Tort Law

Tort Law

1. In proving negligence you must:

   • Duty of Care
     • Road users have an existing duty of care for all passengers, road users and pedestrians.
       • Donoghue v Stevenson
         • Neighbour Test by Lord Atkin: A duty is owed to persons who are directly affected by your acts or ommissions so much that you should have them in your contemplation
     • Medical professionals have an existing duty of care to act for the patient
     • No Duty to act in English law
   • Breach of Duty
     • Breach of duty in negligence liability may be found to exist where the defendant fails to meet the standard of care required by law. Once it has been established that the defendant owed the claimant a duty of care, the claimant must also demonstrate that the defendant was in breach of duty. The test of breach of duty is generally objective
       • 1. The standard of care for road users is to meet the requirement of a reasonable competent driver of skill
         • Nettleship v Weston
       • 2. The well-being of the driver is important
         • Roberts v Ramsbottom
           • old gentleman suffered a stroke whilst driving where he collided with a car, aware of his condition he carried on driving where he again crashed.
         • Mansfield v Weetabix
           • due to his condition it prevented D from meeting the standard of care. Found not liable as his condition could not have reasonably been aware of and he was unware of it himself.
       • Professionals
         • The standard of care applied to professionals with a particular skill or expertise is that of a reasonable person with same skill. A medical profession is expected to show greater degree of skill to a patient than the reasonable man.
           • Bolam v Friern
             • while undegoing treatment the defendant did not give any relaxant drugs to the patient. The claimant suffered a fracture. Doctor held not in breach of duty as he there were doctors who would have acted as he did, thus not being outside the accordance of professionalism
             • AFFIRMED IN SIDEAWAY
           • Chester v Afshar
             • Needed surgery which was 50/50 percent going to worsen her back. Had operation and was worsened
               • failed to warn the patient of the magnitude of risk. Breached duty as was under an obligation to consult as this may have made her change her mind
   • Causation
     • Causeation is determined by using the BUT FOR test.
       • Froom v Butcher
         • The Claimant was injured in a car accident due to the negligence of the Defendant. The Claimant was not wearing a seat belt. There was disagreement as to the apportionment of loss under the Law Reform (Contributory Negligence) Act 1945
       • Barnett v Chelsea & Kensington
     • Thin Skull Rule
       • Smith v Leech Brain
         • Brought an action under Fatal Accidents Act for death of her husband after a burn resulted in cancer causing death 3 years later.
           • The burn was foreseeable concequence of death and was held liable for the negligence
     • Problem finding causation?
       • McGee v National Coal Board
         • claimant covered in brick dust which caused him to develop disease from asbestos. Sbowers at work would have reduced the chance of contracting disease however wouldnt have eliminated it. It was sufficent for C to show that D's breach made the risk of injury more probabl
   • Remoteness
     • The damage suffered must not be too remote. This concerns whether the damage was foreseeable to happen as a result of the acts or omissions.
       • The Wagon Mound no.1
         • the correct test for remotness of damage is reasonable forseeability. The court are only interested in damage that is foreseeable .
           • Unforeseeable Harm
             • Bolton v Stone
               • cricket ball hit women. 5 or 6 balls were hit out of the ground over the 30 years, unforseeable to injure persons.
                 • No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances. The cricket ground had been there for 90 years without injury and provided a useful service for the community.