This guide will be sufficient to get a high 2.1/1 st in finals if you do only problem
questions as you will be able to answer all PQs apart from the defamation one. If you
learn what is on this document you will be ready to take your final exam.
There is some minor summaries of academics at the end for each topic, but the
document is mostly rules/case summaries in a guide form to be used step-by-step.
The main headings from the contents page are in neon pink.
CONTENTS:
1. Negligence
2. Nuisance (Private, Public, Ryland Fletcher rule)
3. Vicarious and Accessorial liability
4. Special losses
5. Remedies
6. Pure economic loss
7. Product liability
8. Occupiers’ liability
9. Defences
NEGLIGENCE
Is there a duty of care?
❏ Lord Atkin in Donoghue v Stevenson [1934] held that a duty of care was owed
to a person who was so closely and directly affected by one’s act that it would
be reasonable to have them in contemplation.
❏ This was developed in Caparo v Dickman [1990] [where an auditor’s
inaccurate report that the company was operating at a profit was relied on to
buy more shares] where Lord Oliver laid down 3 factors to consider in novel
duties of care. The first is whether the kind of harm was reasonably
foreseeable, secondly whether there was requisite proximity between the
claimant and the defendant and finally whether it was fair, just and reasonable
to impose liability on them.
❏ However, it is important to note that the Supreme Court has repeatedly
indicated that the Caparo approach was not a test in establishing a duty of
care. This was clear in Lord Reed’s judgment in Robinson v Chief Constable
of West Yorkshire Police [2018] where he emphasises that Caparo did not
lay down a test, highlighting it emphasises an incremental approach
developing on the existing categories where a duty of care exists. As such,
, the use of policy reasonings to impose a duty of care (which is the 3rd limb of
the Caparo approach) was confined to novel cases.
❏ In Robinson v Chief Constable of West Yorkshire Police [2018], Lord
Reed held that the police are subject to the same tortious liability as
private bodies, and so they owe a duty of care for personal injuries
caused by positive acts.
Public authorities
Public authorities are subject to the same tortious liabilities as private bodies, and a
duty of care does not arise from a statutory duty alone as made clear by Lord
Hoffmann in Gorringe v Calderdale MBC [2004]. However, it is important to note that
since the same rules apply to both private bodies and public authorities, the
exceptions that apply to omissions-liability will also apply in the case of a failure to
exercise a statutory duty or discretion. This was made clear in CN v Poole BC [2019]
where Lord Reed made it clear that a public authority could owe a duty of care in the
same way that private individuals would for failing ‘to make things better’ (an
omission) as long as it is consistent with the relevant legislation. In this particular
case, there was no service that the family could rely on to bring them under the
assumption of responsibility exception. In Smith v Littlewoods [1987], Lord Goff’s
judgment makes clear that there was no general duty to prevent a third party from
causing damage to the pursuer. The fundamental reason for this was that his failure
to intervene is an omission and the common law does not generally impose liability
for pure omissions.
- Emergency services do not generally owe a duty of care to the public, except
in limited circumstances. Police, firefighters and the Coastguard do not owe a
duty of care to those relying on its services, but an ambulance service may
owe a duty to specific individuals.
❏ This was made clear in Stovin v Wise [1996] where the local highway
authority were held not to owe a duty of care for a road traffic accident
attributable to a bank of earth which made the junction blind. Lord Hoffmann
utilised the common arguments against omissions-liability including the idea
that to do so would hamper one’s individual liberty as well as the argument
that it is unfair to impose liability on the one person who happens to be in
proximity. Positive obligation removes all other options; passer-by has no
choice but to save the child to avoid liability.
❏ He suggests that where Parliament has not created a right to claim
under a statutory scheme for compensation, the same legislative policy
would exclude a private law duty of care from arising. In cases of
discretion, the indication of the policy was also not to create a right to
compensation via a duty of care.
❏ He suggests that a duty of care may arise if it was irrational not to
exercise the statutory power and there were exceptional grounds for
holding the policy of the statute requires compensation to be paid to
those who suffered a loss.
❏ In Gorringe v Calderdale MBC [2004], a claimant brought a claim against a
local authority for failing to repaint a ‘slow’ sign which led to a road traffic
accident. Building on his judgment in Stovin, Lord Hoffmann emphasized that
there is no liability for public authorities in pure omissions cases as well as
, ruling out dicta suggesting the Wednesbury test could apply to base a
common law action in negligence.
❏ Dicta - potential exception. Detrimental reliance: if the public authority
conducts itself to create reasonable expectation about the state of the
highway, it will be under a duty to ensure it doesn’t create a trap that
motorists rely on such expectation.
❏ However, it is important to note that since the same rules apply to both private
bodies and public authorities, the exceptions that apply to omissions-liability
will also apply in the case of a failure to exercise a statutory duty or discretion.
This was made clear in CN v Poole BC [2019] where Lord Reed made it clear
that a public authority could owe a duty of care in the same way that private
individuals would for failing ‘to make things better’ (an omission) as long as it
is consistent with the relevant legislation. In this particular case, there was no
service that the family could rely on to bring them under the assumption of
responsibility exception.
❏ Barrett v Enfield LBC [1999]: A child of 10 months was placed under Enfield’s
care until age 17 and during this time he suffered various psychiatric illnesses.
The claimant alleged that the local authority owed a duty of care to act in loco
parentis and Lord Slynn’s judgment makes it clear that once a child is in care
the public authority has a duty towards them. The greater the policy element
involved in the area of discretion, the more likely it is not justiciable but a
statutory discretion can be subject to a duty of care.
❏ Lord Phillips MR in D v East Berkshire Community NHS Trust [2003]
made it clear that in light of the HRA, it is no longer legitimate to say
that there is no common law duty of care to a child in relation to
investigation of suspected child abuse.
Omissions
There is no general omissions liability for failing to help make a situation better
(using Lord Reed’s formulation in CN v Poole BC [2019]) as it is not as morally
wrong as positively acting to make something worse, and imposing omissions-
liability would ignore this.
❏ In Smith v Littlewoods [1987], Lord Goff’s judgment makes clear that there
was no general duty to prevent a third party from causing damage to the
pursuer. The fundamental reason for this was that his failure to intervene is an
omission and the common law does not generally impose liability for pure
omissions.
❏ Interference: A defendant will owe a duty of care for their failure to act if they
know someone is in danger and have acted in a way that discourages them
from relying on someone else. Lord Reed in CN v Poole BC [2019] held that
whilst there is no general duty of care to make things better, there is a duty of
care to not make a situation worse since this would cause someone harm.
❏ Public authorities are subject to the same tortious liabilities as private bodies,
and a duty of care does not arise from a statutory duty alone as made clear
by Lord Hoffmann in Gorringe v Calderdale MBC [2004]. Assumption of
responsibility: The defendant will owe a duty of care for their failure to act if
they have acted in a way that allows the claimant to trust and rely on the
defendant and they do under the head of an assumption of responsibility.
, Case law such Barrett v MOD [1995] as indicates that explicit reliance is not
crucial but the duty is to make things better.
❏ Lord Woolf MR in Kent v Griffiths (No 2) [2001] held that the ambulance
owed a duty of care to a pregnant woman because there was an
affirmative undertaking and specific reliance, by not driving to A&E
directly, meant they had a duty to the named individual. Unlike the
police or fire brigade, the only person affected was the claimant and it
was not for the common good.
❏ CN v Poole BC [2019] - Lord Reed held that assumption of
responsibility was where one took on a task or gave advice with the
express or implied undertaking that reasonable care would be taken.
❏ Lord Toulson in Michael v Chief Constable of South Wales Police
[2015] held that the police did not owe a duty of care to a murdered
victims as there was no assumption of responsibility to a specific
private individual because of a lack of explicit assurance that the call
would be passed nor any reassurance as to how fast they would
respond like in Kent v Griffiths (No 2) [2001].
❏ In these cases, the call operator seems to have been treated as
accepting responsibility on behalf of the police force as a whole.
The police force then has a positive duty to fulfil that assurance.
❏ Creation of a dangerous situation: A defendant will owe a duty of care for
their failure to act where they have created a dangerous situation and have
failed to take steps to prevent this from harming others.
❏ This principle has been plunged into doubt by Mitchell v Glasgow CC
[2009] where the local authority was held not to be liable for the murder
of a resident in their social housing complex by another resident,
Drummond. Drummond regularly abused the victim and threatened to
kill him, and so the authority sought to evict him and in response he
killed the victim. In the meeting held to inform him, Drummond had lost
his temper and it was foreseeable that Drummond could be violent.
However, Lord Hope suggested there was no duty of care for the
actions of a third party unless one had assumed responsibility for their
actions and if such a duty was imposed here landlords would be
deterred from evicting their residents.
❏ Lord Brown suggested that a duty of care might exist where one has
created a danger that a third party might harm the victim but this does
not apply here as landlords evicting disruptive tenants cannot be said
to create risks of personal violence towards others.
❏ Lord Hope’s judgment suggests that one can be liable for the actions of
a third party only if they assume responsibility for their actions,
suggesting there is no creation-of-danger exception. Lord Brown’s
judgment is not satisfactory; although the general landlord/tenant
relationship does not create a risk of personal violence towards
another, there was clear knowledge on the landlord’s part here that
there is a significant risk of such kind. The eviction was because of a
history of threatening and anti-social behaviour and Drummond’s
threats were indicating that the victim’s life might be at risk.
Furthermore, Drummond had lost his temper in the meeting so it was
not only foreseeable that he would attack the victim but highly likely.
