CHAPTER VII.

NEGLIGENCE.

NEGLIGENCE is the breach of a duty to take care, and when it has caused damage to the plaintiff it is actionable.' "Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property."

In order, then, to succeed in such an action, the plaintiff must prove three things

(i.) that the defendant owed him a duty;

(ii) that the defendant neglected to perform that duty or performed it negligently;

(iii) that he has suffered damage in consequence of the defendant's neglect.

(i.) There need be no previous relationship between the plaintiff and the defendant. They may be entire strangers to one another. The plaintiff need not establish anything resembling what is called "privity" in the law of contract; but he must show that the defendant owed him a duty.s The duty may be owed either to him individually or to him as one of the public. The same act may be both a wrong to the public and a wrong to a private individual. But for the wrong to the public no private individual can sue, unless he has sustained some special damage particular to himself.

The fact that a contract exists between two persons does not prevent a duty arising, which, if violated, would be ground for an action of tort. But in most cases where such an action lies the duty is wholly indepen

1 Holmes v. Mather (1875), L. R. 10 Ex. 261; Tarry v. Ashton (1876), 1

Q. B. D. 314; Caledonian Ry. Co. v. Mulholland, [1898] A. C. 216.

Per Brett, M. R., in Heaven v. Pender (1883), 11 Q. B. D. at p. 507; and

see Evans v. Manchester, &c., Ry. Co. (1887), 36 Ch. D. 626.

3 Austin v. G. W. Ry. Co. (1867), L. R. 2 Q. B. 442; George v. Skivington (1869), L. R. 5 Ex. 1; and ante, pp. 431, 432.

dent of any contract. Thus, "two drivers meeting have no contract with each other, but under certain circumstances they have a reciprocal duty towards each other. So two ships navigating the sea. So a railway company, which has contracted with one person to carry another, has no contract with the person carried, but has a duty towards that person."1

Again, the duty must be owed to the plaintiff, and not to a third person. A. cannot sue B. for the breach of a private duty which B. owed to C., even though A. has sustained damage in consequence of it. C. alone can sue for the breach of a duty owed to himself, and he can only sue if damage has resulted to him from that breach. It is therefore possible that a man may be very negligent and cause much damage, and yet no one will be able to sue him, if thè only persons damaged are those to whom he owed no duty.

Thus, where A. employed a solicitor to draw a will for him and bade him insert a clause leaving a legacy of £1,000 to B., and the solicitor negligently omitted this clause from the will, it was held that B. had no cause of action; he had not employed the solicitor, and the solicitor therefore owed him no duty.4

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So a telegraph company owes no duty to the addressee of a telegram. Again, where mortgagees lent money to a builder by instalments on the strength of the certificates of a surveyor, appointed by the builder's vendor, it was held that they had no cause of action against the surveyor when they were damnified owing to such certificates being negligently drawn up; for they had not appointed the surveyor, and consequently he owed no duty to them.6

So, where the plaintiff's sheep had strayed on to the defendants' railway and were there killed, the defendant company escaped liability, because the sheep did not stray on to the railway direct from the plaintiff's land. They were wrongfully on some one else's land, adjoining the railway, and thence had strayed on to the line. The statute 8 & 9 Vict. c. 20, s. 68, imposed, it was true, on the railway company a duty to make and maintain sufficient fences "for separating the land taken for the use of the railway from the adjoining lands not taken," and "for preventing the cattle of the owners and occupiers thereof from straying thereout," &c. This section of the Act, however, was held not to apply under the circumstances, inasmuch as the plaintiff was not the owner or occupier of the

1 Per Brett, M. R., in Heaven v. Pender (1883), 11 Q. B. D. at p. 507. 2 There are one or two exceptions to this general rule, which have been dealt with ante, p. 431.

30.

3 See Earl v. Lubbock, [1905] 1 K. B. 253.

4 Fish v. Kelly (1864), 17 C. B. N. S. 194; Hannaford v. Syms (1898), 79 L. T.

Playford v. U. K. Telegraph Co. (1869), L. R. 4 Q. B. 706; Dickson v. Reuter Telegraph Co. (1877), 2 C. P. Ú. 62.

• Le Lièvre v. Gould, [1893] 1 Q. B. 491; and see Robertson v. Fleming (1861), 4 Macq. H. L. Cas. at p. 177.

adjoining land. If, however, any passenger on the railway had been injured through an accident caused by the presence of the sheep upon the company's line, he would have been entitled to recover damages; for although the statutory duty to fence is an obligation not as to passengers, but with regard to the owners and occupiers of adjoining lands, yet there is also a duty imposed by common law on a railway company to take every reasonable care to prevent danger to their passengers from animals coming on to the line.2

The duty must clearly exist; it must not be inferred from other circumstances, where there was no intention on the part of the defendant to take upon himself such a duty.

Thus a landowner who dedicates a highway to the use of the public is under no duty to keep it in repair. So, too, land may be dedicated to the public as a highway, without any liability attaching for any risk or inconvenience to the public arising from its existing condition.3

But a mere licence to lodgers to use the roof of a house as a drying-place for linen does not impose any duty upon the landlord to repair the railing round the roof. Nor is there any duty on the part of the occupier of premises to render them secure for persons using them without invitation for their own gratification. But where the owner of a building lets it as chambers or offices to different tenants, but retains the staircase in his possession, he is under a duty towards persons using the staircase, when on business with the tenants, to keep it in a reasonably safe condition."

Again, "one who chooses to become a guest cannot complain of the insufficiency of the accommodation afforded him" by his host, so long as there is nothing in the nature of a trap or concealed danger. But where a barber, in shaving the plaintiff, negligently used razors and other appliances in a dirty and insanitary condition and the plaintiff contracted ringworm in consequence, he recovered damages.8

(ii.) Next, the plaintiff must show that the defendant has been guilty of negligence-that he either wholly omitted to perform his duty or that he was negligent in his performance of it. What amounts to negligence must depend on the

1 Ricketts v. The East and West India Docks, &c., Ry. Co. (1852), 12 C. B. 160; Sharrod v. L. & N. W. Ry. Co. (1849), 4 Exch. 580. As to obligation to maintain gates at level crossing, see Charman v. S. E. Ry. Co. (1888), 21 Q. B. D. 524. Buxton v. N. E. Ry. Co. (1868), L. R. 3 Q. B. 519.

3 Fisher v. Prowse (1862), 2 B. & S. 770; Morant v. Chamberlin (1861), 6

H. & N. 541; Brackley v. Midland Ry. Co. (1916), 85 L. J. K. B. 1596.

4

Ivay v. Hedges (1882), 9 Q. B. D. 80; Batchelor v. Fortescue (1883), 11

Q. B. D. 474.

Jewson v. Gatti (1885), 1 C. & E. 561.

See Huggett v. Miers, [1908] 2 K. B. 278; Ching v. Surrey C. C., [1910] 1 K. B. 736; Lucy v. Bawden, [1914] 2 K. B. 318.

Per Williams, J., in Corby v. Hill (1858), 4 C. B. N. S. at p. 565 ; and see Kimber v. Gas Light and Coke Co., [1918] 1 K. B. 439.

Hales v. Kerr, [1908] 2 K. B. 601.

facts of each particular case. "There is no absolute or intrinsic negligence; it is always relative to some circumstances of time, place or person." "The ideas of negli gence and duty are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply the neglect of some care which we are bound by law to exercise towards somebody.'

Though the defendant's act be not in itself unlawful, he may nevertheless be liable in damages, if he does it negli gently or in an unlawful manner. But he cannot be charged with negligence if he took all reasonable care to prevent any damage being caused to others by his doing that lawful act.

The Legislature constantly, in the interests of the public, authorises acts to be done which occasion loss or damage to an individual. No action of tort will lie for such loss or damage, if the acts which are thus legalised have been performed with proper care. "When the Legislature has sanctioned and authorised the use of a particular thing, and it is used for the purpose for which it was authorised, and every precaution has been observed to prevent injury, the sanction of the Legislature carries with it this consequence, that if damage results from the use of such thing, independently of negligence, the party using it is not responsible. It is consistent with policy and justice that it should be so." But if these statutory powers be exceeded or be exercised negligently and damage ensue, an action will lie; for the Legislature does not authorise negligence.

Want of skill is not negligence. If a man is engaged to write a book or paint a picture, and he devotes to the task untiring industry and scrupulous care, and yet the result of his labours is a failure through lack of mental ability or manual skill, no action will lie. The person engaging him

1 Per Bramwell, B., in Degg v. Midland Ry. Co (1857), 1 H. & N. at p. 781. 2 Per Bowen, L. J., in Thomas v. Quartermaine (1887), 18 Q. B. D. at P. 694. Per Cockburn, C. J., in Vaughan v. Taff Vale Ry. Co. (1860), 5 H. & N. at p. 685; and see Smith v. L. & S. W. Ry. Co. (1870), L. R. 6 C. P. 14; Powell v. Fall (1880), 5 Q. B. D. 597.

Jones. Festiniog Ry. Co. (1868), L. R. 3 Q. B. 733; West v. Bristol Tramways Co., [1908] 2 K. B. 14.

See Hill v. Metropolitan Asylum District Board (1879), 4 Q. B. D. 441; (1881) 6 App. Cas. 193; and Sadler v. Staffordshire, &c., Tramways Co. (1889), 22 Q. B. D. 17.

But

should have been careful to select a competent man. the case is otherwise where any one holds himself out as possessing the special skill and training necessary to the exercise of a particular profession.

Thus, if A. sets up as a medical man and invites practice, e.g., by placing a brass plate on his door, he will be deemed to warrant that he has undergone the training and has the skill and experience requisite in a medical man; if he has not these, he may be liable to a patient who has suffered in consequence, even though he treated him with the utmost care and diligence. A surgeon, for instance, does not undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill; but he does undertake to bring a fair, reasonable and competent degree of skill to the treatment of his patient; and it will be for the jury to say whether the injury complained of really was occasioned by the want of such skill in the defendant. Where, on the other hand, a medical man treats a patient with due care and skill, but in a special or unusual manner out of curiosity or by way of experiment, he may be liable for the consequences in the same way as if he had been negligent in the use of ordinary remedies.1

Negligence may be proved in an infinite variety of ways. "The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether from those facts, when submitted to them, negligence ought to be inferred." 2 The burden of proving negligence lies on the plaintiff, unless the facts speak for themselves. If the facts of the case show clearly that there must have been negligence, the plaintiff is released from the burden of proving it.

Thus, where the plaintiff was walking past the defendant's shop in the public street, and a barrel of flour fell from the window above the shop and seriously injured him, it was held that the occurrence itself was sufficient evidence of negligence, and cast upon the defendant the burden of proving that the accident was not attributable to any negligence on his part.3 Res ipsa loquitur.

Any one who employs another to do an unlawful act is liable for any damage caused by that act. It is no defence

1 Dr. Groenvelt's Case (1697), 1 Lord Raym. 213.

2 Per Lord Cairns, L. C., in Metropolitan Ry. Co. v. Jackson (1877), 3 App. Cas. at p. 197; and see Dublin, Wicklow and Wexford Ry. Co. v. Slattery (1878), 3 App. Cas. 1155; Turner v. Coates, [1917] 1 K. B. 670; Cole v. De Trafford (No. 2), [1918] 2 K. B. 523.

3 Byrne v. Boadle (1863), 2 H. & C. 722.