In 1932 the House of Lords in Donoghue v Stevenson reinvigorated the tort of negligence when it established a principle that could be applied in all circumstances. Before then negligence claims had been decided on a case by case basis with the claimant succeeding if his factual matrix matched that of a previously decided case. Donoghue swept that restriction away by deciding that ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’. Central to this principle was the notion of fault or, as their lordships put it, ‘taking reasonable care’ (Donoghue v Stevenson [1932] AC 562).

Donoghue was a ground-breaking decision, possibly one of the most important that the House of Lords has ever given. The court took five months to consider its judgment amidst talk of some brotherly arm-twisting that resulted in a 3:2 decision, the minority position being informed by a fear of opening the floodgates. In fact Donoghue did not open the floodgates for many decades as judges applied the notion of negligence appropriately. But over the last few decades case after case has widened the circumstances within which a claimant can succeed with a negligence claim. So expansive have the circumstances now become that our newspapers are full of reports of people suing for negligence in circumstances that would have been unthinkable in 1932. And the main reason why many of these headline grabbing claims do not make it into court is because defendants see the writing on the wall and settle at an early stage.

One case that did recently go the distance involved a schoolgirl who sued her education authority after falling from a slide in her school playground. After breaking her arm the girl won her claim on the basis that her local authority was vicariously liable for the actions of the playground supervisor who had noted some jostling on the slide and told the children to use it one at a time. As the supervisor turned round, when another child called for her attention, the girl, aged six, fell. The supervisor’s ‘negligence’ arose from the court’s finding that she ‘ought to have done rather more, at least by remaining in a position where she could intervene if the children did not comply with the words that she had uttered’ (Spowart v Nottinghamshire CC, Sheffield County Court, 23/6/06, Lawtel ref AC0111798).

The schoolgirl’s cause of action was the same as the one Miss Donoghue had used 75 years earlier. But the court’s view of ‘reasonable care’ was not. In Donoghue the court had stressed that ‘the standard of care exacted in human dealings must not be pitched too high’. Lord Atkin warned that ‘in a practical world’ fault must not be ‘treated so as to give a right to every person injured by them to demand relief’. And with this approach to fault in mind the court spelt out the particular facts that enabled Miss Donoghue to succeed. First, the ginger beer was manufactured for the purpose of ingestion and hence there was an onus on the manufacturer to avoid contamination. Second, the consumer bought the product expecting it to be drinkable and in any event would not have found it easy to detect the fault as the drink was sold in dark opaque bottles. Third, the manufacturing process was one that could readily ensure that snails did not have access to washed bottles.

The facts surrounding the schoolgirl’s fall of one and a half metres from a slide in her school playground were entirely different. Whereas the ginger beer was faulty and dangerous, the playground slide was neither faulty nor dangerous. What happened in Nottinghamshire was an accident, the sort of incident that could happen in any environment where children are playing and having fun. In finding that the playground supervisor was at ‘fault’ the judge was not using this expression in a Donoghue v Stevenson sense. His finding that the supervisor ‘ought to have done rather more’ expressed the view that with the benefit of hindsight she could have acted differently to avert a tiny risk of harm.

Another way of gauging the different approach is to recall the seminal way in which Lord Atkin justified the law of negligence. He noted that ‘the liability for negligence…is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay’. It is easy to see how the company that allowed a snail to get into its bottle of ginger beer had acted in a morally wrong way and ‘must pay’ for the harm it caused. Yet one’s moral compass would shy away from finding that the playground supervisor had either acted in a morally wrong way or that she should pay. On the contrary, most people would be rather shocked at the court’s finding that legal responsibility for a playground accident had been laid at the door of a playground supervisor. (The fact that it was her employers who were sued on the basis of vicarious liability does not detract from the fact that their liability arose because of her ‘fault’.)

The Spowart case illustrates a typical modern day approach to ‘fault’. The table below is concerned with negligence cases as reported in the Law Reports between 1891 and 2004. For each reported negligence case it shows whether the words ‘risk’ and ‘dangerous’ were used in the judgment. The results, shown as percentages, show that since the 1950s the word ‘dangerous’ has fallen out of favour as the notion of ‘risk’ has taken centre stage in negligence claims. Over the last few years nearly all negligence cases, as reported in the Law Reports, have considered ‘risk’ to be relevant.

Playing golf is not usually considered to be a dangerous activity. Hence, in 1967, a court dismissed a claim brought when a golfer hooked his tee shot so that his ball struck a golfer on an adjacent hole 200 yards away (Brewer v Delo [1967] 1 Lloyd’s Law Reports 488). But in 1998 a similar claim succeeded. The defendant’s shot deflected off a tree and his golf ball injured the claimant who was on an adjacent hole. On appeal the defendant asserted that the trial judge had failed to have regard to ‘how unlikely it was that the ball would both deflect as it did and yet have sufficient impetus left to cause injury to the claimant some 80 to 90 yards away’. The fact that the ball had only injured the claimant because it deflected off a tree would suggest that this golfer was less culpable than the golfer in the earlier case. But the Court of Appeal dismissed the defendant’s appeal in trenchant terms on the basis that although the risk he took was ‘relatively small’ it was sufficient to render him liable (Pearson v Lightning, Times 30/4/98).

The golfing and school playground cases illustrate the central role that risk now plays when the courts assess fault. The fact that one golfer took a ‘relatively small’ risk was sufficient for the court to find him negligent. Likewise, the playground supervisor took a small risk in not doing more to watch over the children on a school slide. In both case, absent the benefit of hindsight, the reasonable bystander would describe the risk of injury in each case as not just ‘relatively small’ but negligible. Everyday life is replete with people taking the sort of negligible risks that were taken by the golfer and the playground supervisor. What caused these individuals to end up in court was not the negligence of their actions but the fact that from time to time actions have improbable consequences.

Seventy five years after Donoghue v Stevenson there are still many negligence claims that succeed because the defendant has been at fault in the meaningful sense then envisaged by the House of Lords. But grafted onto this tort are an ever increasing number of claims that claim to be fault based but which in reality have nothing to do with Lord Atkin’s ‘general public sentiment of moral wrongdoing for which the offender must pay’. These claims are decided on the basis that an ordinary everyday risk had improbable consequences that, with the benefit of hindsight, could have been avoided. These cases rob negligence of its meaning.

Jon Holbrook is a barrister working in London