TORT LAW 2019-2020
EXAM NOTES
Topic 1: Negligence
Duty of Care
Elements
A duty of care owed by the defendant to the plaintiff
The defendant has breached his duty of care
The defendant’s breach caused the plaintiff loss and such loss is not too remote
1. D must owe C a duty of care in respect of the harm caused (Donoghue v
Stevenson; Caparo Industries v Dickman)
- The harm must be reasonably foreseeable
- There was a relationship of proximity
- It must be fair, just and reasonable to impose the duty of care. Policy
factors may sometimes influence a finding of a duty of care.
A) Duty of care – police immunity
a) Hill v Chief Constable of South Yorkshire; Smith v Chief Constable of
Sussex Police: Police immunity is common. The police owes no legal duty of
care to individuals affected. – but in Z v UK where a local authority failed to
separate four children from their mother even though it was clear that the
children were being abuse and neglected, it was held that the authority had
a positive obligation to remove the children as soon as they became aware
of abuse that might amount to inhuman or degrading treatment.
b) Smith v MOD: There is a long standing policy of combat immunity ie soldiers
owe no duty to take steps to protect their colleagues from the risk of friendly
fire as the threat of liability might take soldiers’ minds off the task in hand. In
this case, there is no immunity outside combat situations – MOD may owe
the soldiers a DOC.
c) Osman v UK: The Hill immunity was disproportionate.
d) Hall v Simons; Jones v Kaney: abolished the immunities enjoyed by lawyers
and expert witnesses in respect of their conduct of litigation.
e) XA v YA: A mother does not owe a child a DOC in respect of the violence of
the father.
f) McFarlane v Tayside; Rees v Darlington: Costs of upbringing after wrongful
birth irrecoverable,
g) Parkinson v St James: unless the child has a disability.
B) Duty of care – Claimant’s psychiatric illness
McLaughlin v O’Brien (foreseeability of psychiatric illness is insufficient)
Requirements:
i. It must be a recognised psychiatric illness (Alcock v Chief Constable of South
Yorkshire)
ii. Is the claimant a primary victim or a secondary victim?
EXAM NOTES
Topic 1: Negligence
Duty of Care
Elements
A duty of care owed by the defendant to the plaintiff
The defendant has breached his duty of care
The defendant’s breach caused the plaintiff loss and such loss is not too remote
1. D must owe C a duty of care in respect of the harm caused (Donoghue v
Stevenson; Caparo Industries v Dickman)
- The harm must be reasonably foreseeable
- There was a relationship of proximity
- It must be fair, just and reasonable to impose the duty of care. Policy
factors may sometimes influence a finding of a duty of care.
A) Duty of care – police immunity
a) Hill v Chief Constable of South Yorkshire; Smith v Chief Constable of
Sussex Police: Police immunity is common. The police owes no legal duty of
care to individuals affected. – but in Z v UK where a local authority failed to
separate four children from their mother even though it was clear that the
children were being abuse and neglected, it was held that the authority had
a positive obligation to remove the children as soon as they became aware
of abuse that might amount to inhuman or degrading treatment.
b) Smith v MOD: There is a long standing policy of combat immunity ie soldiers
owe no duty to take steps to protect their colleagues from the risk of friendly
fire as the threat of liability might take soldiers’ minds off the task in hand. In
this case, there is no immunity outside combat situations – MOD may owe
the soldiers a DOC.
c) Osman v UK: The Hill immunity was disproportionate.
d) Hall v Simons; Jones v Kaney: abolished the immunities enjoyed by lawyers
and expert witnesses in respect of their conduct of litigation.
e) XA v YA: A mother does not owe a child a DOC in respect of the violence of
the father.
f) McFarlane v Tayside; Rees v Darlington: Costs of upbringing after wrongful
birth irrecoverable,
g) Parkinson v St James: unless the child has a disability.
B) Duty of care – Claimant’s psychiatric illness
McLaughlin v O’Brien (foreseeability of psychiatric illness is insufficient)
Requirements:
i. It must be a recognised psychiatric illness (Alcock v Chief Constable of South
Yorkshire)
ii. Is the claimant a primary victim or a secondary victim?
