Tort
2 exams – 50% - 105 mins
- sA – compulsory problem q – seen
- sB – must answer 1/3 qs
- MODERN POSITION – MODERN ADVICE
o Don’t rely too much on history
- Week 8 lecture – half session exam
o Also reg online tests
o Immediate generic feedback in the other half of the session
- Need statute book – most up to date version
Lecture 1 – week 1
The Fundamentals
- Tort – social contract of a country
o Social expectation reinforced in law
o Moves quickly and free-flowing
Common law heavy
- Tort – a wrong
o Law is seeking to correct the wrong
o A civil wring giving rise to an action for damages
eg compensation
- Core elements
o Act OR omission
That causes…
o Damage
To a protected interest of C…
o By the fault of D
Burden of proof is on C
o Standard of proof is on the balance of probabilities
Usually to the standard of a reasonable person
- Protected interests
o Personal security
o Personal property
o Economic interests
o Reputation/privacy
,
- Contract v tort
o Tort duties are fixed by law and are owed to people in general; contract
duties arise voluntarily and are owed generally to only the other
contracting party
Tort – enforcing expectation
Contract – enforcing promises
- Tort v criminal
o Tort – wrong against a person rather than against the state
- Function of torts
o Loss shifting
o High level finger pointing
o Justice
Corrective justice
o Compensation
Compensation culture?
Primary aim to put the claimant back into the position they were
in before the tort was committed
P. Atyaih
o Deterrence
Individual v community liability
Can shape behaviour
Roe v Minister of Health [1954] 2 All ER 131
o Effect of the case was to publicise a specific risk to
the medical profession
Does scrutiny increase level of care?
Social conscience – how would the NHS
survive if taken to court all the time?
Arguably obstructed by the prevalence of insurance
Unlikely to deter carelessness in the form of inadvertence
o Punishment?
o Loss distribution
Insurance – full burden of loss is transferred from claimant to the
insurer, insured and all policy holders
Eg s.143 Road Traffic Act 1998
o Compulsory motor insurance
o Public forum
Not just monetary compensation
Cl wants vindication or public airing of issues
o All of the above
Michael v CC for South Wales Police [2015]
Dom abuse
Calls police, assaulted, says he will come back and said he
will kill her
,
Calls police again 15 mins later
o Whilst on call hears screams
o Police arrives 8 mins later
Deceased
Do the police have a duty of care to her to act
immediately?
o Breach of ECHR
Compensation? Deterrence? Public forum?
o Compensation would prevent them from fulfilling
their duty?
o Deterrence? Would it make them more likely to act
faster?
o Nanny culture in tort
Going too far?
Examples in PP
Common Sense Common Safety – talk in folder
Duty of Care – foundation of negligence
- Legally significant relationship
- Duty, breach, causation
o Relationship, expectation, fault link
- Damage has to be caused
o Cannot be sued just for being bad at something
Duty not to inflict damage carelessly
- Must be actionable damage
o Rothwell v Chemical …
- Duty – general principles in practice
o Origin – Donoghue v Stevenson [1932]
L Aitken – social wrong for duty to stop at a contract; to not be
able to sue unless there is a contract
The Neighbour Principle
Reasonable care to avoid acts or omissions which are
reasonably foreseeable to injure your neighbour
o Ought to have reasonably contemplated that they
could be affected
Encompasses:
o Foreseeability
o Proximity
o Following – expansion (until 1983) then retraction (post 1985)
Headley Byrne (1964)
Anns v Merton London Borough Council (1978)
Junior Books ltd (1983)
Sutherland Shire Council v Heyman (1985)
Murphy v Brentwood DC (1990)
,
Caparo
Foundation of the modern – making Donoghue relevant
- Caparo Industries v Dickman (1990)
o No longer a simple formula or touchstone to provide a ready answer in
every case
o Established a test
Duty can arise where:
Was the harm to C foreseeable, and…
Is there a relationship of proximity between C and D, and…
Is it “fair, just and reasonable” to impose a duty on D
o Some extent a fleshing out of Neighbourhood p.
Applicable in novel cases
“increasingly clear recognition the three-fold test… does not
provide an easy answer to all our problems, but only a set of fairly
blunt tools”
Customs and Excise Commissioners v Barclays Bank [2006]
UKHL 28 at [71]
o Didn’t go far enough?
- Incremental approach
o Robinson [2018] (v important)
Robinson v Chief Constable for West Yorkshire [2018] UKSC 4
Lord Reed quote on PP
Coherent and avoidance of inappropriate distinctions
Just fair and reasonable
- Recalibration of the same principles in Donoghue
- Is it still too vague?
- Professional negligence in 2018: the year in review (2019) 1 PN 6-31
- Look at considerations on ppt for prep next session
o ROBINSON
Appeal against a decision that the police owed the victim no duty
of care in respect to injuries sustained when a suspect attempted
to escape arrest in a busy town centre
Appeal was ALLOWED
L Mance and L Hughes dissenting – reasons why a duty of care
existed
Did the existence of a duty of care always depend on the
application of the Caparo test?
o No
o Caparo rejected the idea that there was a single
test for determining the existence of a duty of care
Urged an approach based on common law,
precedent, and the incremental
