Tort Problem Question Structure
Structure:
Issue:
1. Outline all the possible claimants and defendants
2. What harm has C suffered?
3. What type of tort issue is it? – the injury/damage or something else
o Damages (misfeasance)
Negligence – always relates to an event which is finished
‘a breach of a legal duty of care owed to a claimant that results in harm to the claimant,
undesired by the defendant’
Product liability (alternate route from common law negligence) – The Consumer Protection Act
(CPA) 1987 OR Contract Law (s 9 of the CRA 2015 ‘the implied term that goods supplied by a
trader to a consumer will be of satisfactory quality’; s 10 of the CRA 2015 ‘fit for its purpose’) OR
(s 14 of the Sale of Goods Act 1979 B2B - implied requirement of satisfactory quality)
Land [explored on page 27]
Tort of Private/public nuisance
The rule in Rylands v Fletcher
Trespass to land
o Omissions (nonfeasance)
4. Define the tort
a. Explain the elements of the relevant tort(s) to provide a remedy
Duty of Care:
Do the D owe a duty to C in this situation?
- Keep note of rules of omissions
o General rule – no duty to act (Stovin v Wise)
o Exception - Defendant to rescuer ‘danger invites rescue’ (Baker TE Hopkins & Son Ltd)
- Established Duty of Care
1
, o Manufacturer to consumers (product liability) (narrow rule in Donoghue v Stevenson)
COMMON LAW NEGLIGENCE Under the narrow rule in Donoghue v Stevenson duty extends
to:
1. Personal injury: Any physical harm caused by the defective product
2. Damage to property: Damage to items other than the defective product itself
Keep note – losses relating to the product’s defective quality (e.g. cost of repair, replacement, or
reduction in value) are categorised as pure economic loss and are not recoverable in negligence
(Murphy v Brentwood District Council)
The claimant must establish that:
The defendant is a ‘manufacturer’ widely interpreted + includes any person who works
in some way on a product before it reaches the consumer
o Repairers of products (Haseldine v Daw & Son Ltd [1941])
o Installer of products (Stennett v Hancock [1939])
o Suppliers of products (Andrews v Hopkinson [1957]) obligation to ensure product
safety when the potential for harm is clear and preventable
The item causing damage is a ‘product’ – any item or substance that is capable of causing
harm or damage when a lack of care occurs in its preparation, manufacture, or supply,
including:
o Packaging
o Labels
o Instructions
The claimant is a ‘consumer’
o The ultimate user of the product
o Anyone foreseeably affected by the product ‘neighbour principle’ Lord Atkin where
a ‘neighbour’ refers to anyone so closely and directly affected by the defendant’s act
that they should reasonably be in the defendant’s contemplation
The product reached the consumer in the form in which it left the manufacturer with no
reasonable possibility of intermediate examination (Kubach v Hollands)
o Sealed or hidden defects if the product reaches the consumer without any
reasonable opportunity for inspection or with hidden defects that cannot be
discovered the manufacturer owes a duty of care
2
, o HOWEVER reasonable possibility of inspection
Not liable if there is a reasonable possibility of intermediate examination
However, the manufacturer must reasonably expect the product to be
examined
Kubach v Hollands [1937]
Facts: a student was injured in a chemical explosion caused by a
mislabelled chemical. The manufacturer included a warning stating the
chemical must be tested before use
Ruling:
o Manufacturer escaped liability because the explicit warning
created a reasonable expectation of intermediate examination
o Intermediate Supplier found liable as it failed to test or warn the
school, despite knowing the chemicals would be used in
experiments
o School escaped liability as it had not been warned of the need to
test the chemical
CPA 1987 establishes a framework for strict liability claims arising from defective products
Duty is owed to (s 2(1)):
o Broad class of claimant’s, including those who are not buyers or direct users of the
product
o Foreseeability in claimant is not required compared to common law negligence
where the claimant must establish that they were a foreseeable victim of the
defendant’s negligence
Defendant can be:
o The producer of the product (i.e. the manufacturer)
o an ‘own-brander’
o an importer
o a supplier, but only in limited circumstances outlined under s 2(3)
A supplier is liable only where they are unable to meet a victim’s request to
identify any of the people involved in the chain of supply (e.g. the wholesaler or
3
, the manufacturer) (‘Forgetful’ supplier). Suppliers are otherwise not liable
under CPA
Claimant must prove:
o Damage (s 5)
a. Covers death, personal injury (s 5(1) – defined as ‘any disease and any other
impairment of a person’s physical or mental condition’), and property damage
over £275 (s 5(4))
b. Excludes damage to business property (s 5(3)), and the cost of repairing or
replacing the defective product itself is not recoverable (s 5(2) – pure economic
loss)
o Causation [explored in causation]
o Defect (s 3(1)) [explored in breach]
o Product (s 1(2)) ‘any goods or electricity, and… includes a product which is
comprised in another product whether… a component… or raw materials’
o Road users (learner driver owes the same duty of care as a reasonably competent driver - Nettleship v
Weston)
Driver to driver
Driver to passenger
Driver to pedestrian
Especially if the pedestrian is a child (Gough v Thorne)
Cyclist to driver
Cyclist to pedestrian
o Doctor to patient
Encompasses the patients physical and mental health
Apply Bolam test (Bolam v Friern Hospital Management Committee) a medical professional is
not negligent if they acted in accordance with a practice accepted as proper by a responsible
body of medical opinion skilled in that particular art
Apply Bolitho test (Bolitho v City and Hackney Health Authority) the court must be satisfied
that the professional opinion relied upon is reasonable and logically defensible
o Teacher to pupil
4
Structure:
Issue:
1. Outline all the possible claimants and defendants
2. What harm has C suffered?
3. What type of tort issue is it? – the injury/damage or something else
o Damages (misfeasance)
Negligence – always relates to an event which is finished
‘a breach of a legal duty of care owed to a claimant that results in harm to the claimant,
undesired by the defendant’
Product liability (alternate route from common law negligence) – The Consumer Protection Act
(CPA) 1987 OR Contract Law (s 9 of the CRA 2015 ‘the implied term that goods supplied by a
trader to a consumer will be of satisfactory quality’; s 10 of the CRA 2015 ‘fit for its purpose’) OR
(s 14 of the Sale of Goods Act 1979 B2B - implied requirement of satisfactory quality)
Land [explored on page 27]
Tort of Private/public nuisance
The rule in Rylands v Fletcher
Trespass to land
o Omissions (nonfeasance)
4. Define the tort
a. Explain the elements of the relevant tort(s) to provide a remedy
Duty of Care:
Do the D owe a duty to C in this situation?
- Keep note of rules of omissions
o General rule – no duty to act (Stovin v Wise)
o Exception - Defendant to rescuer ‘danger invites rescue’ (Baker TE Hopkins & Son Ltd)
- Established Duty of Care
1
, o Manufacturer to consumers (product liability) (narrow rule in Donoghue v Stevenson)
COMMON LAW NEGLIGENCE Under the narrow rule in Donoghue v Stevenson duty extends
to:
1. Personal injury: Any physical harm caused by the defective product
2. Damage to property: Damage to items other than the defective product itself
Keep note – losses relating to the product’s defective quality (e.g. cost of repair, replacement, or
reduction in value) are categorised as pure economic loss and are not recoverable in negligence
(Murphy v Brentwood District Council)
The claimant must establish that:
The defendant is a ‘manufacturer’ widely interpreted + includes any person who works
in some way on a product before it reaches the consumer
o Repairers of products (Haseldine v Daw & Son Ltd [1941])
o Installer of products (Stennett v Hancock [1939])
o Suppliers of products (Andrews v Hopkinson [1957]) obligation to ensure product
safety when the potential for harm is clear and preventable
The item causing damage is a ‘product’ – any item or substance that is capable of causing
harm or damage when a lack of care occurs in its preparation, manufacture, or supply,
including:
o Packaging
o Labels
o Instructions
The claimant is a ‘consumer’
o The ultimate user of the product
o Anyone foreseeably affected by the product ‘neighbour principle’ Lord Atkin where
a ‘neighbour’ refers to anyone so closely and directly affected by the defendant’s act
that they should reasonably be in the defendant’s contemplation
The product reached the consumer in the form in which it left the manufacturer with no
reasonable possibility of intermediate examination (Kubach v Hollands)
o Sealed or hidden defects if the product reaches the consumer without any
reasonable opportunity for inspection or with hidden defects that cannot be
discovered the manufacturer owes a duty of care
2
, o HOWEVER reasonable possibility of inspection
Not liable if there is a reasonable possibility of intermediate examination
However, the manufacturer must reasonably expect the product to be
examined
Kubach v Hollands [1937]
Facts: a student was injured in a chemical explosion caused by a
mislabelled chemical. The manufacturer included a warning stating the
chemical must be tested before use
Ruling:
o Manufacturer escaped liability because the explicit warning
created a reasonable expectation of intermediate examination
o Intermediate Supplier found liable as it failed to test or warn the
school, despite knowing the chemicals would be used in
experiments
o School escaped liability as it had not been warned of the need to
test the chemical
CPA 1987 establishes a framework for strict liability claims arising from defective products
Duty is owed to (s 2(1)):
o Broad class of claimant’s, including those who are not buyers or direct users of the
product
o Foreseeability in claimant is not required compared to common law negligence
where the claimant must establish that they were a foreseeable victim of the
defendant’s negligence
Defendant can be:
o The producer of the product (i.e. the manufacturer)
o an ‘own-brander’
o an importer
o a supplier, but only in limited circumstances outlined under s 2(3)
A supplier is liable only where they are unable to meet a victim’s request to
identify any of the people involved in the chain of supply (e.g. the wholesaler or
3
, the manufacturer) (‘Forgetful’ supplier). Suppliers are otherwise not liable
under CPA
Claimant must prove:
o Damage (s 5)
a. Covers death, personal injury (s 5(1) – defined as ‘any disease and any other
impairment of a person’s physical or mental condition’), and property damage
over £275 (s 5(4))
b. Excludes damage to business property (s 5(3)), and the cost of repairing or
replacing the defective product itself is not recoverable (s 5(2) – pure economic
loss)
o Causation [explored in causation]
o Defect (s 3(1)) [explored in breach]
o Product (s 1(2)) ‘any goods or electricity, and… includes a product which is
comprised in another product whether… a component… or raw materials’
o Road users (learner driver owes the same duty of care as a reasonably competent driver - Nettleship v
Weston)
Driver to driver
Driver to passenger
Driver to pedestrian
Especially if the pedestrian is a child (Gough v Thorne)
Cyclist to driver
Cyclist to pedestrian
o Doctor to patient
Encompasses the patients physical and mental health
Apply Bolam test (Bolam v Friern Hospital Management Committee) a medical professional is
not negligent if they acted in accordance with a practice accepted as proper by a responsible
body of medical opinion skilled in that particular art
Apply Bolitho test (Bolitho v City and Hackney Health Authority) the court must be satisfied
that the professional opinion relied upon is reasonable and logically defensible
o Teacher to pupil
4
