Tort 1 - Duty of care + Breach

Question 1

Terminology

Answer 1

‘Tort’ Wrong
‘Tortfeasor’ person who commits wrong (tort).

Question 2

Duty of care

Answer 2

No duty by police to suspect regarding way in which conduct investigation.

Personal injury or damage to property (not pure economic loss or pure psychiatric harm).

Established duty situations;
Road users to another
Doctor to patient
Employer to employee
Manufacturer to consumer
Teacher to pupi;

Novel duty situations;
Only physical damage;

Donoghue v Stevenson (1932) -
Neighbour principle - must take reasonable care to avoid acts or omissions which can reasonably foresee would be likely to injure your neighbour.
‘Neighbour’ so closely and directly affected ought reasonably to have them in contemplation.

Caparo 1990 (new test)-
-reasonable foresight of harm to claimant
-sufficient proximity of relationship
-fair, just and reasonable to impose a duty.

Sufficient proximity -
may be limited in
-omissions on failure of LA to improve road junction
-pure economic loss
-pure psychiatric harm

Fair just and reasonable -
‘Floodgates’
Deterrence of behaviour
Resources
Public benefit
Upholding the law

Question 3

Common law

Answer 3

Not act of parliament.
Case law forms - made by courts.

Question 4

Limitations to Caparo

Answer 4

Public body caused

Omission to act

Psychiatric

Pure economic loss

Question 5

Omission to act

Answer 5

general rule no duty of care owed.

However

Duty not to make situation worse.

Is duty where person has some sort of power or control over object;
employer
schools
parents
instructors.

Question 6

Breach

Answer 6

Question of fact for judge -

test
-how D ought in circumstances t have behaved (standard of care should have exercised. Question of law).
-conduct fell below required standard (question of fact)

Reasonable person.
Objective test.

Question 7

Special standards
Skilled

Answer 7

Reasonable person in D’s position.

Skilled defendant;
Doctors (example) - show same degree of skill as reasonable doctor.
Any skill to standard of reasonable person or skill or competence with that special skill.

Judged by professional body to not be negligent, should not be.
Always for court to decide however.

Question 8

Special standards
Under-skilled

Answer 8

Learner driver - standard of reasonably competent driver.

Junior doctor - no allowance.

Meet minimum standard required by task undertaken.
If undertake task which requires special skill. That in itself likely to be negligent.

Question 9

Special standards
Children

Answer 9

Reasonably expected of an ordinary child of the same age.

Under 18 cannot sue or be sued without litigation friend.

Question 10

Determining standard of care

Answer 10

-risk created by D’s activities.
-Precaution which D ought to have reasonable taken in response.

Magnitude -
Likely
Serious

Greater likelihood more precautions.
Not justifiable to take steps to eliminate risk if circumstances small and reasonable person would neglect it.

Not ‘fantastic possibilities’
Fardon v Harcourt-Rivington (1932)

Risk of greater injury
-more serious harm more care should take.