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Tort Law Lecture Notes
Lecture notes study book Tort Law:Text Cases & Mater P of Jenny Steele - ISBN: 9780199248858, Edition: New title, Year of publication: -
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Wednesday, January 16, 2019CYCLE
TERM
DUTY OF CAR
Donoghue v Stevenson: most recognized case in legal histor
•Bottle of Ginger Beer with a decomposed snail inside
•No contractual arrangemen
•Is the manufacturer of the bottle of ginger beer liable to the person who consumed it
This brought in 2 important things in the law of tort and negligence
1. Manufacturer can be liable to the consumer. So, if you buy something and it causes you harm then
from this case the manufacturer can be liable to you.
2. Neighbour principle:
• Foreseeabilit
• Proximit
Who is my neighbour was the question aske
Lord Atkin page 580: “ rule that you are to love your neighbour becomes in law, you must not injure
your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must
take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour. Who, then, in law is my neighbour? The 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 or omissions which are called in question
Duty of care looks at people who are closely connected to you in some way (i.e. neighbourhood),
persons who are so closely and directly affected by my act; When looking at a duty of care needed to
look at there foreseeability and proximity (come from the neighbourhood principle
Whether A has a duty to B; neighbour principle shows that there must be these 2 concepts
(foreseeability + proximity
Anns v Merton London Borough Council (no longer good law): changed things signi cantl
For there to be a duty of care must have
1. Proximity or neighbourhood (foreseeability) (had it in one individual element) so that it may be likely
to cause damage to the latte
Need proximity and foreseeability for the rst element.
2. Policy consideration:“any considerations which ought to negative or to reduce or limit the scope of the
duty”: suggests that (i) the C has to prove (ii) the D has to nd factors that limits the scope of the duty
(i.e. anything that limits the scope of the duty
• This seems to look like policy which is key term in negligence.
Problem with this was that what was happening after Anns, in trying to negative/reduce the scope of duty
you had to prove the duty rst and then negate it; it opens up negligence signi cantly up to allow more
cases to enter it
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You had to rebut the presumption of negligence which meant it would end up being a very wide tort
Because of the second stage in Anns, it meant that tort went over it’s usual boundaries and invaded
contract, third party contracts, a lot of different torts. It mean that you had to be very careful because it
meant that you would be sued very easily. The second test of Anns was very dif cult
Governors of Peabody Donation Fund v Sir Lindsay Parkinson: court criticized the Anns test:
Lord Keith stated: “so in determining whether or not a duty fo care of particular scope was incumbent on
a defendant it is material to take into consideration whether it is just unreasonable that is should be so
• Rather than negating an action because of considerations
• This turned the just and reasonableness (part 2 of Anns) on its head; instead of the D having to rebut a
claim by nding considerations in this case, the courts said you have to nd considerations which
make it fair just and reasonable, so it switched it aroun
Caparo v Dickman: duty of care owed by auditors to shareholders or potential investor
Legal Issue: do auditors owe a duty of care to shareholders or potential investors? Under Anns it would
seem likely because all the C would have to do was prove foreseeability and proximity the D would have
to rebut this by nding factors against granting a duty of care.
HELD: No, there is not duty fo care owed by auditors to potential investors, auditors having to keep an
eye on the nances of shareholders for future investors is a wide scope.
Auditors having to ensure that future investor’s nances are okay is too wide a scope and this is where the
3 stage Caparo v Dickman test comes in: says
1. Foreseeability of damag
2. Proximity: Separate proximity/ neighbourhood from foreseeability, making them separate (puts them
in their own factors).
3. Fair, Just and Reasonable: The court said that the situation should be one where the court considers it
to be fair just and reasonable policy; what are the policy reasons for granting a duty of care rather
than against granting a duty of care. As in Peabody it turns the nal factor on its head (i.e. its for C
the prove that its fair just and reasonable to nd a duty of care, not for the D to rebut a duty of care
factor
Lord Bridge: “in addition to the foreseeability of damage, necessary ingredients in any situation giving
rise to a duty of care are that there should exist between the party owing the duty and the party to whom
it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the
situation should be one in which the court considers it fair, just and reasonable that the law should
impose a duty
The courts post Caparo have been implementing this by looking at the foreseeability of damage and the
prolixity between the parties and whether it’s fair just and reasonable. But the court has been doing so
wrongly as has been held in Robinson.
The Caparo elements have been doubted by Robinson, in that in Caparo the judge didn’t just look at these
3 elements and said its hard to categorize this and nd a test that works for everyone; the judge almost
said that although these are the 3 elements they shouldn’t be used in every situation yet the courts had
been using them in every situation
Interpretation of Caparo Element
1. Foreseeability of Damage
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Because we had foreseeability in Donoghue these cases still provide an good analysis of what
foreseeability i
Foreseeability is not required to an individual speci c person. It’ applied to the world at large so that if I
am driving my car dangerously I might hit anyone on the road or pavemen
Bolton v Stone: cricket club, ball had gone out o the ground cricket ground 6 times out of 28 years, and
had never injured anybody. But again it got hit out and had injured someone on the 7th occasion and that
person sued. The answer was clearly not foreseeable. It’s so exceptional that there was no foreseeability
there
Roe v Ministry of Health: 2 patients in hospital for operations of a minor character and both received
spinal anaesthetic and both developed paraplegia they claimed damages against ministry of health and the
trustees. The drug was stored in glass ampules and it developed minute cracks which meant the 2
substances combined is dangerous
HELD: Not foreseeable because no-one could have foreseen that these glasses would have had these
cracks in them would have been hard to nd any form of that ther
2. Proximity: as it was encompassed before Caparo in the element of foreseeability a lot of the opinion is
that proximity didn’t have much to do pre-Caparo now it’s an important element.
Sutherland v Heyman: court gave 4 types of proximit
(i) geographical: if theres proximity on how close you are,
Is not necessarily a deciding factor (ex: doctor giving you consultation on line might not be close to you
might be across the country yet still owe you a duty of care despite them not being close to you
(ii) relationa
(iii) causa
(iv) temporal: proximity in tim
These types of proximity don’t have to be overcome but rather need to be looked a
Bourhill v Young: no real prolixity her
Motorcyclist crash resulting in his death. A lady had heard this crash suffered from severe psychological
challenges because of it and had a miscarriage and in this case there’s no proximity she only heard it, it
was so far away.
3. Fair, just and reasonable (Policy): pre-Robinson, the courts were looking at fair just and reasonabless in
nding a duty of care or not nding a duty of care (post Anns); is it fair just and reasonable to impose a
duty of care.
This is when a lot of the police and public authority cases have come about and where policy is most
prevalent. It involves a lot of dif cult case law whereby you do feel sympathy for the C (i.e. in the
Michael case the C was killed despite calling 999; it mis-categorization the call as non-urgent resulting in
the C being killed
Hill: Yorkshire ripper wasn’t caught in time and resulted in him killing a law student.
Van Colle and another v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex
Police (Secretary of State for the Home Department and others intervening) [2008] (joint appeal on 2
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separate issue; the Smith part is relevant): Steven Smith had threats made against him by his former
partner this continued with numerous death threats and the of ces didn’t properly investigate. The police
visited him and didn’t make any notes when they were being told by the threats. the police seemed to be
being negligent. Later Smith was attacked by the partner and suffered brain damag
HELD: claim against police failed; the reason being that if you subjected the police to being sued for
failing to investigate your going to lead to “defensive policing”: the police are more concerned with not
being sued for negligence rather than pursuing crime. Policing is done on instinct, the concern was that if
you put liability on the police for failing to catch a criminal is that you are going to end up with the police
more concerned with lling out forms and actually not being found guilty of negligence than actually
going out and catching criminals. another overarching theme in policing cases is around money; if you
make police ll out more forms and you start subjecting the police to being sued and these people can
claim lots of money from this, who is going to be paying for this? the police are funded by the public;
putting public funds into lawsuits and defences and also having to payout lots of money to families of
victims. Often you will nd policy about money involving the public fund or the public purse how much
do you want the public to be paying for these lawsuits. The court in Smith recognized that this is
uncomfortable; “a principle of public policy that applies generally may be seen to operate harshly in come
cases
Those are indeed the cases as Lord Stein put it “the interests of wider community must prevail over those
of the individual” Although you, may feel sympathy for a victim as in Michael (the police had mis
communicated a 999 call), in Hill they didn’t do enough to catch the Yorkshire ripper. But if you subject
the police to a lot of claims you will have a lot of defensive policing which isn’t adequate and would be
end up being paid for by the public. There’s is this dif culty with policy and often you will nd that its
subjective; its up to the belief of the judge at the time; whether they think its fair just and reasonable it
will be down to the individual judge to make that decision (i.e. subjective element
Alcock v Chief Constable of South Yorkshire Police (1991): if you open up negligence to a whole new
host of claims you could have oodgates opening; if you open it to one host of claims you might get a
massive claim that comes with i
As in Alcock if you open up a claim to allow people that watch a tragedy on TV to bring a claim which
means that anyone who ever sees anything bad on TV you will have a lot more claims which the court
couldn’t handl
This could end up putting an unreasonable burden on the person who may have committed that tort. If
you subject someone to 10,000 claims and you have to pay money to each one thats going to mean a lot
of damage so fair just and reasonable is often about oodgates and if you open negligence to a new host
of claims people will start suing massively. There was already a problem in personal injury law
surrounding on whether in the UK there is this issue of over-suing
Ambulance chasing lawyers: problem in terms of what some may believe that the UK is allowing too
many people to su
In negligence, there is always going to be this balance to be had in allowing tons of cases and opening up
of the duty of care you could end up with oodgates and having a very overly personal injury focused
society
Marc Rich v Bishop Rock Marine (1996): ship and the classi cation society (when a ship is being built
this society will look at it and determine whether the ship is sailable, will it sink are there any major
problems). The society doesn’t get claimed against if a ship sinks or there is a problem with the ship. But
in this case there was a claim against the society
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