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Summary TORT LAW REVISION NOTES
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Tort Law Revision notes for pgdl studies with exam structures.
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TORT-NEGLIGENCE: DUTY OF CARE
STEP1: STATE- THE CLAIMANT CAN CONSIDER SUING THE DEFENDANT IN THE TORT OF
NEGLIGENCE
Claimant v Defendant
Define negligence: a breach by the defendant a legal duty of care owed to the
claimant that results in actionable damage to the claimant unintendend by the
defendant. (carelessness)
Run through ; duty of care, breach, causation, defences
1. Is there a duty of care?
- Was there foresight of harm
- Was there sufficient relationship- directly affected by defendant
- Is it fair, just& reasonable for court to say defendant owes a duty ?
2. Breach of that duty
- If actions reached the standard of the reasonable person at that time
-Objective test;
Reasonable person considers factors- will my action cause harm, how serious
would the harm be, does it justify taking risks, could I take precautions
- Risk assessment- reasonable person carries out any activity
3. Did the breach of duty caused damages?
- reasonable foreseeable damages- expected.
STEP2: CONSIDER WHETHER THE DEFENDANT OWES THE CLAIMANT A LEGAL DUTY OF
CARE
1. ESTABLISHED DUTY SITUATIONS
a. One road user to another (London Passenger Transport Board v Upson)
b. Defendant to rescuer, where the defendant has created a dangerous situation so
that it is reasonable that somebody may attempted rescue (Baker v Hopkins)
c. Driver to pedestrians and passengers (Nettleship v Weston)
d. Referee to sport player (Vowles v Evans)
e. Advocate to client (Arthur J S Hall and Co. v Simons)
Established duties of care do NOT exist in the following situations:
a. Soldier to colleague (Mulcahy v Ministry of Defense)
, b. Fire service to emergency caller (Capital Counties v Hampshire County Council)
2. NOVEL DUTY SITUATIONS
a. Starting point- Donoghue v Stevenson wide rule ( the neighbour principle)
“ you must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour”.
b. Explain how Donoghue v Stevenson ratio was redefined in Capora Industires pic v
Dickman and the others and apply the three- part test for whether a duty of care is
owed. For extra points, note that the court has confirmed in Robinson v Chief
Contable of West Yorkshire Police that where the courts have already determined
that a duty exists it is unnecessary to analyse whether it should exist using the
Capora test. Capora should be used as a framework to analyse whether it is fair and
reasonable that a duty come into existence in law. It will only be used where a novel
situation arises and the law needs to develop (albeit in line with existing authorities)
c. The Caparo test is as follows:
- Is it REASONABLY FORESEEABLE that the defendants actions will affect this
particular claimant ( Bourhill v Young)
- Is there sufficient PROXIMITY OF RELATIONSHIP between the claimant and the
defendant ?
- Is it FAIR, JUST AND REASONABLE to impose a duty? E.g. it may not be fair if the
defendant is a non-profit organisation/acting in a quasi-public capacity (Marc
Rich v Bishop Rock Marine Co Ltd)
Omissions: Is there a duty to act positively?
General rule (Stovin v Wise): there is no liability for pure omissions, and you don’t
owe a duty to the world for doing nothing to prevent harm.
This rules applies if you decide to act despite no duty to do so, even if you act
carelessly-UNLESS you make matters worse (East Suffolk Rivers Catchment Board v
Kent and another).
Exception- Home Office c Dorset Yacht : there is a duty to act positively in cases
where a person has special relationship of control over another ( Smith v
Littlewoods – but this duty does not extended to cover actions of third parties who
are OUTSIDE the defendants control.)
STEP 3: CONSIDER WHETHER THERE HAS BEEN A BREACH OF THIS DUTY OF CARE- APPLY
TWO-STAGE TEST
1. How OUGHT the defendant have behaved? Identify the standard of care expected in
the circumstances;
a. General standard: standard of the REASONABLE PERSON (Blyth v Birmingham
Waterworks)
- This is an objective test (Glasgow Corp v Muir)
- The defendants conduct should be considered in relation to the state of
knowledge at the time of the event only ( Roe v Ministry of Health)
b. Where the defendant is a PROFFESIONAL: the standards of the defendants
profession/a reasonably competent professional in the circumstances (Bolam v
Friern Hospital Management Committee)
, c. Where the defendant is INEXPERIENCED: there is no allowance for inexperience (
Nettleship v Weston)
- E.g. car drivers must meet the standard of a reasonably competent driver, even if
learners (Nettleship). Exception: where the defendant suffers from an
unexpected disability ( Mansfield v Weetabix)
d. Where the defendant is a CHILD: reasonable child of the defendants age (Mullin
v Richards)
2. How DID the defendant behave? Identify whether the defendant fell below the
relevant standard of care;
a. Bolton v Stone : If the RISK OF HARM is particularly small, and neglect is
reasonable, it is justifiable not to take steps to mitigate
But- if the risk of harm is HIGH, one must take such steps (Miller v Jackson)
b. Paris v Stepney Borough Council : If there is a risk of VERY SERIOUS HARM, one
must take appropriate steps to mitigate
c. Latimer v AEC Ltd: consider the COST AND PRACTICABILITY of solutions. If taking
precautions would have been impracticable and incurred great expense, this may
excuse the defendant for not doing so, provided the risk of harm is small.
d. Watt v Hertfordhire County Council: If the defenants actions are in the PUBLIC
INTEREST / have substantial social utility, this may justify the defendant taking
greater risks.
e. Fardon v Haarcourt – Rivington : there is no duty on the defendant to protect
‘fantastic’possibilities.
f. Waugh v James K Allen : the defendant is not liable if his actions were due to a
sudden incapacity.
STEP 4: CAUSATION- DID THE DEFENDANTS BREACH OF DUTY CAUSE THE HARM SUFFERED
BY THE CLAIMANT?
Causation is only established once all three elements are satisfied.
1. FACTUAL CAUSATION
But for test ( Barnett v Chelsea and Kensington Hospital Management
Committee)- actual causation is established if, “ but for the defendants breach,
the claimant would not have sustained the harm”.
Two approaches to applying this test.
o All or nothing approach (standard) – the claimant must show on the
balance of probabilities that the defendant caused the harm (Hotson v
East Berkshire Area Health Authority) .
o Modified test (often employed where multiple causes have together
contributed to the harm)- the claimant must show that the defendants
breach:
1. MATERIALLY CONTRIBUTED to the harm (Bonnington Castings Ltd
v Wardlaw); or
2. MATERIALLY CONTRIBUTED to the RISK of harm (McGhee v
National Coal Board) though recent decision (Sienkiewicz v Greif)
appear to have restricted the application of this second limb only
, to cases where there is scientific uncertainty on causation
(e.g.mesothelioma)
Where the claimants harm has more than one cause:
o If the harm is DIVISIBLE, court will apportion damages accordingly (Holtby v
Brigham and Cowan (Hull) Ltd)
o If the harm is INDIVISIBLE ( more than one party is responsible for the same
harm), the claimant may sue any one defendant for the whole loss- but,
under the Civil Liability (Contirbution) Act 1978, the defendant may seek a
just and equitable contribution from the other liable parties.
2. INTERVENING ACT
Causation can only be established if the chain of causation has not been broken by
an intervening event.
a. Intervening acts by a third party.
- NEGLIGENT acts- only break chain if unforeseeable ( Knight v Johns; Rouse v
Squires)
- RECKESS or INTENTIONAL acts- more likely to break the chain ( Lamb v Camden
London Borough Council), unless foreseeable ( Stansbie v Troman)
- INSTINCTIVE / natural response acts- will not break chain ( Scott v Stepherd)
- Negligent MEDICAL TREATMENT- will not usually break the chain (Rahman
Arearose Ltd)
- Intervening acts by the claimant – will only break chain if entirely
UNREASONABLE in all the circumstances ( McKew v Holland Hannen Cubitts
(Scotland) Ltd; Wieland v Cyril Lord Carpets Ltd)
3. LEGAL CAUSATION
The defendant can only be said to have caused the harm in question if it is not too
REMOTE
a. Remoteness rule: the defendant is only liable for REASONABLY FORESEEABLE
damage ( The Wagon Mound (No.1) ) The application of this rule – authority- Jolley
v Sutton London Borough Council
- Reasonable foreseeability. he court should ask: Is the damage of such a kind that
the reasonable person would have foreseen it? If a reasonable person would not
have foreseen the damage then the claimant cannot recover that damage from
the defendant
- The Wagon Mound rule for remoteness of damage is, then, ‘If a reasonable
person would not have foreseen the damage it cannot be recovered’.
- However, there are two provisos to this rule, which are referred to as:
- the ‘similar in type’ rule; and
- the ‘egg-shell skull’ rule.
b. Similar in type rule ; Hughes v Lord Advocate: it is not necessary to foresee the
precise WAY in which the harm is caused, provided the TYPE OF HARM is reasonably
foreseeable; and
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