Overview of Negligence
COLLAPSE

Overview of Negligence
We started our journey into negligence with Winterbottom v Wright (1842) 10 M &W 109. In that case the plaintiff Winterbottom was working for the Postmaster General as a driver of mail coach supplied by the Postmaster and the defendant Wright was contracted by the Postmaster to maintain the coach in a safe state. One day the plaintiff was in the coach when it collapsed and suffered injuries as result. He tried to sue the defendant in negligence but was unsuccessful. The court held that the defendant already owed a duty of care in contract, it could not also have a duty of care in tort. This case took place during the infancy of the industrialisation in the 19th century when it was in public interest to encourage innovation and technology. Similar social engineering also saw the courts in that era shield employers from actions of injured workers which would explain why the plaintiff did not sue the Postmaster. But the main reason why negligence had such a limited application was because the courts were wary of the potential of allowing unlimited actions. Heaven v Pender (1883) 11 QBD 503 took place some 40 years after Winterbottom. This is an important case because this is where Brett MR tried to establish the general principles of duty of care and expand the concept to be applied in all situations. However the court instead found for the injured plaintiff based on a duty of care owed by an occupier of land to invitees. Nearly 100 years after Winterbottom came Donoghue v Stevenson (1932) AC 562 where Lord Atkin adopted Brett MR’s reasoning in Heaven v Pender and made famous the neighbour principle. The law changed as the court deemed manufacturers were in the best position to ensure the quality of the products. Winterbottom was decided some 90 years earlier and in the court’s view, there had been a shift in the society’s attitude toward an obvious social wrong. It should be noted that Donoghue v Stevenson was decided by a slim majority of 3:2 with the dissenting judges of Lord Tomlin and Lord Buckmaster still favouring the floodgate argument and the notion that no duty of care in tort could coexist with a duty of care in contract. It has been fashionable in the twentieth century to decry this fear of opening the floodgate. However it might be arguable that this fear has been realised in many jurisdiction where court lists are congested with personal injury actions based on the expanded notion of negligence. Grant v Australian Knitting Mills Ltd [1936] AC 85 was an Australian case decided a couple of years after Donoghue v Stevenson. The case involved a defective undergarment and the defendant manufacturer sought to limit the application of Donoghue v Stevenson. The injured plaintiff initially won the case in the Supreme Court of South Australia but the defendant then won it on appeal to the High Court of Australia before the Privy Council found for the plaintiff upholding the neighbour principle.

Law of Negligence
A plaintiff needs to prove on the balance of probabilities all of the following elements before he or she can obtain damages for a cause of action in negligence.
1. Duty of care: the plaintiff must show that the defendant owed the plaintiff a duty of care.
2. Breach of duty: the plaintiff must show that the defendant has breached a duty owed to the plaintiff by falling below the standard of care expected of a reasonable person in the position of the defendant.
3. Causation: the plaintiff must show that the defendant’s breach caused the injury or loss.
4. Remoteness of damage: the plaintiff must establish that the injury or loss caused by the defendant was reasonably foreseeable.
5. Defences: must be raised and pleaded by the defendant i.e. contributory negligence. Summary of Negligence Elements
Duty of care
- Reasonable foreseeability of risk of injury to others (whether it was reasonably foreseeable that any kind of conduct on the part of the defendant would create a risk or injury to the plaintiff).
- Reasonable foreseeability of a plaintiff as a person or class of persons to whom the duty of care is owed.
- Donoghue v Stevenson – Lord Atkin’s neighbour principle, manufacturer of food
- Grant v Australian Knitting Mills Ltd – manufacturer of clothing
- Shaddock v Parramatta City Council – negligent misstatement Duty/Standard of care was breached
- What would a reasonable person have done? Objective test
- Reasonable foreseeability of risk (it is a question of fact for the jury to decide whether a reasonable person in the defendant’s position would have foreseen that his or her particular conduct involved a risk of injury to the plaintiff as pointed by Mason J in Wyong Shire Council v Shirt)
- Probability of harm (Bolton v Stone)
- Seriousness of harm
- Practicability of taking precautions
- Conforming with established standards (Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29) Causation
- ‘but for’ test – Haber v Walker (1963) VR 339­
- Would the plaintiff have suffered the injury but for the negligent act of the defendant? Remoteness of damage
- The type or kind of damage must be foreseeable at the time of the defendant’s breach.
- If a defendant digs a hole in the ground but does not barricade it or put up signs to warn people about the hole and a plaintiff breaks his ankle by walking into the hole, the plaintiff could probably recover compensation for his broken ankle. If the plaintiff was a footballer and was about to sign a professional contract but for his broken ankle, it would probably be too remote to recover his financial loss as result of not being able to sign the contract. If a case is mentioned in the textbook and you would like to read the full judgement of the case, they can be accessed on the following websites:
Australian cases: http://www.austlii.edu.au/
UK cases: http://www.bailii.org/ Tort is usually a semester long subject where law students would spend 8 to 10 weeks learning about negligence. It is impossible to fit all that into two weeks and that is not what we are aiming to do here. All we want you to learn is a general understanding of negligence and the elements required so you are aware of your responsibility as a professional when giving advice after you graduate.