Tort Law

• 1. The defendant owed them a legal duty of care

  A legal duty of care was first established in Donoghue v Stevenson’s neighbour principle in 1932 where a duty was owed by a manufacturer to a consumer of their product who suffered injury on drinking it because of decomposing snail. However the test developed incrementally to the current three-stage test in Caparo v Dickman 1990.

  
• Firstly, damage or injury must be a foreseeable result of the defendant’s actions, meaning the reasonable man would realise the risk.
• Secondly, it must be shown that there is proximity or closeness between the claimant and defendant.
• Finally, the courts must consider it to be fair, just and reasonable for a duty of care to exist in that situation.
• 2.Breach of care

  The law decides whether there has been a breach of duty by considering firstly the standard of care required, based on the characteristics of the defendant and secondly by weighing up the four main risk factors to decide if they breached it.
• The standard of care required of an ordinary person is that of the ordinary, reasonable person in that situation (Blyth v Birmingham Waterworks).
• This standard is higher for a professional who must reach the standard of a competent professional in that field (Bolam v Friern).
• It is lower for a child, as they must reach the standard of an ordinary, reasonable child of their own age (Mullin v Richards)
• For a learner, the standard is that of a trained person (Nettleship v Weston).
• The first risk factor to be considered is the likelihood or size of the risk. The higher the risk, the more care needs to be taken

  In Bolton v Stone there was a low risk of a cricket ball leaving the cricket ground so they did not breach their duty by having an existing 5m fence.

  In Hayley v London LEB there was a high risk of injury when a blind pedestrian fell into an unguarded hole.

  In Roe v MOH there was no known risk that tiny cracks in a syringe could contaminate anaesthetic with sterilising fluid and lead to paralysis.
• The second risk factor is whether the claimant has any special characteristics which would make the potential seriousness of the risk greater and require greater care.
• The third risk factor is the cost and practicality of precautions that could have been taken to guard against the risk

  This was shown in Latimer v AEC where putting sawdust down and notices was enough care when an oily residue was left on the floor following a flood. The risk did not justify closing down the factory.

  
• The fourth risk factor is any social/public importance or benefit that would justify taking greater risks.

  This was shown in Watt v Herts CC where the importance of saving lives outweighed the risk of injury to a fire-fighter when he took out the only available engine without heavy lifting equipment.
• 3.The breach of duty caused damage or injury to the claimant

  It must be shown that the breach of duty caused the claimant’s injury or damage in fact.

  This is shown using the “but for” test meaning “but for” the defendant’s actions this would not have occurred.
• in Barnett v Chelsea and Kensington Hospitals where “but for” workmen being misdiagnosed and the hospital failing to treat them, they would still have died as the level of arsenic in their tea was so high. The hospital’s breach of duty did not therefore cause their deaths in fact.

  
• Remoteness

  It must also be shown that the damage was not too remote from the breach. This means that the damage caused must be of a foreseeable type or it will be too remote and the claimant cannot claim for it.

  This was shown in The Wagon Mound case where an oil spill from a ship, came into Sydney harbour, where it mixed with debris and was ignited by sparks from nearby welding, causing damage to the harbour buildings. Fire damage to the buildings was not a foreseeable type of damage to result from an oil spill at sea so it was too remote from the breach.

  
• n Hughes v Lord Advocate, it was foreseeable that leaving an open manhole, surrounded by paraffin lamps may cause burn injuries, therefore it did not matter that the way in which they occurred was not foreseeable. Young boys accidentally knocked the lamp into the hole, where it mixed with gas below and exploded, causing them injuries, which were not too remote from the breach.
• The thin skull rule applies in tort causation – the defendant must take the claimant as he finds them, so they are liable for the full extent of the damage even if it was made worse by a pre-existing condition.

  This was shown in Smith v Leech Brain where a lip injury was a foreseeable result of splashed liquid metal, so it did not matter that it was not foreseeable that this would activate pre-cancerous cells in the lip, they were still liable.