Tort Law First Year

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Duty of Care

The tort of negligence has 3 elements: 1. The defendant must have owed the plaintiff a duty of care i.e. D’s activity which is alleged to give rise to the duty will foreseeable injure P or class of persons of which P is a member if reasonable care is not exercised. 2. The duty of care owed must have been breached 3. The breach must have caused damage (not necessarily physical) to the plaintiff Prior to Donoghue v Stevenson, only certain relationships were recognised by the courts as establishing an extra-contractual duty of care so that an action of ‘negligence’ could arise if this duty was breached: 1. Surgeon and patient 2. Innkeeper and a guest – harm did not necessarily have to reasonably foreseeable – innkeepers had absolute liability 3. Consigner (sends packages from A to B) and carrier (transport company or courier who carries the packages) 4. Bailer and bailee – bailment involves giving possession of property to another individual. 5. Occupier’s of land and their invitees (to the land) Donoghue v Stevenson, 1932 Facts: Donoghue consumed ginger beer manufactured and bottled by Stevenson in dark opaque glass and sealed with a metal cap so that she had no reason to suspect that it contained anything but the drink. However, towards the end of her drink she discovered a decomposed snail in the bottle and as a result suffered from shock and severe gastro-enteritis. Donoghue argued that Stevenson owed a duty of care to ensure that the manufactured products were fit for public consumption e.g. by instituting a system of inspection of the bottles before ginger beer was filled. Judgment -Held that an individual owes a duty of care to others who may be harmed by his actions or failure to act if reasonable care was not taken (combination of reasonable foresight of risk + neighbour principle). -Held that a manufacturer who sells products in a form which is intended to be the final form reaching the consumer in which there is no reasonable...