Optimize Tort Law

Brendan Greene

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315410234
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto del risarcimento per fatto illecito

The Optimize series is designed to show you how to apply your knowledge in assessment. These concise revision guides cover the most commonly taught topics, and provide you with the tools to:

Understand the law and remember the details

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• using diagrams and tables throughout to demonstrate how the law fits together

Contextualise your knowledge

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• identifying and explaining how to apply legal principles for important cases

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• providing cross-references and further reading to help you aim higher in essays and exams

Avoid common misunderstandings and errors

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• identifying common pitfalls students encounter in class and in assessment

Reflect critically on the law

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• identifying contentious areas that are up for debate and on which you will need to form an opinion

Apply what you have learned in assessment

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• presenting learning objectives that reflect typical assessment criteria

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• providing sample essay and exam questions, supported by end-of chapter feedback

The series is also supported by comprehensive online resources that allow you to track your progress during the run-up to exams.

1 Negligence: Duty of Care

Revision objectives

Understand the law

• Can you outline the three requirements to establish a duty of care in negligence? • Can you explain the general rule on liability in negligence for omissions and the exceptions to it? • Can you explain the circumstances when someone is liable in negligence for the acts of third parties? • Can you explain the legal position of local authorities in negligence?

Remember the details

• Can you explain the test of foreseeability in negligence? • Can you explain proximity using cases to illustrate your answer? • Can you explain the liability of the police in negligence? • Can you distinguish between the liability of the fire and ambulance services in negligence?

Reflect critically on areas of debate

• Can you explain the expansion of the duty of care and the later approach of development by incremental steps? • Can you explain the difficulties of suing the police for negligence?

Contextualise

• Do you understand how foreseeability, proximity and just, fair and reasonableness work together to either restrict or expand the duty of care? • Do you understand how policy is used in determining if a duty of care exists?

Apply your skills and knowledge

• Can you answer the essay question at the end of this chapter?

Chapter Map

Introduction

If someone suffers harm as a result of another person’s careless act they may be able to claim in the tort of negligence. Learning about negligence is like doing a jigsaw puzzle because it is only when all the ‘pieces’ of negligence have been studied that a clear picture emerges of how they all fit together.

To successfully claim in negligence the claimant must establish the following three requirements.

❖ Does the defendant owe a duty of care to the claimant?

❖ Is the defendant in breach of that duty?

❖ Is the defendant’s breach the cause of the damage to the claimant?

If these three requirements are met the defendant is liable in negligence. The modern law of negligence was established in the following famous case.

Case precedent – Donoghue v Stevenson [1932] AC 562

Facts: The claimant and her friend went to a café and the friend bought the claimant a bottle of ginger beer. The claimant drank some and when she poured the rest into her glass the remains of a snail floated out of the bottle and the claimant was violently sick. She sued the manufacturer for negligence.

Principle: The House of Lords held that a manufacturer owes a duty of care to the consumer who he can foresee will be injured if the product is defective. The manufacturer had negligently let the snail into the bottle and there was no possibility of an intermediate examination before the consumer drank it as the ginger beer was in a dark glass bottle. The manufacturer was liable.

Application: The original precedent was applied by the courts using the neighbour principle to apply to a wide range of situations such as providers of services, drivers etc.

In Donoghue v Stevenson Lord Atkin set out the neighbour principle.

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’

The development of negligence

Donoghue v Stevenson created a general principle of liability for negligence, the neighbour principle. In the years after this the courts gradually extended the principle to cover new duty situations. In Carmarthenshire County Council v Lewis [1955] AC 549 a four year old child left the school through an unlocked gate, and walked 90 metres down the road before running in front of a lorry causing it to crash and kill the driver. There was proximity between the council and the driver and the council had control of the child. They owed a duty of care to the driver and were liable in negligence.

In Home Office v Dorset Yacht Co [1970] AC 1004 Lord Reid made the following statement about the neighbour principle,

‘I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.’

Lord Reid was saying that in new situations the ‘neighbour principle’ should apply unless there was a reason why it should not apply. This was an attempt to create a single general principle to be used to determine whether a duty of care was owed in negligence.

The courts used this approach to expand the tort of negligence during the 1970s and 1980s. In Anns v Merton London Borough Council [1977] 2 All ER 492 Lord Wilberforce refined this single principle into a two-stage test.

Stage 1

Is there a relationship of proximity between the claimant and defendant such that the defendant ought to contemplate that his careless act will cause harm to the claimant?

If the answer is ‘yes’ then a second question is asked.

Stage 2

Are there any factors which would end the duty or restrict it?

If the answer to this question is ‘no’, then a duty of care is owed.

In Caparo v Dickman [1990] 1 All ER 568 in the House of Lords Lord Bridge said that the courts were moving away from the search for a single general principle of negligence. He cited Brennan J from the Australian case of Sutherland Shire Council v Heyman (1985) 157 CLR 424:

‘the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative or to reduce or limit the scope of the duty or the class of the person to whom it is owed.’

This approach is to develop negligence ‘step by step’ through using existing precedents.

In Caparo the House of Lords moved away from the search for a single general principle which could be used to establish a duty of care. It also changed from the assumption a duty was owed unless there was a good reason why not, to the position where a duty had to be established. The effect of this was to restrict the development and expansion of negligence.

Common Pitfall

When answering problem questions apply the three-stage test of duty from Caparo. The two-stage Wilberforce test and Lord Reid’s attempt to have a one stage general test for duty of care are only relevant to questions on the history or development of negligence.

Duty of care

Lord Bridge set out a three-stage test for establishing whether a duty of care existed.

This became the universal test to establish a duty of care. All three requirements have to be met. The three requirements are not mutually exclusive and there are relationships and overlaps between them. For example, if somethi...