Tort Law
Negligence
Negligence is the failure to do something which a reasonable man would do, or something
that a reasonable, prudent man would not do (Blythe v Birmingham Waterworks).
It must be established that the defendant owed a duty of care to the claimant. This is
generally established by the neighbour principle (Donoghue v Stevenson), and was
extended after the case of Robinson v Chief Constable of West Yorkshire Police, where
the courts are to use reasoning by analogy, whereby they look at existing duty situations to
establish whether a defendant has one or not.
In order to establish a duty in new and novel cases, the courts use the Caparo Test. Under
the Caparo Test (Caparo v Dickman), the defendant must have owed a duty of care, which
they breached and caused reasonably foreseeable damage.
Firstly, it must have been reasonably foreseeable that the defendant’s act or omission can
cause damage to someone in the claimant’s position (Kent v Griffiths). There must also be
proximity of either time and space (Bourhill v Young), or relationship between the
defendant and the claimant (McLoughlin v O’Brien). It must be fair, just and reasonable to
impose a duty of care upon the defendant, considering the wider impact on society (Hill v
Chief Constable West Yorkshire)
Once a duty has been established, the defendant must have breached it by an act or
omission. This is an objective standard and means that the defendant must have fallen
below the standard of the reasonable man (Wells v Cooper) and consider any risk factors.
The reasonable person varies on a case-to-case basis:
1. Professionals held to professional standards (Montgomery v Lanarkshire Health
Board),
2. Learners held to the standard of a reasonably experienced and competent man
(Nettleship v Weston), (Wilsher v Essex Health Authority),
3. Children held to standards of a reasonable child of that age (Mullins v Richards).
Risk factors balance out what a ‘reasonable person’ would have done in the same situation:
1. Characteristics of the claimant: the defendant should take more care and precautions
to protect vulnerable people (Paris v Stepney Borough Council)
2. The Size of the Risk: the more serious and likely the risk, the more precautions and
care should be taken (Haley v London Electrical Board) / (Bolton v Stone)
3. The practicality of precautions: seriousness of potential danger must be balanced
with cost and troubles of securing the risk (Latimer v AEC Ltd)
4. Were the risks know about at the time of the incident?: the reasonable person is not
expected to protect against unknown risks (Roe v Minister of Health)
5. The potential social benefit: a lower standard of care can be taken if it would benefit
the wider society (Day v High Performance Sport) / (Miller v Jackson)
, Tort Law
The breach of duty must have caused personal injury or property damage:
Factual causation: The But for Test (Barnett v Chelsea and Kensington HMC);
Legal causation: was injury reasonably foreseeable? Any Novus Actus Interveniens?:
1. Victim’s own actions- claimant does an act resulting in outcome that would not have
been probable from original action. Unreasonable & unforeseeable. (McKew v
Hollands)
2. Act of God- something so unexpected and unforeseeable happens that breaks the
chain of causation (Carslogie Steamship Co v Royal Norwegian Gov)
3. Act of Third Party- where a third party does an act resulting in an outcome that would
not have been a probable consequence of the original action (Knightly v Johns)
Claimants will only be able to claim for damage that was not too remote, so the claimant has
to show that the damage was of a reasonably foreseeable type (The Wagon Mound No. 1).
Provided the type of damage is foreseeable (Bradford v Robinson Rentals), the precise
nature of how it occurs does not have to be (Hughes v Lord Advocate).
The thin skull rule applies, where the defendant must take claimant as he finds him, being
liable for the full extent of injury, even if more serious than expected (Smith v Leech Brain).
Evaluation: Negligence
Proving fault
In novel cases, claimants need to establish DoC, satisfying the Caparo Test. Lots of legal
groundwork, but since Robinson v CCWY 2017, no need to anymore and courts will use
reasoning by analogy.
Judicial law making
Tort law comes from judicial precedent such as Donoghue v Stevenson, and transfers the
law making powers to judges. They are undemocratic, and unelected individuals who are
only supposed to be applying to law. This is arguably Parliament’s job and significantly
breaches the separation of powers following the Constitutional Reform Act 2005, where the
three arms of the state should be kept separated to ensure order and control.
However this is problematic as Parliament have little time or desire to legislate in all areas of
the law, and when they do they are usually unclear or poorly thought out like the
Compensation Act 2006, so leave judges no choice but to make case law to fill in the gaps.
Changing the law
Appeal courts sometimes make new principles which are then often overturned by later
decisions. Montgomery overruled Bolam regarding a doctor’s duty to warn patients of risks,
where now a doctor is under a duty to take reasonable steps to inform patients of any
material risks and inform of viable alternatives. This may cause confusion and lack of clarity
when well-established principles are overturned.
Negligence
Negligence is the failure to do something which a reasonable man would do, or something
that a reasonable, prudent man would not do (Blythe v Birmingham Waterworks).
It must be established that the defendant owed a duty of care to the claimant. This is
generally established by the neighbour principle (Donoghue v Stevenson), and was
extended after the case of Robinson v Chief Constable of West Yorkshire Police, where
the courts are to use reasoning by analogy, whereby they look at existing duty situations to
establish whether a defendant has one or not.
In order to establish a duty in new and novel cases, the courts use the Caparo Test. Under
the Caparo Test (Caparo v Dickman), the defendant must have owed a duty of care, which
they breached and caused reasonably foreseeable damage.
Firstly, it must have been reasonably foreseeable that the defendant’s act or omission can
cause damage to someone in the claimant’s position (Kent v Griffiths). There must also be
proximity of either time and space (Bourhill v Young), or relationship between the
defendant and the claimant (McLoughlin v O’Brien). It must be fair, just and reasonable to
impose a duty of care upon the defendant, considering the wider impact on society (Hill v
Chief Constable West Yorkshire)
Once a duty has been established, the defendant must have breached it by an act or
omission. This is an objective standard and means that the defendant must have fallen
below the standard of the reasonable man (Wells v Cooper) and consider any risk factors.
The reasonable person varies on a case-to-case basis:
1. Professionals held to professional standards (Montgomery v Lanarkshire Health
Board),
2. Learners held to the standard of a reasonably experienced and competent man
(Nettleship v Weston), (Wilsher v Essex Health Authority),
3. Children held to standards of a reasonable child of that age (Mullins v Richards).
Risk factors balance out what a ‘reasonable person’ would have done in the same situation:
1. Characteristics of the claimant: the defendant should take more care and precautions
to protect vulnerable people (Paris v Stepney Borough Council)
2. The Size of the Risk: the more serious and likely the risk, the more precautions and
care should be taken (Haley v London Electrical Board) / (Bolton v Stone)
3. The practicality of precautions: seriousness of potential danger must be balanced
with cost and troubles of securing the risk (Latimer v AEC Ltd)
4. Were the risks know about at the time of the incident?: the reasonable person is not
expected to protect against unknown risks (Roe v Minister of Health)
5. The potential social benefit: a lower standard of care can be taken if it would benefit
the wider society (Day v High Performance Sport) / (Miller v Jackson)
, Tort Law
The breach of duty must have caused personal injury or property damage:
Factual causation: The But for Test (Barnett v Chelsea and Kensington HMC);
Legal causation: was injury reasonably foreseeable? Any Novus Actus Interveniens?:
1. Victim’s own actions- claimant does an act resulting in outcome that would not have
been probable from original action. Unreasonable & unforeseeable. (McKew v
Hollands)
2. Act of God- something so unexpected and unforeseeable happens that breaks the
chain of causation (Carslogie Steamship Co v Royal Norwegian Gov)
3. Act of Third Party- where a third party does an act resulting in an outcome that would
not have been a probable consequence of the original action (Knightly v Johns)
Claimants will only be able to claim for damage that was not too remote, so the claimant has
to show that the damage was of a reasonably foreseeable type (The Wagon Mound No. 1).
Provided the type of damage is foreseeable (Bradford v Robinson Rentals), the precise
nature of how it occurs does not have to be (Hughes v Lord Advocate).
The thin skull rule applies, where the defendant must take claimant as he finds him, being
liable for the full extent of injury, even if more serious than expected (Smith v Leech Brain).
Evaluation: Negligence
Proving fault
In novel cases, claimants need to establish DoC, satisfying the Caparo Test. Lots of legal
groundwork, but since Robinson v CCWY 2017, no need to anymore and courts will use
reasoning by analogy.
Judicial law making
Tort law comes from judicial precedent such as Donoghue v Stevenson, and transfers the
law making powers to judges. They are undemocratic, and unelected individuals who are
only supposed to be applying to law. This is arguably Parliament’s job and significantly
breaches the separation of powers following the Constitutional Reform Act 2005, where the
three arms of the state should be kept separated to ensure order and control.
However this is problematic as Parliament have little time or desire to legislate in all areas of
the law, and when they do they are usually unclear or poorly thought out like the
Compensation Act 2006, so leave judges no choice but to make case law to fill in the gaps.
Changing the law
Appeal courts sometimes make new principles which are then often overturned by later
decisions. Montgomery overruled Bolam regarding a doctor’s duty to warn patients of risks,
where now a doctor is under a duty to take reasonable steps to inform patients of any
material risks and inform of viable alternatives. This may cause confusion and lack of clarity
when well-established principles are overturned.
