Tort Based Liability; Unit 2 - Notes

Notes made from a combination of resources including the Nelson Thornes text book and Philip Allan revision guide.

Covers the Tort Liability option for the second half of the course; Liability in Negligence (Duty of Care, Breach of Duty and Causation) and the Civil Courts and Damages (Courts and Appeal System, Procedure to Trial and Damages)

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The Tort of Negligence
Duty of Care:
A duty to take care of others or look after them
Established by applying Lord Aitken's `Neighbour Test': "Persons who are so closely and directly
affected by my act I ought reasonably to have them in my contemplation" (Donoghue v Stevenson)
New duty of care circumstances are established using a 3 stage test (Caparo v Dickman):
1) Is it reasonably foreseeable that D's negligence will cause damage to C? (Kent v Griffiths
2) Is there a relationship of sufficient proximity (closeness) between D and C?
Space (Bourhill v Young)
Time
Relation (McLoughin v O'brein)
3) Is it fair, just and reasonable to impose a duty of care onto D? (MPC v Reeves)
Controlling the floodgates of litigation
What's best for society as a whole? (H v CCWY)
Omissions will only suffice if there was a legal duty to act (Barnes v HCC)
Breach of Duty:
D must omit "to do something which a reasonable man would do, or doing something a reasonable
man wouldn't do" (Blyth v BWW)
Must consider the weakness of others (Hayley v London EB) ­ Egg Shell Rule
Exceptions:
1) Children and Disabled people: Measured against reasonable people like them (Mullins v
Richard)
2) Professionals: Being a professional has implications of higher standards; they will be
compared to the reasonable person in that industry (Philps v Whitely)
a. Bolam v Friern Hospital:
i. Is there a body of opinion within the profession that would support the
conduct?
ii. Does the conduct fall below the standard of ordinary competent
professional?
b. Bolitho v Hackney Health:
i. Court decides whether the generally accepted practice has a logical and
reasonable basis
Theoretically possible for the entire profession to be found
negligent
The court will look at the risk factors:
1) The precautions D takes must match the size of the risk
High risk:High precautions (Hayley v LEB)
Low risk:Reasonable precautions (Bolton v Stone)
No known risk means there is no duty (Roe v MOH)
2) The more serious the consequences the higher the duty (Paris v SBC)

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The social utility of D's conduct will be balanced against the risk (Watt v HCC)
Standards of care can be lower when making a rescue (Day v High Performance)
4) D isn't expected to take expensive precautions to do all they can reasonable do to guard
from the risk, even if injury isn't prevented (Latimer v AEC)
5) D is expected to be reasonably competent when carrying out their task (Wells v Cooper)
Standards may rise but not fall below the standards expected (Nettleship v…read more

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C can only claim once (Barker v Corus)
Pecuniary Loss: Financial
Non-pecuniary loss: Not financial
Mitigation:
Minimising the loss by seeking reasonable action to do so
C does not have to be too careful, the actions taken must be reasonable
Special Damages:
Financial expenses incurred from the date of the injury to the date of the trial that are particular to C
Include:
Loss of wages (Average of previous 26 weeks earnings)
Medical Expenses
Repair and Replacement of goods (evidence via receipt)
General Damages:
Covers…read more

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Maximum financial limit is £50000
Uses a 3 track system (Civil Procedure Rules):
1. Small Claim Track:
Cases of a financial value of less than £5000 (£1000 if
personal injury)
Only used by straightforward cases
2. Fast Track:
Financial value between £5000-£15000
Relatively simple and last no more than 1 day
Limited oral evidence
3. Multi Track:
Financial value of over £15000
Contains a complication point of law
High Court
Complex cases with lots of money
3 divisions:
1.…read more

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Court issue fee
3) Acknowledgement of Service is completed
If D doesn't respond within the 14 days C will win the case via default judgement
4) Defence is sent
a. Admission Form if D wished to admit liability
b.…read more

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