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Tort Law Notes

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Tort

TORT LAW REVISION SUMMARY
Duty of Care................................................................................................1
Standard of Care and Breach.....................................................................9
Causation..................................................................................................15
Remoteness...............................................................................................18
Defences to Negligence Claims................................................................21
Psychiatric Harm......................................................................................25
Pure Economic Loss..................................................................................30
Employers Liability: Primary Liability......................................................33
Employers Liability: Vicarious Liability....................................................36
Private Nuisance.......................................................................................40
Public Nuisance........................................................................................44
Tort of Rylands v Fletcher (1866).............................................................45
Intentional Torts.......................................................................................48
ANSWERING A NEGLIGENCE QUESTION:
 Negligence: "the breach of a legal duty to take care which results in damage, undesired by the defendant to the claimant" (Winfield)
 This covers:
o General Negligence

Psychiatric Harm

Employers Liability

(Product Liability)
o Limited Pure Economic Loss and Negligent Misstatement

(Occupiers Liability - negligence in statutory form)
 Steps:
1) Identify the parties to the claim.
2) Identify the four aspects of negligence:
a) Was there damage/loss suffered by the claimant?
b) Was there a duty of care?
c) Was this duty breached?
d) Did the breach legally cause the damage?
3) Test of remoteness - how much damage is the defendant liable for?
4) Identify any defences available.

DUTY OF CARE

The Neighbour Principle: a duty is owed to anyone who could reasonably be conceived as being affected by ones actions. (Lord
Atkin in Donoghue v Stevenson [1932])
o Claimant in a café in Scotland - friend bought her a dessert,
the waiter poured out first part of ginger beer over her ice

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cream, then later came back and poured out the rest of the bottle including the partial remains of decomposed snail over dessert.
Dorset Yacht v Home Office [1970]
o Young offenders out on a group activity, accusation that prison guards left doors unlocked, allowing offenders to escape, who in turn stole yachts and crashed one yatch into another.
 Dorset Yatch argued that Home Office was negligent,
Home office argued that they had no duty of care to the
Dorset Yatch.
o Held: the Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.
Anns v Merton London Borough Council [1978] - local authority's liability for the negligent inspection of building works.
o Lord Wilberforce explicitly advocated a two-stage test
 1. Neighbour Principle Applied
 Neighbours include: "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 in question"
 2. Look for any reason not to establish a DoC.
o Critiques of two stage test:
 Too easy to pass the two stage test, therefore two easy to show a duty of care.
 Many felt that that it was two easy to pass the two stage test, therefore two easy to show a duty of care.
 Presumption in favour of the Claimant.
Caparo v Dickman [1990]
o Two companies, accountants (defendants), claimants were thinking of taking over another company by buying a majority.
 Accountants produced incorrect accounts suggesting there was a profit in the company being taken over,
claimants sue on the basis that they lost money.
 Accountants argued that they were not paid by the claimants - the accounts were produced for a different purpose not an investment purpose - there was an insufficient proximity of parties to impose a duty of care.
o Arguable Lord Bridge created a three stage test.
 1) Could the defendant have reasonably foreseen that his or her negligence would harm the claimant?
(Neighbour Principle)

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2) Is there a sufficiently proximate relationship between the claimant and the defendant?
 3) Is it fair, just and reasonable to impose a duty?
1) Reasonable Foreseeability

Flexible, and open to manipulation by the courts.
o AG v Hartwell [2004] - Police allowed unstable officer access to gun. Shot defendant. Held duty of care: the more serious the likelihood of serious injury, the lower the threshold for likelihood

Wagon Mound [1961]- If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, no matter whether the extent of damage was foreseeable.
o Bournhill v Young [1943] - a miscarriage after a pregnant woman witnessed a bike crash nearby was not foreseeable.
o Haynes v Harwood [1936] - a police man was injured capturing a bolting horse. Foreseeable that rescuers would get involved and could suffer personal injury.
o Home Office v Dorset Yatch - foreseeable that juvenile delinquents left unsupervised would cause damage to property 2) Sufficient Proximity

A legal not physical proximity. The relationship between
Defendant and Claimant
 Osman v Ferguson [1993] - Teacher was stalking his pupil, attacked him and killed the pupil's father. Family had informed police of the threat on multiple occasions.
 Court was satisfied of reasonably foreseeable that harm would result and that there was a sufficient closeness of proximity, but failed on step 3.
 Everett v Comojo Ltd UK [2011] - The relationship between the management of a nightclub and its guests was of sufficient proximity to justify the existence of a duty of care.
 There was a duty due to the economic relationship between the parties.
o Geographical proximity
 In Dorset Yatch the Duty of Care was owed to the people on the Island, not the people on the mainland.
o Degree of Control
 Reeves v MPC [1999] - House of Lords held that a duty did exist
 Given the police exercised control over the victim and the known risk of suicide among prisoners,
they owed him a duty to take steps to ensure that he did not harm himself.
o Assumption of Responsibility

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Kent v Griffiths [2001] - The emergency services do not generally owe a duty of care to the public except in certain, limited circumstances
 By accepting the 999 call out the service assumed a duty of care over the claimant.
 Costello v CC Northumbria [1998] - Senior officer did nothing while another officer was attacked escorting prisoner to cell.
 Police officers assume responsibility to 'watch each other's backs'
 Osman v UK [1998] - ECtHR held that where the police 'knew or ought to have known…of the existence of a real and immediate risk to life of the identified individual" there is sufficient proximity if police fail to take reasonable steps.
o On the facts Claimant failed to show where this could have been said of the police.
 Lejonvarn v Burgess [2017] - An architect assumed a duty of care when she performed work for a friend,
even though there was no contract and the work was unpaid.
o Creation of a Dangerous Situation
 Capital & Counties v Hampshire CC [1997] -
Fireman turned off buildings sprinklers making the fire worse.
 Fire brigade is liable where they attend the scene and actually aggravate the situation.
 Haynes v Harwood [1936] - D left horse untethered.
Policeman injured as he attempted to capture it.
Policeman able to claim for damages.
 Compare: Cutler v United Dairies Ltd [1933]
where the claimant was injured trying to recapture a horse which had bolted and had come to a rest in a field. Was not acting in an emergency and, therefore, he could not be regarded as a rescuer and was not owed a duty of care.
 Topp v London Country Bus (1993) - Bus driver left keys in bus overnight. Not liable for joy riders stealing bus and injuring claimant.
o Special Relationships
 Stansbie v Troman [1948] - Decorator failed to lock the door as he left the claimants house, which was subsequently burgled. The contractual relationship was sufficient for proximity and DoC.
 Swinney v CC Northumbria [1997] - Informer gave information to police on condition she was to remain anonymous. A file with her details was lost and she suffered psychiatric harm as a result.

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A special relationship had been established,
therefore DoC.
it fair, just and reasonable to impose a duty?
A number of policy concerns of interest here:
 Floodgates argument, insurance, crushing liability,
maintaining high standards, defensive practices,
distributive justice.
Marc Rich v Bishop Rock [1996] - Defendant who acts for the collective welfare less efficient if they have to spend a lot of time defending claims.
 Shipping classification society protected from damages award, they could not rely on limitation provisions.
 Imposing a DoC would also have crushed this nonprofit.
Stovin v Wise [1996] Local authority failed to remove bank of land that obstructed view of junction, causing crash. per
Lord Hoffman a claim involving an act is more likely to succeed than a claim involving an omission.
Swinney v CC Northumbria [1997] - Police informer.
Important that police not have blanket immunity.
Hill v CC W Yorkshire - mother of Yorkshire Ripper suing the police. Floodgates argument and subsequent inefficiency of the police. (followed in Osman v Ferguson)
 Note this does NOT create a blanket immunity for the police. Lord Keith makes it clear that inappropriate force, defamation etc. the Police are liable.
Brooks v MPC [2005] - Claimant was subject of racially motivated attack. Police treated him more as a suspect than victim leading to PTSD.
 HoL held that no special duty was owed to Brooks. Lord
Steyn stated that such a duty would 'lead to an unduly defensive approach in combatting crime'
Distinguish policy concerns and operational failure:
 Rigby v CCof Northamptonshire [1985] - Here the police negligently fired a canister of CS gas into the claimant's shop, which was under siege, without taking adequate precautions against the high risk of fire.
 When a fire occurred, the claimant was successful in his claim against the police, as this was a negligent operational act. The court could not criticise the police policy decision for equipping itself with inflammable CS gas even though a nonflammable alternative was available

3) Is o

o

o

o o

o

o

Robinson v CC West Yorkshire [2018] - Police chasing suspected drug dealer, knock down 76 year old woman accidentally and she suffered physical injuries.
o Properly interpreted, Caparo did not create a three-stage test
(3 to 2 split)

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o Held that the 3-stage test was a misinterpretation of Lord
Bridge in Caparo.
o Also reinterprets Hill
 Hill properly interpreted merely means that there is generally no liability for omission but this applies equally to public authorities as well as members of the public.
o The law now:

A couple of cases have since followed this logic

Sumner v Colborne [2018] - A landowner does not owe a duty of care to ensure that vegetation contained on his land does not interfere with sight lines on the highway.
 Court of Appeal held that to impose a duty of care would have profound implications for anyone with fields or gardens bordering a road, create unwarranted and impractical problems - not a slow and incremental approach above.
o James-Bowen v MPC [2018] - Police officer (James-Bowen)
sued the force for the way in which they had handed litigation that implied that the officer had used excessive force. Supreme Court Rejected appeal.
 Held:
 1) The common law does not usually recognise a duty of care in negligence to protect reputational interests.
 2) The proposed duty would conflict fundamentally with the (quasi) employer's own interests in defending litigation brought against him. Employer bears cost/liability and therefore must be able to act in own interests.
 3) Such a duty would slow down litigation and increase costs.
Human Rights and the Duty of Care

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o Osman v UK (2000) - Facts as above. CA struck out appeal following Hill tehre was no DoC.
 Sued the UK for failing to protect the right to life of the father and an alleged violation of Article 6. ECHR
upheld complaint.
o Critics argued that the Strasbourg misunderstood tort law this was not a procedural issue but had made a substantive assessment of the claim and then struck it out
 They did go to the court and the court made an assessment and then rejected the claim.
 To be fair to Strasbourg the House of Lord had used the term of 'immunity' in Hill - though they did not mean a procedural immunity merely that 'fair, just reasonable'
clause was generally differently interpreted in relation to Local Authorities.
 As a result courts became reluctant to strike out claims.
Until:
o Z v UK (2001) - Claimants sued the authorities for negligence for failing to prevent child abuse.. These claims were struck out as there is no such duty of care from local authorities under tort law.
 UK held liable under article 3 (the right to protection from torture, inhuman or degrading treatment) for failure to take reasonable steps to prevent the abuse and and Article 13 (right to a remedy).
 But not under article 6 (fair trial)
 When an English court strikes a claim on the basis of it not being fair just or reasonable, this does not mean that there has necessarily been a contravention of Article 6.
 Luney and Oliphant: "where the claim has been struck out at a preliminary hearing on the basis that it was not fair, just and reasonable that a duty of care be recognized"
 There is no 'procedural immunity' for public bodies in
UK jurisprudence.
o Michael v Chief Constable of South Wales [2015] -
Woman places 999 call, lived on the boundary between two authorities, but the call was sent to the wrong authority, and call handler failed to classify call with sufficient urgency.
 A second phone call came through during which Ms
Michael was heard to scream, when the police arrived she was dead.
 Claim of negligence made by relatives of deceased in breach of article 2 (right to life).
 Court said that just because there might have been a breach of article two does not mean that there should also be a claim of negligence

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