TORT LAW FLASH CARDS

Criminal law is about punishment, whilst tort law is about redress (putting things right, not punishment) where there is a stronger focus on the claimant

How do the purposes of tort law and criminal law differ?

Primary duties prevent injuries and are about respecting others interest, whereas secondary duties repair them when we fail to do this

What is the difference between primary and secondary obligations?

Rests on the notion that it is the individual's responsibility to put the harm right

Rectifies past wrongful interaction between specific individuals by holding wrongdoers accountable to their victims

What is corrective justice as a disparate aim in tort law?

Putting the person back into the position they would have been in had the incident not occurred

What is compensation as a disparate aim in tort law?

Shifting financial burdens from injured parties to defendants, insurers, employers, or society. It considers broad economic fairness, not just make the victim whole

What is redistribution as a disparate aim in tort law?

Focuses on the fair allocation of societal benefits and burdens, before we start making decisions and taking money to compensate the individual

What is distributive justice?

By holding individuals and institutions liable, making them less likely to repeat harmful actions.

What is deterrence?

Wanting to have an acknowledgment that a right has been violated

What is vindication?

Ashley v Chief Constable of Sussex Police: Ashley was shot dead by an officer who believed he was a drug dealer and involved in a stabbing. His mother sued the police for negligence and trespass to the person. The officer admitted negligence and agreed to the damages. The family wanted an acknowledgment that Ashley had been intentionally, not carelessly, killed.

What case is an example of vindication in tort law?

People getting too many payouts for things they should just deal with themselves. - We shouldn’t always be looking for someone else to blame when something bad has happened to us.

What is compensation culture?

Facts: The defendant wanted to learn how to drive. And she asked her neighbour to teach her. Who agreed. During a lesson, they were at a junction at an intersection. And the driver panicked and, despite trying to gain control of the car, she ended up driving the car into a lamppost. And the claimant was injured. But has Mrs. Nettleship really done anything wrong? Was she at fault?

Held: The standard of care is measured objectively by the care to be expected of an experienced, skilled and careful driver. The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care. Legal standards of care remain objective and impersonal

What are the facts of Nettleship v Weston and why is it important?

1. C must suffer an actionable damage

2. D must owe C a duty of care

3. D breached that duty of care

4. D’s breach caused C’s loss: Factual Causation and Legal Causation

What are the four elements of proving negligence?

You need to prove the recoverable damage. Negligence in itself is not actionable; you need to have the damage, which is then actionable

When proving actionable damage as an element of negligence, what must you prove?

- Physical injuries

- Psychiatric injury, when accompanied by physical injury

- Property damage

- Economic loss when following physical injury (eg loss of earnings)

What counts as actionable damage?

The courts said no, you have not suffered any injury, all you know is that you might suffer physical injury in the future. Because symptomless asbestos plaques were not considered physical injury.

Why did the claim fail in Rothwell v Chemical & Insulating Co?

The issue was whether destroyed stored sperm was a physical injury or property damage. It is not a physical injury that has been done to your person. Instead, it is a destruction of your property. The men were then able to recover damages.

What was the key issue in Yearworth v North Bristol NHS Trust?

No. Liability only arises if the defendant owed a duty of care in respect of the type of loss suffered.

Does carelessness alone give rise to liability?

Mrs. Donoghue consumed ginger beer containing a decomposed snail, causing shock and gastroenteritis, despite not being the purchaser. The existing law before Donoghue was that no one owes another a duty of care, unless the product is in itself dangerous or was made by the manufacturer

Held: manufacturers can owe a duty to ultimate consumers. The Neighbour Principle—you must take reasonable care to avoid harming those closely and directly affected by your actions.

What was the issue in Donoghue v Stevenson and why is it important? What are the facts?

Through precedent—e.g., doctors owe duties to patients; drivers owe duties to road users.

How are most duties of care established?

the question for the court is whether the law should recognize a duty of care on the given novel facts.

Q: What is the key question in novel duty of care cases where the law isnt clear?

Psychiatric harm, omissions, third‑party acts, economic loss, and public body liability.

What areas are considered “problematic duty areas”?

Investors relied on an inaccurate audit when buying shares and sued the auditors for negligence.

No duty of care was owed—the auditors’ report was not intended for takeover bids, so the claimant’s reliance was unreasonable. The concept of reasonable foreseeability that was established by Atkins was seen to be too wide, said the courts. They then said we need to establish a new indication of when the duty of care arises

Explain the facts and issue in Caparo v Dickman?

1. Foreseeability of damage

2. Proximity between the claimant and defendant

3. Fair, just and reasonable to impose a duty

What is the Caparo 3 stage test?

As a mis‑step—not a strict 3‑stage formula, but a “term of art” indicating factors courts consider. Caparo shouldn’t be applied mechanically as a test - it guides reasoning rather than dictating outcomes.

How did the UK Supreme Court in Michael and Robinson view the Caparo test?

By incremental development and analogy with established cases—not by inventing new duties from scratch.

How do courts now approach novel duty cases?

A&E receptionist gave incorrect waiting‑time information; claimant left, deteriorated, and suffered brain damage. The case fell within an established duty of care—hospitals owe duties not to mislead patients.

What happened in Darnley v Croydon and what did it establish? What are the facts?

Darnley v Croydon NHS Trust 2018

What case established hospitals owe a duty of care?

Police officers sued the Commissioner for failing to protect their interests during litigation over alleged misconduct. No duty of care—the duty would undermine policy considerations and disrupt the coherence of the law.

What happened in James-Bowen v Commissioner of Police for the Metropolise 2018 and what did it establish?

James-Bowen v Commissioner of police for the Metropolis 2018

What case establishes that police don’t owe a duty of care?

There is no duty of care for a mere failure to act, except in exceptional circumstances.

What is the general rule regarding omissions in negligence?

A failure to act, failure to intervene, or failure to protect the claimant from harm.

What is an omission in negligence?

A positive act (something you actively have done) that makes a situation worse and causes harm.

Yes—courts readily impose duties for active wrongdoing.

What is misfeasance and is a duty owed?

A failure to make a situation better - nonfeasance is omissions

the law does not impose liability for failing to confer a benefit.

What is nonfeasance and is a duty owed?

A motorcyclist was hit at a junction because a mound of earth obstructed a driver’s view. The council knew about the mound but had not removed it. C argued that the council knew about the mound.

It illustrates the general rule: no duty of care for omissions unless exceptional circumstances apply.

What did Stovin v Wise establish? Why is it important? What are the Facts?

Police attended a black‑ice incident, placed a warning sign, then removed it and left. Later, another driver (Tindall) hit the same ice and died. C argued that the police, knowing of the hazard, owed a duty to protect later road users by keeping warnings in place.

No duty owed - the relationship between police and road users was too remote, and imposing a duty would create an overly broad obligation.

What did Tindall v Chief Constable of Thames Valley Police establish? Why is it important? What are the facts?

A driver crashed after cresting a hill without seeing a faded “SLOW” road marking. She argued the council should have repainted it. The council failed to maintain road markings, which would have warned her and prevented the accident.

No duty of care— Once the marking faded, the situation simply returned to what it had been before; the council had no duty to repaint it.

What did Gorringe v Calderdale MBC 2004 establish? Why is it important? What are the facts?

Tort law case establishing that fire brigades owe no general duty of care when attending fires but are liable if their positive actions (misfeasance) make the situation worse.

Fire brigades are not under a common law duty to answer calls or to take care when doing so—unless they make matters worse through positive acts.

What did Capital & Counties plc establish? Why is it important?

Capital and Counties PLC

What case establishes that firefighters don’t owe a duty of care?

Police officers tackling a suspect knocked over Mrs Robinson during a planned arrest. This is a misfeasance—a positive act causing harm, not a failure to protect.

It confirms that police owe duties in positive‑act cases, and that omissions are treated differently.

Why is Robinson v Chief Constable of West Yorkshire important? What are the facts?

‘In the tort of negligence, a person, A, is not under a duty to take care to prevent harm occurring to person, B, through a source of danger not created by A unless

(i) A has assumed a responsibility to protect B from that danger (undertaking responsibility for the claimant)

(ii) A has done something which prevents another from protecting B from that danger (creation of a source of danger/risk)

(iii) A has a special level of control over that source of danger (special degree of control)

(iv) A’s status creates an obligation to protect B from that danger (the occupation of an office or a position of responsibility)

What are the 4 exceptions to the general rule about duty of care for omissions cases?

If D creates a danger or risk, they may owe a duty of care even though the case appears to involve an omission - it is misfeasance so a positive act

What is the “creation of a source of danger” exception in omissions duty of care cases?

Yes. If failing to act creates or allows a dangerous situation to arise, this can still trigger the exception.

Can a danger be created (creation of a source of danger) through an omission?

A duty of care may arise where A has undertaken responsibility for B’s safety, and B has relied on that undertaking.

What is the assumption of responsibility exception in omission cases?

Because it requires a close, mutual relationship where A’s conduct or assurances reasonably lead B to rely on A for protection.

Why is the assumption of responsibility exception based on a “special relationship”?

1. whether we can establish that the defendant assumed responsibility for one’s well-being through words, action or implication

2. the claimant must have relied on the claim to protect themselves and be aware of their needs and welfare

What is required to prove assumption of responsility as an exception to the general rule for duty of care in omissions cases?

A professional boxer suffered severe brain damage after a fight. The BBB had rules about ringside medical equipment but failed to require adequate resuscitation equipment.

Held: Unlike fire or police services (who protect the public generally), the BBB sponsors, controls, and encourages an activity where injury is foreseeable and inevitable (responsibility is clearly assumed) and in this case the BBB failed to confer a benefit—they did not provide (or require) proper medical equipment

A duty of care was owed because the BBB had assumed responsibility and the boxer relied on them.

What did Watson v British Boxing Board (BBB) establish? Why is it important? What are the facts?

An ambulance accepted a call for an asthmatic patient but arrived an hour late, causing severe brain damage to the patient.

Once a call is accepted, the service is dealing with a named individual, and carers will stop seeking alternatives; this creates a focused duty. The ambulance service accepted the call, saying they were on their way. The claimant relied on this assurance and did not seek alternative transport.

What did Kent v Griffiths establish? Why is it important? What are the facts?

Kent v Griffiths - Although ambulances are part of emergency services, their relationship with the patient resembles a doctor–patient relationship, where duties are well‑established.

What case established ambulance drivers owe a duty of care?

A mother called the police requesting a welfare check on her vulnerable daughter. Police assured her they would attend and arrange an ambulance if needed. They attended twice; on the second visit they entered and found the daughter had died by suicide.

There is a duty of care owed because the police gave a specific promise to attend urgently and arrange hospital transfer and the mother would have taken other steps (calling an ambulance, going herself) had she not relied on that assurance.

What did Sherratt v Chief Constable of Greater Manchester Police establish? Why is it important? What are the facts?

A drunken serviceman was taken to his bunk by colleagues after a social event. He was left on his back, choked on vomit, and died.

They claimed that even if they assumed responsibility, the serviceman did not rely on them—so the second ingredient of the assumption‑of‑responsibility test was missing.

The court held that RELIANCE ISNT ALWAYS NECESSARY - Because the serviceman was incapable of manifesting reliance—he was unconscious. The court held that reliance is not always necessary in such situations.

What did Barret v Minister of Defence establish? Why is it important? What are the facts?

A man with recent suicidal ideation was taken into police custody. Despite checks, a defect in the cell (a missing protective glass panel) allowed him to hang himself.

Because the police had complete control over the detainee. In custody cases, the duty arises from control, not reliance.

What did Reeves v Commissioner of Police for the Metropolis establish? Why is it important? What are the facts?

A duty of care may arise where the defendant holds a role or status that inherently carries protective obligations (e.g., parent, teacher, doctor).

What is the “occupation of an office or position of responsibility” exception in omissions duty of care cases?

When the defendant has exclusive control over the claimant’s environment and safety, the law imposes a positive duty to protect them—even in omission scenarios.

What is special degree of control in duty of care omissions cases?

Because the parental role automatically creates responsibility for the child’s safety and welfare - Harris v Perry [2008] EWCA Civ 907

Why do parents owe a duty of care to their children? What case established this?

Because their professional role gives them control and responsibility over children during school hours - Carmarthenshire County Council v Lewis [1955] AC 549

Early‑years teachers owe a much higher level of supervision, while lecturers owe a minimal duty because adult students are autonomous.

Why do teachers owe a duty of care to their children? What case established this?

Because the doctor–patient relationship inherently involves assumed responsibility and reliance - Barnett v Chelsea and Kensington [1969]

Why do doctors owe a duty of care to their patients? What case established this?

Three night watchmen presented at A&E with stomach pains. The doctor refused to see them; two later died from arsenic poisoning.

A duty arises once a patient presents themselves and the hospital accepts the complaint, even before formal treatment begins.

What did Barnett v Chelsea and Kensington establish? Why is it important? What are the facts?

A special, very tight relationship between X and Y, or X and Z, that justifies imposing responsibility.

What is required before a duty of care can arise for harm caused by a third party?

Because holding X responsible for Z’s deliberate choices (voluntary) risks making someone else (X) responsible for other people’s behaviour, which the law generally avoids.

Why are courts reluctant to impose liability on defendants for third‑party intentional acts?

The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third.

What is the general rule with third party liability as an exception to duty of care scenarios?

1. C argues that D ought to have done something to stop a third party from harming C

2. C argues that D has done something positive (a positive act) to aid a third party to harm C

What are the two versions of third party liability as an exception to the rule about duty of care?

Borstal boys escaped due to lack of supervision, took a boat, and damaged the claimant’s yacht.

A duty of care was found to be owed in this scenario because the officers had a special relationship of control over the boys, making their escape highly likely if unsupervised.

Special relations can create a duty of care where human action is a likely link in the chain of causation.

What did Dorset Yacht v Home Office establish? Why is it important? What are the facts?

Liability may arise from (1) a special relationship with the claimant, (2) a special relationship with the third party, or (3) the defendant creating a source of danger that third parties might foreseeably misuse - Goff in Smith v Littlewoods

What is required to prove that a third party must be held liable in duty of care scenarios?

Vandals repeatedly entered a disused cinema and eventually set a fire that destroyed neighbouring property.

Simply owning a vulnerable property does not create liability unless the defendant created or allowed a foreseeable source of danger.

Liability for third‑party wrongdoing is exceptional and arises only in special circumstances.

What did Smith v Littlewoods establish? Why is it important? What are the facts?

The council warned a violent tenant (Drummond) of impending eviction; he blamed and attacked a neighbour (the victim). The victim argued the council should have warned him so he could avoid the attack.

The council failed to act (omission) and the harm was inflicted by a third party (Drummond), not the council.

No duty of care was owed; the council had no obligation to warn the victim. A: Although landlords owe general duties to tenants, it was not fair, just, and reasonable to impose liability for failing to warn about the meeting. Doing so would create an unmanageable, wide‑ranging duty.

What did Mitchell v Glasgow County Council establish? Why is it important? What are the facts?

Joanna Michael called police multiple times during a domestic violence incident. Due to call‑handling errors and misclassification of risk, police did not respond in time, and she was murdered by her ex‑partner.

No duty of care was owed; this was a failure to protect and a failure to confer a benefit, which falls under the general rule against liability for omissions.

Because creating a duty would mean the public must compensate victims for harm caused by third parties, even though the state is not responsible for the attacker’s behaviour

Because the police had not assumed responsibility for Joanna’s safety, and the case involved omissions and third‑party wrongdoing.

What did Joanna Michael v Chief Constable of South Wales establish? Why is it important? What are the facts?

Public authorities owe no duty of care for omissions except in exceptional circumstances.

What is the general rule about public authority liability in negligence?

Five children suffered severe physical and emotional abuse at home. Despite repeated reports from teachers, neighbours, and the NSPCC, the council failed to investigate or remove the children.

Newham: A: A child was wrongly removed from her mother due to mistaken identity (“Y”). Despite the mother repeatedly explaining the error, the child was kept away for a year, causing psychological harm.

This is misfeasance because the authority took a positive action (removing the child) that made the situation worse.

What did X and Others (Minors) v Bedfordshire County Council (1995) establish? Why is it important? What are the facts? What specifically about the newham case - what did that establish?

1. Vicarious liability - holding a party (usually an employer/council) responsible for the unlawful or negligent actions of another party (usually an employee/social worker).

2. Direct liability - the legal responsibility an individual or business holds for harm, damages, or negligence caused directly by their own actions or omissions

What are the two ways to bring an action against a public authority in these cases?

Public authorities are not generally liable in negligence for how they perform statutory child‑protection duties.

What major principle about public authority liability emerged from X (Minors)?

It marked a shift toward recognising potential duties in child‑protection cases, though later cases (like Poole) pulled back againThat because children are especially vulnerable, courts should be more open to recognising duties of care.

What did JD v East Berkshire Community Health NHS [2005] UKHL 23establish? Why is it important? What are the facts?

A mother and two sons (one disabled) were placed in housing next to a violent, abusive family. Despite years of harassment, assaults, and pleas for help, the council failed to rehouse them for five years.

No duty of care was owed by the council. Because the council had not assumed responsibility for the family’s safety, the foreseeability of the mother’s anxiety was not enough; anxiety is not reliance.

What did Poole Borough Council v GN [2019] establish? Why is it important? What are the facts?

Jacqueline Hill, the final victim of the Yorkshire Ripper, was murdered after police failed to act on substantial evidence linking Peter Sutcliffe to earlier attacks.

There was no close relationship between Jacqueline Hill and the police, and imposing liability would undermine police operations.

Liability could lead to defensive policing, harming the police’s ability to investigate and suppress crime effectively.

What did Hill v Chief Constable of West Yorkshire (1989) establish? Why is it important? What are the facts?

Smith received over 130 violent threats from his ex‑partner and repeatedly reported them to police, who took no action. He was later attacked.

No duty of care — requiring police to treat every threat report as actionable would impede police work and resource allocation.

What did Smith v Chief Constable of Sussex police [2008] establish? Why is it important? What are the facts?

If a victim provides credible evidence of a specific and imminent threat from an identified person, the police owe a duty to assess and act — the “liability principle.”

What did Lord Bingham argue in his dissent of Smith v Chief Constable of Sussex police [2008] ?

A mother in a long‑term abusive relationship repeatedly reported escalating threats from her ex‑partner. Police downplayed the risk, conducted flawed assessments, and eventually implemented a “cocoon order” involving neighbours, coworkers, and increased police presence. A neighbour (part of the cocoon plan) reported seeing the ex outside the claimant’s home. Police said they would send a car but did not warn the claimant, who then left the house and was stabbed multiple times in front of her children.

A duty exists because the police had given specific safety advice, created reliance, and were alerted to an immediate and obvious danger.

What did Woodcock v Chief Constable of Northamptonshire [2023] establish? Why is it important? What are the facts?

Operational decisions (direct actions) are more likely to attract a duty.

Discretionary decisions (policy choices) rarely do.

What is the difference between operational and discretionary decisions?

When it commits a direct, positive act causing harm (Robinson).

When it makes a situation worse (East Suffolk, Capital & Counties).

When it assumes responsibility for the claimant (Poole, Robinson).

When will a public body owe a duty of care?

Only where a highly proximate relationship exists, typically through an assumption of responsibility.

When do the armed forces owe a duty of care?

No — they owe no duty to respond, only a duty not to make the situation worse when they do act.

Does the coastguard owe a duty to respond to emergency calls?

Pure economic loss in tort law is a financial loss (like lost profits or wasted expenses) that isn't tied to any physical injury to a person or damage to property

What is pure economic loss in tort law?

Damage - your personal injury, for example, breaking a leg

Damages - what the court feels your broken leg is worth

What is the difference between damage and damages?

it isn’t easily measurable in this straight cut sum - Non-monetary losses

What is a non‑pecuniary loss?

quantifiable financial losses (like lost wages, medical bills) with clear monetary values

What is a pecuniary loss?

Financial loss that flows from physical injury or property damage - any financial loss that arises as a knock‑on effect of the defendant’s wrongdoing, such as lost earnings after a personal injury.

What is consequential economic loss?

PEL is a pecuniary loss where the claimant suffers financial harm without any accompanying physical damage, and the loss is measurable in money

What is pure economic loss (PEL) in tort law, and how does it differ from non‑pecuniary loss?

No recovery for pure economic loss in negligence.

What is the general rule for pure economic loss?

Damage to steel in the furnace at the time of a power cut (£368) was recoverable because it was property that was damaged

Loss of profit that could have been made by selling that steel in the furnace (£400) was also recoverable because it flowed directly from the physical damage

Anticipated lost profit on steel that would have been processed during factory closure (£1,767) was classified as PEL, so not recoverable.

What damages were recoverable in Spartan Steel & Alloys v Martin & Co (1973)?

This case provides us with this special, exceptional rule regarding pure economic loss

It provided the key exception allowing recovery for pure economic loss where there is an assumption of responsibility and reasonable reliance.

What major principle did Hedley Byrne v Heller establish?

(1) A ‘special’ relationship giving rise to an assumption of responsibility - a relationship akin to a contract (This is so similar to a contractual relationship that we’ll impose similar duties) - These relationships are special because of a knowledge imbalance or a power imbalance

(2) Reasonable reliance - The reliance has to be reasonable in the circumstances - Would it be objectively reasonable to rely here

What are the two core ingredients of the Hedley Byrne exception?

Caparo relied on a company's audited accounts when attempting a takeover, but the auditors had prepared the accounts only for the company and its shareholders, not for potential investors like Caparo.

No proximity between Caparo and the auditors because the auditors did not know Caparo existed, did not know Caparo would rely on the accounts for a takeover, and the accounts were not prepared for that specific purpose.

What did Caparo Industries v Dickman (1990)establish? Why is it important? What are the facts?

It established that PEL is generally not recoverable unless a "special relationship

How is Caparo Industries v Dickman an exception to the rule about PEL?

(1) Purpose of the accounts as drawn up (a ‘scoping’ question) - Why was the original auditor engaged in the first place?

(2) Information communicated to the particular C (either as an individual or a specific class) - Was the information provided to a small class of people or was it put online for anyone to read? – the smaller the class, the better the argument

(3) Objectively likely that the C would rely on the information for the specified purpose.

What questions should you ask if you are not sure whether you have a super tight relationship and reasonable reliance for PEL?

One company sought to take over another and relied on an accountant’s report about the target’s financial health; the clients had an idea that the company was going well, and they saw it as vulnerable, and that’s why they wanted it. But they ended up doing a lot worse, and the claimant alleged negligent misstatement.

What did James McNaughton Paper Group v Hicks (1991) establish? Why is it important? What are the facts?

o The purpose for which the communication was made;

o The purpose for which the statement was communicated.

o Relationship between the advisor, the advisee, and any relevant 3rd party.

o Size of the class to which the advisee belongs.

o State of knowledge of the advisor

o Reliance by the advisee

What are the 6 factors you should consider if you are unsure if there is a close relationship for PEL?

Caparo provides the general incremental, proximity-based, scope-focused approach; James McNaughton translates that into a structured set of factors for advisory and takeover contexts, especially where the relationship and reliance are uncertain.

How do Caparo and James McNaughton together shape negligent misstatement duty of care?

A high‑roller wanted to gamble large sums at the Playboy Club. To stay anonymous, the Club used its subsidiary Burlington to ask the gambler’s bank if he was “good for” £1.6m. The bank confirmed he was. The gambler lost £1.2m, wrote cheques that later bounced, and Playboy suffered the loss. A2. Burlington acted only as an intermediary; the gambling losses were suffered by the Playboy Club itself, not Burlington.

Because the bank has no knowledge of Playboy due to its push for anonymity, the relationship between them is now disconnected. They have to have knowledge of who they are defending so that they can tailor their advice, because without that knowledge, it weakens the case

What did P***boy Club London Ltd and others v Banca Nazionale del Lavoro SpA 2018 establish? Why is it important? What are the facts?

The defendant’s knowledge matters for:

(i) identifying the specific person or class to whom responsibility is assumed;

(ii) showing that the claimant’s reliance will be financially significant;

(iii) limiting the scope of responsibility if no financial limit is stated.

What did Lord Sumption say about the relevance of the defendant’s knowledge in P***boy v Banca?

refers to serious, recognized mental illnesses (like PTSD, depression, anxiety) caused by a defendant's negligence or intentional act, going beyond mere grief or distress, often requiring a sudden shocking event or proximity to danger, and typically needing expert medical evidence for a successful claim.

What does “psychiatric harm” mean in tort law?

(1) The damage stage - is there actionable psychiatric injury? (- Grief, Sadness and Upset, Anxiety, Depression, PTSD)

(2) The duty stage - does the defendant owe a duty to this claimant?

At what two stages do courts restrict psychiatric harm claims?