Chapter 7 Law of Torts
Chapter 7 Law of Torts
Chapter 7 Law of Torts
of Tort
Denition
Blyth
v
Birmingham
Waterworks
Co
Tort
of
Negligence
The
omission
to
do
something
(D09
Q8)
which
a
reasonable
man,
guided
upon
those
considerations
which
In
order
to
succeed
in
an
action
in
the
tort
of
negligence,
ordinarily
regulate
the
conduct
a
plainti
is
required
to
prove
the
following.
of
human
aairs
would
do,
or
doing
something
1. that
the
defendant
owed
the
plainti
a
duty
of
care;
which
a
prudent
and
2.that
the
defendant
breached
that
duty
of
care;
and
reasonable
man
would
3.that
the
plainti
suered
damages
as
a
consequence
of
that
breach.
not
do.
Duty
of
Care
- A
person
has
a
duty
to
take
reasonable
steps
to
avoid
acts
or
omissions
which
he
can
reasonably
foresee
are
likely
to
injure
his
neighbour.
- Neighbour
Lord
Atkins
-
persons
who
are
so
closely
and
directly
aected
by
the
defendants
act
or
omission
that
the
defendant
must
have
him
in
mind
when
he
does
the
act
or
omission
in
question.
Donoghue
v
Stevenson
Resultant Damage
Duty of Care
Anns
Test
(2
Stage
Test)
(Lord
Wilberforce
in
Anns
v
Merton
London
Borough
Council)
- First
Stage
It
must
be
determined
whether
there
is
a
sucient
relationship
of
proximity
or
neighbourhood
between
the
alleged
tortfeasor
and
the
person
who
has
suered
the
loss.
If
it
can
be
ascertained
that
the
tortfeasor
should
have
foreseen
that
carelessness
o
his
part
may
cause
damage
to
the
other
party,
prima
facie,
a
duty
of
care
would
be
established.
- Second
Stage
if
the
answer
to
the
above
is
in
the
armative
(yes),
the
court
then
has
to
examine
whether
there
are
any
considerations
that
may
negate,
reduce
or
limit
the
scope
of
the
duty,
or
the
group
of
persons
to
whom
the
duty
will
be
imposed.
Standard
of
Care
1. The
level
of
Intelligence
and
Knowledge
-
A
reasonable
man
is
sometimes
described
as
the
man
on
the
street/
man
on
the
Clapham
Omnibus
2.Professions
and
Skills
- A
professional
will
not
be
deemed
to
be
negligent
if
he
has
taken
steps
that
would
normally
be
taken
by
others
who
are
in
the
same
position
(or
reasonable
person
with
the
relevant
skills).
- Ang
Tiong
Seng
v
Goh
Huan
Chir
(Std
of
a
sinseh
doctor;
however,
in
this
case,
the
sinseh
was
held
liable
as
he
was
careless
in
his
treatment
of
the
plainti)
- Whitehouse
v
Jordan
(error
of
clinical
judgement
is
not
necessary
indicative
of
negligence;
not
done
on
purpose)
- Wilsher
v
Essex
Area
Health
Authority
(std
of
care
should
be
related
to
the
post
of
the
defendant
and
not
his
individual
level
(jr/sr)
of
experience)
3.Practice
and
knowledge
at
the
time
of
the
breach
- The
standard
of
care
of
a
professional
is
judged
at
the
knowledge
available
at
the
time
of
the
breach.
- Roe
v
Mister
of
Health
(the
CoA
held
that
the
std
of
care
must
be
based
on
the
current
knowledge
at
the
time
of
the
alleged
breach
and
not
at
the
time
of
trial)
4.Probability
of
the
injury
occurring
- It
is
presumed
that
a
reasonable
man
takes
greater
precautions
when
the
risk
of
injury
is
high.
- Boulton
v
Stone
(A
person
must
only
take
reasonable
steps
against
risks
that
may
materialize)
- Glasgow
Corporation
v
Taylor
(A
local
authority
was
held
negligent
when
children
ate
poisonous
berries
in
a
park.
A
warning
notice
was
not
considered
to
be
sucient
to
protect
children.)
Resultant Damage
Causation in Fact
Causation in Law
Remoteness
Remoteness
of
Damage
- Direct
Consequence
Test
Once
a
person
has
committed
a
tort,
he
will
have
to
bear
all
the
losses
that
arise
as
a
consequence
thereof.
Re
Polemis
and
Furness,
Withy
&
Co
Ltd.
(Held
-
the
Charterers
the
patient
died
of
arsenic
poisoning.
Held
-
While
the
doctor
was
negligent,
the
negligence
did
not
cause
the
patients
death
(he
would
have
died
anyway))
- Swamy
v
Mathews
&
Anor
(Held
-
the
paralysis
was
not
caused
by
the
negligence
of
the
doctor
and
that
the
doctor
was
not
negligent.)
Concurrent
Causes
- Sometimes
2
or
more
wrongful
acts
may
result
in
damage
and
the
party
responsible
for
each
act
will
be
responsible
for
the
whole
damage.
This
is
due
to
the
fact
that
act
is
is
directly
liable
for
the
damage.
- Fitzgeral
v
Lane
(D1
and
D2
were
held
jointly
liable)
were
liable
for
all
the
loss
which
was
a
direct
consequence
of
their
negligence)
- Smith
v
Leech
Brain
&
Co
(The
defendant
was
held
liable
on
the
principle
that
a
tortfeasor
has
to
take
his
victim
as
he
nds
him)
Intervening
Acts
- Act
of
the
Plainti
McKew
v
Holland,
Hannen
&
Cubitts
(The
plaintis
conduct
was
unreasonable
and
was
therefore
a
novus
actus
interveniens.
It
would
unfair
to
expect
the
defendant
to
pay
for
the
further
injuries
that
was
occasioned
by
the
plaintis
own
rashness.
- Contributory
Negligence
This
is
where
the
plainti
negligently
contributes
to
their
own
injuries
and
the
defendant
will
usually
claim
the
defense
of
contributory
negligence.
Sayers
v
Harlow
Urban
District
Council
(Held
-
it
was
reasonable
for
the
plainti
to
have
tried
to
escape,
but
she
had
been
foolish
in
the
way
in
which
she
attempted
to
do
so)
Contributory
Negligence
- The
plaintis
claim
will
be
subsequently
or
proportionately
reduced
if
the
damage
suered
was
a
result
of
negligence
by
the
plainti.
- Section
12
of
the
Civil
Law
Act
1956
where
any
person
suers
damage
as
the
result
partly
of
his
own
fault
and
partly
of
the
fault
of
any
other
person
or
persons,
a
claim
in
respect
of
that
damage
shall
not
be
defeated
by
reason
of
the
fault
of
the
person
suering
the
damage,
but
the
damages
recoverable
in
respect
thereof
shall
be
reduced
to
such
extent
as
the
Court
thinks
just
and
equitable
having
regard
to
the
claimant's
share
in
the
responsibility
for
damage.
- 3
Main
Elements
a. The
plainti
has
a
duty
of
care
for
himself
to
act
reasonably
so
as
to
avoid
damage
to
himself.
b. The
plainti
had
breached
this
duty
by
acting
unreasonably.
c. The
act
or
omission
which
was
reasonably
foreseeable
must
be
the
cause
of
his
injury.
Inevitable
Accident
- The
plainti
has
to
prove
that
the
defendant
had
acted
unreasonably.
- The
burden
of
proof
is
on
the
defendant
to
show
that
he
has
acted
reasonably
under
the
circumstances
and
the
accident
would
have
happened
anyway
as
the
damage
is
not
one
that
is
foreseeable
nor
can
it
be
avoided
by
taking
any
reasonable
precautions.
- Stanley
v
Powell
(the
D,
who
was
a
member
of
a
shooting
party
red
at
the
bird
and
the
bullet
glanced
o
a
tree
and
hit
the
P.
However,
the
court
held
that
the
defendant
was
not
liable
as
the
accident
was
inevitable)
- Gough
v
Thorne
(Lord
Denning
-
A
very
young
child
cannot
be
guilty
of
contributory
negligence.
Unless
he
or
she
is
of
such
an
age
as
reasonably
to
be
expected
to
take
precautions
for
his
or
her
own
safety.)