AD MAJOREM DEI GLORIAM

T H E LAW O N NEGLIGENCE
By

Malay KR Ghoshal Kumar of Sunderbans

CHAPTER ONE

THE PRINCIPLES OF THE LAW ON NEGLIGENCE AT A BRIEF GLANCE

The constitution of ‘negligence’ – as recognized by the law – consists three major elements,
namely:

1. a duty (as imposed and deemed by the law);

2. a ‘breach’ or (unjustifiable) violation of that (particular) duty; and
3. the (consequential) damage or injury (viz. due to the ‘breach’ concerned).

Thus, in order to succeed in a case on negligence the complainant/s (hereafter

‘plaintiff/s’) ought to show that the criteria – stated above – are fulfilled. Indeed, unless
and until the said criteria are fulfilled, there cannot be any ‘negligence’ in the eyes of
the very law and, consequently, no (lawful) action can be founded on any branch of the
law on ‘negligence’.
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However, the criteria, stated above, do not lay an undue or unjust burden upon the
plaintiff since the plaintiff remains entitled to win his case once he has established that
the defendant has been negligent, and the defendant’s negligence has caused the
damage or injury concerning which the plaintiff is complaining. Nevertheless, in order
to appreciate the principles of negligence, we may find meaningful to study the subject
in a clarified definition – as may well be found in the introduction – below.

INTRODUCTION

(A) Intention and Negligence

The term ‘negligence’ has three connotations, namely – (1) a careless state of mind; (2)
a careless conduct or act – a mode of committing torts, e.g. trespass or nuisance, which
are not distinctly negligence; and (3) an independent tort with which we are mainly
concerned in the following sections. Each of these, however, demands a particular
mental element or attitude. In one case the defendant is desirous to cause some damage
or injury to the plaintiff while in another case the defendant neither intends to cause any
damage nor intends to cause any injury to the plaintiff yet the defendant fails to take
reasonable care in order to avoid such damage or injury and, consequently, exposes the
plaintiff to suffer the damage or injury at issue. In the latter case the defendant is
deemed ‘negligent’ in failing to fulfil his legal obligation and is, therefore, held
‘answerable’ by the law on ‘negligence’, since in the view of the law a ‘negligent
wrongdoer’ is he who fails to care (or does not reasonably care) whether his failure to
fulfil his legal duty causes damage or injury to another person or not. In other words:
the ‘wilful wrongdoer’ is he who intends to cause harm to another person; the
‘negligent wrongdoer’ is he who fails (without any justification) to avoid such harm.
‘Negligence’ and ‘intention’ are deemed inconsistent and exclusive for - in the eyes of
the law – a wrongdoer who acts ‘negligently’ cannot act ‘intentionally’ at the very same
moment in order to cause the same harm – whether damage or injury, and vice versa.

There are, however, three major factors, which are likely to increase confusion, if called
upon to interpret the noun ‘-negligence-’ as recognized by the existing law. First of all,
in accordance with the current view of the law, an action on trespass may be founded if,
but only if, ‘intention’ or ‘negligence’ can be established. Secondly, an action on
‘negligence’ does not arise merely due to ‘careless conducts’ (whether in omission/s or
in commission/s) but also due to ‘intentional conducts’: it would, for example, be no
defence to plead that the conduct, which caused the harm, amounted to a serious crime.
Thirdly, there is the constant citation of the proverb: “A man must be taken to intend the
natural and probable consequence of his act.” Indeed, such a proverb may
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sometimes be misleading. This is, perhaps, best reflected by Lord Reid in the case –
Gollins v. Gollins [(1964) A.C. 644] – in which it was said, “…In fact people often
intend something quite different from what they know to be the probable and natural
result of what they are doing. To take a trivial example, if I say (that) I intend to reach
the green, people will believe me although we all know that the odds are ten to one
against my succeeding, and no one but a lawyer would say that I must be presumed to
have intended to put my ball in the bunker because that was the natural and probable
result of my shot….”

(B) Inadvertence

In most cases ‘negligence’ is accompanied by ‘inadvertence’. Therefore, it is not

uncommon that the ‘negligent wrongdoer’ does not intend to cause the harm upon the
plaintiff, concerning which the plaintiff complains; he does not advert to the wrong
concerned; the possibility or probability of the damage or injury in question does not
even occur to his mind; he is unable to believe in the consequence or the result of his
conduct. There are, nevertheless, exceptions to these rules. This is called ‘wilful’, viz.
‘conscious and advertent negligence’. In such a case the wrongdoer is deemed neither
desirous nor willing to cause the harm at issue, yet he consciously and intentionally
exposes others to the risk of the very harm. Such an “episode” is sometimes phrased as:
“an attitude of mental indifference to obvious risks”.
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CHAPTER TWO

THE TORT OF NEGLIGENCE

(A) The Principles of Negligence

The ‘principles of negligence’ (viz. the intention of compensating the injured plaintiff)
is not ‘new’ in the eyes of the law, albeit the leading case – Donoghue (or M’Alister) v.
Stevenson [H.L. (1932) A.C. 562] enabled the judiciary – as a whole – to
categorize/recognize ‘negligence’ as a distinct tort, “giving birth to a new era”. It is
known that the “spirit of negligence” enabled courts of the common law to compensate
victims of ‘nervous shock’ as early as in the late nineteenth and early twentieth
centuries [Blyth v. Birrmingham Waterworks Co. (1856) 11 Exch.; Wilkinson v.
Downton (1897) 2 Q.B. 57; Duliew v. White & Sons (1901) 2 K.B. 669]. However, by
the year 1932 it became necessary for the House of Lords to consider the necessity of
changes in the very system of the (then) existing law. Hearing the appeal from Scotland
in Donoghue(or M’Alister) v. Stevenson (ibid), the House of Lords decided (by a ratio
of 3:2) that the law entitled a “victim consumer” to recover compensation for personal
injuries against the ultimate manufacturer - even in the absence of any contractual
relationship.

It is, nevertheless, significant that ‘negligence in tort’ is an actual conduct as

distinguished from mere state of mind, albeit such a conduct does not necessarily
require “a great risk of damage”. This ensues that legal actions on ‘negligence’ cannot
be founded due to the defendant’s state of mind alone. The plaintiff is required to
establish that the defendant’s state of mind in question was accompanied by some
unjustifiable conduct, leading to the damage or injury at issue, even though it is not
necessary to find an element of “fault” in the sense of moral blameworthiness on the
defendant’s part: as the legal proverb goes, “The law of torts does not aim to penalize
the tort-feasor but rather to compensate the victim”. The proverb does not, however,
apply to every branch of the law of torts. Under certain circumstances the law is fully
justified in penalizing the tort-feasor while compensating the victim [Rookes v.
Barnard (1964) A.C. 1129].
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(B) The Conclusive Summary

The ‘principles on negligence’ may, thus, be summarized by concluding: in ‘negligence’

the defendant owes the plaintiff a specific legal duty; the defendant breaches the said
duty unjustifiably; consequently the plaintiff suffers damage or injury of a kind or
another – as recognized by the law.

However, “…(i)n strict legal analysis, negligence means more than heedless or careless
conduct, whether in omission or in 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. M. Mullan (1934) A.C. 1]. The reason
is, perhaps, best stated by Alderson B. in Blyth v. Birmingham Water Works Co.
[(1156) 11 Exch.] where the renown Baron is reported to have said, “…negligence is
the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man would not do….”

CHAPTER THREE

“THE REASONABLE MAN”

(A) The Standard is Objective

The law does not hold the defendant negligent merely because the conduct of the
defendant has led to the plaintiff’s suffering damage or injury. The plaintiff is required
to show that the defendant acted thus despite the latter’s ‘reasonable foresight’ of the
probability or possibility of the occurrence of the very damage or injury in question.
The ‘reasonable foresight’ may be defined as the anticipation of a “reasonable man”.
However, such a definition is almost certain to raise the question: “Who is a
‘reasonable man’?” Most people consider themselves to be “reasonable”, even though
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many of them are supposed by others to be of extreme temperament. “…The standard

of foresight of the reasonable man eliminates the personal equation and is independent
of the idiosyncrasies of the particular person whose conduct is in question. Some
people are by nature unduly timorous and imagine every path be set with lions. Others,
of more robust temperament (and therefore) fail to foresee or nonchalantly disregard
even the most obvious dangers. The reasonable man is presumed to be free both from
over-apprehension and over-confidence….” [per Lord Macmillan in Glasgo
Corporation v. Muir (1943) A.C. 488]. The standard of the ‘reasonable man’ had
already been measured in an earlier case – Hall v. Brooklands Racing Club [(1933) 1
K.B.] – in which Greer L.J. is reported to have said, “…The person concerned is
sometimes described as ‘the man in the street,’ or ‘the man on the Clapham omnibus,’
or as I … recently read in an American author, ‘the man who takes the magazine at
home and in the evening pushes the lawn mower in his shirt sleeves….”

All the standards – measured above – classify “one and the same” standard. In other
words: the standard of ‘the reasonable man’ is an “objective standard” of a person of
intelligence and prudence in average: ‘the reasonable man’ – as deemed by the law – is
neither a genius nor foolhardy; he is considered to be neither exceedingly careful nor
extremely careless. Thus, anyone – who fails to ‘foresee’ or anticipate the risk of danger
– recognized objectively in accordance with the measured standard – and consequently
causes the plaintiff to suffer damage or injury – may be held liable on ‘negligence’. In
Vaughan v. Menlove [(1837) 3 Bing. N.C. 468] it was argued by the defendant that he
had acted bona fide, but the argument was rejected by Nicolas Trindal C.J. who said,
“…Instead, therefore, of saying that the liability for negligence should be co-extensive
with the judgment of each individual, we ought rather to adhere to the rule which
requires in all cases a regard to caution such a man of ordinary prudence would
observe….”

(B) “Different Degrees of Negligence” are not recognized

It has, already, been indicated that the ‘standard of foresight’, measured by the law, is
that of a ‘reasonable man’, viz. an objective one. This follows, logically, that ‘different
degrees of care’ or ‘different degrees of negligence’ cannot be recognized by the law.
The sole ‘standard of care’ which is expected to be exercised by the defendant, is the
objective standard which can reasonably be expected of a careful and prudent person –
in average - in the defendant’s stead, and the ‘sole form of negligence’ is the failure to
maintain such a standard or the failure to exercise such ‘reasonable care’. No doubt,
such expectations are likely to vary, depending on the very cases concerned as, for
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example, a ‘reasonable man’ is expected to exercise much greater care when handling a
loaded gun or a “bomb” in a busy market place than handling a stick or a foot-ball in a
“remote and vacant” field [Beckett v. New Walls Insulation Co. Ltd. (1953) 1 W.L.R.
8]. It is, nevertheless, noteworthy that although – depending on the circumstances in
question – variation of the exercising of the ‘special care’ is expected yet “the one and
the same objective category is created” in which alone a ‘duty’ is deemed to exist
[Bressington v. Railway Commissioner (1947) S.R.N.S.W. 472]. Consequently, a
“layman” need not be expected to act in a manner which can reasonably be expected of
a specialist alone. If, however, the “very layman” chooses voluntarily to act (without
any lawful justification) in a manner, “holding himself out” as a specialist and, thereby,
causes damage or injury to the plaintiff, the former may well be held liable under the
maxim – impertia culpae adnumeratur - simply because it is ‘negligence’ – in the very
eyes of the law – to cause damage or injury to the victim by misleading him voluntarily.
In other words: it is deemed to constitute an act of ‘negligence’ to undertake
(voluntarily) a responsibility - without the possession of the required skill – if the
discharging of the very responsibility demanded the possession of such skill. Thus, for
instance, although a jeweler need not necessarily be expected to be fully aware of all
the dangers, recognized by the medical profession, when piercing the ears of a
“customer”, wishing to wear earrings, yet the awareness of such dangers may
reasonably be expected of a person, who holds himself out as a member of the medical
profession - even in cases in which the latter pierces the ears of “his patient”, enabling
her to wear earrings [Phillips v. Whitley Ltd. (1938) 1 All E.R. 566; Whiteford v.
Hunter (1950) W.N. 553; S.R.N.S.W. 472]. It is, nonetheless, important to remember
that – in accordance with the law on negligence – the defendant does not owe the
plaintiff ‘skills’ but ‘care’ and, consequently, the defendant’s ‘negligence’ does not
consist in lacking ‘skills’, but in undertaking a task without the possession of the
required skill, viz. the very failure to exercise the ‘care’ at issue.

(C) Defendant’s (Personal) Incapacity is deemed irrelevant

The principle, laid down above, applies to the lack of any qualification for the safe
conduct of any operation – such as knowledge, sound judgment, sound health, physical
strength and/or the possession of any mental or physical faculty. True be it that a person
should not be blamed for “being denied” of good sense, a retentive memory, a quick
apprehension or a sound eye-sight, provided the person does not voluntarily undertake
any responsibility which requires the possession of such mental or physical faculties. If
however, the same person, being reasonably aware of his incapacity undertakes
(voluntarily) any responsibility, demanding the very possession of the required
faculties, and thereby leads the plaintiff to suffer damage or injury, the former is
deemed ‘negligent’, and “his defensive argument” that (he unlike a person in average
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did not possess the required faculties) is likely to be set aside. Thus, for example, a
blind pedestrian may be excused if he accidentally injures a “passer-by” while moving
the former’s “walking stick” in order to pursue the rightful passage. Nevertheless, the
same blind man remains unlikely to escape liability on ‘negligence’ if he decides
(voluntarily) to drive a fast-moving vehicle or discharge a “loaded gun” in a busy street
and thereby causes damage or injury to the plaintiff. The law “…does not attempt to see
a man as G(OD) sees him, for more than one sufficient reason…. If, for instance, a man
is born hasty, and awkward, is always having accidents and hurting himself or his
neighbours, no doubt his congenital defects will be allowed for in the [C]ourts of
Heaven, but his slips are no less troublesome to his neighbours than if they sprang
from guilty neglect….” [Homes, The Common Law, p. 108; also quoted by Lord Reid
in Grath v. National Coal Board {-also found in Salmond on Torts (5th. Ed.)}] .
[Although the custodian of a minor may be held answerable for the minor’s tortuous
misconduct yet the law does not “categorize” a child as if the child were capable of
foreseeing a wrong exactly like a person of full age, full capacity and full intelligence.
The law on negligence judges a “child wrong-doer” (termed as a “minor”) in
accordance with the ‘standard of care’ which can reasonably be expected of a child in
average, belonging to the age of the “child wrong-doer” (or “minor”) at issue.]

However, if a handicapped person were placed (without his “free choice”) in a

situation, which led to the plaintiff’s suffering damage or injury, the former might not
be judged according to the standard, expected - on reasonable grounds – of a person of
full ability/capacity. The handicapped defendant might well be justified in “washing his
hands” by showing that “he had done his best” in avoiding the wrong in question, albeit
the outcome might differ if the handicapped person had voluntarily undertaken the risk
which should not have been undertaken by a person of the defendant’s
inability/incapacity.

(D) The ‘Test of Foresight’ – Advantages and Disadvantages

The advantage of the ‘test of foresight’ is that it keeps the law in touch with the needs
of the “ordinary man”. The disadvantage of the test of foresight is that in a complex
society the “ordinary man” may have but little knowledge of the activity under
consideration so as to entitle him to set the appropriate standard of care. There are
confusing results of contradictory decisions which lay no clear guide/s for conduct.
In Overseas Tankship (U. K.) Ltd. v. Morts Dock & Engineering Co. - The Wagon
Mound [(1961) A.C. 388], for instance, the Judicial Committee of the Privy Council
held that the damage in question could not have reasonably been foreseeable while in
Wagon Mound No. 2 [(1966) 2 All E.R. 709; 1 A.C. 617] the same Judicial Committee
 -: 9 :-

of the Privy Council held that the defendants ought to have foreseen – on reasonable
grounds – the likelihood of the damage by fire and were, therefore, liable in breaching
their duty owed to the plaintiffs.

(E) Comments

The sole standard, set and recognized, by the law on ‘negligence’ (-as we have already
seen-) is that of a “prudent and reasonable man”, and anyone who fails to maintain such
a standard, causing harm to the plaintiff, may be held answerable by the very law itself.
Thus, it may be commented: “negligence is a species of fault liability”. It, nevertheless,
remains in the social interest to prevent (or at least to minimize) the occurrence of any
damage or injury as a whole if, at all, possible. Therefore, it may well be appropriate to
reiterate the very words of Alderson B. who in the leading case – Blyth v. Birmingham
Water Works Co. [(1856) 11 Exch.] – is reported to have said, “…Negligence is the
omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do; or doing something
which a prudent and reasonable man would not do….” Consequently, the required
‘standard of care’ is not expected to be measured in accordance with the “standard of an
ideal and perfect citizen” but according to the standard which can reasonably be
expected of an intelligent and prudent person in average or – as this “person” is also
called – ‘the reasonable man’.
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AN IRONOCAL POEM ON THE “REASONABLE MAN”

“The reasonable man”

Is “the man on the street”,
Yet he’s the most unique
Of all characters to meet.

He never makes an error

- Not even one mistake.
He ever acts reasonably
For justice’s sake.

He never takes a step

Without being careful.
He never shows any emotion
But remains “calm and cool”.

He drives fast an ambulance

To save a patient’s life,
But he never takes part
In a “joy-riding strife”.

He never leaves home

Before securing his door.
Without paying his bill
He never leaves a store.

He acts reasonably
Both day and night.
He depends confidently
On “reasonable foresight”.

Thus even when judged

By the “law’s cautious scan”,
He is considered to be
The most “reasonable man”.

By

Malay KR. Ghoshal of Kumar of Sunderbans.

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CHAPTER FOUR

THE CONCEPT OF THE DUTY OF CARE

(A) ‘Carelessness’ and ‘Negligence’

The “required elements” of ‘duty’, ‘breach’ and ‘consequential damage’ or ‘injury’ in

establishment of ‘negligence’ have already been defined above, albeit very briefly. Now
we proceed on to behold the principle/s in more elaborated details.

In order to found an action on ‘negligence’ it is not sufficient to show that the defendant
has been ‘careless’. It is also irrelevant to state merely that the plaintiff has suffered
damage or injury due to the defendant’s conduct. No (lawful) action can be founded on
‘negligence’ unless and until the plaintiff establishes that the defendant owed the
plaintiff a specific legal duty which the defendant violated (without any lawful
justification), leading to the damage or injury concerning which the plaintiff is
complaining. It is the existence of the very legal duty which must be proved – “…a
most vicious elliptical habit,” yet one which is too easy to acquire, “by transposing the
word ‘careless’ to ‘negligent’ to dismiss from one’s mind the essential problem, namely
whether or not, there was in any particular case a failure of (the) duty….” [per Slesser
L.J. in Sharp v. Avery (1938) 4 All E.R. 85]. “…It is essential (at the common law) that
the duty should be established: the mere fact that a man is injured by another’s act,
gives (by) itself no cause of action: if the act is deliberate, the party injured will have no
claim (at) law even though the injury is intentional so long as the other is exercising a
legal right: if the act involves a lack of due care, again no case of actionable negligence
will arise unless the duty to be careful exists…” [per Lord Reid in Grant v. Australian
Knitting Mills Ltd. (1936) A.C. 85; 105 L.G.P.C. 6].

(B) Duty – a Question of the Law

It is of considerably great significance to bear in mind that not every careless act is
actionable at law. In order to found an action on ‘negligence’, it is necessary to show
that the defendant owed the plaintiff a (legal) duty to take care. No doubt, some of the
duties in existence are common to all ‘torts’. They are part of the ‘duty-situation’ at the
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‘law of torts’ in general and, as such, are a part of the ‘duty of care’ at the law on
‘negligence’. This, nevertheless, should not be taken to imply that the list of ‘duty-
situation’ is closed, since both the legislative and judicial authorities remain entitled to
impose additional duties or modify the existing ones whenever circumstances so
require. What it really means is that, at any given moment, the kind of harm in question,
the careless infliction of the very harm, and the parties concerned in the litigation at
issue have to be ascertained and recognized by the law. Unless and until such criteria
are met, there cannot be a prima facie case, founded on ‘negligence’. This is certainly
one of the main reasons to be fully acquainted with the ‘case law’. In the very words of
Parcq L.J. in Deyong v. Shenburn [(1946); Slamond on Torts (5th.Ed.)]: “…It is not
true to say that whenever a man finds himself in such a position that unless he himself
does a certain act another person will suffer, or that if he does something another person
will suffer, then it is his duty in the one case to be careful to do the act and in the other
case not to do the act. Any such proportion is much too wide. There has to be a breach
of duty which the law recognizes, and to ascertain what the law recognizes regards
must be paid to the decisions of the courts….”

Thus, the very law itself remains duty-bound to raise the question in each individual
case or circumstance whether a (legal) duty to take care exists. “…It is remarkable how
difficult it is to find…in authorities statements of general application defining the
relations between the parties that give rise to the duty. The Courts are concerned with
the particular relations which come before them in actual litigation, and it is sufficient
to say whether the duty exists in those circumstances. The result is that the Courts have
been engaged upon an elaborate classification of duties as they exist in respect of
property, whether real or personal, with further divisions as to ownership, occupation or
control, and distinctions based on the particular relations of the one side or the other,
whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In
this way it can be ascertained whether the law recognizes a duty, but only where the
case can be referred to some particular species which has been examined and classified.
And yet the duty which is common to all the cases where liability is established must
logically be based upon some elements common to the cases where it is found to
exist….” [per Lord Atkin in (M’Alister or) Donoghue v. Stevenson (1932) A.C. 562].
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(C) The Neighbour Principle

The ‘neighbour principle’ – as is widely accepted and recognized by the law on

‘negligence’ of this very day – was defined by Lord Atkin in the leading case –
(M’Alister or) Donoghue v. Stevenson [(1932) A.C. 562] – as early as in the year 1932
when His Lordship indicated that the defendant remained liable when the defendant, in
spite of his ‘reasonable foresight’ or anticipation of endangering the plaintiff to the risk
of harm in question, caused the very damage or injury to the plaintiff. Having referred
to examples of specific situations or relations in which a ‘duty to take care’ was deemed
to exist, Lord Atkin continued, “…In this way it can be ascertained whether the law
recognizes a duty, but only where the case can be referred to some particular species
which has been examined and classified….

“The liability for negligence, whether you style it such or treat it as in other systems as
a species of “culpa,” is no doubt based upon a public sentiment of moral wrongdoing
for which the offender must pay. But acts or omissions which any moral code would
censure cannot in a practical world be treated so as to give a right to every person
injured by them to demand relief. In this way rules of law arise which limit the range of
complaints and the extent of their remedy. The rule that you are to love your neighbour
becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is
my neighbour? receives a restricted reply. You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who
are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question….”

In order to assess the laudable principle laid down by the renown Lord of Appeal-in-
Ordinary, it may well be of significance to study the case – (M’Alister or) Donoghue v.
Stevenson (supra et ibid) – in the light of the relevant facts. According to the allegation
of Mrs. Donoghue (nee M’Alister): a friend of hers purchased a bottle of ginger beer
for her in Minchella’s café in Paisley; that Minchella took the metal cap off the bottle
[which (i.e. the said bottle) was made of dark opaque glass] and poured some of the
contents into a tumbler; that having no reason to suspect that it was anything other than
pure ginger beer, she drank some of the contents; that when her friend refilled her glass
from the bottle, there floated out the decomposed remains of a snail; that she suffered
(from) shock and severe gastro-enteritis as a result of the nauseating sight and the
impurities which she had consumed. She argued that the said ginger beer had been
manufactured by the defenders to be sold as a drink to the public (including herself);
that the said ginger beer had been bottled by the defenders and labeled with a label
bearing their name; and that the defenders had sealed the bottle with a metal cap. She
also maintained that it had been the duty of the defenders to provide a system in their
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business which should have prevented snails, entering their ginger beer bottles, and to
provide an efficient system of inspection of bottles prior to their being filled with ginger
beer, and that their failure to fulfil such ‘duties’ led to her suffering the very harm at
issue. The defenders objected inter alia on the ground that the plaintiff had not been
their contractual partner either immediately or mediately. The Lord Ordinary, having
overruled the defenders’ objection, intended to proceed with the evidence. The
defenders appealed to the Second Division of the Court of Session, which adhering to a
preceding judgment in Mullen v. Barr [(1929) S.C. 461], allowed the appeal. The
plaintiff appealed to the House of Lords, and the House held that the plaintiff would
have a sound cause of action provided the plaintiff could support her allegation on
evidence.

No doubt, many courts of common law were somehow unsure of the applicability of the
‘Atkenian neighbour principle’ at an initial stage. Nevertheless, as the years went by,
the ‘principle began to be appreciated increasingly, and its place in the law on
‘negligence’ is currently “well secured” and is considered indisputable.

CHAPTER FIVE

‘FORESIGHT’ – A CRITERION OF LIABILITY?

Soon after the introduction of the ‘Atkenian neighbour principle’ to the law on
‘negligence’, the courts of the common law were confronted with a difficult question as
to the extention/limitation of the ‘principle’. If Lord Atkin’s statement in (M’Alister or)
Donoghue v. Stevenson [(1932) A.C. 562 – ibid] were accepted literally without any
regard to the qualifying effect of its context or subjecta materies, it would certainly
comprehend conducts of any kind (including ‘negligent misstatements’) causing
damage of any kind to anyone who could bring himself within “…the definition of a
neighbour. But doing this might lead to the error of assuming that Lord Atkin was
intending to formulate a complete criterion—almost like a definition in the
prolegomena to a new theory of philosophy….” [Haseldine v. Daw (1941) 2 K.B.].
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(A) Foresight is not the sole Criterion

It is important to bear in mind that the ‘Atkenian neighbour principle’ – however

laudable – does not necessarily apply to every single branch of the ‘law of torts’.
‘Defamation’, ‘inducement of the breach of contract’ and ‘conspiracy’ are, perhaps, the
best examples of such branches. (In such cases the interests of the individual/s are
protected by other appropriate means of the law – often by other means of the common
law – which came to exist prior to the “Atkenian age”.) Thus, the application of the
principle of ‘reasonable foresight’ is not the necessary and sufficient condition in the
‘law of torts as a whole’: it is not necessary because it is not required, for example, in
the ‘tort of strict liability’ [Rylands v. Fletcher (1868) L.R. 3 H.L. 330]; it is not
sufficient because even within the field of the law on ‘negligence’ in some cases, for
instance, in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. – The
Wagon Mound [J.C.P.C. (1961) A.C. 388; Watt v. Hertfordshire County Council [C.A.
(1954) 1 W.L.R. 835], the defendant/s may “escape liability”.

It is, nevertheless, of great importance that the “principle of Atkenian proximity” is

applied wherever justice so requires, albeit there are limits to the actions on
‘negligence’ even for the very reasons of policy. This does not, however, mean that the
‘catalogue of duties’ is closed and incapable of further expansion, since there is not a
single trace of doubts that the ‘Atkenian neighbour principle’ remains a priceless
practical guide to point the way to any better destination – not withstanding the fact that
proper balance of the justifiable applicability and non-applicability of the ‘principle’ is
maintained, depending on all the relevant circumstances of each individual case.

(B) The Duty of Care and the Remoteness of Damage

In order to succeed in action on ‘negligence’ the plaintiff is required to establish the

facts that the defendant did not merely foresaw (on reasonable grounds) the harm,
concerning which the plaintiff is complaining but the damage concerned was not too
remote. No doubt, it would, for instance, reduce the danger of traffic accidents on the
roads dramatically if vehicles were not permitted to move on public streets. Such
“prohibition” would, nevertheless, cause such inconvenience to the public as a whole
 -: 16 :-

that the risk of traffic accidents on public streets is considered negligible and, therefore,
justifiable. Thus, in Watt v. Hertfordshire county Council [C.A. (1954) 1 W.L.R. 835]
it was decided that such a risk as to use a lorry instead of a fire-engine in an emergency
(when a fire-engine was not immediately available) was fully justified even though the
remote risk of a jack’s sliding and causing injuries to the plaintiff had not been ruled out
prior to the rescue operation at issue.

(C) “Proximity”

The term “proximity” was used by Lord Atkin while explaining the ‘neighbour
principle’ in the leading case – (M’Alister or) Donoghue v. Stevenson [H.L. (1932)
A.C. 562 – supra]. [It may – at this stage – be meaningful to “re-acquaint” ourselves
with the Biblical Doctrine of the “Good Samaritan” {The Holy Gosple according to St.
Luke (Ch. 10: verses 25-37)} where JESUS CHRIST was pointing out,
“neighbourhood can expand to any and every part of the world wherever victims of
adversity are found, and not limited to one’s immediate vicinity”.] On the one hand, the
geographical proximity between the litigating parties is not (“all by itself”) sufficient to
establish liability, while on the other hand, the absence of ‘proximity’ does not
necessarily hinder the establishment of liability. Thus, in (M’Alister or) Donoghue v.
Stevenson (ibid) the manufacturers of ginger-beer were held liable for negligence
despite the fact that there had been no contractual relationship between the plaintiff and
the defendant-manufacturers when the plaintiff suffered harm due to the defenders’
negligence.

(D) The Main Functions of ‘Reasonable Foresight’

In the past some confusion arose while trying to comprehend the different functions of
the concept of the ‘reasonable foresight’. In one case it was thought to ascertain
whether it was necessary to add “new duties” to the list of duties which had already
been in existence, while in another case it was thought to ascertain the scope or extent
of an admitted duty. The point was illustrated in the case – (M’Alister or) Donoghue v.
Stevenson [H.L. (1932) A.C. 562 - supra] – when Lord Atkin “imposed a new duty”
and adduced the ‘neighbour principle’ as his authority for doing so.
 -: 17 :-

(E) The Nature of the Interest infringed

We saw above that the law of torts does not generally intend to penalize the defendant
but rather to compensate the plaintiff-victim. Under such circumstances one may well
be tempted to query whether the mental element of the defendant (--as required by the
criminal law--) is of any relevance at all when the law on ‘negligence’ is applied. Such
queries become extremely important particularly in cases, concerned with financial
loss, suffered due to the information, provided by the defendant, since in such cases
‘fraud’ and ‘negligence’ depend on the presence or absence of ‘some vicious mental
element/s’, respectively. “Exceptions prove the rules”, and, no doubt, there are
exceptions to the established rule/s where, for example, the defendant makes injurious
statement and proves later in his defense that while making his statement, he – the
defendant – had not intended to cause the plaintiff any harm or loss. “…Those cases
where a person within whose special province it lay to know a particular fact has given
an erroneous answer to an inquiry made with regard to it by a person desirous of
ascertaining the fact of the purpose of determining his course…. What it really in this
connection is, not moral found in the ordinary sense, but breach of the sort of obligation
which is enforced by a court which from the beginning regarded itself as a court of
conscience…. ” [per Lord Hershell in Derry v. Peek [(1889) 14 A.C. 337].

CHAPTER SIX

ECONOMIC LOSS

Once upon a time it was believed that damages should not be awardable for some pure
economic loss. The current law is, however, deemed to have changed its view and has
awarded compensation to the victims of economic loss, even though “no evidence” of
physical injuries or nervous shock was established by the plaintiffs [Home Office v.
Dorset Yacht Co. (1970) A.C. 1004; Anss v. Merton London Borough Council (1978)
A.C. 728]. In order to appreciate the current view of the law, one may find it desirable
to acquaint oneself briefly with the relevant facts of two cases, named above.

The relevant facts in Home office v. Dorset Yacht Co. [(1970) A.C. 1004] were as
follows: seven “Borstal boys” (--five of whom had been known to have escaped on
preceeding occasions--) were on a “training exercise” on Brownsea Island in Portland
 -: 18 :-

Harbour. One night when all the three officers in charge of the “Borstal boys” were
sleeping (even contrary to the issued instructions), the boys boarded one of the many
vessels, found in the harbour, and in an effort to escape, collided her with the plaintiffs’
yacht, which the boys then boarded and damaged as well. Hearing an appeal, the House
of Lords, found the defendants vicariously liable and awarded the plaintiffs
compensation.

In Anns v. Merton London Borough Council [(1978) A.C. 728] the plaintiffs – in
accordance with the relevant facts – were leaseholders of flats in a block built by
Walcroft in 1962. The cracking of the built walls and the tilting of the floor were
detected for the first time in 1970. In the course of the legal proceeding, the plaintiffs
established that the settlement was attributable to the inadequacy of the foundations. In
1972 the plaintiffs issued a writ against Walcroft, claiming damages for the breach of
contract and for the violation of Section 6 of The Housing Act 1957; the plaintiffs also
issued a writ against the local authority, claiming compensation for ‘negligence’ in
failing to inspect the foundations properly or to detect on inspection that the
foundations were shallower than required by the bye-laws or as indicated by the
approved plans. The defendants’ appeal and the objection that the action had been
‘time-barred’ were rejected by the House of Lords, and the plaintiffs were awarded
damages.

CHAPTER SEVEN

PECUNIARY (OR FINANCIAL) LOSS

A brief study of the common law is likely to reveal the fact that the rule arising from
the ‘duty to take care’ was limited to personal or physical injuries alone. Even later,
when Lord Atkin laid down the ‘neighbour principle’ in Donoghue (M’Alister) v.
Stevenson [(1932) A.C. 562 – supra], His Lordship is deemed not to have laid down
the duty in any wider term than it had already been in existence. No doubt, the law dealt
with the other heads of wrong, e.g. intimidation, deceit, injurious falsehood,
inducement of breach of contract, etc., by applying other appropriate principles, but the
 -: 19 :-

law’s reluctance to grant legal remedies for the negligent invasion of pecuniary losses
(without any physical injury) left the law “crippled” for centuries. At the early common
law the plaintiff could recover damages for mere pecuniary losses if – but only if – he
could establish that he had suffered the pecuniary losses in question due to some
recognizable dishonesty on the defendant’s part. Even today, in spite of the law’s being
‘widened’ in order to recognize pecuniary losses (independent of other wrongs), the
proving of the existence of some “special relationship” between the litigating parties
remains a vital element of the law before any compensation can be awarded [Weller v.
Foot and Mouth Disease Research Institute Ltd. (1966) 1 Q.B. 569]. However, the
recent development of the law (or perhaps more appropriately “the recent development
in the law”) enables us to answer questions on this topic more clearly than before, and,
for the sake of convenience, the topic is being divided into two branches, namely-
‘negligent acts’ and ‘negligent statements’.

(A) Negligent Acts

A ‘negligent act’ of the defendant, causing the plaintiff to suffer any damage or injury
may be of two distinct natures—of direct consequences and of indirect consequences. If
the consequences are of a direct nature, then, according to the principles, laid down in
Weller v. Foot and Mouth Disease Research Institute Ltd. [(1966) 1 Q.B. 569], there
cannot be any liability for pecuniary losses unless some injuries to the plaintiff’s person
or property has also occurred; if the consequences are of some indirect nature, then the
question as to the involvement of a third party is almost “bound to arise”.

(B) Negligent Statements

The topic on ‘negligent statements’ was once upon a time, perhaps, one of the most
complex and one of the most delicate topics, with which the common law ever had to
deal in its history. It was “delicate” because any “rush recognition” of this topic by the
law could have opened “a flood-gate of unprecedented litigations before the courts”,
“unbalancing” the law as a whole; it was “complex” because the early common law had
been reluctant to award damages, unless the commission of fraud on the defendant’s
part could also be shown. (It was believed for decades that the applicability of the
‘principle’, laid down by Lord Atkin in Donoghue (or M’Alister) v. Stevenson [(1932)
A.C. 562] was limited to cases, arising from negligent acts (or omissions) alone, and
the principle did not change the law on careless but honest statements. Even as late as
in the year 1951 it was the accepted view of the law that the distinction between the
“negligent circulation of chattels” and the “making of negligent statements” had to be
maintained [Candler v. Crane, Christmas & Co. (A Firm) C.A. (1951) 2 K.B.]
However, even shorter than a decade and a half later, the House of Lords made it clear
 -: 20 :-

by a unanimous decision that in principle there was no difference between physical

injuries and financial losses, and that the duty to take care existed whenever a person
made a statement on the ‘reasonable assumption’ that the statement would be relied
upon in the existence of a special relationship between the parties, unless there had
been a ‘disclaimer of responsibility’ [Hedley Byrne & Co. v. Heller & Partners Ltd.
(1964) A.C. 465].

(C) Barristers-at-Law

The law of England is both peculiar and unique at the very same time when questioning
the liability of barristers-at-law – a system which is neither known nor recognized by
most countries, professing the common law, and will, therefore, not be elaborated here
in this text. It, nevertheless, becomes desirable to state that the ‘liability for negligence
by a barrister’ is judged in the light of the two leading cases – Rondel v. Worsley
[(1967) 3 W.L.R. 1666] and Saif Ali v. Sidney Mitchel & Co. (A Firm) and Others
[(1980) A.C. 198].
 -: 21 :-

CHAPTER EIGHT

EMOTIONAL DISTRESS / NERVOUS SHOCK

Although the common law on ‘emotional distress’ or ‘nervous shock’ has three aspects,
namely- ‘the recognition of liability for nervous shock’, ‘the recognition of the title to
recover damages’ and ‘the foreseeability of the occurrence of the damage or injury in
each individual case’, yet the three related but distinct concepts, namely- ‘the duty to
take care’, ‘the standard of care’ and ‘the remoteness of damage’ are clearly
comprehended by the law when judging cases arising from ‘nervous shock’. It is,
sometimes, stated by lay-commentators that damages cannot be recovered for “mental
distress”. However, such commentaries are fortunately not fully correct. Even at an
early stage the common law upheld the right of the victim/s to recover damages for
mental distress or ‘shock’ if the plaintiff could establish that the ‘shock’ at issue led to
some objective but recognizable physical harm, e.g. the shock led to the plaintiff’s
paralysis or miscarriage. The law recognized the principle that a victim remaind entitled
to compensation for both the ‘shock’ and the ‘physical injury’ if the ‘shock’ in question
were the very cause for the ‘injury’ at issue. In Wilkinson v. Downton [(1897) 2 Q.B.
57] the Court had no difficulties in awarding compensation to the plaintiff when she
suffered ‘shock’ followed by ‘injuries’ due to the defendant’s “practical joke” that the
plaintiff’s husband had been severely injured and the plaintiff should “go immediately
and personally in order to transport her husband back home”. Similarly, the plaintiff in
Javier v. Sweney [(1919) 2 K.B. 316] could recover damages for ‘nervous shock’
caused by the defendant in alleging falsely that her fiancée had been a “German spy”.
Under the given circumstances, it is needless to say that even the early common law
recognized ‘nervous shock’ as a ground for the recovery of damages when such ‘shock’
occurred due to the plaintiff’s ‘negligent act/s’ [Duliew v. White & Sons (1901) 2 K.B.
669; Hambrook v. Stokes (1925) 1 K.B. 141]. The principle was, perhaps, best
reflected by the laudable judgment delivered by Sergant L.J. as early as in the year
1925 (viz. prior to the ‘Atkenian era’), when in Hambrook v. Stokes [(1925) 1 K.B. 141
– ibid] the Lord Justice is reported to have said, “…There seems to me to be no magic
in actual personal contact producing physical results should be an equivalent. The
principle on which a threaten battery may justify damages for assault is in my view
strictly analogous….”

Until 1981 it was widely believed that the scope of recovering damages was limited to
the so called “first hand experience/s of the plaintiff”, e.g. when the plaintiff suffered
‘shock’ in the fear of death or immediate injuries to his very own person [Duliew v.
White (1901) 2 K.B. 669 - supra], or those of his next kin [Hambrook v. Stokes (1925)
1 K.B. 141 - supra; Chadwick v. British Railway Board (1967) 1 W.L.R. 912].
However, in the early 1980s, the House of Lords found themselves confronted with a
 -: 22 :-

situation – “new” to the common law – when the plaintiff brought her complaint of
suffering ‘shock’ before their Lordships – even though the plaintiff herself had neither
been in fear of death or immediate injuries to her own person nor had she witnessed the
accident at issue “first-hand”, but suffered ‘shock’ by witnessing the aftermath of the
accident. When the case was brought before the House of Lords, hearing the appeal,
their Lordships reached the conclusion that even under such circumstances
compensation was recoverable, provided the ‘shock’ in question could have objectively
been established. In order to appreciate the principles laid down in this case –
McLoughlin v. O’Brian [(1983) A.C. 410], it may, well, be desirable to acquaint
oneself with the relevant facts of the case. In this case – McLoughlin v. O’Brian (ibid)
– the known facts included: the plaintiff had been at home one autumn afternoon while
her husband and three children were out in a car; that at about 5 O’clock of the very
same afternoon a friend of the of the family arrived with the grim news that about an
hour earlier the car had been involved in a very serious accident about two miles away
from the house; that the friend drove the plaintiff to the hospital, where her husband and
children had – in consequence of the accident – been admitted; that arriving at the
hospital, the plaintiff witnessed that her husband and sons were bemused and screaming
in agony and learnt that her eldest daughter had been killed in (consequence of) the
accident; that witnessing the sight, the plaintiff suffered severe ‘shock’, organic
depression, leading to an undesirable change of her personality. When the plaintiff’s
appeal reached the House of Lords, the House, holding up the rights of the pursuer (as
indicated above), clarified the rule that the distinction between a ‘shock’, caused by the
sight of an accident and a shock, caused by the news of the accident in cases, arising
from emotional distress or ‘nervous shock’, became irrelevant in the eyes of the law. In
support of the facts stated and the principles viewed above, it may well be of
considerable significance to bear in mind that in a recent case – M/s Spring Meadows
Hospital and another v. Harjol Ahluwalia through S. K. Aluwalia and another [AIR
1998 S.C. 1801-1808 (C.A. Nos. 7708 with 7858 of 1997)] - the honourable Supreme
Court of India awarded compensation, not merely to the child-plaintiff/respondent who
had been victimized by the ‘negligence’ of the defendants/appellants, but also to its
parents for the (mental) agony caused by the sight of their only child’s living in a
vegetative state on account of the ‘negligence’ of the defendants/appellants. Some other
relevant Cases before the Supreme Court of India were – V. Kishan Rao v. Nikhil
Superspeciality Hospital [(2010) 5 SCR 1; A. Srimannarayana v. Dasari
Santakumari & another (2013) Civil Case Appeal No. 368 of 2013 {arising out of
S.L.P. (C) 26043 of 2010}]

It is, nevertheless, equally important to remember that the courts remain duty-bound to
ascertain the merits of each case, based on the allegation of ‘emotional distress/nervous
shock’, in accordance with sound logic and reason/s. Like in many other branches of
the law on ‘negligence’ the test at the “law on emotional distress/nervous shock”
remains, no doubt, an objective one. In order to recover compensation for “emotional
distress/nervous shock” the plaintiff ought to prove that a person of reasonably sound
 -: 23 :-

nerves would have suffered the same or a similar ‘shock’ if the latter were in the
former’s stead. The cases named above are but good examples, which are likely to
answer the “objective test”, since in such cases it is objectively comprehensible that
even a person of reasonably strong nerves, whose personal safety (or that of his next
kin) is suddenly but severely imperiled or who suddenly receives the “heart-breaking
news” of the death of the “dearest and nearest kin” is likely to suffer ‘shock’. The
outcome of a case, however, might “differ considerably” if a plaintiff, alleging ‘shock’
fell beyond the (assumed) definition of the category of plaintiffs in the cases, named
above. Thus, a mere stranger who unreasonably - yet voluntarily – exposes himself to
the risk of ‘shock’ and later complains about the ‘shock’ – is unlikely to be awarded
damages – regardless of the harm at issue [Bourhill v. Young (1943) A.C. 92] – simply
because (in such a case) the defendant is unlikely to owe the plaintiff the ‘duty’ – in the
absence of which the defendant is likely to escape the liabilities in question. It may,
here, be well befitting to conclude by quoting a passage from Salmond On Torts (5th.
Ed., paragraph-77) in which the outstanding author on the subject says: “…(T)he final
result is not unsatisfactory: yet the mass of confusing dicta which the cases contain is in
truth due to a failure to appreciate the fundamental fact that the question cannot be
answered solely by logic and that an issue of policy is involved for which the concept
of reasonable foreseeability is by itself incapable of providing a solution. For whether a
person outside the area of physical impact has a legally protected right to be free from
the emotional distress occasioned by the sight of the peril in which others have been
placed by the defendant’s negligence is really a question which each legal system must
decide for itself after due consideration of the various social interests involved….”
 -: 24 :-

CHAPTER NINE

THE SCOPE OF THE DUTY

(A) “No Duty – no Obligation”

Although it remains fully accepted by the law on ‘negligence’ that the one who has
already/voluntarily entered into some kind of relationship with another, may be liable to
that other for either ‘negligent acts’ or for ‘negligent/unjustified omissions’, yet it
remains equally true (as indicated earlier) that the law on ‘negligence’ does not
recognize a cause of action nor liabilities – in cases in which the defendant owes the
plaintiff ‘no legal duties’. Thus, where there is no ‘legal duty to take care’, the question
on ‘any violation of that particular duty’ cannot logically arise, and the defendant may
not be held answerable for any damage, alleged by the plaintiff. “…If a man is driving
on Salisbury Plain and no other person is near him, he is at liberty to drive as fast and
as recklessly as he pleases….” [per Lord Esher M.R. in Lievre v. Gould (1893) 1 Q.B.
491]. (It is logically assumed that Lord Esher M.R. in Lievre v. Gould (ibid) was not
referring to the law on crimes and/or the law, regulating “traffic rules”.) “…(W)hen a
person has done nothing to put himself in any relationship with another person in
distress or with his property mere accidental propinquity does not require him to go to
that person’s assistance. There may be a moral duty to do so, but it is not practicable to
make it a legal duty….” [per Lord Reid in Home Office v. Dorset Yacht Co. (1970)
A.C. 1004].

It is, perhaps, noteworthy that an individual may be under a ‘duty of care’ towards one
person while (in the same matter) the same individual may be under ‘no duty of care’
towards another person and, consequently, the individual may well be held answerable
for any damage, caused to the former while the same individual may “clear his feet and
go free” even in a case of alleged ‘negligence’, brought by the latter. In Palsgraf v.
Long Island Railroad Co. [(1928) 284 N.Y. 339; 162 N.E. 99] the employees of the
defendants – while helping a passenger – dropped carelessly a container (which
apparently contained some fireworks) on the path of a (moving) locomotive. This
caused an explosion. The shock of the explosion knocked over some scales, which had
been standing about eight metres away. The falling scales, in turn, struck and injured
the plaintiff who had been present on the platform – close to the falling scales. Hearing
the case, a majority of judges in the Court of Appeal in New York held that the plaintiff
was not entitled to recover compensation against the defendants because the chain of
reaction had been unforeseeable. Cardozo C.J., while presiding the Court, said: “…The
conduct of the defendants’ guard, if a wrong in its relation to the holder of the package,
 -: 25 :-

was not wrong in its relation to the plaintiff standing far away. Relative to her it was not
negligence at all. Nothing in the situation gave notice that the falling package had in it
the potency of peril to persons thus removed…. The law of causation, remote or
proximate, is thus foreign to the case before us….”

(B) The Scope of the Risk or Hazard

The harm to the plaintiff’s interest, which has in fact occurred, ought to be of a kind
against which it was the (legal) duty of the defendant to take precautions. Thus, in
Gorris v. Scott [(1874) L.R. 9 E.X. 125] no damages were payable to the owner of the
sheep which were lost owing to the breach of a duty intended to save them from
contagion, because the very purpose of the statute was to protect passengers against
infection/s, and not sheep’s being swept “over-board”.

(C) Affirmative Obligation/s

Although in certain cases – in which the a legally binding relationship between the
plaintiff and the defendant exists – the defendant may be sued for an omission yet the
law on ‘negligence’ does not allow the defendant to be sued in the absence of such
recognized duties. In other words: in the absence of some existing legal duties there
cannot be any liabilities for the mere omission to do a particular act. The fundamental
notion appears to be that the imposition of an obligation to “take positive steps” for the
benefit of another requires that that other “furnishes something” by way of
consideration [- as it is also appreciated by the law of (or more correctly “the law on”)
contract -]. Consequently, there cannot be any legal obligation at the law on
‘negligence’, for instance, to warn someone who is about to fall into a trap or to rescue
him from his perilous situation when he has fallen into the trap. Thus, even though an
employee may well be held answerable to his employer for the employee’s unjustifiable
failure to warn or rescue “his fellow-servant”, the employee owes no such liabilities to
the “fellow-servant” himself unless the former employee himself (by his own
negligence) exposes the latter employee to the danger at issue [Quinn v. Hill (1957)
V.L.R. 439]. Nonetheless, liabilities may well exist in a case in which the defendant
happens to be in the stead of the employer or the “invitor”, and the risk of the danger in
question has arisen or resulted from the use of some instrumentality under the
defendant’s control or on the land occupied by the defendant – as it may also be in a
case where the defendant – by intervening voluntarily in “the plaintiff’s business” or by
rendering aid to the plaintiff - has created some kind of lawfully recognized relationship
with the latter [Home Office v. Dorset Yacht Co. (1970) A.C. 1004 – supra]. (This is
one of the main reasons, why in the United States of America even experts – called to
the medical profession – often disregard victims of traffic accidents on the road – in the
 -: 26 :-

absence of a contractual relationship – as the very individuals called to the medical

profession are afraid of becoming liable for any negligent conduct – giving rise to a
lawfully recognized relationship – created by their voluntary intervention – regardless
of their benevolent and bona fide motives.)

(D) Volunteers

(i) Volenti non fit injuria: It is logically both acceptable and desirable
that an individual – who being aware of the risk of the danger
concerned – exposes himself voluntarily to the risk – should not be
“encouraged” to maintain a legal action – a sound principle which is
well supported by the maxim – volenti non fit injuria. [The maxim –
volenti non fit injuria – is of ancient origin and is known to have
been frequently used as a defence in the Roman Empire by masters
of slaves (who – in many cases of being unable to pay their debts or
of being in danger of perishing with hunger – allowed themselves to
be sold as slaves – and later complained about such sales).] Today
the maxim is used also as a defence but simply to indicate that the
complainant – being aware of the danger in question – exposed
himself voluntarily to the risk at issue wherefore the complainant is
deemed to have waved his right of action and - having thus waved
his right – the complainant is barred from maintaining the very legal
action. Thus, in Cutler v. United Daries [(1933) 2 K.B. 297] the
plaintiff – who had been injured while trying to calm a horse – which
had bolted into a field – failed in his action in the light of the
objective fact that the plaintiff – under the circumstances - had taken
the risk unreasonably yet voluntarily wherefore the maxim - volenti
non fit injuria – as a defence was applicable. Likewise, in
Wooldridge v. Sumner [(1963) 2 Q.B., C.A.] the plaintiff – who
while attempting to photograph a galloping horse had been injured,
could not recover damages due to the rule supported by the maxim-
volenti non fit injuria. Apparently, the maxim - volenti non fit injuria
- is likely to be applicable not merely in cases, in which the plaintiff
is proven to have taken the risk in question voluntarily, but also in
cases where the plaintiff is proven to have suffered the harm at issue
due to the plaintiff’s own folly [Imperial Chemical Industries v.
Shatwell (1965) A.C. 656].

(ii) Contributory Negligence: The early common law permitted the

defendant to negative all liabilities on the ground of ‘contributory
negligence on the plaintiff’s part’ as ‘contributory negligence’ had
 -: 27 :-

been recognized to constitute a complete bar to an action on ‘negligence’. In

1945, however, the British Parliament passed the
law Reform (Contributory Negligence) Act 1945 which says: “1.—(1)
Where any person suffers damage as the result partly of his own fault and
partly of the fault of any other person or persons, a claim in respect of that
damage shall not be defeated by reason of the fault of the person suffering
the damage, but the damages recoverable in respect thereof shall be
reduced to such extent as the court thinks just and equitable having regard
to the claimant’s share in the responsibility of the damage….” Consequently,
all courts - which sit in the United Kingdom of Great Britain and Northern
Ireland - are empowered to award the plaintiff a reduced compensation
which – in the view of the courts concerned – is just and equitable. In order
to possess a clear view of the situation of the current law of England it may
well be meaningful to acquaint ourselves with the relevant facts of the
following cases:

In Sayers v. Harlow [U.D.C. (1958) 1 W.L.R. 623; 122 J.P. 351] the
plaintiff, who had been detained in a public lavatory due to the defendants’
fault at the lock of the door, had been injured while trying to climb onto a
revolving paper-roll, was awarded only ‘reduced compensation’ subjected to
‘contributory negligence’.

In Bill v. Short Bros. & Harland [(1963) N.I. 1, H.L.] the House of Lords
held that the plaintiff (who in spite of being an experienced workman
suffered injuries partly due to his own faults and partly due to the faults of
the defendants) was entitled to recover only partial compensation in
accordance with rule/s on ‘contributory negligence’.

Principles, similar to the one/s, studied above, may also be applicable to

compensate the plaintiff, victimized by two or more defendants. Thus, in
Rouse v. Squires [(1973) Q.B. 889] the plaintiff, whose husband had been
killed due to the negligence of two drivers, could recover compensation
from both the defendant-drivers, proportionately.
 -: 28 :-

(C) Abnormal Plaintiff/s

Once a ‘breach of duty’ has been established, “the defendant must take his victim as he
finds him”. The phrase is illustrated by the profound rule that at least as far as the
physical condition of the victim is concerned, the abnormal circumstances existing at
the time of the wrongful act, do not negative casual connection. Thus, if the
consequence of a slight personal injury were aggravated by the state of health of the
plaintiff injured, the defendant would be liable to the full extent of the damage – as if
the defendant had foreseen the consequential result – even in a case in which the
defendant had not really been aware of the abnormality called in question. This is
termed by the law as “egg-shell skull rule” or “thin skull rule”. The rule of “egg shell
skull” applies also to chattels. Although the law does not generally take account of the
abnormalities or infirmities in the person or property of the plaintiff of which the
defendant could neither be expected to beware nor could reasonably be expected to
have foreseen, yet once it is established that a reasonable person in the defendant’s
stead should have been aware of the very situation and should have foreseen the
consequences, the defendant becomes fully liable for the whole chain of causes, since
in such situations the defendant be duty-bound to exercise a considerably greater ‘duty
of care’, and any unjustifiable or unreasonable failure to exercise such care is likely to
impose liabilities upon the defendant. The rule becomes, perhaps, even more
acceptable, once the following two cases are studied.

In Paris v. Stepney Borough Council [(1951) A.C. 367] the plaintiff – prior to the
accident in question – had been in possession of a single sound eye – a fact which had
been known to the defendant-employers. The defendants failed to provide goggles –
appropriate for certain types of work for which the plaintiff had been employed. During
the course of his employment, while hammering rusty bolts under a vehicle, the
plaintiff was completely blinded by some dangerous particles “flying” into his single
sound eye. Hearing the appeal, the House of Lords held that the defendants remained
liable to the fullest extent since they had been aware of the plaintiff’s abnormal
condition. In the words of Lord Okasey, “…The duty of an employer…is to take
reasonable care for his servant’s safety in all the circumstances of the case….”, while in
the words of Lord Normand, “…The respondents’ duty of care is a duty owed to their
employees as individuals….”

In Haley v. London Electricity Board [(1965) A.C. 788] the plaintiff – a blind man –
was walking carefully with a stick along/on the pavement in a London suburb, when
the plaintiff fell into a trench (which had been dug by the defendants’ servants under
statutory powers) and was seriously injured. When the case reached the House of
Lords, Their Lordships rejected the defendants’ plea that their employees had taken
adequate precaution/s by placing a long-handled hammer (while its head resting on the
pavement and the handle on the railings along the pavement – about two feet high) in
order to warn pedestrians. The House of Lords pointed out that even though the
 -: 29 :-

precautions would have been sufficient to warn pedestrians of sound health and sight,
yet the defendants had been duty-bound to foresee the presence of blind individuals at
the very sight wherefore the defendants ought to have taken sufficient care in order to
hinder such accidents. In this case – Haley v. London Electricity Board (ibid) – Lords
Reid, Evershed and Hodson cited with approval the definition of the ‘standard of care’
given by Lord Sumner in Glasgo Corporation v. Taylor [(1922) 1 A.C. 44] which said:
“…A measure of care appropriate to the inability or disability of those who are
immature or feeble in body or mind is due from others who know of, or ought to
anticipate, the presence of such persons within the scope and hazard of their own
operation….”

CHAPTER TEN

THE VALUE OF THE CONCEPT ON THE DUTY OF CARE

(A) The View on the Concept

The concept is peculiar to the common law, and its critics have often based their
arguments on this very reason. The Roman law dispensed with any special duty
between the parties and imposed liabilities whenever the occurrence of any
unjustifiable damage or injury was established. According to some lawyers, the Roman
doctrine—restricted as it was similar to those on ‘contributory negligence’ and
‘remoteness of damage’--provided a simpler and, perhaps, a better solution to the
 -: 30 :-

problems involved than the solution at the common law with its reliance upon a ‘duty to
take care’. In deed, it has sometimes been suggested that cases should be decided on
grounds other than on the ‘duty to take care’. Nevertheless, in accordance with the view
of most lawyers, professing the common law, there ought to be some defined limits to
the actions ‘on negligence’ wherefore the principles on the ‘duty to take care’ must
remain indispensable.

(B) The Function/s of the Duty

The very nature of ‘negligence’ is such that there is always much room for the exercise
of a creative choice by a court, confronted with a difficult problem, and the ‘concept on
a duty’ (unlike the concepts ‘on the standard of care’ and ‘remoteness’) does at least
bring the issue to the fore. The significance “…of the foregoing is that the categories
become the servants and not the masters of the law of negligence. It may be a common
tendency to attempt classification of the various human relationships which may give
rise to a breach of the duty. But the more modern decisions to which I have referred
indicate that such classifications cannot be final. They cannot be set up as inflexible
yardsticks, but must be regarded as convenient (and) sensitive instruments fashioned
and refashioned from time to time in the judicial workshops, to record and harmonize
the relation between the law and altering social outlooks….” [per O’Halloran J.A. in
Crewe v. Star Publishing Co. Ltd. (1942) 58 B.C.C.R. 103].
 -: 31 :-

CHAPTER ELEVEN

THE CONCEPT OF THE RISK

We have already been acquainted with the well recognized fact that liability on
‘negligence’ does not depend merely on the foresight of the defendant but also on his
conduct, breaching a particular (legal) duty, owed to the plaintiff. It is equally important
to note that the law recognizes the ‘magnitude of risk’ – a risk which increases the
chance of harm to others - which is objectively anticipated by any reasonable person in
the defendant’s stead. Consequently, the defendant is considered ‘negligent’ if he fails
to recognize such a risk and, thereby, commits an act which disrupts the plaintiff’s legal
interests. It is, in deed, fundamental that the standard of conduct, which remains the
very basis of the law on ‘negligence’, is determined by balancing the risk concerned
against the social value of the interest threatened and the probability and the extent of
harm called in question in the light of the very expedience pursued. Thus, the extension
of the risk involved (to which the defendant exposes the plaintiff), the “cost” of the
object expected to be obtained even in the existence of such a risk and the burden/s of
required precaution/s are all considered relevant by the law on ‘negligence’.

(A) The Magnitude of the Risk to which Others are exposed

As a general rule, the law on ‘negligence’ measures two main factors: the seriousness of
the harm risked; and the likelihood of the harm being in fact caused. The case – Paris v.
Stepeny Borough Council [(1951) A.C. 367 – supra] – the facts of which have been
stated above – has pointed out that the defendant is required to take “special care” or
additional precaution/s in order to hinder (or at least to minimize) accidents which are
likely to have severe consequences. Thus, for instance, an employer of an employee
with a single sound eye is expected to take considerably greater precaution/s when
employing the employee to a task which involves the risk of blindness (since any harm
to the single sound eye of the employee may have calamitous impact upon the
employee-victim). This does not, however, mean that an employer will be
“automatically” liable for employing a person at an “only piece of work” which
involves a risk of injury. What it really means is that the employer ought to take all
reasonable precautions to minimize (if not negative completely) the risks of harm to his
employee with serious damaging results.
 -: 32 :-

It is important to prove in a case on ‘negligence’ that not only the event called in
question, but also the likelihood of the harm at issue, was objectively/reasonably
foreseeable prior to or at the moment of the occurrence of the very harm, simply
because to base liability upon ‘foresight’ alone would, no doubt, be unjustly too severe
upon the defendant. This is, perhaps, somehow cautiously framed by Dixon C.J. in
Man v. Hearse [(1961) 106 C.L.R. 112] when the honourable Chief Justice is reported
to have said: “…foreseability does not include any idea of likelihood at all….”

(B) The Probability of Danger

On the one, hand it may be appropriate and desirable to ensure that all reasonable
precautions are taken in order minimize the risk of an undesirable accident, causing the
plaintiff harm of a kind or another, while on the other hand, the existing authorities
point out that under certain circumstances the defendant will escape liabilities by
showing that the risk of danger called in question had been reasonably unforeseeable
and, therefore, negligible. In order to appreciate these apparent “contradicting
principles”, let us study the relevant facts of the following cases:

(1) in Carmathenshire County Council v. Lewis [(1955) A.C. 549] the defendant-
county council were held liable when a toddler – “escaping” from the defendants’
nursery-school – had strayed onto the highway, and the plaintiff’s husband – a lorry-
driver – while trying to avoid the toddler – swerved and had been killed by colliding
with a tree;

(2) in the case - Hughes v. Lord Advocate [(1963) A.C. 837] – in which the plaintiff –
an infant – could recover compensation when he was severely injured due to the
occurrence of an unexpected explosion, while the House of Lords declined to
distinguish between an explosion and a fire caused by conflagration;

(3) in Wagon Mound (No. 2) [(1967) 1 A.C. 617] the likelihood of an accident caused
by cotton’s catching fire despite its floating on water (even though it had been
contaminated by oil) was extremely small yet not nil. Hence, the defendants were held
liable while the magnitude of such possibility’s being disregarded by the Judicial
Committee of the Privy Council in spite of the fact that in Overseas Tankship (U.K.)
Morts Dock & Engineering Co. (The Wagon Mound) [(1961) A.C. 388] the
defendants had escaped liability because the same Judicial Committee of the Privy
Council had considered that the risk of the accident by cotton’s catching fire while
floating on water had been remote and, therefore, negligible; and in a similar manner
 -: 33 :-

(4) in Doughty v. Turner Manufacturing Co. Ltd. [(1964) 1 Q.B. 518] the defendants
could “wash their hands and go free” by showing that the eruption caused by the
unexpected chemical reaction – completely unknown prior to the very accident
concerned – had not reasonably been foreseen.

Thus, it may be concluded that although the law on ‘negligence’ does require of a
person to act reasonably to avoid the ‘risk of harm’ to another person (including the
plaintiff) yet the law does not lay any unreasonably harsh burden upon the defendant to
act only at his own peril, since, in the view of the law, “…if the possibility of danger
emerging is a mere possibility which would never occur to the mind of a reasonable
man, then there is no negligence in not having taken extraordinary precautions… (as)
people must guard against reasonable probabilities, but they are not bound to guard
against fantastic possibilities….” [per Lord Dunedin in Fardon v. Harcourt-Rivington
(1932) 146 L.T. 391].

(C) Foresight and Its Limitation

The plaintiff at the law on ‘negligence’ is not required to show that the accident at issue
was foreseeable any more clearly than the very harm in question. If there were any such
obligation/s, it would be needless to add that there would be but few cases on
‘negligence’ in which there would be any just verdict or a “plaintiff-winner”. “…The
history of negligence is the history of the unexpected, the books are full of odd
occurrences, strange conjunctions and unpredictable contingencies….” [per Justice-
Clerk Aitchion in Bourhill v. Young [(1942) A.C. 92 - supra].

The fact/s that the named cases – Hughes v. Lord Advocate [(1963) A.C. 837 - supra]
and Doughty v. Turner Manufacturing Co. Ltd. [(1964) 1 Q.B. 518 – supra] – are
likely to affect consequential decisions, it may well be meaningful to re-acquaint
ourselves with the relevant facts of the named cases.

In Hughes v. Lord Advocate [(1963) A.C. 837 – ibid et supra] the defendants (-or
perhaps more correctly – “defenders” since the accident occurred in Scotland-), who
were exercising their statutory powers, opened a manhole in an Edinburgh street in
order to repair/replace some under-ground cables. A tent, surrounded by warning
paraffin-lamps, was placed above the manhole. In an early winter evening the
defenders’ employees’ being absent on the sight, two infants – the plaintiff – a boy of
eight – and his companion – allegedly a relative of the plaintiff – a boy of ten – being
encouraged by the allurement of the paraffin-lamps - took one of the lamps and
descended into the manhole. Apparently, on their ascension, the lamp was knocked
back into the hole causing a violent explosion with flames’ shooting high in the air. As
-: 34 :-
a result the plaintiff was knocked back into the manhole and suffered serious physical
injuries. In their defence the defenders argued that they should not be held responsible
for a fire caused by an explosion as distinct from conflagration. Such defence was,
however, set aside, even by the House of Lords since, even in their Lordships’ view, the
accident had been a known source of danger, behaving in an unpredictable manner.

In Doughty v. Turner Co. Ltd. [(1964) 1 Q.B. 518] in which an asbestos cement cover
had been inadvertently dropped into a very hot molten liquid on the defendants’
premises, underwent very unexpected chemical reactions with a considerably severe
eruption, causing the plaintiff to suffer serious physical injuries. The Court of Appeal
held that such an unexpected chemical change could not – on reasonable grounds – be
foreseen wherefore the defendants were not liable.

(D) The Importance of the Object to be attained

Although it remains the duty of the law to discourage wrong yet the law, under certain
circumstances, permits and even encourages the commission of acts, which under most
circumstances be deemed “wrongful”, provided such “wrongful acts” were committed
in the prevention of some “graver wrong/s”. This would, for instances, be an incidence,
in which the actor uses violent force, leading to physical injuries or even death of
another person, when that other person is attempting to commit a heinous act of
dropping a bomb on an innocent crowd. Thus, even though, it is likely to constitute
both the crimes and torts of assault and battery to hit or push a person aside by physical
force yet such force is likely to be justified (and even desirable) if it were shown that
the force was used in order to hinder a felony, e.g. rape or murder. ‘Self-defence’ is, no
doubt, another good example of the kind. However, the justification of the commission
of certain acts need not be so “dramatic”. Acts like ‘the exceeding of speed-limits’-
even in a busy street at rush-hours – though may be considered unjustifiable and,
therefore, wrongful per se, when committed “just for the sake of fun” – may well be
appropriate and, therefore, justified when committed in order to save lives and/or
property. Accordingly, ambulances and fire-engines, are generally justified when they
exceed speed-limits in attempts of saving human lives or property. “…(I)n determining
whether a party is negligent, the standard of reasonable care is that which is reasonably
demanded in the circumstances. A relevant circumstance to take into account may be
the importance of the end to be served by acting this way or that. As has often been
pointed out, if all the trains in this country were restricted to a speed (limit) of 5 m.p.h.,
there would be fewer accidents, but our national life would be intolerably slowed down.
The purpose to be served, is sufficiently important, justifies the assumption of abnormal
risk….”[per Asquith L.J. in Darbon v. Bath Tramways (1946) A.C. 488]. Likewise, it
was deemed justifiable to use a lorry – instead of a “properly secured vehicle” – even
by the defendant-fire service in an emergency – when the “properly secured vehicle”
-: 35 :-
was not immediately available [Watt v. Hertfordshire County Council (1954) W.L.R.
835; (1954) 2 All E.R. 368].

CHAPTER TWELVE

“PARTICULAR CASES”

Until this moment the principles in general – as laid down by the law on ‘negligence’ –
has briefly been viewed. Nevertheless, the old proverb “-exceptions prove the rules” is
appreciated by most doctrines – including the legal ones. Thus, in the protection of the
rights of innocent victims, the law on ‘negligence’ has laid down unique principles
affecting individuals, called to outstanding professions, also called ‘skilful defendants’
when judged by the law. In an attempt to behold the significance of such “exceptional
rules” we shall study this particular topic under three main sub-headings, namely-
‘medical professionals’, ‘schoolteachers’ and ‘users of the highway’.

(A) ‘Medical Professionals’

It is needless to remind ourselves that individuals, who for the sake of their profession
hold themselves out as “experts” owe the “the consumers of their (personal) service
‘special cares’ ” – ‘cares’ which are distinguished even by the law. Such “experts”
include inter alia individuals called to the ‘medical profession’, e.g. physicians,
surgeons, neurologists/psychiatrists, dentists, etc. who are both expected and required
on reasonable grounds to exercise “special care” when treating “their patients”. As a
rule of law, individuals – called to such a profession – owe “their patients” a ‘duty to
-: 36 :-
take care’ both in contract as well as in torts (including ‘negligence”) and are expected
and required to show competently special skill/s since – as it is logical – “their patients’
health and lives depend on their treatment/s”. This does not, however, mean that each
individual – called to the medical profession – is expected to exercise the highest
standard of skill – known to the profession – as there may well be others in the very
profession who have been fortunate enough to have better/higher education and/or have
“collected” comparatively more experiences (than the individual defendant concerned)
wherefore they may logically be capable of exercising greater degree of skill than their
colleagues of lesser education and experience. This does, nevertheless, mean that the
individuals concerned are required to exercise the standard of skill – expected of an
individual in average – called to the very profession – with the similar degree of
education and experience in the stead of the individual-defendant. Thus, in Roe v.
Minister of Health [(1954) 2 Q.B.] the Court cleared the defendant/s of negligence
because the danger of the disinfectant phenol, percolating through invisible cracks of
ampoules containing injectable anesthetic, which ultimately led to the plaintiff’s
paralysis, had been unknown to the medical profession of that early day, albeit – in the
light of the recognized doctrine of today - such an “accident” is probable to constitute
‘negligence’: “…Now-a-days it would be negligence not to realize the danger, but it
was not then….” [per Denning L.J. (-later Lord Denning M.R.-) in Roe v. Minister of
Health (ibid)]. In deed, if there is any prima facie evidence of ‘negligence’, the maxim
– res ipsa loquitur - may well be applicable to find the defendant liable. Consequently,
in a case in which, for instance, the plaintiff undergoes an operation and/or treatment in
order to recover, but suffers a “worse fate” due to the defendant’s negligence, the
plaintiff may be fully justified in demanding an explanation, why the defendant’s
operation and/or treatment deteriorated his – the plaintiff’s – health. Thus, the plaintiff
– who had been admitted to a hospital with two stiffened fingers for an operation, and
was discharged with four stiffened fingers due to the ‘negligence’ of the defendant’s
employees – had no difficulties in applying the maxim – res ipsa loquitur – in his plea
and recovering damages, since it was proven obvious that such deterioration of the
plaintiff’s health could not have occurred but for the very ‘negligence’ of the
defendant’s employees [Cassidy v. Minister of Health (1951) 2 K.B. 343]. Likewise,
the infant-plaintiff in M/s Spring Meadows Hospital and another v. Harjol Ahluwalia
through K. S. Ahluwalia and another [AIR 1998 – Civil Appeal No. 7708 with 7858
of 1997, pp.1801-1808 et supra] was awarded compensation for the paralysis, caused
by the defendants’ employee/s.

(B) Schoolteachers

In most general cases involving schoolteachers the so called “careful parent test” is
applicable. In other words: schoolteachers are expected to take such care of their pupils
in their charge as careful parents are reasonably expected to take care of their own
-: 37 :-
children. Such a test is an objective one. Even if it were acceptable that under certain
circumstances, for example in a case in which the schoolteacher happened to be in
charge of too many pupils and the teacher (despite all reasonable efforts) could not
reasonably be expected to exercise such high standard of parental care, the
schoolteacher might be excused, yet the standard of care expected of a schoolteacher
for his pupils remains higher than the one expected of most other professionals. In order
to supervise his pupils, a schoolteacher is, however, not required to be “instrumental” or
“robotic”. Nonetheless, what it does mean is that a schoolteacher is required to take
care of the pupils in his charge in accordance with a standard which can reasonably be
expected of a careful and reasonable parent (who diligently takes care of his own
children) – a standard objectively deemed to be considerably high. Thus, in Eryer v.
Salford Corporation [(1937) 1 All E.R. 617] the defendants’ subordinates were held
liable when due to their negligent omission a pupil was injured since “some minimum
standard of pre-caution” for the safety of a pupil under their care could objectively and
reasonably be expected – as it could be expected of a reasonably careful parent in
charge of his child. Likewise, in Carmarthenshire County Council v. Lewis [(1955)
A.C. 549 – supra] the defendants were held vicariously liable when a toddler “escaped”
from their infant-school onto the street, causing the death of a driver because it was
objectively deemed negligent for a person in charge of toddlers to let a toddler stray on
to the path of fast-moving vehicles – as it would also objectively be deemed for a
parent of a child. Nevertheless, in Camkin v. Bishop [(1941) 2 All E.R. 713] when a
pupil of 14 years of age was injured by the throwing of mud by one of his fellow pupils
while helping a farmer on a half holiday, the defendant escaped liabilities since the
plaintiff’s teacher – like a parent of a teen-ager – could not reasonably be expected to
prevent “every such incident”. In fact, “…if every master is to take precautions to see
that there is never ragging or horse-play among his pupils, his school would indeed be
too awful a place to contemplate….” [per Goddard L.J. (-later Lord Goddard-) in
Camkin v. Bishop (ibid)].

Having studied above the rules of law - applicable to the two professional groups of
people – known as ‘skilful defendants’ – we proceed on to acquaint ourselves with the
view of the law on a third category of people termed as – the ‘users of the highway’

(C) Users of the Highway

An implied but accepted principle of the law, applying to the ‘users of the highway’, is
that all who use the highway or the land adjacent to the same, ought to show
considerable respect and tolerance towards each other. On the one hand, it is the duty of
the driver of a vehicle to keep a proper look out which includes the driver’s obeying
traffic rules and being alert since, even in the view of the law, “it is folly not to foresee
-: 38 :-
folly in other ‘users of the highway’ ” [Leeson v. Bevis and Tolchard (1972) R.T.R.
373; London Passenger Transport Board v. Upson (1949) A.C. 155] while on the
other hand, ‘users of the highway’ remain equally duty-bound to observe traffic-rules
and beware of the approaching of vehicles as well as to take appropriate precautions in
avoiding unreasonable risks of perils [Wilkinson v. Chetham-Strode (1940) 2 K.B.
310; Chiffold v. Drymond (1976) R.T.R. 134].

The duty of a “driver” (or his employer) is not limited merely to the very moment of his
car’s being in motion since the drivers, who park their cars at the side of the road, also
owe a duty of care to other ‘users of the highway’ [Stevens v. Kelland (1973) R.T.R.
319]. In deed, the driver of a vehicle remains entitled to recover compensation against
those who (either by unjustifiable omission or by unlawful commission) hinder the
driver’s ‘right of passage’, particularly in cases in which such hindrance exposes the
plaintiff to the risk of peril [Davis v. Carmathenshire County Council (1971) R.T.R.
312]. Although vehicles, used by the “emergency services”, may be immunized from
criminal prosecution, yet their owners, like most other defendants, remain subject to
civil liabilities for ‘negligence’ [Gaynor v. Allen (1959) 2 Q.B. 403].

(D) General Practice/es

“…(A) defendant charged with negligence can clear his feet if he shows that he…acted
in accordance with the general and approved practice….” [Vancouver General
Hospital v. McDanie (1934) 152 L.T. 56]. Thus, in Wells v. Cooper [(1958) 2 All E.R.
527] in which the plaintiff had been injured due to the fact that the defendant himself
had re-fixed the handle of a door at his (-the defendant’s-) own house, which “gave
way” when the plaintiff pulled it, leading to the plaintiff’s fall, the defendant escaped
liability as it was pointed out, “…No doubt, some kinds of work involve such highly
specialized skill and knowledge, and create such serious dangers if not properly done,
that an occupier…would fail in that (viz. his duty) if he undertook such work himself.
But the work here…was not of that order. It was a trifling domestic replacement well
within the competence of a householder accustomed to doing small carpentering jobs
about his home….” [per Jenkins L.J. in Wells v. Cooper –(ibid)].

(D) Faults of Omissions

It has already been stated that negligence can be committed not merely by the
commission of an act but also by the omission to fulfil a legal duty. “…It is absolutely
necessary that the proof of that ‘fault of omission’ should be one of two kinds, either to
show that the thing which (the defendant) did not do was a thing which was commonly
-: 39 :-
done by other persons in the circumstances, or to show that it was a thing which was so
obviously wanted that it would be folly in any one to neglect to provide it….” [per Lord
Dunedin in Morton v. William Dixon Ltd. (1909) S.C. 807]. “…If there is proof that a
precaution is usually observed by other persons, a reasonable and prudent man will
follow the usual practice in the like circumstances. Failing such proof the test is
whether the precaution is one which the reasonable and prudent man would think so
obvious that it was folly to omit it….” [per Lord Normand in Paris v. Stepney Borough
Council (1951) A.C. 367 et supra]. [It was decided by a majority of 4:1 of the Lords of
Appeal-in-Ordinary hearing the case – Cavanagh v. Ulster Weaving Co. {(1960) A .C.
145} – that “folly” meant nothing other than “unreasonable or imprudent”.]

(F) “Wisdom after the Event”

The known and undisputed fact is, perhaps, best reflected by the old proverb: “It is easy
to be wise after the event….”. Nevertheless, “such wisdom after the event” is unlikely
to protect the defendant against a tortuous act or omission. It is, therefore, deemed not a
defence to prove that the foresight of a risk of some peril could not be expected to exist
prior to one or more accidents, since it is reasonably considered necessary to disrupt a
practice when such a practice is objectively foreseen to expose the plaintiff (or any
person in the plaintiff’s stead) to some obvious danger. This is well stated by Bramwell
B. in Harts v. L. Y. Railway [(1868) 21 L.T. 216] in which the learned Baron is reported
to have said, “…People do not furnish evidence against themselves simply by adopting
a new plan in order to prevent the recurrence of an accident. I think that a proposition to
the contrary would be barbarous. It would be, as I have often had occasions to tell
juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish
before….”

-: 40 :-
 CHAPTER THIRTEEN

THE PROOF OF NEGLIGENCE

(A) The general Rule

As a general rule of ‘law on negligence’ the ‘onus of proof’ that the defendant has been
‘negligent’ falls upon the plaintiff. In the case of an accidental harm other than trespass
the defendant – as a general rule – need not prove that he (-the defendant-) has not been
answerable for the harm in question, but the plaintiff must prove that the accident has
taken place due to the very ‘negligence’ of the defendant. Unless the plaintiff satisfies
the court that the evidence, produced in the case, shows that the defendant has been
negligent, there cannot generally be a scope of the very case’s to be heard. The judge,
while reaching a decision, ought to ask himself whether there is reasonable evidence –
provided by the plaintiff – regardless of the evidence submitted by the defendant in
support of his own defence – is likely to pursue the court to conclude that the defendant
has been negligent. If the answer is “yes”, the judge remains duty-bound to allow the
case to proceed: if the answer is “no”, there cannot logically be any legal ground for the
case to proceed. In Wakelis v. London and S. W. Railway [(1886) 12 A.C. 41] the dead-
body of the plaintiff’s husband was found lying on the railway line/s on a level-
crossing, and the evidence was given that although the train had carried a head-light yet
it had failed to blow the whistle while approaching the level-crossing. It could,
however, not be proved, how the plaintiff’s husband came to be on the line. The House
of Lords held that even if the defendants were negligent in their omission to blow the
whistle, their negligence could not have been the cause of the accident. “…One may
surmise and not evidence, that the unfortunate man was knocked down by a train while
(being) on the level-crossing; but assuming in the plaintiff’s favour that fact to be
established, is there anything to show that the train ran over the man rather than the
man ran against the train?….” [per Lord Halsbury in Wakelis v. London and S. W.
Railway (ibid)]. Similarly, in Tilley v. Stevenson [(1939) 4 All E.R. 207], in which it
was shown that the damage in question was caused by the bursting of a pipe, which had
been frozen due to the severely cold weather, the Court held that there could not be any
‘negligence’ on the part of the defendants unless the plaintiff could show that the
defendants (or their employees) – while being reasonably aware of the circumstances –
had turned on the water (or had even known of the water’s being turned on).

-: 41 :-
(B) Exceptions to the Rules

The old proverb: “Exceptions prove the rules” is, perhaps, nowhere better recognizable
than in the field of the ‘law on evidence’. Although the general rule of the law, that the
plaintiff ought to show that the defendant has been negligent, is considered to be a
cardinal principle of the law on ‘negligence’, yet the very law “reserves the right to
depart from its own hard and fast rule/s” - whenever justice so requires”. This follows
that - even for the sake of justice - the law on ‘negligence’ under certain exceptional
circumstances shifts the ‘onus of proof’ from the plaintiff’s shoulders onto the
defendant’s (or even more correctly – as we shall see in this very text – onto the
defendants’) shoulders. The scope of applying such exceptions to the rules is, however,
not unlimited. The law allows such exceptions to be applied only in cases in which
there is some prima facie evidence, and – as a general rule – in cases in which there are
more than one individual – one or more of whom be deemed responsible for the harm
in question, yet the plaintiff is unable to show exactly which of the defendants happen/s
to be the very wrong-doer. Such a scope is even further limited by the fact that such
exceptional principle is applied only in cases in which there are more than one single
defendant involved – also termed as ‘joint tort-feasors’ – either as being engaged on the
concerted design or as two or more persons of whom one is vicariously liable for the
‘negligence’ of the other/s. Thus, in Grant v. Australian Knitting Mills [(1936) A.C. 85
- supra] the plaintiff – who by wearing under-garments manufactured by the defendants
suffered dermatitis – could recover compensation – even without “laying his finger on
the exact person in the whole chain”. Similarly, in Cassidy v. Minister of Health
[(1951) 2 K.B. 343 - supra] the plaintiff, who undergoing an operation on his two
fingers, suffered the injury of two additional fingers, could recover damages without
having to show exactly which of the defendants’ employees had been ‘negligent’.

(C) Novus Actus Interveniens/Novus Causa Interveniens

Although the application of the maxim/s – novus actus interveniens (= new act
intervening) or novus causa interveniens (= new cause intervening) – are considered to
be of only moderate interests as far as the law on negligence is concerned, yet it may be
of some significance, at this stage, to study these topics very briefly. The maxims are
sometimes forwarded by defendants in order to disclaim responsibilities for the
consequential results of their acts or omissions. An extreme example of the kind would
be in a case in which a doctor treats a patient’s leg for a minor injury, crippling the leg
partially, but the very leg is later amputated due to a major injury on a later occasion. In
such a case the doctor is likely to “clear his feet and go free” by showing that the
amputation of “his patient’s leg” was not a (direct) consequence of his (--the doctor’s--)
negligent treatment/s. Thus, in Hogan v. Bentinck Colleries Ltd. [(1949) 1 All E.R.
-: 42 :-
588] when the thumb of the plaintiff-miner (who had suffered an injury of the thumb
due to employer-defendants’ ‘negligence’) was amputated due to wrong medical
advice, the plaintiff failed to recover compensation for the loss of the thumb because
the defendants successfully established that the amputation and the consequential loss
occurred not due to their own faults, but due to the negligent intervention of a third
party (viz. the person giving the wrong medical advice). The defence of novus actus
interveniens or novus causa interveniens may sometimes be forwarded to establish that
the accident – concerning which the plaintiff is complaining – occurred due to the
“intervention of a super-natural force” beyond the defendant’s control and/or without
any reasonable foresight on the defendant’s part, e.g. the course of the out-come at issue
being drastically diverted by some unexpected but severe storm or earthquakes
[Singleton Abbey v. Paludina (1927) A.C. 16].

The defence of novus actus interveniens or novus causa interveniens, remains,

however, unlikely to be applicable in cases in which the defendant foresees (or ought to
have foreseen) the intervention of a third party on a reasonable ground. This would, for
instance, be in a case where the defendant intentionally or negligently infects seriously
the leg of the plaintiff, and a competent surgeon – in order to save the rest of the
plaintiff’s body from the resultant infection – amputates the leg; or even in a case in
which the defendant negligently exposes the plaintiff to a grave danger, and a bona fide
third party – while trying to rescue the plaintiff – causes some inevitable injury upon
the plaintiff’s person [Haynes v. Harwood [(1935) 1 K.B. 146]. Thus, in the old case -
Scott v. Shepherd [(1773) 3 Wils. 403] when the defendant threw a lighted squib into a
crowed market place, and the squib fell onto a stall from which it was picked up and
thrown unwittingly onto another stall from which it was thrown unintentionally onto
the plaintiff’s face, leading to the plaintiff’s injuries, the Court refused to accept the
defence of novus actus interveniens or novus causa interveniens because “such a chain
of reaction” with the consequential result should have been anticipated by a person in
the defendant’s stead. (N.B. the ‘Atkinian principle of reasonable foresight’ was
unlikely to be known by the lawyers of the early 1770s, albeit a sense of wrongful acts
by wrongful intentions were almost certainly known and recognized even then.)
 -: 43 :-

CHAPTER FOURTEEN

RES IPSA LOQUITUR

The maxim – res ipsa loquitur (= the thing speaks for itself, or as it is sometimes
translated to be “facts speak for themselves”) – as befitting its name – is deemed to
have its origin at Roman law, and not at the common law nor even at the Conon law
(also known as the ‘law of the Chancery’ or ‘equity), yet it is considered to be “one of
the most supporting pillars of justice” both at the ‘common law’ and in ‘equity’: res
ipsa loquitur upholds the legitimate rights of an innocent person, victimized by the
‘negligence’ of the defendant-wrongdoers - either individually or collectively. We have
already been acquainted with the fact/s that as a general rule of law the ‘burden of
proof’ of the defendant’s negligence lies upon the plaintiff, even though the law under
certain circumstances - and for the sake of justice - shifts the ‘onus of proof’ from the
plaintiff’s to the defendants’ shoulders. We have also seen that any arbitrary shifting of
such ‘burden’ or ‘onus’ may lead to some considerable injustice or unfairness.
Nevertheless, as we saw in the earlier chapter – under the sub-heading, “Exceptions to
the Rules” the law, for the sake of justice, requires the defendants to explain why they
or one (or more) of them should not be held liable for the wrong deemed to have been
caused by their ‘negligence’ (or the ‘negligence’ of one or more of them), the maxim –
res ipsa loquitur – often enables the law to award compensation to a victim of
‘negligence’ by “circumventing the inappropriate or unjust rules of the law whenever
justice so requires”. If a victimized-plaintiff can establish on prima facie evidence that
the harm suffered, could not have occurred but for the very ‘negligence’ of the
defendants (or one or more of them), yet unable to show which one (or ones) of the
defendants was/were responsible, or how exactly the accident occurred, he may still
have a good chance of success on res ipsa loquitur. Thus, even in the early cases
-Byrne v. Boadle [(1863) 2 H. & C. 722] – when a sack of flour fell on to the plaintiff,
injuring him – and in a later case – Scott v. London and St. Katherine Docks [(1865) 3
H. & C. 733] – in which the plaintiff was injured by a falling sack of sugar from a
higher floor of the defendant’s warehouse – the Court/s had no difficulties in awarding
damages to the victimized plaintiffs – regardless of any explanation as to the exact
stages of the occurrence/s of the accident/s. It was concluded that sacks of flour or
sugar do not fall from higher floors of the buildings under the defendant’s control in the
absence of negligence. “…(W)here the thing is shown to be under the management of
the defendant or his servants, it affords reasonable evidence, in the absence of the
explanation by the defendant that the accident arose from want of care….” [per Sir
William Erle C.J. in Scott v. London and St. Katherine Docks (ibid)]. Likewise, in
Cassidy v. Minister of Health [(1951) 2 K.B. 343 - supra] in which the defendants
were held liable when a patient with two stiff fingers had been admitted to a hospital
-: 44 :-
under the defendants’ control but was discharged with four crippled fingers, the Court
had no difficulties in relying on res ipsa loquitur and awarding the patient-victim
compensation – since it is logical that the “remaining sound fingers of a patient do not
stiffen up during the post-operational treatments unless someone is negligent”. In the
recent Indian case – M/s Spring Meadows Hospital and Another v. Harjol Ahluwalia
through K. S. Ahluwalia and Another [AIR 1998 S.C. et supra, paragraph – 10, p.
1806] – the honourable Justice G. B. Pattanaik said: “…Gross medical mistake(s) will
always result in a finding of negligence. Use of wrong drugs or wrong gas(es) during
the course of anaesthetic will frequently lead to the imposition of liability and in some
situations even the principle of (r)es ipsa loquitur can be applied. Even (the) delegation
of responsibility to another may amount to negligence in certain circumstances….”
Similar doctrines were also applied in the leading Cases – V. Kishan Rao v. Nikhil
Superspeciality Hospital [(2010) Civil Appeal Case No. 2641; A. Srimannarayana v.
Dasari Santakumari & another (2013) Civil Case No. 368]

(A) The Condition for the Operation of the Maxim

In order to operate the maxim – res ipsa loquitur – the plaintiff is required to prove that
the defendant had been in control of the thing (L. “res”) while the accident at issue
occurred, and the defendant’s unjustifiable failure to prevent the accident caused the
plaintiff to suffer the harm in question. Thus, for instance, in a case in which the driver
of a motorized vehicle causes injury to the plaintiff by a violent skid on a dry and well
maintained street in broad day-light, prima facie evidence of negligence may well be
inferred and, according to the rules laid down by the maxim, the defendant-driver may
be required to satisfy the court, why he should not be held liable. If the defendant can
show that the accident occurred without his control, he (--the defendant--) may be
permitted to “wash his hands and go free”. In Easson v. L.N.E.R. [(1914) K.B. 421] a
child fell through the door of an express corridor train during the journey. During the
course of the proceeding, the Court held that in such a situation the maxim – res ipsa
loquitur – had no application since the incidence could have occurred without the
defendant’s being solely at fault. “…It is impossible to say that the doors of an express
corridor train traveling from Edinburg to London are continuously under the sole
control of the railway company in the sense in which it is necessary that they should for
the doctrine of analogous to it, to apply….” [per Goddard L.J. in Easson v. L.N.E.R.
(ibid). (It should, however, be noted that today, when in many (if not in most) countries
in Europe “automatic locking door-systems” on trains are in operation, the courts may
reach decisions - quite different from the earlier ones.)

-: 45 :-
(B) The Effect of the Operation of the Maxim

In a case in which the operation of the maxim – res ipsa loquitur – has been properly
invoked, the primary and fundamental effect is that the plaintiff is entitled to damages
[Cassidy v. Minister of Health [(1951) 2 K.B. 343 – supra]. Hence, on the one hand, it
becomes clear that a prudent defendant will “feel himself obligated to produce some
evidence in support of his own defence”. Apparently, on the other hand, the defendant
will be “entitled to win” if he can pursue the court to believe that there was no lack of
the exercising of ‘reasonable care’ on his own part [Easson v. L.N.E.R. (1914) K.B.
421 – supra], when the ‘burden of proof will fall back upon the defendant’s shoulders.

No doubt, complications are likely to arise when the defendant is unable to explain the
course of the accident at issue while his (--the defendant’s--) conduct (in commission or
in omission) can be interpreted in various manners. In such a situation – in accordance
with the general rule – the ‘onus of proof’ remains upon the defendant, who (or persons
under whose control) can - under such circumstances be deemed ‘negligent’ per se –
even for the sake of justice.

The rule that in a case based on res ipsa loquitur the defendant must prove that the
accident in question was either due to a specific cause which did not connote his (-the
defendant’s-) negligence, or the result thereof was caused by novus actus interveniens
or novus causa interveniens, or that the accident could not be prevented despite the
exercising of ‘every reasonable care’ by the defendant, may exonerate the defendant
from liabilities. If, however, the defendant forwards the “third defence of non-
preventable accident”, and the plaintiff establishes a prima facie case by invoking the
maxim – res ipsa loquitur – the plaintiff is likely to be in a “better position of success”
than a complainant who rests his complaint on a different principle.