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Laws301 Lecture Notes Part 3 - Tort Law

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Duty of Care 3

Origins and Development 3

Donoghue v Stevenson [1932] AC 562 4

Facts 4

Issue 4

Rule 4

Analysis 4

Hedley Bryne & Co Ltd v Heller & Partners Ltd [1964] AC 465 6

Facts 6

Issue 6

Rule – Negligent Misstatement 6

Analysis 7

Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 (HL) 9

Facts 9

Issue 9

Rule 9

Analysis 9

Redeveloping the duty of care test 11

Anns v Merton London Borough Council [1978] ACT 728 11

Facts 11

Issue 11

Rule – two stage inquiry 11

Caparo Industries Plc v Dickman and Others [1990] 2 AC 605 12

Facts 12

Issue 12

Rule: the three-fold test 12

Analysis 13

Result 13

South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 14

Facts 14

Issue 14

Rule: assessing the duty of care in novel situations 14

Analysis 15

The status quo in New Zealand 17

Attorney-General v Carter [2003] 2 NZLR 160 17

Rule 17

Assumption of responsibility 17

The NZ approach to duty of care arising from negligent misstatements 18

Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 19

Facts 19

Issue 19

Rule 19

Analysis 20

Result 20

Couch v Attorney-General [2008] 3 NZLR 725 21

Facts 21

Issue 21

Rule 21

Application 22

Elias CJ’s Dissent 22

North Shore City Council v Attorney General [2012] NZSC 49 23

Examining the duty of care analysis 25

Palsgraf v Long Island Railway Co, 248 N.Y. 339 (1928) 25

Application of the analysis (Categories) 26

Positive acts causing physical damage 26

Mobil Oil Hong Kong Ltd v Hong Kong United Dockyards Ltd [1991] 1 Lloyds LR 309 (PC) 26

Marc Rich & Co v Bishop Rock Ltd [1996] 1 AC 211 27

Omissions 28

Stovin v Wise [1996] AC 923 28

Mental Injury 30

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 30

Misstatements 32

Carter Holt Harvey Ltd v Minister of Education [2015] NZCA 321 32

Economic Loss 35

Scott Group Ltd v McFarlane [1978] 1 NZLR 533 (NZCA) 35

Connell v Odlum [1993] 2 NZLR 257 37

Defective Buildings 39

Body Corporate 207624 v North Shore City Council (Spencer on Byron) [2013] 2 NZLR 297 39

Public Authorities 42

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 42

Other Elements of Negligence 45

Standard of Care and Breach 45

Overseas Tankship Ltd v The Miller Steamship Co Pty Ltd (Wagon Mound (No 2) [1967] 617 45

Facts 45

Issue 45

Rule 45

Analysis 45

Goldman v Hargrave [1967] 1 AC 645 47

Facts 47

Issue 47

Rule 47

Analysis 48

Result 48

Bannerman, Brydone Folster & Co v Murray [1972] NZLR 411 49

Facts 49

Issue 49

Rule 49

Analysis 49

Causation and Damages 50

Wilson & Horton Ltd v Attorney-General [1997] 2NZLR 513 50

Facts 50

Issue 50

Rule 50

Analysis/Application 51

Lecture 36: (11/08/20)

Four elements:

  1. Duty of care

  • The defendant owes the plaintiff a duty of care

  1. Breach

  • The defendant breaches their duty of care and were careless/unreasonable in doing so.

  1. Causation

  • The defendant’s breach then caused damage to the plaintiff

  1. Damages

  • 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 12th to 14th Century Trespass

  • In the 12th century, you could trespass if there was a direct and forcible interference with a person or land.

  • In the 13th century, two writs developed – a writ of trespass to the person and one of ‘trespass on the case’.

  • In the 14th 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 to ensure his bottles are safe for human consumption, he should be held liable for the damage that it causes.

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. 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.” – Lord Atkin at 580.

  • Although Stevenson was not the plaintiff’s geographical neighbour, he was held to have owed a duty of care as there was no possibility of inspection due to the bottle being opaque.

  • Stevenson was also held to have known that the absence of reasonable care in the preparation or putting up of the ginger beer would result in an injury to the consumer.

It was concluded that in the circumstances, a manufacturer owes a duty to the ultimate consumer to take reasonable care so that products are free from defects likely to cause injury.

  1. Duty of care

  • Stevenson’s ginger beer contained a snail which caused injury to the ultimate consumer.

  • Therefore, the defendant did not comply with the duty of care.

  1. Breach

  • There were no processes for checking and ensuring that snails or other matter does not get into bottles before they are filled with ginger beer

  • This is not reasonable to ensure that bottles are free of defects likely to cause injury.

  • Therefore, there is a breach.

  1. Causation

  • Expert opinion – the snail in fact caused Donoghue’s stomach pain and psychiatric shock.

  • No policy reasons not to extend the principle to this case – there were no laws to protect consumers at this time and imposing liability would meet the needs of ordinary people.

  1. Damages

  • Plaintiff suffered physical injury and psychiatric injury.

Lord Macmillan – the categories of negligence are not closed.

“There are other instances than of articles of food and drink where goods are sold intended to be used immediately by the consumer, such as many forms of goods sold for cleaning purposes, where the same liability must exist.”

What if Stevenson did not produce the ginger beer?

  • During this time, manufacturers often have bottles with their names printed on them.

  • The bottles were re-used. Manufacturers would obtain bottles with other people’s names on them and would sell them with their own product in them.

  • There were multiple manufacturers of ginger beer in this region of Scotland – Stevenson argued at trial that the ginger beer was in fact not his product.

  • The Court did not accept this argument – his name was still on the bottle. If he wants to ensure his product is not being falsely labelled, he must protect his brand.

  • Product liability – if a manufacturer produces a product which is defective in some way, the manufacturer may be liable even if there are multiple buyers before the ultimate consumer.

Lecture 38: (18/08/20)

A duty of care of a negligent statement arising from a pure economic loss might arise when

  1. There is a special relationship between the parties – sufficient proximity

  2. The party giving advice has voluntarily assumed the ability to do that

  3. The third party has relied on advice

  4. It is reasonable for the third party to rely on that advice.

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