Tort Unit 2

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Duty of Care

  • The law decides whether a duty of care is owed by using the general test, from Donoghue v Stevenson, the 'Neighbour Principle'.
  • Lord Atkin stated that you have a general duty not to injure those who are directly affected by your acts or omissions.
  • It was then narrowed down in the Caparo v Dickman test, which has three stages:
  • There must be foreseeability of harm e.g. Kent v Griffiths where it was foreseeable that an ambulance arriving late could make a patient suffer worse injuries.
  • There must be proximity in the time, space or relationship e.g Bourhill v Youngwhere a pregnant woman walked over to an accident and went into shock, causing her to go into shock and giving birth to a still born. She went to the accident, so there was no proximity.
  • It must be fair, just and reasonable to impose a duty of care e.g Hill v Chief Constable of West Yorkshire where it was stated that the police don't have a duty of care to individuals, only the public. 
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Breach of Duty

  • When you breach a duty, you must have done an act/omission which fell below the standard of care. The standard of care is that of a reasonable person.

  • This was decided in the case of Blyth v Birmingham Waterworks where there had been an unusually cold frost which caused plugs opposite the claimants house to freeze over and this caused water to leak into the claimants home, damaging it. It was held that a reasonable person cannot be held liable for an unforeseeable event.
  • Experts/professionals: Bolan v Friern Hospital - the standard of care should be that of a reasonable doctor, which is higher than that of a reasonable man. The doctor didn't use muscle relaxant for ECT, but this was not mandatory, so he wasn't liable.

  • Learner Drivers: Nettleship v Weston - the standard of care for a learner driver should be that of a reasonable driver. Learner driver was going to fast round a bend resulting in crashing the car into a lamppost. The learner driver would be liable as he fell below the standard of care.
  • Child: Mullins - The standard of care should be that of a reasonable child of the defendant age. Two 15 year olds were playing with rulers, it snapped and went into one of their eyes, but as they were so young this was not unreasonable.
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Risk Factors

  • Likelihood of Harm: The defendant isn't expected to guard against events which are not foreseen.
  • For example: Roe v Minister of Health - Two claimants where permanently paralyzed after their anaesthetic had been contaminated with sterilising fluid. It wasn't known anaesthetic could be contaminated this way, so there was no breach of duty.
  • Seriousness of Harm: Wagon Mound No.2 - The D's vessel leaked oil into the harbour, cotton debris became embroided in it, and sparks from some welding works ignited the oil, which caused a massive fire. They were liable as even though the likelihood was low, the seriousness was very high, and it would have cost nothing to prevent it.
  • Cost of PreventionLatimer v AEC - The claimant slipped in the factory he worked in. The factory had been flooded due to the weather, warning signs had been put up and sawdust was used in most places. The defendant only had to take reasonable precautions.
  • Vulnerability of the Claimant: if the claimant is particular vulnerable or has characteristics that make the claimant more susceptible to harm, then the standard of care is higher.
  • For example: Paris v Stephney - The claimant only had sight in one eye. During his employment a splinter of metal went into his other eye. The employer didn't provide any workers with goggles, but the claimant was more vulnerable and should have been.
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Res Ipsa Loquitur

  • It means "the thing speaks for itself".
  • It suggests that there must have been negligence for this incident to have occurred and so that helps the claimant because if they are able to claim this, they will not have to prove that there has been a breach of duty.
  • A case example is Scott v London and St. Katherine's Docks where a man was hit on the head by bags of sugar falling from a crane. It was clear that this wouldn't have occured if there wasn't negligence, so the claimant could use res ipsa loquitur.
  • The three principles are that:
  • The thing that caused the damage was wholly controlled by the defendant.
  • The incident that caused the damage wouldn't have happened unless someone had been negligent.
  • There is no other explanation for the injury/damage caused to the claimant/property.
  • If these conditions are met then the burden of proof shifts to the defendant and they have to prove on the balance of probabilities that there was some other explanantion.
  • Other cases are: Mahon v Osborne where a medical swab was left inside a patient after a stomach operation; Ward v Tesco where a customer slipped on yoghurt left on a supermarket floor.
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  • Factual Causation: 'But for' the defendant's negligence the claimant wouldn't have suffered their injury or damage. If the injury would have probably happened anyway or was caused by something other than the defendant's negligence, the claim will inevitably fail.
  • Case examples of this are: Barnett v Chelsea and Kensington Hospital where a man went to the hospital with severe stomach pains and was told to go home, and died later. He had arsenic poisoning which meant nothing the doctor did would have saved him, so but for the doctor's ruling, he still would have died; Wilshire v Essex where a baby recieved treatment in the wrong vein which made them go blind and suffer brain damage - but for the negligence of the hospital, the baby would not have gone blind.
  • Legal Causation: The law requires a reasonable foreseeability of the kind of damage that is caused - a reasonable person can't be expected to guard against risk that isn't foreseen.
  • Case examples of this are Wagon Mound No.1 where the defendant's vessel leaked oil at a Wharf in Sydney Harbour. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil, which caused a massive fire, which was not foreseeable.
  • Hughes v Lord Advocate where a boy was severely burned when he knocked over oil lamps into a hole, after he had entered worknen's tent, which caused a explosion. Even though the extent was unforeseeable, it was caused by a known source of danger.
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Novus Actus Interveniens

  • Problems arise when another event comes between the negligence and the damage; the court must consider whether there was a new intervening cause or whether the ultimate damage was a foreseeable consequence of the original negligence.
  • Case examples of this are Fairchild v Glenhaven where numerous workers had contracted lung cancer after working with asbestos and were able to sue their employers; Knightley v Johns where the defendant's car overturned due to his negligence, and a police officer was involved in a collision after his senior officer told him to drive on the wrong side and failed to close the tunnel entrance. This negligence broke the chain of causation; Reeves v Commissioner of Police where a man committed suicide in his cell after many previous attempts, he was supposedly of sound mind and this was meant to break the chain of causation, however the police had a duty of care to him and this was not broken.
  • Thin Skull Rule: The defendant is liable for the full extent of the claimants injuries even if the claimant was particularly susceptible/vulnerable.
  • Case examples of this are Smith v Leech Brain where a man who had a precancerous condition was splashed on the lip by molten metal at work and devloped cancer and died. The burn was a foreseeable injury, even if the cancer wasn't; Paris v Stepney where the claimant only had one eye, lost sight in other at work, employer should have given him goggles.
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Civil Procedure 1

  • Pre-action protocols:

  • Claimant writes to defendant outlining how they were negligent and how much they want to be compensated. Gives times period for the defendant to reply.

  • Defendant replies (sometimes with a counter claim) or ignores.

  • If there is no reply then the claimant will instruct a solicitor to fill out the N1 form and submits to court or completes claim online at (apparently the examiner likes it when you know the website?) + pays a fee & defence has 3 months to accept or refuse. Start collection of evidence such as medical reports.

  • Defendant must send acknowledgment of service letter within 14 days.

  • Defendant must defend using an N9 form within 14 days after (max 28 days to file defence)

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Civil Procedure 2

  • Court begins case monitoring by the court - Checks that the case is running according to the time scales allowed e.g filing of defence and completion of questionnaires, may suggest ADR.
  • The case can be resolved anytime up until the trial
  • They will then send out an allocation questionnaire/directions questionnaire:
  • Decide the track they should take (i.e small, fast or multi) based on how many experts are required to give evidence and how complex the case is.
  • Also reviews how long the case will take
  • Both sides pay an allocation fee
  • Case management by the judge - makes sure the case has been handled accordingly during the pre-action protocols
  • Set date for trial
  • Trial
  • Judgement is enforced if the defendant does not pay.
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Track System

  • Samll Claims: Claims under £10,000 (£1,000 for personal injury).
  • Usually heard in the Small Claims Court before a District Judge. The parties represent themselves.
  • Fast Track: Claims £10,000-£25,000
  • Most of these cases will be in the County Court as they will be low in value and relatively simple. If there is a legal complication they could be heard in the High Court. A fixed timetable will apply to these cases and they will usually be completed within 40 weeks.
  • Multi-track: Complex and high value cases over £25,000
  • They will usually be heard in the High Court although Personal Injury cases under £50,000 will be in County Court as a PI case in the High Court cannot be started unless it is for a sum over £50,000. The timetable for such as case will be decided by the judge.
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  • Special Damages: These include - Lost earnings (up to the date of the trial); any medical expenses incurred as a direct result of the accident (up to the date of the court hearing); any damage to property such as a car damaged in an accident and any expenses airising directly from the accident e.g. the cost of a hire car.
  • Genreal Damages: These cover -
  • Pain and suffering: This may be awarded for both past (suffered in the accident) and the future (to be suffered until the injury has healed). Mere sorrow and grief are not enough. Fear is regarded as a normal human emotion, so is not accepted. There is no pain and suffering if the claimant is permanently unconscious.
  • Loss of amenity: This is the loss of the ability to take part in a sport or other activities that the claimant was able to do before the accident.
  • Future loss of earnings: The court will consider how long claimant is likely to be out of work and the amount of earnings they could get during this time. The court will multiply claimants expected earnings by the number of years. The court tries to assess the possibility of claimant being able to find alternative work - duty to take reasonable steps to mitigate their loss.
  • Future medicial expenses: Court will consider what future expenses claimant will have e.g. nursing care, adaptions at home.
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Deductions & Lump Sums

  • Deductions: An injured claimant can somtimes end up better off as a result of their injury. No deductions can be made from damages in respect of insurance benefits, private pensions, payments from charitable funds, or payments from disaster funds.
  • The Social Security Act 1989 requires the deduction from personal injury damages of any benefit paid to claimant as a result of the accident and requires the defendant (or insurance company) to repay to the DSS any such benefits paid out before the trial.
  • Lump Sums and Structured Settlements: As a matter of practice, tort damages are normally awarded only once, generally as a lump sum.
  • A "structured settlement" can be agreed between the parties and approved by the court as an alternative to a lump sum payment. This provides for a series of regular payments to the claimant for the rest of their life, however long or short it may be.
  • Pecuniary Losses - Quantifiable - things you can put a value on (typically special): Loss of earning and Property damage.

  • Non-Pecuniary Losses -Non quantifiable things you can't put a value on/difficult to value (typically general): Pain and Suffering - emotion and physical hurt; Loss of amenity (loss of ability to do something or loss of enjoyment of life) or Loss of faculty (senses).

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