Tort Law Revision – 27/05/2025
Essay Structure
Problem Questions:
- No introduction
- IRAC paragraph structure
- Consider any defences – in turpi, volenti, contributory negligence (only partial)
Essay Questions
- Introduction – background, main argument, essay outline
- PEACEAC – point, evidence (statute, case law), analysis, counter argument, evidence
(statute/case law), conclusion
- Conclusion – reinstate main argument and key supporting evidence
Duty of care (essay)
Negligence equation –Duty of care + Breach of duty + Causation (factual and legal) =
successful negligence claim
Lord Atkin’s ‘Neighbour Principle’
- ‘You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour.’
- Sets requirements for foreseeability and proximity
Developments in the duty of care/issues to consider:
- Anns ‘two-stage’ test appeared to diverge from that of Donoghue v Stevenson
o Concept of proximity in the first stage was treated as having been effectively
established wherever there was foreseeability of damage, rather that being
treated as a factor to be established in its own right
o Despite the potentially limiting nature of the policy considerations (in 2nd
stage), a prima facie duty of care appeared to indiciate almost a presumption
of duty which was felt to over-extend the reach of negligence liability
▪ Main policy issue is the ‘floodgates’ problem – large increase in
litigation to an unmanageable extent
- Narrowing of duty/negligence
o Between 1985-1991 – courts had a number of cases that indicated the Anns
test should be applied restrictively in order that the duty of care not be too
extensive
o Lord Keith in the Privy Council (Yuen Kun Yeu v Attorney General of Hong
Kong (1988) - observed ‘that for the future it should be recognised that the
two-stage test in Anns is not to be regarded as in all the circumstances a
suitable guide to the existence of duty of care.’
- Caparo test
, o More difficult for the claimant to satisfy than that in Anns
o Remains questionable that the 3-stage test provides dependable assistance to
judges in novel duty situations
▪ Lord Bingham in Customs & Excise Commissioners v Barclays Bank -
‘the three-fold test itself provides no straightforward answer to the
vexed question whether or not, in a novel situation, a party owes a duty
of care’
o Lord Bridge in Caparo endorsed an incremental approach to determining duty
of care – each case should be considered on the basis of analogy with earlier
comparable categories of duty.
- Restriction of duty of care in the case of omissions
o Heavy burden which would be placed on individuals by the general
expectation that they be on guard for dangers to others
o Indeterminacy of such a duty in terms of application and extent – Lord
Hoffman in Stovin v Wise [1996] put it ‘why pick on me?’
o Economic inefficiency
o Lord Goff in Smith v Littlewood [1987] - set out exceptional situations where
duty of care can be held in respect of an omission:
▪ Relationship between the parties which creates an assumption of
responsibility on behalf of the defendant for the safety of the claimant
▪ Relationship of control between the defendant and a third party who
causes damage
▪ D creates or permits a source of danger to be created, which is
interfered with by third parties
▪ Failure of a D to remove a source of danger of which he is aware – NB
in Stovin the reluctance to impose a duty on a public body operating
statutory powers
- Difficulty when public bodies are defendants
o Often operating under statutory or resource restrictions and case authority
indicates that policy often has a significant impact.
o The Human Rights Act 1988 is likely to be part of the decision-making
process
o Judges have at times used public law concepts such as ultra vires to address
the problem of tort liability of public bodies (e.g. Dorset Yacht)
o Anns included policy considerations in the test
Case Facts Principle
Anns v Merton LBC [1978] Local authority held liable Two-stage test for duty of
AC 728 for its failure to prevent the care reinstated by Lord
construction of a building Wilberforce – required
which later cracked, causing establishing
economic loss to the (1) ‘proximity or
plaintiffs neighbourhood’, plus
(2) the absence of any
policy considerations
, which would negate
the finding of a duty
This test is no longer in use
Caparo v Dickman [1990] 2 Negligence action against a Lord Bridge established the
AC 605 firm of auditors for financial three-stage test for duty of
loss suffered due to the care in novel situations
negligence compilation of (1) Foreseeable damage
company accounts. (2) Proximity between
Held that D did not owe a the parties
duty of care to the investors (3) That the existence of
a duty would be
‘fair, just and
reasonable’
This is the current approach
Murphy v Brentwood DC A flat, which D approved Held that D did not owe a
[1991] 1 AC 398 the building plans for, was duty of care to C –
found by C to be built overruling Anns v Merton
defectively
C sued D for negligently
approving the plans, seeking
the difference in value
between what they paid for
the house and what it was
actual worth
Customs and Excise Customs and Excise had HoL held that the 3-stage
Commissioners v Barclays obtained ‘freezing orders’ test was insufficient in this
Bank [2007] 1 AC 181 on the bank accounts of 2 factual situation and
companies. The D had ‘assumption of
negligently contravened responsibility’ had also to be
these orders and allowed considered
funds to be withdrawn from Order against the Ds had
the accounts been compulsory and so
they could in no way be said
to have voluntarily assumed
responsibility
No duty of care in
negligence could be
attributed
Donoghue v Stevenson Mrs Donoghue sued the ‘Neighbour principle’, based
[1932] AC 562 manufactures of ginger beer upon foreseeability, was the
for damage she suffered first general principle for
when a snail was found in determining duty of care in
her bottle negligence.
Held that D had owed her a So-called ‘narrow ratio’
duty of care according to from Donoghue established
Lord Atkin’s ‘neighbour the liability of
principle’ manufacturers to those
injured by their products
Haley v London Electricity Blind pedestrian was injured Court considered statistics
Board [1965] AC 778 when he fell on an obstacle on the frequency of blind
Essay Structure
Problem Questions:
- No introduction
- IRAC paragraph structure
- Consider any defences – in turpi, volenti, contributory negligence (only partial)
Essay Questions
- Introduction – background, main argument, essay outline
- PEACEAC – point, evidence (statute, case law), analysis, counter argument, evidence
(statute/case law), conclusion
- Conclusion – reinstate main argument and key supporting evidence
Duty of care (essay)
Negligence equation –Duty of care + Breach of duty + Causation (factual and legal) =
successful negligence claim
Lord Atkin’s ‘Neighbour Principle’
- ‘You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour.’
- Sets requirements for foreseeability and proximity
Developments in the duty of care/issues to consider:
- Anns ‘two-stage’ test appeared to diverge from that of Donoghue v Stevenson
o Concept of proximity in the first stage was treated as having been effectively
established wherever there was foreseeability of damage, rather that being
treated as a factor to be established in its own right
o Despite the potentially limiting nature of the policy considerations (in 2nd
stage), a prima facie duty of care appeared to indiciate almost a presumption
of duty which was felt to over-extend the reach of negligence liability
▪ Main policy issue is the ‘floodgates’ problem – large increase in
litigation to an unmanageable extent
- Narrowing of duty/negligence
o Between 1985-1991 – courts had a number of cases that indicated the Anns
test should be applied restrictively in order that the duty of care not be too
extensive
o Lord Keith in the Privy Council (Yuen Kun Yeu v Attorney General of Hong
Kong (1988) - observed ‘that for the future it should be recognised that the
two-stage test in Anns is not to be regarded as in all the circumstances a
suitable guide to the existence of duty of care.’
- Caparo test
, o More difficult for the claimant to satisfy than that in Anns
o Remains questionable that the 3-stage test provides dependable assistance to
judges in novel duty situations
▪ Lord Bingham in Customs & Excise Commissioners v Barclays Bank -
‘the three-fold test itself provides no straightforward answer to the
vexed question whether or not, in a novel situation, a party owes a duty
of care’
o Lord Bridge in Caparo endorsed an incremental approach to determining duty
of care – each case should be considered on the basis of analogy with earlier
comparable categories of duty.
- Restriction of duty of care in the case of omissions
o Heavy burden which would be placed on individuals by the general
expectation that they be on guard for dangers to others
o Indeterminacy of such a duty in terms of application and extent – Lord
Hoffman in Stovin v Wise [1996] put it ‘why pick on me?’
o Economic inefficiency
o Lord Goff in Smith v Littlewood [1987] - set out exceptional situations where
duty of care can be held in respect of an omission:
▪ Relationship between the parties which creates an assumption of
responsibility on behalf of the defendant for the safety of the claimant
▪ Relationship of control between the defendant and a third party who
causes damage
▪ D creates or permits a source of danger to be created, which is
interfered with by third parties
▪ Failure of a D to remove a source of danger of which he is aware – NB
in Stovin the reluctance to impose a duty on a public body operating
statutory powers
- Difficulty when public bodies are defendants
o Often operating under statutory or resource restrictions and case authority
indicates that policy often has a significant impact.
o The Human Rights Act 1988 is likely to be part of the decision-making
process
o Judges have at times used public law concepts such as ultra vires to address
the problem of tort liability of public bodies (e.g. Dorset Yacht)
o Anns included policy considerations in the test
Case Facts Principle
Anns v Merton LBC [1978] Local authority held liable Two-stage test for duty of
AC 728 for its failure to prevent the care reinstated by Lord
construction of a building Wilberforce – required
which later cracked, causing establishing
economic loss to the (1) ‘proximity or
plaintiffs neighbourhood’, plus
(2) the absence of any
policy considerations
, which would negate
the finding of a duty
This test is no longer in use
Caparo v Dickman [1990] 2 Negligence action against a Lord Bridge established the
AC 605 firm of auditors for financial three-stage test for duty of
loss suffered due to the care in novel situations
negligence compilation of (1) Foreseeable damage
company accounts. (2) Proximity between
Held that D did not owe a the parties
duty of care to the investors (3) That the existence of
a duty would be
‘fair, just and
reasonable’
This is the current approach
Murphy v Brentwood DC A flat, which D approved Held that D did not owe a
[1991] 1 AC 398 the building plans for, was duty of care to C –
found by C to be built overruling Anns v Merton
defectively
C sued D for negligently
approving the plans, seeking
the difference in value
between what they paid for
the house and what it was
actual worth
Customs and Excise Customs and Excise had HoL held that the 3-stage
Commissioners v Barclays obtained ‘freezing orders’ test was insufficient in this
Bank [2007] 1 AC 181 on the bank accounts of 2 factual situation and
companies. The D had ‘assumption of
negligently contravened responsibility’ had also to be
these orders and allowed considered
funds to be withdrawn from Order against the Ds had
the accounts been compulsory and so
they could in no way be said
to have voluntarily assumed
responsibility
No duty of care in
negligence could be
attributed
Donoghue v Stevenson Mrs Donoghue sued the ‘Neighbour principle’, based
[1932] AC 562 manufactures of ginger beer upon foreseeability, was the
for damage she suffered first general principle for
when a snail was found in determining duty of care in
her bottle negligence.
Held that D had owed her a So-called ‘narrow ratio’
duty of care according to from Donoghue established
Lord Atkin’s ‘neighbour the liability of
principle’ manufacturers to those
injured by their products
Haley v London Electricity Blind pedestrian was injured Court considered statistics
Board [1965] AC 778 when he fell on an obstacle on the frequency of blind
