Class notes
Tort law EXAM NOTES
- Course
- Institution
There is total 67 pages and it covers all the topics that you need to know for your exams. Many students exceeded high 2,1 and 1st class.
[Show more]
Seller
Follow
muratkoc
Content preview
The duty of care conceptNegligence is the breach of a duty of care, owed by D to C. It must be established that D
owed C a duty of care. In the majority of cases, the existence of a duty of care is established
by the authorities (Alcock) and the only question is if the defendant is in fact negligent (in
breach of duty).
Testing the Duty of Care
The case of Donoghue v Stevenson was noted as a theoretical basis for the duty of care.
Before this case, the concept of duty of care did not exist within English Law, meaning that a
plaintiff could not bring about a case of negligence which led to many injustices, as seen in
Winterbottom. In the case of Donoghue however, one must understand that the concept of
duty of care was restricted to only a few specific situations.
Donoghue v Stevenson – Third party opened a ginger beer can that had worms inside it. C
was a third party because the beer was bought by a friend. HoL ruled that a general duty of
care existed under the ‘neighbour principle’ and therefore Stevenson should have taken
reasonable care to avoid the snail getting into the can. Lord Atkin argued that rejecting the
neighbour principle would be unjust because it would lead to manufacturers getting away
with sending faulty products to the consumer. He further stated that one must take reasonable
care to avoid acts or omissions which one can reasonably foresee would be likely to injure
their neighbour. The earlier case of Pender introduced the test based on foreseeability but did
not have the support of his fellow judges; Lord Atkin commented on it and stated that the
proposition was ‘too wide’. The case of D v S had three key areas of significance:
1.) Secured independence of tort from contract. This is because the case recognised that a
remedy may be available through the tort of negligence where the ‘privity of contract’
would prevent the consumer from having a contractual claim, as it only allows
remedies to parties to a contract.
2.) The judgement of Lord Atkin recognised a general tort of negligence, not confined to
specific duty situations.
3.) Allowed negligence to emerge as the most flexible of torts; Lord Macmillan said that
the categories of negligence are never closed.
This test failed because it quite simply did not pay enough attention to detailed reasons for
decided cases, it also did not pay enough attention to the relationship between the two parties
while not giving priority to questions of practical impact. Commentators such as Millner
objected to the fact that public policy is inherent to the recognition of a duty of care.
Anns v Merton was a case where the claimants were lessees of flats; the blocks suffered
cracks and C alleged that this was because the foundations were too shallow. developed the
neighbour principle posited by Lord Atkin, whereby a two-part test was created. Lord
Wilberforce’s test is set out as follows:
1.) The neighbour principle – one must take reasonable care to avoid any act or omission
that one may reasonably foresee as likely to cause injury to another individual. A
prima facie duty of care arises here.
2.) IF yes to part 1, then are there any considerations which reduce the duty owed? For
example, a disclaimer of liability or policy reasons.
,The impact of this test was that it elevated the neighbour principle in D v S. Lord Wilberforce
expected this test to apply when any question arose regarding a duty of care in negligence.
But this brought about two key issues, firstly that of the likely expansion of negligence law,
described by Ibbetson as the ‘ocean of liability’. Secondly, the courts were not against
reconsidering established areas under the influence of Anns.
Hill v Chief Constable of South Yorkshire Police – the C’s daughter was the final victim of
a serial killer. C argued that the police owed a duty to her daughter to conduct their
investigation into the murders with reasonable care. C further argued that breaching that duty
has led to the death of her daughter. HoL agreed with the first instance judge and with the
COA that no duty of care was owed, and the action was struck out.
After reviewing the applicable authorities including Anns v Merton and Dorset Yacht v Home
office, Lord Keith outlined two separate reasons why no duty of care could be established in
this case. Either reason would be sufficient in its own right:
1) The first reason relates to lack of proximity between the parties
2) The second relates to policy concerns.
Hills was decided by applying the two-stage test for the existence of a duty of care, under
Anns v Merton. These reasons correspond with the two stages of Anns.
Miss Hill was one of a vast number of female general public who might be at risk from the
killer’s activities but was at no special distinctive risk in relation to them. In the instant case,
the identity of the wanted criminal was at the material time unknown. Therefore, Lord Keith
refers to the police as ‘immune’ from such an action.
This case can be compared with Murphy v Brentwood where the loss was purely economic,
and so the plaintiff could not depend on the Anns test. Thus, this case overruled Anns v
Merton because the council had no duty to safeguard the plaintiff against pure economic
loss, as it was not injury to person or health.
This retreat from Anns was occurring over multiple cases, for example in Parkinson, and the
decisive retreat came in Caparo v Dickman, which is now the current applicable test for
establishing a duty of care. This case entailed an accounting firm, Dickman, who had
wrongly summarised the accounts of a firm that Caparo was looking to invest into and thus
Caparo lost money and was seeking relief. Lord Bridge’s approach was pragmatic in its
nature and the test is as follows:
1.) Foreseeability (the neighbour principle)
2.) Proximity (between defendant and claimant)
3.) Fairness (would it be fair, just and reasonable to find that a duty of care was owed?)
The claim failed because no duty was owed. Further, since the case was of economic loss, a
‘special relationship’ had to be shown between the parties, as explained in Hedley Byrne.
Foreseeability
- First part of the test has to do with reasonably foreseeable harm, this is flexible.
Hartwell - the claimant was on holiday on the Virgin Islands, he was shot by the
police. The officer had a history of violence, he went to look for his ex with his gun,
abandoning his job, and saw her in a bar with another man and started shooting. The
claimant was hit with a stray bullet and claimed for injury. The court decided that
, there is duty of care because there was reasonable foreseeability of harm with this.
Lord Bridge states that there is flexibility when looking at reasonably foreseeable,
even if there is the smallest foreseeability then it is enough for the court.
Proximity
- The claimant of the has the burden of proving duty of care. Proximity means
relationship between the C and D. geographical proximity is also important (DY v.
HO the duty of care extended only to those on the island). Osman v. Ferguson 1993: a
teacher became obsessed with a student and the parents reported it to the police. The
police didn’t really do anything and the teacher attacked the student and killed their
father. The C lost the case as the court established that the police don’t have the duty
of care to protect people from being attacked by criminals. Everett v Comojo LTD
2011: A man was at a nightclub and got attacked by another guest, and he sued the
club. The C won the case as there was proximity established. Proximity also includes
whether the D assumed responsibility: Kent v. Griffiths 2001: C had a respiratory
attack, the doctor called for an ambulance however, they took 30 mins to arrive and
they were sued. The ambulance argued that when they don’t do their job properly,
they should be punished. There was a duty of call established as the ambulance
service answered the phone and thus established a duty of care. The type of harm is
important, personal injury is easier to establish duty of care than lost finances. If C is
part of the same class and the D as there is no special relationship between the C and
D.
- Howarth states that proximity involves factors such as:
o The type of harm
o The relationship between C and D
o If C is part of a class of people, and if so, the size of the class.
- Now an independent existence and acts as a key determinant whether a duty of care
arises.
Fair, just and reasonable
- The third stage required the court to whether it was ‘fair, just, and reasonable’ to
allow the duty of care to be imposed. This is then defined by whether the courts
would then be flooded with cases such as this, if the D could have taken insurance
against the claim and didn’t. Whether the D was acting for the collective welfare -
The Nicholas H; this case was about a charity organisation that inspected a ship to
make sure that it was sea-worthy, the Nicholas H was inspected and said that it was
sea worthy but it wasn’t and it sank. The merchandise on the ship was worth 17.8
million, they got most of it in compensation from contract law, but seek the rest of the
money in tort law. The courts found it wasn’t fair to impose duty of care as they are
acting for the public welfare and if there was a duty of care imposed that could be
detrimental to the organisation. Finally, the last classification is whether the conduct
of negligence in question involves an omission as opposed to an act. For example,
Stovin between the highway authority where they had a power to deal with visibility
obstructions to the land adjacent to the road. There was a bank of land that stopped
people from seeing and caused many accidents. The council had agreed to have the
bank removed but before doing that there was another accident. Did the council have
the duty of care to remove the land obstruction? No there wasn’t any particular duty
to act, the authority had power but not a duty under tort law.
, Dorset Yacht Co is a case where 7 boys working in a youth detention centre on an island
under the supervision of 3 officers. The boys escaped with the yacht and damaged it. C
brought an action for damages against the HO who was in control of the centre on the
grounds that the 3 officers were negligent as they failed to exercise control. This case showed
that D can be liable for C’s crime where he is under an obligation to supervise C and fails to
do so. Lord Diplock said that there is no need to warn another person of a risk of physical
danger to which he is about to expose himself to unless there is some special relationship
between the parties. Main criticism of the two-stage test that it is too easy to pass the test. As
it is not easy to recognise if there is no duty of care, some judges argue that the burden to
prove duty of care falls solely on the claimant.
Kent v Griffiths was a case where C was a pregnant asthmatic and required an ambulance.
She gave them her personal details and informed them that she had said condition.
Ambulance took 38 mins to arrive. C suffered severe issues. C brought an action against the
London Ambulance Service alleging negligence in failing to respond promptly. LAS was
found liable in damages, as they owed the patient a duty of care.
Vowles is a case regarding a rugby player sustaining an injury and the question was whether
the referee had breached his duty of care to the claimant and if the breach had been a cause of
V’s injury. The referee was found to be negligent in his conduct, not to mention that he failed
to apply the law of the game designed for the safety of a player.
Public Authorities
- According to Oliphant, public bodies have become more attractive targets for
negligence actions. This is because they are able to afford the awards of damages,
while their duties and powers opens them up to a wide variety of allegations of
negligence. However, the courts have specifically limited the scope of duties of care
that public authorities owe due to the detrimental impact upon the performance of
public functions.
- The judgement of Hill (the Yorkshire ripper case) provides a prima facie idea that
public policy could prevent liability, such as the fear of defensive policing whereby
the police are more concerned with warding off legal action that actually doing their
job.
o However, it is very clear from this case that public authorities do not have
blanket immunity in tort, because:
They have a duty of care at common law if the applicable critieria
(Caparo) is fulfilled.
Statutory duties: all public authorities are obliged to act compatibly
with Convention rights, and also statutory powers is a conferral of
permission on the public authority to exercise powers.
- The case of Robinson narrowed down the Caparo test of establishing Duty of Care.
Significant changes were made to the law of that police cannot be sued in negligence
as a result of failure in their duties. Where a third party is injured or has suffered
damages due to negligence of police officer, the police would be liable, if the damage
or injury caused to a third person was reasonably foreseeable. Appellant was a 70 year
old lady who was injured while passing when she was knocked down to ground when
two policemen were trying to arrest a drug dealer. The Court of Appeal found that
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller muratkoc. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $26.42. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
53068 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now