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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Misfeasance and Nonfeasance
What is misfeasance and nonfeasance
Misfeasance = Making things worse
Nonfeasance = failing to make things better
Why do we need a distinction?
Arguments against a distinction
Donoghue v Stevenson [1932]:
Lord Atkin:
Question for lawyers = who is my neighbour that I should take reasonable care to avoid damaging them?
Answer = persons who directly affected by X’s act
that S ought reasonably to have them in contemplation as being so affected
when X directs his mind to the acts or omissions which are called in question
Dorset Yacht
Lord Reid:
Lord Atkin’s speech can be considered a statement of principle that isn’t statutory definition but it ought to apply unless there is some justification or excuse.
Arguments for a distinction
Logie:
It is not the function of law to enforce moral values
Lord Goff in Smith v Littlewoods [1987]:
Cannot be punished for “pure omissions”
e.g. Where the adult Z sees a drowning child in a paddling pool and does nothing to save him.
Morally might be repugnant but this is beside the point.
Law should not restrict individual liberty by burdening people with affirmative duties
Lord Hoffmann in Stovin v Wise [1996]
“One thing to compel someone when doing something to take reasonable care.
Quite another to compel someone who is doing nothing in particular to prevent another coming to harm.”
Economic Argument
McIvor: if someone voluntarily undertakes to do something, it is right that they expend time, energy and money to do it so that others are not harmed
This argument has no effect where people are forced to do something out of legal compulsion, despite the burdens upon them.
Smith and Burns
Clear Causal distinction
If X knows that giving 100 to a charity will save an African child, but declines to do so, X is not responsible for the child’s death.
It can only be said that he let the child die
This is fundamental if we are to conceive of ideas of responsibility and culpability
Difference between acts and omissions
Grounds for liability for nonfeasance are different for grounds of liability for action
You have to show some form of obligation to go with nonfeasance
Therefore, b/c so different, misfeasance and nonfeasance can’t be adequately dealt with in terms of a single principle.
Lord Atkin did not intend there to be no distinction
Nonfeasance does not even fall within the rule of Dongoghue, this case about causing damage through an action – e.g. negligent manufacturing.
While Donghue talked about “people being so 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 called in question”
But by “omissions”, Lord Atkin must have meant omissions that are parts of actions (e.g. failing to apply brakes) –not merely letting something happen
Why do we need exceptions then?
Honore:
“Norms imposing Distinct Duties”
Degree of blameworthiness to be attached to omission is determined by norm it violates
Normally worse to violate norm through positive conduct than negative conduct
But are certain “norms imposing distinct duties” which are so important that their violation by any means will attract reproach
These are:
Where agent creates risk of harm
Agent occupies position of responsibility
Agent is well placed to meet the need, such position creating a situation of dependency
Agent is recipient of the benefit
Agent has given an undertaking
Isn’t this just morality?
McIvor: law isn’t compelled to follow morality – but doesn’t mean it is incompatible.
McIvor:
Problem isn’t that the rule against omissions is wrong
Or that there is recognition that exceptions are needed
It’s just that the exceptions are rather vaguely worded
And have been developed on an ad-hoc basis.
Markensis: could just exclude basic rule and then exclude most omission based claims on the “duty of care” stage of ordinary negligence principles.
The exceptions where you can be compelled to act
Assumption of Responsibility to do something where no action is then taken
Calvert v William Hill Credit Ltd [2009]: WH fail to close C’s gambling account when he asks them to do so despite assuring him this will be done. C then compulsively gambles
Sir Anthony May P:
Where D voluntarily assumes responsibility to do something for C
And D fails to carry this thing out meaning C comes to harm owing to D’s omission
Then a duty has arisen to C and is then breached by D.
Certain cases where a third party causes damage to C owing to an omission by D
2 Alternative approaches
Smith v Littlewoods [1987]:
Lord Mackay
You can be liable for the independent acts of others if
Owing to your act or omission the reasonable person would consider the acts/consequences of the third party to be “highly likely”
AND C has no possibility of securing themselves from the threat
OR Lord Goff
Must be restricted to certain specific cases,
otherwise places an intolerable burden on people to prevent damage not necessarily of their own making to other people’s property
Lord Goff’s view was preferred by HoL
Mitchell v Glasgow City Council [2009]
Lord Scott: It is a feature of the common law that liability in negligence is not imposed for a “mere” omission
There needs to be a requisite additional feature to transform this (perhaps) breach of moral obligation into a breach of legal duty.
McIvor: exceptions seem now to be swallowing the general rule....
Lord Goff’s Exceptions where you are liable for third party acts against others:
Mitchell v Glasgow City Council [2009]:
Lord Roger:
In all these situations, it is D’s wrongful act itself which provides the opportunity for the third party to injure C
1. Special contractual arrangement between D and C
Such as a painter agreeing to look after C’s property, but...
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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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