Lecture notes
Lecture notes Law Of Torts
- Module
- Law Of Torts
- Institution
- University Of Law (ULaw)
Parties Loss or damage, Duty Breach Causation , Remoteness Defences Remedies
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lOMoARcPSD|21062290Complete Tort Notes - PGDL Tort Law
Tort Law - ( Khairul Islam)
, lOMoARcPSD|21062290
Key steps in Tort
Parties
Loss or damage
Duty
Breach
Causation
Remoteness
Defences
Remedies
1 – DUTY OF CARE
In order for there to be a negligence claim, there must be a duty of care owed by the defendant to the claimant. Lord Atkin established the ‘neighbourhood principle’ in Donoghue v Stevenson - where
a duty would be owed by anyone who could reasonably be conceived as being affected by one’s act.
↓
STEP 1: Check if precedent can be applied:
Doctor + Patient Cassidy v Ministry of Health
Employer + Employee Wilsons & Clyde v English
Road User + Road User/Pedestrian Nettleship v Weston
Occupier + Visitor Occupier’s Liability Act 1957
Occupier + Trespasser Occupier’s Liability Act 1984
Manufacturer + Consumer Donoghue v Stevenson
Referee + Competitor Vowles v Evans
Creating situation of danger Stansbie v Troman
Emergency services can owe a duty of care - there is no general duty on the police to respond to an emergency call effectively/prevent burglary. To make a claim against the police use the
Caparo Three Stage Test (STEP 2)
Khairul islam (khairulsh1@gmail.com)
, lOMoARcPSD|21062290
Coastguards OLL v SoS for Transport (duty to not make situation worse)
Fire Service Capital & Counties v Hampshire CC (duty to not make situation worse)
Ambulance Kent v Griffiths (duty to arrive within a reasonable time)
Police Alexandrou v Oxford (owe no duty of care
↓YES ↓IF NO PRECEDENT
DUTY OF CARE OWED STEP 2: Use the Caparo Test established in Caparo v Dickman which extends the ‘neighbourhood principle’ and asks: Use previous authorities to establish legally
significant features.
1. Was it reasonably foreseeable for the defendant’s failure to take care could cause the type of loss suffered? The objective ‘reasonable person’ test is used.
● Bourhill v Young: miscarriage after hearing crash = not reasonably foreseeable
● Haynes v Harwood: rescuers getting injured to assist in danger = reasonably foreseeable
● Hill v Chief Constable of West Yorkshire: violent history = injury reasonably foreseeable
● Home Office v Dorset Yacht: young offenders unsupervised = damage reasonably foreseeable
2. Was there a relationship of proximity (legal, not physical) between the claimant and the defendant (and in case of acts by third parties, the defendant and
the third party?) (defendant creates the danger – danger creation could result in DOC imposed on the driver vs the girl)
● Barret v MOD: assumed responsibility by moving drunk officer = sufficient proximity created
● Stansbie v Troman: decorator service contract to work in house = sufficient proximity (contractual)
● Home Office v Dorset Yacht: yacht company were ‘identifiable victims’ = sufficient proximity
● Swinney v Chief Constable of Northumbria: informant relationship = sufficient proximity (police assumed responsibility for informant’s welfare)
● CN & GN v Poole Borough Council: Council did not assume responsibility when it knowingly housed the next door to problem family = insufficient
proximity
● Mitchell v Glasgow City Council: No assumed responsibility = insufficient proximity
Proximity in the case of third parties:
● Hill v Chief Constable of West Yorkshire: There was insufficient proximity between an unidentified victim of potential crime and police not under
care/control at the time of the act
● Palmer v Tees Health Authority: There was insufficient proximity as the defendant did not owe a duty of care as the act happened out of their control and
supervision = insufficient proximity
by Khairul islam (khairulsh1@gmail.com)
, lOMoARcPSD|21062290
3. Was it fair, just and reasonable that the law should impose a duty of care on the defendant? How does this affect policy?
● Opening of legal floodgates: considered in Hill v Chief Constable of West Yorkshire
● Insurance: fairer to hold an insured party liable as the cost will spread through society
● Cost to the taxpayer: if liability is always found in respect to the public body
● Crushing liability: damages would be out of proportion
● Deterrence: prevent undesirable behaviour
● Defensive practices in future: considered in Smith v CC of Sussex: threatening messages and treated as domestic matter + applicable to medical
professionals
↓
STEP 3: In cases of Omissions, the GENERAL RULE established in Smith v Littlewoods: ‘an individual will not be negligent for failing to act (this includes failing to prevent third parties from causing
harm, Hill v CC of West Yorkshire, Palmer v Tees Health Authority) drowning in a lake to save friend.
↓
EXCEPTIONS WHERE LIABILITY DOES EXIST
Statutory Duty Occupiers’ Liability Act 1957
Contractual Duty Stansbie v Troman: pre-existing contract established sufficient proximity + decorator owed DoC to
the homeowner to not leave the property unsecured
Defendant has control over claimant Reeves v Commissioner of Police for Metropolis: police held to have DoC to assess suicide risks for
all prisoners due to level of control
Assumption of Responsibility Barret v MOD, Costello v CC of Northumbria: assumed responsibility by police to watch each
other’s back, Lejonvarn v Burgess: architect assumed DoC when she performed work for friends,
even with no contract and work was unpaid.
Defendant created risk Goldman v Hargrave: A landowner in deciding not to completely extinguish the fire, he had
‘adopted the risk’ that it might spread and was subsequently liable for extensive property damage
↓
Special case: Public Body/Local Authority
● General Rule (Smith v Littlewoods) applies even though they may have duty or power to act in a specific area
● CN & GN V Poole Borough Council: Council failed to take two children into care and when facts applied to rule there was no requirement to act positively, even though the council had the
power to protect the children, they were under no duty to do so.
by Khairul islam (khairulsh1@gmail.com)
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