UoL Intro To Tort - Ch1to4

Law of Tort
Ian Yeats
Paula Giliker
Mary Luckham
2005
LLB 2660001
BSc Accounting with Law / Law with Accounting 2770201
BSc Management with Law / Law with Management 2770201
This subject guide was prepared for the University of London External
Programme by:
Ian Yeats, MA (Aberdeen), BCL, MA (Oxford), Barrister, Senior Lecturer in Law, Queen Mary
College, University of London.
Paula Giliker, MA (Oxon), BCL, PhD (Cantab), Barrister at Law, Fellow and Senior Law Tutor, St
Hilda's College, Oxford.
Mary Luckham, LLB, Assistant Director, University of London External Laws Programme.
This is one of a series of subject guides published by the University. We regret

that owing to pressure of work the authors are unable to enter into any
correspondence relating to, or arising from, the guide.
If you have any comments on this subject guide, favourable or unfavourable,

please use the form at the back of this guide.
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Contents
Chapter 1 Introduction 5
Chapter 2 Negligence: basic principles 13
Chapter 3 Negligence: duty of care and breach of duty 17
Chapter 4 Negligence: causation and remoteness
of damage 31
Chapter 5 Negligence: special problems 51
Chapter 6 Negligence: particular relationships 75
Chapter 7 Breach of statutory duty 89
Chapter 8 Particular statutory regimes: strict liability 99
Chapter 9 Intentional injuries to the person 119
Chapter 10 Interference with economic interests 139
Chapter 11 The law of nuisance and the rule in
Rylands v Fletcher 151
Chapter 12 Defamation 175
Chapter 13 Miscellaneous 201

Chapter 1 Introduction
Contents
Introduction 5
1.1 Definition, aims and functions of tort 6
1.2 Sources 7
1.3 Recommended reading 9
1.4 How to use this subject guide 10
1.5 The examination 10
Introduction
On the impossibility of a definition of tort
Tort is a branch of the civil law (as opposed to criminal law) based
see Murphy (2003) p.3: Winfield and
on a claim that the defendant has caused injury or loss to the
Jolowicz (2002) p.4; on the aims or
claimant by breaking a relevant obligation imposed by the general
functions of tort see Winfield and Jolowicz
law. This definition tells you nothing about what conduct is
(2002) pp.1–17; Markesinis and Deakin
tortious. You will understand that only when you know what
(2003) pp.1–7 and 37–41.
counts as injury or loss and what obligations the law imposes.
Very broadly, tort law is one of the methods by which people who
have suffered injuries are compensated. It deals with whether losses
should lie where they fall or should be transferred to someone
thought to be ‘to blame’ (not necessarily in a moral sense) for what
has happened. Of course the person ‘to blame’ will often be insured
or will be a large company or government department and so the
losses will often be spread more widely. For example, when a
person is injured by a careless motorist, the motorist’s insurance
company will pay the damages and the ultimate costs of the
accident will fall on the general community who pay insurance
premiums.
Broadly speaking, the law of tort took its present shape in the
nineteenth century although of course it has developed
considerably since then. Those interested in a historical
introduction may refer to Lunney and Oliphant pp.1–17; Winfield
and Jolowicz pp.44–50.
Objectives of this subject guide

By the end of this subject guide, you should be able to:
describe the relationship between tort and certain other branches of law
explain the relationship between different torts and the bases of liability in
each tort
identify the principal policy difficulties with the contemporary law of tort

Law of tort
identify and describe the sources of law relevant to tort.
1.1 Definition, aims and functions of tort

1.1.1 Structure of tort
There is no single principle of tort law but a series of different torts
with different origins and purposes They protect a number of
different interests against different kinds of interference (usually by
compensation for the consequences – that is, damages; but
sometimes by an order to stop – that is, an injunction).
In studying each tort (and even each element in each tort) you
should ask yourself:
what interests are being protected
and against what sorts of interference (see below).
For example, the tort of defamation (see Chapter 12) protects the
distinct interest of reputation: in respect of some elements liability
is strict and in respect of others liability depends on proof of fault.
What interests are protected by the law of tort?

The law of tort protects to different degrees and in different ways
the physical integrity of the person, property interests, reputation
and economic interests. There are arguments about how far it
should protect other interests, such as a person’s right to privacy.
In many torts material damage has to be caused before there can be
an action. In others there is no need for material damage to the
claimant, but one of the claimant’s rights has been interfered with.
It is for instance an actionable tort deliberately to touch another
person (subject to many defences) even though no damage is
caused (see Chapter 9) and to defame someone in writing even
though no damage is caused (see Chapter 12). In such cases the
tort is said to be actionable per se (i.e. in itself).
What kind of conduct by the defendant accompanied by what kind Note: ‘tortious’ is pronounced ‘torshus’.
of mental state is tortious if it produces an invasion of a relevant
interest? Liability may be:
strict (e.g. consumer protection legislation): liability does not
depend on proof of fault on the defendant’s part
based on negligence by defendant
based on intentional conduct by defendant
based on the ultimate motive or purpose of the defendant
(rare in English law).
Relations between tort and other forms of liability

Some tortious conduct is at the same time illegal in some other
sense (e.g. criminal): a person who deliberately strikes someone
else commits both a tort and a crime. But tort and other forms of
illegality do not wholly coincide. Some action is tortious but is not
criminal or illegal in any sense other than being tortious: conversely
some conduct is illegal (e.g. criminal or unlawful in a public law
sense) but is not tortious even if it causes loss or damage (this point
is developed more fully in Chapter 7).
The relationship between tort and breach of contract is also of
interest. The distinction between the two has usually been
6 University of London External Programme

explained in this way. Tort involves the breach of an obligation

imposed by the general law (if I knock you down by carelessly
driving my car, I am liable to compensate you because the law
imposes a duty to drive carefully and not because I have promised
you that I will do so). Breach of contract involves the breach of an
obligation voluntarily undertaken by the person in breach (if I fail
to deliver the car that you have bought from me, I am liable to
compensate you because I have failed to carry out my promise).
This distinction is however not watertight. In particular in recent
decades a whole area of tort law has developed based on a
voluntary assumption of responsibility (see liability for mis-
statements in Chapter 5) and this has blurred the traditional
distinction between tort and contract.
1.1.2 Policy questions

You should consider as you study this subject a number of policy
questions related to the purposes to be served by the law of tort.
Examples are:
How should the law of tort relate to alternative sources of
compensation? (See Winfield and Jolowicz pp.20–43 and
Markesinis and Deakin pp.44–54.) The main sources are the
social security system and insurance either by potential
claimants (e.g. life insurance) or by potential defendants (e.g.
car insurance). You are not expected to know the details of
these systems but their existence affects (and perhaps should
affect more) the content of tort law, and the relation between
different sources of compensation is relevant to the calculation
of damages (see Chapter 13).
How far should liability be based on fault? (See Markesinis
and Deakin pp.41–44).
To what extent should public bodies be liable for failures in
regulatory systems? (See Chapter 5).
1.2 Sources
In your study of this subject, you will have to consider the following
sources of law.
Cases
Most of the law of tort is judge-made and is to be found in reported
cases. This process is continuing and you should think about the
direction in which the courts are moving as well as the content of
decided cases (see, for example, the developments in relation to
economic loss, in Chapter 5). In answering a question, as in
advising a client or employer, you have to be able to judge how a
court might decide a future case as well as describing what has
been decided in past cases. You should also consider how
appropriate judge-made law is as a source of new developments.
Compare the willingness of the courts to be creative in relation to
economic loss (see Chapter 5) and their refusal to be so in relation
to environmental protection (see Chapter 11). Some cases are
merely illustrations and applications to particular facts of well-
established principles: they can be used as illustrations in handling
problem questions in examinations. Other cases are the source of
important principles: the judgments are discursive, discuss issues of
Law of tort
policy and suggest lines of development for the future. These cases
have to be studied with more care. The ability to identify important
cases increases with experience, but you can be guided by the way
in which particular cases are discussed in the textbooks.
Statutes
Some statutes replace or partly replace areas of the common law
(e.g. Occupiers’ Liability Acts 1957 and 1984); some provide
additional protection over a wide field (e.g. Consumer Protection
Act 1987); some effect minor amendments only.
Impact of European Community law

The impact has been slight on the law of tort. The Consumer
Protection Act 1987 gives effect to a Community directive and there
is potential for development in employers’ liability and
environmental protection. The tort of breach of statutory duty
(Chapter 7) might be developed to provide remedies for certain
infringements of community law.
Impact of the Human Rights Act

The Human Rights Act 1998 gave effect in domestic law to the
European Convention on Human Rights (ECHR) with effect from
October 2000. It is now a much more pervasive source of the law
of tort than is Community law. You will be familiar with the
general principles of the ECHR from your study of the British
Constitution. You will find references to the ECHR at various
points in this guide. It is convenient to set out now some relevant
general principles: in some respects the ECHR has introduced new
ways of thinking into the domestic law.
(a) Section 6 of the Human Rights Act 1998 makes it unlawful for a
public authority to act in a way which is incompatible with a
Convention right. This section therefore has its greatest impact
where the defendant to a tort action is a public authority such as a
local council.
(b) The courts are however themselves public authorities: they
therefore have to take account of the ECHR in developing the law
even in tort actions between private citizens or private bodies such
as companies to ensure that the United Kingdom is not in breach of
the ECHR. This is perhaps most obvious in relation to the tort of
defamation (Chapter 12) and Art 10 ECHR (freedom of
expression).
(c) The ECHR is based on a series of Convention rights of a general
kind that have to be respected. This is an unfamiliar kind of
classification in English law. In order to provide compensation for
an interference with Convention rights the courts may do one of the
following:
They may apply an existing tort. If a public authority in
England kills someone (contrary to Art 2) or tortures someone
(contrary to Art 3) this plainly falls within the existing English
law of tort.
They may modify an existing tort. For example, Art 2 requires
the state to provide protection against being killed and Art 3
requires the state to provide protection against inhuman and
degrading treatment. An existing English tort may have to be

modified in order to provide the necessary protection. See in

particular Chapter 5.
They may create a new right of action in damages: this is
analogous to the existing tort of breach of statutory duty. This
is discussed more fully in Chapter 7. It should be noted that
section 8 of the Human Rights Act 1998 provides that a person
is not entitled to an award of damages merely because a public
authority has acted unlawfully under the ECHR, and the court
has a discretion to decide whether an award is necessary in a
particular case.
1.3 Recommended reading

There are several textbooks of different lengths on the law of tort. It
is suggested that you use at least one of these:
Markesinis and Deakin Tort Law. (Oxford: Clarendon Press, 2003) fifth
edition [ISBN 0199257124 (hbk); 0198762933 (pbk)].
Murphy, J. Street on Torts. (London: Butterworths, 2003) eleventh edition
[ISBN 0406946825].
Rogers, W.V.H. (ed.) Winfield and Jolowicz on Tort. (London: Sweet &
Maxwell, 2002) sixteenth edition [ISBN 0421768606].
These are quite lengthy and explore topics in greater depth and
with more background than is essential, and also cover topics
which are not included in your syllabus. Reference may also be
made to:
Howarth, D. Textbook on Tort. (London: Butterworths, 2004) second edition
[ISBN 0406959463].
Useful collections of cases and materials:
Hepple, Howarth and Matthews Tort: cases and materials. (London:
LexisNexis, 2000) fifth edition [ISBN 0406063265].
Lunney, M. and K. Oliphant Tort Law; Text and Materials. (Oxford: OUP
2003) second edition [ISBN 0199260559].
Weir, T. A Casebook on Tort. (London: Sweet and Maxwell, 2004) tenth
edition [ISBN 0421878800].
Shorter and/or more introductory books include:
Giliker, P. and S. Beckwith Tort. (London: Sweet and Maxwell, 2004)
second edition [ISBN 0421859806].
Mullis, A. and K. Oliphant Torts. (Basingstoke: Palgrave Macmillan, 2003)
[ISBN 0333963792].
McBride, N. and R. Bagshaw Tort Law. (Harlow: Longman, 2005) second
edition [ISBN 027368678X].
These give an overview of the subject and its role but are not
sufficiently detailed to serve as textbooks. A stimulating socio-legal
work which addresses many of the policy issues (see ‘Policy
questions’ on page 7) is:
Cane, P. Atiyah’s Accidents, Compensation and the Law. (Cambridge
University Press, 2004) sixth edition [ISBN 0521606101].
although it is not suitable as a textbook.

Law of tort
It would be sensible to buy one of the standard textbooks referred

to and, especially if you do not have access to a library, one of the
casebooks. Many cases are decided each year on this subject: you
will find helpful notes on recent cases in the leading academic
journals such as:
the Modern Law Review (MLR)
the Law Quarterly Review (LQR)
the Cambridge Law Journal (CLJ).
These journals may also contain general articles of interest. Judges
increasingly make reference to such articles in developing principles
in new or difficult areas of law. Such articles also frequently draw
attention to the way in which particular problems are dealt with in
other countries with similar problems.
1.4 How to use this subject guide

This subject guide is not a textbook or even an introduction to the
subject. It is intended to direct you through the subject and to give
an indication of how to tackle each topic. It would be sensible to
read through each chapter of this guide to identify the main topics
with which it deals and any particular problems or policy issues and
then to read the relevant sections in the textbooks. More detailed
guidance is given in the chapters of this subject guide where the
law is in a state of development than in those where the law is
fairly well settled. You should be able to identify from this reading
the most important cases in more detail (see also under ‘Sources’
on page 7). The cases in this guide are not necessarily listed in
order of importance: there are of course many more relevant cases
than are referred to here.
The introductory chapters of the books (and this chapter of the
guide) deal with a number of issues. It is not wise to try to learn
these at once. These should be read quickly now so as to get an
idea of what the subject is about: some questions can be identified
(see ‘Policy questions’ on page 7) which should be kept in mind as
the substance of the subject is studied. The introductory chapters
should be considered more carefully when the whole subject has
been digested; then, some of the issues raised will make more
sense.
1.5 The examination

Most important
Important: the information and advice given in the following
Examination questions DO NOT ask you to
section are based on the examination structure used at the time this
write down everything you know about a
guide was written. However, the University can alter the format,
topic.
style or requirements of an examination paper without notice.
Because of this, we strongly advise you to check the instructions on Your aim should be to answer the
questions that the examiners have asked,
the paper you actually sit.
and use only material relevant to those
You are likely to be asked to answer four questions in the questions.
examination from a selection of about eight. They are of two kinds.
Problem questions
You will be given a set of facts and either asked to advise one or
more of the characters or to discuss issues of tortious liability which
arise. You must avoid simply identifying the subject matter of the
problem (for example, ‘negligent mis-statements’) and writing all
you know about it. Before writing, you should analyse the facts
carefully to work out the relation between the parties and the legal
issues to which they give rise. You can then select the legal
principles which are relevant and marry the facts and the legal
principles into a logically structured answer. You do not literally set
out your answer in the form of advice but you must remember that
you are solving a problem and not simply writing an account
of a particular area of law. Most problems contain at least some
issues where the law is not entirely clear; you have to identify these
and suggest the solution to which you think a court will be likely to
come and give your reasons for doing so. Problem questions
seldom relate only to material in a single chapter. You may expect
to have to answer questions that involve more than one tort or
involve issues that are discussed in different chapters. In this guide
specimen questions are not found at the end of every chapter.
Essay questions
Such questions rarely ask for a straightforward account of a Why ‘critically’?
particular topic. They ask you to write critically about a particular Because the examiners want to see if you
topic, to compare one topic with another, to suggest reforms and understand the subject well enough to
improvements, to analyse the reasons which lie behind particular write about it as a lawyer would –
areas of law and so forth. sometimes a particular point of view has
to be argued and sometimes you have to
In both kinds of question the most common error is irrelevance. write from both sides of the issue.
You must identify the precise issues(s) raised and direct your
answer to it (them).
Example of an examination question

‘The role of strict liability in the law of tort should be greatly increased.’
Discuss.
You can look at previous years’ exam questions and examiners’

comments on them in the University of London External
Programme Laws web site.

Law of tort
Notes

Chapter 2 Negligence: basic principles
Contents
Introduction 13
2.1 Structure of the tort 13
2.2 Organisation of the chapters 14
2.3 Policy questions 14
Introduction
Negligence is the most important modern tort: its study should
occupy about half the course. It is important because of the great
volume of reported cases and because it is founded on a principle of
wide and general application. This chapter explains the basic
structure of the tort and describes the organisation of the material
in subsequent chapters.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
understand that the tort of negligence is structured on the concepts of duty
of care, breach of duty and resulting non-remote damage
indicate some of the social and policy questions that have influenced the
development of the tort of negligence.
2.1 Structure of the tort

Negligence of course means carelessness, but in 1934 Lord Wright
said:
‘In strict legal analysis, negligence means more than heedless or
careless conduct, whether in omission or commission: it properly
connotes the complex concept of duty, breach and damage thereby
suffered by the person to whom the duty was owing.’ (Lochgelly Iron
and Coal Co v McMullan [1934] AC 1 at 25)
This sentence encapsulates the traditional tripartite structure of

negligence as a tort. It is not enough to show that defendant was
careless: the tort involves a breach of duty that causes damage
that is not too remote. Each of the emboldened words will in due
course require detailed examination. The successful claimant in a
negligence action must establish three propositions:
(a) that the defendant owed the claimant a duty of care. The
claimant will in some circumstances be the only person to whom
the duty was owed (a surgeon and patient for example): in others

Law of tort
the claimant will be a member of a very large and possibly ill-

defined class of persons to whom the duty was owed (a car driver
and other road users).
(b) that the defendant broke the duty of care. This means that the
defendant’s conduct fell below the standards that the law demands.
(c) that as a result of the breach the claimant suffered damage of a
kind that the law deems worthy of compensation.
However these propositions are not rigidly separate. They are
convenient for the purpose of explaining the law, but they overlap
to a great extent. Occasionally, but not very often, a court will
indeed explicitly organise its judgment under these three headings.
There is an example in Al-Kandari v Brown [1988] QB 665, referred
to in Chapter 4. In other cases however a judge might on the same
set of facts deny liability on the grounds that no duty was owed and
another deny liability on the grounds that, although a duty was
owed, it had not been broken. An issue such as the scope of liability
for economic loss has sometimes been regarded as part of the duty
question and sometimes as part of the remoteness of damage
question. You will find other examples where a single set of facts
can be analysed in different ways.
2.2 Organisation of the chapters

Negligence is now a tort of great size and complexity. Most
textbooks set out the questions of duty, breach, causation and
remoteness in that order. This often means that some of the most
complex issues are dealt with at great length under the heading of
‘duty of care’. Other textbooks are organised differently.
In the chapters that follow in this guide the material on negligence
is organised in the following way:
Chapters 3 (duty and breach) and 4 (causation and
remoteness of damage) offer a general overview of the tort of
negligence, illustrated mainly, but not exclusively, by cases
involving careless conduct giving rise to death, personal
injuries or damage to property.
Chapter 5 deals with more complex areas that have been the
subject of much litigation in recent decades: liability for
careless advice or information; liability for psychiatric injuries
and for purely economic damage; liability for failures to take
action to avoid harm; liability for failures of supervisory or
regulatory functions.
Chapter 6 deals with the liability of two particular categories
of defendants: that of occupiers towards those on their
premises, and that of employers towards their employees.
2.3 Policy questions

The law of negligence has undergone enormous change and
development in the past 50 years. Mostly this has involved an
expansion of liability, but quite often the courts have retreated and
cut back on the extent of liability. This in turn leads to
inconsistency and uncertainty. The reasons for this are complex,
but they have in part to do with conflicting policy objectives. The

Chapter 2 Negligence: basic principles
importance of understanding these policy objectives and the way

that they are contributing to the development of the law was
explained in Chapter 1.
Here are some of the most important philosophical and policy
issues that you should keep in mind and refer to as you prepare the
material in the next four chapters.
The underlying idea in a negligence action is very simple. If
the claimant’s injuries result from behaviour that falls short of
socially acceptable standards, then there should be
compensation. If they do not, then the victim should bear the
loss without compensation. Since carelessness is not generally
criminal, the tort of negligence is the means by which the law
attaches consequences to unacceptable behaviour. Lord
Diplock once described negligence as the ‘application of
common sense and common morality to the activities of the
common man’ (Doughty v Turner Metal Manufacturing Co
[1964] 1 QB 518, noted in Chapter 4). In a number of recent
cases the House of Lords has based its conclusions for or
against liability by reference to what people generally would
regard as fair. See for example Alcock v Chief Constable of
South Yorkshire (Chapter 5) and Rees v Darlington Memorial
Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309
(Chapter 3). The public view of what is fair may change over
time. One question to consider is how far the law correctly
reflects a public sense of fairness.
One consequence however of the emphasis on fault is
uncertainty. It may be difficult to get agreement as to
whether the defendant was careless, and entitlement to
substantial compensation may depend on the strength of the
evidence before the court or (since all except a very tiny
proportion of negligence claims for personal injuries are
settled by negotiation or agreement) the strength of the
bargaining positions of the parties. The ability to obtain
compensation may also depend on the financial resources
available to the defendant. A high proportion of successful
claims are in areas (medical, road and industrial accidents for
example) where defendants are either rich or are insured.
One purpose of the tort might be thought to be to enforce
standards of good behaviour: to deter people from being
careless. In many situations the deterrent effect is limited. Car
drivers are likely to drive carefully because of a fear of death
or injury, or of prosecution resulting in fine or imprisonment.
Fear of a civil action for damages hardly figures, since the
damages will come from an insurance company (although
admittedly the driver may find insurance more expensive or
even impossible in future).
There is a way in which liability in negligence does indeed affect
behaviour and may force defendants in ways that are arguably not
to the general benefit. Courts are increasingly aware of the so-
called ‘compensation culture’, the desire to identify someone
who is able to pay for injuries. The fear is that there will be a
defensive reaction that drives out many socially useful activities.
Schools may stop arranging excursions for pupils for fear of claims
by injured pupils. Institutions such as homes for the elderly or
nurseries for children may close if the costs of liability insurance

Law of tort
become prohibitive. There may be other defensive consequences.

Family doctors may refer too many healthy patients to specialists to
protect themselves against negligence claims, thereby adding to the
costs of the health service and delaying appointments for patients
in need of specialist services. As a recent example of a judicial fear
of the compensation culture, see Tomlinson v Congleton Borough
Council [2003] UKHL 47: [2004] 1 A.C. 46 (Chapter 6).
Activity 2.1
Write down brief notes on what Tomlinson v Congleton Borough Council [2003]
tells you about the effects of compensation culture.
You will return to this case in Chapter 6: you will find an easy introduction to the
ideas of compensation culture in the speech of Lord Hoffmann.
Conclusion
You should bear the contents of this chapter, particularly the policy
issues that keep arising in negligence claims, as you study the
chapters that follow.

Chapter 3 Negligence: duty of care and
breach of duty
Contents
Introduction 17
3.1 Duty of care 17
3.2 Functions of the duty concept 19
3.3 Breach of duty 23
Introduction
This chapter introduces the first two elements in establishing an
action in the tort of negligence. Did the defendant owe the claimant
a duty to take care? Was the defendant in breach of that duty?
Learning outcomes
By the end of this chapter and associated readings, you should be able to:
explain the concept of duty of care and its purposes
identify the various tests that have been suggested for the existence of a
duty of care
discuss the duty concept in the context of some particular situations, namely,
controlling others, duty of lawyers and duty to unborn children
describe the standard of care required of defendants both in general and in
respect of particular skills
Essential reading
Markesinis and Deakin, pp.85–95, 167–184
Murphy, pp.171–181, 231–263
Winfield and Jolowicz, pp.103–134, 190–208
Lunney and Oliphant, pp.90–100, 107–129, 139–187.
3.1 Duty of care

The duty of care concept has at least two purposes. The first is to
provide an overall framework for the huge variety of situations in
which liability may arise. For centuries the law has recognised
relationships in which one person owes a duty to another. What
was lacking was a general principle of which the various cases
Law of tort
were illustrations. The second purpose is one of limitation,

setting the boundaries within which one person could be liable to
another for the consequences of careless behaviour.
3.1.1 Finding a general test

A number of attempts have been made to expound such a general Four tests:
test. We will look at four of the most influential. • The neighbour principle
• A revised test (Lord Wilberforce)
a. The neighbour principle • The current test: foresight, proximity and
Donoghue v Stevenson [1932] AC 562 was important in two fairness
respects. • An alternative test: assumption of
responsibility
First, by a majority, the House of Lords recognised a new
relationship as giving rise to a duty of care, that between
manufacturers and the ultimate consumers of manufactured
products (in this particular case a bottle of ginger beer). This is
sometimes called the narrow rule in Donoghue v Stevenson: it
still survives but has in practice been superseded by a new kind
of liability established in the Consumer Protection Act 1987
(see Chapter 8).
Secondly, Lord Atkin enunciated a broad principle of liability. A
duty was owed to ‘persons who are so closely and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected…’ He described such people
as ‘my neighbours’: so his definition of the duty is called the
‘neighbour principle’.
b. A revised test
There were many developments in the law of negligence in the
years following that decision. These led Lord Wilberforce to
redefine the neighbour principle. He turned it into a two-stage test ‘BC’ = Borough Council, an administrative
in Anns v Merton London BC [1978] AC 728 at 751. division, particularly in London.
The first question was whether there was a sufficient relationship of

proximity or neighbourhood such that in the reasonable
contemplation of the defendant carelessness on his part may be
likely to cause damage to the claimant. If so, a prima facie duty of
care arose. The second question was whether there were any
considerations which ought to negative or reduce or limit the scope
of the duty of care or the class of persons to whom it was owed.
This test came under criticism in the following years as being too
expansive and indeed the Anns case was itself overruled in 1991
(see Chapter 5).
c. The current test: foresight, proximity and fairness

The test is now stated in this form. The claimant has to show three
things if there is to be a duty of care:
It was reasonably foreseeable that a person in the claimant’s
position would be injured.
There was sufficient proximity between the parties.
It is fair, just and reasonable to impose liability.
There is no single case identified with this test, but one of its best
expositions is in Caparo Industries v Dickman [1990] 2 AC 605.
There is a particularly helpful discussion of the test by Bingham LJ
in the Court of Appeal in the same case: Caparo Industries v
Dickman [1989] QB 653 at 678-680. Notice that the decision of the

Chapter 3 Negligence: duty of care and breach of duty
Court of Appeal in that case was overruled by the House of Lords.

For details, see Chapter 5.
These three tests are very similar. In particular, notice that:
They are very general. It is possible to understand what they
mean in practice only after studying a number of illustrative
cases.
Policy considerations are explicit in the second and third tests,
but are implicit in Lord Atkin’s test as well. Notice his use of
‘ought’ and ‘reasonably’. There is a large moral component
to his test. It is not just about what can be foreseen, but about
what ‘ought’ to be foreseen.
These tests are of most use when the law is uncertain.
These are concepts that judges use when deciding whether or
not a duty of care ought to be recognised in new situations.
Once a duty situation is recognised, the test in a sense drops
out of the picture. So, in an examination context, there is no
need to go through the Caparo test unless either the situation is
a novel one, where there are no clear precedents, or you are
trying to argue that the law ought to be changed (as was done
by the House of Lords in respect to the liability of lawyers; see
below at page 21). If the question you are answering is about a
motorist knocking down a pedestrian, the duty of care is
established by many previous cases and there is no need to go
through the tests for establishing a duty afresh.
d. An alternative test: assumption of responsibility

For some purposes, an alternative test has been developed, namely
whether there had been a voluntary assumption of responsibility by
the defendant for the claimant. This test is particularly used in
cases of liability for omissions, for mis-statements and for economic
loss as discussed in Chapter 5.
3.2 Functions of the duty concept

Traditionally the duty concept has been seen as serving two
separate functions:
Is there a duty at the abstract level (the notional duty or duty
in law): e.g. does a motorist owe a duty of care to other road
users? Or do barristers owe a duty of care to their clients?
Is the particular claimant within the scope of the duty of care
(duty in fact or the problem of the unforeseeable claimant):
e.g. was this particular road user owed a duty by this particular
motorist?
Notice that many commentators prefer to treat the second question
– duty in fact – either as a matter of breach of duty or as a matter of
remoteness of damage.
Some cases then are clear. Users of machinery, etc., on the roads,
on building sites, in workplaces owe a duty of care to those likely to
be affected. So do doctors, nurses, dentists, hairdressers, etc.,
providing services to the public. Below there is a series of
illustrations of the application of the concept of duty of care, in
situations where there has been doubt. More complex and
developing examples are discussed in Chapter 5.

Law of tort
3.2.1 Duty at the abstract level

Is there a duty to prevent X injuring C?
An important problem is how far the defendant owes a duty to stop
or prevent another person (X) injuring the claimant. This can be
illustrated thus:
Conduct causing damage

C (Claimant)
X (Third party)
Proposed
action
D (Defendant)
Examples of this problem would include the following:
a. Should a school b. Should a host at a c. Should a car

(or a parent) owe a party owe a duty of owner owe a duty of
duty of care to care to prevent a care to keep it
passing motorists to guest driving home locked up to prevent
see that a child does drunk and injuring a a thief stealing it and
not run out of the pedestrian? knocking down a
school and cause an pedestrian?
accident?
In the diagram above X is the child, the guest and the thief.
As a general rule English law does not impose a duty, reasoning
that the fault is that of X and not that of D. But exceptionally a duty
may arise. In deciding whether a duty of care arises, it is relevant to
ask:
What is the relationship between X and D? Does D have some
responsibility over X?
What is the relationship between C and D? Does it involve
some obligation on D’s part to protect C against harm?
See Home Office v Dorset Yacht Co [1970] AC 1104;
Carmarthenshire County Council v Lewis [1955] AC 549; Topp v
London Country Bus (South West) Ltd [1993] 1 WLR 976; Attorney-
General of British Virgin Islands v Hartwell [2004] UKPC 12: [2004]
1 WLR 1273.
The issues discussed in this paragraph are similar to, and overlap
with, issues discussed later in this guide: (a) whether the act of X

amounts to a new and intervening cause breaking the link between

C and D (see Chapter 4); (b) whether D can be liable for an
omission to act where he fails to take steps that would prevent X
from causing harm (see Chapter 5).
The issues discussed in this paragraph must be distinguished from
the question of vicarious liability (see Chapter 13). This
paragraph concerns the primary liability of defendants for their
own tort in failing to control others. In vicarious liability the
defendant is liable for a tort committed by someone else. In the
Dorset Yacht case both ideas are present. The Home Office were
vicariously liable for the torts of the borstal officers. But the
borstal officers were not vicariously liable for the torts of the boys:
they were primarily liable for their own torts in allowing the boys
to escape and cause harm. In the Hartwell case both vicarious
liability and primary liability were considered as alternative causes
of action.
A very similar problem arises where in effect C and X are the same
person. In the examples given on page 20 would the school, host or
car owner owe a duty of care to the child, guest or thief? How far
should defendants have to protect claimants against their own
folly? Of course there are many cases where the defendant has
specifically accepted responsibility for the safety of others, but the
principle may extend further than that. See: Jebson v Ministry of
Defence [2000] 1 WLR 2055.
Duties of lawyers
Lawyers of course owe a duty of care to their clients, but until
recently it was thought that no duty was owed by barristers (and
later solicitors also) in respect of work closely connected with the
presentation of their case in court. Putting it in terms of the Caparo
test, it would be said that, while there was foresight and proximity,
it was not fair, just and reasonable to impose liability.
The House of Lords has now decided that in contemporary
conditions there are no policy reasons sufficient to justify this
immunity and it should be abolished: Arthur J. S. Hall v Simons
[2002] 1 AC 615.
The circumstances in which a duty is owed and the scope of the
duty are considered by the House of Lords in Moy v Pettman Smith
(a firm) [2005] UKHL 7: [2005] 1 WLR 581.
Activity 3.1
Examine the reasoning of the House of Lords in Hall v Simons. What policy
reasons previously were thought to justify the immunity? Why are those policy
reasons no longer thought enough to justify it?
Feedback: see page 29.
Duty of care to unborn children

A doubt as to whether the common law recognised a duty of care to
unborn children in respect of damage done before birth was
resolved by statute: the Congenital Disabilities (Civil Liability) Act
1976. The Act originally envisaged a child being born with

Law of tort
disabilities as the result of damage to the mother (or sometimes the

father) occurring during pregnancy or sometimes before
conception. Typical examples were physical injuries to a pregnant
woman in, say, a car crash, or the side effects of drugs. It had to be
amended in the light of advancing medical technology to deal with
damage to stored sperm or eggs: Human Fertilisation and
Embryology Act 1990.
These Acts impose liability only where the damage caused the
disability from which the baby suffers when it is born. They do You should think about the ethical reasons
not allow an action where the negligence caused the baby to be for the child’s inability to claim negligence
born, but did not cause the disabilities. A doctor may, for example, and for the reluctance in most cases to
negligently carry out a sterilisation procedure on either a man or a allow the parents to claim.
woman, or may fail to recommend an abortion: any child born as
the result of this negligence has no claim.
These ethical reasons do not apply where the claim is by the father
or mother (or both) who have to bring up the child. For a time the
courts seemed likely to allow such claims. The ethical issues
(together with a wide-ranging review of how these issues are
decided round the world) are discussed:
where the child is healthy and is being raised in a loving family
(McFarlane)
where the child is disabled (Parkinson)
where the child is healthy but the mother did not want children
because of her own disability (Rees).
See McFarlane v Tayside Health Board [2000] 2 AC 59; Parkinson v
St James and Seacroft University Hospital NHS Trust [2001] EWCA
Civ 530: [2002] QB 266; Rees v Darlington Memorial Hospital NHS
Trust [2003] UKHL 52: [2004] 1 AC 309.
Novel situations
Other examples of cases where the courts have had to decide in
novel situations whether they should hold that there was a duty of
care are: Mulcahy v Ministry of Defence [1996] QB 732 (liability of
injuries to soldiers on active service; Vowles v Evans [2003] EWCA
Civ 318: [2003] 1 WLR 1607 (liability of rugby referee to injured
player).
3.2.2 Scope of the duty of care

Even if the defendant owed a duty of care to some people, there
remains the question of whether the particular claimant was within
the scope of that duty. See Bourhill v Young [1943] AC 92; Palsgraf
v Long Island Railroad Co (1928) 248 NY 339; Haley v London
Electricity Board [1965] AC 778: Urbanski v Patel (1978) 84 DLR
(3rd) 650; Goodwill v British Pregnancy Advisory Service [1996] 2
All ER 161.
In the last case (Goodwill) the points made about the woman
claimant’s position are still of interest, although the court’s
assumptions about the position of her partner have been
undermined by the cases referred to in 3.2.1.

Activity 3.2
(a) How do the tests of a duty of care in Donoghue v Stevenson, Anns v Merton
London Borough Council and Capro Industries v Dickman differ? In what respects
are they similar?
(b) D is gardening at the front of her house. She goes into the house to pour
herself a drink and leaves a spade lying in the garden. X, a passer-by, picks it up
and attacks C, D’s neighbour. Is D liable to C? (In answering this question, think
about various possibilities as to who X is, which might affect your answer.)
(c) To what extent is there (and should there be) liability:
(i) if a person negligently injures a pregnant woman and the child is born dead
(ii) a doctor negligently fails to identify a risk that a foetus has been damaged and
does not suggest an abortion: the child is born disabled
(iii) a mother takes drugs throughout pregnancy: the child is born with a severe
problem of drug dependency.
(d) Clarissa thinks that she may be pregnant and consults a pregnancy advisory
service. They confuse her records with those of another client and inform her that
she is not pregnant. By the time she discovers that she is pregnant, it is too late
for an abortion. Advise her.
Summary
There is no liability in negligence unless there is a duty to take care.
This establishes the necessary link between the claimant and the
defendant. Such duties are widely recognised. In cases of doubt the
modern test is whether there was foreseeability and proximity and
it was fair, just and reasonable to impose the duty.
3.3 Breach of duty

The next question is whether there has been a breach of the duty of
care. Has the defendant actually been negligent?
As a practical matter, this is very important. It will often be a major
issue between the claimant’s advisers and the defendant’s advisers
or insurers in attempting to reach a settlement. If there is a trial,
much time may be spent on deciding what actually happened and
whether that amounted to negligence on the defendant’s part. In
that end this is a question of fact. It is however a question of fact
that has to be answered within a structure of legal rules. You
cannot be expected to decide in an examination answer whether or
not the defendant was in fact negligent, but you can be expected to
identify in a question the respects in which the claimant could
argue that the defendant has been negligent and also explain how
the question will be approached within the structure of legal rules.
3.3.1 The basic rule

The basic rule is that the defendant must conform to the standard
of care expected of a reasonable person.
‘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

Law of tort
reasonable and prudent man would not do.’ (Blythe v Birmingham

Waterworks (1856) 11 Exch 781)
Ordinary person in ordinary circumstances

One of the few cases in which the House of Lords has had to
consider the behaviour of an ordinary person in ordinary
circumstances (not involving special skill or knowledge) is Glasgow The Glasgow Corporation case is a good
Corporation v Muir [1943] AC 448. Lord Macmillan highlighted two illustration of the point made in Chapter 2
important aspects of the test: about the artificiality in many questions of
looking separately at the three issues of
(a) ‘The standard of foresight of the reasonable man is, in one
duty, breach and damage. In this case there
sense, an impersonal test. It eliminates the personal equation
was only one simple question. Should Mrs
and is independent of the idiosyncrasies of the particular
Alexander, the manageress of a teashop,
person whose conduct is in question.’
have told her child customers to stand
It is an objective test. (For a situation in which it may be
outside while two people carried an urn of
appropriate to take a more subjective view of the defendant’s hot tea through the shop? The answer
conduct, see 5.3.1 and the case of Goldman v Hargrave.) The depends on what dangers a reasonable
abstract reasonable person is put into the shoes of the person would have expected and what
defendant, who is expected to have the same general steps (if any) such a person would have
knowledge and understanding of risks (say, that icy roads are taken to avoid them. Lord Macmillan’s
slippery or that children may get up to mischief) as the words are appropriate whether you think of
reasonable person. The actual defendant may be stupider or this primarily as a question of breach of
more ignorant, or may be cleverer or more knowledgeable, but duty or as a question of remoteness of
is still judged by this abstract impersonal standard. damage.
(b) ‘It is still left to the judge to decide what, in the
circumstances of the particular case, the reasonable man would
have had in contemplation. Here there is room for diversity of
view. What to one judge may seem far-fetched may seem to
another both natural and probable.’
The outcome is therefore to that extent unpredictable even in
the tiny minority of cases that are resolved in court.
3.3.2 Defendant with special skills or

qualifications
Most of the difficult reported cases however involve defendants
with special skills or qualifications. It would be silly to ask whether
a reasonable ‘person’ would have driven the car, removed the
appendix or designed the building in the same way as the actual
motorist, surgeon or architect who is being sued. In such cases the
defendant is to be compared to a reasonable person with the
relevant skill or qualification. This is not always as easy as it might
be.
For one thing, there is sometimes doubt as to exactly what skill
or qualifications the defendant professes to have.
For another, there may be doubt as to whether a large group
(say car drivers or doctors) should be sub-divided into smaller
categories for the purpose of comparison with reasonable
members of the group.
In the examples that follow it is more important to understand the
reasoning and how it might be applied in other contexts than to
know whether a particular defendant was or was not held to be
negligent on a particular set of facts.
Defining the group
In these cases the problem was one of defining the group to which
the defendant belonged: Phillips v Whiteley [1938] 1 All ER 566.

Did the defendant, who had pierced the claimant’s ears, have to
show the care of a reasonable surgeon or of a reasonable jeweller?
In Shakoor v Situ [2000] 4 All ER 181there is an interesting
analysis of how to treat a practitioner of traditional Chinese
medicine working in England. Was he to be compared to a
reasonable orthodox doctor, a reasonable traditional doctor
Ask yourself what conclusion the judge
practising in China or a reasonable traditional doctor practising in
reached, and why he did do so.
England?
Many cases involve car drivers. The only standard of care is that of
a reasonable driver, whether the actual driver is highly
experienced, newly qualified or even just a learner. It is irrelevant
that the learner driver defendant was doing as well as she could,
given her lack of experience, if a reasonable driver would have
done better: Nettleship v Weston [1971] 2 QB 691.
Medical negligence
A large number of the cases involving special skills concern medical
negligence. The defendant is to be compared with a reasonable You should read and make notes on:
person of the same specialism and status: a general practitioner is • Bolam v Friern Hospital Management
not judged by the same standards as a consultant cardiologist and Committee [1957] 1 WLR 582
• Bolitho v City and Hackney Health
so on.
Authority [1998] AC 232
There is a special problem with medical defendants (and to some
extent with members of other professions). There is often no single
‘right’ way of proceeding. Faced with a particular patient, one
doctor might recommend surgery, but another might recommend
treatment with drugs. The courts do not insist that one of these
approaches must be right and the other wrong: they require that
the defendant has acted in a way that would be supported by ‘a
body of respectable medical opinion’. This is sometimes called the
‘Bolam test’ as set out in that case. This test allows the medical
profession to some extent to determine appropriate standards for
itself, but the courts reserve the right to strike down a medical
practice as unreasonable (as explained in Bolitho).
Other examples of the application of this principle are: Whitehouse
v Jordan [1981] 1 WLR 246; Maynard v West Midlands Regional
Health Authority [1984] 1 WLR 634; and Wilsher v Essex Area
Health Authority [1987] QB 730. (This is the decision of the Court
of Appeal. The case went to the House of Lords, but only on the
issue of causation and not on the issue of breach of duty (see
Chapter 4).)
The most controversial application of the Bolam test occurs where it
is alleged that the doctor failed to give the patient sufficient
warning of the risks of the proposed treatment (or possibly of the
risks of not having the treatment). English law in principle applies
the Bolam test and asks whether the information given was in
accordance with what a respectable body of medical opinion would
have done, but Australian courts have taken a view more generous
to the patient and ask what a reasonable patient would expect to be
told. See Sidaway v Governors of Bethlem Royal Hospital [1985] AC
871 and Rogers v Whitaker (1992) 175 CLR 479.
The English approach is sometimes criticised as showing a ‘doctor
knows best’ attitude and ignoring the autonomy of the patient. The
professional bodies now encourage greater openness and encourage

Law of tort
doctors to explain the advantages and disadvantages of particular

treatment unless there is a good reason for not doing so. It will
now be more difficult for a doctor to argue that a reluctance to be
open about the advantages and risks of treatment is in accordance
with medical opinion. For a more recent example, although it is
principally concerned with causation issues (see 4.1.1), see Chester
v Afshar [2005] UKHL 1 AC 134.
If you are considering a claim for the consequences of medical
treatment, you should think of different ways of presenting the
argument. Most cases are based on the idea that the individual
doctor (or nurse, etc.) is negligent and that the health authority or
private hospital is vicariously liable. For the details of vicarious
liability, see Chapter 13. In some cases it may be appropriate to
consider arguing whether the health authority or hospital is itself
negligent, e.g. by entrusting a procedure to an inappropriately
junior doctor, or by overworking its staff so that they are too tired
and make mistakes.
The approach described in medical cases would certainly apply to
professions similar to medicine, such as dentistry or physiotherapy.
The extent to which the courts will be willing to defer to
professional opinion in other professions is less certain, although it
is likely to apply in all cases where different members of the
profession might reasonably take different views. For the example
of solicitors, see Edward Wong Finance Co Ltd v Johnson, Stokes and
Master [1984] AC 296, and of rugby referees, see Vowles v Evans
[2003] EWCA Civ 318: [2003] 1 WLR 1607.
3.3.3 Related issues

Children
Children may be liable in negligence and are judged by what might
be expected of a reasonable child of the defendant’s age, and the
courts appear to be indulgent towards high spirits and horseplay:
Mullin v Richards [1998] 1 All ER 920 and Blake v Galloway [2004]
EWCA Civ 814: [2004] 3 All ER 315.
Defendant unable to perform competently

A defendant may be liable even if he was doing his incompetent
best. But if his behaviour was the result not of inexperience or
incompetence, but of illness or other external forces, then he may
be found not liable. See Mansfield v Weetabix Ltd [1998] 1 WLR
1263. (But the result would have been different if the driver had
known of the medical condition.)
Eliminating harm must be proportional to the danger

A defendant is not required to eliminate all risk of harm even when
it is foreseeable: to do so might be out of all proportion to the
danger. The defendant must do something only if a reasonable
person would have thought it right to do so. In deciding what
precautions have to be taken to minimise a perceived risk, the
following guidelines may be taken into account:
(a) How likely was it that injury would occur?
(b) How serious was the injury likely to be if it did occur?
(c) How difficult and/or expensive would it be to eliminate the
risk?
(d) How important or urgent was the action of the defendant?

See: Bolton v Stone [1951] AC 850 (explained by Lord Reid in
Wagon Mound (No. 2)) [1967] 1 AC 617 at 642; Latimer v AEC
[1952] 2 QB 701; Paris v Stepney BC [1951] AC 367; Watt v
Hertfordshire CC [1954] 2 All ER 368.
It is important to remember that the defendant is to be judged by
how a reasonable person with the same skill, etc. would have
behaved at the same time and in the same circumstances. The
defendant must not be judged with the benefit of hindsight
(making use of knowledge not available at the time of the alleged
tort) and allowance must be made for any special circumstances
affecting the defendant (e.g. having to act under pressure or with
limited time for full consideration). For examples, see: Roe v
Minister of Health [1954] QB 66; Luxmoore May v Messenger, May-
Baverstock [1990] 1 All ER 1067; and Moy v Pettman Smith [2005]
UKHL 7: [2005] 1 WLR 581.
3.3.4 Are decisions on breach questions of

fact or law?
Everything in the last few paragraphs involves propositions of law
which are binding on the courts. Once these principles have been
applied, however, the decision on the particular facts of a case does
not constitute a binding precedent. The fact, say, that it was held in
a particular case that an employer was negligent in failing to ensure
that an employee wore a particular kind of safety equipment does
not mean that all other employers will also be held negligent if they
behave in the same way. The issue will have to be decided in the
light of the particular facts each time it occurs. See Qualcast v
Haynes [1959] AC 743.
This approach is not very helpful to potential defendants such as
building contractors, who do not want to know that they have to
take reasonable care, but do want to know exactly what
instructions, equipment and so on they have to supply. So it is very
common for regulations under the authority of various Acts of
Parliament to set out detailed rules on such matters. The basis of
liability for breaches of such regulations is explained in Chapter 7.
3.3.5 Proving breach of duty

Very often the claimant may not be able to find out what happened.
A parked car, for example, may have moved off without warning
down a hill. All the claimant can do is show that such a thing does
not normally happen unless there has been negligence. The
claimant can then make use of a rule of the law of evidence called
res ipsa loquitur (the facts speak for themselves). You must ask
yourself:
(a) when it is legitimate to use the maxim
(b) what the effect of invoking it is. See Scott v London & St.
Katharine's Dock (1865) 3 H. & C. 596; Henderson v Henry E.
Jenkins [1970] AC 282; Ng Chun Pui v Lee Chuen Tat [1988] RTR
298.
You should be warned that this doctrine applies only exceptionally.
You should not make use of it in answering questions unless there
is a clear suggestion that there is no explanation for what has

Law of tort
happened and the only inference is that the defendant must have
been negligent.
Summary
The actual defendant is to be compared with how a reasonable
person would have acted in the same circumstances. Where a
particular skill (driving for example) or professional expertise
(medical for example) is involved, the appropriate comparison is
with a person with the same skill or expertise.
Activity 3.3
(a) What is the level of the duty of care to be shown by:
– a newly qualified solicitor
– a learner driver
– a 12-year-old child?
(b) What standard of care would have to be shown by Deirdre, an ambulance
driver, (i) when taking a seriously ill patient to hospital and (ii) when driving her
family to the seaside in the family car?
(c) D is a general practitioner. He prescribes certain tablets for his patient C, who
is very fat. A recent article in a specialist journal of cardiology has suggested that
there may be some risks in giving these tablets to overweight patients. C has a
heart attack. Is D liable?
(d) D parks his car on a hill and walks away. Shortly afterwards, the car moves off
downhill and strikes C. It is not clear why this has happened. Advise C.
General examination advice

All claimants in a negligence action must establish that there has
been a breach of a duty of care. This does not mean that all
examination questions require an extended discussion of these
topics. If a problem involves a driver of a car hitting someone while
proceeding at 80 mph down a one-way street in the wrong
direction, then these issues can be disposed of in two sentences. A
problem question may involve only issues discussed in this chapter,
but is likely also to involve topics from other chapters. An essay
question of a general kind on the duty of care will almost certainly
require information and ideas from Chapter 5 as well as this
chapter.

Feedback to activities: Chapter 3

Activity 3.1 All the judges refer to these reasons, although there
are differences of emphasis. You should have identified among the
reasons for having the immunity: (i) the fact that lawyers in court
owe a duty to the court that may sometimes conflict with the duty
to their clients; (ii) that the prospect of being sued in negligence
might adversely affect the quality of their argument by e.g. raising
every conceivable point in their clients’ interests; (iii) that suing the
lawyer would to some extent reopen the correctness of the original
decision. The House of Lords thought these reasons no longer
applied in 2002 (although there was a disagreement about whether
the immunity should remain in criminal cases). A main reason was
that the public would not understand why lawyers had an
immunity that other professions did not enjoy.
Activity 3.2
(a) No feedback provided
(b) You should have considered what was said in Home Office v
Dorset Yacht and other cases. Normally in such a case there would
be no liability, but you consider exceptional cases, e.g. if X was
another neighbour who was known to be violent and aggressive
where it is arguable that the result might be different.
(c) (i) Remember to consider that, although there is no liability to
the estate of the dead child, there may be liability to the mother
and the damages would include the suffering sustained by the loss
of her baby; (ii) neither the Congenital Disabilities Act nor the
common law allows an action by the child: for the claim by the
parents see McFarlane and later cases; (iii) the Congenital
Disabilities Act does not allow a claim by the mother. Ask yourself
why mothers are not generally liable for damage to their unborn
children, but are liable if they injure them by careless driving.
(d) No doubt the advisory service has a duty of care. Do you think
that the reasoning in McFarlane etc. applies also to these facts? (In
McFarlane etc. the negligence caused the pregnancy and not the
failure to terminate it).
Activity 3.3
(a) On learner drivers see Nettleship v Weston and on children see
Blake v Galloway. You will have to think about these cases and
general principles would apply to the case of a newly qualified
solicitor.
(b) When driving to hospital she still has to drive ‘with reasonable
care’. In an emergency it may be legitimate to drive in a way that is
not ordinarily acceptable, but it still has to be reasonable in the
circumstances. On going to the seaside, she is judged by the
standards of an ordinary driver. She is not penalised because, as a
highly trained driver, she might have been expected to do better in
the circumstances.
(c) Examine the cases on standard of care to be shown by medical
practitioners. You might note the following elements in the facts:
(i) as a general practitioner, should he know about things discussed
in a specialist journal? (some help perhaps from Shakoor v Situ,

Law of tort
though only by analogy); (ii) should he tell the patient about the
risks? (consider Chester v Afshar and decide whether the facts are in
any respects different).
(d) This might be one of the exceptional situations in which the
maxim res ipsa loquitur can be applied.

Chapter 4 Negligence: causation and
remoteness of damage
Contents
Introduction 31
4.1 Causation 32
4.2 Causation: special problems: multiple causes 37
4.3 Remoteness: the basic rule 41
4.4 Qualifications of the basic test 43
4.5 New and intervening cause 45
Introduction
Negligence is one of those torts in which damage must be proved
(see Chapter 1). Once a breach of duty has been established, the
claimant must therefore also show that the breach has resulted in
injury or damage (the causation issue) and that the injury or
damage is sufficiently closely connected to the breach (the
remoteness issue). You will understand what is meant by
‘sufficiently closely connected’ in the particular context of
negligence after studying this chapter.
Causation and remoteness are the essential links between the
breach of the obligation imposed by law and the damage. It is
commonly said that causation is essentially a factual and logical
question, but that remoteness is a legal question, based on policy
considerations about the appropriate extent of a defendant’s
liability. In broad terms this is true, but Lord Hoffmann has recently
stated that ‘the rules laying down causal requirements are…
creatures of the law’ and that ‘it is possible to explain their content
on the grounds of fairness and justice in exactly the same way as
the other conditions of liability’ (Fairchild v Glenhaven Funeral
Services Ltd [2002] UKHL 22 at [54]).
You must therefore consider the policy reasons behind most of the
decisions in this chapter.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
state and explain the basic rule defining the causal link between the breach
of duty and the damage
identify the causal link that has to be established in hypothetical situations

Law of tort
identify circumstances in which the basic rule produces unacceptable results

and may have to be modified
explain the policy considerations underlying those modifications
explain the concept of remoteness of damage in general and identify the
basic rules of remoteness in the tort of negligence
identify the policy reasons for choosing that rule of remoteness
explain the concept of new and intervening cause and relate it (a) to the
actions of third parties and (b) to actions by the claimant subsequent to the
negligence of the defendant.
Essential reading
Markesinis and Deakin, pp.185–214
Murphy, pp.264–280
Winfield and Jolowicz, pp.209–247
Lunney and Oliphant, pp.188–252.
4.1 Causation
Causation is relevant to all torts in which proof of damage is
essential. The problem is usually discussed in detail in the context
of negligence, but the principles apply more broadly, and some of
the cases referred to in this section involve claims in other torts as
well as in negligence. You must always remember to link the tort
(i.e. the breach of duty in the case of negligence) and not merely
the defendant to the damage. An example will illustrate the
importance of this.
A baby has brain damage: it has recently been vaccinated. If there
is a claim for compensation, it will always be necessary to establish
(on scientific evidence) that the vaccine caused the damage. If the
claim can be brought within a tort of strict liability (see Chapter 1
for definition), nothing more need be proved in terms of causation.
This is not so if the claim is in negligence, e.g. alleging that a doctor
in breach of the duty of care failed to carry out proper tests to
discover whether the baby had an allergy to the vaccine. It will then
be necessary, in addition to showing that the vaccine caused the
damage, to show that the breach of duty caused the damage. If
the proper tests carefully administered would not have revealed the
allergy, then the baby would still have been damaged and the
breach of duty would not be a cause of the brain damage.
You will find that the causation issue sometimes (though
exceptionally) gives rise to difficult questions, but the underlying
idea is very simple. We use the language of causation every day
without much difficulty, and we understand that the language of
causation is used in different ways in different contexts. We may for
instance say, ‘I was late for work to-day because the 7.30 train was
cancelled’. Here we know that the cancellation made lateness
inevitable. But we do not know for certain that we would have
been on time if the train had been running. Something else might
have happened to delay us. On the other hand we often hear about
research into the causes of disease. Advertisements for cigarettes

Chapter 4 Negligence: causation and remoteness of damage
may carry a warning that ‘smoking causes lung cancer’, but we

know that here there is no inevitability: many non-smokers develop
cancer and many smokers do not. We need more information
before we can talk of the cause of the disease in any particular
sufferer. You should make use of your knowledge of the ordinary
usage of the language of causation in analysing problems.
4.1.1 The basic rule

The basic rule may be stated positively or negatively. If the damage
would still have occurred, even if the defendant had not broken the
duty of care, then the breach did not cause the damage. If the
damage would not have occurred but for the defendant’s breach of
duty, then the breach of duty is a cause of the damage. For this
reason, the basic rule is often referred to as the ‘but for test’. Its
main purpose is to exclude things that have no bearing on the
damage. It is for the claimant to show that the breach of duty was
the cause of the damage, and not for the defendant to show that
the breach of duty was not the cause of the damage.
We know in a common sense way that it is rarely possible to be
absolutely certain about such matters, and the law does not
demand such certainty. It is sufficient to show that on a balance of
probabilities the breach was the cause of the damage, or that it is
more likely than not that the breach was a cause of the damage. In
principle it is an ‘all or nothing’ question. If it is more probable than
not that negligently administered drugs caused the claimant’s
deafness, then the claimant recovers in full for the deafness. If it is
not more probable than not, even if it is a possibility, then the
claimant recovers nothing.
In many cases the causation issue raises no problems at all: this is
particularly true where the defendant has been guilty of some
positive wrongdoing, such as overtaking a vehicle at a blind corner
or administering the wrong dosage of a drug. Usually it is very clear
whether or not the act has caused the damage. There is likely to be
more difficulty in those cases where the defendant’s breach of duty
consists of a failure to do something that should have been done.
Here it is necessary to speculate about what would have happened
if the defendant had not been guilty of this failure. There are
several different situations to consider:
(i) There may be doubt about what the natural course of events
would have been if the defendant had behaved properly.
For example, the defendant doctor failed to diagnose the
claimant as having an illness in need of treatment. Was it so
serious that the defendant would have died even if the proper
diagnosis or treatment had been given? See: Barnett v
Kensington and Chelsea Hospital [1969] 1 QB 428.
The claimant fell overboard into icy water. The defendant’s
rescue effort was inadequate. Would the claimant have
perished in the cold water before even a competent rescuer
could have saved her? See: The Ogopogo [1971] 2 Lloyd’s 410.
(ii) There may be doubt about how the defendant would
subsequently have behaved if he had done what he should have
done in performance of the duty.

Law of tort
Look again at Bolitho v City and Hackney Heath Authority

[1998] AC 232 (see Chapter 3). You will see that the doctor in
breach of her duty failed to attend a patient, but she
successfully argued that the action she would in fact have
taken if she had attended would not have been negligent
(because it was in accordance with a respectable body of
professional opinion) and would not have saved the patient.
The child would therefore still have been dead even if she had
performed her duty by attending. Therefore her culpable
failure to attend was not a cause of the death.
(iii) There may be doubt about how the claimant would
subsequently have behaved if the defendant had done what should
have been done.
The defendant doctor may have failed to warn the patient
about the risks of treatment: would the patient have decided
to have the treatment anyway? If so, the failure to warn
cannot be a cause of the damage if one of the risks occurs. The
defendant employers may have failed to provide safety
equipment for their employees: would the deceased employee
have used it if it had been provided? If not, then the failure to
provide it was not the cause of the injuries. See: McWilliams v
Sir William Arrol [1962] 1 All ER 623.
This issue has recently been considered by the House of Lords
in Chester v Afshar [2004] UKHL 41 [2005] 1 AC 134 where a
majority of the House of Lords took a view very favourable to
the claimant. You must address the policy reasons for this
view. The surgeon had advised the claimant to undergo
surgery but in breach of duty had failed to advise her of the
risk. The claimant did not show that she would probably
never have had the operation, but she did show that she would
have taken her time and consulted friends and therefore would
not have had the actual operation on the particular day that
she did have it. The House of Lords held that she had
therefore established that the breach of duty was a cause of
her injury. Notice however that the sort of injury was
something that happened on very rare occasions for no very
obvious reason. The result would surely have been different if
the injury had been due to some previously unknown
peculiarity of the claimant, so that it might well have
happened to her even if the operation had been postponed and
performed on a different day.
Note that in cases (ii) and (iii) it is particularly important to
scrutinise the evidence given by the defendant and (if living) the
claimant because their view of how they would have behaved may
be coloured by what has now happened. It may seem harsh that the
claimant in McWilliams had to prove that the deceased would have
worn the safety harness if it had been provided, but it should be
noted that the evidence was in fact very strongly to the effect that it
was highly unlikely that he would have done so.
Activity 4.1
(a) C steps into the road immediately in front of a car: the driver is exceeding the
speed limit and talking on her mobile phone. C is struck and injured. Is D liable
for the injuries?

(b) C collapsed with chest pains. D did not call an ambulance, but gave C a large
glass of brandy. C dies. What more do we need to know in order to establish the
cause of C’s death?
(c) C is employed by D. D in breach of duty has stopped providing safety helmets
because they were rarely worn. C falls to the ground and suffers serious head
injuries. Advise C.
In all of the cases in (i) to (iii) the normal ‘but for’ test seems to be
applied, but…
(iv) There may be doubt about how other people would have
behaved if the defendant had done what should have been done.
Here the test may be different, and this will be considered shortly.
4.1.2 Damages for loss of a chance

So far it has been assumed that we know what is meant by the
damage. There is sometimes room for argument on this point. This
is illustrated by Hotson v East Berkshire Area Health Authority
[1987] AC 750.
Hotson injured his hip in a fall (no tort was involved). The hospital
failed correctly to diagnose and treat his injury for some days. In
due course he suffered a wasting (necrosis) of the hip leading to
permanent disability. This was caused by the original injury, but
was it caused by the negligent failure to treat him immediately?
The judge (unusually) assessed the chances. There was a 25%
chance that he would have recovered if treated properly, but a 75%
chance that he would not. He and the Court of Appeal awarded him
25% of the damages that would have been payable if the hospital
had caused the necrosis. The House of Lords disagreed and
awarded him nothing (apart from a small sum for the pain suffered
during the days of delay).
If the damage is the necrosis, this decision is in line with the normal
rule described above, and is similar to Barnett v Kensington and
Chelsea Hospital, if it was possible to say immediately after the
accident, ‘Hotson’s injuries are of such severity that he personally
has only a 1 in 4 chance of avoiding necrosis’. An alternative
argument is that, at that time, Hotson was a boy with an injured
hip and also with a 1 in 4 chance of recovery. The hospital
negligently destroyed his chance, and that chance had been worth
something to him. The House of Lords refused to apply that
analysis to the facts of Hotson’s injury, and applied the general
principle described earlier in this chapter. The House did accept
that the loss of a chance could sometimes be recoverable in
damages, but did not explain in what circumstances that would be
the case.
A majority of the House of Lords in Gregg v Scott [2005] UKHL 2:
[2005] 2 WLR 268 reaffirmed that the general approach in Hotson’s
case should be followed and declined to depart radically from its
principles.
When then are damages for loss of a chance recoverable?

Law of tort
Sometimes this is allowed in breach of contract actions (Chaplin v

Hicks [1911] 2 KB 786). It is also clear that, when the courts have
identified an item of damage as being caused by a tort, then the
measure of damages (the amount of money awarded in
compensation) reflects the loss of future chances. For instance, if
the claimant has proved that the tort caused physical injuries
leading to permanent unemployment, then the amount of money
paid in compensation will be based on the chances of future
employment, and not on proof that on a balance of probabilities he
would have had a particular career. A similar approach seems to
have been taken in Spring v Guardian Assurance plc [1995] 2 AC
996 (see details in Chapter 5), where Lord Lowry thought that the
claimant would not have to prove that the negligent reference
supplied to prospective employers caused him not to be appointed
to a post, but that he would be compensated for the loss of a
chance of future employment. See also Allied Maples v Simmons &
Simmons [1995] 1 WLR 1602. In both cases the loss was economic
rather than physical damage. That may explain the difference.
Another explanation may be that what was in question was how
other people (e.g. the prospective employer in Spring) would have
behaved, and there would be no evidence on this point.
It may be therefore that in cases under (iv) above the damage is
properly to be regarded as the loss of a chance, and that it is not
necessary to prove on a balance of probabilities that the other
people would have behaved in a particular way.
The decision in Hotson is consistent with an earlier decision of the
Court of Appeal in Cutler v Vauxhall Motors [1970] 2 All ER 56. The
defendants injured the claimant who as a result had an operation
for varicose veins. He would, more likely than not, have required
such an operation in a few years’ time even if the injury had not
occurred. Therefore the majority of the court held that the
operation was not caused by the defendants’ breach of duty.
Students often unthinkingly misapply this case. It can be relevant
only where the damage is a ‘one-off’ event such as an operation
from which the claimant fully recovers. If the breach of duty causes
the claimant, for example, to lose a leg which would probably have
had to be amputated in a few years anyway, the claimant is
certainly entitled to damages at least for the additional years
without a leg.
Activity 4.2
C, aged 21 and in her final year at university, is swimming in a council swimming
pool. She suffers cramp and starts to drown. The lifeguard employed by the
council is not at his post. C is eventually rescued but has suffered brain damage
and will need constant care. It is possible that, if the lifeguard had been there,
she would have been rescued in time to prevent the brain damage. It is possible
that she would have had an excellent degree and realised her ambition of
working as a solicitor in a large City firm. Advise C.

4.2 Causation: special problems: multiple causes

In a number of situations the application of the ‘but for’ test would
lead to outcomes that would be absurd or arguably unjust. The
courts have in some of these cases been prepared to abandon or
modify that test. There are many variations in the possible facts,
and it is important that you analyse correctly and carefully the
leading cases and any problems that you are asked to consider.
4.2.1 Two separate causes of the same

damage
Suppose that David and Daniel acting independently at the same
moment shoot Conrad, who dies instantly: either shot would have
been fatal. Logically each assailant could say that he was not the
cause of death, because, even if he had not been there, the other
shot would still have killed Conrad. On this reasoning neither
defendant would be liable. Such a result would be absurd. In such a
case the court would hold that both David and Daniel were liable,
leaving them to contest the matter between themselves.
That situation is of course most implausible. What can and does
occur is that two successive actions may independently bring about
the same damage. This is associated with two important decisions
of the House of Lords. These are often misunderstood by students
and applied where they should not be. It is therefore important first
to understand the situation in which it is appropriate to refer to
them. The present problem arises where there are two unconnected
events (one or both a tort), each of which would in the absence of
the other have caused a particular item of damage. An example will
make it clearer.
Imagine a professional sporting star with a large income and
valuable sponsorship deals. Let us call him Edward. In January
Edward is injured in a road accident and loses both legs. Six
months later in an entirely separate and unconnected event
someone throws acid in his face and blinds him. Three months after
that, you meet him and say, ‘Hullo, Edward. Are you still playing
football?’ He replies, ‘No, I am not, because…’ How would you
finish the sentence for him? Is it because he has no legs, or because
he is blind?
On those facts both events were torts. Would it make a difference
to the way in which you think you would finish the sentence if
either Edwards’s blindness or the loss of his legs was the result of a
natural disease?
The problem can also be presented in this way.
In the following diagram the claimant was originally earning
£40,000 per year. As a result of an accident he has to take a lighter
job earning £15,000 per year. Six months later he suffers a further
(unrelated) accident and is unable to work ever again.

Law of tort
(See diagram below.)
1st event 2nd event

£40,000
1
£15,000
The damages in the box marked 1 are attributable only to the first
event, those in the box marked 2 only to the second event. The
problem lies with the damages in the shaded area, since either the
first or the second event would, in the absence of the other, have
brought about that damage. One thing is clear. If the first event is a
natural occurrence such as a disease, then the tortfeasor
responsible for the second event ‘takes the victim as he finds him’
i.e. as a person earning £15,000 per year and cannot be liable for
the damages in the shaded area. But what if the first event was a
tort and the claim is against that tortfeasor? Does the tortfeasor
continue to be liable for the loss in the shaded area even after the
occurrence of the second event, which would independently cause
the same loss?
The House of Lords has considered this problem in Baker v Damages are assessed once and for all so
that if they are calculated and the case
Willoughby [1970] AC 467 and Jobling v Associated Diaries Ltd
disposed of by settlement or by litigation
[1982] AC 794.
before the second event occurs, the
It is best to start with Jobling. He had been injured in an industrial assessment will not be reopened (see
accident and permanently disabled. Some years later, before Chapter 13, Section 13.3.2 Principle 4).
damages had been assessed, he was found to be suffering from a
disabling disease that rendered him unfit for work. The House
decided that the defendant was not required to compensate for the
losses after the onset of this disease. The House was critical of (but
did not overrule) the earlier decision in Baker. Baker’s leg had been
permanently damaged in a road accident. He had to change his job
and was shot by robbers (who were of course tortfeasors but were
never found) and as a result his leg was amputated. The House had
held that the damage was not subsumed in the new tort, but the
negligent motorist continued to be answerable for the damage to
the leg (and its continuing economic and other consequences).
There would be an obvious harshness if Baker were to lose his
damages because he was the victim of two torts and not just one,
but it is not easy to formulate a principle explaining why Baker’s
claim was not extinguished, but Jobling’s was.
It is necessary to stress again that both cases were concerned with
continuing liability for the consequences of the original injury and
not with liability for the additional consequences of the
second injury. It was not for instance argued that the defendant in
Baker was liable for the amputation. We will consider that kind of
situation later.

Activity 4.3
C is knocked down by D, a careless motorist. Because of his injuries he has to
give up his job as a financial analyst and is unemployed. He is walking on the
beach when he is struck by a freak wave. He suffers severe head injuries that
would make him unemployable. Advise C.
4.2.2 Uncertainty of the facts

In the previous section the facts were not in doubt. The problem
was a logical one. In this and the next section the problem is one of
the uncertainty of the facts. Two or more people in breach of their
duty of care cumulatively cause harmful fumes to afflict the
claimant and cause the onset of a disease, i.e. the disease is one in
which, the greater the exposure to the fumes, the worse the disease
is likely to become. In such cases the court is likely to hold both
defendants liable. It is held that it is sufficient to show that the
defendant’s breach of duty materially contributed to the damage,
and that it is not necessary to show that the defendant’s fumes
caused the damage.
This approach has been extended to situations where tortiously
produced fumes have combined with non-tortiously produced
fumes, at least where all the fumes came from the same source.
See: Bonnington Castings Ltd v Wardlaw [1956] AC 613.
Now go back to the situation described at the start of Section 4.2.1,
but vary the facts in one respect. Only one shot hits Conrad and the
other misses, but it is impossible to tell which is which. He was
therefore the victim of a tort, but it is impossible to say who the
tortfeasor was. This situation arose in the Canadian case of Cook v
Lewis [1951] SCR 830, and the decision in effect was that both
defendants should be liable, unless either could show that his shot
was not the fatal one. Here is another situation in which it seems
wrong to deny the claimant recovery because in effect he was the
victim of two torts and not one. After all, one defendant actually hit
the claimant and the other by firing carelessly made it impossible to
identify the killer.
This is one illustration of a difficult problem, which arises where:
(a) the defendant has been guilty of negligence
(b) there has been damage of a kind which it is known can be
caused by negligence of that kind, and
(c) there is no evidence as to whether in this case the damage was
in fact caused by the negligence.
This lack of proof may be because something else happened at the
same time which obscures the position, or because medical science
has not reached the point where it can be certain of the causation
of the disease.
This has most recently been considered by the House of Lords in
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. You
must study this case carefully and identify the facts. The reasoning
can then be tested against some important earlier cases that are
discussed in the speeches.

Law of tort
This case illustrates a problem that has for long caused difficulty.
The House surveys the way it has been dealt with in a large number
of countries round the world, and also reviews it historically as far
back as the classical Roman jurists of the second century AD.
Nevertheless the House emphasises that it is deciding what should
happen only on the precise facts of this case, and is not laying down
universal rules. It is therefore vital to be clear about the crucial
facts, and then to think about how many of these are present in
other cases, and also to consider how the absence of one of these
factors or the presence of others might lead to a different outcome.
The crucial factors are conveniently listed by Lord Bingham of
Cornhill in Chapter 3 section 3.1. There are five speeches all
reaching the same result. Lord Hutton’s reasoning was however
rather different from that of the other judges. The other speeches,
though differing in detail, are very similar in approach.
The House heard appeals arising out of three separate cases, all
with identical facts. The claimants all suffered from a form of
cancer undoubtedly caused by asbestos dust. The dust does not
operate cumulatively as described in 4.2.2. The process by which
the asbestos caused the cancer was not entirely understood, but it
might be that one fibre or group of fibres triggered the cancer,
perhaps some years later: if so, once the triggering had occurred,
exposure to other fibres would not make matters any worse, and
stopping the exposure to asbestos would not make matters any
better. The claimants had all worked for more than one employer
over many years. All the employers had in breach of their duty
exposed the claimants to asbestos fibres. It was impossible to form
any view about whose fibres had triggered the cancer. The Court of
Appeal held that none of the employers was liable because the
claimants could not prove against any of them that their fibres had
caused the cancer: the House of Lords held that they were all liable,
so long as the evidence remained inconclusive.
You will also have to consider two other decisions of the House of
Lords analysed in Fairchild. These are McGhee v National Coal
Board [1972] 3 All ER 1008 and Wilsher v Essex Area Health
Authority [1988] 1 AC 1074.
The Court of Appeal decision in Wilsher has already been explained
(see Chapter 3). The health authority had failed to detect that the
catheter had been wrongly inserted and therefore the premature
baby received too much oxygen. That was held to be negligent. The
health authority did not ask the House of Lords to reverse that
decision. It did however concentrate on the problem of causation.
Excess oxygen can cause blindness in premature infants. It is
however only one of several causes. Had it been the cause in the
case of Wilsher? The House of Lords held that this had not been
established on the balance of probabilities, and that the case had to
be retried in order that the court applying the proper balance of
probabilities test could decide the matter.
Activity 4.4
(a) Did the claimant win or lose on the causation issue in each of the following
cases: McGhee, Wilsher and Fairchild?
(b) Consider the following statements:

(i) The claimant’s injuries were certainly caused by a tortious breach of duty.
(ii) The claimant’s injuries were certainly caused by the defendant.
Which of these statements are true of the facts in the three cases mentioned in
question (a)?
Feedback: You will find a helpful list of factors near the beginning of Lord
Bingham’s speech in Fairchild. You should then match this list against the facts of
the other cases.
Reminder of learning outcomes

By this stage you should be able to:
state and explain the basic rule defining the causal link between the breach
of duty and the damage
identify the causal link that has to be established in hypothetical situations
identify circumstances in which the basic rule produces unacceptable results
and may have to be modified
explain the policy considerations underlying those modifications.
Summary
The fundamental rule is that the tort must cause the damage, i.e. if
the tort had not occurred the claimant would not be in the same
position. This must be shown on a balance of probabilities. There
are however difficult situations where there are competing causes
and the fundamental rule has to be abandoned or modified in order
to prevent injustice.
4.3 Remoteness: the basic rule

Even if the tort caused the damage, that is not the end of the story.
A breach of duty may considerably change the course of subsequent
events, but the defendant will not be liable for everything that can
be traced back to the original wrongdoing. The remoteness issue
limits the extent of the defendant’s liability. This too can be
illustrated by our ordinary use of language.
Claudia travels to work in London: the only convenient way is by
train from her local station. One day she finds that a train has been
derailed outside the station and blocked the line. She therefore has
to return home. During the morning an intruder breaks in and
shoots her in the leg. It would be natural for her to say, ‘I was
absent from work yesterday because my train was derailed.’ But it
would not be natural for her to say, ‘I was shot in the leg yesterday
because my train was derailed’. Yet it is true that, if there had been
no derailment, she would not have been at home and would not
have been shot. There is however a feeling that the link between
the shooting and the derailment is not close enough. In legal
language, the shooting is too remote a consequence of the
derailment.
Like causation, the remoteness issue is relevant to all torts in which
proof of damage is essential, or in which the claimant is seeking

Law of tort
compensation for specific losses. The test of what consequences are

too remote, however, is not formulated in the same way in all torts.
In every tort involving damage, you will have to learn what the test
of remoteness of damage is. Later in this chapter we will consider
the way in which the test is formulated in the tort of negligence.
The main purpose of the rules of causation is to exclude those
things that are not the cause of the damage. If the same damage
would have been suffered even if there had been no breach of a
duty of care, then the claimant loses. But the opposite is not true.
Even if the damage would not have been suffered without the
breach of duty (i.e. the breach of duty is a cause of the damage), it
does not follow that the defendant is liable. The breach of duty may
initiate a whole chain of further events – but some of these will be
treated as too ‘remote’ from the original negligence for it to be
appropriate to hold the defendant answerable for those distant
outcomes.
At one time the test of remoteness of damage in the tort of
negligence was said to be whether the damage was the direct
consequence of the breach of duty. If it was merely indirect,
particularly if there was something which ‘broke the chain of
causation’, then the defendant was not liable. This test was
particularly associated with the decision of the Court of Appeal in
Re Polemis [1921] 3 KB 560.
The acceptable test: foreseeable consequences

Since 1964 the accepted test has been that the defendant is liable
for damage only if it was the foreseeable consequence of the breach
of duty. The Privy Council so decided in The Wagon Mound (No 1)
[1961] 1 AC 388.
Furnace oil had been negligently spilled from a ship in Sydney
Harbour. The oil had been carried to nearby docks where welding
operations were in progress. A piece of cotton waste caught fire, the
temperature was raised sufficiently to ignite the oil and the
resulting fire destroyed the docks and ships moored there. The New
South Wales courts, applying the English rule of the time, held that
(on the evidence presented) the great fire was not foreseeable, but
that it was the direct consequence of the spillage and therefore the
defendants were liable. The Privy Council disagreed. The
defendants should be liable only for what could reasonably have
been foreseen. The Privy Council gave two reasons. A test of
foreseeability was (a) simpler and (b) more just, because it was
unfair to hold a careless defendant liable for more than could have
been foreseen when and if he thought about the consequences
before committing the act of negligence. ‘It is hoped that the law
will thereby be simplified and that, in some cases at least, palpable
injustice will be avoided.’ (per Viscount Simonds)
Activity 4.5
Why did Viscount Simonds say that the test of remoteness should be foresight
and not directness? Are his reasons justified?
No feedback provided.

4.4 Qualifications of the basic test

Viscount Simonds certainly thought that the substitution of the new
test would not affect the outcome of many cases. Foresight is not a
term that can be applied mechanically. The way it is used can be
understood only by examining a selection of cases in which it has
been considered. A very narrow test would mean that the
defendant would be liable only if the very thing which happened
was what would be expected and therefore foreseen: a very wide
interpretation would suggest that the defendant would be liable for
everything that you could imagine happening unless it was utterly
far-fetched. The approach in the cases decided since 1961 falls
between these two extremes, but is probably closer to the latter.
The following are reasons why the effect has not been great:
(a) How much is foreseeable?

The significance of the new test was considered by the House of
Lords in Hughes v Lord Advocate [1963] AC 837.
More recently the House has again considered the problem and
analysed both the Wagon Mound (No 1) and Hughes v Lord Advocate
in Jolley v Sutton London Borough Council [2000] 1 WLR 1082. This
is in fact a case based on the Occupiers’ Liability Acts (see Chapter
6), but the common law principles were discussed and applied.
These cases show that it is not necessary to foresee precisely what
happened. In particular it is not necessary to foresee either (i) the
severity of the damage or (ii) the precise manner in which it
occurred. It is sufficient if the injury is of the type that could be
foreseen, even it came about in an unexpected way or was much
more severe than expected.
This can be illustrated by the facts of Jolley. The defendant council
had in breach of duty failed after several months to remove a
derelict cabin cruiser that had been abandoned on its land. The
issue was whether the council could foresee only that small
children would be injured by clambering over it, or whether (as
actually happened) teenaged children would be injured by jacking
it up and working underneath it in order to make it seaworthy. This
is in the end a matter of judgment – the Court of Appeal
unanimously held that the accident was not foreseeable, the House
of Lords unanimously held that it was.
The following case also illustrates the difficulty in drawing the line:
Doughty v Turner Metal Manufacturing Company [1964] 1 QB.
(b) The egg-shell skull cases

Before 1961 the courts had recognised what was called the ‘egg-
shell skull’ cases, and, after some hesitation it has been held that
the principle of these cases had survived the introduction of the
new rule for remoteness.
This looks like the issue discussed in Section 3.2.1 and the case of
Haley v London Electricity Board) but must be sharply distinguished
from it. This is a common source of confusion for students. In the
Haley kind of case the defendants had behaved in a way that
presented no danger to most people: only a person with a particular
susceptibility would have been in any real danger of injury at all.
Our present rule may be expressed this way:

Law of tort
where (i) the defendant is in breach of duty to the claimant

and (ii) it was foreseeable that the claimant would suffer some
physical injury
and (iii) the particular claimant has a particular susceptibility
or abnormality and as a result suffers more serious injury or
injury of a different type from that which was foreseen, then
the defendant is liable for that further injury.
The obvious situation is this: the defendant has carelessly struck the
claimant on the head. It is foreseeable that the claimant will suffer
cuts and/or bruises. The particular claimant however has an
exceptionally thin skull (an ‘egg-shell’ skull) and sustains a
fractured skill and serious brain damage. That was not foreseeable,
but the defendant is still liable for it.
There is a good example in Robinson v Post Office [1974] 2 All ER
737.
Notice that this case involves both a true causation point and an
egg-shell skull point. The defendant was liable for the negligent
grazing of the claimant’s shin. The claimant had an unforeseeable
allergy. The hospital administered an antitetanus injection without
carrying out the appropriate tests. Robinson had an allergy to the
injection and the reaction caused brain damage. There were two
elements to the decision:
The evidence was that, even if the proper tests had been
carried out, the allergy would not have been detected.
Therefore the hospital’s negligence was not a cause of the
brain damage (i.e. the ‘but for’ test (see 4.1.1) was not
satisfied.
Once the hospital’s negligence was out of the way, the allergy
was the equivalent of an egg-shell skull and, though it was
unforeseeable, the defendant was nevertheless liable for it.
(c) Financial weaknesses

What happens if the claimant has a financial rather than a physical
weakness?
If the defendant injures a claimant who happens, however
unforeseeably, to be a leading soccer star whose career is ruined,
then the defendant has, as with the egg-shell skull cases, ‘to take
the victim as he finds him’, i.e. to compensate the claimant for his
actual loss. What has to be foreseen is physical injuries that were
result in loss of employment. Once that has happened, the
defendant has to compensate for the actual loss suffered.
The position used to be less clear where the claimant suffers
additional damage because of poverty. The leading case was
Liesbosch Dredger v SS Edison [1933] AC 448 and many attempts
have been made to explain and distinguish it. The House of Lords
has however now decided that dicta in the Liesbosch case should
not be followed.
See also Lagden v O’Connor [2003] UKHL 64 [2004] 1 All ER 277
[see from [45]-[62]).

4.5 New and intervening cause

4.5.1 General
A particular problem of remoteness arises in the following
circumstances:
C (injured) X (intervening
conduct)
D (negligent)
D negligently collides with C’s car and injures him. On the way to
the hospital the ambulance driver X crashes into a tree and causes
C severe injuries. Or at the hospital a nurse Y administers to C the
wrong dose of the drug and causes brain damage. Or a patient Z
goes berserk and stabs C repeatedly. Is D liable not only for the
original injuries but also for the more serious later injuries caused
by X, Y or Z? This is the problem of the new and intervening cause
(in the cases this is often expressed in Latin as nova causa
interveniens or as novus actus interveniens). Clearly if it had not
been for D’s negligence C would not have been in the ambulance or
in the hospital and would not have suffered further injuries.
Therefore they were in a factual sense caused by the original
negligence: but were they too remote?
A word of warning: students often find it difficult to distinguish
between this problem and that described in 4.2.1. It is now possible
to make the distinction more fully. Think of the facts in the last
paragraph. C may have been a professional footballer. The injuries
sustained in the original car accident may have ended his career.
We may be interested in knowing whether D continues to be liable
for those consequences even after the stabbing which would
independently have destroyed his career. That is the problem dealt
with in 4.2.1 and associated with cases such as Baker v Willoughby.
The problem now being considered arises if it argued that D is also
liable for the additional consequences resulting from the stabbing.
The triangular situation just described should remind you of the
case of Dorset Yacht Co v Home Office [1970] (see Chapter 3). That
case is usually analysed in terms of whether the borstal officers
owed a duty of care to the owners of the yacht. Lord Reid reached
the same conclusion by considering whether the acts of the boys
were a new and intervening cause and deciding that they were not.
He held that the original tortfeasor could be liable for intervening
human conduct, whether that was criminal, negligent or innocent,
but only if it was ‘something very likely to happen: a mere
foreseeable possibility was not enough’. That phrase has been
considered in a number of later cases.

Law of tort
4.5.2 Intervening criminal conduct

The following cases are relevant: Lamb v Camden London Borough
Council [1981] QB 625; Perl v Camden London Borough Council
[1984] QB 342; Smith v Littlewoods Ltd [1987] AC 241.
In all these cases the claim failed. The Littlewoods case is
particularly instructive: note that there are two leading speeches,
those of Lord Mackay of Clashfern and Lord Goff of Chieveley, but
they followed different lines of reasoning. Lord Goff’s will be
considered under the heading of liability for omissions (Section
5.3). Lord Mackay’s reasoning relates more closely to the issues
discussed in this chapter.
Sometimes intervening criminal conduct, even though surprising, is Note: This is a striking example of a case
in which the Court of Appeal went
not too remote if it is closely related to the risk posed by the
through each of the elements of the
defendant’s conduct: Al-Kandari v Brown [1988] QB 665.
negligence action, i.e. duty, breach and
remoteness, one after the other.
Activity 4.6
Look at the Dorset Yacht, Lamb, Smith and Al-Kandari cases. In which of these
cases was the defendant liable for the consequences of the criminal behaviour of
others? Identify the differences in facts that led to liability in these cases and not
in the others.
4.5.3 Intervening negligent conduct

There could be many situations in which the subsequent
carelessness of some third party has caused new injuries. One
example is Knightley v Johns [1982] 1 WLR 399.
The most likely situation relates to medical treatment administered
to the victim.
Cindy is injured by the negligence of Daphne. She is taken to
hospital and as the result of her treatment her injuries are worse
than they were otherwise expected to be. Daphne has brought
about the need for hospital care. Does that mean that she has to be
answerable in law for the further medical complications or is she
entitled to assume that Cindy will receive proper care and pass on
responsibility to the hospital for the aggravation of the injuries?
The law is not entirely separated, but the following would seem to
be relevant distinctions.
(a) The hospital is not negligent, or, as in Robinson v Post Office
(see 4.4) the hospital’s negligence fails the ‘but for’ test (see 4.1). In
that case Daphne is likely to be liable for all the subsequent
injuries.
(b) Gross negligence by the hospital unconnected with the initial
injury (e.g. amputating the wrong leg). The implication of Robinson
v Post Office is that in such cases the defendant would not be liable
for the aggravation of the injuries.
(c) Where the hospital’s negligence falls between those two, it is
likely that it would not break the chain of causation, but that both
the original defendant and the hospital would be jointly liable for
the consequences. There is not conclusive authority on that point.

4.5.4 Intervening conduct by the claimant

So far it has been assumed that the new and intervening acts were
perpetrated by a third party: sometimes, however, subsequent
conduct by the claimant is in issue. Where the defendant is being
asked to take responsibility for the claimant’s own failures, there
are several conceptual mechanisms to be considered.
(i) Did the defendant owe a duty to protect the claimant against the
claimant’s own stupidity? See the discussion in Section 3.2.
(ii) Did the claimant’s own conduct break the chain of causation? It
is certainly likely that, where the defendant had a duty to protect
the claimant against an identified risk (e.g. that the claimant would
commit suicide), then the risk, if it materialises, cannot be a new
and intervening cause. (See the Reeves case below.)
(iii) Are any of the defences of voluntary assumption of risk,
contributory negligence or illegality available so as to defeat the
claim or reduce the damages available?
Examples of where the claimant’s subsequent actions are careless
are McKew v Holland & Hannen & Cubitts [1969] 3 All ER 162;
Wieland v Cyril Lord Carpets [1969] 3 All ER 1006.
Examples of where the claimant’s subsequent actions are deliberate
are Kirkham v Chief Constable of Greater Manchester Police [1990] 2
QB 283 and Reeves v Commissioner of Police for the Metropolis
[2000] 1 AC 360.
Activity 4.7
Cecil is injured in a road accident caused by the negligence of Delia. He is advised
by the doctors not to return to work for three months. He is very conscientious
and is bored at home, and his employer has a backlog of work. Cecil returns to
work after a month, but two days later while working on a stepladder he turns
dizzy and falls to the ground, breaking his arm. Is Delia liable for the broken arm?
Reminder of learning outcomes

By this stage you should be able to:
explain the concept of remoteness of damage in general and identify the
basic rules of remoteness in the tort of negligence
identify the policy reasons for choosing that rule of remoteness.
explain the concept of new and intervening cause and relate it (a) to the
actions of third parties and (b) to actions by the claimant subsequent to the
negligence of the defendant.

Law of tort
Sample examination question

In 2004 Theo was aged 19, an apprentice plumber and a talented rugby player.
He hoped to sign a contract as a professional player and eventually to play for
England. However he had back problems and so was referred to Ursula, a
neurosurgeon. She told him that it would be impossible for him to take part in
professional rugby without soon sustaining serious injury and no club would sign
him on as a professional. If he were to give up rugby she advised him that he
would be able to lead a normal life without back trouble for many years. There
was, however, a new surgical procedure that offered a very good prospect of
strengthening his back sufficiently to enable him to play rugby. Ursula knew that
recent research had suggested that the new procedure carried a small risk of
damaging the spine. Ursula was critical of this research and did not tell Theo
about it. Theo decided to have the surgery. Although the operation was carefully
performed, he suffered serious damage to his spine. He was then unable to work
as a plumber and suffered considerable pain.
In January 2005 Theo’s mother collapsed just outside her front door on a very
cold night. As there was no help available, Theo lifted his mother inside. He
experienced terrible back pains and is now permanently disabled.
Advise Theo as to any tort claim against Ursula on each of the following
alternative assumptions:
(a) he would probably have suffered no injury as the result of lifting his mother
but for the earlier operation
(b) he would probably have suffered the same injury as the result of lifting his
mother even if he had not had the earlier operation.
Advice on answering the question

This question raises issues on Chapters 3 and 4. [There is also a
minor point that the hospital or health authority will be vicariously
liable – see Chapter 13 – but no problem arises on that and it can
be stated in a sentence.]
(a) Ursula owes a duty to Theo. This is a classic duty situation and
no extended discussion is required.
(b) Is Ursula in breach? More discussion required, especially on
Chester v Afshar. You must carefully explain what Ursula has done
and why. She didn’t withhold the information from Theo because
there was only a small risk, but because she thought the research
suggesting that there was a small risk was flawed. Is that a breach
of duty?
(c) The main issues are causation:
(i) both scenarios: was Ursula’s negligence the cause of the original
injuries? (Chester v Afshar again).
(ii) On the first scenario, was Ursula also liable for the additional
consequences of lifting mother (McKew, etc.)?
(iii) On the second scenario, did Ursula continue to be liable for the
original consequences (loss of job as plumber) even after lifting
mother (Baker v Willoughby and Jobling)?

Feedback to activities: Chapter 4

Activity 4.1
(a) The driver is doing two things that are criminal (speeding and
using her mobile phone while driving). This does not necessarily
mean that they are tortious (see Chapter 1). However the courts
may take the view that Parliament has set a proper standard and
failure to observe it must therefore be a breach of civil duty of care.
There is some authority (about 50 years ago) that exceeding the
speed limit is not necessarily negligent (because in the particular
circumstances reasonable care was shown), but in the present
climate of opinion about speeding, this might be difficult to apply.
The main issue is that D cannot be liable unless C shows on a
balance of probabilities that D would have been able to stop if she
had not been speeding and using her phone.
(b) It might be important to know whether the brandy caused the
death (in which case the important issue is whether administering
brandy was a breach of duty) or whether the brandy was irrelevant
and the cause of death was a failure to call for an ambulance in the
sense that medical treatment would have saved C (in which case
the important issue is whether such failure was a breach of duty –
on this see 5.3).
(c) See McWilliams v Sir William Arroll.
Activity 4.2 It is important to distinguish the two issues. She has
to prove on a balance of probabilities that she would not have
suffered the actual damage (the head injuries) if the lifeguard had
carried out a careful rescue. But in turning this head damage into
money it is not necessary to show that she would probably have
become a solicitor. (For more on calculation of damages for
personal injuries, see Chapter 13.)
Activity 4.3 This case falls between Baker v Willoughby and
Jobling v Associated Dairies. The second event is not a natural
disease and it is not a tort. You have to decide which authority
should be applied to these facts. Both views are arguable.
Activity 4.4 Feedback provided at the end of the activity.
Activity 4.5 No feedback provided.
Activity 4.6 Among the relevant differences are these: (a) In
Dorset Yacht and to some extent in Al-Kandari there was
responsibility on the part of D for X. There was none in the other
cases. (b) Again in Dorset Yacht and Al-Kandari the criminal
conduct was the very thing that might have been expected and not
just a foreseeable possibility.
Activity 4.7 Clearly Delia’s negligence satisfied the ‘but for’ test of
causation, but does Cecil’s decision amount to a new and
intervening cause? Read McKew. Would you want to apply it to a
conscientious as well as a foolhardy claimant?

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Law of Tort

This is one of a series of subject guides published by the University. We regret

If you have any comments on this subject guide, favourable or unfavourable,

University of London External Programme 2

University of London External Programme 3

1.1 Definition, aims and functions of tort 6

1.3 Recommended reading 9

1.4 How to use this subject guide 10

1.5 The examination 10

Objectives of this subject guide

University of London External Programme 5

identify and describe the sources of law relevant to tort.

1.1 Definition, aims and functions of tort

What interests are protected by the law of tort?

Relations between tort and other forms of liability

6 University of London External Programme

explained in this way. Tort involves the breach of an obligation

1.1.2 Policy questions

Impact of European Community law

Impact of the Human Rights Act

8 University of London External Programme

modified in order to provide the necessary protection. See in

1.3 Recommended reading

University of London External Programme 9

It would be sensible to buy one of the standard textbooks referred

1.4 How to use this subject guide

1.5 The examination

Example of an examination question

You can look at previous years’ exam questions and examiners’

University of London External Programme 11

12 University of London External Programme

2.1 Structure of the tort 13

2.2 Organisation of the chapters 14

2.3 Policy questions 14

2.1 Structure of the tort

This sentence encapsulates the traditional tripartite structure of

University of London External Programme 13

the claimant will be a member of a very large and possibly ill-

2.2 Organisation of the chapters

2.3 Policy questions

14 University of London External Programme

importance of understanding these policy objectives and the way

University of London External Programme 15

become prohibitive. There may be other defensive consequences.

16 University of London External Programme

3.1 Duty of care 17

3.2 Functions of the duty concept 19

3.3 Breach of duty 23

3.1 Duty of care

were illustrations. The second purpose is one of limitation,

3.1.1 Finding a general test

The first question was whether there was a sufficient relationship of

c. The current test: foresight, proximity and fairness

18 University of London External Programme

Court of Appeal in that case was overruled by the House of Lords.

d. An alternative test: assumption of responsibility

3.2 Functions of the duty concept

University of London External Programme 19

3.2.1 Duty at the abstract level

Conduct causing damage

Examples of this problem would include the following:

a. Should a school b. Should a host at a c. Should a car