The rise of the tort of negligence

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This article is a topic within the subject Introducing Law & Justice.


Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 360-377 (Chapter 14).


[1] The modern law of torts developed two main forms of action:

  • Writ of trespass - an intentional and direct interference with a person or their goods or land.
    • It was actionable without proof of damage.
  • Writ of trespass on the case (‘case’) - an indirect ('consequential') injury in a situation where the wrong might be the carelessness (as opposed to intention) involved.
    • With this form of action, the plaintiff had to prove damage.

The modern 'causes of action' which come under the umbrella terms of intentional and unintentional torts are descendants of these two old forms of action respectively:

  • Intentional torts - causes of action which are derived from trespass (ie assault, battery, false imprisonment).
    • Retaining the tradition of trespass, intent and directness are required. They are also actionable without proof of damage.
  • Unintentional torts - causes of action which are derived from 'case' (ie negligence, nuisance).
    • Retaining the tradition of 'case', damage must be proven, but harm can be consequential.

This article deals with the tort of negligence, which is an unintentional tort. The set of requirements which must be proved to support a cause of action in negligence are:

These requirements are dealt with in the subject LAWS1061 -Torts.

The development of negligence

[2] Before 1932, there was no such thing as a ‘tort of negligence’. Third parties who suffered as a result of a breach of contract had no remedy, because they were not a part to the contract and thus excluded by the doctrine of privity.

The tort of negligence eventually started to develop from various forms of action on the case. The first discussion on whether a duty of care could extend to third parties was raised in Langridge v Levy:

  • The court refused to set a precedent by imposing a duty of care to third parties, because this might result in indefinite liability ('open the floodgates' and everyone could sue).
  • However, the court awarded damages to the plaintiff on the basis of fraud - a duty arose that the gun should be safe because of the defendant's representation that it was.
  • That duty extended itself to the plaintiff because the defendant knew the plaintiff would be using it.

The debate continued in Winterbottom v Wright, which was equally reluctant to extend a duty of care towards third parties:

  • No contract existed between the injured party and the party which is actually at fault (instead, there were a series of fragmented contracts), and therefore the plaintiff is excluded from suing. Allowing him to sue would open the floodgates.
  • There is no fraud here, and so the Plaintiff has no remedy.
  • The judge is careful not to introduce what would be 'bad law' just because he is sympathetic to the injured and remedy-less plaintiff.

And also in George and Wife v Skivington, which was complicated because a defective product was bought by a husband for a wife (a wife could not be a party to a contract back then):

  • Applying Langridge v Levy, a duty arose that the product should be safe, and that duty extended to those who the Defendant knows will be using the product.
  • The Defendant knew the product was used on behalf of the wife, and therefore the duty extends to her.

A major breakthrough occurred in Heaven v Pender, where the court finally recognised that a duty of care can be owed to third parties:

  • In a scenario where ordinary care or skill is required to prevent injury to the plaintiff, a duty of care exists even in the absence of a contract.
    • "Whenever one person is by circumstances placed in such a position with regard to another... whereby he may cause danger of injury... a duty arises to use ordinary care and skill to avoid such danger."
  • This duty exists without an implied contract or fraud like in previous cases.

This paved the way for the landmark case which really created modern negligence, Donoghue v Stevenson, which is covered in LAWS1061 - Torts.


Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, pp. 360-2
  2. Textbook, p. 360
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