Section 1: Tort Liability
Tortious liability arises from a breach of duty fixed by law; this duty is owed to
persons generally and its breach is redressable by an action for unliquidated damages.
Topic 1: Negligence
The law of negligence was first established in Donoghue v Stevenson (1932)
Bought a bottle of ginger beer and found decomposed snail. Donoghue sued
Stevenson (manufacture).
Created two rules:
---- Narrow rule was applied to product liability
---- Wide rule — ‘neighbour principle’; Lord Atkin: ‘You must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who then in law in my neighbour? The answer seems to
be those persons who are so closely and directly affected by my act, that I ought
reasonably to have them in my contemplation when directing my mind to the act
or omission.’ ---proximity ---foreseeability
To prove the defendant was Negligent：
1. The defendant owed a duty of care.
Test: [Caparo v Dickman (1990)] new duty situation
Three elements:
A) Reasonable foreseeability (Would a reasonable person in defendant’s position
have seen risk of loss or damage?)
---- Longley v Dray (1998): D was driving a stolen car and was being chased by
the claimant, a police officer, who was injured in an accident as a result. D owed a
duty of care as he should have known the police were in pursuit and should not
have driven recklessly.
---- Bourhill v Young (1943): Bourhill a pregnant lady claimed for nervous shock
after getting off a tram, hearing impact of a crash involving a motorcyclist, seeing
blood and later suffering a miscarriage. It was not foreseeable for Young that B
would suffer psychiatric harm as a result of Y negligently causing a loud traffic
accident.
---- Haley v London Electricity Board (1965): Haley, a blind man tripped over a
hammer left on the pavement by the defendant, the man was injured and became
deaf. It was held that it was statistically foreseeable for a blind man to be walking
on a busy street in London
---- Digital Equipment v Hampshire CC (1997): Fire broke out the claimant’s
premises and the fire brigade turned off the sprinkler system, the whole building
was then destroyed. The fire brigade was liable.
B) Proximity relationship (Relevant relationship between defendant and claimant or
between defendant and activity causing harm to claimant)
---- Watson v British Boxing Board of Control (2000): Watson, a boxer, was
suffered severe injury in the ring. The defendant failed to provide sufficient
medical care at the ringside. The injury was foreseeable and create sufficient
, proximity as BBC had complete control of situation.
C) Fair, just, and reasonable to impose a duty (policy consideration)
Special Duty Situations
1) Psychiatric harm (nervous shock)
No physical but mental harm. Needs medically recognizable condition.
---- Page v Smith (1995): claimant unhurt in car cash but later suffered ME ----
differentiated between primary & secondary victims
Primary victims:
---- Dulieu v White (1901): The claimant was pregnant, a house and cart crashed into
the pub. The claimant was not physically injured but feared for her safety and suffered
shock.
---- Rescuers doctrine --- Chadwick v British Rail(1967): terrible train cash, the
claimant helped and caused huge envious shock.-- claim
--- White v Chief Constable South Yorkshire (1999): policeman who
assisted at Hillsborough football stadium (96 killed) --- could not claim
Secondary victims: shock must arise from a reasonable fear of immediate injury to
oneself.
Hambrook v Stokes (1925); McLoughlin v O’Brian (1982);
2) Economics Loss
2. The defendant was in breach of that duty.
Standard of care- reasonable man test shown in Blyth v Birmingham Water Works
(1856)
‘Negligence is the omission to do something which a reasonable man guided upon
those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a reasonable prudent person would not do.’
Relevant factors to determine breach: 1. Likelihood of harm occurring; 2.
Seriousness of harm likely; 3. Social utility of defendant’s action; 4. Cost and
practicality of taking precautions.
----- Children: are not expected have the same level of understanding as an adult
Mulin v Richards (1998): two children were fighting with plastic rulers, one snapped
and a splint went into the other’s eye, causing blindness. It was held that the girl was
not in breach of duty as she was only held to a standard of a school child not the
reasonable person.
Armstrong v Cottrell(1993) & Morales v Eccleston (1991) ---- contributory
negligence
----- Medical professionals and other professionals:
Bolam v Friern Hospital Management Committee (1957) ----- reasonable doctor --- a
doctor is not negligent if they have acted in accordance with a body of medical
opinions.
Bolitho v City and Hackney Health Authority (1997) ---- applied Bolam test, accepted
medical practice was not negligence
----- Disable and illness:
Mansfield v Weetabix (1997) : The defendant driver suffered a stroke 中风 while he
, was driving. He was not aware of this and had an accident. He was held not to be in
breach of duty.
Roberts v Ramsbottom (1980): breach of the duty
3. The breach of duty caused damage and it is not too remote.
Damage---1) Causation in Fact 2) Causation in Law—Remoteness
Causation is a device to ensure defendant will not be liable for losses not caused by
him/her.
1) Causation in fact --- ‘But For’ test: but for the negligence of the defendant, would
the claimant have suffered loss or damage?
Barnett v Chelsea & Kensington HM Committee (1969): The claimant went to
hospital but was sent home without being examined by a doctor. Defendant owed duty
of care and had breached duty, however, breach did not cause death; the claimant was
already beyond help (无药可救) when he arrived at hospital. Thus, but for the doctor
failing to examine him, he still would have died.
2) Legal causation --- Remoteness: defendant only liable for reasonably foreseeable
consequences, direct or indirect, of their actions.
The Wagon Mound No 1 (1961): Defendant owners of a shipping vessel that spilt oil
in Sydney Harbour – damage resulting: 1. Oil resulted in pollution of the area. 2. Fire
damage when oil ignited by sparks from welding operations
Held: If a foreseeable type of damage is present, the defendant is liable for the full
extent of the damage, no matter whether the extent of damage was foreseeable.
NOVUS ACTUS INTERVENIENS – Event breaking the chain of causation
between defendants breach of duty and claimant’s damage
Damage--- a) Type of damage b)Egg Shell Skull Principle
a) Damage must be of a type that can be foreseen by a reasonable person
Hughes v Lord Advocate (1963): Two boys went exploring an unattended manhole 无
人看管的人洞 where left to warn people of the danger. The boys took the lamp down
the hole and dropped it, causing an unforeseeable explosion resulting in extensive
burns. It was foreseeable that the boys could suffer burns from the lamp.
b) Egg Shell Skull Rule: Defendant must take his victim as he finds him
Smith v Leech Brain (1961): The claimant was employed by the defendant and as a
result of their negligence, he sustained a burn to his lip which triggered pre-cancerous
cells. He died 3 years later from cancer. The defendant was liable for his death as the
burn was a foreseeable consequence of the negligence, it wasn’t necessary to show
that cancer was foreseeable as you must take your victims you find them.
Lagden v O’ Connor (2004)
Burden of Proof in Negligence
General rule claimant has to prove duty owed, breach and damage.
However, 2 exceptions A) Civil Evidence Act. B) Res ipsa loquitur
A) Section 11 of the Civil Evidence Act 1968 provides that a defendant’s criminal
Tortious liability arises from a breach of duty fixed by law; this duty is owed to
persons generally and its breach is redressable by an action for unliquidated damages.
Topic 1: Negligence
The law of negligence was first established in Donoghue v Stevenson (1932)
Bought a bottle of ginger beer and found decomposed snail. Donoghue sued
Stevenson (manufacture).
Created two rules:
---- Narrow rule was applied to product liability
---- Wide rule — ‘neighbour principle’; Lord Atkin: ‘You must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who then in law in my neighbour? The answer seems to
be those persons who are so closely and directly affected by my act, that I ought
reasonably to have them in my contemplation when directing my mind to the act
or omission.’ ---proximity ---foreseeability
To prove the defendant was Negligent：
1. The defendant owed a duty of care.
Test: [Caparo v Dickman (1990)] new duty situation
Three elements:
A) Reasonable foreseeability (Would a reasonable person in defendant’s position
have seen risk of loss or damage?)
---- Longley v Dray (1998): D was driving a stolen car and was being chased by
the claimant, a police officer, who was injured in an accident as a result. D owed a
duty of care as he should have known the police were in pursuit and should not
have driven recklessly.
---- Bourhill v Young (1943): Bourhill a pregnant lady claimed for nervous shock
after getting off a tram, hearing impact of a crash involving a motorcyclist, seeing
blood and later suffering a miscarriage. It was not foreseeable for Young that B
would suffer psychiatric harm as a result of Y negligently causing a loud traffic
accident.
---- Haley v London Electricity Board (1965): Haley, a blind man tripped over a
hammer left on the pavement by the defendant, the man was injured and became
deaf. It was held that it was statistically foreseeable for a blind man to be walking
on a busy street in London
---- Digital Equipment v Hampshire CC (1997): Fire broke out the claimant’s
premises and the fire brigade turned off the sprinkler system, the whole building
was then destroyed. The fire brigade was liable.
B) Proximity relationship (Relevant relationship between defendant and claimant or
between defendant and activity causing harm to claimant)
---- Watson v British Boxing Board of Control (2000): Watson, a boxer, was
suffered severe injury in the ring. The defendant failed to provide sufficient
medical care at the ringside. The injury was foreseeable and create sufficient
, proximity as BBC had complete control of situation.
C) Fair, just, and reasonable to impose a duty (policy consideration)
Special Duty Situations
1) Psychiatric harm (nervous shock)
No physical but mental harm. Needs medically recognizable condition.
---- Page v Smith (1995): claimant unhurt in car cash but later suffered ME ----
differentiated between primary & secondary victims
Primary victims:
---- Dulieu v White (1901): The claimant was pregnant, a house and cart crashed into
the pub. The claimant was not physically injured but feared for her safety and suffered
shock.
---- Rescuers doctrine --- Chadwick v British Rail(1967): terrible train cash, the
claimant helped and caused huge envious shock.-- claim
--- White v Chief Constable South Yorkshire (1999): policeman who
assisted at Hillsborough football stadium (96 killed) --- could not claim
Secondary victims: shock must arise from a reasonable fear of immediate injury to
oneself.
Hambrook v Stokes (1925); McLoughlin v O’Brian (1982);
2) Economics Loss
2. The defendant was in breach of that duty.
Standard of care- reasonable man test shown in Blyth v Birmingham Water Works
(1856)
‘Negligence is the omission to do something which a reasonable man guided upon
those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a reasonable prudent person would not do.’
Relevant factors to determine breach: 1. Likelihood of harm occurring; 2.
Seriousness of harm likely; 3. Social utility of defendant’s action; 4. Cost and
practicality of taking precautions.
----- Children: are not expected have the same level of understanding as an adult
Mulin v Richards (1998): two children were fighting with plastic rulers, one snapped
and a splint went into the other’s eye, causing blindness. It was held that the girl was
not in breach of duty as she was only held to a standard of a school child not the
reasonable person.
Armstrong v Cottrell(1993) & Morales v Eccleston (1991) ---- contributory
negligence
----- Medical professionals and other professionals:
Bolam v Friern Hospital Management Committee (1957) ----- reasonable doctor --- a
doctor is not negligent if they have acted in accordance with a body of medical
opinions.
Bolitho v City and Hackney Health Authority (1997) ---- applied Bolam test, accepted
medical practice was not negligence
----- Disable and illness:
Mansfield v Weetabix (1997) : The defendant driver suffered a stroke 中风 while he
, was driving. He was not aware of this and had an accident. He was held not to be in
breach of duty.
Roberts v Ramsbottom (1980): breach of the duty
3. The breach of duty caused damage and it is not too remote.
Damage---1) Causation in Fact 2) Causation in Law—Remoteness
Causation is a device to ensure defendant will not be liable for losses not caused by
him/her.
1) Causation in fact --- ‘But For’ test: but for the negligence of the defendant, would
the claimant have suffered loss or damage?
Barnett v Chelsea & Kensington HM Committee (1969): The claimant went to
hospital but was sent home without being examined by a doctor. Defendant owed duty
of care and had breached duty, however, breach did not cause death; the claimant was
already beyond help (无药可救) when he arrived at hospital. Thus, but for the doctor
failing to examine him, he still would have died.
2) Legal causation --- Remoteness: defendant only liable for reasonably foreseeable
consequences, direct or indirect, of their actions.
The Wagon Mound No 1 (1961): Defendant owners of a shipping vessel that spilt oil
in Sydney Harbour – damage resulting: 1. Oil resulted in pollution of the area. 2. Fire
damage when oil ignited by sparks from welding operations
Held: If a foreseeable type of damage is present, the defendant is liable for the full
extent of the damage, no matter whether the extent of damage was foreseeable.
NOVUS ACTUS INTERVENIENS – Event breaking the chain of causation
between defendants breach of duty and claimant’s damage
Damage--- a) Type of damage b)Egg Shell Skull Principle
a) Damage must be of a type that can be foreseen by a reasonable person
Hughes v Lord Advocate (1963): Two boys went exploring an unattended manhole 无
人看管的人洞 where left to warn people of the danger. The boys took the lamp down
the hole and dropped it, causing an unforeseeable explosion resulting in extensive
burns. It was foreseeable that the boys could suffer burns from the lamp.
b) Egg Shell Skull Rule: Defendant must take his victim as he finds him
Smith v Leech Brain (1961): The claimant was employed by the defendant and as a
result of their negligence, he sustained a burn to his lip which triggered pre-cancerous
cells. He died 3 years later from cancer. The defendant was liable for his death as the
burn was a foreseeable consequence of the negligence, it wasn’t necessary to show
that cancer was foreseeable as you must take your victims you find them.
Lagden v O’ Connor (2004)
Burden of Proof in Negligence
General rule claimant has to prove duty owed, breach and damage.
However, 2 exceptions A) Civil Evidence Act. B) Res ipsa loquitur
A) Section 11 of the Civil Evidence Act 1968 provides that a defendant’s criminal
