Tort Exam-Notes - Exam Notes (summarised lecture notes) PDF

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Duty of CareEarly Law - Generally the early law was exemplified by cases such as Winterbottom v Wright : C contracted with Postmaster to drive coach. D contracted with Postmaster to supply coach. Coach was unsafe and C injured when it collapsed whilst being driven. As no privity of contract – no lia...

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Stefan Dingelstad

Duty of Care Early Law - Generally the early law was exemplified by cases such as Winterbottom v Wright : C contracted with Postmaster to drive coach. D contracted with Postmaster to supply coach. Coach was unsafe and C injured when it collapsed whilst being driven. As no privity of contract – no liability. Were heavily influenced by floodgates argument ‘if we go one step beyond that, there is no reason why we should not go 50’ – Alderson B. Courts only allowed exceptions in particular circumstances. Were attempts to come up with a general duty of care – Brett MR in Heaven v Pender but were too wide. Donoghue v Stevenson 1932 landmark case. Ginger Beer bottle, opaque, snail. No contract between C and D. Lord Atkin formulated the neighbourhood principle. Owe a duty not to injure our neighbour in law. Must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Neighbour – ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected’. So in Palsgraf v Long Island Railway Co (American Case) – fireworks in box, railway guard accidently dislodged it set them off. The shock caused scales at the other end of the station to fall and hit C. held unforeseeable. English equivalent of unforeseeable claimant is Bourhill v Young – pregnant woman heard sound of collision, later went to scene saw blood caused her shock and later had miscarriage as a result. As Lord Macmillian said having an action in tort doesn’t stop you from having an action in contract or vice-versa. The case had immediate importance – imposed duty on manufacturers in respect to goods which could not be examined before use by ultimate consumer. A similar case – Mullen v AG Barr had recently just been dismissed in Scotland. (Ginger beer containing mouse). However, since then has developed into wider test. Lord Macmillan – ‘the categories of negligence are never closed’. Grant v Australian Knitting Mills Ltd itchy underwear case. Stretched it slightly as underwear not sealed or opaque. Overall there has been a rapid expansion of the tort of negligence as the number of ‘duty situations’ has multiplied. Nevertheless, there are situations in which extension of liability has proved problematic – economic losses, psychiatric harm, omissions, D is public body. Anns v Merton – Lord Wilberforce, 2 stage test. First is there sufficient proximity, if yes are there any conditions which ought to negate or reduce the duty in this case. But issue was this meant that everything was pretty much included as it starts from a presumption of a duty, instead in Caparo v Dickman – Lord Bridge of Harwich, 3 stage test – foreseeability, proximity, fair just and reasonable. Developed incrementally and by analogy with established categories. Didn’t actually think he was making a test in fact he denied any simple formula could act as a test. So start from presumption of no duty, but certain factors must be fulfilled for there to be a duty. ‘proximity’ and ‘fair, just and reasonable’ both just policy considerations – Stovin v Wise. Others argue against this saying they are distinct. Some policy considerations include: floodgates, overkill (lead to detrimental defensive practice), waste public bodies time and resources. There are some relationships where duty not generally imposed for various policy reasons: fire-brigade ( Capital & Counties plc v Hampshire CC – no duty to answer calls or fight fire with reasonable care). Police (Hill v CCSY Yorkshire ripper case – blanket immunity? Other cases since say that not blanket immunity if police have made assumed special responsibility (Swiney v CCNP informer, details stolen from police car) or if direct cause of physical injury to C. could under Art.6 of HRA bring a claim – Osman v UK ruled that this could occur but in Van Colle v CCHP held that didn’t satisfy case and commentators have said that if this fails then probably will fail in most other cases too.

Stefan Dingelstad

If no duty, court can strike out the claimant’s case as disclosing no cause of action. If before this the court believes that one of the parties has no real prospect of success on the law side, then can deliver summary judgement.

Breach of Duty Liability in tort is premised on fault. D must have breached his duty of care. In Blyth v Birmingham Waterworks Co Alderson B held that the standard to be kept up before you breach your duty, is that of the Reasonable Man/man on Clapham omnibus etc… No test in itself, but must be assessed in light of a cluster of interlinked considerations.

Degree of Risk Bolton v Stone. C injured when cricket ball struck her, evidence that ball only been hit out of ground 6 times in 30yrs. Lord Oaksey: ‘an ordinary man does not take precautions against every foreseeable risk… he takes precautions against risks which are reasonably likely to happen’. The risk of the harm eventuating was so small that the reasonable man wouldn’t have safeguarded against it. What is reasonable ‘is a question, not of law but of fact and degree’ – Lord Reid. Lord Radcliffe: ‘The law of negligence is less concerned with what is fair than with what is culpable’. As decisions on breach of duty are questions of fact, and as no case is exactly the same, the ruling in one case on breach has no precedential value on another. In Miller v Jackson cricket but more often C couldn’t use garden so liable. Gravity of Potential Harm: Paris v Stepney BC one-eyed mechanic, not supplied with goggles as per standard. But judges held that as the gravity of harm was greater, should the risk eventuate (complete blindness). So liable. This isn’t the thin-skull rule. The content of the defendant’s duty of care reflects the claimant’s susceptibility only when it is known or reasonably foreseeable. The thin-skull rule comes into play after, when it has been established that D had breached their duty.

Cost of the Precautions: Latimer v AEC Ltd factory flooded with water and oil, became slippery, D tried to clean up – put sawdust in most areas. Wasn’t economically viable to close the whole factory. D did enough to minimise the risk. American Judge: Learned Hand in United States v Carroll Towing Co came up with a formula. Breach occurs when B...