Future Magic Circle Trainee. Total BPP Adapt Tort Law notes. Includes all adapt materials, relevant cases (with summaries), legislation and precedents. All preparation that is needed for both workshop preparation and exams for Tort Law.
WORKSHOP I - INTRODUCTION TO TORT OF NEGLIGENCE & DUTY
OF CARE
Introduction
- Negligence = most significant tort in practice
- Loss or damage - of a recognised kind sustained by claimant
- Duty - existence of duty of care owed by defendant to claimant
- Breach - breach of that duty by the defendant
- Causation - proof that breach caused damage (both in law & fact)
- Remoteness - proof that damage suffered was reasonably foreseeable i.e. not
too remote
- Defences - defendant may have 1+ valid defences to claim
HOW TO DETERMINE WHETHER A DUTY OF CARE IS OWED
- Donoghue v Stevenson
- Snail in bottle - established duty of care from manufacturers to ultimate
consumers - significant
- Lord Atkin: foreseeability: ‘you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour’
- Atkin: proximity: persons who are so closely & 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’
- Caparo v Dickman
- Ended the expansive approach: 3 stage approach for establishing duty of care
(where there is no precedent)
- Court suggested unwide to look for magic formula for general test for existence
of duty of care
- Cautious, incremental approach based on existing authority = recommended
3 stage approach
1. Foreseeability of harm
- Stage is objective - not what individual defendant foresaw, but what reasonable
person would be expected to foresee
- Must be reasonably foreseeable that defendant’s lack of care would cause
claimant harm
2. Must be relationship of suficient proximity between claimant & defendant
3. Must be fair, just & reasonable to impose a duty
- Courts have indicated that starting point when determining if there is duty of care in
novel case = use Caparo approach & develop scope of duty of care incrementally, by
analogy with established authorities
,What does analogy with established authority mean?
- In many cases there is precedent - no need to apply any test
- Novel type of case where there is no established duty - courts need to decide whether
duty of care should be recognised
- Drawing analogy: depends on identifying legally significant features of earlier authorities
i.e. those in previous cases, why a duty was found/not found
- Many cases: significant features = connected with relationship between claimant &
defendant - i.e. proximity
- Principle clear in authorities is that there is proximity where a defendant
assumed responsibility for the claimant
Fair, just & reasonable
- Involves broad analysis - court will consider (expressly or implicitly) the impact of a
decision socially, politically & economically on society as a whole
- Policy considerations:
- Floodgates
- Fear that to allow one claim would open legal floodgates leading to deluge of
claims ‘flooding’ the courts
- Important in development of law re duty to avoid causing psychiatric harm
- Crushing liability
- Concern to finding a party liable where the result would be that the party would
need to pay damages out of all proportion to wrong committed
- Insurance
- Defendant more likely to be liable if they are (or should have been) insured, bc
will have means to pay damages
- Connected loss distribution argument that finding an insured party liable
effectively spreads cost of compensation through society
- Deterrent
- Imposing liability as a deterrent for undesirable behaviour/as a way of
maintaining high standards
- Concern that imposing liability may lead to adoption of ‘defensive practices’
where parties act in an undesirable way in an effort to avoid claims
Summary
- Consider whether there are any existing authorities which have already established a
duty of care in the situation being considered
- If no precedent, should consider whether duty should be imposed by drawing analogies
with existing cases
- As a minimum, duty of care will not be imposed unless harm is objectively reasonably
foreseeable
- When considering imposing a duty in a new area, the aim is to develop the law
incrementally - should consider the relationship between the relationship between
claimant & defendant/proximity & whether imposing duty would be fair, just & reasonable
,LIABILITY FOR OMISSIONS
General Rule:
- Law of tort only imposes liability on those who cause injury or damage to another; no
such duty is imposed on a mere failure to act (omission) - but there are exceptions
- Particularly prominent consideration = proximity - relationship between defendant &
claimant
5 exceptions to general rule
1. Positive duty imposed by statute on defendant
a. Failure to do so can be basis for liability
b. Occupier’s liabilty act 1957 : imposes duty of care on occupier of premises to
ensure that premises are relatively safe to visit for visitors
2. Contractual duty
a. Depends on contract itself
b. Stansbie v Troman [1948]
3. Defendant has high degree of control over claimant
a. Reeves v Commissioner of Police for the Metropolis [1999]
b. Duty exists on police to protect prisoners health - incl. Suicide
c. Victim in police custody - distinct possibility that prisoners attempt suicide
4. Assumption of responsibility for claimant’s welfare by defendant:
a. Barrett v Ministry of Defence
5. Defendant created risk through an omission
a. Goldman v Hargrave [1967]
b. Defendant creates dangerous situation - i.e. defendant ought to have
known/knew of danger that occurred - didn’t extinguish embers of fire that
occurred
- Cases can be used if facts are same, but if facts are different, identify general rule (no
omission duty of care) - but then consider if duty should be imposed by drawing analogy
with previous cases
- Relationship between claimant & defendant - proximity of parties- discuss under general
rule
Omission & the Emergency Services
- Kent v Griffiths & others [2000]:
- Ambulance service owe duty of care to respond to 999 call within a reasonable
time
- This duty may not have been breached if they properly exercised their discretion
to deal with more pressing emergency before attending to claimant or where had
made choice about allocation of resources
- Captain & Counties plc v Hampshire County Council [1997]
- Fire brigade owe no duty of care to attend a fire, but if they do attend they owe
duty not to make situation worse through positive act
, - (fire-fighter ordered sprinkler system to be turned off)
- Alexandrou v Oxford [1993]
- Police owe no duty of care to respond to emergency calls
- Can owe duty in other circumstances (Reeves) - but omission was not failure to
respond to emergency call
Summary
- Number of overlapping & ill-defined exceptions to general rule
1. Statutory duty to act
2. Contractual duty to act
3. Defendant has sufficient control over claimant
4. Defendant assumes responsibility for claimant
5. Defendant has created risk through omission
LIABILITY FOR ACTS OF THIRD PARTIES
General Rule
- Smith v Littlewoods Organisation Ltd [1987] AC 241
- Law of tort only imposes liability on those who directly cause injury or damage to
another; no such duty imposed on a failure to prevent a third party causing harm
to another
Exceptions
1. Sufficient proximity [special relationship] between defendant & claimant
a. Stansbie: contractual relationship
i. Defendant decorator owed duty of care to property owner claimant having
allowed burglars into property by failing to secure building
ii. Duty owed = lock property when he left, to prevent burglary by a third
party
b. Home Office v Dorset Yacht Co [1970] AC 1004:
i. Defendants held liable for borstal boys under their supervision: left
unsupervised & attempted to escape island using claimant’s yachts -
yachts damaged as a result
ii. Duty owed by Home Office to claimant bc court held that there was
sufficient proximity between claimant & defendant - claimants were
identifiable victims at particular risk of damage & above the public at large
iii. Borstal boys had history of escape & only way could escape was by using
yachts, so not only were claimants identifiable victims, but the damage to
the yachts were reasonably foreseeables
c. Swinney v Chief Constable of Northumbria [1999]:
i. Victim gave evidence, on condition of anonymity - docs left in car, stolen,
was harassed & experienced psychiatric illnesses & give up her job
ii. Special relationship - claimant (informer) & police - police had assumed
responsibility to protect claimant from the criminal she had given evidence
about
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