Tort Based Liability; Unit 4 - 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 scebario section of the course; General Neglience, Medical Negligence, Personal Injury, Psychiatric Damage, Economic Loss, Product Liability, Consumer Protection Act, Occupiers Liability (1957 Act and 1984 Act), Nuisance (Private, Public and the rule in Rylands v Fletcher) and Vicarious Liability

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`The Tort of Negligence
Duty of Care:
Duty of care was established by applying the `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)
Established duties of care:
Manufacturer / Consumer
Road user / Other road users
Professional / Client
Employer / Employee
Doctor / Patient
New duty of care circumstances are established using a 3 stage test (Caparo v Dickman):
1) Is it reasonably foreseeable to D that their negligence will cause damage to C? (Kent v
Griffiths)
2) Is there a relationship of sufficient proximity 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
Promoting it safely
It's considered what is best for society as a whole (H v CCYW)
Omissions will only suffice if there was a legal duty to act (Barnes v HCC)
Breach of Duty:
To breach a duty of care D must be negligent; to be negligent D must act in a way unlike the
reasonable man (Blyth v Birmingham WW)
The reasonable man will consider the weakness of others (Hayley v London EB) ­ Egg Shell Rule
D is measured against the standards of the reasonable man (Nettleship v Weston)
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)
When evaluating if D's negligence amounts to a breach of duty the court will look at 4 risk factors:
1) Likelihood of Injury: The precautions D takes must match the likelihood of someone receiving
the injury
High risk ­ Hayley v London EB
Low risk ­ Bolton v Stone
No known risk ­ Roe v MOH

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Seriousness of Consequence: The more serious the consequences the higher the duty (Paris
v SBC)
3) Value of Conduct: If D's actions were saving a socially useful purpose the court will "balance
the means against the risk" (Watt v HCC)
4) Cost of Precautions: D isn't expected to take expensive precautions and guard from the risk
reasonably, even if injury isn't prevented (Latimer v AEC)
Causation:
The chain of causation links D's negligence to the damage suffered by C; the chain must remain
unbroken to…read more

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Expressly/Impliedly agrees to waive any claims in respect of such inury
Can be voluntary if they have no knowledge of the risk (Murray v Harringay Arean)
Mere knowledge of the risk doesn't amount to consent (Smith v Baker), full knowledge is required
(Morris v Murray)
Personal Injury (Damages)
Damages seek to put C back into the position they were in before the negligence occurred…read more

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Special Damages:
Out of pocket expenses from the date of the injury to the date of the trial
Include:
Loss of wages
Medical Expenses
Travel Expenses
C can claim damages for any damage to property; the court will award the cost of repair and
replacing the property ­ unless it exceeds the property's value, in which case the value will be paid
General Damages:
C's losses in the future
Includes:
Pain, Suffering and Loss of Amenity
actual injury (Judicial Studies Board has laid down an…read more

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Persons who are so closely and directly affected by my act I ought reasonably to have them in my
contemplation" (Donoghue v Stevenson)
Established duty of care between doctors and patients as they assume responsibility for them and its
reasonably foreseeable that a failure to exercise reasonable care could lead to potential injury
It is reasonably foreseeable a doctors negligence will harm a patient, they are close in proximity and
it is fair just and reasonable to impose a duty of care (Caparo v Dickman)…read more

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Loss of Chance: Medical negligence increases risk of damage where there was already a risk because
of the nature of the medical condition (Gregg v Scott)
Failure to Inform: Doctor has a duty to inform the patients of any risks (Chester Atshor)
Psychiatric Damage
More widely known as nervous shock
Psychiatric damage is "the sudden appreciate by sight or sound of a horrifying even which violently
agitates the mind" (Alcock)
The harm must be a recognised psychiatric illness
Excludes grief, emotional stress and ordinary shock…read more

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They must have been involved in, or witnessed, a sudden shocking event (Sion)
Duty of Care:
Only owed to primary or secondary victims of the event
Court is willing to allow other claims to appropriate circumstances
Primary Victims:
Someone who is injured, or fears injury, and suffers psychiatric harm as a result
1.…read more

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Egg Shell Personality only applies if a person of reasonable fortitude would have
suffered some harm
4) Primary Victims Owe no Duty to a Secondary Victim:
An individual does not owe a duty to anyone to look after him (Greatorex v
Greatorex)
Other `Appropriate' Circumstances:
C mistakenly believes they were the cause and suffers psychiatric harm as a resul t(Dooley v Cammel
Laird)
C feels personally responsible for harm caused and suffered psychiatric harm as a result (W v Essex
CC)
C and D have…read more

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Pure Economic Loss:
Standalone economic loss ­ no physical loss
C suffers a money loss but no physical loss (Cattle v Stockton Waterworks)
Exceptions:
Negligent Misstatement:
D makes a statement to someone to whom he owes a duty of care but, due to his negligence, the
statement is inaccurate to causes C a reasonably foreseeable pure economic loss
Comes in any form that conveys information to the C (Hedley Byrne v Heller)
D only owes duty of care to someone with whom he has a…read more

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Product Liability
Duty of Care:
Duty of care was established by applying the `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)
Established duty of care between manufacturers and consumers
It is reasonably foreseeable a manufactures negligence will harm a consumer, they are close in
proximity and it is fair just and reasonable to impose a duty of care (Caparo v Dickman)
Further examination or preparation by any intermediate…read more

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