TORT LAW REVISION GUIDE
TORT OF NEGLIGENCE
Requires 3 elements:
A legal duty owed by the defendant to the claimant to take care
A breach of this duty by the defendant
Damage to the claimant, caused by the breach, which is not considered to be too remote
POINTERS!
Defendant may be able to raise a defence which may either defeat a claim entirely or reduce
the amount of damages paid
Each element of negligence is NECESSARY, but not sufficient, in order to establish liability
o I.e. if all elements are satisfied, but the damage is too remote, the D will not be
liable
There may be more than one defendant, as well as multiple claimants
o Where two or more parties act together in pursuit of a common design or plan and
cause the same damage, each will be jointly and severally liable
o Claimant may choose to sue each party separately for the entirety of the damage or
sue both jointly in the same action
Burden of proof – upon the claimant to prove the liability of the defendant (criminal)
Standard of proof – balance of probabilities = “beyond reasonable doubt” (civil)
DUTY OF CARE
A defendant will only be liable for their carelessness if they owe the claimant a legal duty to take
care
Carelessness (however great) is NOT enough
o The law ‘concerns itself with carelessness only where there is a duty to take care and
where failure in that duty has caused damage’ (Lord Macmillan, Donoghue at 618)
Duty of care (foreseeability) – was some/any harm of any sort to C or someone like C a
predictable and real risk of carelessness? (Not just a “mere possibility”)
CASES:
Donoghue v Stevenson (1932)
o Donoghue had no direct claim against manufacturer or shopkeeper but claimed
damages against manufacturer who owed duty of care
Neighbour principle – “You must take reasonable care to avoid
acts/omissions which you can reasonably foresee would be likely to
injure your neighbour”
“Neighbour” – anyone who D should reasonably have in contemplation
DO NOT USE IN PROBLEM QUESTIONS – ONLY PART OF BACKGROUND
STORY
, GENERAL RULE IN UNPROBLEMATIC DUTY GENERAL RULE IN PROBLEMATIC DUTY
SCENARIOS SCENARIOS
D must not cause direct Indirectly caused
Physical damage to a claimant Non-physical damage
By a negligent act By omission
Unless some reason can be found not to And/or if fact situation is novel/new
impose duty (e.g. ‘protected’ D)
Examples: Indirect cause (3rd party):
Road users to other road users to drive Breach often an omission
carefully D often a public body
Employers to employees to provide Causation
reasonably safe place and systems of How many in C’s class?
work How to specify the duty?
Healthcare practitioners to patients
including diagnosis, advice and General approaches:
treatment Where D has some control or
Occupiers to lawful and non-lawful supervision over TP (third party) who
visitors to keep state of premises harms C, D may owe C a duty of care
reasonably safe Duty owed by D to C does not depend
Highway authorities to road users to on D owing duty to TP
keep conditions of road reasonably safe Favoured test: Caparo v Dickaman
Manufacturers to consumers to avoid Assumption of responsibility (C and D
damage caused by defective products rarely known to each other in advance)
Prison officers to charges
Teachers to pupils
Caparo v Dickman: “Three Stage Test”
WHEN SHOULD I USE THIS TEST?
When it is not possible to find a duty ‘incrementally’ (in regular stages)
When there is a ‘novel’ situation – those where there is no established precedent or
authority – meaning the courts need a test/guidance = Caparo
o Is this a novel situation? If so, is there an analogous case? If not, may be a step too
far
o If there IS an analogous case, apply the three stage test
THREE ELEMENTS:
1. It was reasonably foreseeable that the defendant’s failure to take care could cause damage
to the claimant
2. There was a relationship of proximity between the claimant and the defendant, and
3. It is fair, just and reasonable that the law should recognise a duty on the defendant to take
reasonable care not to cause that damage to the claimant
Foreseeability
Objective test – would the “reasonable person” in Ds position have foreseen that someone in C’s
position may be injured
o Was the damage reasonably foreseeable to the ordinary person?
Kent v Griffiths (2000) – foreseeable that an injured person waiting for an
ambulance may be severely injured if delays occur
Haley v London Electricity Board [1965] – D’s duty to take reasonable
care not to act in a way that endangered others extended to all those
who might reasonably be expected to walk along the pavement –
including blind pedestrians
, Proximity
Before a duty of care can arise, a certain type of relationship or connection must exist between
the parties
Legal proximity includes: geographical, temporal, relational and causal
o Geographical – physical space
o Temporal – time and space
o Relational – only relevant when it makes loss foreseeable to person in Ds position i.e.
includes assumption of responsibility
o Causal – did he preclude his actions as something that would have prevented harm
Bourhill v Young – no physical proximity but later went to see aftermath
of accident = suffered miscarriage; no duty of care said to exist
McLoughlin v O’Brien – C was told of events and rushed to see injured
family = suffered shock (no proximity of time or space); relationship
overrode this to make D liable
Kearn-Price v Kent CC [2002] - “a school owes to all pupils who are
lawfully on its premises a general duty to take such measures to care for
their health and safety as are reasonable in the circumstances. It is
neither just nor reasonable to say that a school owes no duty of care at
all to pupils who are at school before or after school hours”.
Fair, just and reasonable
Whether it is fair, just and reasonable to impose a duty of care (public policy)
Several policy factors which may intervene with this element:
o Corrective justice (reversal of wrongs)
X v Bedfordshire CC [1995] HL – related to circumstances where a
common law duty of care would be imposed on a local authority for a
breach of its statutory duty
1. Breach of statutory duty does not automatically give rise to a
private law cause of action
2. If a cause of action can be found, C must show that DOC is
owed under ordinary common law principles
3. If actions complained of fall within statutory discretion, not
actionable at common law unless decision is so unreasonable
as to fall outside proper exercise of discretion
4. Duties imposed by Act are such that it cannot give rise to
common law claim even if actions are found to be in breach of
statutory duty
5. Duties under Act are not amendable to common law claims
6. Social workers do not owe duty of care to individuals, but to
local authority
7. Duty of care is not imposed on local education authorities with
regards to discretion in addressing special needs
8. Where local authority offers psychological advice to public,
must do so with reasonable care
9. Headmaster, psychologist or adviser to local education
authority is under duty of care to parents and children
o Distributive justice (distribution of risks and opportunities in society)
McFarlane v Tayside Healthboard [1999] HL - The doctor undertakes a
duty of care in regard to the prevention of pregnancy: it does not follow
that the duty includes also avoiding the costs of rearing the child if born
and accepted into the family.
TORT OF NEGLIGENCE
Requires 3 elements:
A legal duty owed by the defendant to the claimant to take care
A breach of this duty by the defendant
Damage to the claimant, caused by the breach, which is not considered to be too remote
POINTERS!
Defendant may be able to raise a defence which may either defeat a claim entirely or reduce
the amount of damages paid
Each element of negligence is NECESSARY, but not sufficient, in order to establish liability
o I.e. if all elements are satisfied, but the damage is too remote, the D will not be
liable
There may be more than one defendant, as well as multiple claimants
o Where two or more parties act together in pursuit of a common design or plan and
cause the same damage, each will be jointly and severally liable
o Claimant may choose to sue each party separately for the entirety of the damage or
sue both jointly in the same action
Burden of proof – upon the claimant to prove the liability of the defendant (criminal)
Standard of proof – balance of probabilities = “beyond reasonable doubt” (civil)
DUTY OF CARE
A defendant will only be liable for their carelessness if they owe the claimant a legal duty to take
care
Carelessness (however great) is NOT enough
o The law ‘concerns itself with carelessness only where there is a duty to take care and
where failure in that duty has caused damage’ (Lord Macmillan, Donoghue at 618)
Duty of care (foreseeability) – was some/any harm of any sort to C or someone like C a
predictable and real risk of carelessness? (Not just a “mere possibility”)
CASES:
Donoghue v Stevenson (1932)
o Donoghue had no direct claim against manufacturer or shopkeeper but claimed
damages against manufacturer who owed duty of care
Neighbour principle – “You must take reasonable care to avoid
acts/omissions which you can reasonably foresee would be likely to
injure your neighbour”
“Neighbour” – anyone who D should reasonably have in contemplation
DO NOT USE IN PROBLEM QUESTIONS – ONLY PART OF BACKGROUND
STORY
, GENERAL RULE IN UNPROBLEMATIC DUTY GENERAL RULE IN PROBLEMATIC DUTY
SCENARIOS SCENARIOS
D must not cause direct Indirectly caused
Physical damage to a claimant Non-physical damage
By a negligent act By omission
Unless some reason can be found not to And/or if fact situation is novel/new
impose duty (e.g. ‘protected’ D)
Examples: Indirect cause (3rd party):
Road users to other road users to drive Breach often an omission
carefully D often a public body
Employers to employees to provide Causation
reasonably safe place and systems of How many in C’s class?
work How to specify the duty?
Healthcare practitioners to patients
including diagnosis, advice and General approaches:
treatment Where D has some control or
Occupiers to lawful and non-lawful supervision over TP (third party) who
visitors to keep state of premises harms C, D may owe C a duty of care
reasonably safe Duty owed by D to C does not depend
Highway authorities to road users to on D owing duty to TP
keep conditions of road reasonably safe Favoured test: Caparo v Dickaman
Manufacturers to consumers to avoid Assumption of responsibility (C and D
damage caused by defective products rarely known to each other in advance)
Prison officers to charges
Teachers to pupils
Caparo v Dickman: “Three Stage Test”
WHEN SHOULD I USE THIS TEST?
When it is not possible to find a duty ‘incrementally’ (in regular stages)
When there is a ‘novel’ situation – those where there is no established precedent or
authority – meaning the courts need a test/guidance = Caparo
o Is this a novel situation? If so, is there an analogous case? If not, may be a step too
far
o If there IS an analogous case, apply the three stage test
THREE ELEMENTS:
1. It was reasonably foreseeable that the defendant’s failure to take care could cause damage
to the claimant
2. There was a relationship of proximity between the claimant and the defendant, and
3. It is fair, just and reasonable that the law should recognise a duty on the defendant to take
reasonable care not to cause that damage to the claimant
Foreseeability
Objective test – would the “reasonable person” in Ds position have foreseen that someone in C’s
position may be injured
o Was the damage reasonably foreseeable to the ordinary person?
Kent v Griffiths (2000) – foreseeable that an injured person waiting for an
ambulance may be severely injured if delays occur
Haley v London Electricity Board [1965] – D’s duty to take reasonable
care not to act in a way that endangered others extended to all those
who might reasonably be expected to walk along the pavement –
including blind pedestrians
, Proximity
Before a duty of care can arise, a certain type of relationship or connection must exist between
the parties
Legal proximity includes: geographical, temporal, relational and causal
o Geographical – physical space
o Temporal – time and space
o Relational – only relevant when it makes loss foreseeable to person in Ds position i.e.
includes assumption of responsibility
o Causal – did he preclude his actions as something that would have prevented harm
Bourhill v Young – no physical proximity but later went to see aftermath
of accident = suffered miscarriage; no duty of care said to exist
McLoughlin v O’Brien – C was told of events and rushed to see injured
family = suffered shock (no proximity of time or space); relationship
overrode this to make D liable
Kearn-Price v Kent CC [2002] - “a school owes to all pupils who are
lawfully on its premises a general duty to take such measures to care for
their health and safety as are reasonable in the circumstances. It is
neither just nor reasonable to say that a school owes no duty of care at
all to pupils who are at school before or after school hours”.
Fair, just and reasonable
Whether it is fair, just and reasonable to impose a duty of care (public policy)
Several policy factors which may intervene with this element:
o Corrective justice (reversal of wrongs)
X v Bedfordshire CC [1995] HL – related to circumstances where a
common law duty of care would be imposed on a local authority for a
breach of its statutory duty
1. Breach of statutory duty does not automatically give rise to a
private law cause of action
2. If a cause of action can be found, C must show that DOC is
owed under ordinary common law principles
3. If actions complained of fall within statutory discretion, not
actionable at common law unless decision is so unreasonable
as to fall outside proper exercise of discretion
4. Duties imposed by Act are such that it cannot give rise to
common law claim even if actions are found to be in breach of
statutory duty
5. Duties under Act are not amendable to common law claims
6. Social workers do not owe duty of care to individuals, but to
local authority
7. Duty of care is not imposed on local education authorities with
regards to discretion in addressing special needs
8. Where local authority offers psychological advice to public,
must do so with reasonable care
9. Headmaster, psychologist or adviser to local education
authority is under duty of care to parents and children
o Distributive justice (distribution of risks and opportunities in society)
McFarlane v Tayside Healthboard [1999] HL - The doctor undertakes a
duty of care in regard to the prevention of pregnancy: it does not follow
that the duty includes also avoiding the costs of rearing the child if born
and accepted into the family.
