THE FUNCTION, EFFECT AND SCOPE OF THE LAW OF TORT & THE DUTY OF CARE

Question 1

WHAT IS A TORT?

Answer 1

A civil wrong

Something that the law recognises as being worthy of compensation, but not something so serious that the person who committed the tort should be classed as a criminal and punished by the state

Question 2

WHAT DUTY DOES THE LAW OF TORT IMPOSE ON PEOPLE?

Answer 2

Not to harm others

Question 3

WHAT DOES HARM INCLUDE?

Answer 3

Damage to people’s bodies and minds, their homes, their property, their reputations and their business interests

Question 4

WHO IS THE TORTFEASOR?

Answer 4

The person who committed the tort

Question 5

WHAT ARE THE THREE INTER-RELATED CHARACTERISTICS OF THE RULES OF CONDUCT THE LAW OF TORT ESTABLISHES?

Answer 5

1. They are normative
2. They provide compensation for the victim
3. They ensure retribution against the tortfeasor

Question 6

WHAT ARE THE FIVE COMMON LAW TORTS?

Answer 6

1. Negligence
2. Nuisance
3. Rylands v Fletcher [1868]
4. Defamation
5. Trespass

Question 7

WHAT IS NEGLIGENCE?

Answer 7

The most important common law tort and occurs when a person breaches a duty of care in such a way as to cause foreseeable harm to someone else

Question 8

WHAT IS NUISANCE?

Answer 8

This concerns interference with someone’s enjoyment of their land

Question 9

WHAT IS RYLANDS V FLETCHER [1868]

Answer 9

This creates a specific tort which is regarded to be a hybrid form of private nuisance. The rule imposes liability on a person who brings something on to their land that is ‘likely to do mischief if it escapes’. If the thing does escape, the landowner is responsible for the damages caused by that escape

Question 10

WHAT IS DEFAMATION?

Answer 10

This protects one’s reputation against damaging or potentially damaging statements which are not true

Question 11

WHAT ARE THE TWO TYPES OF DEFAMATION?

Answer 11

• Libel – statements in a permanent form
• Slander – statements in a transient form

Question 12

WHAT IS TRESPASS?

Answer 12

This is unauthorised entry on to someone else’s land

Question 13

WHAT ARE THE THREE FORMS OF TRESPASS TO THE PERSON?

Answer 13

1. Assault
2. Battery
3. False imprisonment

Question 14

WHAT IS ASSAULT?

Answer 14

Intentional or reckless act that makes someone apprehend the immediate infliction of physical force

Question 15

WHAT IS BATTERY?

Answer 15

Intentional or reckless application of physical force to a person without their consent.

It can be committed even if no damage results

Question 16

WHAT IS FALSE IMPRISONMENT?

Answer 16

The unlawful restriction of someone’s freedom of movement

Question 17

WHAT ARE THE THREE STATUTORY TORTS?

Answer 17

1. The Consumer Protection Act 1987
2. The Occupiers’ Liability Act 1957
3. The Animals Act 1971

Question 18

WHAT IS THE TORT UNDER THE CONSUMER PROTECTION ACT 1987?

Answer 18

The manufacturer is liable for any defective product which is defined as occurring when the safety of the product is not such as persons generally are entitled to expect.

The act creates a strict liability regime for product liability.

Question 19

WHAT IS THE TORT UNDER THE OCCUPIERS’ LIABILITY ACT 1957?

Answer 19

An occupier owes the common duty of care to lawful visitors to those premises.

The duty requires the occupier to make sure that the visitor is reasonably safe

Question 20

WHAT IS THE TORT UNDER THE ANIMALS ACT 1971?

Answer 20

The keeper of an inherently dangerous animal, or any animal known to have dangerous tendencies, will be strictly liable for any damage done by that animal.

The mere fact that the animal caused the damage is sufficient to establish that the tort occurred

Question 21

WHAT IS THE GENERAL RULE IN RESPECT OF LEGAL CAPACTIY IN RELATION TO TORT?

Answer 21

All natural and legal persons may sue or be sued in tort

A tort case on behalf of a child must be started by an adult acting as their litigation friend.

Question 22

WHAT CASE DEFINED NEGLIGENCE?

Answer 22

Blyth v Birmingham Waterworks Co [1856] as omitting to do something which a reasonable man would do or doing something which a reasonable man would not do.

Question 23

WHAT THREE ELEMENTS MUST THE CLAIMANT ESTABLISH FOR NEGLIGENCE?

Answer 23

1. The defendant owed the claimant a duty of care
2. The defendant breached that duty of care
3. The breach of duty caused loss of a type which is recoverable in tort law.

Question 24

IN WHAT THREE SITUATIONS IS THERE AN ESTABLISHED DUTY OF CARE?

Answer 24

• Road users owe a duty of care to all other road users within the range of reasonable foreseeability
• Doctors, nurses and other healthcare workers owe a duty of care to their patients.
• Employers owe a common duty of care to their employees

Question 25

WHAT IS THE STANDARD OF CARE?

Answer 25

Whether the defendant breached the duty of care is a question of fact that is determined by measuring the conduct of the defendant against that of a reasonable person in the same situation

Question 26

WHAT MUST THE CLAIMANT PROVE ON THE BALANCE OF PROBABILITIES?

Answer 26

The defendant’s breach caused their damage

Question 27

WHAT IS THE LEADING CASE ON CAUSATION?

Answer 27

Barnett v Chelsea and Kensington Hospital Management Committee [1969]

Question 28

WHAT IS THE STARTING POINT FOR THE COURT WHEN LOOKING AT DUTY OF CARE?

Answer 28

To examine whether there is an existing precedent

Question 29

WHAT DOES THE COURT CONSIDER WHERE THERE IS NO PRECEDENT IN RESPECT OF DUTY OF CARE?

Answer 29

The closest analogies in existing law and also weigh up the reasons for and against imposing a duty to decide whether it would be just and reasonable for a duty to exist

Question 30

WHAT WAS THE GENERAL PRINCIPLE FORMULATED IN DONOGHUE V STEVENSON [1932]?

Answer 30

The neighbour test or neighbour principle

Question 31

WHAT DID THE CASE OF DONOGHUE V STEVENSON [1932] ESTABLISH?

Answer 31

The liability of manufacturers to consumer with whom they did not have a contractual relationship.

It also articulates a general principle which forms the basis of the law of negligence

Question 32

WHAT DID LORD ATKIN SAY IN DONOGHUE V STEVENSON [1932]?

Answer 32

‘You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour. 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 into question’

Question 33

WHAT ARE THE THREE QUESTIONS THE COURT IS ASKED IN RESPECT OF THE CAPARO INDUSTRIES LTD V DICKMAN [1990] TEST IN RESPECT OF DUTY OF CARE?

Answer 33

1. Was the risk of injury or harm to the claimant reasonably foreseeable?
2. Was there sufficient proximity between the parties?
3. Is it fair, just and reasonable, on public policy grounds, to impose a duty of care?

Question 34

HOW IS REASONABLE FORESEEABILITY DETERMINED?

Answer 34

By the application of the neighbour principle from Donoghue v Stevenson [1932]

Question 35

WHAT DOES SMITH AND OTHERS V LITTLEWOODS ORGANISATION LTD [1987] ILLUSTRATE?

Answer 35

The necessity of the risk of damage being foreseeable

Question 36

WHAT DOES PROXIMITY MEAN?

Answer 36

The relationship between the parties that makes it necessary to give rise to a legal relationship

Question 37

WHAT IS THE SECOND CRITERION THAT MUST BE APPLIED IN RESPECT OF PROXIMITY?

Answer 37

The degree of proximity between claimant and defendant.

‘Proximity’ here means any form of relationship between the parties

Question 38

WHAT DID NETTLESHIP V WESTON [1971] ILLUSTRATE IN RESPECT OF PROXIMITY?

Answer 38

That on occasions, legal proximity can arise out of physical proximity

Question 39

CAN PROXIMITY BE ABOUT THE CLOSENESS OF THE RELATIONSHIP EVEN IF THE LITIGANTS ARE NOT PHYSICALLY CLOSE?

Answer 39

Yes.

In Donoghue v Stevenson [1932] the claimant was based in Glasgow and the defendant was based in Ireland yet the court found them to be legally proximate

Question 40

WHY MIGHT THE COURT REFUSE TO IMPOSE A DUTY OF CARE ON THE GROUNDS OF PUBLIC POLICY?

Answer 40

As it would not be fair, just and reasonable to impose liability

Question 40

WHY MIGHT THE COURT REFUSE TO IMPOSE A DUTY OF CARE ON THE GROUNDS OF PUBLIC POLICY?

Answer 40

As it would not be fair, just and reasonable to impose liability

Question 41

WHAT IS THE MODERN DAY APPROACH IN RESPECT OF CAPARO INDUSTRIES LTD V DICKMAN [1990]?

Answer 41

This case is now seen as a formulation rather than a test.

Whilst Caparo Industries Ltd v Dickman [1990] still underpins the way in which the question of duty is decided, the modern-day approach is to think of its three parts as guidance for the court

Question 42

HOW IS POLICY DEFINED?

Answer 42

Policy is best defined as those non-legal considerations underpinning legal decisions.

As laws regulate people’s conduct, they must achieve results considered to be socially desirable

Question 43

WHAT POWER DO THE COURTS HAVE UNDER S1 COMPENSATION ACT 2006?

Answer 43

To consider the wider implications of any decision to impose liability on a defendant in a tort case

Question 44

WHAT ARE THE THREE IMPORTANT GROUPS OF PUBLIC POLICY ARGUMENTS?

Answer 44

1. Those relating to statutory authorities
2. Those that would potentially ‘open the floodgates’ to large numbers of similar claims
3. Those that involve harm to claimant rescuers

Question 45

WHAT IS A FEATURE OF MANY CASES INVOLVING CONSIDERATIONS OF PUBLIC POLICY?

Answer 45

That the defendant is often a statutory authority or public body such as the emergency services or local council

Question 46

WHY MIGHT THE COURT BE RELUCTANT TO FIND FOR THE CLAIMANT?

Answer 46

For fear of ‘opening the floodgates’ to similar claims and therefore be overwhelmed

Question 47

WHAT IS THE GENERAL RULE IN RESPECT OF RESCUERS?

Answer 47

The defendant owes a duty of care to the rescuer, provided that a reasonable person in the rescuer’s situation would feel obliged to assist

Question 48

WHEN WILL A DUTY NOT BE OWED TO A RESCUER?

Answer 48

Unjustifiable and unnecessary interference means the rescuer will be taken to have accept the risk

Question 49

WHAT IS CONSEQUENTIAL PSYCHIATRIC HARM?

Answer 49

Psychiatric injury resulting from physical injury

Question 50

WHAT IS PURE PSYCHIATRIC HARM?

Answer 50

Psychiatric injury not resulting from physical injury

Question 51

WHEN IS PURE PSYCHIATRIC HARM CLAIMABLE?

Answer 51

1. Where somebody suffers nervous shock because they have been involved in an accident or because they have witnessed an accident; and
2. Where somebody suffers workplace stress

Question 52

WHAT ARE THE TWO CATEGORIES OF VICTIM IN RESPECT OF PSYCHIATRIC INJURY CASES?

Answer 52

1. Primary victim
2. Secondary victim

Question 53

WHAT IS A PRIMARY VICTIM?

Answer 53

Someone who is directly involved in the accident or who is within the zone of physical danger

Question 54

WHAT IS A SECONDARY VICTIM?

Answer 54

Someone who is not directly involved in the incident (and in no physical danger) but who suffers psychiatric injury as a result of witnessing it

Question 55

WHICH CASE WAS THE FIRST SUCCESSFUL CLAIM FOR COMPENSATION FOR PSYCHIATRIC INJURY?

Answer 55

Dulieu v White [1901]

Question 56

IN ANY CASE INVOLVING PSYCHIATRIC HARM, WHAT THREE THINGS MUST THE CLAIMANT ESTABLISH?

Answer 56

• The defendant owed a duty of care to the claimant
• The defendant breached that duty of care
• The claimant has a clinically recognised psychiatric illness that is considered to be potentially worthy of compensation and was caused by the defendant’s negligence

Question 57

WHAT MUST A PERSON CLAIMING DAMAGES FOR NERVOUS SHOCK (WHO IS ALSO A PRIMARY VICTIM OF NEGLIGENCE) SHOW TO RECOVER DAMAGES?

Answer 57

That the defendant could have foreseen personal injury, whether physical or psychiatric

Question 58

WHAT DID PAGE V SMITH [1995] ESTABLISH IN RESPECT OF PRIMARY VICTIMS?

Answer 58

The principle that a primary victim does not have to prove that psychiatric injury was foreseeable, as long as they can show that some injury was foreseeable

Question 59

WHAT MUST A SECONDARY VICTIM SHOW IN RESPECT OF PSYCHIATRIC INJURY?

Answer 59

That the psychiatric injury itself was reasonably foreseeable to a person of ‘reasonable fortitude’

Question 60

FURTHER TO ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE [1992], WHAT FIVE FACTORS ARE TAKEN INTO ACCOUNT IN DETERMINING WHETHER SECONDARY VICTIMS OUGHT TO BE OWED A DUTY OF CARE?

Answer 60

1. There must be a sudden shock as a result of a traumatic experience
2. Psychiatric harm must be reasonably foreseeable in the claimant in the circumstances
3. Proximity of time and space
4. Proximity of relationship between the claimant and the person caught up in the accident
5. Proximity of perception

Question 61

WHAT ARE THE TWO OTHER TYPES OF CLAIMABLE PURE PSYCHIATRIC HARM?

Answer 61

1. Workplace stress
2. The rule in Wilkinson v Downton [1897]

Question 62

WHAT IS CLAIMABLE PURE PSYCHIATRIC HARM IN RESPECT OF WORKPLACE STRESS?

Answer 62

Negligently caused workplace stress does not need to be triggered by sudden shock