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1.0 NEGLIGENCE:

DUTY OF CARE

Negligence means carelessness, but in 1934 Lord Wright said:

in strict legal analysis, means more than heedless or careless conduct,
whether in omission or commission: it properly connotes the complex
concept of duty, breach and damages thereby suffered by the person to
whom the duty was owing.- Lochgelly Iron and Coal Co V McMullan
[1934] AC 1 at 25
This sentence encapsulates the traditional tripartite structure of
negligence as a tort. In order to success in negligence action, the
claimant must prove that:

The defendant owed him a duty of care

The defendant was in breach of that duty
The claimant suffered damage, which was caused by that breach of
duty; and
That the damage was not too remote

What must every claimant prove in a negligence action?

Finding a general test
A number of attempts have been made to expound such a general test.
Before 1932, there was no recognized general test for determining
whether a duty existed in circumstances which had not previously come
before a court. Although the rapid speed of change brought about by the
Industrial Revolution in the 19th century made such a test necessary, the
dominance of contract law at that time meant that the development of
tort was subdued. An early attempt to develop a test occurred in Heaven
v Pender[1883], but the most famous attempt came in Donoghue V
Stevenson1
1.1.1 The Neighbour Principle
In the Ration of the Case inn Donoghue v Stevenson , Lord Atkin states
his famous neighbor principle test as a device to determine when a
duty of care is owed.
you must take reasonable care to avoid acts or omission which you can
reasonably forsee would be likely to injure your neighbor . who then , in
law is my neighbor? The answer seems to be persons who are so
1

1932 AC 562

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closely and directly affected by my act that I ought to have them in
contemplation as being so affected when I am directing my mind to the
acts or omission which are called in question.
This statement of legal principle forms the basis for modern law of
negligence. It is an attempt to provide a test which both explains why
duties of care have been recognized in the past and enables judges with
situations in the future novel .
The case was important in two respects
First, by a majority, the House of Lords recognized a new relationship as
giving rise to a duty of care , that between manufacturers and the
ultimate consumers of manufactured products( ginger beer). This is
sometimes called the narrow rule in Donoghue v Stevenson: it still
survives but has in practice been superseded by a new kind of liability
established in the Consumer Protection Act 1987.
Secondly, Lord Atkin enunciated a broad principle of liability. A duty owed
to persons who are so closely and directly affected by my act that I
ought
reasonably
to have them in contemplation as being so
affected He described such people as my neighbours: so his
definition of the duty is called the neighbor principle.
1.1.2 Revised Test
There were many development in the law of negligence in the years
following that decision. These led Lord Wilberforce to redefine the
neighbour principle. He turned it into a two-stage test in Anns v Merton
London BC2
The first question was whether there was sufficient relationship of
proximity or neighborhood such that in the reasonable contemplation of
the defendant carelessness on his part may be likely to cause damage to
the claimant. If so, a prima facie duty of care arose. The second question
was whether there were any consideration which ought to negative or
reduce or limit the scope of the duty of care or the class of persons to
whom it is owed. However this test came under a lot of criticism in the
following years as being too expansive and indeed the Anns case was
itself overruled in 1991.
Student would be expected to read on the criticism and the subsequent
reason for overruling this test in the following cases :
2

[1978] AC 728 at 751

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Yeun Kun Yeu v Attorney General for Hong Kong [1988] and
Murphy v Brentwood District Council[1990]
One of the criticism of Lord Wilberforces two-stage test was that in
appeared to enable the claimant to establish a prima facie duty of care
very easily by reference to foreseability of harm. It could then be argued
that the second stage presented the defendant with the task of producing
policy reasons to convince the judge to reject or limit that duty. Although
the word policy is not one which Lord Wilberforce used in his statement
of the test, is usually regarded as implicit.
1.1.3 The Three-stage test: Foreseability, proximity, and fair , just
and reasonable
The test is now stated in this form. The claimant has to show some three
things if there is to be a duty of care:

It was reasonably foreseeable that a person in the claimants

position would be injured.
There was sufficient proximity between the parties
It is fair , just and reasonable to impose liability.

This three-Stage Test was given the highest judicial support in Caparo
Industries plc v Dickman3
1.3.1 Foreseability and proximity
It is clear that proximity ad foreseability are essential ingredients of the
test . what is meant by these terms? Are they different or merely
interchangeable terms used to describe the same concept?
Foreseability means that the defendant should have foreseen some
damages to the claimant at the time of his alleged negligent act or
omission. What is important here is that the claimant must prove that
damage to him was foreseeable. Negligence does not exist in the air.
See
Bourhill v Young [1943]
Evans and Another v Vowles[2003]
Sutradhar v Natural Environment Research Counncil [2003]
1.1.4 An alternative test: Assumption of Responsibility
3

[1989] QB 653 at 678-680

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An alternative test has been developed , namely whether there had been
a voluntary assumption of responsibility by the defendant for the
claimant. This test is particularly used in cases of liability for omission,
for mis-statements and for economic loss.

1.2 Function of the Duty Concept

Traditionally the duty concept has been seen as serving two separate
function:
(i)

(ii)

Is there a duty at the abstract level (the notional duty or duty in

law): e.g. does a motorist owe a duty of care to other road users?
Or do barristers owe a duty of care to their clients?
Is the particular claimant within the scope of the duty of care
( duty in fact or the problem of the unforeseeable claimant): e.g.
was this particular road user owed a duty by this particular
motorist

1.2.1 Duties of Lawyers

The Courts are concerned that certain task which have a high value to
society as a whole may not be carried out efficiently if the threat of a civil
action for negligence is always present. Immunities from liability for
negligence must be very carefully delineated because all members of
society will suffer is that work or skill is no longer available to us.
In Rondel v Worsley (1969), the House of Lords held that a barrister
could not be sued by his client in respect of the conduct of the case in a
court and the immunity extended to some of the preliminary work
connected with the court proceedings. The latter point was further
clarified in Saif Ali v Mitchell [1980], where it was held that the
immunity also applied to pre-trial work which was intimately connected
with the conduct of the case in court.
The House of Lords has now decided that in contemporary conditions
there are no policy reason sufficient to justify this immunity and it
should be abolished : See Arthur J.S. Hall V Simons.4

[2002] 1 AC 615

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The circumstances in which a duty is owed and the scope of the duty are
considered by the House of Lords in Moy v Pettman Smith (a firm) .5
1.2.2 Duty of Care to Unborn Children
A doubt as to whether the common law recognized a duty of care to
unborn children in respect of damages done before birth was resolved by
statute: the Congenital Disabilities (Civil Liability) Act 1976. The Act
originally envisaged a child being born with disabilities as the result of
damages to the mother( or sometimes the father) occurring during
pregnancy or sometimes before conception. Typical examples were
physical injuries to a pregnant woman in , say, a car crash, or the side
effects of drugs. It had to be amended in the light of advancing medical
technology to deal with damage to stored sperm or eggs: Human
Fertilization and Embryology Act 1990.
These acts impose liability only where the damages caused the disability
from which the baby suffers when it is born. They do not allow an action
where the negligence caused the baby to be born, but did not cause the
disabilities. A doctor may, for example , negligently carry out a
sterilization procedure on either a man or a woman, or may fail to
recommend an abortion: any child born as the result of this negligence
has no claim.
This ethical reason do not apply where the claim is by the father or
mother (or both) who have to bring up the child. For a time the courts
seemed likely to allow such claims. The ethical issues (together with a
wide-ranging review of how these issues are decided round the world)
are discussed:

Where the child is healthy and is being raised in a loving familyMcfarlane v Tayside Health Board.6
Where the child is disabled. Parkinson v St James and Seacroft
University Hospital NHS Trust.7
Where the child is healthy but the mother did not want children
because of her own disability. Rees v Darlington Memorial Hospital
NHS Trust8

1.2.3 POLICE ACTIVITIES

5
6
7
8

[2005] UKHL 7: [2005] 1 WLR 581

[2000] 2 AC 59
[2003] UKHL 52: [2004] 1 AC 309

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Police officers also enjoy a limited immunity from suit in negligence. See
the following cases:Hill v Chief Constale of West Yorkshire ( 1988)
Brooks v Commissioner of Police for the Metropolis (2005)
Van colle v Chief Cobstable of Hertfirshire Police (2008)

1.2.4 Rescue Services

The question has arisen as to whether other rescue services should be
equated either with the police ( and so enjoy limited immunity) or with
the providers of medical care ( for whom no immunity exist).
Three appeals were heard by the court of Appeal in Capital and Counties
plc v Hampshire Council(1997). All the three appeals asked whether the
fire service could come into a relationship of sufficient proximity with the
owner or occupier of property damaged by fire, to owe a duty of care to
that person regarding the safety of his property. It was held that by
merely attending the scene of the fire and fighting it, the necessary
proximity did not arise, but if the fire brigade actively increased the risk
of damage (e.g. by ordering the sprinkler system to be switched off) then
a duty would arise regarding damage caused by that intervention. This
ruling was itself applied in OLL v Secretary of State for Transport [1997]
where no obvious distinction could be found between the work of the
coastguard in responding to an emergency at sea and that of the fire
brigade.

1.2.5 Public Bodies Acting under Statutory Powers

The Courts may think it is in the Public Interest to guard certain
boundaries between the law of torts and other areas of law so as to
prevent the tort of negligence from encroaching on the traditional
territory of others . Such boundaries disputed have occurred between
contract and tort and between private and public law.
Many bodies such as local authorities act within a framework of statutory
duties and powers. Several attempts have been made to argue that the
existence of such a statutory power
should enable the courts to
recognized a parallel duty at common law to protect the particular
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claimants interest. Of course , the local authority may be a potential
defendant who is worth suing when compared with other more obvious
wrongdoers.
In Stovin v Wise[1996) the House of Lords considered the situation in
which a road accident had occurred at a road junction where the
defendants view was obstructed by a bank of earth. This obstruction to
vision was on property owned by British Rail and was a hazard known
to the local highway authority which has a statutory duty under s 41
Highways Act 1980 to maintain the highway. By a majority of 3:2 , their
Lordship allowed the highway authoritys appeal and set out two
preconditions which would have to be met before a negligent omission to
exercise a statutory duty could give rise to a private law action in the
tort of negligence.
(i)

(ii)

It would have been irrational for the authority not to have

exercised its power in the circumstances (this was not the case
on the facts before the House).
There existed clear grounds for discerning a policy in the statute
to confer a right to compensation( bearing in mind this would
have to be found from public funds) to a person adversely
affected by its omission.

Please further read the following cases

Gorringe V Calderdale Metropolitan Bourough Council [2004]
Clunis v Camden and Islington Health Authority (1998)
W v Essex County Council (2000)
Barret v Enfield London Borough Council [1999)
D v East Berkshire Community Health NHS Trust[ 2005}
Summary
-

There is no liability in negligence unless there is a duty to take

care. This established the necessary link between the claimant and
the defendant. Such duties are widely recognized. In cases of doubt
the modern test is whether there was foreseability and proximity
and it was fair, just and reasonable to impose the duty.

The dominant test for duty of care in negligence is now the threestage- test:

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Foreseability of harm

Proximity of relationship

Whether it is fair , just and reasonable to impose a duty on

the defendant in the circumstances

The policy consideration relevant to fairness,

reasonableness play a particular part where:

justice

and

The re os a risk of the floodgates being opened to excessive

numbers of actions
The defendant is a police officer
The defendant is a rescuer
The defendant is a public body
The defendant is exercising a statutory power
The behavior which caused the hard was an omission to act
The behavior of the defendant created a situation which
enabled a third party to cause the harm
The defendants was a health practitioner who failed to warn
of the risks of medical treatment.
-

Key Cases

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1.3 BREACH OF DUTY
Once the claimant has established that the defendant owed him a duty of
care, he must show that the defendant was in breach of that duty. The
court will look at the defendants conduct and judge whether it fell below
the required standard. If it did the conduct would amount to negligence
and the defendant will be in breach of duty.
The standard of care expected of a particular defendant is set by law ,
but the question whether the defendant fell below the standard is one of
fact, to be determined by reference to all the relevant circumstances.
The basic rule is that the defendant must conform to the standard of
care expected of a reasonable person.
Negligence is the omission to do something which a reasonable man
guided upon those consideration which ordinarily regulate the conduct
of human affairs would do, or doing something which a reasonable and
prudent man would not do.9
1.3.1 Ordinary person in ordinary circumstances
One of the few cases in which the House of has had to consider the
behavior of an ordinary person in ordinary circumstances( not involving
special skills or knowledge) is
Glasgow Corporation v Muir, 10Lord
Macmilllan highlighted two important aspects of the test:
(a) The standard of foresight of a reasonable man, is in one sense, an
impersonal test. It eliminated the personal equation and is
independent of the idiosyncrasies of the particular person whose
conduct is in question.
It is an objective test. the abstract reasonable person is put into
the shoes of the defendant , who is expected to have the same
general knowledge and understanding of risks (say that icy roads
are slippery or that children may get up to mischief) as the
reasonable person. The actual defendant may be stupider or more
ignorant , or more may be cleverer or more knowledgeable , but is
still judged by this abstract impersonal standard.

Blythe v Birminghan Waterworks (1856) 11 Exch 781

10

[ 1943] AC 448

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(b) it is still left to the judge to decide what, in the circumstances of
the particular case, the reasonable man would view. What to one
judge may seem far-fetched may seem to another both natural and
probable.
The outcome is therefore to the extent unpredictable even in the
tiny minority of cases that are resolved in courts.
1.3.2 Reasonable Person Test
As stated above , this is an objective standard and no account is taken of
individual disabilities or peculiarities. For example, a learner driver will
be judged against the same standard as a reasonable prudent , qualified
driver See Nettleship V Weston
Mrs W wanted to learn to drive. Her husband was quite prepared to allow
her to learn in his car. Mrs W asked a friend of theirs, N, if he would give
her lessons. N was not a professional instructor. He said that he was
willing to teach Mrs W but before doing so wanted to check on the
insurance in case there was an accident. Mr and Mrs W assured him that
that they had a fully comprehensive insurance which covered him as a
passenger in case of accident, and showed him the relevant documents.
On the third lesson Mrs W was sitting in the driver's seat controlling the
steering wheel and foot pedals. N was assisting her by moving the gear
lever and applying the handbrake. Occasionally he assisted with the
steering. They approached a road junction and stopped. N instructed Mrs
W to move off slowly round the corner to the left. He took off the hand
brake and put the gear lever into first gear. She let in the clutch and the
car moved round the corner at walking pace. N told her to straighten out
but she did not. She panicked, holding the steering-wheel in a 'vice-like
grip'. N took hold of the handbrake with his right hand and tried to
straighten out the steering-wheel with his left but just failed to prevent
the car mounting the kerb and striking a lamp standard. N claimed
damages against Mrs W for the injuries which he suffered in the accident.
Held - (N had a good cause of action in negligence against Mrs W

In Roberts v Ramsbottom(1980) a driver , who did not realize that he had

suffered a stroke immediately before setting off on a journey, was held
responsible for the consequence of his lack of control over the vehicle. He
did not appreciate that he has suffered a stroke and he still retained
sufficient control of his body movement to fall short of the defence of
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automatism. The reasonable prudent person would not have continued to
drive in such circumstances.
The Dictum of Neill J in Roberts v Ramsbottom was disapproved by the
Court of Appeal in Mansfield v Weetabix Ltd [1998] and a clear distinction
between the civil and criminal tests was drawn. Neill J had considered
several criminal cases on automatism and stated:
I am satisfied that in a civil action a similar approach should be
adopted. The driver will be able to escape liability if his actions at the
relevant time were wholly beyond his control. The most obvious case is
sudden unconsciousness. But
if he retained some control , albeit
imperfect control , and his driving , judged objectively, was below the
required standard, he remains liable.
In Mansfield the driver was unaware that he was suffering from a rare
medical condition which meant that his brain was unable to function
properly. At the time of the journey in question he was in a hypoglycemic
state. The Court of Appeal measured his driving against that of a
reasonable competent driver unaware that he was suffering from
impaired ability to drive. On these facts the driver was not negligent.
Leggat LJ stated:
to apply an objective standard in a way that did not take account of the
drivers condition would be to impose strict liability. But this is not the
Law.
Glasgow Corporation v Muir [1943] 2 All ER 44
Members of a church picnic party in King's Park, Glasgow, obtained
permission from the manageress employed by the appellants to have their
tea in the tea room owing to the unfavorable weather conditions. It was
necessary to carry the tea urn through a narrow passage on one side of
which was a counter where several children were buying sweets or ices.
The urn was being carried through the passage by the church officer and
a boy, the boy holding the front handle and the officer the back one, when
for some unexplained reason the latter let go his handle and scalding tea
escaped from the urn, injuring 6 children. It was contended for the
respondents that the manageress of the tea room should have anticipated
that there was a risk of the contents of the urn being spilt and scalding
some of the children and that her omission to remove the children from
the passage during the transit of the urn constituted a breach of her duty
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Held : the appellants were not liable in negligence to the respondents. A
reasonable person would not have anticipated danger to the children, the
invitees of the appellants, from the use of the premises permitted by
them.
Roe v Minister of Health [1954] 2 All ER 131
On Oct. 13, 1947, each of the plaintiffs underwent a surgical operation at
the Chesterfield and North Derbyshire Royal Hospital. Before the
operation in each case a spinal an aesthetic consisting of Nupercaine,
injected by means of a lumbar puncture, was administered to the patient
by the second defendant, a specialist an aesthetist. The Nupercaine was
contained in glass ampoules which were, prior to use, immersed in a
phenol solution. After the operations the plaintiffs developed spastic
paraplegia which resulted in permanent paralysis from the waist
downwards. In an action for damages for personal injuries against the
Ministry of Health, as successor in title to the trustees of the hospital,
and the an aesthetist, the court found that the injuries to the plaintiffs
were caused by the Nupercaine becoming contaminated by the phenol
which had percolated into the Nupercaine through molecular flaws or
invisible cracks in the ampoules, and that at the date of the operations
the risk of percolation through molecular flaws in the glass was not
appreciated by competent an aesthetists in general.
HELD: having regard to the standard of knowledge to be imputed to
competent an 12nesthetist12 in 1947, the an 12nesthetist could not be
found to be guilty of negligence in failing to appreciate the risk of the
phenol percolating through molecular flaws in the glass ampoules and, a
fortiori, there was no evidence of negligence on the part of any member
of the nursing staff.
See also the following cases
Condon V Basi [1985]
Pitcher V Huddersfield Town Football Club[2001]
Caldwell v Maguire and Fitzgerald[2002]
Smolden v Whitworth[1997]
1.3.3 Factors determining negligence
The courts will take various factors into account. These factors may
operate in isolation or conjucttion but there is also a policy element
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behind many of the courts decision. For example, in deciding whether to
make a finding of fault in a medical negligence case, the court may take
into account , when setting the standard of care, the effects on health
authoritys finances or the morale of the members of that professional
group whose practices are being questioned.
1.3.4 The Degree of Probability that damage will occur
Nearly every human action involves some risk of harm to others, bit not
every risky act will necessarily result in liability. Care has to be taken in
respect of a risk that is reasonably foreseeable. Foreseability is relative:
the Greater the risk of damage, the more care must be taken.
In Bolton V Stone[1951], the claimant was struck by a cricket ball while
she stood outside her house. Evidence showed that balls had only been
hit outside the grounds six times in 30 years. The defendants were held
not liable as the risk was so small that the reasonable person would have
been justified in disregarding it. Indeed, the defendants had already
taken steps to reduce the possibility of cricket balls being hit out of
the ground. The short which caused the ball to hit the claimant was
prodigious stroke by the batsman and no further precaution were
required to guard against the risk of such an unusual stroke.
1.3. 5 The Magnitude of Likely Harm
The greater the injury that is risked, the greater the precaution that will
be required.
In Paris V Stepney Borough Council [1951], a one eye welder,
employed by the defendant lost his sight because he was aware was not
provided with safety goggles. The defendant was negligent because he
was aware of his disability and should have taken greater care. If, as in
this case, the defendant knows of some particular characteristic of the
claimant, the amount of care required to meet the test of reasonableness
may be greater. Another example would be that those organizing a
sporting even for disabled participants must take greater responsibility
for their safety than for the safety of able-bodied athletes. Even where
the participants are able-bodied, qualified supervision of gymnastic
activities may be needed to demonstrate reasonable care.
In Fowler v Benfordshire County Council[1995] the Court of Appeal
held that the local authority was negligent in failing to instruct young
adults using a youth center gym on the correct use of equipment and
crash mats.
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The probability of damage and the gravity of likely harm together make
up an examination of the magnitude of the risk posed by the defendants
conduct.
1.4.0 Defendant with special Skills
A person who claims to have a special skills is judges by the standards of
a reasonable person possessing the skills which he claims to possess. It
would be silly to ask whether a reasonable person would have driven the
car, removed the appendix or designed the building in the same way as
the actual motorist, surgeon or architect who is being sued. In such
cases the defendant is compared to a reasonable person with the
relevant skills or qualification.
This is not always easy as it might be
a) For one thing , there is sometimes doubt as to exactly what skills or
qualifications the defendant profess to have.
b) There may also be doubt as to whether a large group ( say car
drivers or doctors) should be subdivided into smaller categories for
the purpose of comparison with reasoanable members of the group.
1.4.1 Defining the Group
In Philips v William Whiteley [1938] 1 All ER 566
The question herein was whether the defendant , who had pieced the
claimants ears, has to show the care of a reasonable surgeon or of a
professional jeweler?

The plaintiff, requiring her ears to be pierced so that she could wear earrings, approached the defendants, who arranged with C, whole was a
jeweller, to do this for then at their premises. C, before he set out for the
defendants' establishment, placed his instrument in a flame and washed
his hands, and, upon arrival there, dipped both the instrument and his
fingers into a glass of Lysol before he pierced the ear. On the following,
the plaintiff entered a nursing-home for the purpose of undergoing a
severe operation, and some 13 days later after she had experienced some
pain in the neck, an abscess formed there, owing to the entry of infection
into the hole that had been pierced in the car :HELD: (i) a jeweller is not bound to take the same precautions as a
surgeon would take, and, upon the facts, C had taken all reasonable

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precautions. (ii) it was not proved that the infection entered the ear at the
time when C pierced it.

1.4.2 Medical Negligence

A large number of the cases involving special skills concern medical
negligence. The defendant is to be compared with a reasonable person
of the same specialism and status: a general practitioner is not judged
by the same standards as a consultant cardiologist and so on.
There is usual a challenge with medical defendants ( and to some extent
with members of other profession) there is often no single right way
proceedings. Faced with a particular patient , one doctor might
recommend surgery , but another might recommend treatment with
drugs. Faced with this task the court would require that the defendant
has acted in a way that would be supported by a body of respectable
medical opinion. This is sometimes called the Bolam test a set out in
that case.
Bolam v Friern Hospital Management Committee [1957].
the test is the standard of the ordinary skilled man exercising and
professing to have that special skills. A man need not posses the highest
expert skill at the risk of being found negligent..(A) a doctor is not
guilty of negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that
particular art.
This test allow the medical profession to some extent to determine
appropriate standards for itself, but the courts reserve the right to strike
down a medical practice as unreasonable( as explain in Bolitho)
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771
On 16 January 1984 a two-year-old boy, P, who had a past history of
hospital treatment for croup, was readmitted to hospital under the care of
Dr H and Dr R. On the following day he suffered two short episodes at
12.40 pm and 2.00 pm during which he turned white and clearly had
difficulty breathing. Dr H was called in the first instance and she
delegated Dr R to attend in the second instance but neither attended P,
who at both times appeared quickly to return to a stable state. At about
2.30 pm P suffered total respiratory failure and a cardiac arrest, resulting
in severe brain damage. He subsequently died and his mother continued
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his proceedings for medical negligence as administratrix of his estate.
The defendant health authority accepted that Dr H had acted in breach of
her duty of care to P but contended that the cardiac arrest would not
have been avoided if Dr H or some other suitable deputy had attended
earlier than 2.30 pm. It was common ground that intubation so as to
provide an airway would have ensured that respiratory failure did not
lead to cardiac arrest and that such intubation would have had to have
been carried out before the final episode. The judge found that the views
of P's expert witness and Dr D for the defendants, though diametrically
opposed, both represented a responsible body of professional opinion
espoused by distinguished and truthful experts. He therefore held that Dr
H, if she had attended and not incubated, would have come up to a
proper level of skill and competence according to the standard
represented by Dr D's views and that it had not been proved that the
admitted breach of duty by the defendants had caused the injury which
occurred to P. The Court of Appeal dismissed an appeal by P's mother and
she appealed to the House of Lords.
Held - A doctor could be liable for negligence in respect of diagnosis and
treatment despite a body of professional opinion sanctioning his conduct
where it had not been demonstrated to the judge's satisfaction that the
body of opinion relied on was reasonable or responsible. In the vast
majority of cases the fact that distinguished experts in the field were of a
particular opinion would demonstrate the reasonableness of that opinion.
However, in a rare case, if it could be demonstrated that the professional
opinion was not capable of withstanding logical analysis, the judge would
be entitled to hold that the body of opinion was not reasonable or
responsible. The instant case was not such a situation since it was
implicit in the judge's judgment that he had accepted Dr D's view as
reasonable and although he thought that the risk involved would have
called for intubation, he considered that could not dismiss Dr D's views to
the contrary as being illogical. The appeal would, accordingly, be
dismissed (see p 778 b to g and p 779 e to g j to p 780 a e to j, post).
Bolam v Friem Hospital Management Committee [1957] 2 All ER 118 and
Hucks v Cole (1968) (1993) 4 Med LR 393 applied.
Other examples of the application of this principle are :
Whitehouse v Jordan11;
Maynard v West Midlands Regional Health Authority 12
11
12

[1981] 1WLR 246

[1984] 1 WLR 634

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Wilsher v Essex Are Health Authority13
The most controversial application of the Bolam test occurs where it is
alleged that the doctor failed to give the patient sufficient warning of the
risk of the proposed treatment( or possibly of the warning of the risk of
the proposed treatment). English law in principle applies the Bolam test
and asks whether the information given was in accordance with what a
respectable body of medical opinion would have done., but Australian
courts have taken a different view more generous to the patient and ask
what a reasonable patient would expect to be told. See Sidaway v
Bethlem Royal Hospital Governors [1985)
Sidaway v Bethlem Royal Hospital [1985] 1 All ER 643
The plaintiff, who suffered from persistent pain in her neck and
shoulders, was advised by a surgeon employed by the defendant hospital
governors to have an operation on her spinal column to relieve the pain.
The surgeon warned the plaintiff of the possibility of disturbing a nerve
root and the possible consequences of doing so but did not mention the
possibility of damage to the spinal cord even though he would be
operating within three millimetres of it. The risk of damage to the spinal
cord was very small (less than 1%) but if the risk materialised the
resulting injury could range from the mild to the very severe. The plaintiff
consented to the operation, which was carried out by the surgeon with
due care and skill. However, in the course of the operation the plaintiff
suffered injury to her spinal cord which resulted in her being severely
disabled. She brought an action against the hospital governors and the
surgeon's estate (the surgeon having died in the mean time) claiming
damages for personal injury. Being unable to sustain a claim based on
negligent performance of the operation, the plaintiff instead contended
that the surgeon had been in breach of a duty owed to her to warn her of
all possible risks inherent in the operation with the result that she had
not been in a position to give an 'informed consent' to the operation. The
trial judge applied the test of whether the surgeon had acted in
accordance with accepted medical practice and dismissed the claim. On
appeal the Court of Appeal upheld the judge, holding that the doctrine of
informed consent based on full disclosure of all the facts to the patient
was not the appropriate test under English law. The plaintiff appealed to
the House of Lords.
Held - (1) (Per Lord Diplock, Lord Keith and Lord Bridge, Lord Scarman
dissenting) The test of liability in respect of a doctor's duty to warn his
13

[[1987] QB 730

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patient of risks inherent in treatment recommended by him was the same
as the test applicable to diagnosis and treatment, namely that the doctor
was required to act in accordance with a practice accepted at the time as
proper by, a responsible body of medical opinion. Accordingly, English law
did not recognise the doctrine of informed consent. However (per Lord
Keith and Lord Bridge), although a decision on what risks should be
disclosed for the particular patient to be able to make a rational choice
whether to undergo the particular treatment recommended by a doctor
was primarily a matter of clinical judgment, the disclosure of a particular
risk of serious adverse consequences might be so obviously necessary for
the patient to make an informed choice that no reasonably prudent doctor
would fail to disclose that
(2) (Per Lord Templeman) When advising a patient about a proposed or
recommended treatment a doctor was under a duty to provide the patient
with the information necessary to enable the patient to make a balanced
judgment in deciding whether to submit to that treatment, and that
included a requirement to warn the patient of any dangers which were
special in kind or magnitude or special to the patient. That duty was,
however, subject to the doctor's overriding duty, to have regard to the
best interests of the patient. Accordingly, it was for the doctor to decide
what information should be given to the patient and the terms in which
that information should be couched .
(3) Since (per Lord Diplock, Lord Keith and Lord Bridge) the surgeon's
non-disclosure of the risk of damage to the plaintiff's spinal cord accorded
with a practice accepted as proper by a responsible body of neurosurgical opinion and since (per Lord Scarman and Lord Templeman) the
plaintiff had not proved on the evidence that the surgeon had been in
breach of duty by failing to warn her of that risk the defendants were not
liable to the plaintiff. The appeal would accordingly be dismissed
Per Lord Keith, Lord Bridge and Lord Templeman. When questioned
specifically by a patient of apparently sound mind about the risks involved
in a particular treatment proposed, the doctor's duty is to answer both
truthfully and as fully as the questioner requires Decision of the Court of
Appeal [1984] 1 All ER 1018 affirmed.
1.5 Related Issue
1.5.1 Children

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Children may be liable in negligence and are judged by what might be
expected of a reasonable child of the defendants age, and the courts
appear to be indulgent towards high spirits and horseplay:
Mullins v Richards [1998] 1 All ER 920
M and R, two 15-year-old schoolgirls, were fencing with plastic rulers
during a class when one of the rulers snapped and a fragment of plastic
entered M's right eye, causing her to lose all useful sight in that eye. M
brought proceedings for negligence against R and the local education
authority. The judge, dismissed the claim against the education authority,
but found that both M and R had been guilty of negligence of which M's
injury was the foreseeable result and, accordingly, that M's claim against
R succeeded subject to a reduction of 50% for contributory negligence. R
appealed, contending, inter alia, that the judge had erred when
considering foreseeability by omitting to take account of the fact that R
was not an adult.
Held - Although the test of foreseeability in negligence was an objective
one, where the defendant was a child the question for the judge was not
whether the actions of the defendant were such as an ordinarily prudent
and reasonable adult in the defendant's situation would have realised
gave rise to a risk of injury, but whether an ordinarily prudent and
reasonable child of the same age as the defendant in the defendant's
situation would have realised as much. Since the judge in his judgment
had referred to M and R's age, it followed that he had had in mind the
correct principles and had approached the matter in the correct way.
However, there was insufficient evidence to justify his finding that the
accident was foreseeable, since there was no evidence as to the
propensity or otherwise of such rulers to break or any history of their
having done so, nor that the practice of playing with rulers was banned or
even frowned on in the school, nor that either of the girls had used
excessive or inappropriate violence. What had taken place was nothing
more than a schoolgirl's game which was commonplace in the school and
there no justification for attributing to the participants the foresight of
any significant risk of the likelihood of injury. The appeal would therefore
be allowed and judgment entered for the R.
See also Blake v Galloway [2004]
1.5.2 Eliminating harm must be proportional to the danger
A defendant is not required to eliminate all risk of harm even when it is
foreseeable: to do so might be out of all proportion to the danger. The
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defendant must do something only if a reasonable person would have
thought it right to do so. In deciding what precautions have to be taken
to minimize a perceived risk, the following guidelines may be taken into
account:
(a) How likely was it that the injury would occur?
(b)How serious was the injury likely to be if it did occur?
(c) How difficult and / or expensive would it be to eliminate the risk?
(d)How important or urgent was the action of the defendant?
1.6 Proof of Negligence
The basic rule is that he who affirms must prove. In negligence the
burden of proof lies on the claimant to prove that the defendant acted
without reasonable care.
1.6.1 Res ipsa Loquitur
The claimant is required to produce evidence which raised an inference
of lack of reasonable care on the part of the defendant. In some cases it
may be difficult or impossible, for the claimant to show the exact way in
which the accident occurred. If no such evidence can be adduced, the
necessary inference may be raised by using the maxim res ipsa loquiturthat is , the thing(event ) speaks for itself.
For example, a parked car, may have moved off without warning down a
hill. All the claimant can do is show that such a thing does not normally
happen unless there has been negligence .
In order to pleade res ipsa loquitur the claimant must prove two things
1. The thing causing the damage or the event must have been under
the defendants exclusive control. This means that
the mere
occurrence of the accident should point to the negligence on the
part of the defendant and no- one else.
Scott v London and St Katherine Docks (1865) 3 H & C 596
The claimant was struck by an object falling from the defendants premises. This was
sufficient to establish the requirement of control. The courts have been flexible with this
requirement and for example, in defective product cases- have said that the control lies
in the manufacturering process: Grant v Australian Knitting Mills(1936). This is so
even though the injury may have been caused long after the product left the factory,
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provided that the goods in question reach the consumer in the condition in which they left
the factory.
2. The accident should be of a sort that does not

happen in the
absence of negligence. For example , stones are not normally found
in buns and barrels do not normally fall from upstair windows,
unless there has been negligence on someones part.

CAUTION
THE SAID NOTE ARE NOT EXHAUSTIVE. YOU WILL BE
EXPECTED TO DO YOUR OWN READING AND FILL IN THE GAPS
IN ADDITION TO READING ALL THE CASES PROVIDED HEREIN.

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