Negligence — Duty of Care, Breach, Damage, Contributory Negligence & Nervous Shock — Law of Torts Notes

Negligence — Meaning, Ingredients and the Duty of Care

May Donoghue’s friend bought her a bottle of ginger beer in a Paisley café in August 1928. The bottle was dark glass. She drank some, and when the rest was poured out, the decomposed remains of a snail floated into the glass. She had no contract with anyone — her friend had paid. In 1932 the House of Lords held she could sue the manufacturer anyway, and in doing so Lord Atkin gave the law of negligence its organising idea: you owe a duty of care to your neighbour, and your neighbour is anyone you ought reasonably to have in contemplation when you act.

Fault, and the four hurdles

Negligence is the breach of a legal duty to take care, resulting in damage to the plaintiff which was not desired by the defendant.

Notice what negligence is not. It is not carelessness in the abstract, and it is not a state of mind. It is the failure to reach an objective standard — the standard of the reasonable person.

The plaintiff must clear four separate hurdles. Students who merge them lose the ability to analyse a problem, so keep them apart.

A. A duty of care owed to the plaintiff.

The defendant must have owed this plaintiff a duty. The test comes from Lord Atkin’s neighbour principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour — meaning persons so closely and directly affected by your act that you ought reasonably to have them in contemplation.

Modern courts ask three questions: was the harm reasonably foreseeable, was there sufficient proximity between the parties, and is it fair, just and reasonable to impose a duty.

B. Breach of that duty.

The defendant must have fallen below the standard of the reasonable person — an objective standard, so his personal shortcomings do not excuse him and his good intentions do not help him.

The standard is not fixed. It varies with:

1. The magnitude of the risk. The greater the likelihood of harm, the more care is required. Where the risk is very small, a reasonable person may take none at all — Bolton v Stone (1951), where a cricket ball had cleared the fence only about six times in thirty years.

2. The seriousness of the possible injury. More care is owed where the potential harm is grave, and more care is owed to a plaintiff known to be especially vulnerable — Paris v Stepney Borough Council (1951), a one-eyed workman.

3. The cost and practicability of precautions. The law does not demand precautions out of all proportion to the risk.

4. The importance of the object. A fire engine racing to a fire is judged differently from a delivery van.

5. Special skill. A person professing a skill is judged by the standard of the ordinary competent member of that profession — the Bolam test, adopted in India in Jacob Mathew v State of Punjab (2005).

C. Causation.

The breach must have caused the damage. The basic test is the “but for” test: but for the defendant’s breach, would the harm have happened? If it would have happened anyway, causation fails — Barnett v Chelsea & Kensington Hospital (1969), where a doctor negligently failed to examine a patient who was already dying of arsenic poisoning and would have died regardless.

D. Damage that is not too remote.

The plaintiff must have suffered actual damage, and it must not be too remote — the subject of Topic 9.

🧩 WORKED EXAMPLE — the cricket ball over the fence

Facts. During a match, a batsman hits a ball out of the ground. It strikes a woman standing on the adjoining highway. The evidence shows that balls had cleared the seven-foot fence only very rarely in the club’s long history.

Rule. Breach is measured against the reasonable person, and the standard rises and falls with the magnitude of the risk (Bolton v Stone).

Apply. The harm was foreseeable in the abstract — it had happened before. But foreseeability alone does not create a breach. The risk of a ball clearing that fence and striking someone was so slight that a reasonable committee would not have taken further precautions.

Decoy. The phrase “such an event was foreseeable and balls had occasionally been hit out before”, which invites you to conclude breach automatically.

Note the limit. If the balls had been clearing the fence weekly, or the ground adjoined a school playground, the magnitude of the risk changes and so does the answer.

Conclusion. No breach; the club is not liable.

Lord Atkin in Donoghue v Stevenson (1932): “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.”

Baron Alderson in Blyth v Birmingham Waterworks (1856): “Negligence is the omission to do something which a reasonable man… would do, or doing something which a prudent and reasonable man would not do.”

In Simple Terms: the first quotation tells you whom you owe care to — anyone your actions could obviously hurt. The second tells you how much care — what an ordinary sensible person would have taken in your position.

flowchart TD
    A["DUTY — owed to THIS plaintiff? Neighbour principle: foreseeability + proximity + fair, just and reasonable"]
    A --> B["BREACH — below the reasonable person's standard? Risk · seriousness · cost · object · special skill"]
    B --> C["CAUSATION — 'but for' the breach, would the harm have occurred?"]
    C --> D["DAMAGE — actual loss, and not too remote"]
    D --> E["All four = NEGLIGENCE established"]
    B --> F["Standard met = no breach (Bolton v Stone)"]
    C --> G["Harm would have happened anyway = no causation (Barnett)"]

Case Laws

• [C-14] Donoghue v Stevenson (1932) — the neighbour principle; a manufacturer owes a duty to the ultimate consumer.
• [C-17] Bolton v Stone (1951) — the standard of care varies with the magnitude of the risk.
• Blyth v Birmingham Waterworks (1856) — the classic definition of negligence.
• Paris v Stepney Borough Council (1951) — greater care owed where the potential injury is graver.
• Barnett v Chelsea & Kensington Hospital (1969) — the “but for” test of causation.
• Jacob Mathew v State of Punjab (2005) — the Bolam standard applied to professionals in India.
• Municipal Corporation of Delhi v Sushila Devi (1999) — a falling branch on a public road; failure to maintain is negligence.

Contributory Negligence and Alternative Danger

In 1809 a man named Butterfield rode his horse “as fast as his horse could go” through Derby at dusk and hit a pole another man had wrongfully left across the road. The pole was visible from a hundred yards. He lost his case. Both men were careless — but the law of that time gave the careless plaintiff nothing at all.

When the plaintiff is partly to blame

Contributory negligence is the failure of the plaintiff to take reasonable care of his own safety, which contributes to the harm he suffers.

A. The old rule and the modern rule.

1. The common-law rule was all or nothing: any contributory negligence by the plaintiff defeated the claim entirely (Butterfield v Forrester, 1809). This produced harsh results.

2. The doctrine of last opportunity softened it. If the defendant had the last opportunity to avoid the accident and failed to take it, he remained fully liable — Davies v Mann (1842), the donkey fettered on the highway and run down by a wagon driven too fast.

3. Apportionment is the modern solution: damages are reduced in proportion to the plaintiff’s share of the fault, rather than defeated. This was introduced in England by the Law Reform (Contributory Negligence) Act, 1945; in India it applies in motor-accident claims and is generally followed by the courts.

B. The doctrine of alternative danger (the agony of the moment).

Where the defendant’s negligence puts the plaintiff in a position of imminent danger, and the plaintiff, acting in the agony of the moment, takes a course that turns out to be wrong, he is not guilty of contributory negligence. The law does not demand cool judgment from a person the defendant has just placed in peril — Jones v Boyce (1816), a passenger who jumped from a coach he reasonably believed was about to overturn.

C. Children and guardians.

A child is judged by the standard of a child of that age, not of an adult. In Gough v Thorne (1966) a girl of thirteen was waved across the road by a lorry driver and struck by a speeding car; Lord Denning MR held that a very young child cannot be guilty of contributory negligence at all, and an older child only if of an age to be expected to take precautions. On the same reasoning the negligence of a guardian is not imputed to the child — a four-year-old struck by a bus is not defeated by his grandfather’s carelessness in crossing the road, though the guardian may himself be liable.

⚠️ DON’T CONFUSE — volenti and contributory negligence

Volenti is a complete defence: the plaintiff agreed to run the risk and recovers nothing. Contributory negligence merely reduces the damages in proportion to fault. Modern courts strongly prefer the second, because the first is all-or-nothing. In the drunk-driver problems, reach for contributory negligence.

On the doctrine of alternative danger — Jones v Boyce (1816): the question is not whether the plaintiff in fact chose the safest course, but whether he acted “as a reasonable and prudent man would have acted” in the emergency the defendant created.

In Simple Terms: if someone else’s carelessness forces you into a split-second decision, the law judges you by what a sensible person might have done under that pressure, not by what turned out to be best.

flowchart TD
    A["Plaintiff also failed to take care of his own safety"]
    A --> B["OLD RULE — Butterfield v Forrester: claim wholly defeated"]
    B --> C["LAST OPPORTUNITY — Davies v Mann: defendant who could have avoided it remains liable"]
    C --> D["MODERN RULE — apportionment: damages REDUCED in proportion to fault"]
    A --> E["ALTERNATIVE DANGER — agony of the moment; plaintiff not contributorily negligent (Jones v Boyce)"]
    A --> F["CHILDREN — judged as a child; the guardian's negligence is NOT imputed (Gough v Thorne)"]

Case Laws

• Butterfield v Forrester (1809) — the origin of the all-or-nothing rule.
• Davies v Mann (1842) — the doctrine of last opportunity.
• Jones v Boyce (1816) — the doctrine of alternative danger.
• Gough v Thorne (1966) — a child is judged by the standard of a child of that age; on the same reasoning a guardian’s fault is not imputed to the child.
• Municipal Corporation of Greater Bombay v Laxman Iyer (2003) — apportionment applied in India.

Nervous Shock

In 1897 a man named Downton thought it would be amusing to tell a woman that her husband had been smashed up in an accident and was lying at a public house with both legs broken. It was entirely untrue. The shock made her seriously ill, her hair turned white, and she was left with lasting consequences. The court had to decide whether the law recognised an injury with no physical impact at all. It held that it did.

Harm to the mind, recognised slowly

Nervous shock is a recognisable psychiatric illness caused by the defendant’s act, without any direct physical impact on the plaintiff. Mere grief, fright or sorrow is not enough; there must be a medically recognised condition.

Courts were reluctant at first for two reasons: fear of fabricated claims, and fear of limitless liability. The history of the topic is the story of that reluctance being overcome step by step, and the best answers tell it as a progression.

A. The stages of development.

1. Victorian Railway Commissioners v Coultas (1888). No recovery without physical impact. The starting point, now rejected.

2. Wilkinson v Downton (1897). A wilful false statement calculated to cause physical harm, which does cause it, is actionable. Liability here rests on intention, not negligence — which is why this case answers the practical-joke problems.

3. Dulieu v White & Sons (1901). Recovery allowed where the shock arose from a reasonable fear for one’s own safety — a pregnant barmaid when a van was driven into the public house.

4. Hambrook v Stokes Bros (1925). Extended to shock from fear for the safety of one’s children, even though the plaintiff was not herself in danger.

5. Bourhill v Young (1943). A limit: a bystander with no proximity and no relationship to the victim could not recover. Foreseeability of this plaintiff is required.

6. McLoughlin v O’Brian (1983). The modern approach — recovery depends on the closeness of the relationship, proximity in time and space to the accident or its immediate aftermath, and the means by which the shock was caused.

B. The Indian position.

Indian courts follow the same broad development. In Halligua v Mohansundaram (1951), the Madras High Court recognised nervous shock as actionable, and awards for mental agony are routinely made in motor-accident and medical-negligence claims.

🧩 WORKED EXAMPLE — the practical joke

Facts. The defendant tells the plaintiff, as a joke, that her husband has been in a serious accident and has broken both his legs. She suffers a violent nervous shock, falls seriously ill, and incurs heavy medical expenses.

Rule. A person who wilfully makes a false statement calculated to cause physical harm, and does cause it, is liable (Wilkinson v Downton).

Apply. The statement was false, deliberate, and of a kind calculated to cause serious distress to any wife. The resulting illness is a recognised harm. The defendant intended the statement even if he did not desire the illness — and imputed intention suffices.

Decoy. The word “joke”, which invites the conclusion that there was no intention to harm. Intention to make the statement is what matters, not a desire for the consequence.

Conclusion. The defendant is liable for the illness and the medical expenses.

Wright J in Wilkinson v Downton (1897): the defendant “has wilfully done an act calculated to cause physical harm to the plaintiff — that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.”

In Simple Terms: you cannot hide behind the fact that you never touched her. Saying something deliberately, of a kind that would predictably make a person ill, and thereby making her ill, is itself an infringement of her right to be physically safe.

flowchart TD
    A["Victorian Railway Commissioners (1888) — NO recovery without impact"]
    A --> B["Wilkinson v Downton (1897) — wilful false statement calculated to cause harm"]
    B --> C["Dulieu v White (1901) — fear for ONE'S OWN safety"]
    C --> D["Hambrook v Stokes (1925) — fear for one's CHILDREN"]
    D --> E["Bourhill v Young (1943) — the LIMIT: no proximity, no relationship, no claim"]
    E --> F["McLoughlin v O'Brian (1983) — relationship + proximity in time and space + means of perception"]

Case Laws

• [C-20] Wilkinson v Downton (1897) — wilful false statement calculated to cause harm is actionable.
• Dulieu v White & Sons (1901) — shock from reasonable fear for one’s own safety.
• Hambrook v Stokes Bros (1925) — shock from fear for one’s children.
• Bourhill v Young (1943) — no duty to an unforeseeable bystander.
• McLoughlin v O’Brian (1983) — the modern three-factor approach.
• Halligua v Mohansundaram (1951) — nervous shock recognised in India.

Occupier’s Liability and Medical Negligence

A boy of seven wandered into a municipal park and ate bright, attractive berries growing on a shrub there. They were poisonous and he died. He was, strictly, where he had no right to be — and the Corporation was still liable. Some dangers are so tempting to a child that leaving them unguarded is itself the wrong.

Two duties that turn on who the plaintiff is

A. Occupier’s liability — the duty graded by entrant.

An occupier is the person in control of premises. The duty he owes varies with the entrant’s status, and the classic four-fold classification is what the question asks for:

1. Contractual entrant — someone who enters under a contract (a hotel guest, a cinema ticket-holder). The occupier owes the highest duty: the premises must be as safe as reasonable care and skill can make them.

2. Invitee — someone who enters on business of common interest to both (a customer in a shop). The occupier must use reasonable care to prevent damage from unusual danger which he knows or ought to know of (Indermaur v Dames, 1866).

3. Licensee — someone who enters with permission but with no common interest (a social guest). The occupier must warn of concealed dangers or traps actually known to him.

4. Trespasser — someone who enters without permission. The occupier owes no duty to make the premises safe, and must only not injure him wilfully or recklessly; he may not set traps or spring guns.

The allurement doctrine is the exception the problems are built on: where an occupier leaves something on his land which is attractive to children and dangerous, he owes a duty even to a child trespasser — Glasgow Corporation v Taylor (1922), the poisonous berries in a public park.

B. Medical negligence.

A doctor owes his patient a duty in the choice of treatment, in the administration of it, and in deciding whether to undertake the case at all.

1. The standard — the Bolam test. A professional is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of skilled opinion. He is not required to be the best; he is required to be competent.

2. In India this was adopted and refined in Jacob Mathew v State of Punjab (2005), which stressed that an error of judgment is not by itself negligence, and that a higher threshold applies before criminal liability attaches.

3. The consumer route. Since Indian Medical Association v V.P. Shantha (1995), medical services are a “service” under the Consumer Protection Act, so a patient may proceed before the Consumer Commissions instead of a civil court. The “free treatment is not a service” defence succeeds only where the service is free to everyone, not where it is free to some and paid for by others.

4. Res ipsa loquitur often does the work in these cases — a swab left inside the abdomen, or an operation on the wrong limb, speaks for itself.

🧩 WORKED EXAMPLE — the free-treatment defence

Facts. A patient dies through the negligent treatment of doctors at a Government hospital. His legal representatives file a complaint. The Government pleads that since the service was rendered free of cost, it is not a “service” under the Consumer Protection Act.

Rule. Medical services are a “service” under the Act; the free-of-cost exclusion applies only where the service is rendered free to all patients (Indian Medical Association v V.P. Shantha).

Apply. A Government hospital that charges some patients and treats others free is rendering a service for consideration within the meaning of the Act. The exclusion does not apply, and in any event the family may sue in negligence in the ordinary civil court.

Decoy. The free treatment, which looks like a complete answer and is not.

Conclusion. The complaint is maintainable; negligence is judged on the Bolam / Jacob Mathew standard.

Willes J in Indermaur v Dames (1866), on the duty to an invitee: the occupier “is bound to use reasonable care to prevent damage from unusual danger, which he knows or ought to know.”

In Simple Terms: to a person who comes on your premises for business you both benefit from, you owe an active duty — you must look for the hidden hazards, not merely refrain from setting traps.

flowchart TD
    O["OCCUPIER of premises"]
    O --> CE["Contractual entrant — premises as safe as reasonable care and skill can make them"]
    O --> IN["Invitee — reasonable care against UNUSUAL DANGER known or which ought to be known"]
    O --> LI["Licensee — warn of CONCEALED dangers actually known"]
    O --> TR["Trespasser — no duty to make safe; must not injure wilfully or recklessly"]
    TR --> AL["ALLUREMENT — a danger attractive to children creates a duty even to a child trespasser"]

Case Laws

• Glasgow Corporation v Taylor (1922) — poisonous berries in a public park; allurement to a child.
• Indermaur v Dames (1866) — the occupier’s duty to an invitee.
• Jacob Mathew v State of Punjab (2005) — the Bolam standard in India; error of judgment is not negligence.
• Indian Medical Association v V.P. Shantha (1995) — medical services are a “service” under the Consumer Protection Act.
• Achutrao Khodwa v State of Maharashtra (1996) — a mop left in the abdomen after surgery; negligence established.

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