Tort Law - Personal Injury/Damage Flashcards
(24 cards)
What is a tort?
A tort is defined in Blyth v Birmingham Waterworks Co as “the omission to do something which a reasonable man would do, or doing something which a reasonable man would not do.” To succeed, three elements must be proven: 1. Duty of care 2. Breach of duty 3. Damage. If D is found liable, the court will usually award damages as a remedy.
What is a duty of care?
D owes a duty to take reasonable steps to avoid causing personal injury or property damage to C.
How is duty of care established in new or novel situations?
Apply the Caparo v Dickman 3-part test: 1. Foreseeability 2. Proximity 3. Fair, just and reasonable.
What is foreseeability in the Caparo test?
Would a reasonable person in D’s position have foreseen the risk of harm to someone in C’s position? Objective test – it’s based on a reasonable person, not D personally.
Case: Kent v Griffiths – ambulance delay foreseeable harm → duty owed.
What is proximity in the Caparo test?
There must be closeness in time, space or relationship between D and C.
Case: Bourhill v Young – no proximity as C did not witness the accident and was not physically close.
What does ‘fair, just and reasonable’ mean in the Caparo test?
Courts avoid imposing duty where it would: 1. Burden public services (e.g., police) 2. Open floodgates to litigation.
Case: Hill – no duty owed by police to potential victims; Case: Robinson – duty exists when harm is caused by police’s positive act; Case: Sumner v Colborn – no duty to landowners for highway visibility; too many claims would follow.
When do you apply the Caparo test?
Only in new and novel situations. If the duty is already well-established (e.g., road users), apply that instead.
Case: Robinson – Caparo is only used if there’s no existing duty.
What is breach of duty?
D breaches their duty if they fail to meet the standard of care expected of a reasonable person in the same situation.
Case: Blyth v Birmingham Waterworks Co – breach occurs by: 1. Doing something a reasonable person wouldn’t do 2. Failing to do something a reasonable person would do.
How is the standard of care judged for different types of defendants?
• Ordinary person – judged by an ordinarily competent person in that task. • Learner – held to the standard of a competent person, not a learner. • Professional – compared to a reasonably competent person in their field. • Children – judged against a reasonable child of the same age.
What are the 5 risk factors that affect the standard of care?
- Size of Risk 2. Special Characteristics of Claimant 3. Practicality of Taking Precautions 4. Social Utility of the Risk 5. Unknown Risk.
What is the size of risk factor?
Higher the risk of harm = higher the standard of care.
Case: Bolton v Stone – risk of injury was extremely low → no breach.
What is the special characteristics of claimant factor?
If C has a known vulnerability, a higher standard is required.
Case: Paris v Stepney – C had one eye; D failed to provide goggles → breach.
What is the practicality of taking precautions factor?
If it’s easy or cheap to prevent harm, failure to do so may be a breach.
Case: Latimer v AEC – D took all reasonable steps to reduce flood danger → no breach.
What is the social utility of the risk factor?
If D’s action has a social benefit, the standard may be lowered.
Case: Watt v Hertfordshire CC – fireman injured during emergency → benefit outweighed risk.
What is the unknown risk factor?
If the risk was not known at the time, there is no breach.
Case: Roe v Minister of Health – contamination risk not known in 1947 → no breach.
What are the two parts of the ‘Damage’ element in negligence?
To prove damage, the claimant must show:
1. Factual causation
2. Legal causation (remoteness of damage)
Both must be proven for D to be liable.
What is factual causation?
Factual causation is determined using the “but for” test:
But for the defendant’s breach, would the claimant have suffered the harm?
• If the answer is yes (C would have suffered anyway), → no factual causation → D not liable.
• If the answer is no (C wouldn’t have suffered without D’s act/omission), → factual causation is established.
Case example for factual causation – Barnett
Barnett v Chelsea and Kensington Hospital – C died from arsenic poisoning. Doctor failed to treat him.
Held: No factual causation – C would have died anyway due to the amount of poison in his system.
→ D was not liable.
What is legal causation (remoteness of damage)?
After factual causation is proven, courts consider whether the damage was too remote.
D is only liable if the type of damage was a reasonably foreseeable consequence of the breach.
Case example for legal causation – Wagon Mound
The Wagon Mound (No. 1) – Oil spill caused fire damage.
Held: Fire damage was not reasonably foreseeable, so D was not liable.
→ The damage must be foreseeable to a reasonable person.
What did Bradford v Robinson Rentals say about legal causation?
Bradford – C got frostbite after a long drive in a van with no heating.
Held: Exact extent of damage (frostbite) didn’t need to be foreseeable — just the type (cold-related injury).
→ D was liable.
What did Hughes v Lord Advocate say about foreseeability?
Hughes – Boy got burned by an explosion after knocking over a paraffin lamp.
Held: Although the explosion wasn’t foreseeable, burns were.
→ D was liable because the type of harm was foreseeable, even if the way it happened wasn’t.
What is the Thin Skull Rule?
An exception to the usual rules on remoteness.
If C has a pre-existing condition or vulnerability that makes their injuries worse, D is still fully liable.
You must take your victim as you find them.
Case example for the Thin Skull Rule – Smith v Leech Brain
Smith v Leech Brain – C had a pre-cancerous condition. Burn at work triggered cancer.
Held: D was liable for the full extent of the damage, even though C was more vulnerable.
→ Thin skull rule applied.
