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Omissions, third parties and public authorities
D will only owe C a duty of care to save him from harm if some special circumstances exist. The main examples of such circumstances are:
D assumed a responsibility to take care of C
D put C in danger of suffering harm (B indicated to A that A can reasonably rely on B to perform some task to a reasonable degree of care and skill).
D interfered with either C or someone else saving C from suffering harm
D was in control of a dangerous thing that posed a foreseeable threat to C or a dangerous person and C was at special risk of being harmed by that person.
*Instead of forming a category of ‘special relationships’ can we put the duty that parents owe to their children under the bracket of ‘assuming a responsibility’? If so, how can we distinguish this from walking past a drowning baby?
Act = C is worse off than she would have been had D not acted.
Omission = C is no worse off than she would have been had D not acted.
Impure omission = D fails to do something which can be re-described as ‘improperly doing an action’ ( treated as ‘acts’ in tort law, e.g. failure to brake resulting in injury to a pedestrian). Hence, when we talk about imposing duties for omissions, we are referring to ‘pure omissions’.
Can all cases of pure omission be described as ‘failures to confer benefits’ upon V?
What constitutes ‘harming’ and what constitutes a ‘failure to confer a benefit’ depends on what baselines is used.
If baseline = the course of events if D fulfils his duty, then D’s omission = harming. If baseline = the course of events independent of D acting, then D’s omission = failure to confer a benefit.
There are a number of reasons against imposing omissions liability:
To impose a duty on someone to not do act X leaves them with the option to do anything other than act X. However, to impose a duty on someone to do act X leaves them with no option other than to pursue that one course of conduct restricts individual autonomy (intrusive).
Imposing liability in some ‘rescue’ cases may lead towards a slippery slope down which individual liberty is overly restricted – this would cause legal uncertainty.
Bringing legal standards up to high moral standards leaves no room for generosity (Tony Weir); this strips generous transactions of their moral value.
Imposing rescue duties may in fact deter rescues, since attempting a rescue may attract legal consequences if done badly or slowly.
If a rescue duty exists and there are multiple passive bystanders, it would be unfair to allow the sufferer to claim damages from any single one of them.
Imposing liability on D for failing to rescue C dilutes the harm-causer’s responsibility.
Two views on public authorities and omissions cases:
Sir Thomas Bingham MR in the CoA in X v Bedfordshire CC (1995) revived the policy approach (albeit a perhaps restrictive one), remarking that “it would require very potent considerations of public policy… to override the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied”. However, when the case went to the HoL, again it was held that no DoC existed but this was based on the uniform approach.
The uniform approach was also taken in Capital & Counties Plc v Hampshire CC (1997) which involved two appeals:
Firefighters who failed to deal effectively with fires were not under a duty of care because had the claimants asked their neighbours to help put out the fires, the neighbours would not have owed them a duty of care.
Fire brigade showed up to an office fire. The fire was being kept under control by the building’s sprinkler system, but the chief fire officer ordered that the sprinkler system be turned off, resulting in greater damage than what otherwise would have been done had the sprinklers been left on. This ‘intervening act’ meant that a duty was imposed, as it would be imposed on any private individual who also did the positive act of turning off the sprinklers, as any reasonable person would have foreseen the harm of turning the sprinklers off.
(Policy approach has a detrimental impact on the efficacy of public bodies. See discussion below regarding the HRA and public bodies.)
The current law was set out in Michael v Chief Constable of South Wales Police (2015) by the SC:
Joanna Michael lived in St Mellons near the south coast of Wales. She made a 999 call at 2.29am, explaining that her partner had discovered her in bed with another man, hit her, and taken the man away, saying he would be back. Her call was misrouted and picked up by Ms Mason in the neighbouring county. Mason told Joanna to hang up so the police in her area could call back. Mason logged the call as ‘Grade 1’ requiring an ‘immediate’ (<5mins) response, but when Ms Mason spoke to the call handler for Joanna’s area, she failed to mention that Joanna was in fear of her life, so the handler logged the call as ‘Grade 2’, requiring a ‘priority’ (<1hr) response. Joanna made another call at 2.43am, where Joanna was heard screaming and the case was made ‘Grade 1’. By the time the police arrived at 2.51am, Joanna had been stabbed to death.
SC ruled 5:2 for the uniform approach, refusing to accept that there was any DoC or that the police had any kind of immunity. The court’s main objection to finding that the police owed Joanna a DoC was that the police force was publicly funded: “it does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible” (Lord Toulson).
NB: Lord Toulson also refused to accept that the police should have any kind of immunity (uniform approach no greater duty than public, “no immunity” no lesser duty than public… hence exactly the same responsibilities as a public individual).
NB: In Robinson v Chief Constable of West Yorkshire (2018), Lord Reed built on the uniform approach espoused by Lord Toulson in Michael at . It follows from the rest of that case that recourse to policy considerations in cases involving public authorities only takes place where there is a novel situation or where established authority is challenged.
IMPORTANT – Poole BC v N (2019) set out the current law on when a public authority owed a DoC: Uniform approach reinforced
Human Rights Act 1998 and Public Bodies
Public bodies can be sued under the HRA if they carelessly fail to save an identified individual who they know or ought to know is in imminent danger of being killed/injured/subjected to inhuman or degrading treatment. Proponents of the policy approach: If public bodies can be sued for omissions under the HRA, why not under the law of negligence?
HRA was enacted by Parliament the courts must give effect to Parliament’s intentions (argument for bringing CL in line with HRA/policy approach), but they do not have any democratic pedigree in developing the CL.
Further, if the HRA is repealed post-Brexit, replaced with a British Bill of Rights, the CL if extended may be inconsistent with Parliament’s intentions anyway.
When a public body can be sued under the HRA there is simply no need to create the same rights and obligations in the common law.
HRA imposes duties too much – it gives the public rights that the state not only refrain from doing bad things to us but also that the state do good things for us (perhaps overly paternalistic and economically unworkable when state resources are already spread thinly).
The limitation period for the law of negligence is much larger than the strict 1yr limit under the HRA (which limits Cs’ abilities to bring a claim).
Lord Toulson’s argument in Michael: imposing extra duties on public bodies would be counter-productive, since claims would be paid out of public resources and thus the public bodies would be less well-suited to carry out their primary function of serving and protecting the public.
Some say that to impose more duties on public authorities would lead to defensive tactics by the public body, thus decreasing its efficacy. However, others argue that the imposition of a duty would simply increase standards. More generally – to what extent should we give weight to these speculative empirical arguments without further evidence?
SC has twice refused to extend the CL to fall in line with the HRA.
Some matters involving public bodies are non-justiciable – decisions may be made which involve politics, the allocation of resources or the infliction of risks. NB: distinction: policy (normally non-justiciable) vs operational (usually justiciable).
A statutory duty to do something is insufficient to create a tortious DoC unless it provides that a breach is actionable in tort – statutory duties (and statutory powers) do not in themselves create DoCs. It was given in Stovin v Wise (1996) by Lord Hoffmann that there was “no way in which the statutory ‘may’ could have been turned into a common law ‘ought’”. Following this, in Gorringe v Calderdale MBC (2004) a public authority failed to erect a sign to warn C (driver) of the need to reduce her speed. Lord Hoffmann said “I find it difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power [sic] (or a public law duty) to provide”. The leading decision on this subject is X v Bedfordshire CC (1995), where it was held that imposing a duty on public bodies to protect people from harm (a) would cut across the statutory system for the protection of at-risk children, (b) might make the authority adopt defensive tactics which would be harmful to the broad body of children at risk, and (c) may lead to a high number of vexatious complaints. NB: in this case, children alleged that they were subjected to neglect and ill-treatment and that the authority negligently failed to take them into care.
“Imposing a duty may lead to defensive practices” = flawed reasoning bc it weighs against the imposition of duties in all cases, including those in which duties have been recognised.
Later cases, though, show an increased reluctance to deny a duty because of a background statutory context. For example, the court in Barrett v Enfield LBC (1999) took less notice of the policy considerations restricting the imposition of a duty given in X v Bedfordshire CC since the public body decision in question related to a case where the child was already in local authority care (as opposed to the public body’s decision in X v Bedfordshire CC as to whether to take action in cases of suspected child abuse). It was even held in D v East Berkshire Community Health NHS Trust (2004) by the CoA that X v Bedfordshire CC could no longer be taken as authoritative on the ruling that there could be no DoC owed to children who were suspected of as being victims of child abuse.
Where a public body or service gave an undertaking to assist and C relied on that so as to change his position, a duty might arise. However, it cannot be said that C relies on such an undertaking if there are no alternative steps available. E.g. in Kent v Griffiths (2001), C suffered a respiratory arrest which would probably have been avoided by timely arrival of the ambulance. The doctor at the scene said that had she been informed of the likely delay she would have had C taken to the hospital by other means (hence “undertaking and reliance” was present, although the CoA reasoned that the DoC arose from acceptance of the call instead).
A public service may incur a DoC in respect of an identifiable person if they have assumed a responsibility to protect them from personal injury. For example, the police were held liable in negligence in Reeves v Metropolitan Police Commissionser (2000) for failing to prevent the suicide of a sane person in their custody because the police knew he was a suicide risk (the police are not required to take special precautions for everyone in their custody).
D who creates a source of danger (wrongfully or not) comes under a duty to take reasonable steps to safeguard against it. Lord Scott: “If a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise”.
Assumption of Responsibility
D owes C a duty of care when D “assumes a responsibility” to C to protect C’s welfare in some way. Either:
A indicated to B that B can rely on A to look after B’s interests with a reasonable degree of care and skill and B relied on A to do this, or
A indicated to B that B can rely on A to take reasonable steps to protect B from some kind of harm and B relied on A to do this (NB: SC in Michael found that the call handler promised only to pass the call onto South Wales police, not promising any particular response time). This was applied in the following cases:
Stansbie v Troman (1948) – A decorator left C’s front door unlocked while popping to the shops, thereby allowing thieves to enter and steal 10,000 worth of valuables.
Welsh v Chief Constable of Merseyside Police (1993) – C was arrested for failing to attend the magistrate’s court. He had already admitted to two theft offences. C had asked that the CPS tell the magistrates this when prior to his sentence being determined. CPS owed C a duty to tell the magistrates they were dealing with the theft offences because C had been given to understand that the CPS would do this.
Swinney v Chief Constable of Northumbria Police (1997) – C informed on T to the police about T’s involvement in killing a police officer. Police assured C his identity would remain secret but C’s name was leaked to T when documents were stolen from a police car. T threatened C C developed a psychiatric illness. Police had owed C a DoC to keep his identity secret.
Densmore v Whitehorse (1986) – C rang the fire dept when her house caught fire. C had relied on the fire dept bc she would have taken alternative steps had she not been assured that a fire engine would be on its way, e.g. rescuing selected valuables from the house. The fire dept owed C a DoC (NB: court = Yukon Territory SC).
Crucial element of reliance usually not present in fire cases bc C can very rarely do anything about the fire.
Cases of non-reliance = when D undertakes or promises to do something, but C does not rely on it.
Some, like Robert Stevens, believe that a DoC arises when D assumes a responsibility, even when C is wholly ignorant of the undertaking (and thus cannot be said to rely on D). Some dicta, such as that in Kent v Griffiths (2001) supports this. Here, C suffered an asthma attack and had to be taken to hospital. The ambulance service said over the phone an ambulance would be sent, then 13mins later said that it would be another 7-8mins. It arrived 46mins after the original call and C suffered severe personal injury. Getting C to hospital in a reasonable time would have precluded the respiratory arrest and the CoA held that the ambulance service owed C a duty to take reasonable steps to get her to hospital reasonably quickly. Lord Woolf MR: “The acceptance of the call in this case established the DoC”. It was held that since there were no circumstances which made it unfair or unreasonable or unjust to impose a DoC, there is no reason why a DoC should not exist if the ambulance was delayed for no good reason (policy approach, later rejected in Michael).
In Michael v Chief Constable of South Wales Police (2015), the SC rejected Lord Woolf’s reasoning that the decision to provide an ambulance meant that an explanation was required to justify a failure to attend within a reasonable time. However, they did not reject that a DoC was owed.
However, in Capital & Counties Plc v Hampshire CC (1997), Stuart-Smith LJ held that “If [a passing doctor] volunteers his assistance [to help the victim of a traffic accident], his only duty as a matter of law is [to take care] not to make the victim’s condition worse”. M&B prefer this view, bc imposing a duty would penalise those who try to help others (doctor may walk away from victim to avoid possibility of liability) perhaps different rules for public bodies? does this conform with the uniform approach opted for in the later case of Michael?.
Creation of Danger
If D knows, or ought to know, that he has done something to put C in danger of suffering some kind of harm, D may owe C a duty to take reasonable steps to protect C from that danger.
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