Law of Tort
Chapter 2 Negligence: basic principles
Contents
Introduction 13 2.1 2.2 2.3 Structure of the tort 13 Organisation of the chapters 14 Policy questions 14
Introduction
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.
2.1
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 [1934] 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
13
Law of tort
the claimant will be a member of a very large and possibly illdefined class of persons to whom the
Contents
Introduction 13 2.1 2.2 2.3 Structure of the tort 13 Organisation of the chapters 14 Policy questions 14
Introduction
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.
2.1
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 [1934] 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
13
Law of tort
the claimant will be a member of a very large and possibly illdefined class of persons to whom the