Tort Law

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Duty of care

  • History- first established in Donoghue V Stevenson this too basic
  • Lord Atkins founded neighbour principal "who is thy neighbour?" everybody closely affect by the consequences of your actions. 
  • Three part Caparo test came about for establishing Duty of Care. -Forseeablilty, Proximity and Reasonableness.
  • Is it reasonably foreseeable? Kent V Griffiths- reasonably foreseeable if an Ambulance is late or does not turn up the patient will become further ill. 
  • Proximity means closeness and can be in time, space or relationship- Bourhill V young, no proximity as C voluntaraily went to see aftermarth of accident, not accident itself, not related to victim. Mcloughlin V O'Brein proximity in relationship as the C was related to the V's- though she had not been in the time or space of the car accident. 
  • Is it fair just and reasonable to impose a Duty of care? MPC V Reeves prisoner known suicide risk so police owed a DOC if he was in custody. Orange did not owe DOC as he was not a known suicide risk. 
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Breach of Duty

  • Blyth V Birmingham waterworks- Reasonable man- would the competent person have acted in the same way 
  • Objective test (reasonable man) 
  • 4 types of reasonable man: Ordinary person, learner, professional, and young person
  • Ordinary person- completing a task to that of the ordinary competent person (wells V cooper) D completed a task to that of the competent person
  • Learner's standards must be the same of a competent person not a learner (Nettleship V Western) D was compared to the standards of the competent driver not the learner driver she was. 
  • The professional: 2 questions- would someone else in that profession act the same way and is there a substantial body of medical opinion to support D's practise? Bolitho- Says two bodies of medical opinion can be correct, Bolham- says judge can overule body of medical opinion if not logically backed with evidence. Roe- says cannot take precautions against unknown risks.
  • Young person people will complete a task to the age they are. Mullins V Richards D was acting just like any 15 year old by playing. 
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Risk Factors

  • Special Characteristics of C: Paris V Stepney borough council- The risk of injury was greater to a person who was blind in one eye, D should have done more to prevent the loss of sight in the other eye
  • Have all practical precautions been taken? Latimer V AEC- D took all practical precautions to prevent injury, shutting the factory would have been impractical 
  • What is the size of the risk? Bolton V Stone- The size of the risk was so small and D had taken precautions against it. Haley V London Electricity Board- foreseeable that a blind person would walk down a street, so their precautions where impracitcal 
  • What are the benefits to taking the risk? Watt V Hertfordshire- the risk to saving the womans life out weighed the risk of injury to the firemans back 
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  • Factual: The but for test- Barnett V Chelsea and Kensington hospital managment- But for the hospitals refusal to treat the C would he have died anyway? yes so the hospital is not liable for death but is liable for falling below the standard of care by refusing to check him. 
  • Remoteness of damage; Is the damage reasonably foreseeable or is it too remote? The wagon mound, Pollution from oil spillage was reasonably foreseeable but the fire that occured later was not. D may not be liable if the damage is too remote. 
  • The type of damage: D may stil be liable if the type of damage is reasonably foreseeable no matter the form the damage takes place. Hughes V Lord Advocate- leaving a manhole unattended with paraffin lamps was foreseeable to result in an explosion, even in its severity. Bradford V Rentals because heating did not work and windows did not stay open it was reasonably foreseeable a cold related injury would occur, even though it was servere (frostbite). 
  • Thin skull rule- take your victim as you find him (Smith V Leech Brain) D should have done more to prevent the exassibation of C's condition.
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Res Ispa Loquitur

  • The thing speaks for itself 
  • Three principles: Would not normally occur without somebodys negligence, no other explanation, D has to be wholly in control at all times. 
  • Scott V London St.Katherine docks: Bag of sugar falls on D's head. 
  • applying three principles: bags of sugar do not normally fall on peoples head without someones negligence, there is no other explanation for the sugar falling on D's head unless someone deliberatly threw it, but D would have to prove that, and it happened on a crane controlled by D's dock so they where wholly in control at all times. 
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  • Special damages: quantifiable, ie loss of earnings or medical expenses. Go from the date of injury until the date of the trial. 
  • General Damages: Non-quantifiable, ie, pain and suffering, loss of amenity and loss of future earnings.
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