Lecture notes
Tort law
- Module
- Tort Law
- Institution
- City University (City)
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TERM 1INTRODUCTION
What is Tort Law and is it a subject as all?
Civil wrongs
Principal torts include negligence (when someone is careless), nuisance (playing loud music),
defamation, assault, battery, and false imprisonment
When and what conduct will be deemed to evoke liability in tort law?
When and what conduct would D provoke liability?
What is tort law trying to achieve so us it purely compensation. For example, if someone
breaks their leg or loose a limb. Would compensation could reverse this. The answer would
be no, so why bother with compensation? We need compensation to cover the cause of the
cost. There is this question whether the compensation would be appropriate? As money
cannot bring that leg back, so can we say this is the right thing? There could be a situation
where the doctor does something negligently. Would compensation be right? We would not
want to discourage doctors from their professions. If they are constantly sued for their
negligence, then there would not be enough doctors. The money comes from the NHS,
money would be concentrated in few hands. There is also the importance of reputation that
needs to be protected because it could affect economically as you may not get a job. Is it
achieving justice between the 2 private individuals? Some people argue that compensation
would not allow them to stop behaving this way again, they may do this in future again. This
is also a problem. Human rights are also the key theme for this topic. An example for this
could be defamation.
How to establish Negligence?
The claimant must prove their case and to do this there needs to be balance of probability.
The claimant must establish that:
The defendant owes a duty of care;
The defendant has acted in breach of that duty; and
As a result, the claimant has suffered damage to which is not too remote a consequence of
the defendant’s breach.
Summary of this would be: the claimant must prove that the defendant owns a duty of care and
that has breached that duty, and this therefore caused the claimant to suffer the damages
because of this situation. So, the three events would be: Duty, Breach and Causation. Afterwards
there would be defences and remedies.
THE SIGNIFICANCE OF THE DUTY OF CARE CONCEPT
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,Donoghue v Stevenson [1932] AC 562 established a general test- This involves 2 friends that when to
a café. The friend brought Donoghue a ginger bear and the bottle was not see through. Part of the
decomposed snail has came up and because of that reason she had a tommy bug. Donoghue is the
3rd party and she cannot used contract law, so she needs to find a different way. With tort law you
don’t choose to enter into a contract. She couldn’t use the retailer and therefore uses tort to sue
manufacturer. The reason for this is because they have the most money. The best party to sue would
be manufacturer. When serving the bottle, you cannot check what’s inside of it so something could
have went wrong in manufacturer stage in that bottle. Lord Atkin has mentions how:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour (This could be
referring to someone who is close, or you have a connection with.) For example
your neighbour could be your consumer. Who, then, in law is my neighbour? 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’ (Lord
Atkin, ibid, at 580).
THE HISTORICAL DEVELOPMENT OF THE DUTY OF CARE CONCEPT
■ Dorset Yacht v Home Office [1970] AC 1004 - arguably developed a two-stage test. Some
young offenders were doing some supervised work on Brown Sea Island under the Borstal
regime. One night the Borstal officers retired for the evening leaving the boys unsupervised.
Seven of them escaped and stole a boat which collided with a Yacht owned by the claimant.
It was held that: The Home Office owed a duty of care for their omission as they were in a
position of control over the 3rd party who caused the damage and it was foreseeable that
harm would result from their inaction. In this case the guards were responsible, and they
have failed to protect the harm.
■ Anns v Merton London Borough Council [1978] AC 728 - Lord Wilberforce explicitly
advocated a two-stage test in. The claimants were tenants in a block of flats. The flats
suffered from structural defects due to inadequate foundations which were 2ft 6in deep
instead of 3ft deep as required. The defendant Council was responsible for inspecting the
foundations during the construction of the flats. The House of Lords held that the
defendant did owe a duty of care to ensure the foundations were of the correct depth.
Lord Wilberforce introduced a two-stage test for imposing a duty of care. This has since
been overruled by Caparo v Dickman.
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, 2 stage tests were created, and these were;
Is there enough relationship of proximity and foreseeability?
Are there any considerations which could reduce or limit the possibility of liability?
The two-stage test was not favoured because it would give people to use the excuse of duty of care.
■ The courts eventually abandoned the two-stage test due to its perceived problems.
CAPARO V DICKMAN [1990] 2 AC 605- this test is not accurate to use anymore!
The three-stage Caparo v Dickman [1990] 2 AC 605 test was regarded as representing the
current law on establishing a duty until Robinson was decided.
Whether a duty exists is often straightforward: previous cases have already identified types
of situations that are treated by the courts as imposing a duty of care. In contrast, there are
other cases where the law has unequivocally denied duty. When the facts fall into neither
group and there is no relevant legislation, the courts apply the three-stage test.
In the test you would look at if there is any reasonable foreseeability, whether there was
proximity and is there fair, just and reasonable to impose a duty.
Not every situation is a novel situation.
CAPARO V DICKMAN [1990] 2 AC 605 – FORESEEABILITY- A reasonable person show has foreseen in
the defendant circumstances.
CAPARO V DICKMAN [1990] 2 AC 605 – PROXIMITY- any reasonable average person and its more of
an objective test rather than subjective test. This is also another way of referring to a
neighbourhood. Whether something develops over time and this is demonstrated in the case of
Osman v Ferguson.
The relationship between the defendant and the claimant;
Osman v Ferguson [1993] 4 All ER 344; - A school teacher (Mr Paul Pagett Lewis) formed an
unhealthy attachment to a 14-year-old pupil (Ahmet Osman). He had given him money,
taken photographs of him and followed him home. The police were informed but no action
was taken. Things continued, and the teacher changed his name by deed poll to Paul Ahmet
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, Osman. He accused Ahmet of having a homosexual relationship with a fellow pupil and tried
to prevent them speaking to each other. He was then suspended from teaching and
embarked upon serious harassment of Ahmet and his family. The police were called on
several occasions and the teacher had told the police that he was unable to control himself
and would do something which was criminally insane if he was not stopped. Eventually he
followed Ahmet home one night and shot him and his father. Ahmet survived but
unfortunately his father didn't. The teacher was convicted of manslaughter on the grounds
of diminished responsibility.
The police had the duty to do their work and they were contacted by this situation. The police
were informed by the risk. There could be a relationship in which it could be developed over
time.
Everett v Comojo Ltd UK [2011] EWCA Civ 13- the case is about proximity, there was a
proximate relationship. The waitress was harassed in the club by the person 1 and he was
beaten up by the other person. He wanted to sue the club.
Caparo v Dickman [1990] 2 AC 605 – Proximity
The relevant type of harm
Vowles v Evans [2003] 1 WLR 1607- The claimant had been injured in a rugby match, and
had recovered damages from the referee, who now appealed. The relationship was
proximate, and the injury reasonably foreseeable, and if the referee failed to exercise
reasonable care, liability could follow. The referee accepted a role of enforcing rules to
minimise danger in a dangerous sport. Here the referee had failed to enforce rules intended
to protect players, and it was a decision taken whilst play was stopped, not running play.
Whether the claimant is part of a class of people who were, or could have been, affected by the
relevant harm, and, if so, the size of the class
Hill v Chief Constable of West Yorkshire [1989] AC 53- The attacker was convicted of the
murder of the daughter and had allegedly committed a number of offences of murder against
young women in the same area over a period of years prior to the deceased’s murder. The
plaintiff claimed damages against the defendant for negligence on grounds that having
investigated the previous cases of murder in the area, the police had failed to arrest the
attacker and prevent the murder of her daughter.
(1) The police could be liable in tort to persons who are injured as a direct result of their acts and
omissions.
(2) However, the police do not owe a general duty of care to arrest an unknown criminal.
(3) The police also do not owe a duty of care to individual members of the public who suffer as a
result of the criminal’s activity.
(4) sufficient proximity of relationship between the police officers and victims of crime.
CAPARO V DICKMAN [1990] 2 AC 605 – FAIR, JUST & REASONABLE
Whether the defendant acts for the collective welfare:
Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211
Whether the conduct in question involves an omission, as opposed to an act:
Smith v Littlewoods [1987] AC 241
Stovin v Wise [1996] AC 923
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