Tort Law

Four elements of negligence

Duty of care, breach, causation, remoteness

Caparo test for duty of care (novel situations)

(1) Foreseeability of harm; (2) Proximity between parties; (3) Fair, just and reasonable to impose a duty

Pure economic loss—general rule in negligence

Not recoverable for negligent acts (except via Hedley Byrne for negligent misstatement)

Hedley Byrne v Heller—when is pure economic loss recoverable?

Special relationship + assumption of responsibility + reasonable reliance + foreseeable reliance

Primary vs secondary victim (psychiatric injury)

Primary—in zone of physical danger; Secondary—witnesses injury to another, must satisfy Alcock criteria

Alcock criteria for secondary victims

(1) Close tie of love and affection; (2) Proximity in time and space to the accident/immediate aftermath; (3) Perception through own unaided senses

Omissions—general rule in negligence

No duty to act, unless: created the danger, special relationship, assumed responsibility, or statutory duty

Standard of care in breach

The reasonable person in the defendant's position (objective)

Factors affecting standard of care

Likelihood of harm (Bolton v Stone), severity of harm (Paris v Stepney), cost of precautions (Latimer), social utility (Watt)

Bolam test (professional standard)

A professional is not negligent if they act in accordance with a practice accepted as proper by a responsible body of opinion in that field

Bolitho refinement of Bolam

The professional practice must be capable of withstanding logical analysis—court can reject illogical practices

Standard of care for learners/inexperienced (Nettleship v Weston)

Inexperience is no defence—held to the objective standard of a reasonably competent person

"But for" test (factual causation)

But for the defendant's breach, would the harm have occurred? If no, causation established

Barnett v Chelsea Hospital

Doctor's negligence didn't cause death where patient would have died anyway—causation failed

Material increase in risk (McGhee/Fairchild)

Where exact cause can't be proven, materially increasing the risk of harm may satisfy causation

Effect of negligent medical treatment on causation

Negligent treatment may break the chain; competent treatment (even if unsuccessful) does not

Intervening act by claimant (McKew)

Breaks the chain if the claimant's conduct was unreasonable

Test for remoteness (Wagon Mound No 1)

Damage recoverable only if the TYPE of harm was reasonably foreseeable

Type vs extent of damage

Type must be foreseeable; extent need not be—defendant liable for full extent if type foreseeable

Egg-shell skull rule (Smith v Leech Brain)

Take your victim as you find them—liable for full extent even if worsened by claimant's vulnerability

Occupiers' Liability Act 1957—who is owed a duty?

Lawful visitors (express/implied permission, contractual, statutory right)

Common duty of care (s.2(2) OLA 1957)

Take such care as is reasonable to see the visitor is reasonably safe for the purpose of the visit

OLA 1957—duty to children

Must be prepared for children to be less careful than adults (s.2(3)(a))—allurement principle

OLA 1957—skilled visitors

Can expect them to guard against risks ordinarily incident to their trade (s.2(3)(b))

Occupiers' Liability Act 1984—who is owed a duty?

Trespassers and non-visitors

OLA 1984—three conditions for duty to arise (s.1(3))

(a) Aware of danger; (b) Knows/believes non-visitor may be in vicinity; (c) Risk one against which reasonable to offer protection

OLA 1984—what damage is covered?

Personal injury only (not property damage)

Two-stage test for vicarious liability

(1) Was the tortfeasor an employee (or akin to employee)? (2) Was the tort committed in the course of employment?

Employee vs independent contractor—key factors

Control, integration into business, economic reality, mutuality of obligation, who provides equipment

Close connection test (Lister/Mohamud)

Employer liable for employee's wrongdoing (even criminal) if closely connected to their field of activities

Various Claimants v Morrisons (2020)

No vicarious liability where employee's act was aimed at harming the employer (personal vendetta)

Private nuisance—definition

Unlawful interference with a person's use or enjoyment of land

Rylands v Fletcher—elements

Non-natural use of land + bringing/accumulating something likely to cause harm if it escapes + escape + damage

Contributory negligence—effect

Reduces damages (not a complete defence) by the proportion the claimant contributed to their own harm

Volenti non fit injuria

Complete defence where claimant voluntarily accepted the risk with full knowledge—rarely succeeds