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Negligence
Negligence is the most widely used tort in our civil legal system. For a claimant to successfully bring a claim in negligence they must prove the following three things;
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The defendant owed the claimant a duty of care
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The defendan was in breach of that duty
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As a result of that breach the claimant suffered damage
These requirements are sometime shortened to duty, breach & damage.
Duty of Care
The rule relating to duty of care came about in the famous case of Donoghue v Stevenson (1932). This extremely important case really established negligence as a tort in its own right for the first time. The video below gives an 'amusing' explanation of this very important decision!
Donoghue v Stevenson (1932)
Pictured below the memorial to the case in Paisley, unveiled in 1990.
 Ms Donoghue went into the Wellmeadow cafe in Paisley with a friend. The friend bought her a bottle of ginger beer which was in a opaque (dark) bottle. She drank some of the ginger beer then poured the rest out over her ice cream, and out came the decomposing remains of a snail! As a result she suffered a gastric complaint and nervous shock. She could not sue the cafe owner under the law of contract because she hadn't bought the ginger beer herself (it was purchased by her friend) and therefore she had no contract with the cafe. So instead she started an action against the manufacturer of the ginger beer using the tort of negligence. Ms Donoghue won her case in the House of Lords.
Lord Atkin gave his famous judgment defining negligence as;
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour"
Lord Atkin then explained that your neighbour (in law) was anyone who would be so directly affected by your act or omission that you ought reasonably to have them in contemplation.
To see a fuller version of Lord Atkin's statement (the neighbour principle) click here
Donoghue v Stevenson was concerned with a duty of care owed by a manufacturer of goods to the ultimate consumer of those goods. The concept of duty of care has been held to exist in numerous other situations, including for example,
The modern test for a duty of care
This is known as the Caparo test and comes from the case of Caparo Industries v Dickman (1990) where it was held that in order for a duty of care to exist it has to be shown that;
The leading case where it was held that the claimant did not have a sufficiently proximate relationship to the defendant and therefore the defendant could not reasonably be expected to have the claimant in mind was;
Bourhill v Young (1943)
 In this case a motorcyclist crashed into a car and was killed. Mrs Bourhill, who was pregnant, heard the crash but did not actually see it happen. She did see some blood on the road from the accident and as a result suffered shock and her baby was still-born, She sued the motorcyclist's estate, claiming that he owed her a duty of care. The court held that she was not owed a duty of care - she was not his neighbour - the motorcyclist could not reasonably foresee that she would have been affected by his actions. However, he did owe a duty of car to the car driver with whom he collided, as their relationship was sufficiently proximate.
Breach of Duty
The test to see if there has been a breach of duty is objective. This means that the defendant's conduct will be measured against the conduct of the 'reasonable man'. When considering whether the defendant's conduct fell below that of the reasonable man they will consider a number of risk factors as follows;
- The risk involved in the defendant's conduct
- The likelihood of harm
- the potential consequences of that harm
- The means by which the harm could be eliminated
- The fact that the risk may be justified in the public interest
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