Tort Model Answers
Negligence
There are three things to prove for negligence: a duty of care, a breach of that duty,
and a loss.
The defendant owes a duty of care when they are neighbours in principle (Donoghue
v Stevenson). A neighbour in principle is anyone so closely affected by my actions, I
should have them in contemplation at the time of commitment (Lord Akin). The next
part is the 3-part Caparo Test (Caparo v Dickmen). The test asks is it reasonably
foreseeable that harm will occur (Kent v Griffins), was they proximate in time, space
or relationship (Bourhill v Young), and is it fair, just and reasonable to impose a duty
of care (R v Hill; R v Robinson).
The defendant breaches their duty when they fall below the standards of a
reasonable man will average skill and intelligence (Blyth v Birmingham Water
Works). This is an objective test. There are 3 factors that determine if you are less,
more or as reasonable as the reasonable man. These are age (Mullins v Richards),
professionals (Bolam v General Hospital) and learners (Nettleship v Western).
There are 4 factors that decide how reasonable the defendant is, these are:
practicality to take precautions (Latimer v AEC), degree of risk (Bolton v Stone),
standard of care (Paris v Stepney Borough Council), and social utility (Wyatt v
Hertfordshire County Council).
The final element to prove is that the claimant has had a loss. There are two types of
loss: general damages (loss of amenity, loss of future earnings, and pain and
suffering) and special damages (hospital care, immediate earnings and transport).
When the claimant receives these damages, they will be given as either a lump or
structured sum. However, the courts must mitigate the damages before they are
given.
There defences available for negligence are consent and contributory negligence.
Private Nuisance
For a person to be able to bring a claim of private nuisance, they must have a
proprietary interest (Hunter v Canary Wharf). There must also be an unlawful,
unreasonable and indirect interference.
There are 2 types of nuisance: physical damages and loss of amenity.
There are 6 factors to decide how likely something is to be a nuisance. The first
factor is location (Lawrence v Fenn Tigers). This looks at industrial areas in
residential areas and vice versa. The second factor is duration (Murdoch v Glacier
Metals). This looks at how long the nuisance has been going on for. The third factor
is degree of interference (Barr v Biffa Waste). This looks at how bad the nuisance is,
, this includes the time and frequency of the nuisance. The fourth factor is sensitivity
(Robson v Kilvert). A person cannot claim for an extra sensitive use of land. The fifth
factor is social utility (Denis v The Ministry of Defence). This looks at if the nuisance
is socially important. The final factor is malice (Christie v Davie; Hollywood Fox Silver
Farm v Emmett). This looks at if the defendant acted with intent to create the
nuisance.
If the claim is successful, the claimant can receive 3 remedies: damages, an
injunction (complete or partial) or an abatement.
There are 4 defences available for private nuisance: consent, contributory
negligence, prescription and statutory authority.
Rylands v Fletcher
Rylands v Fletcher is a type of private nuisance. For a person to be able to bring a
claim they must have a proprietary interest (Hunter v Canary Wharf). This is a type of
strict liability tort, which means no mens rea is needed to be found guilty.
There are 5 factors that need to be proved. The first factor is that there has been an
accumulation (Giles v Walker). This must be voluntary as the defendant must have
bought the substance onto the property. The second factor is that the substance is
dangerous (Hale v Jennings Bros). It is dangerous if the thing is liable to cause
mischief if it escapes. The third factor is the substance is of non-natural use
(Rickards v Lothian). The fourth factor is that the substance has escaped (Read v
Lyons). The substance escapes if it moves from one place to another. The final
factor is you can only claim for reasonably foreseeable damages (Cambridge v
Eastern Counties Leather PLC).
If the claim is successful, the claimant can receive compensative damages.
There are 4 defences available for Rylands v Fletcher: consent, contributory
negligence, act of god, and act of stranger.
Psychiatric Harm
For a person to be able to bring a claim for psychiatric harm, they must have a
pronounced mental illness (Reilly v Merseyside). There are two types of victims that
can claim.
Primary victims are those who are directly involved and feared for their own safety
(Page v Smith). Primary victims also included rescuers who are directly involved,
feared for their own safety and was engaged in rescue activities (Chadwick v British
Railway Board).
To be able to claim as a secondary victim, you need to probe 5 factors (Alcock Test).
They need to have a close tie of love and affection (Bourhill v Young), this includes
parents, children or spouses (if not, they have to rebut it in court). They need to be
