The Law of Tort

Question 1

What does tort mean?

Answer 1

A civil wrong

Question 2

What are the aims of tort law?

Answer 2

To provide compensation to injured people and provides justice.
Serves as a deterrent to improve standards of business.
A person as certain interests which others have to respect. - Protected interests: Reputational harm, personal harm, harm to property

Question 3

What are natural and legal persons?

Answer 3

Natural - a person
Legal - A corporation that can sue and be sued

Question 4

What is the standard of proof in tort law?

Answer 4

On the balance of probabilities

Question 5

What is negligence?

Answer 5

A common law tort (from Donoghue V Stevenson 1932)
When harm has been caused due to the carelessness of the wrongdoer
Requires a duty of care, a breach of duty and damage cause.

Question 6

What is a duty of care?

Answer 6

Having a duty to act carefully around another person
Sometimes referred to as ‘neighbour principle’
You owe someone a duty if you are able to cause reasonably foreseeable harm by an act or an omission.

Question 7

What is the Caparo Test?

Answer 7

Set out in Caparo V Dickman (1990).
It was complex for courts to have to decide on new cases if there was a duty of care so a test was made by the House of Lords for deciding whether a duty of care exists.
It is split into 3 parts

Question 8

What is part 1 of the Caparo Test?

Answer 8

Was damage or harm reasonably foreseeable (depends on the facts of the case)
Kent V Griffiths (200) - Ambulance failed to arrive so more harm was caused - this was reasonably foreseeable.

Question 9

What is part 2 of the Caparo Test?

Answer 9

There is a sufficiently proximate relationship.
Bourhill V Young (1943) - Pregnant woman had a miscarriage due to shock from witnessing a motorcycle crash caused by the motorcyclist. Their relationship wasn’t sufficiently proximate so no duty of care.

Question 10

What is part 3 of the Caparo Test?

Answer 10

It has to be just, fair and reasonable to impose a duty.
Often the hardest part of the test to prove
Hill V Chief Constable of West Yorkshire 1990 - Police could’ve arrested the Yorkshire ripper but didn’t. Claimant’s daughter his last victim and she sued. The judge found it was not just to impose a duty.

Question 11

What happened in Robinson V Chief Constable of West Yorkshire (2018)?

Answer 11

Elderly woman injured during the arrest of a drug dealer.
Supreme Court held that there is no single test for duty of care. If there is an existing duty of care from a past case then it should be followed.
Caparo test can still be used if a new situation arises.

Question 12

What is a breach of duty?

Answer 12

It must be proved that the duty of care has been broken using the ‘reasonable person’ test whether the standard of care should be raised or lowered.

Question 13

What is the ‘reasonable person’?

Answer 13

Standard to establish whether a duty of care has been breached.
People should be judged based on what a reasonable person would do.
There are a number of variations based on the circumstances.
Orchard V Lee 2009 - Claimants sued a 13y/o for running into her. Court held that children should be judged against what is reasonable for a child of the same age.
Bolam 1957 - Duty of care breached if the conduct falls below the standard for an ordinary member of the same profession and if there is a substantial body of opinion within the profession that the conduct was wrong in the circumstances.

Question 14

What are the risk factors affecting standard of care?

Answer 14

Does the defendant have any special characteristics.
Is there public benefit to taking the risk that caused the damage
Whether appropriate precautions have been taken.
Were the risks clear at the beginning.

Question 15

What is damage?

Answer 15

The legal est that a claimant’s loss was caused by a breach of duty of care
Made up of factual and legal causation.

Question 16

What is factual causation?

Answer 16

The breach of duty has caused the damage decided by the ‘but for’ test
Barnett 1969 - Doctor didn’t examine some men who later died. but would’ve died if the doctor had of examined them. Therefore the doctor wasn’t liable as there was no factual causation.

Question 17

What is legal causation?

Answer 17

Deciding whether the damage was reasonably foreseeable.
An intervening act can break the chain of causation.
Act of claimant - Mckew V Hollands 1969
Act of Nature - Carslogie Steamship 1952
Act of a Third Party - Knightly V Johns 1982.
The damage must not be too remote from the breach of duty. (Wagon Mound 1961)
The thin skull rule applies (take victim as found) - Smith V Leech Brain 1962).

Question 18

What are the advantages and disadvantages of duty of care?

Answer 18

Adv - Encourages good behaviour, Hold people in positions of power responsible
Dis - Caparo test used in new cases confusing (fair, just and reasonable quite vague) Unknown about how much proximity is needed for a duty of care.

Question 19

What are the advantages and disadvantages of breach of duty?

Answer 19

Adv - Reasonable person test is objective and depends on the circumstances (Bolam 1957)
Dis - Some things aren’t taken into account in the reasonable person test, Takes into account what you should’ve known rather than what you did know

Question 20

What are the advantages and disadvantages of damages?

Answer 20

Adv - Liable for damage caused by a breach of duty, not liable if there’s an intervening act
Dis - Thin skull rule can be seen as unfair, Remoteness is unfair is unpredictable things are still counted if there is a breach of duty, hard to establish factual causation when there are multiple causes for an injury.

Question 21

What are lawful visitors?

Answer 21

Invitees, licensees, contractual permission, statutory right.
Calgarth 1927 - A person can be invited to walk down the stairs but they aren’t invited to touch the bannister

Question 22

What is an occupier?

Answer 22

There is no statutory definition, but generally it is who is in control of a premises. It can be influenced by whose insurance policy covers the premises. The court can find that no one is in control of a premises. There can also be more than one occupier
Wheat V E Lacon & Co. Ltd (1966) - The court found that the manager and their employees were occupiers of the pub.
Bailey V Armes (1999) - neither a supermarket or the shop above it were occupiers of the roof so couldn’t be liable for injuries there.

Question 23

What is a premises?

Answer 23

s 1(3) Occupiers’ Liability Act 1957 - reference to a ‘fixed or moveable structure including any vessel, vehicle and aircraft’
There is no complete statutory definition. Has also been interpreted to mean a ship in a dry dock, a lift, a ladder.

Question 24

What duty does the occupier owe to a visitor?

Answer 24

According to s 2(2) Occupiers’ Liability Act 1957 - they should do what is reasonable to ensure their safety. the safety of a visitor doesn’t have to be guaranteed.
Rochester Cathedral V Debell (2016) - Tripping, slipping and falling are everyday occurrences and a visitor will be reasonable safe even if there are visible minor defects which carry a foreseeable risk of causing injury

Question 25

What are the defences for the occupier by claims from lawful visitors?

Answer 25

Volenti - consent, the claimant chose to take the risk that resulted in their injury (complete defence)
Contributory negligence - The claimant is partly responsible for their injury (partial defence)
Exclusion Clauses - The occupier limits their liability: orally or with a written warning. Often the case for residential occupiers - s 2(1) Occupiers’ Liability Act 1957: ‘to restrict, modify or exclude his duty by agreement or otherwise’
Warnings - a sufficient warning will be a complete defence. Can be oral or witten. Its sufficiency is decided based on the facts of a case. If a danger is obvious and the visitor can appreciate it, no additional warning is necessary

Question 26

What is a trespasser?

Answer 26

A person who has no permission to be on the occupier’s premises or a lawful visitor who has gone beyond their permission to be on the premises (e.g. outstayed welcome, done something without permission)

Question 27

What duty does an occupier owe to a trespasser?

Answer 27

Occupiers’ Liability Act 1984
Only provides compensation for personal injury, damage to property not covered.
The occupier only owes a duty under s 1(3) - if: they are aware of the danger and know the trespasser is in the vicinity of or might come into the vicinity of the danger
s 1(5) - an occupier can discharge his duty to the trespasser by giving a warning of the danger or discouraging them from taking the risk

Question 28

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