#17344 - Tort Law Notes - GDL Tort Law

Tort Law Revision Summary

Duty of Care 1

Standard of Care and Breach 9

Causation 15

Remoteness 18

Defences to Negligence Claims 21

Psychiatric Harm 25

Pure Economic Loss 30

Employers Liability: Primary Liability 33

Employers Liability: Vicarious Liability 36

Private Nuisance 40

Public Nuisance 44

Tort of Rylands v Fletcher (1866) 45

Intentional Torts 48

Answering a negligence question:

• Negligence: “the breach of a legal duty to take care which results in damage, undesired by the defendant to the claimant” (Winfield)

• This covers:

  • General Negligence

  • Psychiatric Harm

  • Employers Liability

  • (Product Liability)

  • Limited Pure Economic Loss and Negligent Misstatement

  • (Occupiers Liability – negligence in statutory form)

• Steps:

1) Identify the parties to the claim.

2) Identify the four aspects of negligence:

a) Was there damage/loss suffered by the claimant?

b) Was there a duty of care?

c) Was this duty breached?

d) Did the breach legally cause the damage?

3) Test of remoteness – how much damage is the defendant liable for?

4) Identify any defences available.

• The Neighbour Principle: a duty is owed to anyone who could reasonably be conceived as being affected by ones actions. (Lord Atkin in Donoghue v Stevenson [1932])

  • Claimant in a café in Scotland – friend bought her a dessert, the waiter poured out first part of ginger beer over her ice cream, then later came back and poured out the rest of the bottle including the partial remains of decomposed snail over dessert.

• Dorset Yacht v Home Office [1970]

  • Young offenders out on a group activity, accusation that prison guards left doors unlocked, allowing offenders to escape, who in turn stole yachts and crashed one yatch into another.

    • Dorset Yatch argued that Home Office was negligent, Home office argued that they had no duty of care to the Dorset Yatch.

  • Held: the Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.

• Anns v Merton London Borough Council [1978] - local authority’s liability for the negligent inspection of building works.

  • Lord Wilberforce explicitly advocated a two-stage test

    • 1. Neighbour Principle Applied

      • Neighbours include: “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”

    • 2. Look for any reason not to establish a DoC.

  • Critiques of two stage test:

    • Too easy to pass the two stage test, therefore two easy to show a duty of care.

    • Many felt that that it was two easy to pass the two stage test, therefore two easy to show a duty of care.

    • Presumption in favour of the Claimant.

• Caparo v Dickman [1990]

  • Two companies, accountants (defendants), claimants were thinking of taking over another company by buying a majority.

    • Accountants produced incorrect accounts suggesting there was a profit in the company being taken over, claimants sue on the basis that they lost money.

    • Accountants argued that they were not paid by the claimants – the accounts were produced for a different purpose not an investment purpose – there was an insufficient proximity of parties to impose a duty of care.

  • Arguable Lord Bridge created a three stage test.

    • 1) Could the defendant have reasonably foreseen that his or her negligence would harm the claimant? (Neighbour Principle)

    • 2) Is there a sufficiently proximate relationship between the claimant and the defendant?

    • 3) Is it fair, just and reasonable to impose a duty?

• 1) Reasonable Foreseeability

  • Flexible, and open to manipulation by the courts.

  • AG v Hartwell [2004] – Police allowed unstable officer access to gun. Shot defendant. Held duty of care: the more serious the likelihood of serious injury, the lower the threshold for likelihood

  • Wagon Mound [1961]- If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, no matter whether the extent of damage was foreseeable.

  • Bournhill v Young [1943] – a miscarriage after a pregnant woman witnessed a bike crash nearby was not foreseeable.

  • Haynes v Harwood [1936] – a police man was injured capturing a bolting horse. Foreseeable that rescuers would get involved and could suffer personal injury.

  • Home Office v Dorset Yatch – foreseeable that juvenile delinquents left unsupervised would cause damage to property

• 2) Sufficient Proximity

  • A legal not physical proximity. The relationship between Defendant and Claimant

    • Osman v Ferguson [1993] – Teacher was stalking his pupil, attacked him and killed the pupil’s father. Family had informed police of the threat on multiple occasions.

      • Court was satisfied of reasonably foreseeable that harm would result and that there was a sufficient closeness of proximity, but failed on step 3.

    • Everett v Comojo Ltd UK [2011] – The relationship between the management of a nightclub and its guests was of sufficient proximity to justify the existence of a duty of care.

      • There was a duty due to the economic relationship between the parties.

  • Geographical proximity

    • In Dorset Yatch the Duty of Care was owed to the people on the Island, not the people on the mainland.

  • Degree of Control

    • Reeves v MPC [1999] – House of Lords held that a duty did exist

      • Given the police exercised control over the victim and the known risk of suicide among prisoners, they owed him a duty to take steps to ensure that he did not harm himself.

  • Assumption of Responsibility

    • Kent v Griffiths [2001] – The emergency services do not generally owe a duty of care to the public except in certain, limited circumstances

      • By accepting the 999 call out the service assumed a duty of care over the claimant.

    • Costello v CC Northumbria [1998] – Senior officer did nothing while another officer was attacked escorting prisoner to cell.

      • Police officers assume responsibility to ‘watch each other’s backs’

    • Osman v UK [1998] – ECtHR held that where the police ‘knew or ought to have known…of the existence of a real and immediate risk to life of the identified individual” there is sufficient proximity if police fail to take reasonable steps.

      • On the facts Claimant failed to show where this could have been said of the police.

    • Lejonvarn v Burgess [2017] – An architect assumed a duty of care when she performed work for a friend, even though there was no contract and the work was unpaid.

  • Creation of a Dangerous Situation

    • Capital & Counties v Hampshire CC [1997] – Fireman turned off buildings sprinklers making the fire worse.

      • Fire brigade is liable where they attend the scene and actually aggravate the situation.

    • Haynes v Harwood [1936] – D left horse untethered. Policeman injured as he attempted to capture it. Policeman able to claim for damages.

      • Compare: Cutler v United Dairies Ltd [1933] where the claimant was injured trying to recapture a horse which had bolted and had come to a rest in a field. Was not acting in an emergency and, therefore, he could not be regarded as a rescuer and was not owed a duty of care.

    • Topp v London Country Bus (1993) – Bus driver left keys in bus overnight. Not liable for joy riders stealing bus and injuring claimant.

  • Special Relationships

    • Stansbie v Troman [1948] – Decorator failed to lock the door as he left the claimants house, which was subsequently burgled. The contractual relationship was sufficient for proximity and DoC.

    • Swinney v CC Northumbria [1997] – Informer gave information to police on condition she was to remain anonymous. A file with her details was lost and she suffered psychiatric harm as a result.

      • A special relationship had been established, therefore DoC.

• 3) Is it fair, just and reasonable to impose a duty?

  • A number of policy concerns of interest here:

    • Floodgates argument, insurance, crushing liability, maintaining high standards, defensive practices, distributive justice.

  • Marc Rich v Bishop Rock [1996] – Defendant who acts for the collective welfare less efficient if they have to spend a lot of time defending claims.

    • Shipping classification society protected from damages award, they could not rely on limitation provisions.

    • Imposing a DoC would also have crushed this non-profit.

  • Stovin v Wise [1996] Local authority failed to remove bank of land that obstructed view of junction, causing crash. per Lord Hoffman a claim involving an act is more likely to succeed than a claim involving an omission.

  • Swinney v CC Northumbria [1997] – Police informer. Important that police not have blanket immunity.

  • Hill v CC W Yorkshire – mother of Yorkshire Ripper suing the police. Floodgates argument and subsequent inefficiency of the police. (followed in Osman v Ferguson)

    • Note this does NOT create a blanket immunity for the police. Lord Keith makes it clear that inappropriate force, defamation etc. the Police are liable.

  • Brooks v MPC [2005] – Claimant was subject of racially motivated attack. Police treated him more as a suspect than victim leading to PTSD.

    • HoL held that no special duty was owed to Brooks. Lord Steyn stated that such a duty would ‘lead to an unduly defensive approach in combatting crime’

  • Distinguish policy concerns and operational failure:

    • Rigby v CCof Northamptonshire [1985] – Here the police negligently fired a canister of CS gas into the claimant’s shop, which was under siege, without taking adequate precautions against the high risk of fire.

      • When a fire occurred, the claimant was successful in his claim...