Outlines how to answer application questions for OCR tort law. Negligence, OLA 1957, OLA 1984, Private Nuisance, Rylands v Fletcher, Vicarious Liability, Defences and Remedies
NEGLIGENCE STRUCTURE
For liability in negligence ___ must have a duty of care to ____ breach that duty and cause damage
as a result.
The case of Robinson v Chief Constable of West Yorkshire Police has clarified that the three stage
test from Caparo v Dickman is only to be applied in novel situations.
There is a duty of care as ____. [Explain if it is a common example of duty of care. or if the duty is
analogous to the common duty, maybe still apply caparo if the duty is less common]
Or
It is not clear if there is a duty as it is a novel situation and therefore we apply the three stage test
from Caparo v Dickman.
1. Firstly, is it reasonably foreseeable that someone in the claimants position would suffer
harm / injury as a result of D’s actions? (Kent v Griffiths). It is reasonably foreseeable
that____
2. Secondly, is there proximity in space, time or legal relationship between D and C? There is
proximity as ___ (McLoughlin v O’brian) or there is not proximity as ____ (Bourhill v Young)
3. Finally, is it just fair and reasonable to impose a duty of care? (Hill v Chief Constable of West
Yorkshire Police) This is to protect the emergency services and rescuers and as no such
policy considerations apply it will be just and reasonable for a duty to be owed. Therefore
___ owes a duty to ____
There will be a breach of duty if ____ does something the reasonable man would not or fails to do
something the reasonable man would (Blyth v Birmingham Waterworks). The type of reasonable
man changes based on the circumstances. Here it is a [Ordinary person doing the task, learner,
professional or young people.] as ___.
- Expected to reach the standard of a reasonable competent person doing the task (Wells v
Cooper)
- Learners are expected to reach the same standard as someone experienced (Nettleship v
Weston)
- Professionals will not be in breach of duty if they follow accepted practise within the
profession/ expected to reach the standard of a reasonably competent professional (Bolam).
Additionally for medical instances a doctor must take reasonable care to ensure the patient
is aware of the risks of the recommended treatment and of any alternative treatments.
(Montgomery v Lanarkshire Health Board).
- Children are expected to act as a reasonable child of their own age (Mullins v Richards)
Therefore __ would be expected to ____. [Only state the standard not all of them]
Furthermore there is also risk factors that alter the standard of car expected of the reasonable man.
- If there is special characteristic of the claimant it makes any potential harm suffered more
serious so it raises the standard (Paris v Stepney)
- If there is a very small risk of injury it lowers the standard (Bolton v Stone)
- If there is a high risk risk of injury it raises the standard (Haley London Electricity Board)
- If all practical precautions have been taken it lowers the standard (Latimer v AEC)
- If the risk was not known about at the time of the accident it lowers the standard (Roe v
Minister of Health)
- If there is a social utility of the risk e.g reacting to an emergency, it lowers the standard
(Watt v Hertfordshire CC)
Explain only the risk factors that apply and explain why.
Therefore ___ has breached their duty as ____.
____ breach of duty must cause the damage suffered by ___ and the damage caused cannot be too
remote.
, To decide if ___ is the factual cause of ___ injuries or ____ property damage, we must ask ‘But for’
the defendants actions, would the damage have occurred? (Barnett v Chelsea and Kensington
hospital). But for ____.
Acts of nature
- Defendants cannot be held liable for further loss that was sustained as a result of a natural
event (Carslogie v Royal Norwegian Navy).
Multiple causes- ‘But for’ test- General
- Claimant must prove on a balance of probabilities the defendants negligence was a material
cause of their injury. Liability cannot be imposed where the defendants negligence is just
one of the possible causes of damage (Wilsher v Essex AHA)
Multiple causes- ‘But for’ test- Mesothelioma cases
- Where an employee has been negligently exposed to asbestos by different defendants,
proof each defendants wrongdoings had materially increased the risk of getting the disease
sufficed (Fairchild v Glenhaven Funeral Services).
- The HoL modified the principle so damages are apportioned so each D is liable for the
proportion of risk they created (Barker v Carus)
- Compensation Act 2006 They reversed the modified principle in regard to mesothelioma
claims and reinstated the Fairchild principle of joint of several liability.
- Proof of injury wouldn’t have occurred but for D’s negligence isn’t needed in such
circumstances (Sienkiewicz v Greif)
Loss of a chance
- If the defendants negligence deprived the claimant of the chance of making a recovery the
courts will not allow the recovery of damages if it cannot be proved that on a balance of
probabilities the damage was less likely to occur if not for the defendants negligence.
(Hoston v East Berkshire AHA)
Therefore ___ is the factual cause of ___.
To decide if the damage suffered is too remote we assess whether the kind of damage of reasonably
foreseeable by ___ at the time of the breach of duty (The Wagon Mound) but it is not the way it
comes about or the extent of the damage (Hughes v Lord Advocate). ___ is likely to occur in a
situation where ____.
Consecutive cases
- Second event did not wipe out the original cause of the claimants injury, tort compensates
as much for an inability to lead a full life as it does for the injury and said inability continues
even where the original injury is suspended by a later one (Baker v Willoughby)
- HoL found that the condition would have occurred anyway so the defendants negligence
only caused the loss of earnings prior to this point and any later loss of earnings would have
occurred anyway despite defendants negligence (Jobling v Associated Dairies)
Therefore the ___ suffered is not too remote.
To decide if this damage is intervened with by an event and therefore break the chain of causation,
we must ask did the damage arise from an extreme and unforeseeable event (Smith v Littlewoods).
The ___ suffered arises from ___ which is/isn’t an extreme and unforeseeable event as___.
The thin skull rule means the D must take the C as they find them and is liable for full extent of the
damage if the type of damage is foreseeable which is the case even if the C had a pre-existing
condition that meant they suffered greater damage than usual. (Smith v Leech brain).
Own Acts
- If the claimants own actions after the negligence are so careless it removes all responsibility
from the original defendant (Mckew v Holland).
- If the claimant is careful then their actions will not break the cain of causation (Wieland v
Cyril Lord Carpets).
Therefore ____ breach of duty caused ___.
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