Lecture 11
STANDARDS OF PROFESSIONAL BEHAVIOUR
The Tort of Negligence 1
Introduction and the Duty of Care
Context - recap
 In commercial and business contracts there is a
presumption that the parties intend to be bound by
what they have agreed to do
 BUT : How well do the parties have to do it ?
 What happens if they perform poorly ?
Contract :- express terms
 If a contractual term is broken , there will be a
remedy for breach
 The remedy will depend on the nature of the
breach
 Breach of condition – repudiation (rejection) and/or
damages
 Breach of warranty – damages only
Implied terms :- Supply of Goods
and Services Act 1982
 This Act applies if there are no express terms as to
standards of performance
 S13 the work will be carried out with reasonable
care and skill
 S14 the work will be carried out within a
reasonable time
 s15 the price charged will be reasonable
 These are innominate terms and the remedy will
depend on the impact of the breach : A large impact will be considered to be a breach of
condition and give rise to repudiation and /or
damages
 A small impact will be considered a breach of
warranty and give rise to damages only
BUT …….
 What happens if : the breach of contract can be attributed to
carelessness ???
 carelessness has caused harm in a situation
where there is no contract ???
Answer - The Law of Tort
 Tort seeks to provide a legal remedy for the
victims of wrongful conduct
 A tort is a civil wrong and consists of a breach of
duty imposed by the law rather than by agreement
as in contract
 Liability is “fault based” and the claimant must
prove that the defendant was blameworthy
No fault liability
 Tortious liability may also be imposed where the
defendant is not at fault i.e.
 1) Tort of Strict Liability
 e.g. for injuries caused by defective products
 2) Vicarious Liability where one person may be
held liable for the torts of another e.g.……….
 ………an employer is vicariously liable for the torts
of his employees committed during the course of
their employment
 Vicarious liability may also arise between partners
and between principals and agents
Torts relevant to Business :-
 An understanding of responsibility under the law of
tort is vital in business as liability is imposed by the
court rather than agreed by the parties and may be
imposed without fault
The Tort of NEGLIGENCE
 The tort of negligence is concerned with careless
conduct which causes damage
 i.e. situations where there was a a lack of
reasonable care
Meaning ?
 An unreasonable, careless act or mistake at work
or in your private life can lead to legal liability for
negligence ……….
Components of Negligence
 To be successful in a claim of negligence the
claimant must prove : 1) The defendant owed them a duty of care
 2) The defendant breached that duty
 3) There was consequential damage
1) THE DUTY OF CARE
 Who is owed a duty of care??
 DONOGHUE v STEVENSON [1932] AC 562
 Mrs Donoghue and a friend visited a café and the
friend bought her a bottle of ginger beer
manufactured by the defendant.
 The beer was in bottle made of dark opaque glass .
Mrs Donoghue drank one glass but when she
poured a second, the remains of a decomposing
snail floated out. Mrs Donoghue suffered shock
and gastro–enteritis.
 As she had not bought the ginger beer her self she
was not able to sue the café for breach of contract
and so sued the manufacturer for negligence
 HELD the manufacturer owed Mrs Donoghue a
duty of care. As the user of the product , it was
reasonably foreseeable that she would be affected
by the manufacturers negligence
 This case established the test for determining the
existence of a duty of care.
 It is called the “neighbour” principle
Lord Atkin’s neighbour test
 You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would
be likely to injure your neighbour
who is your “neighbour” ?
 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 ………..
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A neighbour could be …………
Employer
Co worker
Family member
Friend
Stranger
limits of the duty of care
 CAPARO INDUSTRIES plc V DICKMAN [1990] 1
All ER 568
 HELD The following questions should be
considered when establishing a duty of care : 1) was the harm suffered reasonably foreseeable
 2) was there a relationship of proximity between
the parties
 3) is it fair, just and reasonable in all the
circumstances to impose a duty of care
duty of care imposed
 HOME OFFICE V DORSET YACHT CLUB
[1970] AC 1004
 HELD the home office owed a duty of care to the
claimant when Borstal inmates escaped and
caused damage to yachts moored at the club
no duty of care imposed
 HILL V CHIEF CONSTABLE OF WEST
YORKSHIRE [1988] 2 All ER 238
 A student was murdered by the serial killer know as
the “Yorkshire ripper” and her estate sued the
defendant for negligence in not catching murderer
Peter Sutcliff earlier.
 HELD there was insufficient proximity for a breach
of duty as the risk to the deceased as a member of
the public at large was the same as to any other
woman.
Duty of care – financial loss and negligent statements
will be covered in the next lecture
References:-
Adams, A. (2014) ‘Law For Business Students’. 8th
Edn. In SAM Core Reading Volume Two. 2nd Edn. ed.
By Jeffree, D. Harlow: Palgrave, 205-266