Introduction to Tort

Question 1

Functions of the law of tort:

Answer 1

• compensation of victims,
• deterrence,
• corrective justice,
• vindication of rights.

Question 2

What does the law of tort protect:

Answer 2

• both harms and rights i.e. rights to bodily freedom and autonomy
• any single harm or injury will often be covered by more than one tort,
• tortious liability may be limited when it is thought you be undesirable for policy reasons,
• not all torts are protected equally i.e, physician injury and damage to an individual’s reputation are protected more than sexual harassment and autonomy.

Question 3

Policy

Answer 3

Used to describe a certain type of factor or consideration which courts do or may take into account when deciding cases and framing legal rules ( typically non- legal considerations but it’s use varies)

Question 4

How to analyse a Tort action:

Answer 4

1) identify all the possible claimants and defendants,
2) identify the nature of the loss for each potential claimant,
3) consider which torts (there may be more than one) may be relevant,
4) explain the elements of the relevant tort(s),
5) apply the law for the relevant tort (s) to the facts of the case , discussing any particular issues that may arise,
6) identify any arguable defences and discuss these in relation to the facts of the case,
7) reach a conclusion if possible on whether the defendant will be liable,
8) consider what the possible remedies are.

Question 5

Negligence

Answer 5

• A breach of a legal duty owed to a claimant that results in harm to the claimant undesired by the defendant.
• common law tort = governed by law made by the Courts

Question 6

What are the elements of a claim in tort:

Answer 6

1) did the defendant owe the claimant a duty of care?
2) was the defendant in breach of that duty?
3) did the defendant’s breach of duty cause damage to the claimant?
4) are there any defences available to the defendant ?

Question 7

The general rule re omissions to act

Answer 7

There is no liability for omissions to act, I.e. doing nothing to prevent harm.

Question 8

Stavin v Wise [1996] AC 923

Answer 8

• case re no liability for omission
• highway authority failed to act to fix a road junction it knew to be dangerous,
• it was held that they owed no duty of care to road users to alleviate the danger.

Question 9

East Suffolk Rivers Catchment Board v Kent and another [1940] 4 All ER 527

Answer 9

• land belonging to claimant was flooded which the defendant had no duty to repair the source of the flood but a statutory power to do so
• they did decide to fix the issue but took a long time to do so and the land remained flooded.
• the HOL said there was no liability in tort,
• the board was guilty of an omission, not a positive negative act
• if you do not owe a duty to act but you do decide to intervene you will not be liable in negligence even if you do act carelessly unless you make matters worse.

Question 10

Established duty situations

Answer 10

Once the courts have decided that a duty of care does exist in a given situation it becomes an established duty and relates to all relationships of the same nature for instance:
- one road user to another (driver to other drivers, driver to passenger, driver to pedestrian, cyclist to driver, cyclist to pedestrian)
- dr to patient,
- employer to employee,
- manufacturer to consumer,
- tutor to tutee or teach to pupil

Question 11

Baker TE Hopkins & Son Ltd [1959] 2 All ER 225

Answer 11

A case which created an established duty of care being that: where a defendant’s 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.

Question 12

The Neighbour Principle

Answer 12

• Established by the case Donoghue v Stevenson [1932] AC 562
• “ avoid acts or omissions which you reasonable foresee would be likely to injure your neighbour”
• your neighbour being “persons who are so closely and directly affected by my act that I ought reasonable to have them in my contemplation as being so affected.”

Question 13

Caparo Industries Plc v Dickman [1990]

Answer 13

Case in the House of Lords which set out a three part test to redefine the neighbour principle and to decide whether a novel duty should become established:
1) reasonable foresight of harm,
2) sufficient proximity of relationship,
3) fair just and reasonable to impose a duty.

Question 14

In what instances may the duty of care be limited:

Answer 14

• in the case of omissions,
• pure economic loss,
• pure psychiatric harm.

Question 15

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

Answer 15

• the claimant was an elderly woman injured whilst police officers were attempting to arrest a suspect and did not take steps to avoid injury.
• it was held that the police have a duty of care to avoid causing harm to the public.
• the act of arresting someone is a positive act so police are liable for any injuries caused to the arrested or any other person as long as the injury is foreseeable.
• the court should consider reasonableness when deciding if a novel duty should become established.

Question 16

Hill v Chief Constable of West Yorkshire [1989] AC 53

Answer 16

• claim made against the police by parents of serial killer victim as the police had been unable to apprehend the serial killer
• the police were exonerated from liability on the basis that they did not owe a duty of care to any individuals as their duty is to the public at large.

Question 17

Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283

Answer 17

• claimant’s husband was taken into custody and was a suicide risk
• the police were aware of this but failed to pass the information on to the prison authorities
• the court of appeal decided that by taking him into custody the police had assumed a duty of passing information that might affect his wellbeing to the prison authorities
• the police had been negligent in failing to tell the prison of suicide risk
• duty of care as they had taken him into custody

Question 18

Osman v UK (1999£ 11 Admin LR 200

Answer 18

-The court of appeal held that the police owed no duty to a claimant they knew was being harassed by a third party
- the ECHR found that ‘blanket immunity’ for the police was a violation of Article 6 of the ECHR (= right to a fair trial)

Question 19

Z v UK (2002) 34 EHRR 3

Answer 19

• ECHR reviewed the decision in Osman and decided domestic courts’ approach in negligence claims does not breach article 6
• the test of ‘fair,just and reasonable’ and the inclusion of policy in a decision does not infringe the individual claimant’s rights.

Question 20

Policy considerations re duty of care:

Answer 20

• the ‘floodgates’ argument,
• deterrence of a certain type of behaviour,
• resources (increase in insurance premiums paid by society as a whole) vs a defendant having no insurance and not being able to pay compensation,
• would lead to a defendant acting over defensive
• public benefit
• decision with regard to upholding the law.

Question 21

A duty of care will usually be owed….

Answer 21

Whenever harm is caused by one individual to another by a positive act of wrongdoing and that harm is foreseeable physical injury to the person or physical damage to property. The Caparo criteria of foreseeability, proximity and fair, just and reasonable are likely to be satisfied in cases of this kind.

Question 22

There may not be a duty of care where….

Answer 22

(as the Caparo criteria are less likely to be satisfied) when:
* harm is caused by a public body, such as a local authority or the police (as opposed to an individual) or,
Harm is caused by an omission to act (as opposed to a positive act of wrongdoing); or
* the harm caused is pure psychiatric injury (as opposed to physical injury); or
* the harm caused is pure economic loss (as opposed to physical damage to property)

Question 23

Home Office v Dorset Yacht Co Ltd [1970] AC 1004

Answer 23

• young offenders who were left unsupervised and damaged a yacht,
• HOL decided there was a duty of care owed to the claimant by the Home Office (liable for the negligent acts of its employees)
• officers should have foreseen the harm to the claimant’s yacht,
• the damage that occurred was due to an omission to act for which there would not normally be a duty owed however
• a duty was imposed because the officers had control over the boys.

Question 24

Smith v Littlewoods Organisation Ltd [1987] 2 WLR 480

Answer 24

• fire was started by teenage vandals in an empty and unlocked building which spread to a neighbouring property,
• duty on an occupier would be too wide if held responsible for damage caused to neighbouring property by 3rd parties who they had no control over,
• defendants were not aware of previous break ins,
• the defendants did not have any special relationship with the vandals.

Question 25

Carmarthenshire County Council v Lewis [1955] 1 All ER 565

Answer 25

- claimant’s husband was killed whilst driving his lorry when he swerved to avoid a 4 year old who had strayed from a nursery school run by the local education authority, - the court held that the education authority had assumed responsibility for controlling the child and so owed a duty to prevent the child endangering others.

Question 26

Breach of duty

Answer 26

The judge must decide as a question of fact if the defendant has breached a duty of care I.e. 1) what standard of care the defendant should have exercised (a question of law), 2) whether the defendant’s conduct fell below the required standard ( a question of fact which tends to be more difficult to prove for instance, lack of independent witnesses, conflicting evidence of witnesses)

Question 27

The Reasonable Person

Answer 27

Sets up a standard which is objective and impersonal to judge a defendant’s actions against.

Question 28

Special standards:

Answer 28

- the test of the reasonable person is modified so that standard of care required is that of a reasonable person in the defendant’s position I.e, * where the defendant holds themselves out as possessing a particular skill e.g. qualified electrician, * where the defendant is a child, * where the defendant suffers from a disability.

Question 29

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

Answer 29

- doctors (or other ‘special skill’) must meet the standard of their profession, - the court held that a defendant would not be in breach of their duty provided they had acted in accordance with a practice accepted as proper by a reasonable body of doctors (or other) skilled in that particular art.

Question 30

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

Answer 30

- doctors (or other ‘special skill’) must meet the standard of their profession, - the court held that a defendant would not be in breach of their duty provided they had acted in accordance with a practice accepted as proper by a reasonable body of doctors (or other) skilled in that particular art.

Question 31

Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

Answer 31

- it is always for the court to finally to decide whether or not a skilled defendant has acted reasonably, - in some cases it cannot be demonstrated that the body of opinion replied on by the defendant is reasonable or responsible - in that case the defendant can be found in breach of duty.

Question 32

Nettleship v Weston [1971] 3 All ER 581

Answer 32

- a learner driver is expected to reach the standard of the reasonable competent driver, - duty of care owed to passenger instructor and other road users, - element of policy in this decision [insurance]

Question 33

Wilsher v Essex Area Health Authority [1987] QB 730, CA

Answer 33

- no allowance will be made for the inexperience of a junior doctor ( a junior doctor is expected to show the level of competence befitting a doctor holding the same post) - an inexperienced doctor is expected to call on more expert assistance when they feel they are getting out of their depth.

Question 34

Wells v Cooper [1958] 2 QB 265:

Answer 34

- where odd jobs are done around the house, the courts are prepared to demand a certain level of skill from a defendant householder I.e. that of a reasonably competent amateur carpenter etc - if an amateur tackles, unaided a job which far exceeds their capability and which is normally done by a professional , they are likely to be judged to have been negligent attempting it in the first place.

Question 35

Mullin v Richard [1998] 1 All ER 920

Answer 35

- two 15 year olds in school having a mock sword fight with a ruler, - court of appeal held that the standard of care is adjusted for the child’s age

Question 36

The greater the chances of the defendant’s activity causing injury to the claimant…..

Answer 36

…. The more precautions the defendant must take. Similarly the more serious the possible harm to the claimant the more care the defendant must take.

Question 37

Bolton v Stone [1951] AC 850

Answer 37

- cricket club -the court held that the defendants were not in breach of their duty of care, - although an accident or this sort was foreseeable, it was very unlikely to happen, so taking such a small risk was not a breach, - it is justifiable not to take steps to eliminate a real risk if the risk of injury is small and if the circumstances are such that a reasonable person would think it right to neglect it, - the risk must be measured against other factors such as the purpose of the defendant’s activity and the practicability of precautions.

Question 38

Paris v Stepney Borough Council [1951] AC 367

Answer 38

- the council failed to provide protective goggles to the claimant as the risk of accident occurring was small - however the council were aware that the claimant was blind in one eye already and the claimant had an accident that made him completely blind - it was held that the defendant was in breach of duty as the potential injury caused was very serious and reasonable care required that goggles should have been provided.

Question 39

Issues of cost and practicality of precautions:

Answer 39

- if the risk of injury could have been substantially reduced at a low cost to the defendant, the defendant will have acted unreasonable if they fail to take the necessary precautions, - if the defendant would incur great expense which would produce only a very small reduction in risk, it will be reasonable for the defendant to do nothing, Great expense, will not excuse a defendant where the risk of injury is great.

Question 40

Latimer v AEC Ltd [1953] AC 643

Answer 40

- the defendant’s factory was flooded and the water mixed with an oily liquid leaving the floor slippery, the defendant spread sawdust over most of the floor but did not have enough to cover it all - it was faced with the decision of either closing the factory until extra sawdust arrived or taking the risk that someone might slip, - the defendant decided to keep the factory open and a workman slipped and was injured, - the court held that the defendant was not in breach of duty, - the risk of injury was only slight, while the cost and inconvenience of having to totally eradicate the risk by closing the factory would have been substantial so all things considered it was a reasonable decision.

Question 41

Watt v Hertfordshire County Council [1954] 1 WLR 835

Answer 41

- if a defendant’s actions are in the public interest they are less likely to be held liable in negligence, - fireman called to an emergency and improper transportation was used for heavy equipment which injured the fireman - it was held that the claimant’s employers were not in breach of their duty of care and that the risk had to be balanced against the end to be achieved, and the saving of life justifies the taking of considerable risk

Question 42

Defences of breach of duty:

Answer 42

-defendant’s purpose I.e, in the public interest, - common practice - the defendant complied with the accepted practice in their trade or profession (caveat), - current state of knowledge Roe v Ministry of Health [1954] 2 QB 66 - the limitations of ‘reasonable’

Question 43

Res ipsa loquitir

Answer 43

(The thing speaks for itself) - sometimes the court may be prepared to draw an inference of the negligence of the defendant without hearing detailed evidence of what the defendant did or did not do. - Scott v London and St Katherine Docks Co (1864): * the thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible, * the accident must be as such as would not normally happen without negligence, * the cause of the accident is unknown to the claimant- so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care

Question 44

Civil Evidence Act 1968

Answer 44

S 11 of the Civil Evidence Act 1968 = a defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings to have committed that offence - it is evidence that this careless conduct did take place.