T1.1 Intro to Tort
Lecture 1: Intro to tort
Tort law is the law of non-contractual civil wrongs.
• no contract is needed to make a successful claim against a defendant
• but the claimant has to show that:
◦ the defendant owed them a duty of care
◦ the defendant breached that duty of care
◦ this breach caused the claimant some sort of injury
• the duty is imposed by the courts
• tort relies heavily on history and precedent
• tort is about civic relations and our responsibilities towards each other in society
• tortfeasor: a person who commits a tort
• why is there tort law? for loss compensation: compensating claimants for the loss/injury/damage that they suffered
• criticism of tort law: slow, expensive process with no legal aid
Tort law =/= Criminal law
• criminal law is concerned with public wrongs & offences against the state
• tort law is concerned with private wrongs
• criminal law is about punishment, tort law is about compensation
Tort law =/= Contract law
• contract is a voluntary relationship, no one can force you into a contractual relationship
• tort is not about voluntary obligations, it's a duty that is imposed on you by the court
Negligence: the crucial features
• fault (intention is irrelevant, no mens rea needed unlike in criminal law)
• proximity (physical or direct duty-of-care relationship)
• foreseeability (of the consequences)
• reasonableness (of the defendant's conduct in that situation, 'standard of the reasonable man')
• causation (tort only valid if there is damage/injury done)
• remoteness (artificial test by courts to restrict liability, to restrict the floodgates of litigation)
Lecture 2: Aims & characteristics of tort
• Chain of causation: one incident follows another due to an initial conduct of negligence
• Nervous shock: instantaneous expression of extreme psychological upset.
• 'Deep pockets': a claimant that wants to sue, finds a defendant party that has the money to deliver.
Stages of tort: duty -> breach of duty -> factual causation -> remoteness
Tort law: policy or legal principle?
• Legal principle: based entirely on law and precedent
• Policy: the judges not acting strictly on the basis of legal principle, but on the basis of what they perceive to be in the
public interest
Characteristics:
1. Loss compensation
• Accident Compensation Commission in New Zealand: no need to prove fault, periodical payments instead of
lump sum
• Problems: cost through taxation? no deterrent function?
2. Loss distribution: on whom should loss fall? does the defendant have 'deep pockets'? prime example is insurance
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, 3. Protection of interests, e.g.
• trespass to the person - assault, battery, false imprisonment
• negligence - the right not to be injured by somebody else whether negligently or intentionally
• nuisance - the pride to enjoy your property without unlawful interference from somebody else
• economic interests - the right to good-faith financial advice
• defamation - threats to reputation
• privacy - right to enjoy a private life
4. Deterrence: effect of insurance on defendant's conduct? exemplary damages are those assessed to deter poor
behavior/conduct
5. Corrective justice: responsibility for consequences of action, different from loss distribution
6. Retribution, vindication, punishment: overlap with criminal law? burden of proof:
• 'balance of probabilities' in tort only needs more than 50% likelihood to convict
• 'beyond reasonable doubt' in criminal needs much heavier burden of proof
7. General characteristics of tortious liability:
a. fault (no need to establish intent, unlike in criminal law)
b. foreseeability
c. proximity
d. reasonableness
Eggshell skull rule: injuries must be taken as they are without speculation about what may have happened if the injury
victim did not have a condition that predisposed him/her to a more severe injury. This rule protects victims from
something they have no control over.
Reading
N.J. McBride and R. Bagshaw, Tort Law, 6th ed. (Pearson Education, 2018), 1-40.
Learning outcomes
Understand the aims of the Tort module.
Appreciate the development of negligence in its historical context.
Understand the basic principles of a negligence action.
Recognise the various purposes of Tort Law.
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,T1.2 Duty of Care
Lecture 1: Duty of care
To sue for negligence, must establish:
• existence of duty
• breach of duty
• breach caused damage
• type of damage was foreseeable
Negligence and the Industrial Revolution:
• before the IR, Britain was an agrarian society
• IR boosted economy and increased employment
• but more laborious work = more injury
• injured workers were usually poor and had no money to sue
• employers also presented the 'unholy trinity of defences':
◦ common employment: if you were injured due to the negligence of a fellow employee, you have implicitly
consented to it
◦ volenti (consent): accepting the job already means accepting the risk of injury.
◦ contributory negligence: if you contributed to your injury in any way, you cannot get compensation
• for most of 19th century, no duty of care exists without a contractual relationship (Winterbottom v Wright (1842)
• development of non-contractual tortious obligation, based on proximity between claimant and defendant
◦ Heaven v Pender (1883)
◦ Le Lievre v Gould (1893)
Donoghue v Stevenson [1932] AC 562:
• landmark case in negligence from 20th century
• establish duty owed by manufacturer to consumer
• the 'neighbour principle': one must take reasonable care to avoid injuring one's neighbour
• the neighbor is the 'foreseeable claimant' based on proximity
Who is the 'foreseeable claimant'?
• Palsgraf v Long Island Railroad Co (1928)
• Bourhill v Young (1943)
• Home Office v Dorset Yacht Co (1970) reaffirms primacy of neighbour principle
• foreseeability of harm vs proximity of relationship?
Lecture 2: Duty of care post-Donoghue v Stevenson
Authoritative cases:
Anns v Merton (1978):
• 2-stage test for existence of duty of care, propounded by Lord Wilberforce
◦ between alleged wrongdoer and person who suffered damage, is there sufficient relationship of proximity such
that the carelessness of the former may be likely to cause damage to the latter, in which case a prima facie duty
of care arises?
◦ if yes, are there any considerations which ought to negative, or to reduce or limit the scope of the duty or the
class of person to whom it is owed?
• criticisms:
◦ 1st stage: no distinction between 'proximity of parties' and 'foreseeability of harm', what consequences are not
'foreseeable'?
◦ 2nd stage: too much judicial discretion? over-reliance on policy?
Caparo Industries PLC v Dickman (1990):
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, • 3-stage test:
◦ foreseeability of harm
◦ proximity of parties
◦ fair, just and reasonable to impose duty? (allows a lot of judicial discretion)
Michael v CCSW (2015):
• effect on the 3-stage test in Caparo v Dickman
• Lord Toulson: concepts of 'proximity' and 'fairness' are not practical tests, but labels to attach to features of
situations which the law recognised as giving rise to a duty of care.
Home Office v Dorset Yacht Co (1970): extended the duty of care beyond the consumer-manufacturer relationship, can
be applied to various other relationships.
Proximity or Policy? (all interesting cases relating to police's blanket immunity)
• Capital Counties v Hants (1997)
• Swinney v Chief Constable Northumbria Police (1999)
• Hill v Chief Constable West Yorkshire (1989)
• Comm’r of Police of the Metropolis v DSD (2018)
• Osman v UK (2000)
• Robinson v CCWY (2018)
Do police owe a duty of care?
• yes to overall society to 'maintain queen's peace'
• no to individual members of society
• police can be held liable for positive acts, e.g. injuring a citizen
• but usually cannot be held liable for omissions
• if the police owed a duty a care to everyone, it would hinder their ability to do their job properly:
◦ they will be distracted by all the caution of not getting sued, one eye on work and one eye on litigation
◦ they will have to pay out damages for claimants, disrupts their public resources from taxpayers
Ratio decidendi vs. Obiter dicta:
• ratio decidendi: main reasoning behind the judgement
• obiter dicta: everything else, comments by the judges (including dissenting opinions) which are not legally binding
Reading
McBride and Bagshaw, 79-118.
Learning outcomes
Understand the requisite criteria for establishing the existence of a duty of care.
Be fully aware of the significance of Donoghue v Stevenson in establishing a separate tort of negligence.
Understand the relevance of proximity of parties and foreseeability of harm to a successful claim in negligence.
Appreciate the importance of policy in judicial decision-making.
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,T1.3 Breach of Duty
Lecture 1: Breach of duty - criteria
• not subjective, not based on what D thought about 'doing his best'
• objective, based on the court's standard of the 'reasonable man' (man on the Clapham omnibus)
4 standard factors that courts consider when determining breach of duty:
1. probability of risk/harm
• Bolton v Stone (1951): cricket ball hits C, D (cricket club) is not held liable
• Lord Radcliffe: "negligence is concerned less with what is fair than with what is culpable"
• Miller v Jackson (1977): D (cricket club) held liable as many accidents have happened and there was high risk
2. cost of eliminating risk
• United States v Carroll Towing Co (1947) - 'Learned Hand' formula
• breach occurs when cost to D of taking precautions is outweighed by magnitude of risk and gravity of possible
harm to C:
◦ B<PL
◦ probability (P) that harm will result
◦ gravity of loss (L) or harm
◦ cost or burden (B) of preventing it
• Latimer v AEC Ltd (1952)
3. severity of loss
• takes into account C's condition
• Paris v Stepney Borough Council (1951): C only had one eye, risk of higher severity
• Haley v LEB (1965): D did not consider blind people in their conduct, greater likelihood of injury
4. utility (of D's conduct)
• does D provide a socially useful service?
• Daborn v Bath Tramways Motor (1946): "if all the trains in this country were restricted to a speed of 5 miles an
hour, there would be fewer accidents, but our national life would be intolerably slowed down".
• Watt v Hertfordshire C.C. (1954): fire equipment falls on firefighter, high risk involved but purpose was good
• issue: do public utilities get unfair advantage/deference over private services?
• Thompson v Smith Shiprepairers Ltd: C argued that D not providing ear protectors despite their risk awareness
led to C's deafness, D's defence was that the general practice in the industry did not involve this duty of care, but
D was still held liable as D had the knowledge and resources for protectors
Statutory regulation about standard of care:
• Compensation Act 2006, s.1: is what D's doing a ‘desirable activity’?
• Social Action, Responsibility and Heroism Act 2015 (SARAH):
◦ was D acting for benefit of society?
◦ did they demonstrate predominantly responsible approach?
◦ were they acting heroically in an emergency?
Lecture 2: Breach of duty - the objective standard of care
Lack of skill is no defence:
• Nettleship v Weston (1971):
◦ learner drivers are held to the same standard as qualified drivers
◦ D was also held liable because she was insured ('deep pockets' for tort)
◦ held to the standard of the reasonable man
Specific categories of defendant:
• impaired mental function:
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, ◦ Mansfield v Weetabix (1998): unaware of illness, which made him unconscious hence the driving accident (not
liable)
◦ Roberts v Ramsbottom (1980): aware that he was getting drowsy but went on driving negligently (liable)
◦ Dunnage v Randall (2015): D set himself on fire while schizophrenic, C helped and got injured, D is liable as he
was aware
• children: held to looser standard of care
◦ Mullins v Richards (1998): 15-y/o D had ruler fight and accidentally blinded D, not held liable
◦ McHale v Watson (1966): during a game of tag, 12-y/o D threw a rod which bounced off and blinded C, not
held liable
◦ Ryan v Hickson (1974): 12-y/o D held liable, held to adult standard as he engaged in adult activities (driving
snowmobile)
• special skills: if D professes a skill, D is held to the standard of professionals in that skill
◦ Philips v Whiteley Ltd (1938): D referred C to 3rd party jeweller for ear piercing, piercing got infected but
neither jeweller nor D were held liable as a jeweller could not be held to a surgeon's standards and has already
taken reasonable steps.
Medical professionals:
• Bolam Test (Bolam v Friern Hospital Management Committee (1957)): medical professionals not held liable for
negligence if their “practice [is] accepted as proper by a responsible body of medical men”
• Wilsher v Essex AHA (1986):
◦ standard of ordinary skilled persons exercising and professing special skill
◦ a junior doctor held to the same professional standards as a fully qualified doctor
• Bolitho v City and Hackney HA (1997):
◦ practice should be regarded as proper by a competent, reasonable body of opinion
◦ more objective than Bolam, but is it adequate?
Bolam test and informed consent:
• Sidaway v Governors of the Bethlem Royal Hospital (1985):
◦ less than 1% risk of damage to spine, following surgery
◦ C not informed, damage materialised
◦ Bolam test applied to informed consent as well as treatment
◦ no duty to inform patient of risk
• Rogers v Whitaker (1992):
◦ Australia rejected Sidaway – there is a duty to inform patient of material risk
• Pearce v Bristol Healthcare NHS Trust (1999):
◦ 0.2% chance of stillbirth following overdue pregnancy
◦ especially natural birth rather than c-section
◦ deemed not significant, no duty to disclose
• Montgomery v Lanarkshire Health Board (2015):
◦ Sidaway overruled
◦ patient must be made aware of 'material risks'
◦ would the reasonable patient 'attach significance to the risks'?
Res ipsa loquitur – the thing speaks for itself:
• Roe v Minister of Health (1954):
◦ establishes prima facie case of negligence
◦ way in which courts infer negligence from circumstantial evidence
◦ note: prima facie =/= negligence, just a basis for inference
• Scott v London & St Katherine Dock Co (1865):
1. absence of explanation
2. harm must be of a kind that it does not ordinarily occur if proper care is taken
3. D must have been in exclusive control of the situation
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