Lecture notes

First Class Tort Law Notes

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Module
Tort Law

Institution
Queen Mary, University Of London (QMUL)

Book
Principles of Tort Law

These are all my tort law notes from my second year in university. A total of 155 pages, it is still a lot less than the actual required reading and they scored me a first on my final exam! They contain everything, every chapter and every case that will be covered during the duration of the cours...

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Uploaded on June 6, 2021
Number of pages 155
Written in 2019/2020
Type Lecture notes
Professor(s) Rachael mulheron
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Tort Notes

Duty 1 – General principles governing duty of care

- The framework for negligence: there’s a difference between the existence of a duty of care in the context of
loss caused by physical injury or property damage, and where economic loss or psychiatric injury is caused ->
Lord Rodger: the world is full of harm for which the law furnishes no remedy ->

-> A duty of care is a legal duty imposed on D, by law, to exercise reasonable care and/or skill to avoid the risk
of injury to C -> several points of significance: 1. A duty is imposed upon D (not a legal obligation he has
agreed to

2. the duty is to exercise reasonable care

3. a duty of care is owed by D to either C, or a class of persons of whom C was one

• A brief historical overview:

Early 19th century: Donoghue v Stevenson: recognised only a few cases where a duty of care was to exist:road-
users who injured others, manufacturers towards consumers where the product was dangerous, and occupiers
who invited visitors onto their premises, where there was some hidden danger on those premises -> there was
still no general principle of law

1893: Le Lievre v Gould: Lord Esher resiles from his earlier statement -> ‘What duty is there when there is no
relations between the parties by contract?’

1906: Cavalier v Pope: the privity of contract to substantiate a duty of care

1929: Mullen v AG Barr: ‘where the goods of D are widely distributed throughout Scotland it would seem little
short of outrageous to make the manufacturer responsible to members of the public for the condition of the
contents to every bottle which issues from their works’

1932: Donoghue v Stevenson: 1. a duty of care no longer depended on contractual relations -> 2. A new
category of duty of care was created -> 3. The neighbour principle: a duty of care is owed by D to persons who
are so closely and directly affected by my act that I ought to have them in contemplation as being so affected

1970: Home Office v Dorset Yacht Co: categorization approach (when a new scenario arises, it is necessary to
ask whether it is covered by existing authority) vs the principled approach ( that a single general pricniple
should be applied in all new circumstances to determine the existence of a duty of care -> the latter approach
was favoured

1978: Anns v Merton LBC: the principled approach was endorsed -> gave rise to a 2-stage test: whether the
harm to C was foreseeable and should a duty to care be excluded for public policy reasons? -> if there’s a prima
viacie duty of care, then there will be a duty of care -> the problem with this is the lack of proximity -> the
whole world can be held liable

1990: Caparo Industries v Dickman: the Anns test was disapproved -> a more restrictive view was proposed: 1.
There’s no single or simple formula which would definitively state when a duty of care was owed -> 2. The law
should develop novel categories of negligence incrementally and by analogy with established categories ->

,2009: Mitchell v Glasgow CC: the application of Caparo’s test is not precluded to operate in personal injury as
well as economic loss cases

2013: Woodland v Essex: the incremental approach to the development of law was again endorsed

- The Modern Duty of Care Tests: -> those concepts are said to operate at a high level of abstraction an that
what matters is how, and by reference to what lower-level factors, they are interpreted in practice -> in Caparo,
Lord Bridge held that the requirements of proximity, reasonable foreseeability and policy were labels only and
not capable of precise definition

The test The definition The Source
The Caparo test • Harm to C was actually Caparo Industries v Dickman
foreseen, or reasonably
foreseeable, by D
• The requisite proximity
existed between C and D
• It is fair, just and reasonable
to impose a duty of care
The voluntary assumption of • Applies where D, possessed Hedley Byrne Co Ltd v Heller
responsibility/ relience test of special skill, undertook Partners Ltd
to apply that skill for the
assistance of C, who relied
upon that skill
• An assumption of
responsibility by D towards
C to conduct himself with
due care and/or skill
• A reciprocal relience by C
on D in so conducting
himself
The incremental test Any new or novel duty of care Caparo
scenarios should develop
incrementally, by close analogy
with established categories ->
courts should hug the coastline of
established duties of care

-> the Caparo tri-partite test is considered to be the primary test for novel negligence scenarios involving
personal injuries or property damage -> the test of voluntary assumption of responsibility may be used instead
of, or in conjunction with, the Caparo test -> the incremental test serves primarily as a cross-check

-> the Caparo test has been indicated to have the most prominent role -> whether in the area of pure economic
loss on in personal injury and property damage

-> there are instances where the assumption of responsibility test doesn’t work well -> where D didn’t know of
the existence, let alone the identity, of C, at the time of the allegedly negligent act or omission, then to hold that
D objectively assumed responsibility towards that unknown party, or that D knew, or should’ve known, that C
was relying on his skill, knowledge or expertise, tends to be a highly artificial analysis

-> the tests have sometimes been used in conjunction together -> in some cases of serious personal injury ->
some courts have noted that the various tests are mutually supportive and likely to lead to the same conclusion

,-> Assuming the existence of duty to care: where C sustains personal or property damage, then if C can align
his relationship with D with one of the recognised categories in which a duty of care has, traditionally arisen as
a matter of law, there is no need for C to prove the individual ingredients of the duty of care tests -> if however,
the scenarios giving rise to C’s grievance against D falls outside of the traditional categories, then a legal
analysis of whether a duty of care should attach to D is always called for

• Recognised categories of duty of care:

School and teacher, D, to pupil, C, for his welfare and - a nursery school certainly owes a duty to the child to
educational needs protect him from injury
- where third parties do the harm to the pupils, the
duty of care is novel and not recognised scenario
Road-user, D, towards other road-users - when a person is injured in the course of his
employment, or in a road traffic accident, then it can
be taken for granted that the employer owes a duty of
care to the person who is in his employment
- there is a relationship of proximity between the
employer and his employees, and the driver and other
road users
Employers, D, who cause physical injury to their
employees, C
Transport operator, D, towards passenger C Bus companies owe a duty to their passengers, but not
once they have alighted(descend) at their stop
Healthcare practitioner, D, towards patient C A doctor owes a duty to his patients, which is a single
comprehensive duty covering all the ways in which a
doctor is called on to exercise his skill and judgement
in the improvement of the physical or mental
condition of the patient
Jailers/ custodian, D, towards prisoners, C The duty on those responsible for one of HM’s prisons
is to take reasonable care for the safety of those within
Occupier of premises, D, who invites visitors, C, and This duty of care relationship is now governed by
C is injured from state of the premises statute

• Caveat: certain scenarios in which no duty is owed regardless of the fact that C and D are in a
recognised category of relationship that traditionally does give rise to a duty of care

1. the doctor-patient relationship: case law had limited a doctor’s duty to warn in some scenarios, and insofar
as sterilisation operations are concerned, a doctor’s duty is not to avoid or minimse all adverse
consequences flowing from a failed sterilisation

2. the employer-employee relationship: psychiatric injury incurred by an employee in the workplace does not
automatically give rise to a duty of care on the employer D’s part

The Caparo Test

- Reasonable foreseeability of harm: different tests of foreseeability -> arise at recurrent stages of the negligence
analysis – in the duty of care, breach duty and remoteness of damage stages -> they may closely duplicate each
other -> at duty stage where C suffers from physical injury or property damage, as a result of D’s acts or
omissions, then some injury of that nature is likely to have been a reasonably foreseeable occurence

, -> duty of care stage: widest -> was some type of harm reasonably foreseeable
-> breach stage: narrower -> was the type of accident which befell C reasonably foreseeable, against which D
should have taken some precautionary steps? If reasonable D should not have reasonably foreseen the type of
accident which occurred, then D would not have taken precautionary steps to prevent the accident happening
-> remoteness stage: narrowest -> was the kind or type of harm suffered by C reasonably foreseeable

-> How the test of foreseeability becomes more focused, from duty of care to the latter stages:

• Road user to another road user: the circumstances of the road accident may be so unusual so as to render
the injury to C unforseeable
• Hospitals/ doctors and patients: if the accident suffered by C was so unusual so as to have been
unforeseeable, then no precautionary steps should have been taken by D
• Employer and employees: -“-
• An accident victim and his rescuer: -“-

-> Foreseeability at duty of care stage: D must have either actually foreseen or reasonably foreseen the risk that
hos failure to exercise reasonable care might cause harm of some type to C individually or to a class of persons
of whom C was one. A risk is reasonably foreseeable if it is a real risk, more than a mere possibility

• Some general type of harm: Buxton LJ: the level of certainty required for an outcome to be deemed,
after the event, to have been foreseeable is, to a large extent, a matter of impression -> it must be a real
risk, not a mere possibility -> it must not be fanciful -> the concept of reasonable foreseeability emraced
a wide range of degrees of possibility, from the highly probable to the possible but highly improbable ->
the first limb of the Caparo’s test has not acted as a stringent control mechanism

Urbanski v Patel: Patel, a surgeon, removed the only kidney of Shirley Firman believing that it was an ovarian
cyst. As a result, she had to be placed on dialysis until she could find a kidney. Urbanski, Shirley's father, tried
to donate his kidney to her, but it was rejected. Urbanski brought an action for the losses he experienced from
the removal of his kidney. Wilson found that in the medical world, the donating of a kidney is accepted as a
usual solution to a problem of this type. As a result, Urbanski was acting perfectly reasonably

• C individually, or as one of a class: where C is know to D personally, then C may be an actually
foreseen victim -> where C is unknown to D, then it is sufficient if C was foreseeable as one of a class
of persons whose person or property might be harmed by D’s activities -> because of the requirements
of a ‘limited class of whom C was one’ and a ‘duty attaches when the damage crystallises’, there is no
prospect of D being liable to the whole world, even if there is a foreseeable risk of injury to the general
public

-> Although reasonable foreseeability is an objective test, it is the particular D whose breach caused the injury
to C to whom the test must be applied -> should D have resonable foreseen that a lack of reasonable care and/or
skill on his part might give rise to C’s injury?

Islington LBS v UCL Hosp NHS Trust: the hospital had failed to advise the patient to resume taking warfarin
when her operation was postponed, with the result that she suffered a stroke, which rendered her incapable of
looking after herself and required institutional care funded by her local authority. -> the failure was an
institutional one and not the fault of the secretary -> this case illustrtes how important it is to select the relevant
D carefully

-> Reasonable foreseeability of injury to C is a necessary, but not sufficient, condition to prove a duty of care.
All ingredients of the Caparo test must be met -> even in cases of foreseeable physical injury, proximity may be

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