Negligence 229In Commissioners of Customs and ExcisevBarclays Bank plc (2006)the House of
Lords held that liability for pure economic loss will arise in only three situations: first,
where a person has, or can be taken to have, assumed responsibility for what he said and
did in relation to the claimant (see negligent misstatement below on p. 237); second, under
the threefold test considered in relation to the general existence of a duty of care (reason-
able foreseeability, proximity and whether it is fair, just and reasonable to impose a duty of
care); third, under the incremental test as set out in Caparo(see p. 226 above).
Breaching the duty
Merely owing a duty of care is not enough to give rise to liability for the tort of negligence.
Almost everybody owes a duty of care to many people every day. For example, every car
driver owes a duty of care to other road users and pedestrians. The driver is not liable to be
sued by such people unless he or she injures them by breaching the duty of care which is owed.
A duty of care will be breached if the defendant does not take the care which a reasonable
person would take in all the circumstances. This is an objective standard. It is no defence
that the defendant was doing his or her incompetent best. In Nettleship vWeston (1971)
the Court of Appeal held that the duty of care which a learner driver owed to passengers
and the public was the same objective and impersonal standard as every other driver owed.
Notice the contrast with criminal law here. Most criminal offences demand that the accused
deliberately does wrong.
A higher standard of care is expected of professional people and those who claim to have
some special competence. Professional people must show the degree of care which a reason-
ably competent person in that profession would show, and failure to show this standard
will amount to breach of duty. In Bolam vFriern Hospital Management Committee (1957)
McNair J said: ‘Where you get a situation which involves the use of some special skill or
competence...the test is the standard of the ordinary skilled man exercising and profess-
ing to have that special skill.’ The case concerned a man who had suffered broken bones
caused by convulsions experienced when he was given electric shock treatment for depres-
sion. There were two schools of thought about whether or not patients undergoing such
treatment should be given relaxant drugs. After the case it became accepted that they
should. It was held that the hospital did not breach their duty of care by failing to use such
drugs. A doctor who acts according to one accepted school of thought is not negligent just
because it later turns out to have been wrong.
A duty of care owed will not have been breached unless it could reasonably have been
foreseen that the defendant’s actions would cause injury.
Roe vMinister of Health (1954) (Court of Appeal)In 1947 the claimant was paralysed by an anaesthetic used by a hospital. The anaesthetic
was kept in glass ampoules, which were stored in disinfectant. Traces of disinfectant had
seeped through the glass ampoules into the anaesthetic and this disinfectant had caused
the paralysis.
HeldThe defendant was not liable because in 1947 no-one knew that fluid could per-
meate glass. Of course, a hospital would have been liable if a similar accident had occurred
after this fact had become known. In the Court of Appeal, Denning LJ said that we: ‘must
not look at the 1947 accident with 1954 spectacles’.