Essay

First Class Tort Law Essay

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Module
Tort Law

Institution
The University Of Kent (UKC)

First-class essay responding to a problem questions scenario. Covers common law duty of care, duty of care for omissions, material increase in risk test, but for test, volenti non fit injuria, test of knowledge, employer/employee relationship, duty to provide a safe space and system of work, standa...

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Uploaded on February 18, 2024
Number of pages 9
Written in 2020/2021
Type Essay
Professor(s) Unknown
Grade A

tort law
law of tort
duty of care
common law duty of care
but for test
duty of care for omissions
material increase in risk test

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Liam v UoC

Liam may bring a claim of negligence against UoC for failing to explain what a
‘legitimate reason’ for not wearing a face-covering was.

Duty of care
Universities owe students a common law duty of care, which includes taking steps to
protect their “health, safety and wellbeing.” 1 To establish a duty of care for
omissions, As a student, Liam may argue that there is a special relationship between
himself and UoC. Furthermore, he may argue that UoC assumed responsibility over
students by taking steps to protect them, thereby creating a duty of care. 2 Lastly,
UoC has some degree of control over students – it can create rules that if not
adhered to, may result in suspension or termination of studies. All of this together
creates a duty of care.

Breach
Though failing to properly explain a ‘legitimate reason’ was an omission and not a
positive act, there was a duty to act due to the pre-tort relationship – therefore, this
omission can be considered to be a breach of said duty. 3 The standard of care will
be held to the objective standard of the reasonable man. 4 The first factor to consider
in applying this standard is the likelihood of the harm occurring. It is reasonably
foreseeable that if the ‘legitimate reason’ is not explicitly stated, a university student
may not wear a face-covering, catching or spreading Covid-19. Another factor is the
severity or gravity of the possible harm. Based on the virus statistics, UoC could use
expert evidence to argue that as Liam is young and healthy, he did not face a great
risk of developing severe Covid-19. However, even a small risk of serious injury
makes the standard of care higher.5 Liam can use expert evidence to show that
although he did not face great risk, it was still a possibility. Next, Liam must show

1
'Higher Education Coronavirus (COVID-19) Operational Guidance' (GOV.UK, 2021)
2
Barrett v Ministry of Defence [1995] 1 WLR 1217
3
M’Alister (for Donoghue) (Pauper) v Stevenson [1932]
4
Blyth v The Company of Proprietors of The Birmingham Water Works 156 ER 1047
5
Paris v Stepney Borough Council [1951] AC 367

, that UoC did not take adequate precautionary steps, considering the relative cost
and ease of these precautions. It would have been inexpensive for UoC to properly
explain the meaning of a ‘legitimate reason’ and to remind students to wear
adequate face-coverings. Additionally, Campus Security could enforce these rules.
As held in Nettleship v Weston, there is no allowance for the defendant just doing
their best.6 Having established the standard of care, we can see that the University’s
conduct fell below it.

Causation
Liam attended a corridor party on December 2 nd. It is therefore difficult to tell, on the
balance of probabilities, whether Liam caught the virus from not wearing a face-
covering to class or from the party. However, only one of these exposures will be the
operative cause of his infection. Therefore, the material increase in risk test is
applicable instead of the but-for test. As this is an exceptional test, the criteria must
be met.7 The state of scientific knowledge must be insufficiently advanced for Liam to
prove that the University’s breach caused him to catch the virus. The type of damage
he suffered must be a reasonably foreseeable consequence of the breach of duty,
which has already been established. Lastly, the competing causes must be the same
or operate in the same way. Both not wearing a face-covering and attending a party
operate in the same way – there is an exposure to the virus through contact with
others and insufficient protection. To succeed, Liam doesn’t need to prove that the
University’s breach caused the damage, but that it materially increased its risk 8 - by
50%. I do not believe that Liam will be able to prove that UoC sufficiently materially
increased the risk of damage. Due to his belief, even if the University had clarified
the meaning of a ‘legitimate reason’, we cannot be sure that Liam would have worn a
face-covering. Furthermore, if Liam had started wearing a face-covering due to the
clarification, there is no evidence he would have worn one to the corridor party. And
if he had, being in a small space with others, the face-covering wouldn’t have
sufficiently protected him from COVID-19. (Expert evidence would be needed.)

6
Nettleship v Weston [1971] 2 QB 691
7
Fairchild v Glenhaven Funeral Services Ltd and Others [2002] UKHL 22, [2003] 1 AC 32
8
McGhee v National Coal Board [1973] 1 WLR 1

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