The Tort of Negligence, its Adjudication and its Satellites simon whittaker

DOI:10.1093/acprof:oso/9780198256137.003.0009

Abstract and Keywords

Much of the English textbook discussions on the tort of negligence concern the ambit of the duty of care, and rightly given the size and complexity of the case law and its juristic as well as its practical interest. But as regards liability for physical harm caused by action or activity, it is the significance and assessment of the breach of duty or ‘negligence issue’ that is really interesting, for with certain notable exceptions, the courts do recognise the existence of a duty of care covering a defendant’s positive action which causes physical harm. What this leaves for our purposes are the difficult areas of liability for pure economic loss in relation to products and the liability of public bodies or others for failing to intervene in the interests of the claimant’s safety, or for failure in their exercise of powers of regulation or control over safety. This chapter explores English law’s treatment of the ‘negligence’ issue, first, because the apparently broad and unified scheme of the tort of negligence hides a varied and complex treatment of what is actually required of the defendant in relation to the safety of products according to the particular context; and second, because its analysis of and process of deciding the issue of negligence contrasts sharply with French law’s treatment of la faute, vice, or défaut. Having done so, it turns to two satellite liabilities of negligence: liability for breach of statutory duty and in public nuisance.

Keywords:   English law, negligence, liability, statutory duty, public nuisance

1. The Dominance of the Tort of Negligence

Since the middle of the twentieth century, negligence has dominated the English law of liability for death, personal injury and damage to property. This has resulted from judicial expansion of the tort of negligence itself and its attraction into its orbit of a number of satellite liabilities by judicial interpretation of other formally distinct liabilities towards a basis in negligence¹ and by legislative creation of liabilities for statutory negligence.² As a result, the need for a claimant to prove a defendant’s lack of reasonable care is general for the recovery in respect of death, personal injury and damage to property.

Moreover, since the decision of the House of Lords in Hedley Byrne v Heller Partners in 1963,³ the tort of negligence has provided the forum for arguments as to the ambit of recovery of a range of non-physical harms designated as ‘pure economic losses’, where these are (a) not intentionally inflicted (this being the subject matter of the ‘economic torts’⁴), (b) not brought within a claim for breach of contract and (c) not consequential on the claimant’s own personal injuries or damage to property.⁵ From a stark position which denied any recovery for such losses outside the law of contract,⁶ the courts have accepted that it may sometimes be allowed, more recently where the defendant is said to have assumed responsibility for the circumstances from which the loss has arisen.⁷ Two prominent contexts for recovery of pure economic loss have been negligent advice in relation to buildings to be sold and losses caused by qualitative defects in either goods or buildings sold.⁸

In contrast to the French position whose private law recognises a general principle of liability for the ‘deeds of things’ and whose public law recognises a category of (p.180) liability for dangerous things, before implementation of the Product Liability Directive English law did not treat liability for things or liability for products as a formally distinct legal category. True, in Donoghue v Stevenson, the leading case on the tort of negligence, the House of Lords did recognise the existence of a duty of care in a manufacturer of products towards those physically injured by them, but by doing so it merely added a further case to the legally recognised situations where negligence would give rise to liability, subsuming this example of liability for products into the general framework of the tort of negligence.⁹ Moreover, the tort of negligence began to recognise a full range of possible defendants to be liable for the harm which products may cause, whether they made, designed, supplied, gave advice about or used the product in question. Here, though, while a product may provide the ‘instrument’ of the claimant’s injury (for example, a vehicle in a road accident or an electric iron which explodes), the focus of the law remains the defendant’s failure to conform to the ‘negligence standard’ (the requirement of reasonable care in the circumstances) rather than on the state of the product itself or its role in causing a claimant’s damage. Indeed, one of the reasons why English courts have been so reluctant to allow recovery in tort for economic losses caused by the qualitative defectiveness of property (whether goods or buildings) has been because it involves a shift of attention towards the quality of the ‘thing’ and away from the defendant’s conduct which lies at the heart of the tort of negligence.¹⁰

Much of the English textbook discussions on the tort of negligence concern the ambit of the duty of care, and rightly given the size and complexity of the case law and its juristic as well as its practical interest, but as regards liability for physical harm caused by action or activity, in my view it is the significance and assessment of the breach of duty or ‘negligence issue’ which is really interesting, for with certain notable exceptions, the courts do recognise the existence of a duty of care covering a defendant’s positive action which causes physical harm.¹¹ What this leaves for our purposes are the difficult areas of liability for pure economic loss in relation to products and the liability of public bodies or others for failing to intervene in the interests of the claimant’s safety or for failure in their exercise of powers of regulation or control over safety, which I shall discuss later.¹² Having looked briefly at the duty of care, I wish therefore to explore at some length English law’s treatment of the ‘negligence’ issue: First, because the apparently broad and unified scheme of the tort of negligence hides a varied and complex treatment of what is actually required of the defendant in relation to the safety of products according to the particular context and, secondly, because its analysis of and process of deciding the issue of negligence contrasts sharply with French law’s treatment of la faute, vice or défaut.¹³ Having done so, I shall turn to two satellite liabilities of negligence, liability for breach of statutory duty and in public nuisance.