Law Notes II
Tort Law
Introduction
a civil wrong rather than a criminal offense
doesn’t include a breach of contract or of trust
aims to settle disputes rather than to punish wrong doing
usually uses financial compensation (damages) or an injunction (order to stop doing
something)
relied upon if a person has been affected by another person’s acts or omissions
doesn’t require mens rea
types of tort:
… of negligence
… of trespass
… of nuisance
fault -
the claimant has to prove that the defendant was “at fault” and will have to provide
evidence
torts that require fault to be proven include…
negligence
psychiatric injury
occupiers libaility
economic loss
Liability in Negligence - Duty of care
Law Notes II 1
, defined in Blyth v Birmingham Waterworks Co. (1856) as “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 prudent and reasonable
man would not do.”
neighbor principle - set out by Donoghue & Stevenson ; girl found snail in ginger beer,
manufacturer found liable
“you must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbor*”
{ * anyone who is closely & directly affected }
the caparo v dickman (1990) test determines if this principle applies through the following
criteria…
1. was it reasonably foreseeable that a person in the claimant’s position would be injured? -
Kent v Griffiths ; ambulance failed to arrive within reasonable time
2. was there sufficient proximity between the parties? - Bourhill v Young ; pregnant woman
shocked over sound of accident and seeing slight blood leading to still birth
3. would it be fair just & reasonable to impose liability? - Hill v Chief Constable of
Yorkshire Police ; police failure to catch claimant’s daughter’s murderer
once it is determined that there was a breach in duty of care, the claimant has to prove that it
was broken by failing to reach the standard of care*
* standard of care is the reasonable man - this is an objective test
considered as…
ordinary person
the learner - Nettleship v Weston ; hit a lamppost during drivers test, injured instructor
the professional - Bolam v Friern Barnet Hospital Management Committee ; patient not
made aware of or medicated for side effects of treatment, injured
young people - Mullin v Richards ; 15 year olds playing with ruler, broke and fragments
injured classmate’s eye
risk factors are also taken into consideration, such as…
Law Notes II 2
, special characteristics - Paris v Stephney Borough Council ; employee blind in one eye,
not given protection for eyes on job, became totally blind
size of risk - Bolton v Stone ; cricket ball hit a pedestrian outside pitch, but only
happened 6 times total in past 30 years, so low risk
precautions taken (or lack thereof) - Latimer v AEC LTD ; factory flooded, sawdust
spread on floor to prevent slipperiness, someone still slipped & injured
whether the risk was known - Roe v MOH ; unknown invisible cracks in hospital
equipment contaminated anaesthetic
if there is a public benefit to taking said risk - Day v High Performance Sports ;
professional stuck on indoor climbing wall, rescued but incorrectly, fell and injured (not
liable as still attempted to rescue)
→ uses “balance of probabilities”, not “beyond a reasonable doubt”
→ requires civil evidence - the rules that set out how the facts of a case must be proved
Damage
after proving the duty of care and the breach, the claimant must prove there was damage due
to the defendant’s actions
there are two parts of damage…
causation
the idea that the breach of duty has caused the injury or damage being claimed for -
a.k.a. factual causation, or the “but for test” - Barnett v Chelsea & Kensington HMC
; hospital watchman poisoned by coworker, doctor on duty told him to go home and
see his own doctor not knowing he was poisoned, the man died - and determines
whether the damage was reasonably foreseeable
both elements must be proven
intervening events, or novus actus interveniens, can break the chain of causation
remoteness of damage
comes from the case of The Wagon Mound ; fuel oil spilled from D’s ship to sydney
harbour, later catching fire because of sparks from welding, burning down a wharf,
determined too remote as it was not reasonably foreseeable
Law Notes II 3
Tort Law
Introduction
a civil wrong rather than a criminal offense
doesn’t include a breach of contract or of trust
aims to settle disputes rather than to punish wrong doing
usually uses financial compensation (damages) or an injunction (order to stop doing
something)
relied upon if a person has been affected by another person’s acts or omissions
doesn’t require mens rea
types of tort:
… of negligence
… of trespass
… of nuisance
fault -
the claimant has to prove that the defendant was “at fault” and will have to provide
evidence
torts that require fault to be proven include…
negligence
psychiatric injury
occupiers libaility
economic loss
Liability in Negligence - Duty of care
Law Notes II 1
, defined in Blyth v Birmingham Waterworks Co. (1856) as “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 prudent and reasonable
man would not do.”
neighbor principle - set out by Donoghue & Stevenson ; girl found snail in ginger beer,
manufacturer found liable
“you must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbor*”
{ * anyone who is closely & directly affected }
the caparo v dickman (1990) test determines if this principle applies through the following
criteria…
1. was it reasonably foreseeable that a person in the claimant’s position would be injured? -
Kent v Griffiths ; ambulance failed to arrive within reasonable time
2. was there sufficient proximity between the parties? - Bourhill v Young ; pregnant woman
shocked over sound of accident and seeing slight blood leading to still birth
3. would it be fair just & reasonable to impose liability? - Hill v Chief Constable of
Yorkshire Police ; police failure to catch claimant’s daughter’s murderer
once it is determined that there was a breach in duty of care, the claimant has to prove that it
was broken by failing to reach the standard of care*
* standard of care is the reasonable man - this is an objective test
considered as…
ordinary person
the learner - Nettleship v Weston ; hit a lamppost during drivers test, injured instructor
the professional - Bolam v Friern Barnet Hospital Management Committee ; patient not
made aware of or medicated for side effects of treatment, injured
young people - Mullin v Richards ; 15 year olds playing with ruler, broke and fragments
injured classmate’s eye
risk factors are also taken into consideration, such as…
Law Notes II 2
, special characteristics - Paris v Stephney Borough Council ; employee blind in one eye,
not given protection for eyes on job, became totally blind
size of risk - Bolton v Stone ; cricket ball hit a pedestrian outside pitch, but only
happened 6 times total in past 30 years, so low risk
precautions taken (or lack thereof) - Latimer v AEC LTD ; factory flooded, sawdust
spread on floor to prevent slipperiness, someone still slipped & injured
whether the risk was known - Roe v MOH ; unknown invisible cracks in hospital
equipment contaminated anaesthetic
if there is a public benefit to taking said risk - Day v High Performance Sports ;
professional stuck on indoor climbing wall, rescued but incorrectly, fell and injured (not
liable as still attempted to rescue)
→ uses “balance of probabilities”, not “beyond a reasonable doubt”
→ requires civil evidence - the rules that set out how the facts of a case must be proved
Damage
after proving the duty of care and the breach, the claimant must prove there was damage due
to the defendant’s actions
there are two parts of damage…
causation
the idea that the breach of duty has caused the injury or damage being claimed for -
a.k.a. factual causation, or the “but for test” - Barnett v Chelsea & Kensington HMC
; hospital watchman poisoned by coworker, doctor on duty told him to go home and
see his own doctor not knowing he was poisoned, the man died - and determines
whether the damage was reasonably foreseeable
both elements must be proven
intervening events, or novus actus interveniens, can break the chain of causation
remoteness of damage
comes from the case of The Wagon Mound ; fuel oil spilled from D’s ship to sydney
harbour, later catching fire because of sparks from welding, burning down a wharf,
determined too remote as it was not reasonably foreseeable
Law Notes II 3
