Elements of a tort

Elements of a tort (negligence as an example)

 Duty of care
 Breach of Duty
 Damage
 Causation

 DBDC
Duty of care (DoC)

 Prior to Donoghue vs. Stevenson

 DoC was said to exist in specific situations only, e.g., a contract.
 D vs S established the idea of a general duty of care
 A court will find a duty of care if the claimant can show that the damage he suffered was
foreseeable; that there was proximity between himself and the defendant; and that in all
the circumstances it would be fair, just and reasonable to impose liability on the defendant.
 The Caparo test
 Lord Atkin in D vs S:
 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 so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when directing my mind to the acts or omissions which are
called in question.
Significance of the decision in Donoghue v
Stevenson
 a manufacturer of drinks owes a duty of care to the consumer not to cause injury by
negligently allowing foreign bodies to contaminate those products.
 negligence was confirmed as a separate tort in its own right;
 a claim for negligence can exist whether or not there is a contract between the
manufacturer and injured party;
 a claim for negligence will succeed if the claimant can prove:
 a duty of care is owed by the defendant to the claimant;
 a breach of that duty by the defendant;
 resulting damage which is not too remote;
 in order to establish the existence of a duty of care the ‘neighbour principle’, based on
reasonable foresight, must be applied.
Presentation topic

 The modern approach to duty of care established in Caparo Industries plc v Dickman
[1990] 2 WLR 358
Establishing Duty of care

 Situation falls within a category of duty that has already been established by precedent
 Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
 If not then it should pass the caparo trust
 Foreseeability (Palsgraf v Long Island Railroad Co [1928] 248 N.Y. 339.)
 Proximity (Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5)
 Justice (Marc Rich & Co v Bishop Rock Marine Co Ltd [1995] UKHL)
The Robinson Test

 Established duties of care:

 Medical Professionals to Patients: Bolam v Friern Hospital Management Committee [1957] 1
WLR 582.
 Road Users to Other Road Users: Nettleship v Weston [1971] 2 QB 691.
 Teachers to School Children: Carmarthenshire County Council v Lewis [1955] AC 549.
 Employers to Employees: General Cleaning Contractors v Christmas [1953] AC 180.
 Analogous situations?
Breach of duty and Damage

 Fault
 whether the defendant met the standard of care required by law when undertaking the
particular activity?
 Standard of care depends on circumstances of each case
 Proof of fault is dependent upon facts of a case
 Damage
 Legally recognized as damage
 Injuria sine damno & Damnum sine injuria
Causation and remoteness of damage

 Cause and effect

 Facts and experts based evidence to substantiate causation
 Remoteness*:
The rules state that the defendant will not be liable for damage which is too far removed from the
negligent act or omission because the defendant could not have foreseen the particular kind of damage
which occurred.
A loss is too remote unless its ‘type’ is reasonably foreseeable: The Wagon Mound (no 1) [1961] AC
388. This is assessed knowing the specifics of the breach. The relevant ‘type’ of harm is broadly
defined. For example, personal injury, property damage, psychiatric harm and economic loss are
‘types’ of loss.