Chapter 2 Negligence: basic principles
Introduction 13 2.1 2.2 2.3 Structure of the tort 13 Organisation of the chapters 14 Policy questions 14
Negligence is the most important modern tort: its study should occupy about half the course. It is important because of the great volume of reported cases and because it is founded on a principle of wide and general application. This chapter explains the basic structure of the tort and describes the organisation of the material in subsequent chapters.
Learning outcomes By the end of this chapter and the relevant readings, you should be able to: understand that the tort of negligence is structured on the concepts of duty of care, breach of duty and resulting non-remote damage indicate some of the social and policy questions that have influenced the development of the tort of negligence.
Structure of the tort
Negligence of course means carelessness, but in 1934 Lord Wright said: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.’ (Lochgelly Iron and Coal Co v McMullan  AC 1 at 25)
This sentence encapsulates the traditional tripartite structure of negligence as a tort. It is not enough to show that defendant was careless: the tort involves a breach of duty that causes damage that is not too remote. Each of the emboldened words will in due course require detailed examination. The successful claimant in a negligence action must establish three propositions: (a) that the defendant owed the claimant a duty of care. The claimant will in some circumstances be the only person to whom the duty was owed (a surgeon and patient for example): in others University of London External Programme
Law of tort
the claimant will be a member of a very large and possibly illdefined class of persons to whom the duty was owed (a car driver and other road users). (b) that the defendant broke the duty of care. This means that the defendant’s conduct fell below the standards that the law demands. (c) that as a result of the breach the claimant suffered damage of a kind that the law deems worthy of compensation. However these propositions are not rigidly separate. They are convenient for the purpose of explaining the law, but they overlap to a great extent. Occasionally, but not very often, a court will indeed explicitly organise its judgment under these three headings. There is an example in Al-Kandari v Brown  QB 665, referred to in Chapter 4. In other cases however a judge might on the same set of facts deny liability on the grounds that no duty was owed and another deny liability on the grounds that, although a duty was owed, it had not been broken. An issue such as the scope of liability for economic loss has sometimes been regarded as part of the duty question and sometimes as part of the remoteness of damage question. You will find other examples where a single set of facts can be analysed in different ways.
Organisation of the chapters
Negligence is now a tort of great size and complexity. Most textbooks set out the questions of duty, breach, causation and remoteness in that order. This often means that some of the most complex issues are dealt with at great length under the heading of ‘duty of care’. Other textbooks are organised differently. In the chapters that follow in this guide the material on negligence is organised in the following way: Chapters 3 (duty and breach) and 4 (causation and remoteness of damage) offer a general overview of the tort of negligence, illustrated mainly, but not exclusively, by cases involving careless conduct giving rise to death, personal injuries or damage to property. Chapter 5 deals with more complex areas that have been the subject of much litigation in recent decades: liability for careless...
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