Summary
Summary TORT Law Notes
TORT Law Notes for SQE 1 Exams
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TORTNEGLIGENCE: DUTY OF CARE
- Tort of negligence can provide compensation for harm caused to a claimant
by the carelessness of a defendant
- A breach of a legal duty of care owed to a claimant that results in harm to the
claimant, undesired by the defendant
1. Did the Defendant owe the claimant a duty of care?
- No
o There is no liability in negligence
- Yes
o Consider breach of duty
2. Was the defendant in breach of duty
- No
o There is no liability in negligence
- Yes
o Consider causation
3. Did the defendant’s breach of duty cause damage to the claimant?
- No
o There is no liability in negligence
- Yes
o consider the defenced
DUTY OF CARE
- no general duty owed by the police to a suspect regarding the way in which
the police conduct their investigation
o Hill v Chief Constable of West Yorkshire
- Only where the claimant has suffered physical damage either personal injury
or damage to property
- Established duty situations:
o One road user to another: driver to drivers: driver to passenger: driver
to pedestrian: cyclist to driver: cyclist to pedestrian
o Doctor to Patient
o Employer to Employee
o Manufacturer to Consumer
o Tutor to Tutee, Teacher to Pupil
- Baker v TE Hopkins & Son Ltd – Driver who caused an accident owes a duty
of care to pedestrian who tried to rescue the injured road used.
, o Where a defendants 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
Novel Duty Situations
- Modern test to determine duty of care in novel situations
Old Test:
o Donoghue v Stevenson
Manufacturer owed person who drunk the drink a duty of care
Manufacturer duty to consumer
o This case determined the neighbour principle
o Lord Atkins:
You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your
neighbour
Who is your neighbour?
o Persons who are so close and directly affected by
my act that I ought reasonably to have them in my
contemplation as being so affected when I am
directing my mind to the acts or omissions which
are called in question
o The test is one of close relationship or proximity
o Whether the particular defendant ought reasonably to have foreseen
the likelihood of injury to this claimant
NEW TEST:
- Caparo Test
o New test to determine duty of car in novel situations
o House of Lords held that the auditors who showed the company was
worth more money that it was worth did not owe a duty of care to the
claimant who relied on this and bought more shares in the company
o 3 Part TEST:
Reasonable foresight of harm to the claimant
Sufficient proximity of relationship between the claimant and
defendant and
That it is fair, just and reasonably to impose a duty
- Foreseeability
o Reasonable foresight of harm to the claimant
o Is it reasonably foreseeable that the defendant’s actions will affect this
particular claimant?
o Bourhill v Young-
Where harm was not reasonably foreseeable.
, As the claimant was not foreseeable victim to the
motorcyclist who caused an accident. The claimant heard
the collision and walked to the scene.
- Proximity
o Proximity relates to the relationship between the claimant and the
defendant
- Fair, Just and Reasonable
o Hill v Chief Constable of West Yorkshire
Claim was brought against the police by the parents of a murder
victim
There was no duty of care owed by the police to any individual
as their duty is to the public at large
o Factors to consider:
Floodgates argument:
If one case is allowed to succeed, the floodgates will
open to admit hundreds of other similar cases
Deterrence of a certain type of behaviour may be a
consideration
Resources
The court will consider a decision very carefully if the
defendant has no insurance to meet an award of
compensation
Likewise the court will consider the overall increase in
premiums funded by society in general, if they award the
damages
Public Benefit
Court will consider any benefit to the public as a result of
its decision
Upholding the law
Adhering to the rule of law may produce a result which
appears to be unjust in the eyes of the public but the
court must uphold those legal rules despite public
criticism
, LIABILITY FOR OMISSION TO ACT
General rule is that there is no liability for omissions
- Stovin v Wise
o Highway authority failed to exercise its powers to reduce the danger,
and then an accident occurred.
o It was held that the authority owed no duty of care to road users to
alleviate the danger
- i.e if John sees someone drowning and fails to go and help, he cannot be
sued in negligence as he does not owe a stranger a duty to act positively
- Exceptions:
o If someone decides to act, they have a duty not to make the situation
worse
East Suffolk Rivers Catchment Board v Kent and another-
If a defendant does not owe a duty to act but
nevertheless decides to intervene, there is no liability in
negligence even if the defendant does act carelessly
unless they make matters worse
o Occasions where there is a duty to act positively
There is a duty to act positively when a person has some sort of
power or control over the other person or object
i.e.
o employer and employee
o schools and children
o parents and children
o instructors and pupils
Home Office v Dorset Yacht co ltd
Duty of care owed to the claimant by the Home Office
which was liable for the negligent acts of its employees
The duty is owed by the officers because they should
have foreseen the harm to the claimant’s yacht when they
failed to supervise the boys who all had criminal records
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