The Law of Tort

1
The Law of Tort

• What is a tort?
• A civil wrong.
• The court aims to compensate an individual for
  harm suffered.
• The burden of proof is on the balance of
  probabilities.
• For AS level, you need only to understand the
  tort of negligence.

2
Negligence

• To win a case for negligence, a claimant needs
  to prove the following
• The defendant owed them a legal duty of care
• The defendant breached that duty
• The claimant suffered loss as a result of the
  defendants breach.
• In short, negligence occurs when a person fails
  to take reasonable care not to cause damage or
  injury to anothers person or property and
  thereby causes loss to that person.

3
Duty of Care

• A court, when considering whether a duty of care
  exists, will consider the following
• Is the loss foreseeable?
• Is there proximity between the parties?
• Is it fair to impose a duty of care?
• These tests come from Caparo v. Dickman.

4
Duty of Care- loss foreseeable?

• A duty of care will be held to exist when it is
  reasonably foreseeable that another person will
  suffer loss as a result of the defendants
  activities.
• Lord Atkin in Donoghue v. Stevenson (1932)- the
  neighbour test.

5
Duty of Care- the neighbour test.

• You must take reasonable care to avoid acts or
  omissions which you can reasonably foresee would
  be likely to injure your neighbour. Who then, in
  law, is my neighbour? The answer seems to be-
  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 into question.
•  
• A simple statement of the principle is this
• A duty of care will be held to exist when it is
  reasonably foreseeable that another person will
  suffer loss as a result of the defendants
  activities.

6
Duty of Care- proximity between parties?

• The Case of the Pregnant Fishwife (Bourhill v.
  Young (1943))
• Caparo v. Dickman (1990)- the main case. Know
  it!!
• Law Society v. KPMG Peat Marwick and others
  (2000)

7
Duty of Care- fair to impose?

• Whether or not it is reasonable to impose a duty
  of care hinges on public policy decisions. These
  include
• The floodgates argument.
• Insurance.
• Economic loss.

8
Duty of Care- when will one not be imposed?

• Situation governed by statute
• X and others v. Bedfordshire County Council
  (1995)
• W and others v. Essex County Council (1998
• Professional immunity
• Rondel v. Worsley (1969)
• Emergency services.
• Mulcahy v. Ministry of Defence (1996)
• OLL v. Secretary of State for the Home
  Department (1997)
• Hill v. Chief Constable for West Yorkshire
  (1988)

9
Breach of Duty

• Once a duty of care has been established, the
  courts must then satisfy itself that the duty has
  been breached. They will consider the following
  in reaching their decision
• The degree of risk
• The potential seriousness of injury
• The cost of precaution
• The importance of the activity
• Learners and professionals.

10
Breach of Duty- the degree of risk.

• Bolton v. Stone (1951)
• Latimer v. AEC Ltd (1953)

11
Breach of Duty- potential seriousness of injury.

• The more vulnerable a claimant is, or serious
  the potential injury may be, the greater the
  standard of care owed.
•  
• Paris v. Stepney Borough Council (1951)

12
Breach of Duty- cost of precaution.

• Bolton v. Stone (1951)
• See also Latimer v. AEC Ltd. (1953)

13
Breach of Duty- the importance of the activity.

• Marshall v. Osmand (1982)

14
Breach of Duty- learners and professionals

• The courts consider the needs of the innocent
  victim as more important, and thus will, at
  times, ignore lack of experience in a learner.
• Nettleship v. Watson (1971)
• Wilsher v. Essex Area Health Authority (1987)  
• Note that such a position in the law is designed
  to meet the reasonable expectations of others-
  for example, road users and patients- for whom it
  matters not about the experience of the person
  involved, rather the duty they are owed by anyone
  undertaking a specific activity.

15
Damage caused.

• Finally, the loss that results has to result
  from the defendant breaching the duty of care
  owed.
• Simply, one applies the but for test- but for
  the defendants actions, the damage would not
  have occurred.

16
Damage

• The courts will consider a further number of
  factors in deciding the damage is caused by the
  breach of the duty of care
• The damage that results must be caused by the
  breach of the duty.
• Where more than one possible cause for the damage
  exists, it must be shown that the act was the
  actual cause, not a mere possibility.
• If an act can be shown to be one of the causes of
  the damage amongst a number, a claimant may well
  succeed.
• The damage must be of a type that was reasonably
  foreseeable.
• Once it is shown that the damage was caused by
  the act of the defendant and was of the type
  foreseeable, the defendant has to take the
  claimant as they find them (eggshell skull rule.)
  They will be liable for the actual damage
  caused.