Theory of Tort Law

Question 1

Explain the public policy factors governing the imposition of a duty of care in negligence.

Answer 1

• Caparo 3-stage test only required in novel cases.
• To prevent floodgates opening to too many claims.
• Using 3rd element of Caparo test, decisions have been made that a duty doesn’t exist; when it isn’t fair, just + reasonable for duty to exist.
• Public policy reasoning seen in Hill v Chief Constable of Yorkshire: police were given immunity from being sued.
• Recent case of Robinson overruled Hill, police don’t owe an immunity for an omission, but owe a duty under negligence if harm/damage is caused by an act.

Question 2

Explain the policy factors governing the imposition of liability in negligence for pure economic loss + psychiatric injury.

Answer 2

Pure Economic Loss:
* Under Spartan Steel v Martin: while duty’s owed to C not to damage property (causing loss), there’s no duty to compensate loss of profit, as if this was allowed, there would be a significant increase in similar cases.
Psychiatric Injury:
* Secondary V’s have to prove further points than primary V’s to prevent floodgates opening too many claims.

Question 3

Explain the factors governing the objective standard of care in negligence. (breach of duty of care)

Answer 3

• D’s conduct is judged against if a reasonable person would’ve done the same in the same circumstances.
• Courts ignored D’s own characteristics (e.g. level of experience), in Nettleship v Weston: inexperienced driver judged against ordinary experienced driver.
• Justified by insurance cover for all motorists no matter the level of experience. Those at greater risk pay more insurance to reflect level of risk.

Question 4

Explain the granting of injunctions + balancing conflicting interests.

Answer 4

Injunction: requires an action to do something, or not do something.
* Roscoe Pound’s theory states that if there’s conflicting interest of both public + private interest, public interest always prevails.
* Miller v Jackson: private nuisance case, where the local community + cricket club had public interest, + the Millers had private interest. CoA decided in favour of public interest + injunction was awarded. Approves Pound’s theory that public interest prevails.
Injunctions only granted in nuisance cases (private/Rylands)

Question 5

Explain the nature + purpose of vicarious liability.

Answer 5

• Vicarious liability often applies in situations where there’s an employment relationship.
• D who causes damage is primarily liable, but doesn’t pay compensation.
  2 conditions: employee is employed, + acting in course of employment.
• Employer can be said to be receiving a benefit from employees work, only fair they accept burden of employees actions.
• Employer is responsible for making sure all employees are trained so that work is done safely.