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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How is a breach of the duty of care established?
Establishing a Breach
Duty of care is owed
D has fallen below the standard of what which is reasonable in that circumstances
Giliker:
Reasonableness= flexible to accommodate infinite variety of cases
Decisions in each case = useful guides, but not set down laws.
Otherwise law becomes too rigid.
The Reasonable Person Test
Lord Macmillan:
Objective element = Reasonable man presumed to be free from over-apprehension and from over confidence.
Subjective element = what the reasonable person would have done in D’s external circumstances (not D’s personality/relationships/education)
Nettleship v Weston [1971]: W injuring N in car accident during N giving lessons to W
Lord Denning MR (maj): The standard for driving a car is very high
It is no defence to say you are a learner driver
As the standard you must drive at is that of an experience driver who makes no mistakes.
Equally, even if the passenger knows you are not of a high standard, or drunk, or one-eyed
And voluntarily agrees to be in the car with you
You still owe him a duty of care to drive like a reasonable and prudent driver
Salmon LJ(dis):
A motoring duty of care springs from relationship which a passenger gets in the car
If the driver is a learner, this cannot entitle a passenger or instructor to expect the driver to discharge a duty of care or skill
which the passenger (not a pedestrian or other road user) knows the driver is incapable of discharging.
What standard of care is “reasonable”?
Judge Learned Hand: have to weigh up all these factors against each other when determining whether breach has occurred:
Forseeability of harm
If the harm C suffers is not foreseeable, D will not be liable
This is because if it wasn’t foreseeable, the reasonable person could not have foreseen it
Equally, even if it was foreseeable, if it wasn’t reasonably foreseeable then no liability imposed
Magnitude of risk
Bolton v Stone [1951]: Z hits cricket ball out of pavilion, hits unlucky C on head and injures her. Cricket ball had come out of pavilion about 3 times in 10 years.
Lord Reid
Although risk of harm to a person might be foreseeable,
if the risk of damage to a person was so small that a reasonable man in the position of D
would have thought it right to refrain from taking steps to prevent the danger
then the conduct cannot be described as negligent.
Seriousness of consequences
Paris v Stepney Borough Council [[1951]
Guy blind in one eye tries to dismantle something, fragment flies into his good eye and blinds him.
Lord Simonds (maj):
Breach can be found in two ways
1. to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances
OR 2. to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it
Reasonable person adjusts standard of care depending on what the circumstances and people are in front of him,
and the seriousness of a breach in that context.
Burden of taking precautions – general circumstances
Smith v Littlewoods [1987]
Lord Mackay:
If you anticipate/ought to anticipate a small risk
Unless a reasonable person would say you had a valid reason for not negating the risk (e.g. too expensive/ stupidly inconvenient to rectify vs. the small risk of it happening)
Then you will also be held as negligent.
Wagon Mound (No.2) [1967]:
Lord Reid:
A reasonable man would only neglect such a risk if he had some valid reason for doing so, weighing up the risk against the difficulty of eliminating it.
Bolton v. Stone did not alter the general principle that a person must be regarded as negligent
if he does not take steps to eliminate a risk which he knows or ought to know is a real risk.
Only added qualification that it is justifiable not to take steps to eliminate a real risk if it is small
and if the circumstances are such that a reasonable man, careful of the safety of his neighbour,
would think it right to neglect it.
Common Practise
Giliker: failure to conform to common safety practise may give a lead to liability
But only if C can prove that had D acted to common safety practises, C would not have suffered harm.
Where reasonable person test takes account of D’s position and is this modified:
Those who profess to have some skill
E.g. Doctors, must then act like a reasonable person with that knowledge and professional skill
E.g. Surgeon must act like a reasonable surgeon, taking into account above factors. Lawyer must act like reasonable lawyer.
Wilsher v Essex Health Authority [1987]
If D tries to fill a specific post, regardless of his status, he will be held to the standard of that post.
E.g. junior doctor performing more senior post will have to discharge the post at the level of a...
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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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