Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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What are the requirements of the tort of negligence?
Negligence
Rogers: “breach of legal duty to take care with results in damage to the claimant”
Generally not concerned with intention
Only accidental damage owing to want of care
Five things to prove
C suffers actionable damage
D owes C duty of care
D has acted in breach of the duty of care
D’s breach of duty has caused C damage
C has suffered damage which is not remote from D’s actions.
What constitutes a duty of care?
Donoghue v Stevenson Formulation
What it is:
Lord Atkin: Two elements
“Reasonable Foreseeability of Harm”
“Proximity” of relationship between D and P
i.e. “Neighbourhood” principle:
D would be liable to anyone closely affected by D’s actions, if they caused harm.
Problems:
Principle is far too wide
Lord Diplock in Home Office v Dorset Yaught Co [1970]
If retain this principle as “universal” rather than specific to defective products that can’t be inspected by consumer beforehand
Law would hold you responsible for every act and omission you did which had the effect of damaging your neighbour (e.g. withdrawing service from Tradesman despite goods being perfectly adequate)
Thus, it interferes with freedom of choice and action
Does not take into account political, social and economic considerations
Anns v Merton LBC Formulation:
What it is:
Lord Wilberforce:
Two questions to ask:
Is there a sufficient relationship between C and D so that it is reasonably foreseeable harm may occur and C will be damaged by D’s actions?
Is there any good reason to restrict the scope of the tort in this case?
Problems:
Giliker: Confusion problem – test is flawed
Confuses foreseeability and proximity, which Lord Atkin formulated as separate concepts
Means Judge would have to come up with policy decision to justify the fact he thought the relationship was not close enough.
Stapleton: “pockets of liability”
Policy question asks whether duty of care should arise in the first place
Not whether it is there beforehand but should then be excluded.
Giliker: rather generous in scope
Presumes duty of care exists on foreseeability alone, so somewhat generous
Lord Denning in Lamb v Camden LBC [1981]:
Foreseeability often not a useful guide
Amount of damage that can arise from a foreseeable act of negligence
Does not always stop at the instant act of negligence
E.g. escaping offender by negligence of HO
Means you need an alternative restrictor than foreseeability.
Smith and Burns: Autonomy Reasoning
Analogy of 100 donate to charity.
Saves life of African child
If they don’t give 100, foreseeable that African child will die.
But does that mean we’re obligated to take action or not take action because the result is foreseeable?
Clear difference between what we’re obligated to do
And what we ought to do but aren’t obligated
Distinction is key to retain autonomy and freedom of action.
We’re looking at more than one area of action/non-action
Hence-why we need a principle that uses a changing idea of proximity depending on certain situations.
Capro v Dickman [1990] Formulation
What it is:
Lord Bridge:
Three elements that C must prove to establish novel duty of care where analogous cases do not suffice:
Damage must be foreseeable
Donoghue and Stevenson:
Objective test – what a reasonable person ought to have foreseen
And what D’s actions ought reasonably to have been foreseen to cause damage to C.
Must be sufficiently proximate relationship between the parties
Hard to get concrete definition
Depends on type of damage
Economic loss/psychiatric illness = “close relationship” (i.e. D knows C will rely on his financial reports to be accurate)
Physical injury = less close (i.e. D need not know C if he drives too fast and runs him down with his car)
Witting: to whom ought D be obligated to not harm and take reasonable care?
Howarth: is “policy” by another name
Must be “fair, just, reasonable” for duty of care to be created vs. relevant policy decisions/factors.
Giliker: often to get around the “proximity” issue – D may know of reliance of C on D, but policy dictates claim should fail
E.g. Hill v Chief Constable of West Yorkshire [1989]
Police responsibility to prevent crime and protect public not a duty of care except in very specific circumstances as all unsolved crime would make police liable.
Lord Oliver: must consider factors together = “facets of the same thing”.
Criticisms of Caparo and answers to these criticisms:
1. Howarth: Proximity serves no useful purpose
The criticism
Hill v Chief Constable of West Yorkshire ]1989]:
Lord Keith:
Per Lord Diplock in Dorset Yaucht
We need something more than foreseeability – e.g. Needs to be a special relationship between P and D
And that duty of care is limited to people who are in close proximity to the results of D’s negligence.
Sustaining damage from criminals is shared by public as a whole
Thus, the relationship is not proximate enough to enable C to sue the Police.
Howarth: Lord Keith tries to equate “remoteness” and “proximity” as the same concept
Finding D was careless, but someone or something else was clearly more responsible (remoteness) decides the case on a very particular ground
This should not be defined as “proximity”, which actually is a policy decision.
“Proximate” does not mean anything
Is used to try and disguise the use of normative judgements and the third strand “public policy” which Lord Keith appears to openly say
Giliker: Judges often disguise their true intentions behind legal word because they feel constitutionally uncomfortable in some decision making area.
Problems with this criticism
Proximate = remoteness assertion
Proximate refers to those around you to whom, in specified sets of circumstances, you have a duty to take care
Remoteness is concerned with the damage caused –...
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Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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