TORT LAW PQ
SUMMARIES
,Sentence Starters/essentials
Duty of care:
• As a road user, Adam owes Beatrice a duty to take reasonable care not to cause her physical harm.
• The standard of care is that of a reasonable prudent driver (Nettleship). By failing to notice a red light, Adam fell
below this standard.
Damages when a claim is successful:
• The requirements of the tort of negligence have therefore been met and Beatrice will be able to claim special
damages in respect of quantifiable expenses and general damages for pain, suffering and loss of amenity.
Bereavement damages:
• Damages for Ewan’s death can either be paid to his estate or loss of support damages may be claimed by his
dependents as per the Fatal Accidents Acts of 1846 and 1976:
, THE TORT OF NEGLIGENCE
1. DUTY
D owed C a duty of care (a 3. CAUSATION (+ REMOTENESS)
duty to take reasonable care
not to cause him a particular D’s breach of a duty was a cause
type of injury) of C’s injury
2. BREACH
4. DEFENCES
D breached that duty
of care D has no defence to
C’s claim
,DUTY OF CARE A duty of care is a duty one person owes to some other person IF IT IS NOT A RECOGNISED DUTY SITUATION
to take reasonable care not to cause a particular sort of injury THEN SIMPLY STATE THE FOLLOWING:
The duty owed by X to Y can be identified by
(2) Is it worth creating a new duty of care reasoning incrementally from analogous cases
situation? and applying the factors set out in Caparo,
namely; foreseeability, proximity and whether
(1) Does it fit into one of the established categories of APPLY THE CAPARO TEST: Caparo Industries v it is fair just and reasonable to impose a duty
relationships that give rise to a duty of care? If YES, then no Dickman [1990]
further duty analysis is required (sufficient proximity)
1. Reasonable foresight of harm There is clearly a duty of care here – it is true
• There are a number of situations in which the courts • Was it reasonably foreseeable that if that we generally owe one and other duties of
recognise the existence of a duty of care. D didn’t take care C may suffer harm care not to cause one another FORESEEABLE
• These usually arise as a result of some sort of special of the relevant kind physical injury
relationship between the parties.
2. Sufficient proximity of relationship
State that: It is well-established that DOING X creates a duty of • Was there a relationship of May not be an established duty situation,
care owed to those who might, reasonably foreseeably, be proximity between C and D? but reasoning incrementally from
harmed by PERSON Y’S performance of that task • The court makes it clear that employer/employee & applying Caparo
proximity is not physical closeness factors it’s likely that the law will require B
DUTY TO ACT WITH REASONABLE CARE - to take reasonable care not to physically
3. Fair, just and reasonable to impose a duty
injure S.
Examples of established duty of care situations: • Is it fair, just and reasonable to
impose such a duty of care on D?
One road user ➜ Another road user Nettleship v Weston [1971] • We don’t usually hold the police
liable due to policy reasons:
Employer ➜ Employee • Hill v Chief Constable of
Note: The incremental approach:
West Yorkshire [1989]
Manufacturer ➜ Consumer - Donoghue v Stevenson [1932] • Michael v Chief Constable • Courts wish to stick to precedent as much as
of South Wales Police they possibly can
Doctor ➜ Patient Kent v Griffiths (2001) (Ambulance service to [2015] • New duties of care are to be developed only
patient) • Unless, they are doing
incrementally, by analogy with established
something that normal cases where duties of care have been
Solicitor ➜ Client individuals also do e.g. recognised
driving - Robinson v Chief • This is Brennan J’s view in Sutherland Shire
Teacher ➜ Student Constable of West Council v Heyman (1985) 60 ALR 1 (high
Yorkshire Police [2018] court of Australia) which was endorsed by
Outside of these categories of established duty, a duty of care Lord Bridge in Caparo
will be determined on the basis of individual circumstances – • (‘The Nicholas H’) [1996] - if we
see step 2 require people who are doing
something for free to take care then
they may stop doing it altogether
and that would be even worse
, CASE FACTS RATIO/ PRINCIPLE
Donoghue v Mrs Donoghue sued the manufacturers of ginger The ‘neighbour principle’, based upon foreseeability, was the first general principle for determining duty of
Stevenson [1932] beer for damage she suffered when a snail was care in negligence. The so-called ‘narrow ratio’ from Donoghue established the liability of manufacturers to
found in her bottle. It was held that the defendant those injured by their products.
had owed her a duty of care according to Lord
Atkin’s ‘neighbour principle’.
Caparo v In a negligence action against a firm of auditors for Lord Bridge established the three-stage test for duty of care in novel situations, requiring (1) foreseeable
Dickman [1990] 2 AC financial loss suffered due to the negligent damage; (2) proximity between the parties; and (3) that the existence of a duty would be ‘fair, just and
605 compilation of company accounts, it was held that reasonable’. This is the current approach.
the defendant did not owe a duty of care to the
investors.
Hill v Chief Constable It was claimed that the negligence of the police Applying the Anns test, the House of Lords held that no duty of care had been owed to her. Although death as
of West caused the death of Jacqueline Hill, the last victim of a type of damage was foreseeable there was not sufficient proximity between the police and Miss Hill. She
Yorkshire [1989] the ‘Yorkshire Ripper’, Peter Sutcliffe. was no more identifiable as a potential victim than any other young woman in a wide geographical area.
Additionally, there were a number of policy arguments indicating that the police, in their role of investigation
and prosecution of crime, should not be under a duty of care to potential victims. Among these were the
potential detrimental effects of ‘defensive policing’ and the existence of preferable mechanisms for
monitoring the efficiency of the police.
(‘The Nicholas This case demonstrates the application of Lord When the House of Lords applied the three-stage test it concluded that there had been no duty of care.
H’) [1996] Bridge’s three-stage test. The defendant was a Although there had been proximity of the parties and foreseeability of the damage, the requirement that a
marine classification society, whose function was to duty be fair, just, and reasonable had not been met. The risk between the parties had been governed by the
determine the seaworthiness of ships. One such ship rules of international shipping law and the introduction of a common law duty of care could not be permitted
had been certified by the defendant but soon sank, to override these.
with the loss of the plaintiff’s cargo.
Robinson v Chief A passer-by sued the police in negligence when she In the circumstances the police had a duty of care to the public. Doubting the concept of police ‘immunity’ in
Constable of West was injured during the street arrest of a suspected negligence, the Supreme Court suggested that a straightforward application of negligence principles led, by
Yorkshire Police drug dealer. analogy, to the conclusion that this was not a case of omission, as in Hill. Rather, a positive act by the police
[2018] had injured the claimant, as in Knightly. It was unnecessary to apply the Caparo three-stage test as this was
not a novel situation. See Chapter 3 for further discussion of omissions in negligence.
Michael v Chief Due to lack of effective liaison between two police The supreme court held that there was no duty of care owed by the police in this situation as in Hill – this was
Constable of South call centres concerning a 999 call made by a woman, due to policy reasons such as the fact that we should not be using public resources for compensation
Wales Police [2015] she was then murdered by her ex-partner. There was purposes.
held to have been no duty of care owed to her by
the police.
