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Summary Tort Law Revision Document LA124 Warwick University
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All relevant content for the University of Warwicks Tort Law exam.
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TORT NOTESNegligence
Duty of care
Overview
Duty of care refers to the relationships between individuals which give rise to a legal duty to take care.
Personal Injury and Property Damage:
Prior to Donoghue v Stevenson a claimant would have to establish an existing duty relationship in order to
succeed in their claims (i.e. there was a contract between them and hence a duty of care was owed). However,
the Neighbour Principle established that a duty of care can be broken without a contract between the parties
(also made manufacturers liable to final consumers). It was unsure after D v S where to draw the line with the
neighbour principle... however it was eventually established that the Neighbour Principle only be applied to
manufacturer-consumer cases. But, in Anns, Lord Wilberforce attempted to form an all-embracing test that could
be applied to any case to determine if there was a duty of care. The two-stage test was heavily scrutinised and
was eventually replaced with the Caparo test.
Cases
Donoghue v Stevenson [1932] - Lord Atkin develops the Neighbour Principle. There is a relationship of
neighbourhood between a manufacturer and the final consumer, duty of care exists.
Home Office v Dorset Yacht Co Ltd [1970] - Demonstrates the application of reasonable foresight in
establishing a duty of care. It was foreseeable the boys would have attempted to escape, and hence damage
the claimant's property, given the chance.
Bourhill v Young [1943] - Application of proximity in establishing a duty of care. Mrs Bourhill was outside
the 'area of shock' and so lacked a relationship of proximity.
Anns v Merton London Borough Council [1978] - Block of flats built on faulty foundations caused
structural damage, Claimant sued council in their negligence in approving/failing to inspect them. HoL
decided duty of care did exist. Lord Wilberforces two-stage test.
Caparo Industries Plc v Dickman [1990] - Claimant (CI) purchased shares in Fidelity Plc, they brought a
claim against the auditors for their negligence certifying the accounts. Held there was no duty of care. Lord
Bridge proposes the '3 stage test'.
Michael v Chief Constable of South Wales [2015] - SC decided there was no duty of care between police
and the general public. Determined the '3 stage test' be applied cautiously, especially to public bodies.
Swinney v Chief Constable of Northumbria Police [1999] - DoC because the claimant had come forward,
this established a relationship of proximity. Also fair, just and reasonable to impose this duty.
Key Laws / Tests
The Neighbour Principle
Principle:: A duty of care arises and is broken if: (i) there was reasonable foresight of harm,
(ii) a relationship of proximity.
Lord Wilberforce's two-stage test test,, Anns: (1) The loss was reasonably foreseeable and there was a
relationship of proximity. (2) Policy considerations may negate liability.
Lord Bridge's three-stage test test:: The claimant must establish that: (1) The harm was reasonably
foreseeable, (2) that there was a relationship of proximity, (3) that it is fair, just, and reasonable to impose a
duty of care. Now, back to the incremental approach; the claimant can only bring an action if there was an
existing duty situation. In novel situations, questions over duty of care arising is subject to the Caparo test.
,TORT NOTES
Negligence
Breach of Duty
Overview
Breach of Duty may be found to exist where the defendant fails to meet the standard of care required by the
law.
If the defendant is a professional they are held to the standard of a reasonable person within that profession,
this applies also to trainees. Likewise, a learner driver is expected to meet the same standard as a
reasonable competent qualified driver.
If a Defendant has acted in a way others in his profession would have, he is not in a breach of duty (Bolam
test). But, this opinion must be defensible and rooted in logic (Bolitho test).
A child is held to the same standard as a reasonable child their age.
To establish breach we must look at: Likelihood of harm, Seriousness of harm, Cost of prevention, and
the Utility of the defendant's conduct.
Key cases
1. Likelihood of harm: Bolton v Stone [1951]. Cricket ball. Defendant not liable, harm was not foreseeable.
2. The seriousness of harm: Paris v Stepney [1951] Claimant already blind in one eye, no protective
equipment provided, increased the seriousness of the harm.
3. Cost of prevention: United States v Carroll Towing Co [1947] Was a breach of duty, burden of properly
securing barge was less than the consequences of runaway barge.
4. The utility of defendants conduct: Watt v Hertfordshire County Council [1954] Fire department not found
liable, in the middle of emergency response, useful for society.
Professionals: Wilsher v Essex [1988]: Junior doctor mistakenly administered too much oxygen to a
premature baby, possibly causing blindness. If the defendant is a professional they are held to the same
standard as a reasonable individual in the same profession, this includes trainees.
Drivers: Nettleship v Weston [1971]: Learner driver (D) driving injured the claimant friend. Held that learner
drivers are held to the same standard as a reasonably qualified driver.
Doctors: Bolam v Friern Hospital Management Committee [1957]: The doctor failed to give the patient a
relaxant drug before his electroconvulsive therapy, he suffered a fracture. No breach of Duty, HoL developed
the Bolam Test (see below). Bolitho v City & Hackney Health Authority [1997]: when applying the Bolam
test, the opinion from the body of professionals must have a logical basis. Montgomery v Lancashire Health
Board [2015]: Bolam test used to apply for cases of informed consent, now it does not. The doctor must take
reasonable care to ensure a patient is aware of all material risks.
Children: Mullins v Richards [1998]: C&D both 15 and schoolgirls, both playfighting and so acted in the way
any other child at that age would. No breach of duty.
Impaired mental functioning: Mansfield v Weetabix Ltd [1998]: D was unaware of his condition so no
breach of duty. Dunnage v Randall [2015]: C tried to help schizophrenic and was injured, was a breach of
duty, D had some awareness of what he was doing... this is very controversial.
Key Laws / Tests
Bolam Test: A professional is not negligent in his conduct is a responsible body of men in the same
profession would agree with his conduct as being reasonable.
Bolitho Test: Builds upon Bolam test, but, emphasises that their opinion must have a logical basis.
Res Ispa Loquitor: Courts infer negligence from circumstantial evidence. (cause of the accident is
unknown, but wouldn't have happened if proper care were taken and the D must have been in control).
Social Action, Responsibility, and Heroism Act [2015]: Was the D acting for the benefit of society?
, TORT NOTES
Negligence
Causation
Overview
The claimant may be able to prove that the defendant breached a duty of care, but, they must also prove that
this breach is what actually caused injury to the claimant. This establishes the 'but for' test: but for the
defendant's conduct, would the injury have occurred? If the answer is yes, then there is causation, if the
answer is no, then there is not.
Issues arise when there seems to be more than one cause, when the claimant contributed to their injuries,
and when someone intervenes between the defendant and the claimant.
Key cases
Barnett v Chelsea and Kensington Hospital Management Committee [1969]: Claimants husband was
complaining of stomach pains, was told to see GP in the morning, he died of arsenic poisoning. It was
established that there was a breach of duty of care, BUT, this breach did not cause the claimant's husbands
death, he would have died anyway. This is the case that developed the 'but for' test.
Chester v Afshar [2004]: Defendant did not inform the claimant of the minor risk of paralysis before
surgery, this could have allowed the C to be fully informed when making a decision, hence there was
causation.
Loss of a chance: Gregg v Scott [2005]: Defendant misdiagnosed a lump as non-cancerous, when it was
finally diagnosed the claimants chance of survival had decreased. However, Defendant was not found to be
liable, there was a less than 50% chance of survival to begin with. This is a controversial decision.
Material Contribution: the breach does not have to be the sole cause of damage, but did contribute
to it: Fairchild v Glenhaven Funeral Services [2002]: Claimant exposed to asbestos during his
employment with multiple employers and hence developed mesothelioma. Held that each employer had
materially increased risk of mesothelioma. All employers found liable for 'joint and several liability'. Baker v
Corus [2006]: same as Fairchild, contracted mesothelioma with multiple employers. Held defendant is only
liable for the relative degree of contribution by that particular employer. No joint and several liability. This
decision was OVERTURNED by the Compensation Act 2006 section 3 (see below section).
Multiple Causation: Baker v Willoughby [1970]: Defendant injured claimants leg, disabling him. Later he
was shot in the same leg during a robbery and had to be amputated. The defendant was liable. It was
decided that when two accidents contribute to the same injury, the original defendant is liable for the overall
injury.
Novus Actus Interviniens: Knightley v Johns [1982]: Police inspector broke chain of causation when he
ordered police constable to drive the wrong way down the tunnel and was hit by a car. First crash defendant
not at fault. Claimant intervenes: Kirkham v CC Greater Manchester Police [1990]: Man committed
suicide at remand centre, was not properly monitored. Held that suicide is not an intervening act as he was
not in the right mental state, police were liable. McKew v Holland [1969]: Defendant not liable for claimant
descending a steep staircase with no handrail and further injuring leg, this breaks the chain of causation.
Key Laws / Tests
Compensation Act 2006 Section 3: If an employee contracts a disease where more than one employer is
involved, the claimant can claim full compensation from one of the employers, who can then claim against
the other employers for the sum of their proportional share of the blame.
'But for' test: Developed in the case of Barnett v Chelsea... [1969], used to prove causation by asking 'but
for the defendant's breach of duty would the injury have occurred?'.
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