1.2 Tort Law Duty of Care

Question 1

Five elements of the tort of negligence

Answer 1

1. DUTY of care owed to the claimant (by the defendant)
2. BREACH of the duty of care owed to the claimant (by the defendant)
3. CAUSATION where such breach of duty of care caused damage
4. ACTIONABLE DAMAGE where claimant’s loss must be actionable
5. REMOTENESS where loss cannot be too remote
6. No applicable defences- not necessarily an element of the negligence action but is still important

Question 2

Duty of care as a control mechanism

Answer 2

• Control device to limit liability/negligence
• Duty owed to a person in specific categories where harm is foreseeable

Question 3

Balance of Probabilities

Answer 3

• More likely than not
• Claimant must prove all the 5 elements of negligence on a balance of probability
• In civil cases, the claimant has the burden of proof on a balance of probabilities
• However in criminal cases, proof beyond a reasonable doubt is required, because of the consequences of being a convict

Question 4

Quote on sequential elements of negligence
By Stapleton, Three Essays on Torts, page 65

Answer 4

“the five elements of the tort of negligence are, analytically, dependent on each other in a sequential way”

Question 5

Actionable damage

Answer 5

• Damage sufficiently serious to be recognised in law
• Usually caters for physical injury and property damage
• E.g. physical injury where there is an established duty and foreseeable harm –> negligence claim in relation to actionable damage

Question 6

Quote Stapleton about actionable damage

Answer 6

Actionable damage is the “gist” of negligence

Question 7

Quote on actionable damage and courts’ approaches
Stapleton, Three Essays on Torts, chapter 3

Answer 7

“Types of ‘actionable damage’ are economic loss, nervous shock, and physical injuries… which type of complaint is in issue determines the approach the courts take to the analysis of the duty question”

Question 8

Actionable per se

Answer 8

• Some torts (NOT negligence) can exist without the need for the claimant to prove damage (independent from proof)

Question 9

Monetary value

Answer 9

• Tort law is about compensation, so the claimant must always prove what they have lost
• However, for the tort of negligence, proof of actionable damage is essential. No damage = No negligence

Question 10

Rothwell v Chemical & Insulating Co Ltd

Answer 10

• Case about physical injury, tested the boundary of what actionable damage is
• Victim had condition called plural plaques (scarring on the inside of the lungs) which is associated with a higher risk of developing other asbestos diseases
• The court held that internal scarring did not count as actionable damage; this is strange because external scarring is usually actionable damage

Question 11

Yearworth v North Bristol NHS Trust

Answer 11

• Stretched the boundary of what is considered property and property damage
• Fertility clinic threw away frozen sperm led to victim suffering psychiatric harm
• This was considered property damage

Question 12

Murphy v Brentwood DC

Answer 12

• Testing boundaries of property damage
• Defendant inspected and approved the house but its foundations were faulty, leading to foundations cracking, causing damage to the rest of the house
• The claimant sold the house as he could not afford to repair the damage; he lost money as he got less than he paid for the house originally
• Claimant sued for negligence saying the house should not have been approved by the defendant
• The court said that the house did not qualify as a damaged house in torts (a house cannot damage itself- the house cracking did not count as damage); it was just a house worth less than the claimant paid for
• The court applied the tort concept of pure economic loss- these are recoverable but requires a special test

Question 13

McFarlane v Tayside (2000) 2 AC 59

Answer 13

• New forms of damage; courts struggled to fit harm in the notion of damage, but they wanted to compensate the claimants
• Two cases of sterilisation failed, and claimants sought compensation for the cost of raising another child
• The courts were reluctant to define pregnancy as injury, and to consider the cost of raising a child as damages
• The court refused to allow the parents’ claim for the costs of raising the child
• Allowed the claimants’ appeal in part; the mother was entitled to damages for the pain, suffering, and inconvenience of pregnancy and childbirth for extra medical expenses

Question 14

Rees v Darlington Memorial Hospital NHS Trust (2003)

Answer 14

• This case qualified McFarlane, holding that while in the case of wrongful birth, policy considerations preclude the award of damages for the costs of bringing up a normal healthy child, but the courts may provide a non-compensatory award
• Claimant was disabled which made raising more children difficult; she had more children due to NHS’ fault. Tried to claim for the costs of raising another child
• Compensated partially (only for lifestyle change damages) as the court said that there was not a huge change to her lifestyle as an existing mother
• Unrealised damages are non-actionable in tort law

Question 15

Unrealised damages

Answer 15

If no person/property is harmed it is an unrealised wrong (e.g. driving car on road carelessly, but no one is harmed)

Question 16

Donoghue v Stevenson (1932)

Answer 16

• Development of a general test for the duty of care
• The manufacturer was liable to the ultimate consumer
• General test for duty of care by Lord Atkin (he sets out the neighbourhood principle)
• “foreseeable___
• “Acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.”
• “Who is my neighbour? Receives a restricted reply. 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 into question.”

Lord Macmillan took a different, more narrow approach than Lord Atkin
- He states that the law does not care about carelessness in abstract, only where duty to take care and failure in duty causes damage.
- Categories of negligence are developed slowly in the law, and these categories are never closed