Chapter 4. Negligence

• Pages: 73-151

INTRODUCTION

From a practical point of view, negligence is the most important and dynamic of

all torts. Its emergence as a separate tort in the early part of the nineteenth century

coincided with the industrial revolution in Britain and the advent of machinery,

railways and motor vehicles. To this day, it has retained its function as t he principal

means of compensating the vict ims of accidents, particularly those occurring on the

roads and in the workplace. More recently, the tort of negligence has been extended

to include certain type s of economic loss, including loss caused by careless words. In

the Caribbean, the vast majority of negligence actions a re concerned with road acci-

dents, and in many of these the main is sue is the assessment of damages. The courts

in the Commonwealth Caribbean have, in general, adopted a practical approach to

negligence claims and have eschewed the more theoretical discussions relating to

the concept of the duty of care which have so preoccupied the English courts.

DEFINITION

Not every act of carelessness or negligence is actionable under the tort of negligence,

for, as Lord Wright explained in Lochgelly Iron and Coal Co Ltd v McMullan:1

in strict legal an alysis, ‘negligence’ means more tha n heedless or carele ss conduct,

whether in omission or com mission; it properly connotes the complex concept of duty,

breach and damage thereby su ffered by the person to whom the duty was owing.

The tort of negligence may, therefore, be dened broadly as the breach of a legal

duty to take care which results in dam age, undesired by the defendant, to the claim-

ant. There are three elements to the tort:

(a) a duty of care owed by the defendant to the claimant;

(b) breach of that duty by the defendant; and

(c) damage to the clai mant resulting from the breach.

DUTY OF CARE

The rst question to be determined in any action for negligence is whether the

defendant owed a duty of care to the claimant. In general, a duty of care will be

owed wherever in the circumstances it is foreseeable that, if the defendant does

not exercise due care, the claimant will be harmed. This foreseeabil ity test was laid

down by Lord Atkin in the celebrated case of Donoghue v Stevenson2 and is known as

the ‘neighbour principle’:

1 [1934] AC 1, at 25.

2 [1932] AC 562, at 579.

CHAPTER 4

NEGLIGENCE

DOI: 10.4 324/97813510 65108- 4

10.4324/97813 5106 5108 -4

74 Commonwealth Caribbean Tort Law

The rule that you are to love your neighbour be comes, in law, you must not injure your

neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted

reply. You must take reasonable ca re to avoid acts or omission s which you can reason-

ably foresee would be likely to injure your ne ighbour. Who, then, in law is my neigh-

bour? The answer seems to b e – persons who are so closely and dire ctly affected by my

act that I ought reasonably to have them in contemplation as b eing so affected when I

am directi ng my mind to the acts or omissions which a re called in question.

There are a number of common situations in which it is well established t hat a duty

of care exists, for example:

(a) the driver of a vehicle on the road owes a duty to other road users, pedestrians

and occupiers of premises abutting the h ighway to drive carefully;

(b) t he occupier of premises owes a duty of care to lawful visitors to ensu re that the

premises are reasonably safe;

(c) the employer of a workman in a factory owes a duty of care to provide adequate

equipment and a safe system of working;

(d) a bailee of goods owes a duty to the bailor to take care of the goods ent rusted to

him;

(e) a manufacturer of goods owes a duty to consumers to take reasonable care to

ensure that the goods are free from harmful defects, and this duty has been

extended to assemblers, suppliers and repairers of goods.

There is no closed list of duty situations, and those li sted above are merely examples,

albeit those most commonly encountered, of circumstances in which a duty of care

will be held to arise. As Lord Macmillan emphasised, ‘the categories of negligence

are never closed’.3

By recognising new ‘duty situations’, the courts are able to expand the scope of

the tort of negligence, but at the same time it is accepted that public policy requires

some limits to be set to the range of liability, and when, in a particular case, the

court denies that a duty of care is owed, it is really coming to a decision that, on

policy grounds, the defendant ought not to be made liable. As Lord Denning put it:4

‘It is, I think, at bottom a matter of public policy which we, as judges, must resolve.

This talk of “duty” or “no duty” is simply a way of limiting the ra nge of liability for

negligence’.

The need to take into account the dictates of public policy was expressed by Lord

Wilberforce in Anns v Merton London Borough Council, where his Lordship laid down

a two-stage test for the existence of a duty of care:5

In order to establish that a duty of car e arises in a particu lar situation, the question has

to be approached in two stages. First, one has to a sk whether, as between t he alleged

wrongdoer and the person who ha s suffered damage, there is a sufcient relations hip

of proximity or neighbourhood such that, in the reason able contemplation of the for-

mer, carelessness on his par t may be likely to cause damage to the latter, in which cas e

a prima facie duty of care a rises. Secondly, if the question is answered afr matively, it

is necessary to con sider whether there are any considerations which oug ht to negative,

3 Donoghue v Stevenson [1932] AC 562, at 619.

4 Dorset Yacht Ltd v Home Ofce [1969] 2 QB 412, at 426.

5 [1977] 2 All ER 492, at 498–9.

Chapter 4: Negligence 75

or to reduce or limit, the scope of the duty or t he class of person to whom it is owed, or

the damages to which a breac h of it may give rise.

Lord Wilberforce’s test was applied in a Barbadian case, Austin v Attorney General.6

In this case, H, a convicted prisoner, escaped from the Glendairy Pr ison and entered

the claimant’s dwelling house, where he attacked and seriously injured her with a

knife. On the day of his escape, H was one of a number of prisoners being i nstructed

in woodwork in the carpenter’s shop at the prison. Two prison ofcers were in

supervision. One of them left for a short period and, during hi s absence, H escaped.

The claimant alleged that the escape of H was caused by the negligence of the

Superintendent of Prisons, whose duty it was to supervise, control and be responsi-

ble for the conduct of prisoners, and that the defendant was vicariously liable for the

consequences of such negligence.

It was held that there was no sufcient relationship of proximity between the

Superintendent of Prisons and the claimant such as to give rise to a duty of care

towards the claimant. In the alternative, the damage suffered by the claimant was

too remote. Husbands J said:7

The [claimant’s] contention is not only that the Superi ntendent of Prisons and his ofc-

ers could have, by the exercise of reasonable car e, prevented Hunte’s escape, but that it

was reasonably foreseeable by them t hat if Hunte escaped he would be likely to do the

damage which he did, that is to say, commit serious pers onal injury to the [claimant].

The rst question that a rises is whether a ny duty of care to prevent the escape of a

prisoner is owed by the Superintendent of Pr isons to persons l ikely to be injured by

the escaped prisoner ’s tortious acts. In the con sideration of this question, much learn-

ing is to be found in the l andmark authorities of Rylands v Fletch er8 and Donoghue v

Stevenson9 as to the characteri stics of conduct and relationships which gave rise to leg al

liability …

Before making us e of these guideli nes, one has to bear in mi nd that, in the present

case, the [claimant’s] injury was caused by a t hird person, the prisoner, responsible in

law for his own tortious acts; al so that the prisoner’s tortious acts were not the natura l

consequence of his es cape.

In the argument s before this court, the cases of Ellis v Home Of ce10 and D’Arcy v Prison

Comr11 were cited. In these cases, t he prisoner, at the time of his tortious act, was in the

actual custody of the defendant; also, the defendant, in the exerc ise of his legal right

to physical custody of the [claimant], had requir ed the [claimant] to be so placed that

the defendant ought reasonably to have foreseen t hat he was likely to be injured by

his fellow prisoner. In review ing these cases in Home Ofce v Dors et Yacht Co, Lord

Diplock said:12

… I do not think that, save as a deliberate polic y decision, any proposition of law

based on the decisions i n these two case s would be wide enough to extend to

a duty to take reasonable care to prevent the escape of a prisoner from act ual

physical custody and control, owed to a person whose proper ty is situated outside

6 (1986) 21 Barb LR 259.

7 Ibid, at 262.

8 (1868) LR 3 HL 330.

9 [1932] AC 562.

10 [1953] 2 All ER 140.

11 (1955) The Tim es, 17 November.

12 [1970] AC 1004, at 1062.