Law of Tort Coursework 2013-2014

Tort can be described as the area of civil law which provides a remedy for a
party who has suffered the breach of a protected interest 1. Winfield (1931)
defined that tortuous liability arises from a breach of legal duty to take care
which results in damage to the claimant 2. A wide scope of interests is protected
by the law of tort. Currently, the tort which is the greatest source of litigation is
that of negligence3. Negligence is a carelessness amounting to the culpable
breach of a duty which in other words, is the failure to do or recognise
something that a reasonable person would do or recognise4.
In order for a claim of tortuous liability in negligence to be actionable, certain
fundamental elements need to be established. The requirements of the
modern tort of negligence were stated in the case of in Donoghue v
Stevenson [1932]5 as being the existence of a duty of care owed by the
defendant to the claimant; a breach of that duty; a damage or injury caused by
that breach of duty and the damaged caused was not too remote. Each
aforesaid area must be examined, and principally established in each separate
claim against the defendant, for any proceedings for the claimant to be
successful.
This essay question raises issues relating to the tortuous law of negligence. In
advising the parties, the four elements to which an actionable claim for
tortuous liability in negligence will be further analysed in order to determine
whether these three companies; Bolters, Garages RUs Ltd and Shoddy Plc owe
a duty of care to Arnold and Belinda and the extent to which they are in breach
of such duty. What is more, it has to be examined what compensation they are
entitled to. The potential liability for each party will be looked at in turn in
discussing the rights and liabilities of all parties.
Before examining whether a duty of care was owed, it would be of great
significance to establish what is meant by a duty of care in the tortuous law
of negligence. Duty of care is defined in the Oxford dictionary of Law as the
legal obligation to take reasonable care to avoid causing damage 6. Prior to
1 Bermingham Vera & Brennan Carol, Tort Law: Directions (2012) p.2
2 W.H. Rogers, Winfield and Jolowicz on Tort (2010) p.132
3 Bermingham Vera & Brennan Carol, Tort Law: Directions (2012) p.2
4 Law Jonathan & Martin Elizabeth, Dictionary of Law (2009) p.365
5 Donoghue v Stevenson [1932] AC 562
6 Law Jonathan & Martin Elizabeth, Dictionary of Law (2009) p.187

1932, liability in negligence was restricted by the finding of a duty of care on a

case-by-case basis, particularly in situations where there was a pre-existing
relationship between the parties as such of an employer. Outside the
categories of established duty, a duty of care will be determined on the basis of
individual circumstances. In Donoghue v Stevenson [1932]7, the House of Lords
held that the manufacturer owed Mrs Donoghue a duty to take care that the
bottle did not contain foreign bodies which could cause her personal harm. This
is known as the narrow rule; that a manufacturer of goods owes a duty of care
to their ultimate consumer. The case established the neighbour principle
which determines whether the defendant owes a duty of care in any situation.
As per Lord Atkin, you must take reasonable care to avoid acts or omissions
which you can reasonably foresee the possibility of injuring your neighbour. A
question raised is who is considered my neighbour. Lord Atkin continued saying
that the answers seems to be the persons who are so closely and directly
affected by my act that I ought reasonably to have them in my contemplation
as being so affected when I am directing my mind to the acts or omissions
which are called in question. As Lord Macmillan said 8 the categories of
negligence can never close lead to a fair conclusion that the neighbour
principle is not limited in its application and new categories can be formulated
by the courts.
The basic consideration of the neighbour principle was reconsidered in the
case of Caparo Industries plc v Dickman [1990] 9. Lord Bridge established a
three-stage test for imposing a duty of care, known as the Caparo test. Under
the Caparo test the claimant must establish that harm was reasonably
foreseeable, there was a relationship of proximity and that it is fair, just and
reasonable to impose a duty of care. Caparo v Dickman redefined the
neighbour test adding the requirement for a sufficient proximity in a
relationship and that the imposition must be fair, just and reasonable. Where
there exists a special relationship between the parties there is a legal duty of
care as in the case of Carmarthenshire County Council v Lewis [1955] 10 which
was the relationship of parent and child.
Considering the case of Carmarthenshire County Council v Lewis [1955] 11, it
would be reasonable to conclude that these is a duty of care to Belinda which is
transferred from the duty of care owed to her father who was employer to all
three of these companies.

7 Donoghue v Stevenson [1932] AC 562

8 Donoghue v Stevenson [1932] AC 562
9 Caparo Industries plc v Dickman [1990] 2 AC 605 (HL)
10 Carmarthenshire County Council v Lewis [1955] AC 549 (HL)
11 Carmarthenshire County Council v Lewis [1955] AC 549 (HL)

Bibliography
Legislation:
UK
Compensation Act 2006
Cases:
Carmarthenshire County Council v Lewis [1955] AC 549 (HL)
Donoghue v Stevenson [1932] AC 562
Industries plc v Dickman [1990] 2 AC 605 (HL)

Books:
Bermingham Vera & Brennan Carol, Tort Law: Directions (3rd edition, Oxford University Press,
2012)
Giliker Paula & Beckwith Silas, Tort (4th edition, Sweet & Maxwell, 2011)
Law Jonathan & Martin Elizabeth, Dictionary of Law (7th Edition, Oxford University Press 2009)
Lunney Mark & Olphant Ken, Tort Law: Text and Materials (4th edition, Oxford University Press,
2010)

W.H. Rogers, Winfield and Jolowicz on Tort (18th edition, Sweet & Maxwell, 2010)