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Summary Tort Law Notes
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In-depth Tort Law notes split by topic. The notes were used during finals.
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TORT LAW FINALS NOTESTopics:
● Trespass to the person and negligence (duty)
○ Negligence (duty of care)
■ General
■ Omissions, acts of third parties and public authorities
○ Trespass to the person
○ Theory: what is tort law all about?
● Negligence: Breach
○ Nervous Shock
○ ‘Wrongful life’, ‘wrongful conception’ and ‘wrongful birth’
○ Breach of duty
● Damage, causation and remoteness
○ Damage
○ Causation
○ Remoteness
● Negligence and Economic Loss
○ Economic Loss
○ Negligent Statements and Provision of Services
○ Negligent damage to property
○ Relationship to contract- theory question best dealth with in JC notes search up
‘relationship to contract’
● Product liability and defences
○ Strict liability
○ Negligence
○ Defences
■ Contributory negligence
■ Exclusion and Volenti non fit injuria
■ Illegality
● Joint and Vicarious liability
○ Relationship between the defendant and the tortfeasor
○ Relationship between the conduct and the employment
○ Independent contractors and agents
○ Vicarious liability and statutory torts
○ Joint liability
● Rylands v Fletcher and nuisance
○ Private nuisance
■ Who can sue?
■ Who is liable?
○ Public nuisance
○ The rule in Rylands v Fletcher
● Liability for defective premises
, ○ Occupiers’ Liability
■ To visitors
■ To non-visitors
○ Liability of non-occupiers
● Remedies, Defamation and Economic Torts
○ Remedies
■ Nominal damages
■ Aggravated damages
■ Punitive damages
■ Damages for personal injury
■ Damages for non-pecuniary loss
■ Damages for pecuniary loss
■ Damages for death
■ Remedies in property torts
Tutorial 1- Negligence Duty of Care
● The notion of duty of care is designed to establish a nexus between the claimant and the
defendant and, likewise, any potential liability that may arise. There are two limbs to the
duty of care test. The first is duty in law, which questions the extent to which the law
allows the claimant to recover losses for the damage caused (procedural).
● The second is duty of fact (i.e. was the damage reasonably foreseeable?).
● Duty of fact was initially considered in Donoghue v Stevenson, in which the claimant
successfully sued the defendant for negligence after finding a snail in the remnants of
the bottle. Here, Lord Atkin espoused the neighbour test- the modern test for negligence-
whereby individuals must ‘take reasonable care to avoid acts or omissions which you
can reasonably foresee to injure your neighbour… [i.e.]someone ‘closely’ and ‘directly’
affected by the act’.
○ Interesting that Donoghue v Stevenson is so general and broad rather then being
specific categories. This could pose problems regarding omissions for example-
would these be an infringement of a defendant’s duty of care?
● Note that the Caparo test is intended to be used for unique cases, not already
well-established situations!!!
● The modern test for establishing duty of care is Lord Bridge’s three-stage test in Caparo
(Caparo v Dickman). In Caparo v Dickman, Caparo brought a claim against their auditors
for allegedly negligent auditing of the target company- suggesting that they had made a
profit, when in reality there was a £400,000 loss. It was found that the auditors owed no
duty of care to the claimant as the ‘negligent misstatement’ was not given for neither a
‘specific purpose’ or to a ‘known recipient’. It was not meant to inform additional
investment decisions.
● The three limb Caparo test is as follows:
○ Foreseeability- is the harm to the claimant foreseeable?
○ Proximity- is there a relationship of proximity between claimant and defendant?
, ■ Is there a definition of proximity?- Lord Oliver in Alcock v CC of South
Yorkshire suggested that proximity hinges on whether it is reasonable in a
given situation to impose liability.
○ Fairness- Is it fair, just and reasonable to impose a duty in this situation?
● How is Caparo different from Anns v Merton?
○ Anns advocates for prima facie duty of care- this was rejected in Caparo v
Dickman
○ Separation of foreseeability and proximity- Caparo requires more than just
foreseeability regarding harm
○ Two-stage test for duty of care:
1. Is there sufficient ‘proximity or neighbourhood’ between C and D such that in
D’s reasonable contemplation, carelessness on his part might cause damage
to C?
2. Were there any considerations which ought to ‘negative, or to reduce or limit’
that duty?
Important to note that Caparo only applies to novel situations!! Are there any
precedents?- then use those cases
In fact, Lord Bridge has revealed that, rather than being a test, Caparo was intended to be used
as a framework for the relevant considerations.
Is there any conflict moving forwards with Caparo?
● Michael v Chief Constable of South Wales
○ Case with police officers
○ A woman who was being abused called the abuse- it was classified as urgent
and then subsequently downgraded- she died.
○ Did the police owe a duty of care to the deceased?
■ It was held that the police owed no duty of care- no negligence.
■ Despite the fact that the defendant (the police) is a public authority, it is a
principle of English law that liability is not placed for the actions of third
parties. Thus, this was effectively a case of pure omission
○ When are public authorities liable?
■ If they created the danger?
■ Was the PA in a position of control over the third party?
■ Has the PA assumed a responsibility over the claimant?
○ In this case, there was no assumption of responsibility- attendant only said that
the call would be passed onto the relevant persons- there was no indication
made about the time they would arrive.
● Should the omissions rule apply to public authorities?
○ Lord Kerr dissented in Michael v Chief Constable of South Wales- idea that
public authorities by virtue of their position inherently requires them to assume a
duty of care. They are not autonomous in the same sense that an ordinary
individual would be. This is particularly the case for police officers who are
designated to protect the public from harm.
○ However, Lord Toulson espoused the opposite.
, ■ Idea that although we want to prevent domestic abuse, we don’t want
resources being diverted.
■ Don’t want to open the floodgates by enabling the public to bring a range
of claims- this would inadvertently lead to police resources being
depleted. Also means that the police will have to be extra cautious
■ The police owe a duty to the general public- private law duty of care
should remain inapplicable
What role should public policy play in the duty of care decisions?
● Robertson
○ There are numerous policy factors that the courts must evaluate prior to
establishing duty of care.
○ Economic consequences
○ Does it widen the number of defendants that can bring a claim?
○ Does it impact a public authorities other duties?
○ Justiciability
○ Is there a moral requirement?
● Stapleton
○ Suggests that courts should examine public policy considerations when deciding
cases regarding duty of care. He suggests that this is an ‘fairer’ and ‘more
neutral’ test than Caparo, which can inherently lead to biases in favour of the
claimant or defendant.
● Lord Neuberger
○ Both tort law and its subset negligence is an ‘innately incoherent field’. As such,
examining cases on the basis of public policy is preferable to utilising undefined
principles. This is apparent from the rapid change in the duty of care test from
Donoghue, Anns, Caparo, Murphy. Also the exceptions provided for public
authorities
○ Cases which highlight the court’s willingness to utilise public policy as a grounds
for a decision:
■ White v Jones
■ Chester v Ashfar
■ Fairchild
○ Fair, Just and Reasonable in Caparo in novel cases- surely this is policy-based?
○ Tort is conflated with public policy
● The extent to which we should consider human rights is contentious. Lady Hale was in
favour of considering ECHR rights in Michael v South Wales Police.
● Duty in law- typically easy to deal with except in the following circumstances:
○ ‘Omissions
○ Public authorities
○ Psychiatric injury
○ PEL cases
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