Tort Law Answer Structure (No plagiarism or AI)
1. Negligence Problem Questions
In Lochgelly Iron v McMullan (1934), Lord Wright confirmed that a claimant
has to prove four elements: a duty of care, a breach of the duty, causation, and
that the damage is not too remote.
❖ Is a duty of care owed? (For psychiatric injury/Pure Economic Loss/public
bodies/omissions/3rd party wrongdoing, see charts. If not any of those,
ordinary DOC will apply)
It was decided in Caparo v Dickman (1990) that a legal duty will be owed
where it has already been determined that the claimant and defendant have a
particular relationship which gives rise to an established legal duty. To justify
the imposition of a legal duty when the relationship between the parties is
novel, the requirements of foreseeability, proximity and just, fair and
reasonable have to be satisfied. However, in Robinson v Chief Constable of
West Yorkshire Police (2018), the Supreme Court made it clear that the
three-stage test was not to be used in every situation when determining duty,
but that precedents which were already in place should be taken into account.
❖ Has the duty been breached?
A duty must then have been breached after it has been imposed. When the
defendant's conduct falls below a reasonable standard, the duty is breached.
Q: Did D’s conduct fall below the relevant std of care?
a) if D was performing an ordinary (non-skilled act) – apply Reasonable Man
standard
b) if D was a professional/exercising special skills – apply professional std. of
care
Zack Scott’s UOL notes
, c) special cases (learner driver, children, sports etc. – use specific decisions)
In Blyth v Birmingham Waterworks Company (1856), a breach is
established when the defendant failed to behave in a way following the
standard of a reasonable person. It was held in Glasgow Corporation v Muir
(1943) that the reasonable standard will change depending on the
circumstances of the case. According to Paris v. Stepney BC (1951), the
legal standard is typically to exercise the amount of care that is reasonable
under the circumstances.
❖ Did the breach cause the injury?
Factual causation: Typically, the "but for" test is used to determine
causation based on the balance of probabilities (Cork v. Kirby Maclean (1952).
In Barnett v. Chelsea & Kensington HMC (1969), it was determined that the
carelessness of the defendant could not be regarded as the factual cause of
the claimant's injury or death if it would have happened regardless.
Legal causation: This is satisfied by proving that the claimant’s injury is not
too remote as a consequence of the defendant’s negligent act. Accordingly,
the injury must have been of a kind that was reasonably foreseeable (Wagon
Mound No. 1 (1961)) and not too remote.
❖ Was the injury too remote?
Test of remoteness (Wagon Mound No. 1 (1961))
❖ Does the D have a valid defence?
▪ Has the claimant voluntarily assumed the risk of injury?
▪ Is the injury one for which liability can be excluded or limited?
▪ Is the claim substantially based on an illegal act by the claimant?
▪ Has the claimant contributed to his injury through his own negligence?
Zack Scott’s UOL notes
, 2. General Defences
❖ Contributory negligence
Contributory negligence is now a partial defence as a result of The Law
Reform (Contributory Negligence) Act 1945. According to Fookes v Slaytor
(1978), three elements have to be established before damages can be reduced
to reflect the claimant’s contribution to their injury through their negligence.
First, the injury has to result from the claimant exposing himself to a
particular risk. The second is that his negligence contributed to the injury, and
the third one is that the claimant is the one at fault.
Despite the difficulty in determining the precise scope of the contribution, a
reduction will be made (Capps v Miller (1989)).
❖ Voluntary assumption of risk
Consent in the context of the tort of negligence is an agreement to run the
risk of the defendant's negligence. It is an absolute defence that can be either
express or implied.
According to Nettleship v Watson (1971), there has to be informed consent
regarding the type of risk of negligent injury in order to justify denying recovery.
It has to be proven that the claimant had full knowledge of the risk they were
taking, and they were willing to accept it. Without an express agreement, one can
be implied through deliberate course of conduct (Smith v Bakers and Sons
(1891)). The risk’s legal repercussions also have to be voluntarily accepted
(Nettleship).
This defence does not apply to suicides (Reeves v Metropolitan Police
Commissioner (2000)).
❖ Illegality
There are 2 defences for illegality, and each have a distinctive policy basis. In
the narrow form, the claimant attempts to avoid a penalty which the criminal law
Zack Scott’s UOL notes
, has imposed on him as a consequence of his illegal act. In the wider form, the
claimant seeks compensation for the repercussions of his illegal act. Compensating
the claimant for the repercussions of his criminal behaviour goes against the
public notions on fair distribution of resources (Lord Hoffman – Grey v Thames
Train Ltd (2009)).
3. Psychiatric Injury
It is a mental injury caused to a person by the intentional, negligent acts
or omissions of another without resulting in physical injury. The claimant has to
demonstrate that his damages go beyond grief and emotional distress to include
a recognised mental illness, such as anxiety neurosis or reactive depression.
In Lochgelly Iron v McMullan (1934), Lord Wright confirmed that a claimant
has to prove four elements: a duty of care, a breach of the duty, causation, and
that the damage is not too remote.
In order to establish duty for psychiatric injury, the claimant has to
demonstrate that the harm was a recognised psychiatric injury (Alcock v Chief
Constable of the South Yorkshire Police (1992)). This is different from the
“normal emotions” that people have when confronted with unpleasant
circumstances (Mann LJ, Reilly v Merseyside (1994)).
A claimant is not allowed to make claims for sorrow, grief, anxiety, shock,
distress or depression in the ordinary sense (Alcock v CC of SYP, McLoughlin v
O‛Brian (1983); White v Chief Constable of South Yorkshire (1999)).
❖ Primary victims
A primary victim is someone who was directly involved in the incident, either
because they actually suffered physical injury, were in the zone of physical
danger, or reasonably believed that they were in danger (Page v Smith (1995);
White and Alcock).
Zack Scott’s UOL notes
