Negligence

The modern law of negligence was established in Donoghue v Stevenson

[1932] AC 562 (Case summary Youtube clip). In order to be successful in a
negligence claim, the claimant must prove:

1. the defendant owed them a duty of care;

2. the defendant was in breach of that duty;

3. the breach of duty caused damage and;

4. the damage was not too remote.

Duty of care
The legal test for imposing a duty of care varies according to the type of loss.

• For personal injury and property the first two stages of the Caparo test
apply (case summary). See more here Youtube clip on duty of care for
property damage and personal injury

• For psychiatric injury the Alcock test applies. See here

• For pure economic loss see here

• For policy considerations see here

• For liability relating to an omission see here

Breach of duty
An objective test is applied to determine if the defendant is in breach of duty.
(Vaughan v Menlove (1837) 3 Bing. N.C. 467 Case summary). See further on
breach of duty here.

Causation
Causation is generally decided by applying the 'but for' test from Barnett v
Chelsea & Kensington Hospital [1969] 1 QB 428 Case summary. However, in
some situations other considerations apply. See more on causation here.

Remoteness of damage
The Wagon Mound no 1 [1961] AC 388 Case summary test applies.
This provides that the defendant is only liable for loss which was of a
foreseeable kind. If the loss was of a foreseeable type, the defendant is liable
for the full extent of the loss, even if the loss was much greater than expected.
See further on remoteness of damage here.
 Negligence - duty of care

Duty of care refers to the circumstances and relationships which the law
recognises as giving rise to a legal duty to take care. A failure to take such
care can result in the defendant being liable to pay damages to a party who is
injured or suffers loss as a result of their breach of duty of care. Therefore it
is necessary for the claimant to establish that the defendant owed them a duty
of care. The existence of a duty of care depends on the type of loss and
different legal tests apply to different losses. This lecture considers the position
in relation to personal injury and property damage. See the other lectures
for psychiatric injury, pure economic loss and defective items.

Duty of care for personal injury and property damage

The existence of a duty of care for personal injury and property damage was
originally decided by Lord Atkin's neighbour test from Donoghue v
Stevenson.

The neighbour test:

Donoghue v Stevenson [1932] AC 562 Case summary Youtube clip

Lord Atkin:
"The rule that you are to love your neighbour becomes m 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."

The neighbour test for establishing a duty of care can be broken down in to two
requirements:
1. Reasonable foresight of harm
2. A relationship of proximity

For application of reasonable foresight in establishing a duty of care see:

Topp v London Country Bus [1993] 1 WLR 976 Case summary
Home Office v Dorset Yacht Co Ltd [1970] AC 1004 Case summary

For application of proximity in establishing a duty of care see:

Bourhill v Young [1943] AC 92 Case summary
Prior to Donoghue v Stevenson, a claimant would have to establish an existing
duty relationship in order to be successful. The neighbour test taken in its
widest sense could be very broad allowing liability in a whole range of
situations, however, subsequent cases narrowed down its application to only
where a consumer was suing a manufacturer. However, in Anns, Lord
Wilberforce sought to resurrect an all embracing test for duty of care:

Anns v Merton London Borough Council [1978] AC 728 Case summary

Lord Wilberforce's two stage test:

1. Examine whether the loss was reasonably foreseeable and there existed a
relationship of proximity. If so a prima facie duty of care arises

2. The defendant may put forward policy considerations to negate liability.

The first stage was essentially the elements of the neighbour test, however in
order to address the fears of the floodgates, this was subject to the second
stage which provided a get out clause for defendants where there existed
policy reasons for denying the imposition of a duty of care.

Back to the incremental approach

Despite the efforts to allay fears of the floodgates, the Anns test was still
considered too wide. In Caparo, the House of Lords overruled Anns and went
back to the incremental approach whereby the claimant may only bring their
action where they can establish an existing duty situation. In novel situations
the question of whether a duty of care is now subject to the Caparo test.

Caparo Industries Plc v Dickman [1990] 2 AC 605 (case summary) Lord

Bridge's three stage test for imposing a duty of care, known as the Caparo
test:

Under the Caparo test the claimant must establish:

1. That harm was reasonably foreseeable

2. That there was a relationship of proximity

3. That it is fair, just and reasonable to impose a duty of care

It can be seen that the first two stages are taken directly from the original
neighbour test. Fair, just and reasonable relates to the same policy
considerations under the Anns test. In fact the Caparo test contains the
same elements as Anns. The main difference being, that under Caparo it is
the claimant that must put forward policy reasons for imposing liability
whereas under Anns, liability would arise once the claimant had established
reasonable foresight and proximity and the defendant had to demonstrate
policy factors for negating liability. For further details relating to policy factors
see here.

Where there is an established ground of liability such as personal injury or

property damage there is no need to apply the third stage of Caparo test. That
is only applicable where there is a potential new ground of liability:

Robinson v Chief Constable of West Yorkshire [2018] 2 WLR 595 Case

summary

Duty of Care - Policy factors (Fair, just and reasonable)

In applying the third stage of the Caparo test, of fair, just and reasonable, the
courts take certain policy factors into account. Policy factors which may
influence the court include such issues as:

Loss allocation:-

Who can afford to bear the loss?

Which of the parties have insurance/ is the situation one subject to compulsory
insurance?

Is the defendant a publicly funded body?

The floodgates:-

Will imposing liability lead to a high volume of new claims?

What effect would this have on cost of insurance or its availability?

Will the courts be able to cope with the volume of cases?

The practical effects of imposing liability

Will the imposition of a duty of care act as a deterrent or raise standards?

Will imposing a duty have an adverse effect on decision making?

Will it effect the allocation of resources away from necessities?

These issues often arise in the context of publicly funded bodies and in
particular in relation to the police, the CPS, Local authorities and emergency
services.

1. The police

a).Duty in detecting crime:

Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 Case summary
Alexandrou v Oxford [1993] 4 All ER 328 Case summary
Osman v Ferguson [1993] 4 All ER 344 Case summary
Osman v United Kingdom Case No 87/1997/871/1083 Case summary

b). No duty of care to prevent injury:

Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218 Case

summary
Ancell v McDermott [1993] 4 All ER 355 Case summary
Sacco v Chief Constable of South Wales [1998] EWCA Civ 843 Case summary

c). No duty is owed to provide protection, support and assistance to victims

and witnesses of crime:
Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 Case
summary

The common law principles are not to be extended to comply with the ECHR
where the case involves death threats and right to life:
Hertfordshire Police v Van Colle [2008] UKHL 50 Case summary
d. A duty of care is owed in respect of selecting which officers have access to
firearms:
Attorney General v. Hartwell (British Virgin Islands) [2004] UKPC 12 Case
summary

e. A duty is owed in relation to the handling of confidential information:

Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 Case
summary

2. The CPS

The Crown Prosecution Service do not owe a duty of care in decision making
regarding prosecutions:
Elguzouli-Daf v Commissioner of Police [1995] QB 335 Case summary

3. Solicitors and barristers

Barristers and solicitors used to be immune from negligence claims resulting
from their conduct in court proceedings:
Rondel v Worsely [1967] 3 WLR 1666 Case summary

This immunity was subsequently lifted and solicitors and barristers now owe a
duty of care in the conduct of advocacy in court:
Arthur Hall v Simons [2000] 3 WLR 543 Case summary

3. Local authorities:
The courts are reluctant to impose liability on local authorities particularly
where it would impact on decision making or allocation of resources:
Stovin v Wise [1996] 3 WLR 389 Case summary
JD v East Berkshire Community NHS Trust [2005] 2 WLR 993 Case summaries

Compare:
Phelps v Hillingdon LBC [2000] 3 WLR 776
W v Essex County Council [2000] 2 WLR 601 Case summary

4. Emergency services:
A duty of care may arise where ambulance services accept a call and do not
arrive within a reasonable time without being able to provide an explanation
for the delay:

Kent v Griffiths [2000] 2 WLR 1158 Case summary

A duty of care will be imposed where the emergency service attend and their
actions increase the damage:
Capital & Counties Plc v Hampshire County Council [1997] QB 1004 Case
summary
See also the duty owed to fire fighters:
Ogwo v Taylor [1987] 3 WLR 1145 Case summary
Salmon v Seafarer Restaurant [1983] 3 All ER 729 Case summary

Other matters relating to policy

A duty will not be imposed if it would disrupt existing agreed liabilities:
Marc Rich & Co AG v Bishop Rock Marine [1995] 3 WLR 227

A duty of care extends to those who are not yet born:

Burton v Islington Health Authority [1993] QB 204 Case summary

Liability for omissions in tort law

The law takes a restrictive approach to imposing liability in relation to
omissions. The law draws a distinction between misfeasance, where a party
does an act negligently, and nonfeasance, where a party does nothing at
all. Omissions relate to nonfeasance. The general rule is that no liability exists
for an omission:

Stovin v Wise [1996] 3 WLR 389 Case summary

Thus, a person who sees a child drowning in shallow water, is not under a legal
obligation to save the child and will incur no liability for their failure to do so.
If, however, the person attempts to save the child, but in doing so, acts
carelessly and causes harm, they become liable. This rule can be seen as
operating harshly in many situations it could be argued that there may well be
a moral obligation to act and there is a need for the law to reflect this. There
are exceptions to this rule where the law will impose a duty of care in certain
situations.

1. Undertaking
Where the defendant agrees to act or voluntarily accepts a responsibility, his
later failure to do so will render him liable:
Barrett v Ministry of Defence [1995] 1 WLR 1217 Case summary
Stansbie v Troman [1948]2 KB 48

2. Special relationship
Where there exists a special relationship, eg parent and child, employer and
employee, school and pupil, doctor and patient, between the parties there is a
legal duty to act.
3. Control of 3rd party who causes damage:
Carmarthenshire County Council v Lewis [1955] AC 549
Home Office v Dorset Yacht Co Ltd [1970] AC 1004

4. Control of land or dangerous things:

Smith v Littlewoods Organisation [1987] AC 241 Case summary
P Perl (Exporters) Ltd. v Borough of Camden [1984] QB 342
Haynes v Harwood [1935] 1 KB 146 Case summary

Negligently inflicted psychiatric injury

The law adopts a restrictive approach in awarding damages for negligently

inflicted psychiatric injury. In addition to the Caparo test for imposing a
duty of care, the courts have laid down several obstacles which must be
satisfied by claimants in order to establish liability for negligently inflicted
psychiatric injury. Firstly there must be an actual psychiatric injury:

Behrens & ors v Bertram Mills Circus Ltd. [1957] 2 QB 1 Case summary

Emotions of grief or sorrow are not sufficient to amount to psychiatric injury:

Hinz v Berry [1970] 2 QB 40 Case summary

Nor are feelings of fear, panic or terror:

Hicks v Chief Constable of South Yorkshire [1992] All ER 65 Case summary
Reilly & Anor v Merseyside Regional Health Authority [1994] EWCA Civ 30
Case summary

Initially psychiatric injury claims were limited to those who feared for their own
safety:
Dulieu v White [1901] 2 KB 669 Case summary

The law has since developed to allow more wide ranging circumstances but is
still quite restricted. A distinction is drawn between primary and secondary
victims see:
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 Case summary
 Primary victims

Primary victims are those who are involved 'mediately or immediately as a

participant' Per Lord Oliver in Alcock v Chief Constable of South Yorkshire.

This was later restricted to those in the zone of physical danger. See:

Page v Smith [1996] 1 AC 155 Case summary

White & Ors v Chief Constable of South Yorkshire [1998] 3 WLR 1509 Case
summary

An objective approach is taken as to whether the claimant is in the zone of

physical danger:

McFarlane v E. E. Caledonia [1994] 1 Lloyd's Rep 16 Case summary

Primary victims only need to establish that physical harm was foreseeable.
There is no requirement that psychiatric injury was foreseeable provided
personal injury was foreseeable:

Page v Smith [1996] 1 AC 155 Case summary

A primary victim does not owe a duty of care to a secondary victim in relation
to self-inflicted harm:

Greatorex v Greatorex [2001] 1 WLR 1970 Case summary

Secondary victims are those not within the physical zone of danger but
witnesses of horrific events. Secondary victims must demonstrate the
four Alcock criteria are present in order to establish liability:

1. A close tie of love and affection

2. Witness the event with their own unaided senses

3.Proximity to the event itself or its immediate aftermath

4. Psychiatric injury must be a result of a shocking event.

1. Close tie of love and affection

This will be presumed in parent and child and between spouses but must be
proved in other relationships. In particular siblings are not normally considered
to have a close tie of love and affection.

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 Case summary

2. Witness the event with own unaided senses

Seeing the events on television is not sufficient.

3. Proximity to the event itself or its immediate aftermath

In Alcock, the relatives that had visited the make shift mortuary to identify
loved ones, were held not to come within the immediate aftermath of the
event. See also:

Taylorson & Anor v Shieldness Produce Ltd [1994] PIQR 329 Case summary

McLoughlin v O'Brian [1982] 2 WLR 982 Case summary

What constitutes immediate aftermath is decided on the particular facts of the

case:

W v Essex County Council [2000] 2 WLR 601 Case summary

4. Psychiatric injury must be caused by a shocking event.

Lord Ackner in Alcock v Chief Constable of South Yorkshire stated:

"'Shock", in the context of this cause of action, involves the sudden

appreciation by sight or sound of a horrifying event, which violently agitates
the mind. It has yet to include psychiatric illness caused by the accumulation
over a period of time of more gradual assaults on the nervous system."

This excludes those who suffer psychiatric injury as a result of the long term
process of providing care for a loved one who has suffered severe injuries due
to the defendant's negligence:

Sion v Hampstead Health Authority [1994] EWCA Civ 26 - Case summary

See also:

W v Essex County Council [2000] 2 WLR 601 Case summary

Barrett v Enfield LBC [1999] WLR 79

An exception to this is in relation to work related stress where an employer is

under a duty not to cause psychiatric injury to an employee but only where the
injury is foreseable:

Barber v Somerset County Council [2004] 1 WLR 1089

Sutherland v Hatton [2002] 2 All ER 1

 Cases giving rise to difficulty
Rescuers
Lord Oliver in Alcock had originally classed rescuers such as seen in Chadwick v
British railways Board [1967] 1 WLR 912 as primary victims for policy reasons.
Rescuers should be encouraged rather than deterred.

Chadwick v British railways Board [1967] 1 WLR 912 Case summary

However this position was changed in White v Chief Constable of South

Yorkshire. Rescuers are now to be given no favourable treatment. Neither are
employees:
White & Ors v Chief Constable of South Yorkshire [1998] 3 WLR 1509 Case
summary

Those who believe they are the cause of anothers' death:

Hunter v British Coal Corp [1998] 2 All ER 97 Case summary

Dooley v Cammell Laird & Co. Ltd [1971] 1 Lloyd's Rep 271 Case summary

Psychiatric injury in consequence of property damage:

Attia v British Gas [1988] QB 304 Case summary

Other types of claims against the police:

Leach v Gloucester Constabulary [1999] 1 WLR 1421 Case summary

Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 Case

summary
 Negligently inflicted economic loss
Generally no duty of care is owed to avoid causing another to suffer a loss
which is purely economic. Ie one where the financial loss is not related to a
personal injury or damage to property. See:

Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502

However, where the economic is caused by negligent mis-statement as oppose

to a negligent act liability may be imposed as established by a House of Lords
obiter in:

Hedley Byrne & Co v Heller [1963] 3 WLR 101

Anns v Merton London Borough Council [1978] AC 728 (case summary)

Murphy v Brentwood District Council [1991] 1 AC 398
Caparo Industries Plc v Dickman [1990] 2 AC 605 (case summary)
Gorham v British Telecommunications Plc [2000] EWCA Civ 234
Henderson v Merrett Syndicates [1995] 2 AC 145
Junior Books Ltd v Veitchi [1982] 3 WLR 477
McFarlane v Tayside Health Board [2000] 2 AC 59
Parkinson v St James [2001] 3 WLR 376
Rees v Darlington Memorial Hospital NHS Trust [2003] 3 WLR 1091
Reid v Rush & Tompkins Plc [1990] 1 WLR 212
Merrett v Babb [2001] 3 WLR 1
Simaan General Contracting Co v Pilkington Glass Ltd [1988] QB 758
Smith v Eric S Bush [1990] 1 AC 831
South Australia Asset Management Corp v York Montague [1996] 3 WLR 87

A duty of care may exist even where the defendant would have a defence to an
action in defamation:
Spring v Guardian Assurance [1994] 3 WLR 354
White v Jones [1995] 2 WLR 187
Williams v Natural Life Health Foods [1998] 2 All ER 577

Defective items

Anns v Merton London Borough Council [1978] AC 728 Case summary

D & F Estates v Church Commissioners for England [1989] AC 177

Invercargill City Council v Hamlin [1996] AC 624

 Breach of duty in negligence liability

Breach of duty in negligence liability may be found to exist where the

defendant fails to meet the standard of care required by law. Once it has been
established that the defendant owed the claimant a duty of care, the claimant
must also demonstrate that the defendant was in breach of duty. The test of
breach of duty is generally objective, however, there may be slight variations
to this.

The objective test:

Breach of duty in negligence liability is decided by the objective test ie the
defendant is expected to meet the standard of a reasonable person:
Vaughan v Menlove (1837) 3 Bing. N.C. 467 Case summary

The objective test can be variable and may depend on the circumstances of
the particular defendant or the situation. For example:
An amateur footballer is not expected to meet the standard of a footballer in
the first division:
Condon v Basi [1985] 1 WLR 866 Case summary

In the context of 'horseplay', there is a breach of duty of care only where the
defendant's conduct amounts to recklessness or a very high degree of
carelessness:
Blake v Galloway [2004] 3 All ER 315 Case summary

If the defendant is a professional they will be held to the standard of a

reasonable person within that profession. This applies also to trainees:
Wilsher v Essex [1988] 1 AC 1074 Case summary

Likewise, a learner driver is expected to meet the same standard as a

reasonable competent qualified driver, otherwise be found in breach of duty:
Nettleship v Weston [1971] 3 WLR 370 Case summary

Where there is divided opinion within a profession as to the appropriate course

of action in a particular situation then a defendant is not to be treated as in
breach of duty by following one body of opinion rather than the other:
Bolam v Friern [1957] 1 W.L.R. 583, 587 Case summary

The Bolam test:

• "I myself would prefer to put it this way, that he 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 . . . Putting it the other way round, a man is not negligent, if he is
acting in accordance with such a practice, merely because there is a body
of opinion who would take a contrary view."
However, the opinion must be defensible and rooted in logic:
Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151

A child is not expected to meet the standard of a reasonable adult, but will be
judged by the standard of a reasonable child of the same age:
Mullin v Richards [1998] 1 WLR 1304 Case summary

The courts have not taken a consistent approach in relation to where the
defendant's conduct is affected by illness. Compare the cases:
Roberts v Ramsbottom [1980] 1 WLR 823 Case summary
Mansfield v Weetabix [1997] EWCA Civ 1352 Case summary

[The inconsistencies are often explained on policy grounds; in that Roberts

concerned personal injury sustained by a pedestrian and thus a breach of duty
was found in order to ensure the vicim was compensated whereas Mansfield
involved property damage which would have been covered by insurance.]

Applying the objective test

In deciding whether the defendant has acted reasonably or is in breach of duty,
the courts weigh up four factors:
1. Likelihood of harm:

The defendant is not expected to guard against events which can not be
foreseen:
Roe v Minister of Health [1954] 2 WLR 915 Case summary
See also
Bolton v Stone [1951] AC 850 Case summary
Haley v London Electricity Board [1965] AC 778 Case summary

2. Seriousness of harm:
The Wagon Mound No.2 [1967] 1 AC 617 Case summary
Paris v Stepney [1951] AC 367 Case summary

3. Cost of prevention:
Latimer v AEC [1953] AC 643 Case summary

4. Utility of the defendant's conduct

Watt v Hertfordshire [1954] 1 WLR 835 Case summary
 Causation in tort law
To demonstrate causation in tort law, the claimant must establish that the
loss they have suffered was caused by the defendant. In most cases a simple
application of the 'but for' test will resolve the question of causation in tort
law. Ie 'but for' the defendant's actions, would the claimant have suffered the
loss? If yes, the defendant is not liable. If no, the defendant is liable.
Causation may be problematic where there exists more than one possible
cause. Various formulations have evolved to ease the burden of proving
causation in such situations.

The 'But for' test

For application of the 'but for' test in establishing causation in tort law see:
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 Case summary
Chester v Afshar [2004] 3 WLR 927 Case summary

Multiple causes - Successive

Where there exist two causes occurring in succession it may be possible to
identify the factual cause of the damage. However at times policy factors may
come into play:

Performance Cars Ltd v Abraham [1962] 1 QB 33

Baker v Willoughby [1970] AC 467 Case summary

Jobling v Associated Dairies [1982] AC 794 Case summary

Heil v Rankin [2000] 2 WLR 1173 Case summary

Multiple causes - concurrent

Where there exist two or more causes which operate concurrently it may be
factually impossible to determine which one was the cause. This has proved
problematic not least because it is the claimant's responsibility to establish
which one was the cause. On general principles the burden of proving this is
on the balance of probabilities ie the claimant has to demonstrate that there is
more than a 50% likelihood of the cause being the breach of duty of the
defendant. Where there are two causes this means the burden of proof is
impossible to discharge leaving the claimant uncompensated often for an
obvious breach of duty. Various formulations have arisen to circumvent the
strict approach.

Bonnington Castings Ltd v Wardlaw [1956] AC 613

McGhee v National Coal Board [1973] 1 WLR 1 Case summary

Fitzgerald v Lane [1989] 1 AC 328 Case summary\

Wilsher v Essex [1988] 1 AC 1074 Case Summary

Holtby v Brigham & Cowan [2000] 3 ALL ER 421 Case summary

Fairchild v Glenhaven [2002] 3 WLR 89 Case summary

Barker v Saint Gobain Pipelines [2004] EWCA Civ 545

Novus actus interveniens (New intervening act)

Where there is a new intervening act this may break the chain of causation
removing liability from the defendant. The legal test applicable will
depend upon whether the new act was that of a third party or an act of
the claimant.

Novus actus interveniens - Act of 3rd party

Where the new act is of a third party, the test is whether the act was
foreseeable. If the act of the third party was foreseeable, the defendant
remains liable and the chain of causation remains in tact. If the act of a
third party is not foreseeable this will break the chain of causation and the
defendant is not liable for the actions of the third party:
Home Office v Dorset Yacht Co Ltd [1970] AC 1004 Case summary

The following case suggests a high degree of foresight is required:

Lamb v Camden LBC [1981] 2 All ER 408 - Case summary

Where the act of the third party was negligent, this is more likely to break the
chain of causation:
Knightley v Johns & Ors [1982] 1 WLR 349 Case summary

An alternative approach is to apportion the loss between the parties:

Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust [2001] Lloyd's
Rep Med 500 Case summary

Novus actus interveniens - Act of the claimant

Where the new intervening act is that of the claimant, the test is whether the
claimant acted reasonably in the circumstances. If the claimant's actions
are deemed reasonable the chain of causation remains in tact and the
defendant is liable for the actions of the claimant. If, however, the claimant's
actions are unreasonable in the circumstances the chain of causation is
broken and the defendant is not liable for the actions of the claimant:
McKew v Holland [1969] 3 All ER 1621 Case summary
Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Case summary
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360
Loss of a chance
Where the claimant submits the defendant's conduct lost them a chance of
avoiding harm or injury as opposed to causing the harm or injury itself, the
courts have been reluctant at imposing liability. This most commonly comes up
in relation to medical negligence whereby a failure to diagnose a condition
correctly may prevent the claimant from receiving vital treatment which may
have saved their life or avoided a deteriation in their condition. The House of
Lords has twice considered this issue of causation and on each occasion has
refused to impose liability:
Hotson v East Berkshire Area Health Authority [1987] AC 750 Case summary
Gregg v Scott [2005] 2 WLR 268 Case summary

However, outside the context of medical negligence the courts have been more
willing to accept loss of a chance as an actionable head of damage:

Allied Maples v Simmons & Simmons [1995] 4 All ER 907 Case summary
 Remoteness of damage
Remoteness of damage relates to the requirement that the damage must be
of a foreseeable type. In negligence claims, once the claimant has established
that the defendant owes them a duty of care and is in breach of that duty
which has caused damage, they must also demonstrate that the damage was
not too remote. Remoteness of damage must also be applied to claims
under the Occupiers Liability Acts and also to nuisance claims.

Remoteness of damage is often viewed as an additional mechanism of

controlling tortious liability. Not every loss will be recoverable in tort law.
Originally a defendant was liable for all losses which were a direct consequence
of the defendant's breach of duty:

Re Polemis & Furness Withy & Company ltd. [1921]3 KB 560

Case summary

This was largely considered unfair as a defendant could be liable for damage
which was not foreseeable and therefore could not take steps to prevent it. The
direct consequence test was overruled in the Wagon Mound no 1 and replaced
with a new test for deciding if damages are too remote:

The Wagon Mound no 1 [1961] AC 388 Case summary

Following the Wagon Mound no 1 the test for remoteness of damage is that
damage must be of a kind which was foreseeable. Once damage is of a
kind that is foreseeable the defendant is liable for the full extent of the damage
no matter whether the extent of the damage is foreseeable.

The Wagon Mound test was considered and applied in:

Hughes v Lord Advocate [1963] AC 837 Case summary

Doughty v Turner Manufacturing Company [1964] 1 QB 518 Case summary

There has been some confusion as to whether for remoteness of damage, in

addition to being damage of a type which is foreseeable, the damage must
occur in a foreseeable manner. Hughes v Lord Advocate suggests not but see:

Tremain v Pike [1969] 1 WLR 1556 Case summary

Jebson v Ministry of Defence [2000] EWCA Civ 198 Case summary

Jolley v Sutton [2000] 1 WLR 1082 Case summary

The Egg shell skull rule
A final aspect of remoteness of damage is the egg shell (or thin) skull rule. This
means a defendant must take their victim as they find them. Ie if the victim is
particularly vulnerable or has a pre-existing condition resulting in them
suffering greater injury than would be expected in an ordinary person, the
defendant remains responsible for the full extent of the injury:

Smith v Leech Brain [1962] 2 QB 405 Case summary

Page v Smith [1996] 1 AC 155

Case summary

Corr v IBC Vehicles Ltd [2008] 2WLR 499 Case summary

 Defamation

Berkoff v Burchill [1996] 4 All ER 1008

Cassell & Co Ltd v Broome [1972] 2 WLR 645

Charleston v News Group Newspapers Ltd [1995] 2 AC 65

John v MGN Ltd [1997] QB 586

Jones v Jones [1916] 2 AC 481

Joyce v Sengupta [1992] EWCA Civ 9

Knuppfer v London Express Newspapers [1944] AC 196

London Artists Ltd v Littler [1969] 2 WLR 409

Rantzen v Mirror Group Newspapers [1993] 4 All ER 975

Reynolds v Times Newspapers [1999] 3 WLR 1010

Telnikoff v Matusevich [1992] 2 AC 343

 Defences
Volenti non fit injuria

Volen non t injuria is a defence of limited applica on in tort law. A direct transla on of the la n
phrase volen non t injuria is, 'to one who volunteers, no harm is done'. Where the defence of
volen applies it operates as a complete defence absolving the Defendant of all liability. It is o en
stated that the Claimant consents to the the risk of harm, however, the defence of volen is much
more limited in its applica on and should not be confused with the defence of consent in rela on
to trespass. The defence of volen non t injuria requires a freely entered and voluntary
agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of
all legal consequences of their ac ons. There is a considerable overlap with contributory
negligence and since the introduc on of the Law Reform (Contributory Negligence) Act 1945, the
courts have been less willing to make a nding of volen preferring to appor on loss between the
par es rather than taking an all or nothing approach.

The requirements of the defence are thus:

1. A voluntary

2. Agreement

3. Made in full knowledge of the nature and extent of the risk.

1. Voluntary
The agreement must be voluntary and freely entered for the defence of volen non t injuria to
succeed. If the Claimant is not in a posi on to exercise free choice, the defence will not succeed.
This element is most commonly seen in rela on to employment rela onships, rescuers and suicide.

2. Agreement
The second requirement for the defence of volen non t injuria is agreement. The agreement may
be express or implied. An example of an express agreement would be where there exists a
contractual term or no ce. However, this would be subject to the controls of s.2 of the Unfair
Contract Terms Act 1977. An implied agreement may exist where the Claimant's ac on in the
circumstances demonstrates a willingness to accept not only the physical risks but also the legal
risks.
Ne leship v Weston [1971] 3 WLR 370 Case summary

Lord Denning:

• "Knowledge of the risk of injury is not enough. Nothing will su ce short of an agreement to
waive any claim for negligence. The plain must agree expressly or impliedly to waive any
claim for any injury that may befall him due to the lack of reasonable care by the defendant:
or more accurately due to the failure by the defendant to measure up to the duty of care
which the law requires of him".

White v Blackmore [1972] 3 WLR 296 Case summary

Smith v Charles Baker & Sons [1891] AC 325 Case summary
tt
ti
t
ti
fi
ti
fi
ti
ti
ti
ti
ti
fi
ti
ti
ff
ti
fi
ti
ti
fi
t
ffi
ti
ti
ti
ti
fi
ti
t
ft
ti
ti
 Lord Watson:

• "In its applica on to ques ons between the employer and the employed, the maxim as now
used generally imports that the workman had either expressly or by implica on agreed to
take upon himself the risks a endant upon the par cular work which he was engaged to
perform, and from which he has su ered injury. The ques on which has most frequently to
be considered is not whether he voluntarily and rashly exposed himself to injury, but
whether he agreed that, if injury should befall him, the risk was to be his and not his
masters.

3. Knowledge
The Claimant must have knowledge of the full nature and extent of the risk that they ran:
Wooldridge v Sumner & Anor [1963] 2 QB 43 Case summary

The test for this is subjec ve and not objec ve and in the context of an intoxicated Claimant, the
ques on is whether the Claimant was so intoxicated that he was incapable of apprecia ng the
nature of the risk:
Morris v Murray [1991] 2 QB 6 Case summary

Volen non t injuria in employment rela onships

As long ago as 1891, the House of Lords recognised that an employee who complained of unsafe
prac ce, but nevertheless con nued to work could not truly be said to have voluntarily agreed
to waive their legal rights:
Smith v Charles Baker & Sons [1891] AC 325 Case summary

This posi on of the law was a rmed in:

Bowater v Rowley Regis Corpora on [1944] KB 476 Case summary

As a ma er of public policy, the defence is not generally available where an employer is in breach
of statutory duty, however limited excep ons exist to this:

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 Case Summary

Volen non t injuria - rescuers

A rescuer is not regarded as having freely and voluntarily accepted the risk:
Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Case summary
This applies to professional rescuers:
Haynes v Harwood [1935] 1 KB 146 Case summary
Ogwo v Taylor [1987] 3 WLR 1145 Case summary

If however, there is no real need to rescue, the Claimant may be held volens:
Cutler v United Dairies [1933] 2 KB 297 Case summary
ti
ti
ti
ti
tt
ti
fi
fi
ti
ti
ti
ffi
tt
ti
ti
ff
ti
ti
ti
ti
ti
ti
ti
 Volen non t injuria - Suicide

Where the Claimant commits suicide, originally it was held that they would be treated as volens if
they were of sound mind, but if they were of unsound mind the defence of volen non t
injuria would have no applica on:

Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283 Case summary

However, this dis nc on was abandoned as it would essen ally deprive the duty of substance:

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Case summary

Volen non t injuria in context of spor ng events

A par cipant in spor ng events is taken to consent to the risk of injury which occurs in the course
of the ordinary performance of the sport.

Condon v Basi [1985] 1 WLR 866 Case summary

This was also taken to apply to spectators at spor ng events:

Wooldridge v Sumner & Anor [1963] 2 QB 43 Case summary

This principle has also been held to apply outside of sports, to a high spirited 'game':

Blake v Galloway [2004] 3 All ER 315

Volen non t injuria in rela on to drunk drivers

In Dann v Hamilton [1939] 1 KB 509 (Case summary) it was held that a person accep ng a li from
a drunk driver was not to be treated as volens unless the drunkenness was so extreme and so
glaring that accep ng a li would be equivalent of to intermeddling with an unexploded bomb or
walking on the edge of an unfenced cli .

An example of where this was successfully invoked can be seen:

Morris v Murray [1991] 2 QB 6 Case summary

The impact of s.148(3) of the Road Tra c Act 1972 (Now s.149(3) RTA 1988) was considered in Pi s
v Hunt and it was held that it precluded the applica on of the defence of volen in circumstances
where a person accepted a li from an intoxicated driver in circumstances where the driver was
subject to compulsory insurance.
Pi s v Hunt [1990] 3 All ER 344 Case summary
tt
ti
ti
ti
ti
fi
fi
fi
ti
ti
ti
ti
ft
ti
ti
ft
ffi
ff
ti
ti
ti
ti
t
ti
ti
ft
tt
fi
 Volen non t injuria - Occupiers Liability

S. 2(5) Occupiers' Liability Act 1957 and s. 1(6) of the Occupiers' Liability Act 1984 provide that
occupiers owe no duty in respect to risks willingly accepted by that person as his. It appears that
there is no need to establish an agreement.

For an applica on of the Sco sh equivalent provision see:

Titchener v Bri sh Railways Board [1983] 1 WLR 1427 Case summary

2. Contributory negligence
Imp cases
Capps v Miller [1989] 1 WLR 839

Froom v Butcher [1976] QB 286

Gough (an infant) v Thorns [1966] 1 WLR 1387

Jones v Livox Quarries [1952] 2 QB 608

O'Connell v Jackson [1971] 3 WLR 463

Pitts v Hunt [1990] 3 All ER 344

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360

Courts are reluctant to make a finding of ex turpi causa preferring the defence
of contributory negligence:

Revill v Newberry [1996] 2 WLR 239

Contributory negligence
At common law, contributory negligence acted as a complete defence.
However, under the Law Reform (Contributory Negligence) Act 1945,
contributory negligence operates as a partial defence whereby the courts can
apportion loss between the parties. This makes it a more attractive option to
the courts than other defences which can operate harshly and absolve a
defendant of liability no matter how much at fault they may be. Consequently
the defences of volenti non fit injuria and ex turpi causa are perhaps of less
significance. Contributory negligence will often succeed where other defences
fail. For example Revill v Newbery [1996] 2 WLR 239 Case summary,
Nettleship v Weston [1971] 3 WLR 370 Case summary.
ti
fi
ti
ti
tti
S.1(1) Law Reform (Contributory Negligence) Act 1945 provides that where a
person suffers damage as a result partly of his own fault and partly the fault of
another(s), a claim shall not be defeated by reason of the fault of the person
suffering damage. Thus contributory negligence operates as a partial defence.
At first instance in Pitts v Hunt [1990] 3 All ER 344 (Case summary) the
court used this section to find that the Claimant was 100% contributory
negligent. However, this was held to be illogical and inconsistent with the
wording of the Act which requires the damage to be partly the fault of both
parties.

Requirements of contributory negligence

The burden of proof is on the defendant to demonstrate:

1. The claimant failed to take proper care in the circumstances for their own
safety

2. The failure to take care was a contributory cause of the damage suffered

1. The claimant failed to take proper care in the circumstances for their
own safety

Lack of proper care for own safety differs from the standard for breach of duty:

Davies v Swan Motor co [1949] 2 KB 291 Case summary

The standard is variable and all circumstances are taken into account

Barrett v Ministry of Defence [1995] 1 WLR 1217 Case summary

Children, particularly young children are unlikely to be found to have failed to

take proper care:
Gough (an infant) v Thorns [1966] 1 WLR 1387 Case summary

2. The failure to take care was a contributory cause of the damage

suffered

Note that the failure to take care must be a contributory cause to the damage
suffered as oppose to the causing the incident that resulted in damage. This
point was made clear in Capps v Miller [1989] 1 WLR 839 Case summary.

Common examples of what constitutes failing to take care for own safety
include:

Failure to wear a seat belt:

Froom v Butcher [1976] QB 286 Case summary

Failure to wear or fasten a crash helmet on a motorcycle:

O'Connell v Jackson [1971] 3 WLR 463

Capps v Miller [1989] 1 WLR 839 Case summary.

Exposing oneself to danger:

Davies v Swan Motor co [1949] 2 KB 291 Case summary

Jones v Livox Quarries [1952] 2 QB 608 Case summary

Contributory negligence and joint tortfeasors

Contributory negligence can operate in three party situations. The courts must,
however, always assess the degree to which the Claimant contributed to his
own injury before assessing the responsibility of the tortfeasors:

Fitzgerald v Lane [1989] 1 AC 328 Case summary

 Contributory negligence and other defences

Contributory negligence may be raised and often is raised in conjunction with

other defences. There is also an overlap with causation issues particularly
where the defence raises the act of the claimant as novus actus interveniens.
The courts are generally more amenable to a finding of contributory negligence
than other defences as it allows them to apportion loss between the parties to
reach a more just result rather than the all or nothing approach of other
defences.

The courts are reluctant to make a finding of ex turpi causa preferring the
defence of contributory negligence:

Revill v Newbery [1996] 2 WLR 239 Case summary

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Case

summary

Similarly the courts would prefer to make a finding of contributory negligence

than volenti non fit injuria:

Nettleship v Weston [1971] 3 WLR 370 Case summary.

Stapley v Gypsum Mines [1953] AC 663 Case summary

The courts are less likely to find that the act of the claimant breaks the chain of
causation, prefering a finding of contributory negligence:

Sayers v Harlow UDC [1958] 1 WLR 623 Case summary

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Case

summary

3. Ex turpi Causa
Imp cases
Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218

Clunis v Camden and Islington Health Authority [1998] 3 All ER 180

Lane v Holloway [1967] 3 WLR 1003

Murphy v Culhane [1977] QB 94

Pitts v Hunt [1990] 3 All ER 344

Revill v Newberry [1996] 2 WLR 239

Moore Stephens v Stone Rolls Ltd [2009] UKHL 39

Ex turpi causa non oritur actio

The latin maxim ex turpi causa non oritur actio refers to the fact that no
action may be founded on illegal or immoral conduct. This maxim applies
not only to tort law but also to contract, restitution, property and trusts. Where
the maxim of ex turpi causa is successfully applied it acts as a complete bar
on recovery. It is often referred to as the illegality defence, although it
extends beyond illegal conduct to immoral conduct:

Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283

(Case summary)

It is also questionable whether ex turpi causa operates as a defence or simply

denies the existence of a duty of care or other cause of action. See in
particular:

Ashton v Turner [1981] l QB Case summary

Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218 Case

summary

Pitts v Hunt [1990] 3 All ER 344 Case summary

The ex turpi causa principle is very much based on public policy and no clear
legal principles emerge.

Gray v Thames Trains [2009] 3 WLR 167 Case summary

Lord Hoffman:

• "The maxim ex turpi causa expresses not so much a principle as a policy.

Furthermore, that policy is not based upon a single justification but on a
group of reasons, which vary in different situations".

The public policy factor often cited for ex turpi causa non oritur actio, is
that it is wrong to allow a criminal to profit from his crime. However, such
reasoning is difficult to reconcile in tort law where the Claimant is seeking
compensation for a loss rather than seeking to make a gain. Some
commentators have argued that it should have no application in a modern law
of tort and that an apportionment approach would be preferable. Some
principles which have emerged but are not always consistently applied include:

• The reliance test

• Inextricably linked
• No benefit principle
• Proportionality test
• The public conscience test
• Statutory influence

The reliance test

The reliance test in relation to ex turpi causa is also referred to as the

Bowmakers Principle and looks at whether the Claimant has to plead the
illegality. Where the Claimant has to plead the illegality to found their claim,
the courts will not allow them to succeed. Conversely if the Claimant does not
need to plead the illegality the claim may succeed:

Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65 (case summary)

Tinsley v Milligan [1993] 3 WLR 126 Case summary

Clunis v Camden and Islington Health Authority [1998] 3 All ER 180 Case
summary

Inextricably linked

Closely related to the reliance test is the inextricably linked test. Where it is
not necessary for the Claimant to plead the illegality, the claim may be
defeated if it is inextricably linked to the cause of action:

Cross v Kirkby [2000] EWCA Civ 426 Case summary

The no benefit principle

The no benefit principle stems from a policy consideration that a criminal

should not be able to benefit from their crime.

Murphy v Culhane [1977] QB 94 Case summary

The no benefit principle is of less significance in tort law than in other areas as
generally tort law is concerned with compensating loss rather than the
Claimant making a gain. Although in claims for indemnity it can be applied to
prevent the claimant being relieved from the consequences of their crime:

Gray v Barr [1971] 2 QB 554 Case summary

Meah v McCreamer (No. 2) [1986] 1 All ER 943 Case summary

The proportionality test

The proportionality test was applied in the following ex turpi cases:

Lane v Holloway [1967] 3 WLR 1003 Case summary

Revill v Newbery [1996] 2 WLR 239 Case summary

Saunders v Edwards [1987] 1 WLR 1116 Case summary

The public conscience test

The public conscience test looks at whether in all the circumstances it would be
an affront to the public conscience to allow the Claimant to succeed. It also
considers whether allowing recover would deter or encourage criminal
behaviour.
Thackwell v Barclays Bank Plc [1986] 1 All ER 676 Case summary

Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283

(Case summary)

The public conscience test was criticised in Tinsley v Milligan where it was
rejected in favour of the reliance test:

Tinsley v Milligan [1993] 3 WLR 126 Case summary

In Clunis and Cross v Kirkby, the Court of Appeal was of the opinion that the
public conscience test had been rejected.

Clunis v Camden and Islington Health Authority [1998] 3 All ER 180 Case
summary

Cross v Kirkby [2000] EWCA Civ 426 Case summary

Statutory influence

The courts may also be influenced by statutory policy objectives. For example
in Revill v Newberry the fact that the Occupiers Liability Act 1984 provided
protection to non-visitors, it was assumed that Parliament's intention was not
to preclude recovery to burglars who suffered injury:

Revill v Newbery [1996] 2 WLR 239

Ex turpi causa in
specific circumstances
Claims arising from negligence where Claimant was in police custody:
Suicide and injuries arising from escape

Suicide

The defence is unlikely to be successfully raised in relation to suicide in police

custody despite the finding that suicide although not illegal is caught by the
defence as it amounts to immoral conduct. In Kirkham where the Claimant was
of unsound mind the defence failed under the public conscience test. In the
case of Reeves, where the Claimant was of sound mind, the Court of Appeal
the defence failed under 'the very thing' principle. This point was not appealed
to the Lords.

Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283

Case summary

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Case

summary

Injuries arising from escape from custody

It appears that a Claimant will be barred from recovering by ex turpi where

they are injured in attempting an escape:

Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218 Case

summary

Sacco v Chief Constable of South Wales Unreported Case summary

Damages for loss of liberty

Where the Claimant commits a crime which they allege they would not have
committed but for the Defendant's negligence, the question arises as to
whether they can recover damages for their loss of liberty. Initially Woolf J held
that a person could recover in such circumstances:

Meah v McCreamer No 1 [1985] 1 All ER 367 Case summary

However, in the following two cases, the Court of Appeal held that public policy
precluded recovery:

Clunis v Camden and Islington Health Authority [1998] 3 All ER 180 Case
summary

Worrall v British Railways Board 1999 (Unreported) Case summary

Claim for an indemnity to relieve the consequences of a crime:

Meah v McCreamer (No. 2) [1986] 1 All ER 943 Case summary

These principles were recently considered by the House of Lords:

Gray v Thames Trains [2009] 3 WLR 167 Case summary

Joint criminal enterprise:

A participant to a joint criminal enterprise can not recover from another

participant:

Colburn v Patmore [1834] Exch 1 CM & R 73 Case summary

This was later expressed as a duty of care is not owed by one participant to a
joint criminal enterprise to another participant:

Ashton v Turner [1981] l QB Case summary

This reasoning of ex turpi was upheld in the following case and is based on the
inability of the court to assess the scope of such a duty:

Pitts v Hunt [1990] 3 All ER 344 Case summary

The Law Commission

The Law Commission has reviewed the principle of ex turpi causa non oritur
actio twice over the past decade and found that the law is uncertain in ambit
and application. However, its most recent Consultation Paper has decided
against legislative reform preferring development by the courts. In doing so
they gave guidance to the court:

"The courts should consider in each individual case whether the application of
the illegality defence to a claim in tort can be justified on the basis of the
policies that underlie that defence. These include: (a) furthering the purpose of
the rule which the illegal conduct has infringed;
(b) consistency;
(c) that the claimant should not profit from his or her own wrong;
(d) deterrence; and
(e) maintaining the integrity of the legal system.

In reaching its decision the court will need to balance the strength of these
policies against the objective of achieving a just result, taking into account the
relative merits of the parties and the proportionality of denying the claim.
Whenever the illegality defence is successful, the court should make clear the
justification for its application"

Since the publication of the Consultation Paper there have been two decisions
from the House of Lords.

Gray v Thames Trains [2009] 3 WLR 167 Case summary

Moore Stephens v Stone Rolls Ltd [2009] UKHL 39 Case summary

4. Limitation

Dobbie v Medway Health Authority [1994] 1 WLR 1234

Letang v Cooper [1964] 3 WLR 573

5. Exclusion of liability

White v Blackmore [1972] 3 WLR 296