Tort Law Flashcards
When is the Caparo test applied?
According to Lord Reed in Robinson, when there are no ‘established principles’ covering the case, the case is viewed as ‘novel’.
What is the Decision-Making procedure for the Tort of Negligence?
- Determine the duty of care owed + explore policy considerations
- Prove the Breach of duty based on a ‘reasonable’ person (objective) standard
- Prove that there is direct causation between harm and the breach of duty
- Determine if the Harm is the kind of harm recognized by the law
- Determine the remoteness by considering if the harm is reasonably foreseeable.
- See if there is any possible Defense (consent, illegality, contributory negligence)
- Remedy
What is the Caparo test?
It is to consider
(i) whether there is reasonable foreseeability of harm to the Claimant,
(ii) whether there is a relationship of proximity and
(iii) where it is fair, just, and reasonable that the law should impact a duty of a given scope.
What is the authority for ‘reasonable person standard’ to determine the breach of duty?
Glasgow Corporation v Muir:
The owner of the tearoom was found to carry out the task of serving tea as a reasonable person and the tearoom owner does not owe a duty not to serve hot tea to children.
What are the relevant considerations in the breach of duty per reasonable person standard?
The probability of harm - Bolton v Stone
The seriousness of harm - Paris v Stepney BC
The cost of precautions - Latimer v AEC Ltd
D’s purpose - Watt v Hertfordshire CC
D’s resources - British Railways Board v Herrington
What is the test for Causation?
Factual causation - ‘but for’ test in Davis v Bunn
- If it wasn’t for ___, it would not be ___.
Legal causation - Lord Asquith in Stapley v Gypsum
- To identify the process of attribution by searching for the ‘real’ or ‘substantial’ or ‘direct’ or ‘effective’ cause of a harmful outcome.
What kind of damage does the law take into account?
What is the test and authority for the remoteness test?
Palsgraf v Long Island Railway Co - At what point it should decline to trace a sequence of harmful events beyond a certain point?
What can be an intervening act (NAI)?
Lord Writing in The Oropesa:
NAI is to determine whether there is a ‘direct relationship’ between D’s carelessness and C’s injury. NAI is something ‘unwarrantable’, ‘unreasonable’, ‘extraneous’, ‘extrinsic’, and ‘ultroneous.’
What is the authority for ‘occasioning harm’ (the process of considering remoteness)?
Stansbie v Troman [1948]
D was held responsible for not locking the house despite C’s warning and the house was burgled by a third party. D was held liable because it was a reasonably foreseeable loss.
Smith v Littlewood, Lamb, Ward: the damage must be amount beyond the inability of D’s control
What is the authority for NAI (the process of determining remoteness)?
The reasonable foreseeability test in The Wagon Mound (No 1) (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd):
to determine WHETHER the full extent of the damage is fairly attributable to the defendant’s breach of duty or other tortious intervention.
What is Contributory Negligence and what does the court do about it?
Contributory Negligence Act 1945, section 1(1): Where C’s ‘damage’ arises partly from his or her own ‘fault’ and partly from D’s ‘fault’, courts are required to apportion responsibility for the losses. Losses should be apportioned on a ‘just and equitable’ basis.
What is the authority to argue for partial defense for D and use it as a shield against a claim?
Nance v British Columbia Electric Railway Co Ltd -
D must establish (i) fault on C’s part by applying the reasonable person standard and (ii) factual and legal causation.
What is the authority for the relevance of context in applying the reasonable person standard?
Qualcast (Wolverhampton) Ltd v Haynes
Rule: The reasonableness of D’s conduct must be judged in the light of all relevant circumstances.
An experienced molder (C) pouring molten metal into a mold accidentally poured some on his foot and burned it. He sued his employer (D) for ‘negligence in not providing a safe system of work.’
The employer had (to his knowledge) provided protective spats available on demand. That was all an employer was ‘reasonably bound’ to do for his employee’s safety. C cannot hold D under a duty to urge the employee to wear the spats.
What is the case that shows the inconvenience of rigid ‘objective’ reasonable person standards?
Roberts v Ramsbottom
D argued that D had a stroke just before D hit C with the car. D was held liable for the accident. The court ruled that only a complete loss of consciousness would have relieved him from liability.
NOTE: The court applies an ‘objective test’ and it is not sensitive to a subjective view of D.
Moran suggests to change this to ‘indifference inquiry.’
