Class notes

PGDL/GDL (Distinction achieved) - Tort Law

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Course
Tort Law

Institution
BPP University College Of Professional Studies Limited (BPP)

Achieved DISTINCTION (1st class honours) using these notes. Summarises everything you need to know for Tort Law in the PGDL/GDL course. Carefully curated summary notes, aligned precisely with exam specs, comprehensive and also tailored to the specifics of the PGDL/GDL exams. Organised meticulously ...

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Uploaded on April 21, 2024
Number of pages 101
Written in 2023/2024
Type Class notes
Professor(s) Bpp law school
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tort
tort law
pgdl
gdl
bpp

Institution
BPP University College Of Professional Studies Limited (BPP)
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Course
Tort Law

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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?

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