1. NEGLIGENCE ESSAY PRACTICE
The most relevant legal authorities:
Case law:
Nettleship v Weston
Mansfield v Weetabix
Mullin v Richards
Bolam v Friern Hospital Management Committee
Bolitho v City v Hackney
Wilsher v Essex Area Health Authority (CA & HL)
McGhee v National Coal Board
Fairchild v Glenhaven Funeral Services
Wright v Lodge
Sayers v Harlow Urban District Council
Statute:
Law Reform (Contributory Negligence) Act 1945
Compensation Act 2006
Social Action Responsibility and Heroism Act
Question
“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 complainants and the extent of their remedy.”
Lord Atkin, Donoghue v Stevenson [1932] AC 562 at p. 580
Explain using appropriate authorities the difference between the concepts ‘duty of
care’ and ‘standard of care’. How far would you agree that the “rules of law”
relating to establishing breach of duty of care operate to “limit the extent of the
remedy” for Negligence irrespective of the degree to which the defendant is to
blame?
ESSAY
To establish liability in negligence the courts have to find if there is any legal relationship
between the parties (if there is a duty of care), as well as, standard of care (the extent of
that relationship). However, it must be showed how far the rule of law limit the extend of
the remedy, as the world is far beyond perfect, as it was explained by Scott Baker LJ
“there would be no fetes, no maypole dancing and none of the activities that have come to

2. be associated with the English village green for fear of what might conceivably go wrong”.1
Firstly, the best way to explain the duty of care is the case of Donoghue v Stevenson2
,
which introduced the Neighbour Principle, as an example of how the relationship between
Complainant and Defendant arises. It was said by Lord Atkin that “you must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour” and neighbours are “the persons who are so closely and
directly affected by my act that I ought reasonably to have them in my contemplation as
being so affected when I am directing my mind to the acts or omissions which are called in
question”.3 An example of this can be found in the case of Nettleship v Weston4, where
Salmon LJ stated that “ any Driver normally owes exactly the same duty to a passenger in
his car as he does to the general public. This is an example of duty of care situation,
where Salmon LJ decided that there is a legal relationship between drivers and
passengers in his car. Therefore, it can be seen from the reasons stated above that duty
of care is only the first element of law of negligence, which establishes the legal
relationship between the parties.
On the other hand, the standard of care is the element to establish if there was any breach
of that duty of care, as it is usually grounded on the basis of the judgement of the
‘reasonable man’.5 It must be acknowledged that the standard of care in negligence never
amounts to an absolute duty to prevent harm to others, instead it sets a standard of
reasonableness, as it was explained in Birch v Paulson. The test is a objective one and in
the case of Glasgow Corporation v Muir6 it was explained as “the standard of foresight
of the reasonable man eliminate the personal equation and is independent of the
idiosyncrasies of the particular person whose conduct is in question”. In other words, the
standard is the same for everyone in that particular situation.
However, the role of policy is very influential to the outcomes of judgements. In the case of
Nettleship v Weston7 the policy reason to find the driver liable was that driver was
insured against third party risks, therefore, the driver was found liable for damages, as the
driver was insured against third party risks.. Consequently, It can be explained that it is the
measure of the duty owed.8 However, the rule of law might limit the extent of remedy on
the basis of policy as well. It might be illustrated by using the case of Wells v Cooper9
where amateur handyman fixed door handle using three-quarter - inch screws. However,
the handle came off in C’s hand causing him to fall back and suffer injury. The courts
considered the limitation policy that in this situation it was inappropriate to hold the
defendant liable as he did what all the reasonable carpenters would do, therefore, the
remedy should not be granted.
The other case scenario is that it would be unjust if a 13 year old boy would judged the
same as the adult. For instance, in the case of Mulin v Richards10 the question rises was
1 Cole v Davies- Gilbert[2007] EWCA Civ 396 per Scot- Baker LJ at 36
2
[1932] AC 562 at p. 560
3 Lord Atkin, Donoghue v Stevenson [1932] AC5562 at p.580
4 [1971] 2 QB 691
5 DavisContractors v FarehmUrban DistrictCouncil [1956], by Lord Radcliffe at728
6 [1943] AC 448
7 [1971] 3 All ER 581
8 Boltonv Stone [1951] AC850 at 860 by Lord Thankerton
9[1958] 2 All
10 [2009] EWCA Civ295

3. whether the ordinarily prudent and reasonable schoolgirl have realised that much. The fact
that first defendant was at the time a 15 year old schoolgirl is not irrelevant.
Determining the standard of care where D is exercising a special skill courts accept that
within a profession/ trade the opinions might differentiate as how the practice ought to be
done. For instance, in the case of Bollam v Friern Hospital Management Committee it
was a decided that a doctor is not guilty of negligence if he acted in accordance with a
practice accepted by medical authorities. Doctor cannot be found negligent merely
because there is a body of opinion that takes the contrary view. However, this view could
be criticised as it allowed the professionals to set their own standards instead of being
reviewable by the courts. Therefore, even though the case of Bolitho v City & Hackney
Health Authority agreed that Bolam legal principle was correct test to apply, the court
added that it had to satisfy itself that the medical experts’ opinion was reasonable. In other
words, it had weighted up the risks and benefits and consequently had logical basis for
their conclusion.
However, there is the subjective part of standard of care. The legal principle is that the
courts will evaluate defendant’s behaviour in terms of magnitude of risk under which
defendant had put the claimant. The court is considering all the circumstances of the case.
This was illustrated in the case of Bolton v Stone where it was held that reasonable men
do in fact take into account the degree of risk and do not act on a bare possibility as they
would if the risk were more substantial. The court weighted the possibility of a ball
escaping and causing injury against the precautions that could be taken. As the ball has
escaped only a dozen time in thirty years, the defendant had taken all reasonable
precautions.
Additionally, the United Kingdom’s government tried to move away from a ‘compensation
culture’ as it is not the function of the law of tort to eliminate every possible ask out of
socially desirable activities. Therefore, under Compensation Act 2006 s.1 when the court
is deciding whether the defendant should have taken particular steps to meet a standard
of care have regard to whether a requirement to take those steps might a) prevent a
desirable activity from being undertaken at all, to a particular extent or in a particular way,
or b) discourage person from undertaking functions in connection with a desirable activity.
The Social Action, Responsibility and Heroism Act 2015 lists the matters to which a court
must have regard in determining a claim in negligence or breach of statutory duty.
According to
Claimant to be successful has to meet the requirement for resulting damage. He must
have suffered damage, which was, as a matter of fact caused by the defendant and which
is not too remote in law. It does not matter that a material contribution to the damages
could not be proved, as long as there is a material contribution to the risk of cause. For
example, in the case of McGhee v National Coal Board C was covered in dust for longer
than necessary when cycling home. Current medical knowledge was not ale to establish
whether he would not have contracted the disease had he been able to take a shower at
work. However, the employers were liable because they failed to takes steps which would
bring about a material reduction of the risk, which involves a substantial contribution to the
injury.
It must emphasised that the burden of proof remains with C throughout and C must
establish that the breach was at least a material contributory cause of the harm. In the
case of Wilsher v Essex Area Health Authority the court could not infer that only one
actual cause, as there were more than one causative agent, which could cause the

4. claimant’s condition. Also, in Fairchild v Glenhaven Funeral Services Ltd the problem
was that all employees worked in more than one employment where employer breached
his duty of care to them in exposing them to asbestos fibres. However, the condition might
be caused by a single fibre, or a few fibres, or many fibres. Medical opinion hold that none
of these possibilities are more probable than another and the contain once contracted is
not aggravated by further exposure. Even though CA held that they could not prove on the
balance of probability that the ‘guilty’ fibres were the result of any particular D’s breach of
duty, the HL reversed CA’s decision that it was sufficient for a claimant to prove that a
defendant materially increase the risk of injury. Lord Hofmann added a further specific
circumstance for relaxation of ‘but for’ test - protection of employees against unnecessary
exposure to risk. They resurrected McGhee case, approving the ‘material increase of risk’
interpretation and stating that in this exceptional type of case this would be enough to
establish factual causation; the defendants were therefore liable. It would be unjust not to
find the employers liable, therefore, they made an exception.
It seems that even though the government and the courts tried to limit the compensation
culture in the UK when this distinction can be justified as a matter of principle or policy.
However, the court adds sometimes a further specific relaxation of the principle and policy
when the outcome would be unjust on the facts.
August 2012