Oxbridge Notes | Laws301 Lecture Notes Part 3

Because of the breach, the plaintiff has suffered loss and incurred costs that they should not be liable for.
If there are no costs incurred by the plaintiff, there is no claim for negligence.

Lecture 37: (14/08/20)

Originally, negligence comes from 12^th to 14^th Century Trespass

In the 12^th century, you could trespass if there was a direct and forcible interference with a person or land.
In the 13^th century, two writs developed – a writ of trespass to the person and one of ‘trespass on the case’.
In the 14^th century, there was a separation of trespass to the person, and ‘trespass on the case’ (like negligence).

Trespass to the person – assault, battery, wrongful imprisonment.

There must be directness
There must be fault – interference
The plaintiff does not necessarily need to prove damages – strict liability.

Trespass on the case – nuisance and negligence

Can be direct or indirect
There can be liability without an intention to interfere
The plaintiff must prove damages.

The plaintiff alleged that she visited a café with a friend and consumed a tumbler-full of ginger beer, poured from an opaque bottle, purchased by her friend from the owner of the café.

A portion of the ginger beer was poured into a glass which was drunk by Donoghue – when her friend poured the remainder of the bottle, a decomposed snail floated out of the bottle.
Donoghue claimed that she felt ill from this sight, complaining of abdominal pain/
She was subsequently diagnosed with severe gastroenteritis (physical harm) and mental shock (psychiatric harm).
The plaintiff sued the manufacturer of the ginger beer in tort.

The question before the House of Lords was whether if the allegations could be proved, the manufacturer owed any obligation of care to the consumer of their products:

If there is a contractual basis between a consumer of a product and a manufacturer, negligence is not needed.
Here, there was no contractual relationship between both parties, because Donoghue’s friend bought the ginger beer and it was not bought from the manufacturer directly.
The minority held that there was no duty, as the manufacturer was only liable in contract to which the plaintiff is not a party of – privity of contract.

Lord Atkin for the majority recognised that the case was irrelevant to privity of contract as the plaintiff was not suing on the contract but for the defendant’s negligent conduct:

“a duty to take due care arises when a person or property of one was in such proximity to the person or property of another than, if due care was not taken, damage might be done by the one to the other.” – Lord Atkin at 581.

An appropriate basis for imposing a legal duty to take care – proximity and foreseeability.

General public sentiment dictates that a moral wrongdoer should pay for their carelessness which causes damage:

“Love thy neighbour” translates to “you must not injure your neighbour” in law.
If Mr. Stevenson had not taken reasonable care...

Laws301 Lecture Notes Part 3 - Tort Law

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