TORT
LAW
NOTES
Negligence
, Falling so below the standard of the reasonable person, doing something
they wouldn’t do, or not doing something they would do (objective test)
Duty of care
Neighbour principle stablished in Donoghue v Stevenson in which you
should avoid acts or omissions you can reasonably foresee would harm
your neighbour
The Caparo test is used in novel cases to establish a duty of care, there
must be:
Reasonably foreseeable harm (Kent v Griffiths) - The defendant's
actions would cause harm if carried out
Sufficient enough proximity (Bourhill v Young) - Closeness
between parties, whether in time, space or relationship
Fair, just and reasonable to impose a duty (Hill v CC West
Yorkshire) - will it open floodgates or destroy public policy if
imposed?
However, if there’s already an established principle or precedent, that
should be used, not the Caparo test
Nettleship v Weston – Road user to other road users
Montgomery v Lanarkshire – Doctor to patient
Mullin v Richards – Child to another child
Bolam & Bolitho – Reasonable professionals are held against
other reasonable professionals (would a member of the same
profession act in the same way?)
Breach of duty
The defendant fell so below the standard expected of them in keeping
others from harm
This is an objective standard, so it looks at what the reasonable man
would do (Vaughn v Menlove) - this applies to the situations as
mentioned above
However, there are some risk factors that can mitigate the duty of care
owed:
Adequate precautions (Latimer v AEC) - If all reasonable
precautions had been taken, there’s no breach
Size of risk (Bolton v Stone) - the higher the risk, the greater the
duty of care due to the standard of precautions needed
, Special characteristics (Paris v Stepney) - Need to be taken into
consideration, meaning a greater duty of care is owed
Social utility (Day v high performance sports & Tomlinson v
Congleton) - If the actions of the defendant benefit society,
there’s np breach if this outweighs the harm
Causation
Was the defendant the factual and legal cause of the harm suffered by
the claimant?
Factual causation is established through the “but for” test (Barnet and
Chelsea) - but for the defendant’s actions, would the harm still be
suffered?
For legal causation, consider intervening acts that may break the chain
of causation, e.g. acts of the claimant, acts of nature or acts of a third
party
There must also be remoteness of damage – the injury suffered was a
foreseeable result of the defendant’s breach (Wagon Mound)
If a type of injury is totally foreseeable, the defendant may be liable
(Bradford v Robinson rentals – claimant suffered frostbite)
The thin skull rule also applies – you must take your victim as you find
them (Smith v Leech Brain)
LAW
NOTES
Negligence
, Falling so below the standard of the reasonable person, doing something
they wouldn’t do, or not doing something they would do (objective test)
Duty of care
Neighbour principle stablished in Donoghue v Stevenson in which you
should avoid acts or omissions you can reasonably foresee would harm
your neighbour
The Caparo test is used in novel cases to establish a duty of care, there
must be:
Reasonably foreseeable harm (Kent v Griffiths) - The defendant's
actions would cause harm if carried out
Sufficient enough proximity (Bourhill v Young) - Closeness
between parties, whether in time, space or relationship
Fair, just and reasonable to impose a duty (Hill v CC West
Yorkshire) - will it open floodgates or destroy public policy if
imposed?
However, if there’s already an established principle or precedent, that
should be used, not the Caparo test
Nettleship v Weston – Road user to other road users
Montgomery v Lanarkshire – Doctor to patient
Mullin v Richards – Child to another child
Bolam & Bolitho – Reasonable professionals are held against
other reasonable professionals (would a member of the same
profession act in the same way?)
Breach of duty
The defendant fell so below the standard expected of them in keeping
others from harm
This is an objective standard, so it looks at what the reasonable man
would do (Vaughn v Menlove) - this applies to the situations as
mentioned above
However, there are some risk factors that can mitigate the duty of care
owed:
Adequate precautions (Latimer v AEC) - If all reasonable
precautions had been taken, there’s no breach
Size of risk (Bolton v Stone) - the higher the risk, the greater the
duty of care due to the standard of precautions needed
, Special characteristics (Paris v Stepney) - Need to be taken into
consideration, meaning a greater duty of care is owed
Social utility (Day v high performance sports & Tomlinson v
Congleton) - If the actions of the defendant benefit society,
there’s np breach if this outweighs the harm
Causation
Was the defendant the factual and legal cause of the harm suffered by
the claimant?
Factual causation is established through the “but for” test (Barnet and
Chelsea) - but for the defendant’s actions, would the harm still be
suffered?
For legal causation, consider intervening acts that may break the chain
of causation, e.g. acts of the claimant, acts of nature or acts of a third
party
There must also be remoteness of damage – the injury suffered was a
foreseeable result of the defendant’s breach (Wagon Mound)
If a type of injury is totally foreseeable, the defendant may be liable
(Bradford v Robinson rentals – claimant suffered frostbite)
The thin skull rule also applies – you must take your victim as you find
them (Smith v Leech Brain)
