and grease on the floor making the surface very slippery and dangerous. When the
water subsided sawdust was spread over the floors in order to make them secure. There was
not enough to cover the whole floor and Latimer slipped on an uncovered patch and was
injured. The House of Lords held that everything reasonable had been done in the
circumstances and, balancing out the possible risks, it was unreasonable to expect the factory
to be closed. It was held that there was no negligence.
Common practice
A negligent activity cannot be excused merely because it is common practice. Nevertheless,
the fact that something is generally practised may be strong evidence that it is not negligent,
otherwise it would not normally be carried out. This of course is not an absolute principle and
it will not necessarily be negligent merely to fail to follow common practice.
Brown v Rolls- Royce Ltd39. An employee contracted dermatitis. The employers provided
adequate washing facilities but they did not provide a barrier cream that was commonly used
in the industry. They were not negligent in not providing the barrier cream because it could not
be shown in the case that using the cream was guaranteed to prevent the condition.

37
[1954] 1 WLR 835
38
[1953] AC 643
39
[1960] 1 WLR 210
16 | P a g e
THE STANDARD OF CARE AND DIFFERENT CLASSES OF DEFENDANT
The standard of care is measured objectively but the courts have often looked at whether the
standard may differ according to the type of person who owes the duty.
Children
Traditionally there was little case law involving the standard of care owed by children. Case
law from other jurisdictions indicated that a child was not expected to have the same skill or
understanding as an adult and therefore the standard of care owed was that appropriate to the
age of the child in question.
McHale v Watson40. A 12-year- old boy injured a girl in the eye when he threw a steel rod at
a post. There was held to be no negligence.
This seems to be more of a subjective than an objective test but the English courts have tended
to follow it.
Armstrong v Cottrell41. The judge in this case was prepared to reduce damages for a 12-year-
old by a third because he felt that children of that age should know the Highway Code.
The disabled
Where a person is sick or suffering from a disability it is likely that the standard of care owed
is what would be appropriate in the case of the reasonable man suffering the same illness or
disability. It is inevitable that the same degree of care will not be expected as would for a person
in normal health. A person suffering from a disability of the mind may be liable for the torts he
commits if sufficiently aware of the quality of the act.
Morriss v Marsden42. Here the defendant was a schizophrenic who attacked a claimant and
was thus accused of battery. It was held that persons suffering from a mental illness could be
liable for intentional torts even if unaware that their actions were wrong if they knew the quality
of the act they committed.
Motorists
In general the same standard of care is expected of all motorists regardless of their age or
experience, and even of learner drivers.
Nettleship v Weston43. A learner driver on her third lesson crashed into a lamp post injuring
the person teaching her to drive. The Court of Appeal found that she was liable despite being
a learner driver.
In identifying that the standard of care of all motorists is the same and that there is no reduction
in the standard because of inexperience Lord Denning commented as follows:
‘[The law] requires of him the same standard of care as of any other driver. The learner driver
may be doing his best, but his incompetent best is not good enough. He must drive in as good

40
[1966] 115 CLR 199
41
[1993] PIQR P109 CA
42
[1952] 1 All ER 925
43
[1971] 2 QB 691
17 | P a g e
a manner as a driver of skill, experience and care, who is sound in mind and limb, who makes
no errors of judgment, has good eyesight and hearing, and is free from any infirmity.’
Denning identified in the case that this is probably to do with the fact that motorists are obliged
to carry compulsory insurance and therefore the degree of risk associated with the particular
class of driver can be reflected in the insurance premium they are expected to pay. The principle
might even extend to a motorist who becomes physically incapable of controlling the vehicle
because of a physical impairment.
However, a motorist will not be liable if he is unaware of the disabling condition that causes
the loss of control.
Mansfield v Weetabix Ltd44. Here it was held that the driver could not have reasonably known
of the infirmity that led to his loss of control and the subsequent accident so there was no fault.
People engaged in sport.
The standard of care appropriate to participants in sport is the ordinary standard of reasonable
care. The level of care required will depend on the circumstances of the case including whether
the player is a professional or an amateur.
Condon v Basi45. Here the ordinary standard of reasonable care was applied when a footballer
was injured in a dangerous and unacceptable tackle during an amateur football match. Sir John
Donaldson MR suggested in the case that a much higher degree of care would be expected of
a professional footballer.
Professional players are assumed to be more knowledgeable of the potential risks and
consequences of injury and are thus more likely to be found in breach of their duty of care to
fellow professionals.
McCord v Swansea City AFC Ltd and another, The Times46. Here a tackle by a player of
the defendant football club ended the claimant’s career. While the judge was not prepared to
consider the tackle as reckless, it was a serious mistake of judgement that amounted to a breach
of his duty of care to fellow players.

DAMAGE/INJURY
Besides proving the existence of a duty of care and breach of the same, the plaintiff must prove
that damage resulted from the breach of duty by the defendant. The two huddles to surmount
at this stage;
a) The plaintiff must establish that the damages are as result of the actions of
the defendant.
To demonstrate causation in tort law, the claimant must establish that the loss they have
suffered was caused by the defendant. In most cases a simple application of the ‘but for’ test
will resolve the question of causation in tort law, ie ‘but for’ the defendant’s actions, would the

44
[1997] PIQR P526
45
[1985] 2 All ER 453
46
11 February 1997
18 | P a g e
claimant have suffered the loss? If yes, the defendant is not liable. If no, the defendant is liable.
Causation may be problematic where there exists more than one possible cause. Various
formulations have evolved to ease the burden of proving causation in such situations.
The ‘But for’ test.
Causation is established by proving that the defendant’s breach of duty was, as a matter of fact,
a cause of the damage. To decide this issue the first question to be asked is whether the damage
would have occurred but for the breach of duty; this is known as the ‘but for’ test.
In Barnett v Chelsea & Kensington Hospital.47
Facts:
Mr. Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen
by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact
his GP in the morning. Mr. Barnett died five hours later from arsenic poisoning. Had the doctor
examined Mr. Barnett at the time there would have been nothing the doctor could have done to
save him.
Held:
The hospital was not liable as the doctor’s failure to examine the patient did not cause his death.
This case introduced the ‘but for’ test i.e., would the result have occurred but for the act or
omission of the defendant? If yes, the defendant is not liable.

Problems in proving causation

 Multiple causes – Successive.
Where there exist two causes occurring in succession it may be possible to identify the factual
cause of the damage. However, at times policy factors may come into play.
In Performance Cars Ltd v Abraham48 [1962] 1 QB 33 the appellant hit the claimant’s car
(a silver cloud Rolls Royce) as a result of his admitted breach of duty. Two weeks prior to this
incident, the rolls Royce had been in a previous incident whereby another negligent driver had
hit the car. As result of the previous incident, the car required a spray. The claimant claimed
£75 for the re-spray for the prior incident and obtained judgement by default. However, the
claimant has never received the sum. The claimant sought to claim the £75 from the appellant.
It was conceded that the claimant could not recover the same loss twice. The question for the
court was which defendant should pay or whether they should be jointly liable. Held:
The first defendant was responsible for the whole amount. The appellant was therefore
absolved from all liability to pay.

 Multiple causes – concurrent.

Where there exist two or more causes which operate concurrently, it may be factually
impossible to determine which one was the cause. This has proved problematic not least
because it is the claimant’s responsibility to establish which one was the cause. On general

47 [1969] 1 QB 428.
48 [1962] 1 QB 33.

19 | P a g e
principles the burden of proving this is on the balance of probabilities i.e., the claimant has to
demonstrate that there is more than a 50% likelihood of the cause being the breach of duty of
the defendant. Where there are two causes this means the burden of proof is impossible to
discharge leaving the claimant uncompensated often for an obvious breach of duty. Various
formulations have risen to circumvent the strict approach.
In Bonington Castings Ltd v Wardlaw.49
The claimant contracted pneumoconiosis by inhaling air which contained minute particles of
silica during the course of his employment. The defendant was in breach of a statutory duty in
failing to provide an extractor fan. Had they installed an extractor fan the number of particles
of silica that the claimant was exposed to would have been reduced. However, there would still
be some particles present. There were thus two possible causes: the guilty dust, which should
have not been in the working environment and the innocent dust, which would have been
present in any event.
The trial judge held that where the duty arose by statute then it was for the defendant to show
that his breach of duty (the guilty dust) did not cause the disease. As the defendant was unable
to do this, they were liable. The defendant appealed contending the burden of proof rests on
the claimant. Held:
The burden of proof remains on the claimant. However, the claimant only had to demonstrate
that the guilty dust had made a material contribution to the disease. He did not have to
demonstrate on the balance of probabilities that the guilty dust was the sole cause of the disease.
In Fairchild v Glenhaven.50
This was a conjoined appeal involving three claimants who contacted mesothelioma, a form of
lung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single fiber
of asbestos. The condition does not get worse the greater the exposure. Once the fiber has
embedded into the lung it can lay dormant for 30-40 years before giving rise to a tumor which
can then take 10 years to kill. It will be only the last 1-2 years where a person may experience
symptoms. By this time, it is too late to treat. Each of the claimants had been exposed to
asbestos by a number of different employers. They were unable to demonstrate, and medical
science was unable to detect, which employer exposed each of them to the one fatal fiber.
Held:
If the claimants could demonstrate that one employer had materially increased the risk of
contracting mesothelioma, they were entitled to claim full compensation from that one
employer.

Novus actus interveniens

 An intervening act of the claimant.51
This is very closely connected with contributory negligence. Unlike contributory negligence,
however, where the defendant is liable but damages are reduced by the extent to which the

49 [1956] AC 613.
50
[2002] 3 WLR 89.
51
Unlocking torts by Chris Turner page 97.

20 | P a g e
claimant is responsible for the harm he suffers, the plea here is that the claimant is actually
responsible for his own damage. Therefore, the chain of causation is broken and the defendant
has no liability at all.
Reeves v Commissioner of the Metropolitan Police.52
Facts:
In this case, police were holding a prisoner who was a known suicide risk. The prisoner did in
fact commit suicide. While the police accepted that they owed the claimant a duty of care, they
nevertheless denied liability, arguing a novus actus interveniens by the claimant himself. The
court rejected the argument, as the suicide was the specific act that the police should have been
seeking to prevent.
The European Convention on Human Rights (the right to life)53 might also be relevant in
such circumstances since authorities responsible for the care of a known suicide risk owe a
clear duty of care to do everything reasonable to avoid that suicide. Where they fail to take
adequate steps to prevent the suicide then the authority in question is likely to be in breach of
as well as liable for negligence.

 Act of 3rd party.54

Where the new act is of a third party, the test is whether the act was foreseeable. If the act of
the third party was foreseeable, the defendant remains liable and the chain of causation remains
intact if the act of a third party is not foreseeable this will break the chain of causation and the
defendant is not liable for the action of the third party.
In Home Office v Dorset Yacht Co. Ltd55
In this case, some young offenders were doing some supervised work on Brown Sea Island
under the Borstal regime. One night the Borstal officers retired for the evening leaving the boys
unsupervised. Seven of them escaped and stole a boat which collided with a yacht owned by
the claimant.
Held:
The Home Office owed a duty of care for their omission as they were in a position of control
over the 3rd party who caused the damage and it was foreseeable that harm would result from
their inaction.

 An act of nature.
A plea that an act of nature has broken the chain of causation will rarely succeed. The reason
for this is that the claimant in this instance is then left without any means of gaining a remedy
for the wrong suffered.

52
[1999] 3 WLR 363.
53
Article 2.
54
Unlocking Torts by Chris Turner, Pg 99.
55
[1970] AC 1004.

21 | P a g e
However, the defendant may well be relieved of liability in those situations where he can show
that the act of nature that he argues is breaking the chain of causation is unforeseeable and
independent of his own negligence.
Carslogie Steamship Co v Royal Norwegian Government.56
The claimant’s ship was damaged following a collision with a vessel of the defendant’s navy
and through the defendant’s fault. After a delay for repairs the ship then embarked on a voyage
it would not otherwise have taken. On that voyage the ship suffered further damage during a
heavy storm. The argument that the defendant should be liable for both the original damage
and the damage caused by the storm failed.
The House of Lords accepted that the storm was a genuine break in the chain of causation and
the defendant could not be held liable for the full extent of the damage. The storm damage was
not a consequence of the collision but was a quite separate occurrence that might have
happened on any voyage.
The following case suggests a high degree of foresight is required.
In lamb v Camden LBC.57
The defendant council negligently fractured a water pipe outside the claimant’s house. The
caused extensive damage and the property had to be vacated. One year later the council had
not undertaken the repairs. Squatters had also moved in and caused further damage. The
claimant arranged for repairs to be done herself and submitted a bit to the council for the repairs
and damage caused by the squatters.
Held:
The local authority was not liable for the acts of the squatters. It was not foreseeable that
squatters would move into an empty house in Camden and cause a damage despite the
prevalence of such behavior in Camden at the time.
Where the act of the third party was negligent, this is more likely to break the chain of
causation:
In Knightley v Johns & Ors.58
Facts:
As a result of Mr. John’s negligent driving his car overturned in a tunnel. Two police officers
on motorcycles arrived at the scene. The senior officer instructed them both to ride their
motorcycles to the other side of the tunnel and close the entrance to the tunnel as he had
forgotten to close it earlier. They took the decision of driving on through the tunnel on the
wrong side of the road on a blind bend rather than going the long way round. Unfortunately,
one of the officers, Mr. Knightly was involved in a head on collision with an oncoming vehicle
driven by Mr. Colton and sustained serious injuries. He brought an action against Mr. Colton,
Mr. John, the senior officer and the Chief Constable of West Midlands. The main contentious

56
[1952] AC 292
57
[1981] 2 All ER 408.
58

22 | P a g e
point was whether Mr. John remained liable or whether the actions of the other defendants and
the claimant amounted to a Novus actus interveniens.
Held:
The senior officer’s instructions and failure to close the entrance to the tunnel were negligent
and broke the chain of causation. The claimant’s decision in going through the tunnel was not
negligent. Thus, the claimant was entitled to full damages from the senior officer and Mr. John
was not liable.
b) That they are of a nature that is recoverable.
Even though a causal link can be proved factually according to the ‘but for’ test the claimant
may still be prevented from winning the case if the damage suffered is too remote a
consequence of the defendant’s breach of duty. The test is a matter of law rather than fact and
like other aspects of negligence is much influenced by policy considerations. The principal
justification for the rule is that the defendant should not be overburdened by compensating for
damage linked to the breach that is of a kind that is unlikely or unforeseeable.59
Remoteness of damage relates to the requirement that the damage must be of a foreseeable
type. In negligence claims, once the claimant has established that the defendant owes them a
duty of care and is in breach of that duty which has caused damage, they must also demonstrate
that the damage was not too remote.
Remoteness of damage is often viewed as an additional mechanism of controlling tortious
liability. Not every loss will be recoverable in tort law. Originally, a defendant was liable for
all losses which were a direct consequence of the defendant’s breach of duty.
In Re Polemis and Furness, Withy & Co.60
Charterers of a ship filled the hold with containers of benzene that then leaked during the
voyage, filling the hold with vapour. In port the ship was being unloaded when a stevedore
negligently dropped a plank into the hold. A spark then ignited the vapours and the ship was
destroyed. The arbitrator held that this was too unlikely a consequence of dropping the plank,
though some damage was of course foreseeable. The Court of Appeal held that the charterers,
as employers of the stevedores, were liable.
JUDGMENT
Scrutton LJ stated:
‘if the act would or might probably cause damage, the fact that the damage it in fact causes is
not the exact kind of damage one would expect is immaterial, so long as the damage is in fact
directly traceable to the negligent act’.
The test was not without its difficulties and it was criticised for its failure to distinguish between
degrees of negligence.

59
Unlocking torts by Chris Turner.
60
[1921] 3 KB 560.

23 | P a g e
In Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound
(No 1)).61
Due to the defendant’s negligence, bunkering oil was leaked into Sydney harbour from a
tanker. The oil floated on the water to the claimant’s wharf, mixing with various flotsam and
jetsam, including patches of cotton wadding. Welding was taking place in the wharf and the
claimant’s manager enquired whether there was a risk of the oil igniting. This was considered
unlikely since the oil had an extremely high flash point. Welding then continued and sparks
did in fact ignite the oil- soaked wadding and then set fire to ships being repaired in the wharf.
The oil also caused fouling to the wharf. The trial judge held that since some damage, the
fouling, was foreseeable, the defendants were liable also for the fire damage which was a direct
consequence of their breach of duty in allowing the spillage. The Privy Council reversed this
decision, holding that the defendant could not be liable for the fire damage since the correct
test for remoteness was reasonable foreseeability and, because of the improbability of the oil
igniting, the fire damage was unforeseeable.
JUDGMENT.
Viscount Simmonds explained the deficiencies in the traditional ‘direct consequence’ rule.
‘It does not seem consonant with current ideas of justice or morality, that for an act of
negligence, however slight or venial, which results in some trivial foreseeable damage, the
actor should be liable for all the consequences, however unforeseeable and however grave, so
long as they can be said to be direct.’
As a result, the test was later changed to one of liability for damage only that was a reasonably
foreseeable consequence of the breach.
The rule in Wagon Mound that the damages must be foreseeable has be qualified:
Applying the reasonable foreseeability test.
The critical element of the test in The Wagon Mound is foreseeability of the general rather than
the specific type of damage. It is not therefore necessary for the full extent of the damage to be
foreseen in order for there to be liability.
In Hughes v The Lord Advocate.62
Post Office employees working in a hole in the road negligently left a manhole uncovered
inside a tent and then left the tent unattended. As a safety precaution the workmen left four lit
paraffin lamps at the corners of the tent at night. A boy entered the tent with one of the lamps
and when it fell into the hole there was an explosion, the boy fell in also and was burnt.
This was an unlikely chain of events but the court nevertheless held the defendants liable since
some fire related damage was a foreseeable consequence of leaving the scene unattended. If
damage is foreseeable it will not matter that the damage is actually more extensive than might
have been foreseeable, provided that the kind of damage itself is foreseeable.

61
[1961] AC 388
62
[1963] AC 837.

24 | P a g e
Damages caused duty to breach of duty of care
a) Personal injury.
The Wagon Mound test does not apply in situations where there is personal injury. The
defendant has to take the victim as they fid them. (Thin skull / egg shell principle).
The Egg shell skull rule
A final aspect of remoteness of damage is the egg shell (or thin) skull rule. This means a
defendant must take their victim as they find them. i.e., if the victim is particularly vulnerable
or has a pre-existing condition resulting in them suffering greater injury than would be expected
in an ordinary person, the defendant remains responsible for the full extent of the injury.
In Smith v Leech Brain.63
Facts:
A widow brought a claim against the defendant under the Fatal Accidents Act for the death of
her husband. The defendant employed the husband. As a result of their negligence, he incurred
a burn to his lip. The lip contained pre-cancerous cells which were triggered by the injury
sustained. He died three years later from cancer.
Held:
The burn was a foreseeable consequence of the defendant’s negligence and this resulted in the
death. The defendant was liable for his death. It was not necessary to show that death by cancer
was foreseeable, not that an ordinary person would not have died from the injury. The egg shell
skull rule applies and the defendant must take his victim as he finds him.
In Page v Smith.64
Facts:
The claimant had suffered from ME over a period of the time and was in recovery when he was
involved in a minor car accident due to the defendant’s negligence. The claimant was not
physically injured in the collision but the incident triggered his ME and had become chronic
and permanent so that he was unable to return to his job as a teacher. He was successful at his
trial and awarded £162,000 in damages.
Held:
Provided some kind of personal injury was foreseeable it did not matter whether the injury was
physical or psychiatric. There was thus no need to establish that psychiatric injury was
foreseeable. Also, the fact that an ordinary person would not have suffered the injury incurred
by the claimant was irrelevant as the defendant must take his victim as he finds him under the
thin skull rule.
b) Injury without impact.
The law requires that psychiatric injury is a recognisable medical illness or disorder.

63
[1962] 2 QB 405.
64
[1996] 1 AC 155.

25 | P a g e
Primary victims.
A claimant is a primary victim if his/her life is in danger of physical injury resulting from the
negligent act of the defendant. What needs to be foreseeable is physical injury to such a
claimant, even if psychiatric injury could not be foreseen.
In Page v Smith.65
Fact:
The claimant had suffered from ME over a period of time and was in recovery when he was
involved in a minor car accident due to the defendant’s negligence. The claimant was not
physically injured in the collision but the incident triggered hi ME and he had become chronic
and permanent so that he was unable to return to his job as a teacher.
Held:
Provided some kind of personal injury was foreseeable it did not matter whether the injury was
physical or psychiatric. There was thus no need to establish that psychiatric injury was
foreseeable. Also, the fact that an ordinary person would not have suffered the injury incurred
by the claimant was irrelevant as the defendant must take his victim as he finds him under the
tin skull rule.
As regards secondary victims, they are not involved in the impact. Physical injury to them is
therefore not foreseeable. Psychiatric injury must be foreseeable. The law treats primary
victims differently from secondary victims. This is because nature does not limit the number
of people who can claim damages.
Secondary victims.
 If there is proximity in space and time in between them and the scene of the accident.
In Hinz v Berry.66
Facts:
The plaintiff drove out foe the day with her husband and children. They stopped in a lay-by to
have a picnic tea. The plaintiff crossed the road with one child to pick bluebells. A car driven
by the defendant, which was out of control, came along and crushed into the van where the
husband was making treat. Hearing the crash, the plaintiff turned around and saw the disaster.
Her husband was lying by the van so seriously injured that he died a few hours later. Most of
the children suffered injuries. The shock of witnessing the tragedy caused the plaintiff to suffer
pro-longed morbid depression.
Held:
The plaintiff was entitled to recover damages for the recognizable psychiatric illness by the
shock of witnessing the accident resulting from the defendant’s negligence.
 There is proximity in the time and space or if you experienced the immediate aftermath.

65
[1995] 2 ALL ER 736; [1996] 1 AC 155.
66
[1970] 2 QB 40.

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MCLoughlin v OBrian & Ors.67
Facts:
The plaintiff’s husband and three children were involved in a road accident caused by the
negligence of the defendants. One of the children died, and the rest were severely injured. Tat
the time of the accident, the plaintiff was at her, home, two mils away. She was told of the
accident and was taken to the hospital where she saw the injured members of her family and
the extent of the injuries they had sustained and heard that her daughter had died. She suffered
severe persisting nervous shock as a result.
Issue:
Whether a person who was not present at the scene of grievous injuries to her family, but comes
to know about those injuries at an interval of time and space, can recover damages for nervous
shock.
Held:
The plaintiff was entitled to recover damages because even though she was bot at or ear the
scene of the accident at the time or shortly afterwards, the nervous shock he suffered was a
reasonably foreseeable consequence of the defendant’s negligence. There was proximity. There
was proximity through sight and hearing of immediate aftermath.
 The victim must have experienced the accident with their own unaided senses.
Alcock & Others v Chief Constable of South Yorkshire Police.68
Scenes from the ground were broad cast live on television and radio from time to time during
the course of a disaster that took place shortly before a football stadium resulting into deaths
and injuries. Relatives of the victims in this disaster brought an action to recover damages
arsing out of psychiatric illness that they alleged to have suffered after seeing or hearing the
broadcast or being informed by friends.
Issue
Whether the claimants were entitled to damages.
Held:
A person would recover damages only if he satisfied both tested of reasonable foreseeability
that he would be affected by psychiatric illness as a result of the consequences of the accident
because of his close relationship of love and affection with the primary victim and; the test of
proximity between the plaintiff and the accident.
A plaintiff can only recover if:
His relationship to the primary victim was sufficiently close that it was foreseeable that he
might sustain nervous shock if he apprehended that the primary victim had been or might be
injured.

67
[1982] 2 ALL ER 298.
68
[1991] 4 All ER 907.

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His proximity to the accident in which the primary victim was involved or; its immediate
aftermath was sufficiently close both in time and space.
He suffered nervous shock through seeing or hearing the accident or its immediate aftermath.
 The injury must result from sudden trauma.
In Alcock & Others v Chief Constable of South Yorkshire Police69 court further stated that
“…Conversely, persons who suffered illness not caused by sudden nervous shock through
seeing the accident or its immediate aftermath…did not satisfy the tests pf foreseeability and
proximity to enable the recover.”

c) Economic loss.
Economic loss in negligence is financial loss such as loss of earnings or loss of profit. Where
a defendant acted negligently causing physical injury, economic loss can only be claimed for
loss of a profit which is an immediate result of the physical injury to a person or of their
property.
“Pure economic loss” is where the claimant has lost money or profit as a result of the
defendant’s negligence but has not suffered any physical harm or damage, e.g. losing money
by following negligent investment advice
In Cattle v Stockton Waters.70
Facts:
A goldmine was flooded through the defendant’s action. Worked in that mine sued the
defendant who caused flooding to mine for loss of income.
Held:
Court made a distinction between those workers who just lost income and those who lost tools.
Those who merely lost income didn’t recover damages because this was a pure economic loss.
Those lost tools recovered damages.
Weller v Foot and Mouth Disease Research Institute.71
In consequences of the escape pf a virus imported by the defendants and used by them for
experimental work on foot and mouth disease. Because of the disease, an order was made
closing cattle markets in the district, with the result that the plaintiffs, who were auctioneers,
were temporarily unable to carry on their business at those markets ad suffered loss. The court
was required to assume that the loss to the plaintiffs was foreseeable and that there was
negligence on the part of the defendants which cased the escape of the various.
Issues:

69
Supra.
70
(1875) LR 10 QB 453.
71
[1996] 1 QB 569.

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Whether in law, an action for damages would lie for the loss.
Held:
The defendants were not liable in negligence, because their duty of care to avoid the escape of
the virus was due to foreseeable fact that the virus might infect cattle in the neighbourhood and
thus was owed to them by the defendants.

Reference
Case law
The black’s law dictionary 2nd edition
Unlocking torts by Chris Turner 4th edition

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