Tort Law
- Civil wrong that is not a breach of contract
- Trespass, deceit , passing off , negligence , nuisance , defamation
Negligence:
- To prove D negligent you must show:
- D owed C a duty of care
- D breached that duty
- D breach of duty caused C’s damage
- Donoghue v Stevenson = lord Atkin neighbour principle
1) Duty:
Caparo v Dickman 1990 three stage test:
1) Proximity – was C legally close to D.
2) Foreseeability – was injury to this C reasonably foreseeable
3) Equitability – was it fair to impose a duty on D
Proximity :
- Mcloughlin v O’Brian = proximity is not solely about time and distance but also legal
relationship
Foreseeability :
- Bourhill v young 1943 = injury to miscarrying claimant was not foreseeable by an
ordinary person
- Haley v London electricity board = injury to blind claimant was foreseeable by the
ordinary person
Just and equitable :
- Mulcahy v ministry of defence = imposing a duty on a solider in an active gun battle
was not equitable
- Hill v chief constable west Yorkshire = police do not owe a duty to protect the public
through the performance of their investigation of crime
Policy : establish social or economic reasons
- Alcock v chief constable south Yorkshire = policy can prevent a duty even where
Caparo test met e.g. lack of funds to pay all claims
, Robinson v c.c. west Yorkshire = Caparo only needed for movel cases , precendent
cases – police owed duty where injury caused by commission – exceptional
circumstances
2) Breach of duty :
- Judged objectively – against ordinary person
- Nettleship v Weston
Objective test :
- *Blyth v Birmingham waterworks company* = breach is judged objectively , the
company performed as any other would
- Roe v minster of health = breach is assessed on the state of general knowledge at the
time of the act or omission
- Nettleship v Weston = a learner driver must also perform to standard of a ordinary
driver
- Mullin v Richards = Children are judged to the standard of the ordinary child of their
age
Bolam test :
- Bolam v Friern Barnet hospital management committee = professionals are judged to
the standard of a reasonable body of their profession
- Professionals should be judged by the standard of the ordinary professional in their
field
- A practice will only be considered negligent if it is completely unacceptable.
Bolitho v Hackney HA = The opinion of that body of the profession must not be illogical or
unreasonable but challenges will be rare
4 risk factors :
- Likelihood of injury and seriousness of injury
- Cost of preventing injury and usefulness of D actions (why are they doing it)
Bolton v stone = low likelihood of injury and is proportionate cost of preventing it suggests a
duty is not breached
Paris v stepney= high risk of serious injury which can be prevented with minimal cost
indicates breach
- Civil wrong that is not a breach of contract
- Trespass, deceit , passing off , negligence , nuisance , defamation
Negligence:
- To prove D negligent you must show:
- D owed C a duty of care
- D breached that duty
- D breach of duty caused C’s damage
- Donoghue v Stevenson = lord Atkin neighbour principle
1) Duty:
Caparo v Dickman 1990 three stage test:
1) Proximity – was C legally close to D.
2) Foreseeability – was injury to this C reasonably foreseeable
3) Equitability – was it fair to impose a duty on D
Proximity :
- Mcloughlin v O’Brian = proximity is not solely about time and distance but also legal
relationship
Foreseeability :
- Bourhill v young 1943 = injury to miscarrying claimant was not foreseeable by an
ordinary person
- Haley v London electricity board = injury to blind claimant was foreseeable by the
ordinary person
Just and equitable :
- Mulcahy v ministry of defence = imposing a duty on a solider in an active gun battle
was not equitable
- Hill v chief constable west Yorkshire = police do not owe a duty to protect the public
through the performance of their investigation of crime
Policy : establish social or economic reasons
- Alcock v chief constable south Yorkshire = policy can prevent a duty even where
Caparo test met e.g. lack of funds to pay all claims
, Robinson v c.c. west Yorkshire = Caparo only needed for movel cases , precendent
cases – police owed duty where injury caused by commission – exceptional
circumstances
2) Breach of duty :
- Judged objectively – against ordinary person
- Nettleship v Weston
Objective test :
- *Blyth v Birmingham waterworks company* = breach is judged objectively , the
company performed as any other would
- Roe v minster of health = breach is assessed on the state of general knowledge at the
time of the act or omission
- Nettleship v Weston = a learner driver must also perform to standard of a ordinary
driver
- Mullin v Richards = Children are judged to the standard of the ordinary child of their
age
Bolam test :
- Bolam v Friern Barnet hospital management committee = professionals are judged to
the standard of a reasonable body of their profession
- Professionals should be judged by the standard of the ordinary professional in their
field
- A practice will only be considered negligent if it is completely unacceptable.
Bolitho v Hackney HA = The opinion of that body of the profession must not be illogical or
unreasonable but challenges will be rare
4 risk factors :
- Likelihood of injury and seriousness of injury
- Cost of preventing injury and usefulness of D actions (why are they doing it)
Bolton v stone = low likelihood of injury and is proportionate cost of preventing it suggests a
duty is not breached
Paris v stepney= high risk of serious injury which can be prevented with minimal cost
indicates breach
