Negligence
“Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would do,
or doing something which a prudent and reasonable man would not do.”
-Blythe v Birmingham Waterworks [1856] Exch
781 at 784 per Alderson B
Negligence is the most common form of fault-based liability. Remedy for unliquidated
damages. For there to be negligence there has to be a breach of a legal obligation to
take care and this breach must result in damage to the plaintiff
Negligence Principles
1. Duty of Care
o Donoghue v Stevenson[1932] AC 562
o “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.”
o Proximity of relationship
o Reasonable foreseeability
o Kirby v Burke & Holloway [1944]
Duty of Care: English Developments
(a) Support for Donoghue
o England Home Office v Dorset Yacht Club [1970] AC 1004
o Lord Reid held:
o “...the taking by the trainees of a nearby yacht and the causing of damage to the
other yacht which belonged to the respondents ought to have been foreseen by
the borstal officers as likely to occur if they failed to exercise proper control or
supervision; in the particular circumstances the officers prima facie owed a duty
of care to the respondents...”
(b) Anns Decision: Two tier test
o Lord Wilberforce's two stage test:
“...in order to establish that a duty of care arises in a particular situation, it is not
necessary to bring the facts of that situation within those of previous situations
in which a duty of care has been held to exist. Rather the question has to be
approached in two stages. First one has to ask whether, as between the alleged
wrongdoer and the person who has suffered damage there is a sufficient
relationship of proximity or neighbourhood such that, in the reasonable
contemplation of the former, carelessness on his part may be likely to cause
damage to the latter—in which case a prima facie duty of care arises. Secondly,
if the first question is answered affirmatively, it is necessary to consider whether
, there are any considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed or the damages to
which a breach of it may give rise..."
o Anns v Merton London Borough Council [1978] AC 728
1st tier: Proximity of neighbourhood such that within reasonable contemplation of
Defendant that carelessness would result in injury;
2nd tier: Are there considerations that ought to reduce or limit the scope of duty?
(c) Caparo decision
o Caparo Industries Plc v Dickman [1990] AC 605
o Three tier test:
1. Relational proximity;
2. Reasonable foreseeability of injury;
3. Whether in all the circumstances of the case it is just and reasonable to
impose liability on the Defendant for the losses sought.
(d) Incremental approach
o “It is preferable in my view that the law should develop novel categories of
negligence incrementally and by analogy with established categories, rather than
by a massive extension of a prima facie duty of care restrained only by indefinable
considerations which ought to negative or to reduce or limit the scope of the duty,
and the class of person to whom it should be owed.”
-Sutherland Shire Council v Heyman
[1985] 60 ALR, per Brennan J.
Duty of Care: Irish Developments
(a) Broad approach to Donoghue
o McNamara v ESB [1975] IR 1
o W v Ireland and Others (No.2) [1997] 2 IR 141
“The view of the Irish courts has been that Anns was a ‘confirmation’ of the long
established principles of the law of tort contained in Donoghue v Stevenson and
was not (as some commentators in England seem to coincide) a major innovation
in the law of tort.”
o Ward v McMaster [1988] IR 337
“The proximity of the parties is clear: They were intended mortgagors and
mortgagee. This proximity had its origin in the Housing Act, 1966, and the
consequent loan scheme. This Act imposed a statutory duty upon the County
Council and it was in the carrying out of that statutory duty that the alleged
negligence took place ... the relationship between the first plaintiff and the County
Council created a duty to take reasonable care arising from the public duty of the
County Council under the statute. The statute did not create a private duty but
such arose from the relationship between the parties.”
(b) Glencar decision
o Glencar Explorations plc and Andaman Resources plc v Mayo County Council
(No.2) [2002] 1 IR 84
o More restrictive approach Similar to Caparo
o Establishes a four-test approach
o Glencar Explorations plc and Andaman Resources plc v Mayo County Council
(No.2) [2002] 1 IR 84
“Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would do,
or doing something which a prudent and reasonable man would not do.”
-Blythe v Birmingham Waterworks [1856] Exch
781 at 784 per Alderson B
Negligence is the most common form of fault-based liability. Remedy for unliquidated
damages. For there to be negligence there has to be a breach of a legal obligation to
take care and this breach must result in damage to the plaintiff
Negligence Principles
1. Duty of Care
o Donoghue v Stevenson[1932] AC 562
o “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.”
o Proximity of relationship
o Reasonable foreseeability
o Kirby v Burke & Holloway [1944]
Duty of Care: English Developments
(a) Support for Donoghue
o England Home Office v Dorset Yacht Club [1970] AC 1004
o Lord Reid held:
o “...the taking by the trainees of a nearby yacht and the causing of damage to the
other yacht which belonged to the respondents ought to have been foreseen by
the borstal officers as likely to occur if they failed to exercise proper control or
supervision; in the particular circumstances the officers prima facie owed a duty
of care to the respondents...”
(b) Anns Decision: Two tier test
o Lord Wilberforce's two stage test:
“...in order to establish that a duty of care arises in a particular situation, it is not
necessary to bring the facts of that situation within those of previous situations
in which a duty of care has been held to exist. Rather the question has to be
approached in two stages. First one has to ask whether, as between the alleged
wrongdoer and the person who has suffered damage there is a sufficient
relationship of proximity or neighbourhood such that, in the reasonable
contemplation of the former, carelessness on his part may be likely to cause
damage to the latter—in which case a prima facie duty of care arises. Secondly,
if the first question is answered affirmatively, it is necessary to consider whether
, there are any considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed or the damages to
which a breach of it may give rise..."
o Anns v Merton London Borough Council [1978] AC 728
1st tier: Proximity of neighbourhood such that within reasonable contemplation of
Defendant that carelessness would result in injury;
2nd tier: Are there considerations that ought to reduce or limit the scope of duty?
(c) Caparo decision
o Caparo Industries Plc v Dickman [1990] AC 605
o Three tier test:
1. Relational proximity;
2. Reasonable foreseeability of injury;
3. Whether in all the circumstances of the case it is just and reasonable to
impose liability on the Defendant for the losses sought.
(d) Incremental approach
o “It is preferable in my view that the law should develop novel categories of
negligence incrementally and by analogy with established categories, rather than
by a massive extension of a prima facie duty of care restrained only by indefinable
considerations which ought to negative or to reduce or limit the scope of the duty,
and the class of person to whom it should be owed.”
-Sutherland Shire Council v Heyman
[1985] 60 ALR, per Brennan J.
Duty of Care: Irish Developments
(a) Broad approach to Donoghue
o McNamara v ESB [1975] IR 1
o W v Ireland and Others (No.2) [1997] 2 IR 141
“The view of the Irish courts has been that Anns was a ‘confirmation’ of the long
established principles of the law of tort contained in Donoghue v Stevenson and
was not (as some commentators in England seem to coincide) a major innovation
in the law of tort.”
o Ward v McMaster [1988] IR 337
“The proximity of the parties is clear: They were intended mortgagors and
mortgagee. This proximity had its origin in the Housing Act, 1966, and the
consequent loan scheme. This Act imposed a statutory duty upon the County
Council and it was in the carrying out of that statutory duty that the alleged
negligence took place ... the relationship between the first plaintiff and the County
Council created a duty to take reasonable care arising from the public duty of the
County Council under the statute. The statute did not create a private duty but
such arose from the relationship between the parties.”
(b) Glencar decision
o Glencar Explorations plc and Andaman Resources plc v Mayo County Council
(No.2) [2002] 1 IR 84
o More restrictive approach Similar to Caparo
o Establishes a four-test approach
o Glencar Explorations plc and Andaman Resources plc v Mayo County Council
(No.2) [2002] 1 IR 84
