Tort Exam Structure
UNIT 1 – Duty of care and Breach of duty.
Step 1: Identify the parties to the claim and identify the damage suffered by the claimant.
Step 2: Define negligence
A breach of legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant.
Step 3: Did D owe a duty of care to C?
ESTABLISHED DUTY OF CARE
1) If YES = Consider breach of duty.
2) There are a number of situations clarified by case law that a duty of care is owed.
a. Doctor and Patient
b. Parent and child (Harris v Perry)
c. Participants in sporting events (Condon v Basi)
d. Where D’s actions have created a dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, D owes a
duty of care to that rescuer (Baker TE Hopkins & Son)
NOVEL DUTY SITUATIONS
1) If NO = There is no liability in negligence
2) If UNKNOWN – APPLY CAPARO TEST (Caparo Industries plc v Dickman):
a. FORESEEABILITY: the damage must have been reasonably foreseeable (Bourhill v Young)
b. PROXIMITY: there must be sufficient proximity between the defendant and the claimant.
c. It must be ‘fair, just and reasonable’ to impose a duty (Marc Rich v Bishop Rock Marine)
3) If Caparo test is satisfied a NOVEL DUTY SITUATION is established.
,LIABILITY FOR OMISSION TO ACT
1) GENERAL RULE: One does not owe a duty of care to the world for your omissions (Stovin v Wise).
2) EXCEPTION 1: Positive duty to exercise control (Home Office v Dorset Yacht; Smith v Littlewoods Organisations)
a. Where there is a special relationship, one party may have a duty to take positive action to safeguard the other.
b. Where one person has a relationship of control over another, they may have a duty to take positive action to prevent harm being caused
to third parties.
3) EXCEPTION 2: If you do not owe a duty but decide to intervene, you will not be liable for negligence unless you make the matters worse (East
Suffolk Rivers Catchment Board v Kent).
Step 4: Was D in breach of that duty?
STANDARD OF CARE
1) The standard is that ‘of a man on the Clapham omnibus’ i.e. the REASONABLE PERSON.
2) REASONABLE PERSON TEST (Blyth v Birmingham Waterworks):
a. The test is done objectively (Glasgow Corp v Muir), the court considers how a hypothetical reasonable person would have performed the
act.
3) SPECIAL STANDARDS:
a. Anyone exercising a special skill (profession) must meet the standard of their profession (Bolam v Friern Hospital).
i. ALSO: As long as a defendant’s actions are supported by a reasonable body of professional opinion, they should not be judged to
be negligent (Bolam v Friern Hospital).
ii. EXCEPTION: A claimant might be able to demonstrate that the professional opinion relied on by the defendant is not capable of
withstanding logical analysis. In that situation, the court would be able to find the defendant in breach of duty (Bolitho v City)
b. Inexperience is not considered in negligence (Nettleship v Weston)
c. A junior doctor is expected to show the level of competence befitting a doctor holding the same post (Wilsher v Essex)
d. If D does not profess to have professional skills, then they must meet the minimum standard required for the task (Wells v Cooper).
e. A child defendant will be expected to show such care as can reasonably be expected of an ordinary child of the same age (Mullin v
, Richards).
FACTORS DETERMINING BREACH
In assessing whether a defendant has fallen below a reasonable standard of care, the court needs to weigh up:
the risk created by the defendant’s activities; and
the precautions which the defendant ought reasonably to have taken in response to that risk.
FACTORS INCLUDE:
1) MAGNITUDE OF RISK
a. How likely was it that D’s actions could cause an injury?
i. Sometimes it is justifiable to ignore a small risk (Bolton v Stone)
ii. It is not justifiable to ignore a high risk (Miller v Jackson)
b. If an injury was caused, how serious was it likely to be? (Paris v Stepney Borough Council)
2) COST AND PRACTICALITY OF PRECAUTIONS (Latimer v AEC)
a. The greater the risk of injury, the greater the steps the courts will expect defendants to take in reducing or eliminating the risk.
b. GENERAL RULE: If a defendant’s failure to exercise reasonable care is attributable to their lack of resources, the courts will not allow the
defendant to use this as an excuse.
3) SOCIAL BENEFIT/UTILITY OF ACTIVITY (Watt v Herefordshire County Council)
a. If human life is at stake, a defendant may be justified in taking abnormal risks.
b. However, the purpose of saving life or limb justifies the defendant taking any risk.
4) CURRENT STATE OF KNOWLEDGE (Roe v Ministry of Health)
a. D’s activities are judged by the standard of current knowledge.
5) A defendant’s duty is to guard against ‘reasonable probabilities not fantastic possibilities’ (Fardon v Harcourt-Rivington)
a. A rare event is NOT ALWAYS a ‘fantastic possibility’ (Carmarthenshire CC v Lewis)
6) UNEXPECTED DISABILITY
a. D won’t be in breach of duty if they have met the standard of care of the reasonable person who is unaware of their condition (Mansfield
v Weetabix)
, Step 5: Can they prove breach of duty?
The most usual way for a claimant to prove a breach of duty is by using witness evidence (if this is the case move on), if there is no witness use these two
points.
RES IPSA LOQUITUR (Scott v London and St Katherine Docks)
1) ‘the thing speaks for itself’.
2) Three conditions:
a. The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible.
b. The accident must be such as would not normally happen without negligence.
c. The cause of the accident is unknown to the claimant – so that the claimant has no direct evidence of any failure by the defendant to
exercise reasonable care.
3) If all conditions are met the maxim establishes breach.
The defendant then must provide a reasonable explanation of how the accident could have occurred without negligence. The defendant can do this in
either of two ways. They need to produce evidence to show:
1) How the accident actually happened and that this was not due to negligence on their part; or
2) If they cannot show how the accident actually happened, that they had at all times used all reasonable care
CIVIL EVIDENCE ACT 1968
1) Section 11: A defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that
offence.
2) This provision will help a claimant where the offence for which the defendant has been convicted involved careless conduct. The claimant can rely
upon the conviction as evidence that this careless conduct did take place.
a. This provision will not always help the claimant. Suppose that a driver is convicted of driving without insurance. This does not provide the
claimant with any evidence that the defendant failed to drive carefully.
UNIT 1 – Duty of care and Breach of duty.
Step 1: Identify the parties to the claim and identify the damage suffered by the claimant.
Step 2: Define negligence
A breach of legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant.
Step 3: Did D owe a duty of care to C?
ESTABLISHED DUTY OF CARE
1) If YES = Consider breach of duty.
2) There are a number of situations clarified by case law that a duty of care is owed.
a. Doctor and Patient
b. Parent and child (Harris v Perry)
c. Participants in sporting events (Condon v Basi)
d. Where D’s actions have created a dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, D owes a
duty of care to that rescuer (Baker TE Hopkins & Son)
NOVEL DUTY SITUATIONS
1) If NO = There is no liability in negligence
2) If UNKNOWN – APPLY CAPARO TEST (Caparo Industries plc v Dickman):
a. FORESEEABILITY: the damage must have been reasonably foreseeable (Bourhill v Young)
b. PROXIMITY: there must be sufficient proximity between the defendant and the claimant.
c. It must be ‘fair, just and reasonable’ to impose a duty (Marc Rich v Bishop Rock Marine)
3) If Caparo test is satisfied a NOVEL DUTY SITUATION is established.
,LIABILITY FOR OMISSION TO ACT
1) GENERAL RULE: One does not owe a duty of care to the world for your omissions (Stovin v Wise).
2) EXCEPTION 1: Positive duty to exercise control (Home Office v Dorset Yacht; Smith v Littlewoods Organisations)
a. Where there is a special relationship, one party may have a duty to take positive action to safeguard the other.
b. Where one person has a relationship of control over another, they may have a duty to take positive action to prevent harm being caused
to third parties.
3) EXCEPTION 2: If you do not owe a duty but decide to intervene, you will not be liable for negligence unless you make the matters worse (East
Suffolk Rivers Catchment Board v Kent).
Step 4: Was D in breach of that duty?
STANDARD OF CARE
1) The standard is that ‘of a man on the Clapham omnibus’ i.e. the REASONABLE PERSON.
2) REASONABLE PERSON TEST (Blyth v Birmingham Waterworks):
a. The test is done objectively (Glasgow Corp v Muir), the court considers how a hypothetical reasonable person would have performed the
act.
3) SPECIAL STANDARDS:
a. Anyone exercising a special skill (profession) must meet the standard of their profession (Bolam v Friern Hospital).
i. ALSO: As long as a defendant’s actions are supported by a reasonable body of professional opinion, they should not be judged to
be negligent (Bolam v Friern Hospital).
ii. EXCEPTION: A claimant might be able to demonstrate that the professional opinion relied on by the defendant is not capable of
withstanding logical analysis. In that situation, the court would be able to find the defendant in breach of duty (Bolitho v City)
b. Inexperience is not considered in negligence (Nettleship v Weston)
c. A junior doctor is expected to show the level of competence befitting a doctor holding the same post (Wilsher v Essex)
d. If D does not profess to have professional skills, then they must meet the minimum standard required for the task (Wells v Cooper).
e. A child defendant will be expected to show such care as can reasonably be expected of an ordinary child of the same age (Mullin v
, Richards).
FACTORS DETERMINING BREACH
In assessing whether a defendant has fallen below a reasonable standard of care, the court needs to weigh up:
the risk created by the defendant’s activities; and
the precautions which the defendant ought reasonably to have taken in response to that risk.
FACTORS INCLUDE:
1) MAGNITUDE OF RISK
a. How likely was it that D’s actions could cause an injury?
i. Sometimes it is justifiable to ignore a small risk (Bolton v Stone)
ii. It is not justifiable to ignore a high risk (Miller v Jackson)
b. If an injury was caused, how serious was it likely to be? (Paris v Stepney Borough Council)
2) COST AND PRACTICALITY OF PRECAUTIONS (Latimer v AEC)
a. The greater the risk of injury, the greater the steps the courts will expect defendants to take in reducing or eliminating the risk.
b. GENERAL RULE: If a defendant’s failure to exercise reasonable care is attributable to their lack of resources, the courts will not allow the
defendant to use this as an excuse.
3) SOCIAL BENEFIT/UTILITY OF ACTIVITY (Watt v Herefordshire County Council)
a. If human life is at stake, a defendant may be justified in taking abnormal risks.
b. However, the purpose of saving life or limb justifies the defendant taking any risk.
4) CURRENT STATE OF KNOWLEDGE (Roe v Ministry of Health)
a. D’s activities are judged by the standard of current knowledge.
5) A defendant’s duty is to guard against ‘reasonable probabilities not fantastic possibilities’ (Fardon v Harcourt-Rivington)
a. A rare event is NOT ALWAYS a ‘fantastic possibility’ (Carmarthenshire CC v Lewis)
6) UNEXPECTED DISABILITY
a. D won’t be in breach of duty if they have met the standard of care of the reasonable person who is unaware of their condition (Mansfield
v Weetabix)
, Step 5: Can they prove breach of duty?
The most usual way for a claimant to prove a breach of duty is by using witness evidence (if this is the case move on), if there is no witness use these two
points.
RES IPSA LOQUITUR (Scott v London and St Katherine Docks)
1) ‘the thing speaks for itself’.
2) Three conditions:
a. The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible.
b. The accident must be such as would not normally happen without negligence.
c. The cause of the accident is unknown to the claimant – so that the claimant has no direct evidence of any failure by the defendant to
exercise reasonable care.
3) If all conditions are met the maxim establishes breach.
The defendant then must provide a reasonable explanation of how the accident could have occurred without negligence. The defendant can do this in
either of two ways. They need to produce evidence to show:
1) How the accident actually happened and that this was not due to negligence on their part; or
2) If they cannot show how the accident actually happened, that they had at all times used all reasonable care
CIVIL EVIDENCE ACT 1968
1) Section 11: A defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that
offence.
2) This provision will help a claimant where the offence for which the defendant has been convicted involved careless conduct. The claimant can rely
upon the conviction as evidence that this careless conduct did take place.
a. This provision will not always help the claimant. Suppose that a driver is convicted of driving without insurance. This does not provide the
claimant with any evidence that the defendant failed to drive carefully.
