The Tort of Negligence
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“The categories of negligence are never closed”. [Lord Macmillan in
Donoghue v. Stevenson- (1932)]
The tort of negligence is a relatively recent phenomenon, which has
come to become the most dynamic and rapidly changing areas of
liability in modern law. Lord Macmillan’s assertion that “ the
categories of negligence are never closed” suggests how courts possess
the power to expand the area of liability by bringing in new duty
situations as a result of new set of facts coming is everyday.
As it is difficult to define negligence in simple terms, it can be
said that the ‘neighbour’ principle for duty of care, remains within
its wider social context one of the most important elements of
The courts had always been reluctant to provide remedy for claims
where there was no contract between the claimant and the defendant in
respect for policy consideration. The main reason put forward for this
was the so-called ‘floodgates’ argument. That the courts should not
allow a remedy in a particular case as it would open the doors to many
claims in similar situation. The same was accepted an obiter dictum by
Lord Buckmaster in his dissenting speech in Donoghue v. Stevenson.
Decided by a 3-2 majority of the House of Lords, Donoghue v. Stevenson
(1932) is regarded as the classic case in this regard, in part because
it laid down the foundational principle for the modern law of
However, this can be better understood by looking at the previous
cases that presided Donoghue v. Stevenson where in similar factual
circumstances negligence was not recognised.
In Bates v. Batey &Co. Ltd., the defendants, ginger beer
manufacturers, were held not liable to a consumer (who had purchased
from a retailer one of their bottles) for injury caused by the defect
in the bottle as it could have been avoided by exercise of reasonable
Like wise, in Winterbottom v. Wright, A contracted with B to provide a
mail-coach to convey the mailbags along a certain line of road.
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also contracted to horse the coach along the same line and his
co-contractors hired C to drive the coach. Held was that C could not
maintain an action against A, for an injury sustained by him while
driving the coach, by its breaking down from latent defects in its
construction as there was no direct contract between A and C. This was
mainly due to the well-established principle that no one other than a
party to a contract can complain of a breach of that contract.
The facts of Donoghue v. Stevenson were such where the appellant drank
a bottle of ginger beer, manufactured by the respondent, which a
friend had bought from a retailer and given to her. The bottle
contained the decomposed remains of a snail, which were detected after
the greater part of contents of the bottle had been consumed. As a
result the appellant alleged to have suffered shock and severe
gastroenteritis. She sought to recover damages and brought proceedings
against the manufacturer in negligence claiming that he had failed in
his duty to provide an efficient system of inspection of the bottles.
In his accenting judgement Lord Atkin claimed such liability to be an
important problem because of its bearing on public health. His famous
‘neighbour principle’, as it is known, laid down the factors upon
which the liability of negligence can be established. This is to say
that you must take reasonable care to avoid acts or omissions, which
you can reasonably foresee, would be likely to injure your neighbours
(described as persons who are closely and directly affected by ones
Lord Macmillan held in that a manufacturer knows that the consumer
will consume his goods. In such cases where there are no alterations
to the product from the manufacturer to the consumer, the manufacturer
does come under a duty of care towards the final consumers.
Subsequent cases such as Anns v. Merton and Home Office v. Dorset
Yacht Co. Ltd. can be cited to better explain the duty of care
principle. In the later case, the Home Office said that the neighbour
principle was applicable in all cases where there was no justification
or valid explanation for its exclusion. The HoLs held the Home Office,
through its careless officers, did owe a duty of care-foreseeable
harm. Where as in Anns case, although overruled on its facts set out
to establish the principle of proximity, consideration that might
reduce liability or scope of the duty or class of persons whom it is
owed or the damages etc. The case that overruled Anns, Caparo v.
Dickman in it, criticized the expansion of liability. It used an
incremental approach based on forseeability, ‘proximity’ and
‘fairness’- (which can be shown where there is forseeability of
damage, that the claimant and defendant were in a relationship of
proximity and that it would be fair, just and reasonable to impose a
duty where the first two conditions are satisfied).
Hence, today, there is the equally well-established doctrine that
negligence apart from contract gives a right of action to the party
injured by that negligence. Of this the best illustration is the right
of the injured railway passenger to sue the railway company either for
breach of the contract of safe carriage or for negligence in carrying
him. And there is no reason why the same set of facts should not give
one person a right of action in contract and another person a right of
action in tort.
Donoghue v. Stevenson hence confirmed negligence as a separate tort in
its own right, and claim for negligence can exist whether or not there
is a contract between the manufacturer and the injured party. Hence
the ratio decendi was formulated, where a claim for negligence will
succeed if the claimant can prove the defendant owes a duty of care to
the claimant, that there should be a breach of that duty by the
defendant; and resulting damage should not be too remote. That is to
say there should be casual link between the defendant and the injury.
So basically the effects of Donoghue v. Stevenson have been extremely
wide. Since its establishment as a separate tort, it has not only
increased available remedies but also taken over a lot of other fields
where it would not have applied before. Policy decisions and the need
to limit the opening of floodgates have forced the courts to take
retroactive steps and limit its scope. This by no means as correctly
stated by Lord Macmillan closes the doors on future developments in
negligence. Negligence claims and categories will develop depending on
the facts and the situation in every individual case.
In a Adam Liptak NY Times article (via ABAJ) about a forthcoming University of Chicago Law Review paper, Duke Law Professor Marin Levy complains about the increasing use of the "opening the floodgates of litigation" metaphor in Supreme Court decisions. "Barring a true flood of tens or hundreds of thousands of cases," she wrote, "no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law."
But that's not even remotely true. For example, imagine a court faced with an interpretative choice of applying a bright-line rule that creates certainty (but reduces some accuracy in close cases) or permitting a broad range of judicial discretion with a multi-factor balancing test. The longtime debate between rules and standards is surely informed by the inquiry whether the multifactor balancing test creates so much unpredictability that it "opens the floodgates of litigation" over that uncertainty, and thus social costs that far exceed any benefits from resolution of unfairness in the marginal case.
And, as Levy herself notes, the floodgates argument is often phrased in terms of whether a proposed interpretation creates incentives for meritless litigation. But what she doesn't discuss is some of the social costs of such litigation (her analysis focusing on habeas), which is, again, a perfectly evident principle for expressing concern about a potential decision. If a procedural interpretation creates profitable incentives for meritless litigation by making it easier for a plaintiff to impose litigation expense on a defendant and thus leverage to extract rents even when a case is without inherent factual or legal merit, a court can and should be concerned that that interpretation opens "floodgates" for such socially wasteful rent-seeking.
So, for example, Dura Pharmaceuticals goes unmentioned in the article, though the Court's concern about a plaintiff's "tak[ing] up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value" was a substantive part of the majority's reasoning in that case. Yet Levy makes broad generalizations about floodgates arguments affecting substantive law without addressing these concerns. And the Liptak article also misses this.
Levy thanks dozens of very smart law professors in the front of her paper. Is it really the case that the academy is so divorced from litigation realities and has such an institutional bias to litigation-as-solution that not one of them raised this basic objection to her argument?
Update: Professor Levy responds in the comments, and corrects the sentence I've crossed out above. I apologize for the misunderstanding about methodology, and should have delved more deeply into the footnotes rather than relying on the necessarily abbreviated description in the newspaper. But I disagree with Levy's claim "I never suggest that concerns about litigation (or the greater social costs of litigation) are not hugely important." The line "no evident principle exists to support the court taking workload concerns into account when engaging in interpretation of the law" certainly suggests that concerns about the greater social costs of litigation are not a principle that "support the court taking workload concerns into account when engaging in interpretation of the law." Certainly, that's the takeaway message that was emphasized in the New York Times.