Tort
2 exams – 50% - 105 mins
- sA – compulsory problem q – seen
- sB – must answer 1/3 qs
- MODERN POSITION – MODERN ADVICE
o Don’t rely too much on history
- Week 8 lecture – half session exam
o Also reg online tests
o Immediate generic feedback in the other half of the session
- Need statute book – most up to date version
Lecture 1 – week 1
The Fundamentals
- Tort – social contract of a country
o Social expectation reinforced in law
o Moves quickly and free-flowing
Common law heavy
- Tort – a wrong
o Law is seeking to correct the wrong
o A civil wring giving rise to an action for damages
eg compensation
- Core elements
o Act OR omission
That causes…
o Damage
To a protected interest of C…
o By the fault of D
Burden of proof is on C
o Standard of proof is on the balance of probabilities
Usually to the standard of a reasonable person
- Protected interests
o Personal security
o Personal property
o Economic interests
o Reputation/privacy
,e.pryzchodzki@liv.ac.uk
- Contract v tort
o Tort duties are fixed by law and are owed to people in general; contract
duties arise voluntarily and are owed generally to only the other
contracting party
Tort – enforcing expectation
Contract – enforcing promises
- Tort v criminal
o Tort – wrong against a person rather than against the state
- Function of torts
o Loss shifting
o High level finger pointing
o Justice
Corrective justice
o Compensation
Compensation culture?
Primary aim to put the claimant back into the position they were
in before the tort was committed
P. Atyaih
o Deterrence
Individual v community liability
Can shape behaviour
Roe v Minister of Health [1954] 2 All ER 131
o Effect of the case was to publicise a specific risk to
the medical profession
Does scrutiny increase level of care?
Social conscience – how would the NHS
survive if taken to court all the time?
Arguably obstructed by the prevalence of insurance
Unlikely to deter carelessness in the form of inadvertence
o Punishment?
o Loss distribution
Insurance – full burden of loss is transferred from claimant to the
insurer, insured and all policy holders
Eg s.143 Road Traffic Act 1998
o Compulsory motor insurance
o Public forum
Not just monetary compensation
Cl wants vindication or public airing of issues
o All of the above
Michael v CC for South Wales Police [2015]
Dom abuse
Calls police, assaulted, says he will come back and said he
will kill her
,e.pryzchodzki@liv.ac.uk
Calls police again 15 mins later
o Whilst on call hears screams
o Police arrives 8 mins later
Deceased
Do the police have a duty of care to her to act
immediately?
o Breach of ECHR
Compensation? Deterrence? Public forum?
o Compensation would prevent them from fulfilling
their duty?
o Deterrence? Would it make them more likely to act
faster?
o Nanny culture in tort
Going too far?
Examples in PP
Common Sense Common Safety – talk in folder
Duty of Care – foundation of negligence
- Legally significant relationship
- Duty, breach, causation
o Relationship, expectation, fault link
- Damage has to be caused
o Cannot be sued just for being bad at something
Duty not to inflict damage carelessly
- Must be actionable damage
o Rothwell v Chemical …
- Duty – general principles in practice
o Origin – Donoghue v Stevenson [1932]
L Aitken – social wrong for duty to stop at a contract; to not be
able to sue unless there is a contract
The Neighbour Principle
Reasonable care to avoid acts or omissions which are
reasonably foreseeable to injure your neighbour
o Ought to have reasonably contemplated that they
could be affected
Encompasses:
o Foreseeability
o Proximity
o Following – expansion (until 1983) then retraction (post 1985)
Headley Byrne (1964)
Anns v Merton London Borough Council (1978)
Junior Books ltd (1983)
Sutherland Shire Council v Heyman (1985)
Murphy v Brentwood DC (1990)
, e.pryzchodzki@liv.ac.uk
Caparo
Foundation of the modern – making Donoghue relevant
- Caparo Industries v Dickman (1990)
o No longer a simple formula or touchstone to provide a ready answer in
every case
o Established a test
Duty can arise where:
Was the harm to C foreseeable, and…
Is there a relationship of proximity between C and D, and…
Is it “fair, just and reasonable” to impose a duty on D
o Some extent a fleshing out of Neighbourhood p.
Applicable in novel cases
“increasingly clear recognition the three-fold test… does not
provide an easy answer to all our problems, but only a set of fairly
blunt tools”
Customs and Excise Commissioners v Barclays Bank [2006]
UKHL 28 at [71]
o Didn’t go far enough?
- Incremental approach
o Robinson [2018] (v important)
Robinson v Chief Constable for West Yorkshire [2018] UKSC 4
Lord Reed quote on PP
Coherent and avoidance of inappropriate distinctions
Just fair and reasonable
- Recalibration of the same principles in Donoghue
- Is it still too vague?
- Professional negligence in 2018: the year in review (2019) 1 PN 6-31
- Look at considerations on ppt for prep next session
o ROBINSON
Appeal against a decision that the police owed the victim no duty
of care in respect to injuries sustained when a suspect attempted
to escape arrest in a busy town centre
Appeal was ALLOWED
L Mance and L Hughes dissenting – reasons why a duty of care
existed
Did the existence of a duty of care always depend on the
application of the Caparo test?
o No
o Caparo rejected the idea that there was a single
test for determining the existence of a duty of care
Urged an approach based on common law,
precedent, and the incremental
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller gemmawatson. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for £10.49. You're not tied to anything after your purchase.
