A RE‐EXAMINATION OF THE DUTY OF CARE1
| Date | 01 January 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00069.x |
| Published date | 01 January 1948 |
I
TIIE
TORT
OF
NEGLIGENCE
AFTER
WOODS
L'.
DUNCAX
Tm
reccnt
cast
of
Ct'ootls
v,
Dunccm
raises anew certain
fundamental problems
of
the tort
of
negligence,
and
renders it
ncc-cssary
once
rnorc to exnininc the iisture
of
the matters
which
must
he
provctl to sustain an action
of
this kind. For
on(* cffcct
of
IYoorls
v,
hi?ic(i?i
is
to
re-cmphasise that although
then
nature
of
thc clcinciits
of
an action
of
negligence has becn
cnii\*assed
in
u
multitude
of
cases, and although negligence
prol)lcms are in the forefront
of
the court's day-to-day work,
110
settled method
of
analysis
of
such prohlems has been
rcached by the courts.:' The rather dramatic facts of
Woods
v.
Ihincnn,
arising from thc tragic
loss
of
H.M.
submarine
Thc*lis,
are siifficiently well known. They need not be can-
vassed here ugnin since the writer is not concerned with the
merits
of
the
holdings, or
of
the
reasons contained in the
jodginents and speeches to which the litigation gave rise.. The
present interest lics onlv
in
the
divcrsity of the reasons given
1
The
prcsent
article
sprang
from
the
important
and
cliallenging trcntmrnt
of
t.liis
question contained in Chapter
VII
of
Professor Julius Stone's reccnt
work
The
Prouince
and
Function
of
Law. The
writer had the benefit
of
Professor Stone's invnliinble nssistancc at every stngr
of
its preparation. Tliifi
assistance
SO
unstintingly given took form
too
nunicrous
to
set out, but in
Imrticular
the
writer must acknowledge his indcbtc(1nrss
to
Professor Stone
lor
inany
lioiirs of
stiinulat,ing diecussion, and
for
revision
of
the
drnfts,
which
rrsultcd
in mniip points being added.
3
The
duty
problcni
has
bcen
the
subject
of
kecn juristic interest
in
recrnt
vears. hit scnrcclv on
a
scnle wnrrnntcd
b
its day-to-day importance.
The
;vritcr has found
huch
of
rnlur.
in
P.
H.
dinfield,
'
Duty in Tortiouq Ncgli;
gcnce
'
11031),
84
Col.I~.Rcv.
41
(on
the
historical development
of
Duty
notions in negligence, and thc function of Lord' Atkin's test)
;
and
L.
Green.
(lone),
28
Col.L.Rev.
1014;
(1920),
29
Col.I,.Rcv.
250
(on
the
judging
nud
language techniques involved in
ndcquntc fulfilment
of
t.hc courts' rrentive function
of
determining
whether
n
duty
(in
what
lins
lntcr come
to
bc known
as
Lord Atkin's
sense)
cxietn in
n
novi-l
situnt
iorii.
Pcr!
nlso gvncrnlly, Glnnvillc Willinms.
'
Negligent Contractors an(! Third
Pnrtics'
(1942).
92
L.J.Ne\vsp.
115,
12.1,
13'2,
and
P.
C.
Underhay, Manlt.
fnclurcrs' 1,inbility
'
(103G\,
14
Cnn.nar.Rev.
283,
on
the development
of
the
British cnsc
low
since Donogkrre
V.
Sleuenson,
and
Orant
v.
Australian
Knitiiiig
AfiUs.
0th
rcafcrcnrcrc
will
be
found in latcr
fodtnotcs;
ns
far
as
thc
writer
is
iitvait,
honcvcr, tltr precise questions
at,
the
ccntrc
of
tlic
presellt
nrticlv
Iia
vc
not ~~rwioiifily bcen considcrcd
nt
length.
2
(19.16). G2
T.1t.R.
283.
'rhc
Duty I'roblcm in Ncgligencc
Cnscs
9
10
THE
MODERN
LAW REVIEW
VOI..
II
t)y some Inernbcrs
of
thc Hoiisc
of
Lords
for
arriving at an
agreed co~iclrision concerning
nn
agreed state. of facts. For in
this regard thc spceclics
ill
Woods
v.
Ihicun
carry into the
tribunal
of
last resort the diversity of analyscs long current
in the courts.
Viscount Simon stated
'
that three things had to be proved
for an action in negligence:-(1) that the defendant failed to
exercise due care;
(a)
that the defendant owed to the injured
man a duty to exercise due care;
(3)
that the defendant's
failure was the
'CUUS~'
of the injury in the proper sense of
that term. His Lordship then proceeded to satisfy himself
that in the case before the court the first two requirements had
been mct and finally approached what he described as the
crucial question whether Cammell Laird's negligence could be
said to be the
'
cause
'
of the disaster." In this connection he
asked
:
Could Cammell Laird reasonably have in contempla-
tion-the phrase is Lord Atkin's in
Donoghue
v.
Stevenson
-that those on board when the trial dive was taking place
would be put in mortal peril
if
those holes were blocked?
Having answered
fhis
question in the negative he dismissed
the plaintiff's claim.
In the same case Lord Russell of Killowen stated, in the
course of his speech, that assuming that Cammell Laird were
negligent and that their negligenee caused the accident, the
question would still remain whether they were in breach of
a
duty owed to Duncan and Craven.
'
The answer to this question
depends on whether they could reasonably be expected
to
foresee that the choking of the test-cock might endanger the
lives of those on board,
or
cause the event which happened.
In my opinion no such foresight could reasonably be expected
of them
?.G
Both these law Lords therefore based their decision on the
same ground of fact, namely that Cnmmell Laird could not
reasonably have foreseen the accident. Yet the grounds of law
were quite different. Viscount Simon, as we have just seen,
thought that this involved that although the defendant
WIS
under a duty
of
care to the plaintiff, and although the defen-
dant
hurl
been
negligent, yet the defendant's negligence was
not the cause
of
the accident. Lord Russell of Killowen, on
the other hand, thought that the result. was that although. the
4
At
p.
28G.
*'
P.
287.
0
P.
288.
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