How is Negligence Determined?

1145 words (5 pages) Essay in Tort Law

27/03/19 Tort Law Reference this

Last modified: 27/03/19 Author: Law student

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How is Negligence Determined?

The English and Scottish Law established an important choice in the House of Lords with reference to the case held of Donoghue v Stevenson [1932].  Donoghue v Stevenson created the present notion of negligence in which the general idea is to practice a duty of care towards the next person. The essay will further examine the strict liability shift to the context of the duty of care with the illustration of further cases.

Negligence can be described as the carelessness in everyday terms or failure to take the proper level of care. Negligence in law is a form of tort Finch and Fafinski (2014). The law of negligence has been expressed that persons are liable for the negligent acts he or she commits. The responsibility is upon the claimant to prove that the defendant owes him or her a duty of care Slapper and Kelly (2006). Before the framework of ‘duty of care’, the concept of strict liability was the justified practice in the courts. This meant that the claimant would have proven that physical damages were done to him or her.  The prosecution needs to show the actus reus in strict liability misconducts. Moreover, when having to take into account all elements in proving a case based on strict liability, supplying the proof seemed cumbersome, costly and time-consuming Stanton-Ife (2007). In the case of McFadden v blue Star Line [1905] explains to “the duty of seaworthiness where it is upon the shipper to provide a seaworthy vessel as the most essential responsibility in the contract of carriage” (The Law Teacher, 2013 n.p.). Furthermore, it was held that in McFadden v Blue Star [1905] the shipowner accepts that the ship is fit and ignorance is no excuse. If the defect existed the question to ask is would a prudent owner have required that is should be seaworthy before setting off to sea? If the owner had done that, then the ship would not have been seaworthy for the task.  The obligation of this idea came from the ruling done on Lyon v Mells [1804] which Lord Ellenborough held that stated any person holding himself as the owner of a lighter to carry goods, in terms of the contract as implied by law, his or her vessel is fit for purpose for the public, therefore the law presumes it as a promise on the part of the carrier without the need for proof. These cases have shown how the justification of strict liability was set, alluding that if it is your fault; you are liable. “Duty of care was therefore only owed in limited circumstances” Slapper and Kelly (2006).

In order to determine negligence, the claimant needs to first ask the following questions. “The claimant was owed a duty of care. There was a breach of that duty of care. The claimant suffered damages as a result of that breach (causation). The damage suffered was not too remote” Finch and Fafinski (2014). The facts of Donoghue v Stevenson were that Mrs Donoghue went to a cafe with a friend that bought her a ginger beer. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer. The House of Lords further had to determine whether a duty of care existed as a matter of the law. It was held that the manufacturer owed a duty of care to their customer. Also, another important decision that occurred, in this case, is “the neighbour principle which determines whether the defendant owes a duty of care in any situation” (Heuston, 1957, n.p.). Lord Atkin who then gave the ruling  thus affirmed: “You must take reasonable care to avoid acts and omissions which you could reasonably foresee would be likely to injure your neighbour. Who, then is my neighbour? Any persons 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 and omissions which are called in question” Slapper and Kelly (2006). It should be noted that the application of the neighbour principle is not limited. Lord Macmillan recognised that new duties may arise, thus “the categories of negligence are never closed”. “This means that courts can formulate new categories of negligence to reflect the current social view and make decisions based on considerations of public policy” Finch and Fafinski (2014). An example of the neighbour principle was applied and reformed in later years in Caparo Industries plc v Dickman [1990] 2 AZ 605 (HL).

Additionally, the case of Donoghue and Stevenson was later applied in Ann’s v Merton London Borough Council [1978] AC 728 House of Lords whereby the claimants were living in a block of flats which had severe structural defects due to inadequate foundations which were not as per the requirements. House of Lords thus ruled that the defended did owe a duty of care to ensure that the foundations were the correct depth.  Furthermore, Lord Wilberforce established that in cases of duty of care, previous facts of situations do not need to exist but the question should be approached in two stages. Lord Wilberforce’s two-stage test examines whether the loss was reasonably foreseeable and there existed a relationship of proximity if so a prima facie duty of care arises. The defendant may apply new policy considerations to refute liability Slapper and Kelly (2006).

It can be alluded that Lord Atkin wanted to move away from circumstances of cases-by-case and rather to an approach of duty of care that would apply to all situations Patten (2012).


  • Finch, E. and Stefan, F. (2014) Law Express: Tort Law (Revision Guide) [online]. Pearson Education M.U.A. Available through: [Accessed: 23 November 2017]
  • Slapper, G and Kelly, D. (2006) English Law. 2nd ed. Oxon: Routledge
  • Slapper, G and Kelly, D. (2010) English Law. 3rd ed. Oxon: Routledge-Cavandish
  • Stanton-Ife, J. (2007) Strict Liability: Stigma and Regret. Oxford Journal of Legal Studies [online], V.27 (1), pp.151 173. Available at: [Accessed: 23 November 2012]
  • Heuston, R. (1957) Donoghue v Stevenson in Retrospect. The modern law review. V 20(1), pp. 1-24.
  • Patten, K. (2012) Snail Trail. New Law Journal. Available at: ttps:// [Accessed 27 November 2017]
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