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Tort Law - Course Summary

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Clear, precise, detailed, yet concise, Tort Law summary for PDGL and SQE students. I have devoted so much time and energy to writing these notes-summaries that eventually they paid off. Not only they allowed me to pass my PDGL with a distinction, but they were key to studying for the SQE exam. My s...

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Module TLW (TLW)

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TORT LAW - COURSE SUMMARY

TOPIC 1: NEGLIGENCE AND DUTY OF CARE

Definition of “Tort”: a tort involves the infringement of a legal right (or breach of a legal duty) and it gives
rise to a claim in civil courts.
 “Tortfeasor”: a person who commits a tort; their liability is described as “tortious”.

In all established torts, the law has developed a number of elements that the claimant must prove. The
defendant can raise a number of defences. “General defences” apply to all torts, while others are relevant to
only one tort.
 The standard of proof is on the balance of probabilities.

Functions/aims of the Law of Tort:
 Compensation: The main function of a tort claim is to compensate the victim for the loss suffered
due to the defendant’s wrongdoing.
o This sees the primary aim of tort as being to reduce the disruption which accidents cause to
the lifestyles of victims and those dependent upon them.
o Note: compensation culture critique - PS Atiyah The Damages Lottery (Hart, 2007).
 Deterrence: This sees tort as a system which is designed to reduce the frequency and the severity of
accidents.
 Corrective Justice: twofold: (1) retribution against the wrongdoer (to stome extent undermined by
mandatory insurance); (2) compensation for the victim.
o The victim’s (claimant’s) loss is ‘transferred’ to the defendant.
o Being grounded in the principle of corrective justice, Tort Law is built on two key elements:
fault and causation.
 Vindication of rights: The claimants may wish to make a ‘point of principle’ or initiate an
investigation, or to provoke the authorities into acting.
o The tort system provides a mechanism for the protection of rights and as a technique whereby
society is able to express judgment on the injurer’s conduct.

Scope of the Law of Tort:
 To obtain a remedy in tort law the claimant must show that the loss or injury they have suffered is a
type of harm recognised by the existing law of tort, or they must persuade the courts to extend the
law so as to protect them.
 Some torts are actionable per se: the infringement of a legal right that is protected by the law of tort
is all the ‘harm’ that the claimant needs to show.
 If a claimant is unable to show that they have suffered a type of harm which is recognised by tort then
their claim in tort will fail (Bradford Corporation v Pickles).
 Public policy: in some instances of negligently caused harm, the courts have declined to find that the
defendant owed the claimant a duty of case because of policy reasons.
o There is the possibility of using a claim under the Human Rights Act 1998 against a public
body as an alternative claim where a tort action might not succeed (Van Colle).
o A key HRA 1998 provision is s 6, which provides that it is unlawful for a public authority to
act in a way which is incompatible with a Convention right. S 7 allows the victim of such
breach to bring proceedings against the public authority.
o As well as providing a direct alternative to a claim in tort where the defendant is a public
body, the HRA 1998 may also indirectly influence the development of tort law.
 Limitation period: any claim in tort must be commenced within certain time limits. These so-called
limitation periods are found in the Limitation Act 1980.
o For tort claims the limitation period is generally six years from when the cause of action
arises(which is usually when damage occurs).
 Vicarious liability: when an employee commits a tort in the course of their employment then the law
allows any injured party to sue the tortfeasor’s employer as well as or instead of the employee.

Negligence:

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,Negligence may be defined as a breach of a legal duty of care owed to a claimant that results in harm to the
claimant, undesired by the defendant.

1) Duty of Care:

Established Duty Situations:
 Manufacturer of products to ultimate consumer where there is no reasonable possibility of
intermediate examination ( narrow rule in Donoghue v Stevenson).
 Rescuers: Where a defendant’s actions have created a dangerous situation so that it is reasonably
foreseeable that someone may attempt a rescue, the defendant owes a duty of care to the rescuer
(Baker TE Hopkins & Son Ltd [1959] 3 All ER 225).

Novel duty situations:
o Donoghue v Stevenson (1932): Lord Atkin’s neighboring principle: “You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who
then in law is my neighbor? The answer seems to be – persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected, when I am directing
my mind to the acts or omissions which are called in question.”
o Caparo Industries v Dickman: three-stage test to establish a duty of care in the absence of precedent:
 (i) reasonably foreseeable: what the reasonable hypothetical observer could reasonably have
foreseen (Bourhill v Young)
 (ii) relationship of proximity: relationship between the claimant and the defendant
 (iii) fair, just and reasonable (policy considerations): the court may deny a duty of care on policy
grounds. Policy considerations which influence the courts:
 Floodgates argument;
 Deterrence of a certain type of behavior;
 Resources: whether the cost of compensating the claimant is borne by society;
 Public benefit of the decision;
 Upholding the law.

 Marc Rich v Bishop Marine Co Ltd: it would not be fair, just and reasonable to impose a
duty because the society was non-profit- making and operated only for the collective
welfare in promoting safety at sea.

o Lord Reed in Robinson v Chief Constable of West Yorkshire Police: Where there is a novel case in which
the existing authorities do not provide an answer on whether a duty of care exists, the courts must develop
the law ‘incrementally and by analogy with established authority’ (at [27]). This includes considering
what is ‘fair, just and reasonable’.

General exclusionary rule for Public Bodies: With public body defendants, a general exclusionary rule
operates, preventing a duty of care from arising in the majority of cases. This is because there are ‘public
policy’ reasons which justify public bodies being generally exempt from negligence liability—denying that a
duty of care exists in the first place is the most effective way to ensure this.
 The general exclusionary rule operates where the actions of the public body are not direct, do not
cause these ‘easily recognised’ harms or do not make a situation worse.
o See East Suffolk decision.
 Hill v Chief Constable of West Yorkshire (The Hill Immunity): poor investigative decisions should
attract no duty as this might have an ‘inhibiting effect’ on the judgement of police officers; and
preparing a defense would waste police resources. Policy decision: If a duty had been imposed on the
police in the case of Hill, the duty owed to the public would be too wide.
o The Courts held that although it was foreseeable that if the police failed to apprehend the
killer, he would go onto kill another woman in the area, no proximity existed between the
police and the victim as the police could have no idea exactly who or where any victim
was likely to be – all females within the large area in which the murders were being
committed were equally at risk.
 Smith v Chief Constable of Sussex Police: police were informed of threats by an aggressive ex-
boyfriend but failed to take action. A duty was denied for public poly reasons:

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, o (1) a duty of care would detrimentally affect the working practices of the police who would
then ‘act defensively’; (2) time and resources would be diverted towards the handling of such
claims and away from the ordinary functions.
 In Osman v UK (1999) 11 Admin LR 200 the Court of Appeal had held the police owed no duty to a
claimant they knew was being harassed by a third party. However, the European Court of Human
Rights found that this policy of ‘blanket’ immunity for the police investigating a crime was a violation
of Article 6 (right to a fair trial) of the European Convention on Human Rights.

Exceptions to the Hill immunity:
 Robinson v Chief Constable of West Yorkshire Police: A duty is owed when the police, by direct and
positive negligent action, cause property damage or personal injury. Held: police officers owed a duty
to a 76-year-old woman who was knocked to the ground and injured during the negligent arrest of a
drug dealer on a city street.
 Rigby v Chief Constable of Northampton: distinctions are drawn between operational negligence
(that which happens in regard to the way in which they do their job), for which the police can be held
liable, and policy matters (decisions about resource allocation, prioritisation of cases or investigations
and so on), for which they generally cannot.
 Kirkham v Chief Constable of Greater Manchester Police: Police knowledge of a deceased mental
state of mind and their failure to pass the information to prison authorities made them liable for
negligence. The outcome of this case depended much on the police having assumed responsibility
towards the prisoner.
 Costello v Chief Constable of Northumbria Police: another case of assumption of responsibility
where a duty to act was imposed on a police officer where his failure to do so would result in a
colleague being unnecessarily exposed to an increased risk of injury.

Liability for omissions: the general rule is that you do not owe a duty to the world for your omissions (Stovin
v Wise)
o East Suffolk Rivers Catchment Board v Kent and another: if you do not owe a duty to act but you do
decide to intervene, you will not be liable in Negligence even if you do act carelessly, unless you make
matters worse.
 Held: public bodies would be liable only for the negligent exercise of a statutory power where
doing so had made matters worse.

o Exceptions: duty to act positively
 Power or control - Home Office v Dorset Yacht: There is a duty to act positively in tort if a
person has some sort of power or control over the other person or object. This special relationship
of control could arise in several different ways, eg employer and employee; schools and children;
parents and children; instructors and pupils.
 Carmarthenshire County Council v Lewis: The court held that the education authority owed a
duty to prevent the child endangering others. It had assumed responsibility for controlling the
child.
 An occupier’s duty generally does not extend to keeping their premises locked up so securely as
to prevent vandals getting in and damaging adjoining property. No duty was owed in Smith v
Littlewoods Organisation as the duty on an occupier would be too wide if it was held responsible
for damage caused to neighbouring property by third parties entering the occupier’s property,
when it had no control over those third parties.

2) Breach of Duty:

The defendant must be at fault by failing to come up to the standard required by law for fulfilling the duty.
That is a question of fact.
Standard of care: the reasonable person
 Blyth v Birmingham Waterworks: Anderson B: Negligence is the omission to do something which a
reasonable man ... would do, or doing something which a prudent and reasonable man would not do.
 Glasgow Corp v Muir: the test is objective and impersonal – “what would a reasonable person have
foreseen in the particular circumstances?”

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