TORT LAW
Table of Contents
Tort of negligence & duty of care intro.....................................................................................................2
How to determine whether a duty of care is owed....................................................................................3
Duty of care – liability for omissions.........................................................................................................7
Duty of care – liability for acts of third parties..........................................................................................8
Public bodies and duty of care..................................................................................................................9
Introduction to breach of duty................................................................................................................11
Standard of care.....................................................................................................................................11
Establishing breach.................................................................................................................................13
Common practice in the context of professional negligence...................................................................17
Introduction to causation........................................................................................................................18
Factual causation: the but for test..........................................................................................................18
Factual causation where the but for test cannot be satisfied...................................................................20
Apportionment and multiple sufficient causes........................................................................................21
Legal causation.......................................................................................................................................23
Remoteness............................................................................................................................................25
Consent..................................................................................................................................................28
Defences: contributory negligence..........................................................................................................30
Defences: illegality.................................................................................................................................33
Defences: necessity.................................................................................................................................34
Remedies................................................................................................................................................35
Employer’s primary & vicarious liability..................................................................................................37
Employers’ primary liability....................................................................................................................37
Vicarious liability....................................................................................................................................41
Identifying an employment relationship.................................................................................................45
Intro to psychiatric harm........................................................................................................................48
Primary victims.......................................................................................................................................50
Secondary victims...................................................................................................................................52
Beyond primary and secondary victims...................................................................................................55
Pure economic loss.................................................................................................................................56
Exceptions to general rule for pure economic loss...................................................................................58
Pure economic loss caused by a negligent statement..............................................................................59
Private nuisance: preliminaries...............................................................................................................62
Private nuisance elements......................................................................................................................65
Private nuisance: defences and remedies................................................................................................67
,Public nuisance.......................................................................................................................................71
The rule in Rylands v Fletcher..................................................................................................................74
Trespass to land......................................................................................................................................78
Introduction to occupiers’ liability and the duty of care owed under the Occupiers’ Liability Act 1957.....81
Occupiers’ Liability Act 1957: breach to defences....................................................................................85
Occupiers’ liability Act 1984....................................................................................................................89
Occupiers’ liability and exclusion clauses................................................................................................92
Product liability under Consumer Protection Act 1987 Part I...................................................................94
Product liability under the Consumer Protection Act 1987: Part II...........................................................97
Negligence and defective products.........................................................................................................99
Tort of negligence & duty of care intro
Intro
- Negligence represents the most significant tort in practice
o In about 80 years, has almost developed a stranglehold on law of civil obligations
- Legal meaning of negligence is distinguishable from what a lay person might refer to as mere
carelessness / recklessness
o Negligence is the breach of a legal duty to take care by the defendant resulting in loss /
damage to the claimant
Elements of a claim in negligence
- To establish a claim in negligence you must consider these elements:
o Loss / damage
Loss / damage of a recognised kind sustained by claimant
o Duty
Existence of a duty of care owed by defendant to claimant
o Breach
Breach of that duty by defendant
o Causation
Proof that the breach caused the damage (both in law and in fact)
o Remoteness
Proof that the damage suffered was reasonably foreseeable
Not too remote
o Defences
Defendant may have one or more valid defences to the claim
Types of loss
- In practice, usually start with the question of loss / damage
o Type of loss is critical as it can determine type of test used to determine duty of care
- Common losses include:
o Physical / bodily injury
Examples
Broken arm
Skull fracture
o Psychiatric harm
Generally this must be something beyond emotional distress
Must be a recognised mental illness (ex reactive depression)
, o Property damage
Ex:
Damage to your car
Damage to the roof of your house
o Consequential economic loss (economic loss which results from personal injury / damage to
property)
Ex:
Loss of wages when you could not attend work due to a broken arm
Loss of revenue when a shop has to close due to roof damage
o Pure economic loss
Ex:
Lost savings due to an investment based on bad advice
Harm to your business’ reputation due to the negligent design of an
unpopular advert
How to determine whether a duty of care is owed
Intro question
- ‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour’
– Lord Atkin, Donoghue v Stevenson [1932] AC 562
o Who, in law, is your neighbour?
Is a duty of care owed?
- A defendant cannot be liable for carelessness unless the law requires them to be careful in the first
place
o Courts reflect this by using the concept of a duty of care
Donoghue v Stevenson [1932] AC 562
- First case to attempt to establish a test for duty of care
o Useful starting point when seeking to understand how and when a Court imposes a duty
- Facts:
o Claimant’s friend bought her a ginger beer which came in an opaque bottle, in a café
o After drinking some of the beer, to the claimant’s horror, when the remainder was poured,
it was found to contain a decomposed snail
o Claimant claimed she was made ill by this but was unable to sue the café owner
No contract between them as her friend had bought the ginger beer
o Instead, she sued the manufacturer
- Held:
o House of Lords, by a narrow majority, allowed her to succeed
Decided that a manufacturer owed a duty to the ultimate consumer
o This was of great importance, since prior to this case manufacturers had only been held
liable to consumers in limited situations
Neighbour principle
- Of particular significance was speech of Lord Atkin, in which he developed his famous neighbour
principle
o Attempted to create a test which could be used by the courts when considering if a duty of
care should be imposed
o Test used the concepts of foreseeability and proximity
o Test is old law and has been replaced by Caparo Industries v Dickman [1990] 2 AC 605 (HL)
, - ‘in English law there must be, and is, some general conception of relations giving rise to a duty of
care
- The rule that you are to love your neighbour becomes in law, you must not injure your neighbour
o And the lawyer’s question, who is my neighbour? Receives a restricted reply
- You must take reasonably care to avoid acts / omissions which you can reasonably foresee would
be likely to injure your neighbour foreseeability
- Who, then, in law is my neighbour?
o Answer seems to be persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind
to the acts / omissions which are called in question proximity
Caparo v Dickman
- Following Donoghue, during 1970s and 80s a duty of care was imposed in many new situations
o Greatly expanded the reach of tort of negligence
- In Caparo the court brought this expansive approach to an end
o Case set out the current 3 stage test for establishing a duty of care where there is no
precedent
o Court suggested that it would be unwise to look for a magic formula for a general test for
the existence of a duty of care
Instead, a cautious incremental approach based on existing authority was
recommended
The 3 stage test
1. Foreseeability of harm
o Test is objective
It is not what the individual defendant foresaw but what the reasonably person
would be expected to foresee
o It must be reasonably foreseeable that the defendant’s lack of care would cause the
claimant harm
2. Proximity
o There must be a relationship of sufficient closeness between the claimant and defendant
3. It must be fair, just and reasonable to impose a duty
What does analogy with established authority mean?
- In many cases there will be established authority (precedent) for a duty of care
o Ex: road user to road user
o In those situations, a duty of care will be owed and there is no need to apply a test
- It is normally only a novel type of case (where there is no established duty) that the courts need to
decide whether a duty of care should be recognised
o Very rare in practice
o Following Caparo, approach in novel situations is to develop incrementally and by analogy
with established authority
- Drawing of an analogy depends on identifying legally significant features of earlier authorities
(previous cases why was a duty found / not found?)
- In many cases significant features are connected with relationship between claimant and defendant
(their proximity)
o This focus on proximity will remain important as a result of using earlier authorities
o Example: a principle clear in authorities is that there is proximity where a defendant
assumed responsibility for the claimant
What about fair just and reasonable?
Table of Contents
Tort of negligence & duty of care intro.....................................................................................................2
How to determine whether a duty of care is owed....................................................................................3
Duty of care – liability for omissions.........................................................................................................7
Duty of care – liability for acts of third parties..........................................................................................8
Public bodies and duty of care..................................................................................................................9
Introduction to breach of duty................................................................................................................11
Standard of care.....................................................................................................................................11
Establishing breach.................................................................................................................................13
Common practice in the context of professional negligence...................................................................17
Introduction to causation........................................................................................................................18
Factual causation: the but for test..........................................................................................................18
Factual causation where the but for test cannot be satisfied...................................................................20
Apportionment and multiple sufficient causes........................................................................................21
Legal causation.......................................................................................................................................23
Remoteness............................................................................................................................................25
Consent..................................................................................................................................................28
Defences: contributory negligence..........................................................................................................30
Defences: illegality.................................................................................................................................33
Defences: necessity.................................................................................................................................34
Remedies................................................................................................................................................35
Employer’s primary & vicarious liability..................................................................................................37
Employers’ primary liability....................................................................................................................37
Vicarious liability....................................................................................................................................41
Identifying an employment relationship.................................................................................................45
Intro to psychiatric harm........................................................................................................................48
Primary victims.......................................................................................................................................50
Secondary victims...................................................................................................................................52
Beyond primary and secondary victims...................................................................................................55
Pure economic loss.................................................................................................................................56
Exceptions to general rule for pure economic loss...................................................................................58
Pure economic loss caused by a negligent statement..............................................................................59
Private nuisance: preliminaries...............................................................................................................62
Private nuisance elements......................................................................................................................65
Private nuisance: defences and remedies................................................................................................67
,Public nuisance.......................................................................................................................................71
The rule in Rylands v Fletcher..................................................................................................................74
Trespass to land......................................................................................................................................78
Introduction to occupiers’ liability and the duty of care owed under the Occupiers’ Liability Act 1957.....81
Occupiers’ Liability Act 1957: breach to defences....................................................................................85
Occupiers’ liability Act 1984....................................................................................................................89
Occupiers’ liability and exclusion clauses................................................................................................92
Product liability under Consumer Protection Act 1987 Part I...................................................................94
Product liability under the Consumer Protection Act 1987: Part II...........................................................97
Negligence and defective products.........................................................................................................99
Tort of negligence & duty of care intro
Intro
- Negligence represents the most significant tort in practice
o In about 80 years, has almost developed a stranglehold on law of civil obligations
- Legal meaning of negligence is distinguishable from what a lay person might refer to as mere
carelessness / recklessness
o Negligence is the breach of a legal duty to take care by the defendant resulting in loss /
damage to the claimant
Elements of a claim in negligence
- To establish a claim in negligence you must consider these elements:
o Loss / damage
Loss / damage of a recognised kind sustained by claimant
o Duty
Existence of a duty of care owed by defendant to claimant
o Breach
Breach of that duty by defendant
o Causation
Proof that the breach caused the damage (both in law and in fact)
o Remoteness
Proof that the damage suffered was reasonably foreseeable
Not too remote
o Defences
Defendant may have one or more valid defences to the claim
Types of loss
- In practice, usually start with the question of loss / damage
o Type of loss is critical as it can determine type of test used to determine duty of care
- Common losses include:
o Physical / bodily injury
Examples
Broken arm
Skull fracture
o Psychiatric harm
Generally this must be something beyond emotional distress
Must be a recognised mental illness (ex reactive depression)
, o Property damage
Ex:
Damage to your car
Damage to the roof of your house
o Consequential economic loss (economic loss which results from personal injury / damage to
property)
Ex:
Loss of wages when you could not attend work due to a broken arm
Loss of revenue when a shop has to close due to roof damage
o Pure economic loss
Ex:
Lost savings due to an investment based on bad advice
Harm to your business’ reputation due to the negligent design of an
unpopular advert
How to determine whether a duty of care is owed
Intro question
- ‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour’
– Lord Atkin, Donoghue v Stevenson [1932] AC 562
o Who, in law, is your neighbour?
Is a duty of care owed?
- A defendant cannot be liable for carelessness unless the law requires them to be careful in the first
place
o Courts reflect this by using the concept of a duty of care
Donoghue v Stevenson [1932] AC 562
- First case to attempt to establish a test for duty of care
o Useful starting point when seeking to understand how and when a Court imposes a duty
- Facts:
o Claimant’s friend bought her a ginger beer which came in an opaque bottle, in a café
o After drinking some of the beer, to the claimant’s horror, when the remainder was poured,
it was found to contain a decomposed snail
o Claimant claimed she was made ill by this but was unable to sue the café owner
No contract between them as her friend had bought the ginger beer
o Instead, she sued the manufacturer
- Held:
o House of Lords, by a narrow majority, allowed her to succeed
Decided that a manufacturer owed a duty to the ultimate consumer
o This was of great importance, since prior to this case manufacturers had only been held
liable to consumers in limited situations
Neighbour principle
- Of particular significance was speech of Lord Atkin, in which he developed his famous neighbour
principle
o Attempted to create a test which could be used by the courts when considering if a duty of
care should be imposed
o Test used the concepts of foreseeability and proximity
o Test is old law and has been replaced by Caparo Industries v Dickman [1990] 2 AC 605 (HL)
, - ‘in English law there must be, and is, some general conception of relations giving rise to a duty of
care
- The rule that you are to love your neighbour becomes in law, you must not injure your neighbour
o And the lawyer’s question, who is my neighbour? Receives a restricted reply
- You must take reasonably care to avoid acts / omissions which you can reasonably foresee would
be likely to injure your neighbour foreseeability
- Who, then, in law is my neighbour?
o Answer seems to be persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind
to the acts / omissions which are called in question proximity
Caparo v Dickman
- Following Donoghue, during 1970s and 80s a duty of care was imposed in many new situations
o Greatly expanded the reach of tort of negligence
- In Caparo the court brought this expansive approach to an end
o Case set out the current 3 stage test for establishing a duty of care where there is no
precedent
o Court suggested that it would be unwise to look for a magic formula for a general test for
the existence of a duty of care
Instead, a cautious incremental approach based on existing authority was
recommended
The 3 stage test
1. Foreseeability of harm
o Test is objective
It is not what the individual defendant foresaw but what the reasonably person
would be expected to foresee
o It must be reasonably foreseeable that the defendant’s lack of care would cause the
claimant harm
2. Proximity
o There must be a relationship of sufficient closeness between the claimant and defendant
3. It must be fair, just and reasonable to impose a duty
What does analogy with established authority mean?
- In many cases there will be established authority (precedent) for a duty of care
o Ex: road user to road user
o In those situations, a duty of care will be owed and there is no need to apply a test
- It is normally only a novel type of case (where there is no established duty) that the courts need to
decide whether a duty of care should be recognised
o Very rare in practice
o Following Caparo, approach in novel situations is to develop incrementally and by analogy
with established authority
- Drawing of an analogy depends on identifying legally significant features of earlier authorities
(previous cases why was a duty found / not found?)
- In many cases significant features are connected with relationship between claimant and defendant
(their proximity)
o This focus on proximity will remain important as a result of using earlier authorities
o Example: a principle clear in authorities is that there is proximity where a defendant
assumed responsibility for the claimant
What about fair just and reasonable?
