WEEK 1 - INTRO TO TORT

WEEK 1 – INTRO TO TORT LAW AND NEGLIGENCE

What Is Tort Law?

· A tort is a civil wrong – a way someone can be sued for causing harm
o Tort law deals with situations where one person’s actions (or failure to act)
cause harm to another – and the victim seeks compensation in civil court
o It’s about holding people accountable in private law (not criminal courts)
o The person who’s harmed (Claimant, C) can sue the person who caused the
harm (Defendant, D)
· Examples of Harms in Tort:
o Physical injury or death
o Mental distress
o Property damage
o Pure economic loss
o Violation of rights (e.g. privacy, reputation)

Types of Torts and Protected Interests

Tort Interest Protected

Negligence Physical integrity
Battery Psychological wellbeing
Nuisance Enjoyment of land
Defamation Reputation
False Imprisonment Liberty
Trespass to land Ownership/use of land
Product liability Consumer safety

Key Functions of Tort Law

· Compensation – make the injured party “whole” – to help victims recover losses (main
goal)
· Deterrence – discourage risky, careless or harmful behaviour
 · Justice/fairness – hold wrongdoers accountable
· Loss-spreading – sometimes lets insurance or companies bear costs
· Accountability – to give victims a voice
· Corrective justice – to fix unfairness caused by another’s conduct

“Compensation Culture?” – The McDonald's Coffee Case – Liebeck v

McDonald’s Restaurants [1992]
This was raised as a discussion point:
Woman sued McDonald’s after being burned by hot coffee. Some say it’s “silly
litigation,” others say it was a valid claim.
This debate helps illustrate the purpose and limits of tort law:

● Should everyone be allowed to claim for harm?

● Where do we draw the line?

Focus on Negligence
Why does negligence matter?
· It is the most common tort in practice / most commonly tested tort (especially in
problem questions)
· Its rules influence other torts, so it’s foundational

Core Structure of Negligence

· Winfield’s definition of tort is:
o ‘Tortuous liability arises from the breach of a duty primarily fixed by law; this
duty is towards persons generally and its breach is redressible by an action
for unliquidated damages.’
o In other terms, negligence is the breach of a legal duty to take care, resulting
in damage to the claimaint’

Core Structure of Negligence

· Negligence is the breach of a legal duty to take care, resulting in damage to the
claimant
· We prove negligence in 3 steps:
o D owed C a duty of care
o D breached that duty
o C suffered damage caused by that breach

Element 1: the Fault Principle

· Negligence is a conduct-based tort:
o D must have done something wrong – careless, not criminal
o If D took all reasonable care not negligent
 o No fault = no liability (this is not strict liability)

Historical Development of Negligence

Early Days

● Tort law used to be based on specific roles (e.g. innkeepers, carriers)

● No general idea of a “duty to take care”
Langridge v Levy (1837)

● Dangerous gun sold to father → injured son

● Court allowed claim even without a contract
Heaven v Pender (1883)

● Brett MR suggested a general duty might exist... but wasn’t fully accepted yet

Donoghue v Stevenson [1932]

· This case created the modern law of negligence
· Ms Donoghue drank ginger beer with a decomposed snail in it got sick
· She had no contract with the manufacturer – only with the café
· Issue: Could she still sue?
· Held: yes. Even without a contract, the manufacturer owed her a duty of care

Lord Atkin’s “Neighbour Principle”

· "You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour."
· Your neighbour = anyone who is closely and directly affected by what you do.
· This created a general principle of duty

Why “Duty” Matters So Much

· The duty of care is:

o A legal obligation
o Used as a control device to limit liability
o Decided by the judge (not the jury)
o Needed before the court even considers breach or damage
o No duty = No case.

Why Donoghue Was Revolutionary

· Ended the idea that you must have a contract to sue

 · Created the foundation for future negligence law
· Laid the groundwork for tests like Caparo

Negligence = Duty + Breach + Causation + Damage

Recap

· Negligence is a fault-based tort. It occurs when a person breaches a legal duty to

take care, causing damage to another.
· The essential elements are:
o Duty of Care
o Breach of Duty
o Causation (factual + legal)
o Damage
· Tort law exists to compensate harm, deter careless conduct, and deliver justice where
wrongs occur.

Week 2 - Duty of Care

Negligence Element 1: Duty of Care

What Is a Duty of Care?

● A duty of care is the legal obligation to avoid conduct that could harm others/causes
foreseeable harm to others..
● It is the first element in establishing negligence:
1. Duty of care
2. Breach of duty
3. Causation (factual and legal)
4. Damage
● Crucially, duty of care is a question of law, not fact - decided by the judge, not the
jury.
● If the court finds that no duty is owed, then the negligence claim fails immediately —
no matter how careless the defendant was

Key Features:

● Duty is not owed to the world at large, but to individuals or a class foreseeably
affected.
 ● The duty is to act with reasonable care, not perfection.
● Once a duty is found, courts consider if it was breached, and whether damage was
caused.

When is a Duty of Care Owed?

● In most everyday cases (e.g. road accidents), it's unproblematic — duty is

automatically recognised.
● But when it's not obvious, courts go through legal tests to decide.

Rule of Thumb: If D causes physical harm through a direct and positive act, they almost
always owe a duty.

Policy Reasons to Deny Duty of Care

Sometimes the court might refuse to impose a duty of care even if there’s harm, because of
public policy:

Policy Concern Case Example

Floodgates (too many claims) Hill v Chief Constable of West Yorkshire
[1989]
Costs to society McFarlane v Tayside Health Board
[2000] – healthy child = not
compensable
Insurance strain The Nicholas H – classification society
not liable
Conflict of duties e.g. Police can’t protect every potential
victim

Function of the Duty of Care: A Legal Filter

● The duty of care filters out unmeritorious (claims, applications, or proceedings that are
lacking in merit or substance) claims:
● Helps courts strike out claims before trial where no arguable duty exists.
● Operates as a “control device” to limit the scope of liability.
● Encourages early resolution — if there's no duty, there's no claim.
Types of Harm Recognised in Negligence

A duty of care may arise in relation to:

● Physical injury — most straightforward category.

● Psychiatric injury — must meet extra legal tests (see Alcock).
● Property damage — established duties exist (e.g. occupiers).
● Economic loss — more limited (see Spartan Steel, Hedley Byrne).

When Is Duty of Care Unproblematic?

● Where physical harm is caused by a direct, positive act, courts usually find duty
automatically.
● Example: car accidents, slipping on supermarket floors, etc.
● These are “established categories” — you don’t need to reinvent the wheel.

Why Courts Refuse to Impose Duty (Policy Concerns)

Courts are cautious about extending duties too far due to:

● Floodgates – concern over opening endless claims.

● Insurance impact – on public bodies or professionals.
● Social utility – not wanting to chill legitimate activity (e.g. policing, medicine).
● Judicial manageability – vague, unclear duties are hard to define/enforce.

Key case: McFarlane v Tayside Health Board [2000] — parents couldn’t recover for the costs
of raising an unplanned child; court avoided expanding duty too far into controversial territory.

Historical Evolution of Duty of Care

1. Donoghue v Stevenson [1932]

● Lord Atkin’s Neighbour Principle:

“You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour.”
● Defined ‘neighbour’ as someone closely and directly affected by your actions.
● Removed the need for a contract — manufacturer owed duty directly to consumer.
● Foundation of modern negligence law.
● Lord Macmillan: “The categories of negligence are never closed.”

2. Anns v Merton LBC [1978] - Two-Stage Test

● Lord Wilberforce created the two-stage test:

 1. Is there proximity so that a prima facie duty arises? Yes = prima facie duty
2. Are there any policy considerations to negate that duty?
● Radical expansion of liability — allowed duty wherever harm was foreseeable.
● Foreseeability = proximity, which courts later criticised.
● Prima facie duty - a duty that is binding or obligatory, other things being equal

Led to overreaching liability (e.g. Junior Books), so courts retreated.

3. Caparo v Dickman [1990] - Three-Stage Test

● Overruled Anns in substance (Anns formally overruled in Murphy v Brentwood [1991]).

● Introduced a more restrictive three-stage test:
a. Foreseeability of harm (low threshold).
b. Proximity between claimant and defendant.
c. Is it fair, just and reasonable to impose a duty?
● Courts returned to using recognised categories.
● Emphasised the incremental development of law — built on prior analogies, not
judicial activism.
● Used for new/unusual cases, not all cases.
a. Example: Palsgraf v Long Island Railroad [1928] – a woman hit by falling
scale after fireworks exploded → not foreseeable = no duty.

Caparo Test Breakdown

Foreseeability

● Was the general kind of harm foreseeable?

● Easy threshold — if the harm was a predictable consequence of D’s act, this is met.
● See Bourhill v Young [1943] – C’s miscarriage not foreseeable after hearing the
accident.

Proximity

● More than physical closeness — looks at the relationship between parties.

● Requires C to be someone D ought to have had in contemplation.

Fair, Just and Reasonable

● Purely normative/policy-based discretion.

● Courts ask if duty would have undesirable effects on society (e.g., excessive liability on
public authorities).
4. Robinson v Chief Constable of West Yorkshire [2018] - Back to Precedent

Facts: Elderly woman knocked over by police during arrest → sued for injury

Held: Police owed a duty — this wasn’t a novel case.

● Lord Reed rejected the idea of a universal Caparo test.

● Courts should develop new duties incrementally, by analogy with established cases.
● Duty exists where it has been recognised before — no need to apply Caparo formula.
● Caparo was never meant to be a test, but a summary of how courts reason.

Reoriented law back to common law development based on precedent.

5. Darnley v Croydon NHS Trust [2018]

● Confirmed that courts no longer look for a universal test.

● Focus is on established categories and incremental analogy.
● Emphasis on coherence and caution in creating new duties.

Summary Table: Evolution of Duty of Care

Case Test Introduced Impact

Donoghue v Stevenson Neighbour principle Birth of modern negligence

Anns v Merton Two-stage test Massive expansion, later rejected

Caparo v Dickman Three-stage test Cautious, structured reasoning

Robinson v CC West Incremental development Emphasis on precedent &

Yorkshire analogy

Current Approach: Incrementalism

● Courts do not use Caparo as a fixed checklist.

● Instead, follow this order:
1. Has a similar duty been recognised before? If yes, the duty exists.
2. If not, is there a close analogy? If so, duty may be extended.
3. If completely novel, the court considers policy reasons, but cautiously.
 Think like the courts: develop law case-by-case, not with sweeping theory.

Common Examples of Established Duties

● Road user to other road users

● Doctor to patient
● Manufacturer to consumer
● Employer to employee
● Teacher to pupil
● Occupier to lawful visitor
● Solicitor to client
● Rescuer to endangered person (limited)
● Police to informants or vulnerable victims (only in narrow circumstances)

WEEK 3 – BREACH OF DUTY (NEGLIGENCE)

Where Are We in the Negligence Test?

· Negligence = Duty + Breach + Causation + Damage

· This week is all about:
o What is the required standard of care?
o Did the defendant fall below it?

PART 1: THE STANDARD OF CARE

General Rule = Reasonableness

· The law asks:

o Did the defendant act as a reasonable person would?
Not perfection. Just what an ordinary, prudent person would do in those
circumstances.
· “Negligence is the omission to do something which a reasonable man … would do.”
o (Blyth v Birmingham Waterworks [1856])
· The “reasonable person” = the man on the Clapham omnibus

Objective Test (NO personal excuses)

 · Nettleship v Weston [1971]
Learner driver crashed. Court said: learners must meet the same standard as
qualified drivers.
· Key Point: The law doesn’t care if you’re inexperienced or tried your best.
o Wilsher v Essex AHA [1987]
Junior doctor treated a baby. Still judged by the standard of a qualified
doctor.
Suppressed Standards (Exceptions)
Some people aren’t held to the full adult standard:
1. Children
Judged by what a reasonable child of the same age would do.

● Mullin v Richards [1998] – two girls play-fighting with rulers. Eye injury. No breach – it
wasn’t foreseeable for a 15-year-old.
2. Disability/Mental illness

● If D knows about the condition = held to normal standard

– Roberts v Ramsbottom [1980]: driver had a stroke → breach
● If D doesn’t know = no breach
– Mansfield v Weetabix [1998]: driver had hypoglycaemia → no breach
● Schizophrenia: Dunnage v Randall – D burned someone during an episode → still
liable
3. Emergencies and Sports

● Lower standard in split-second emergencies

– Das Intel v Manley [2002]: swerved to avoid pedestrian → no breach
● Sports: no breach if conduct was within rules of the game
– Wooldridge v Sumner [1963] – horse kicked photographer → no breach

PART 2: PROVING BREACH

Once we know the standard, we must ask: Did D fall below it?

A. Probability of Injury
How likely was the harm?

● Bolton v Stone [1951]

Cricket ball escaped the field 6 times in 30 years. Fence in place.
No breach – low probability
● Haley v London Electricity Board [1965]
Blind man fell into a hole. Only a hammer used as a warning.
Breach – foreseeable that blind people might be harmed
B. Seriousness of Harm
How bad would it be if it happened?
 ● Paris v Stepney BC [1951]
Worker had one good eye. No goggles.
Breach – special vulnerability = more care required

C. Cost of Precautions
Could D have avoided the harm reasonably?

● Latimer v AEC [1953]

Slippery floor treated with sawdust.
No breach – to close the factory would be unreasonable
● Goldscheider v Royal Opera House [2019]
Music caused hearing damage.
Breach – had funds for proper precautions

D. Social Value of Activity

Was the risk taken for a good reason?

● Watt v Hertfordshire CC [1954]

Fire engine rushed with unsecured jack to save a woman.
No breach – saving a life justified the risk
● Compensation Act 2006, s.1
Court should consider whether requiring more precautions would discourage desirable
activities
●
● Social Action, Responsibility and Heroism Act (SARAH Act) 2015, s.3
Judges must consider whether D acted heroically to protect others

The Balancing Test (Learned Hand Formula)

Used for ordinary breach of duty cases (not professional negligence)
From US v Carroll Towing [1947]:

It's a cost-benefit analysis. The court asks:

Should the defendant have done more to prevent the harm?
To answer that, the court balances:

● the likelihood of harm (P = Probability)

● the severity of that harm (L = Loss)
● against the burden or cost of taking precautions (B = Burden)

If B < L × P → there’s a breach

If B > L × P → no breach
Where:
 ● B = Burden of precaution
● L = Seriousness of harm
● P = Probability

Example 1: Bolton v Stone [1951]

● C hit by a cricket ball leaving the ground.

● Only happened 6 times in 30 years
● Fence was already 17ft high
● Making the field completely safe would be very expensive
Probability (P) = low
Loss (L) = serious injury
Burden (B) = very high
So, B > P × L → No breach

Example 2: Paris v Stepney [1951]

● C had only one eye.

● Not given goggles → went blind after metal entered good eye
● Cost of precaution (goggles) = minimal
P = harm to eyes in garage is foreseeable
L = total blindness = extremely serious
B = low
B < P × L → Breach

PART 3: PROFESSIONAL NEGLIGENCE

The test is different for doctors, lawyers, engineers, etc.
The Bolam Test
Did D act in accordance with a responsible body of professional opinion?

● Bolam v Friern Hospital [1957]

If a responsible group of professionals would’ve done the same → no breach
The Bolitho “Gloss”
BUT: If the professional opinion can’t withstand logic, the court can still reject it.

● Bolitho v City & Hackney [1998]

Court won’t blindly accept bad medical opinion — it must make sense.
· The House of Lords added a check on bad medical opinions.
· Lord Browne-Wilkinson said:
· Even if a body of professionals supports the defendant’s conduct, the court
can reject that opinion if it “cannot withstand logical analysis.”
· This became known as the Bolitho gloss on Bolam.
Informed Consent
Patients must be warned of material risks.

● Montgomery v Lanarkshire [2015]

Doctors must tell patients about risks that a reasonable patient would want to know.
Old law (Sidaway): doctors could choose what to disclose
New law (Montgomery): patients decide what risks matter to them.

Example: Bolitho

● Baby admitted to hospital with breathing problems.

● Doctor didn’t attend because her pager failed.
● Child died.
● Doctor argued that even if she had attended, she wouldn't have intubated.
The court accepted that this opinion was logically defensible.
So, no breach — the Bolam body of opinion survived the Bolitho test.

Example: Montgomery v Lanarkshire [2015]

● Pregnant woman with diabetes. Doctor didn’t tell her the risks of natural birth.
● Baby suffered brain damage.
● The old Bolam view said doctors could decide what risks to disclose.
The court in Montgomery said:
That’s not enough — patients must be told material risks.
Doctor’s view didn’t survive the Bolitho gloss.
1. Bolam – Did a responsible group of professionals support D’s decision?
2. Bolitho gloss – Is that opinion logical and defensible? If not, the court can reject it

Week 4 - Omissions & Liability for Third Parties (Tort

Law)

PART 1: The General Rule on Omissions

You usually don’t owe a duty to act to stop harm — the law doesn’t impose
liability for pure omissions

What Are "Omissions" in Tort Law?

In negligence, most duties arise from a defendant's positive action that causes harm.

However, an omission refers to a failure to act — for example, standing by and doing nothing
when harm could have been prevented.

Core rule: There is no general duty to act to prevent harm, even where inaction might seem
morally wrong.

● Act = D made the situation worse (positive conduct)

● Omission = D failed to make it better

So, unless you’ve done something to worsen the situation, the law won’t impose a duty to
rescue or intervene.

Stovin v Wise [1996]: Lord Hoffmann explained that common law does not
impose liability for failing to act, unless specific exceptions apply.

This distinguishes tort law from:

● Moral obligations (which encourage action to help others)

● Civil law systems (e.g. French law may impose a duty to rescue)

Case Example:

Sutradhar v National Environment Research Council [2006]

● A scientist failed to report arsenic contamination in Bangladeshi wells.

● Held: they didn’t make things worse, so no duty of care.

Key Principle: There’s no duty for pure omissions unless an exception applies.

Why Are Omissions Treated Differently from Acts?

The law is reluctant to impose duties for omissions because:

● Personal autonomy: Law should not overburden individuals with positive obligations.
● Moral crowding out: Legalising moral acts (e.g. rescue) may deter spontaneous,
voluntary help.
● Practical issues: Who do you impose duty on when many could have intervened?
● Floodgates: Imposing liability too freely could open a flood of claims.

In short, English tort law values restraint when it comes to inaction — unless one of three
exceptions applies.
Core Rule: No Duty of Care for Omissions Unless… - Three Exceptions to the No-
Duty Rule

"There is no liability for a pure omission unless D stands in a special relationship to

the claimant, the third party, or the danger itself."

Exception 1: Assumption of Responsibility

Definition:

A duty arises when D voluntarily undertakes to protect C, and C reasonably relies on that
undertaking.

If you voluntarily take on responsibility, you may owe a duty.

● E.g. When A says “I’ve got this” — and B reasonably relies on A.

This is based on the principle of reasonable reliance, and often overlaps with Hedley Byrne-
style liability in economic loss cases.

Key Conditions:

● D must have indicated (by words or conduct) that C can rely on them
● C must have actually relied on that indication

This is common in professional relationships (e.g. doctors, teachers, police, caregivers)

Key Cases:

● Stansbie v Troman [1948]: Decorator left house unlocked while homeowner was out.
Burglary occurred.
Held: duty was assumed by accepting responsibility for the property during the job.
● Barrett v MOD [1995]: Soldier passed out drunk. Once officers began helping, they
assumed responsibility.
Duty arose not from original intoxication, but from undertaking care.
● Swinney v CC of Northumbria [1997]: Police promised to protect the identity of the
informant. Identity was leaked.
Duty owed because of the specific assurance and vulnerability of C.
● Michael v CC South Wales Police [2015]: Woman was murdered after police delayed
response.
No assumption of responsibility as call handler gave no specific promise of help.

Hypothetical: The Unconscious Man

A doctor checks a drunk unconscious man but leaves without further help.

● Issue: Has the doctor assumed responsibility by initiating aid?

● Argument: Starting to assist may create reliance. Courts may impose a duty once
intervention begins, even if incomplete.

Exam point: Always analyse if D’s partial intervention could trigger reliance.

Exception 2: Creation of Danger

Definition:

If D’s conduct (even if initially innocent) creates or worsens a danger, they owe a duty to take
reasonable steps to mitigate that danger.

This exception is more generous than assumption of responsibility — it doesn’t

need reliance, only creation of risk.

Key Cases:

● Watson v British Boxing Board of Control [2001]: Boxing authority failed to ensure
medical provision at ringside.
Court held that once BBBC created risk by regulating dangerous sport, they owed a
duty to mitigate harm.
● Mitchell v Glasgow CC [2009]: Council failed to warn tenant of violent neighbour.
Held: council did not create the danger, nor assume responsibility. Warning would be
impractical and create excessive liability.
○ Lord Hope: Warning duties arise only with assumption of responsibility.
○ Lord Rodger: Conduct must be wrongful, not merely passive, to count as
“creation.”

Fine Distinction:

● Creating a risk = may trigger liability

● Simply providing an opportunity = usually no duty

Think of a council who fails to lock a gate. Did they cause the danger or merely
allow it?

Exception 3: Control over Dangerous Person/Thing

Definition:

A duty arises when D has control over someone or something dangerous, and it’s foreseeable
that lack of control will cause harm.
This includes:

● Teachers over children

● Hospitals over psychiatric patients
● Police over prisoners

C must be in special danger from loss of control — courts won’t create open-
ended duties.

Key Cases:

● Dorset Yacht v Home Office [1970]: Prison officers left Borstal boys unsupervised.
They escaped and caused damage.
Duty found: D had direct control and damage was foreseeable and specific.
● Reeves v Commissioner of Police [1999]: Mentally ill prisoner took own life in police
custody.
Duty arose from knowledge of suicide risk and detained setting.
● Palmer v Tees HA [1999]: Psychiatric patient murdered child after release.
Victim was not in the identified class of special danger.

Important Limits:

● Courts avoid creating general duties to “prevent crime” or “protect the public.”
● Duty depends on specificity and foreseeability.

PART 2: LIABILITY FOR ACTS OF THIRD PARTIES

You usually aren't liable for what someone else does, unless an exception applies.

Third Party Liability (Linked Topic)

Rule: No general duty to protect one person from another’s actions.

But courts allow liability in four exceptional cases (from Lord Goff in Smith v Littlewoods
[1987]):

1. Special relationship between D and C

e.g. employer–employee, parent–child
2. Special relationship between D and third party
e.g. prison–prisoner (Dorset Yacht)
3. D creates a source of danger
e.g. leaving petrol and matches accessible
4. D fails to abate a known danger caused by third party
e.g. ignoring a broken window that allows vandalism
Summary Table: When Duty for Omissions Arises

Exception Trigger Example Case

Assumption of Responsibility Undertaking to protect someone Swinney, Barrett

Creation of Danger Act created or worsened risk Watson, Mitchell

Control Control over person/thing causing Dorset Yacht,

harm Reeves

Third Party Liability D linked to danger or party Smith v Littlewoods

Model Exam Strategy

When asked whether a duty arises for an omission or third party:

1. Start with general rule: No duty for pure omissions

2. Check exceptions:
○ Was there reliance? ➝ Assumption of responsibility
○ Did D create a danger? ➝ Duty to mitigate
○ Was D in control of danger? ➝ Special risk to C?
3. Third party harm? ➝ Apply Lord Goff’s four situations
4. Consider policy:
○ Would recognising duty deter future harm?
○ Would it overwhelm public services?
○ Any floodgates or autonomy issues?

WEEK 5 – PUBLIC BODIES & DUTY OF CARE

Why is this topic special?

Because public bodies (like the police, NHS, councils) often cause harm not through
positive acts, but through omissions— and we’ve already learned that:
There’s no duty for pure omissions, unless an exception applies.
So, the law had to figure out:
Should public bodies be treated differently to private individuals?

Two Approaches to Public Body Liability

1. The Diceyan Approach (dominant today)
Public bodies are treated like everyone else under tort law.
They don’t owe a duty just because they could have prevented harm.
“Public bodies owe no duty of care merely because they have statutory powers or
duties.” – Lord Hoffmann
Based on equality before the law (A.V. Dicey’s rule of law principle)
Key Cases:

● Stovin v Wise [1996]

● Gorringe v Calderdale MBC [2004]
● Capital & Counties v Hampshire CC [1997] – Fire brigade has no duty to attend or
respond

2. The Policy Approach (older, now declining)

Start by finding a duty, then ask: are there policy reasons to deny it?
Built on Anns v Merton LBC [1978] – overruled now
Used to allow duties more freely, especially where harm was foreseeable.
Cases that used this approach:

● X v Bedfordshire CC [1995] – now overruled

● D v East Berkshire NHS [2004] – began shifting toward human rights reasoning

So When Do Public Bodies Owe a Duty?

· Only in limited, recognised exceptions, which now closely mirror those used for
private persons.
Landmark Case: Hill v CC of West Yorkshire [1989]
Police failed to stop the Yorkshire Ripper in time. Family sued for negligence.
Held: No duty owed to potential victims.
Policy reasons:

● Would distract police from investigations

● Risk of defensive policing
● Would flood the courts with claims
● Courts lack competence to assess police strategy

But Then Came the Shift…

Barrett v Enfield LBC [2001]
Court said: You must hear the facts before deciding if the council’s actions were policy
(immune) or operational (reviewable).
Michael v CC of South Wales [2015]
· 999 call mishandled.
· No duty under common law (as it was an omission)
· But claim under Human Rights Act still allowed (Article 2: right to life)

Robinson v CC of West Yorkshire Police [2018]

· Elderly woman knocked over during police arrest.
o Duty was owed — because this was a positive act, not an omission.
· Lord Reed clarified:
o Caparo is not a universal test. Use it only for novel situations.
Public authorities must follow the same rules as private individuals.

Poole BC v GN [2019]
Vulnerable children in council housing sued after being harassed.
Held:

● The council didn’t create the danger.

● It didn’t assume responsibility.
● No duty owed under common law.
Confirmed: Statutory powers ≠ automatic tort liability.

Human Rights Claims (HRA 1998)

Public bodies can still be sued under the Human Rights Act — especially:

● Article 2 – right to life

● Article 3 – inhuman or degrading treatment
● Article 8 – family life, privacy
Even where common law fails, public bodies may still breach positive obligations
under the Convention.
Examples:

● Osman v UK [1999]
● Z v UK [2001]
● Commissioner of Police v DSD [2018] – police failed to investigate the “Black Cab
Rapist” properly. Held: breach of Article 3.

Exam Tip (Problem Question Planning)

If asked whether a public body owes a duty of care:

1. Was this a positive act or an omission?

 2. If omission: Apply Diceyan rule → no duty unless:
○ Assumed responsibility
○ Created danger
○ Took control
3. If positive act → apply general duty rules (e.g. foreseeability, proximity)
4. Consider whether HRA 1998 applies for Convention breaches

Week 7 - Causation in Negligence (Tort Law)

What is Causation in Tort?

In negligence, even where duty and breach are established, the claimant must prove that the
breach caused their loss. This involves two key stages:

1. Factual Causation (Cause in Fact)

● Concerned with whether D’s breach actually caused C’s harm.

● Commonly tested using the “but for” test:

Would the harm have occurred but for the defendant’s breach?

If the answer is yes, D’s conduct was not the cause. If the answer is no, factual causation is
established.

2. Legal Causation (Remoteness)

● Even if causation in fact is satisfied, the damage must not be too remote.
● That is, was the type of damage reasonably foreseeable?
● See The Wagon Mound (No 1) [1961]: Liability is only imposed for foreseeable types of
damage, even if the extent is greater.

STAGE 1: FACTUAL CAUSATION - “BUT FOR” TEST

Leading Case: Barnett v Chelsea and Kensington Hospital [1969]

● C went to hospital vomiting; the doctor failed to examine him.

● He later died of arsenic poisoning, but evidence showed he would have died regardless.
 Held: Breach established, but failed the “but for” test → causation not proved.

McWilliams v Sir William Arrol & Co [1962]

● Worker died in a fall. D had not provided a harness - breach.

● But: evidence showed he wouldn’t have worn it even if available.

Causation failed - the breach didn’t cause the death.

Wilsher v Essex AHA [1986]

● Premature baby exposed to five possible causes of blindness, only one tortious.
● Medical science couldn’t identify the specific cause.

Held: If no individual cause crosses the 51% balance of probabilities, then

causation fails.

Standard of Proof = Balance of Probabilities

● C must prove it was more likely than not (>50%) that D’s breach caused the harm
● 51% = 100% in tort law!

Key doctrine: C must prove D’s breach was more likely than not the cause.

Would the harm have happened but for the breach?

If no → causation is established
If yes → causation fails

Limits of the But-For Test

1. Scientific uncertainty

● Sometimes science can’t identify which of multiple exposures caused the injury.

2. Multiple potential causes

● Especially where different causes are each capable of causing the same damage.

MODIFICATIONS TO THE “BUT FOR” TEST

Exception 1: Material Contribution to Injury

Used when:
 ● C’s injury is caused by a cumulative process (e.g. disease worsened over time).
● D’s breach contributed significantly (not just negligibly) to that injury.

Bonnington Castings Ltd v Wardlaw [1956]

● C inhaled both ‘innocent’ and ‘guilty’ silica dust.

● Only some exposure was due to the employer's negligence.

Held: if D’s breach made a material contribution to the disease, liability follows.
No need to show it was the sole or dominant cause.

Bailey v MOD [2008]

● C suffered brain damage after cumulative weakness from hospital negligence + natural
causes.

Held: Material contribution to injury suffices in cumulative harm cases.

Williams v Bermuda Hospitals Board [2016]

● Delayed diagnosis contributed to sepsis.

● Court confirmed Bonnington applies if the injury is divisible and cumulative.

Summary:

● Applies to physical injury

● Defendant’s contribution must be more than minimal
● Suitable where multiple causes are acting together

Exception 2: Material Contribution to Risk

Used when:

● The injury may have been caused by a single agent (not cumulative).
● The exact source of harm is scientifically unprovable, but D’s breach increased the
risk.

McGhee v National Coal Board [1973]

● C developed dermatitis after working without washing facilities.

● Couldn’t prove that lack of washing caused the disease, but D’s omission increased
risk.

Held: Causation established via increased risk.

Fairchild v Glenhaven Funeral Services [2002]

● Mesothelioma caused by exposure to asbestos — but impossible to tell which

employer’s fibres caused it.

HL held: Each employer who materially increased the risk is jointly and
severally liable.

Fairchild introduced a new test for causation in limited scenarios.

The “Fairchild Enclave”

Created a special legal exception to normal rules for mesothelioma (cancer) claims.

Barker v Corus [2006]

Each employer is liable only proportionately for the risk they created.

Compensation Act 2006, s.3

Overrules Barker — victim can recover 100% from one employer; that employer
can seek contributions from others.

Sienkiewicz v Greif [2011]

Reiterated that this rule is limited to mesothelioma.

Heneghan v Manchester Dry Docks [2016]

Court extended the Fairchild logic to asbestos-related lung cancer, showing some
flexibility.

Summary of Risk-Based Causation:

Scenario Case Rule

Disease caused by cumulative Bonnington Material contribution to injury

exposure

Single agent; source unprovable McGhee, Fairchild Material contribution to risk

 Mesothelioma Fairchild, CA 2006 Special category – joint & several
liability

ADDITIONAL CAUSATION DOCTRINES

1. Loss of a Chance

Claim is not for the injury itself, but for losing the chance to avoid harm.

Hotson v East Berkshire AHA [1987]

● Late diagnosis denied C a 25% chance of avoiding hip deformity.

● HL: Because the chance was below 50%, the claim failed.

Gregg v Scott [2005]

● Misdiagnosis reduced cancer survival chances from 42% → 25%.

● HL (3:2): Claim failed — courts refused to adopt “loss of chance” in personal injury.

Majority (Lord Hoffmann, Phillips, Hale):

Allowing claims based on chance would open the floodgates, especially in

medicine.

Dissent (Lords Nicholls, Hope):

Loss of chance should be recognised in injury claims — it’s still a genuine loss.

Note: Loss of chance is accepted in contract and economic loss cases (e.g. Allied Maples),
but not yet in personal injury.

2. Failure to Warn

If D fails to disclose material risk of treatment and that risk occurs, causation may
be found even if treatment was done competently.

Chester v Afshar [2004]

● Patient not warned of a 1-2% paralysis risk. Risk materialised after surgery.
● HL: Even though surgery was properly done, failure to warn caused loss of autonomy.

Liability recognised despite uncertain factual causation.

Montgomery v Lanarkshire [2015]

 ● Further affirmed Chester.
● Doctors must respect patient autonomy by warning of material risks.

Summary: Where a patient would not have consented had they known the risk,
the doctor’s failure to warn causes the harm, even if that risk was small.

3. Supervening Causes

What happens when another event occurs after D’s tort and also causes injury?

Baker v Willoughby [1970]

● D1 injured C’s leg. Later, C was shot in the same leg by a robber (D2).
● HL: D1 remained fully liable — later injury did not break the chain.

Tortious events do not sever liability.

Jobling v Associated Dairies [1982]

● D injured C, who later developed a disabling spinal condition.

● HL: D not liable after onset of naturally occurring illness.

Natural events do limit liability.

Quick Recap Chart

Topic Case Rule

But-For Test Barnett Standard approach to factual causation

Material Contribution Bonnington, Bailey Used for cumulative causes

Material Risk McGhee, Fairchild Used for indivisible harm + scientific

uncertainty

Mesothelioma Rule Fairchild, CA 2006 Joint & several liability applies

Loss of Chance Gregg, Hotson Not allowed for personal injury

Failure to Warn Chester, Patient autonomy – causation satisfied

Montgomery

Supervening Causes Baker, Jobling Tortious ➝ no cut-off; Natural ➝ limits

liability

WEEK 8 – REMOTENESS AND NOVUS ACTUS

INTERVENIENS

Final stage of the causation analysis in negligence. Once we’ve proved factual
causation, we ask:
Is it fair to hold the defendant legally responsible for this harm?
This is where remoteness and intervening acts come in.

REMOTENESS (a.k.a. Legal Causation)

STEP 1: Is the damage too remote?

The law uses the reasonable foreseeability test to decide this.
The Test: The Wagon Mound (No.1) [1961]
D is only liable for types of harm that are reasonably foreseeable.
Even if the way it happened was bizarre, as long as the kind of harm is foreseeable, D
is liable
Example 1: Hughes v Lord Advocate [1963]
 ● Child knocked over a paraffin lamp → explosion → severe burns
● Court: Burns were foreseeable, even if the explosion wasn’t
D liable
Example 2: Doughty v Turner Manufacturing [1964]

● Lid fell into liquid → unknown reaction → injury

● Injury caused by explosion, not splashing
Court: this exact type of injury wasn’t foreseeable → too remote
The Egg-Shell Skull Rule
Once some physical harm is foreseeable, D takes C as they find them.
🧠 If C is vulnerable (e.g. has a condition), D is still liable for the full extent of harm.
Smith v Leech Brain [1962]

● Burn triggered cancer in C with pre-existing condition

Held: cancer = physical injury, burn was foreseeable → D liable for
all

STEP 2: Novus Actus Interveniens (Intervening

Acts)
Even if D caused some harm, they might not be liable for further harm if the chain
of causation is broken by a new, independent act.

What breaks the chain?

We ask:
Was the intervening act independent, voluntary, and unforeseeable enough to break the
link?

TYPES OF INTERVENING ACTS

A. Natural Events
If a natural event breaks the chain, D may be off the hook — but only if the event is
extraordinary.
Carslogie v Royal Norwegian Govt [1952]

● Ship damaged by D’s negligence → then hit by storm

Storm = independent cause → broke chain

B. Third Party Acts

Did the actions of a third party (someone other than D or C) break the chain of
causation?
If yes, the defendant (D1) is no longer legally responsible for the final harm.
The Test:
Was the third party’s act independent, voluntary, and unforeseeable?
If YES, it might break the chain.
If NO, D1 will usually still be liable
FOUR CATEGORIES OF THIRD-PARTY ACTS
1. Where D has a duty to guard against third party acts
· If D1 should have anticipated third party actions, the chain is not
broken
· Chain not broken
· Stansbie v Troman – decorator left door open, thief got in → duty
owed
2. Independent and voluntary acts
· If the third party’s response is reasonable, the chain is not broken
· If reasonably foreseeable → no break
· The Oropesa [1943] – captain made reasonable decision under
stress → D still liable
3. Negligent third-party conduct
· If the third party acts carelessly, it usually does not break the chain —
unless it’s grossly unreasonable
· “A negligent third party act will not usually break the chain of causation
unless it is so unforeseeable, independent, or unreasonable that it
renders the original defendant’s breach no longer a substantial cause of
the damage” (good in exam)
· Often does not break the chain unless very unreasonable
· Knightley v Johns [1982] – senior officer ordered junior to drive wrong
way in tunnel
· So unreasonable → broke the chain
· Rouse v Squires [1973] – pile-up caused by multiple careless
drivers
D’s negligence remained a cause → no break
4. Deliberate or criminal conduct
· These often break the chain — unless D1 was supposed to guard
against this type of risk.
· More likely to break the chain unless D should’ve anticipated it
 · Lamb v Camden LBC [1981] – squatters damaged house after council’s
pipe burst
· Held: squatters’ act was too remote → broke chain
· Home Office v Dorset Yacht [1970] – officers left boys unsupervised
Boys’ damage was foreseeable → no break

C. Acts of the Claimant

If C acts unreasonably and worsens their own harm, this may break the chain.
McKew v Holland [1969]

● C injured leg → then tried to jump down stairs unaided

Unreasonable → chain broken
Weiland v Cyril Lord Carpets [1969]

● C fell again due to worsened eyesight → Not unreasonable → no

break

Suicide Cases
Tricky — turns on whether D’s duty includes preventing suicide.
Because suicide is deliberate and self-inflicted, courts have to decide:

● Is the defendant still responsible?

● Or does the suicide break the chain?
It depends on whether D owed a duty to prevent that exact risk.
Reeves v Commissioner of Police [1999]

● Prisoner known to be suicidal → not monitored → committed

suicide
Held: duty owed → suicide didn’t break the chain
If D’s duty is to prevent exactly this kind of harm, it can’t break the chain.
Subsequent Medical Negligence
Generally does not break the chain unless it’s grossly negligent.
Wright v Cambridge Medical Group [2011]

● Hospital delayed treatment, worsened condition

“Synergistic” interaction → both liable

REMOTENESS CHECKLIST (EXAM)

 Step Ask
1. Type of harm foreseeable? Use Wagon Mound, Hughes,
Doughty
2. Eggshell skull rule apply? Use Smith v Leech Brain
3. Was there a novus actus Classify and apply test
interveniens?

Week 9 - Special Duty Problems: Liability for Pure Economic Loss (Tort
Law)

What Is “Pure Economic Loss”?

In negligence, the default position is that the claimant cannot recover for pure economic
loss, unless a special duty exists.

Definition:

Pure economic loss refers to financial loss that does not stem from physical
injury or property damage to the claimant.

1. Financial Harm Only

You’ve suffered a loss of money (or a monetary opportunity), but there is no
accompanying physical harm to your person (no injury) and no physical damage
to any property you own.
2. “In Isolation”
Your loss stands on its own—it didn’t flow from fixing a broken machine or treating
an injury. Instead it arose directly from some other act or omission (for example,
bad advice).

Contrast with:
 ● Consequential economic loss — financial loss that flows from (is caused by)
physical harm (e.g. hospital bills, lost income after injury) → recoverable.
● Relational economic loss — financial loss flowing from (caused by) damage to
property/person related to C but not owned by C → usually not recoverable.

Why Is Pure Economic Loss Generally Unrecoverable?

Policy Reasons:

● Risk of indeterminate liability to an indeterminate class.

● Courts want to avoid floodgates — limitless numbers of people potentially affected.
● Economic loss is often better dealt with through contract law and insurance.
● Tort is not designed to guarantee sound financial expectations.

Lord Denning in Spartan Steel:

“Most people just put up with economic loss... If claims were allowed, there would
be no end to them.”

1. RELATIONAL ECONOMIC LOSS

This occurs when C suffers loss due to damage to another’s property (e.g. you rent a
warehouse, and someone damages the landlord’s building).

Spartan Steel v Martin [1973]

Facts:

● Power cut caused by negligent excavation led to:

1. Damaged steel in furnace (property loss)
2. Lost profit on that batch (consequential loss)
3. Lost profit from batches not processed (pure economic loss)

Held: Only first two recoverable. The third was pure economic loss and not
recoverable.

Limited Exceptions (Carefully Controlled)

● Conarken v Network Rail [2011]:

C could recover sums paid to others for loss of use of its property. Recognised duty due
to legal liability.
● Shell UK v Total UK [2010]:
Equitable owners may recover economic loss if the legal owner is joined in the claim.
Key idea: Law allows claims only where there’s a sufficient link or proximity between the
parties.

2. NEGLIGENT MISSTATEMENT & SERVICES: The Hedley Byrne Principle

Introduced by the House of Lords in:

Hedley Byrne v Heller [1964]

Facts:

● C relied on negligent financial reference from D’s bank.

● A disclaimer saved D from liability, but HL recognised a new category of duty.

A person can owe a duty for pure economic loss if they assume responsibility
and C reasonably relies on their advice or actions.

Elements of Duty (from Hedley Byrne & Caparo):

1. Assumption of responsibility (express or implied)

2. Reasonable reliance by C
3. Proximity between parties
4. Foreseeability of loss
5. Voluntary undertaking by D to provide advice or perform a service

FIVE SCENARIOS UNDER HEDLEY BYRNE

Scenario 1: Advice “Without Responsibility”

● If D clearly disclaims responsibility (e.g. “subject to no liability”), no duty arises.

BUT if advice is given in the course of business, the Unfair Contract Terms Act 1977 (UCTA
s.2(2)) may limit the effect of disclaimers — must be reasonable.

Caparo v Dickman [1990]:

Auditors owed no duty to shareholders relying on published accounts to buy shares — no
proximity or assumption.

Scenario 2: Direct Advice Knowing It Will Be Relied On

● Where advice is given knowingly, and C relies on it → duty likely.

Welton v North Cornwall DC [1997]
Duty arises not based on D’s intention, but on what a reasonable person would infer from D’s
conduct.

Customs and Excise v Barclays Bank [2007]

Question is not about D’s subjective state of mind, but about the objective
impression made on C.

Scenario 3: Advice on Social Occasion

General rule: No duty for casual or social advice.

Chaudhry v Prabhakar [1989]

Friend gave car advice and discouraged further checks — duty found due to explicit
assurance.

Exam insight: If D explicitly tells C to rely on them, even in a social setting, a duty may arise.

Scenario 4: Advice from a Non-Expert

Mutual Life v Evatt [1971]

Company gave advice outside its expertise (investment advice from an insurance firm). No duty
- no special skill or holding out.

Scenario 5: Advice via a Third Party

● Where D gives advice to someone other than the claimant, no duty unless D knows or
intends C will rely on it.

Williams v Natural Life [1998]

Company director not liable — no contact or representation made to C.

BNL v Playboy Club [2018]

Bank gave credit info to a third party (Burlington), not directly to C (Playboy Club).
Held: No duty — no assumption of responsibility or proximity.

3. DEFECTIVE PROPERTY AND ECONOMIC LOSS

Difficult area - what if you buy a defective product/building?

Murphy v Brentwood DC [1991]

● Local authority negligently approved building plans.

● House developed structural issues → reduced in value.
 Held: No duty owed for economic loss caused by defect in property.
Murphy overruled Anns and Junior Books.

Explanation: This is a contractual issue — the claimant should sue the seller or builder, not in
tort.

THE EXTENDED HEDLEY BYRNE PRINCIPLE

The principle goes beyond advice to include negligent performance of services, especially by
professionals.

Henderson v Merrett [1995]

Insurance agents owed duty to clients for badly performed services, even without contract.

Duty arises when:

● D holds themselves out as skilled

● C relies on them
● D accepts responsibility

Key Cases:

Philips v Whiteley [1938]

Jeweller is not expected to meet the standard of a surgeon for ear piercing.

Wilsher v Essex AHA [1987]

A junior doctor owes care at the level of a reasonable junior, not a consultant.

HARD CASES: Beyond Hedley Byrne?

Some cases don't fit easily into the assumption of responsibility framework — courts still
imposed a duty.

Smith v Eric S Bush [1990]

Surveyor negligently failed to inspect the chimney.

Claimant (homebuyer) suffered loss.

Held: Duty owed despite lack of contact — court relied on consumer protection
policy.

Spring v Guardian Assurance [1995]

Former employer gave negligent reference, harming C’s job prospects.

 HL imposed duty even though there was no reliance or assumption.
Court relied on fairness and foreseeability.

Phelps v Hillingdon [2001]

Educational psychologist misdiagnosed special needs.

Duty owed despite advice being to school, not child.

Court prioritised impact on C’s rights.

White v Jones [1995]

Solicitor failed to update the will before the testator died.

Daughters lost inheritance.

HL: Duty owed despite no contact or reliance.

Rationale: Otherwise, no one could sue — claimant was vulnerable, and solicitor was best-
placed to avoid loss.

HOW DO COURTS JUSTIFY THESE “HARD CASES”?

Courts look beyond Hedley Byrne to broader policy reasoning:

● Vulnerable claimants
● Professional responsibility
● No other route to compensation
● Avoiding legal black holes

SUMMARY TABLE: ECONOMIC LOSS IN NEGLIGENCE

Scenario Duty? Leading Case

Relational economic loss Generally not Spartan Steel

Consequential loss Yes Spartan Steel

Advice without responsibility No duty Caparo, Steel v NRAM

Direct advice & known reliance Yes Hedley Byrne, Welton

Social advice Unless explicitly assured Chaudhry

Advice by non-expert No duty Mutual Life v Evatt

Third-party advice No duty Williams v Natural Life

Defective property No Murphy

Task-based services Yes Henderson

Difficult/policy cases Sometimes White v Jones, Spring,

Phelps

How to approach an exam problem question on this topic?

1. Is this pure economic loss?

→ No physical damage or injury?
2. Is there an assumption of responsibility?
→ Apply Hedley Byrne framework.
 3. Was there reliance? Was it reasonable?
→ Assess proximity.
4. Any disclaimer?
→ Consider UCTA 1977 s.2(2).
5. Does this fit an “exceptional case” policy rationale?
→ White v Jones, Phelps, etc.

WEEK 10 – PSYCHIATRIC INJURY

(A.k.a. “Nervous shock”)

Key Rule:
You can claim for psychiatric injury, but only if the harm is:
· Medically recognised (e.g. PTSD, severe depression)
· Not just grief, anxiety, worry, or sadness

Consequential Psychiatric Injury

If C suffers physical injury and also has a psychiatric reaction = fully recoverable.
Attia v British Gas [1988] – watching her house burn down caused PTSD = allowed
Pure Psychiatric Injury
If C suffers no physical injury, but only mental harm → needs to pass special
tests.

The Law Distinguishes:

Type of Victim Description
Primary victim C was physically endangered (or reasonably thought they were)

Secondary victim C witnessed harm to someone else, wasn’t directly endangered

PRIMARY VICTIMS

Definition:
A primary victim is someone who:

1. Was directly involved in the incident, and

2. Was either:
○ Physically injured, or
 ○ In danger of physical injury, or
○ Reasonably believed they were in danger
This means they were in the zone of danger — close enough to be hurt or to think they
might be.
WHY does the law treat them differently from
secondary victims?
Because they’re direct participants in the traumatic event — so the law is less strict
with them. They don’t have to pass all the Alcock control mechanisms like secondary
victims do.
Page v Smith [1996]

● Minor car accident → C was not physically hurt, but it triggered chronic fatigue
syndrome (a psychiatric illness)
● D argued that psychiatric injury wasn’t foreseeable
● Court said:
If some physical injury was foreseeable, then it doesn’t matter what kind of harm
actually occurred — psychiatric injury is actionable.
So C won — he was a primary victim.
Key Rule from Page v Smith:

● For primary victims, you don’t have to foresee psychiatric harm specifically.
● It’s enough if physical injury was foreseeable.
● The egg-shell skull rule applies: Take your victim as you find them — even if they’re
unusually fragile.
Young v Charles Church [1997] – man working near power lines = physical
danger → primary victim

● Worker was near live electrical wires due to D’s negligence

● He was in a dangerous physical zone, even though he wasn’t actually harmed
Held: Primary victim
This case confirms that actual injury isn't needed — being in physical danger is
enough.

“Guilt-ridden” Primary Victims

The courts have also recognised that some people who aren’t physically endangered
can still be treated as primary victims if they:

● Were directly involved, and

● Feel a deep sense of personal responsibility for what happened
Even without physical risk, courts may treat people as primary victims if they feel direct
responsibility for the event
 · W v Essex CC [2001]

● Parents allowed a foster child into their home, not knowing he was a sex offender
● That child abused their children
● The parents blamed themselves and suffered psychiatric harm
Held: They were primary victims

● They weren’t in danger

● But the court recognised their guilt and responsibility as sufficient
This case shows the category is flexible — it’s not only about danger but also about
personal involvement and moral proximity

SECONDARY VICTIMS
A secondary victim is someone who witnesses a traumatic event where someone
else (the primary victim) is injured, imperilled, or killed — but they themselves were
never in physical danger.
They’re often bystanders or close relatives who suffer psychiatric harm after seeing or
hearing about the event.
Secondary victims witness injury or death to others. It’s harder for them to
succeed.
WHY is it harder for them to succeed?
Because courts are reluctant to open the floodgates. The law wants to limit:

● Claims by emotionally affected bystanders

● Unpredictable chains of trauma
● Excessive burden on defendants
So, strict “control mechanisms” were created to filter out weak claims.
Alcock v Chief Constable of South Yorkshire [1992]
(Hillsborough disaster — 96 people died in a stadium crush)
Many claimants were:

● Relatives who saw the disaster on TV

● Or arrived at hospitals later
Most claims failed because they didn’t meet the control tests.
Alcock Control Mechanisms (5 Tests):
These must be proven by every secondary victim

1. Close tie of love and affection (e.g. spouse, child, parent)

2. Proximity in time and space (at scene or immediate aftermath)
3. Direct perception (saw/heard the event, not on TV)
4. Sudden shock (psychiatric injury must arise from a sudden and horrifying event, not
gradual realisation)
 5. Recognised psychiatric illness - Grief, anxiety, and sadness are not enough — must
be a diagnosed condition (e.g. PTSD, severe depression)
Bourhill v Young [1943] – pregnant woman heard crash, later saw blood → No
duty: no close tie, no proximity

Recent Shift: Paul v Royal Wolverhampton NHS Trust

[2024]
● Children saw father collapse due to heart failure
● Court said: there must be an accident (sudden, external event), and C must witness
that event
● A natural death from illness doesn’t count — medical staff owe no duty to protect
family from witnessing it
· Only events that are sudden, external “accidents” can ground a secondary
victim claim.
· Watching a loved one die from illness — even suddenly — isn’t actionable
Impact: Narrows the scope of claims even further for medical contexts.

Rescuers
Historically treated like primary victims — now, only if they’re in physical danger
· Chadwick v British Railways [1967] – Volunteer helped at train crash site →
PTSD
o Held: was in danger zone → Primary victim
· White v Chief Constable of South Yorkshire (Hillsborough) [1999] – Police officers at
Hillsborough rescue effort
o Not physically endangered → not primary victims, couldn’t claim as
secondary either

Criticism of White (per Lord Goff):

‘Two people rescuing at the same event — one slightly closer to danger can claim, the
other can’t. That’s absurd.’ (not direct quote)
This shows how rigid the physical danger test is — even in morally compelling cases.
Stress-at-Work Cases
These are handled under standard negligence — not Alcock (not secondary victims).
Walker v Northumberland CC [1995]

● Worker had one breakdown

● Returned to same conditions → second breakdown
● Second breakdown was foreseeable → duty owed employer liable
Hatton v Sutherland [2002]

● Employers owe duty if:

○ Psychiatric injury is reasonably foreseeable
○ They know of C’s vulnerability or the job is inherently stressful
Court clarified:

● Employers must protect against psychiatric harm if it’s foreseeable

● Foreseeability depends on:
○ The nature of the job, and
○ What the employer knew about the employee’s vulnerability

Normal fortitude rule applies, unless the employer knew otherwise

The normal fortitude rule says that the defendant (D) is only expected to protect the
“ordinary person” — someone of reasonable mental and emotional resilience.
This means D is not liable just because C happened to be unusually sensitive or
psychologically vulnerable, unless D knew about it.

EXAM TIP
Ask yourself:

1. Was C in physical danger?

○ Yes = primary victim
2. If not → secondary victim?
○ Yes = Apply Alcock’s 5 rules
3. Is it stress at work?
○ Yes = Use Hatton and Walker (no need for Alcock)

Week 12 - Defences to Negligence (Tort Law)

Overview:

In negligence, defences are used by defendants to either:

● Avoid liability altogether (full defences), or

● Reduce the amount of damages payable (partial defences).

This lecture focuses on three key defences:

1. Volenti non fit injuria (voluntary assumption of risk) → complete defence

 2. Illegality (Ex turpi causa non oritur actio) → complete defence
3. Contributory Negligence → partial defence (reduces damages)

VOLENTI NON FIT INJURIA (To a Willing Person, No Injury Is Done)

Core Idea:

If a person knowingly and freely agrees to run a risk, they cannot then sue for injuries caused
by that risk.

When Does the Defence Apply?

Defendant must show:

1. C had full knowledge of the risk (nature and extent); AND

2. C voluntarily and freely agreed to accept that risk.

The test is subjective – did this specific claimant understand and accept the risk?

Legal Foundations:

Smith v Baker [1891]

● Worker injured by falling crane stones.

● C knew of risk but HL said: knowledge ≠ consent. Volenti failed.

McTear v Imperial Tobacco [2005]

Defines six variations of “voluntary assumption,” including express/implied consent, waiver of

liability, and awareness of D’s negligence.

Key Requirements Explained:

1. Knowledge of the Risk

● C must actually know what the risk involves.

● Objective or general awareness is not enough.

Dann v Hamilton [1939] – C got in a car with a drunk driver. She knew he was
drunk, but the court said that did not mean she consented to harm caused by his
negligence.

Morris v Murray [1991] – C agreed to fly with a pilot who had consumed large
amounts of alcohol. Court held C clearly accepted the risk → Volenti applied.
2. Voluntariness

● C must have had genuine freedom of choice.

● No pressure, compulsion, or lack of options.

Bowater v Rowley Regis [1944] – Worker instructed to do dangerous job. Court

held there was no free choice→ no valid consent.

Smith v Baker – Again shows that employment pressure can negate

voluntariness.

ICI v Shatwell [1965] – Shotfirers ignored safety rules voluntarily → Volenti

applied.

3. Agreement (Express or Implied)

● Consent can be verbal, written, or inferred from behaviour.

● But per Nettleship v Weston [1971], only a clear and unequivocal agreement to waive
negligence claims will suffice.

Summary from Lord Denning:

"Nothing will suffice short of an agreement to waive any claim for negligence."

Statutory Limits on Volenti

Law Effect

UCTA 1977 (s.1–2) Excludes liability for death/personal injury in business contexts;
any other exclusions must be reasonable

Road Traffic Act 1988 Drivers cannot use Volenti against passengers
(s.149)

Consumer Rights Act Prevents businesses from limiting liability in consumer contracts
2015 (ss.62, 65)
Sports & Dangerous Recreation

● Blake v Galloway [2004]: Horseplay or rough games may include consent to foreseeable
risks.
● Condon v Basi [1985]: Aggressive or reckless conduct → defence fails.
● Wooldridge v Sumner [1963]: Spectator injured at horse show → no Volenti since
participants owe duty of care even in sport.

Exception: Rescuers

Baker v TE Hopkins [1959] – Doctor died trying to rescue others from toxic fumes. Court held
rescuers do not voluntarily assume risk → Volenti does not apply.

ILLEGALITY (Ex Turpi Causa Non Oritur Actio)

Core Idea:

A claimant cannot recover compensation if the loss results from their own criminal or illegal
conduct.

"No action may arise from a dishonourable cause."

This is a complete defence.

Key Case: Gray v Thames Trains [2009]

● C suffered PTSD from a rail crash.

● Later killed a stranger during a psychotic episode.
● Sued for losses from conviction and detention.

HL: Illegality barred claim. You cannot recover for losses caused by your own
criminal act.

Two Branches from Gray:

1. Narrow Rule
No recovery for losses that result from a criminal sentence (e.g. imprisonment, fines)
2. Wider Rule
No recovery for any harm resulting from the claimant’s criminal act — regardless of
whether it was triggered by D.

Examples -

● Pitts v Hunt [1991] – C encouraged underage, drunk driving. Defence succeeded.

 ● Delaney v Pickett [2011] – C injured while transporting cannabis. Injury caused by
negligent driving, not illegality → Defence failed.
● Hounga v Allen [2014] – C entered the UK illegally but was exploited. Court allowed the
claim because barring it would undermine human rights/trafficking policy.

Patel v Mirza [2016] – New Approach

HL reframed illegality into a policy-based balancing test:

Per Lord Toulson: Courts must assess whether allowing the claim would harm the
integrity of the legal system.

Consider:

1. Purpose of the legal rule broken by C

2. Impact on other public policies
3. Whether denying the claim is proportionate

Moves away from “automatic” bars → now a more flexible, fairness-based approach.

After Patel – Mixed Outcomes

● Henderson v Dorset Healthcare [2020] – Court upheld Gray → illegality applied.

● Grondona v Stoffel [2021] – Mortgage fraud involved, but court allowed claim (arguably
due to defendant’s greater fault).

Criticism: Post-Patel, courts have discretion but may apply the test inconsistently.

CONTRIBUTORY NEGLIGENCE

Core Idea:

When C is partly to blame, damages are reduced proportionally, not denied.

Governed by Law Reform (Contributory Negligence) Act 1945, s.1(1):

“Where C suffers damage partly due to their own fault... damages shall be reduced
to such extent as is just and equitable.”

Key Elements

1. Was C at fault?
○ Did they fail to take reasonable care for their safety?
2. Did that fault cause or contribute to the injury?

Important Cases:
 ● Jones v Livox [1952] – C injured while riding unsafely at work. Court said: C must
anticipate others’ negligence too.
● St George v Home Office [2008] – C fell during seizure in prison. Fault from past drug
use not close enough to injury → No CN.
● Badger v MoD [2006] – C’s smoking contributed to illness alongside asbestos
exposure → CN applied.

Standard of Care: Reasonable Person

Even children may be found contributorily negligent:

● Gough v Thorne [1966] – 13-year-old crossing road → No CN.

● Jackson v Murray [2015] – 13-year-old ran into road → CN applied, 50% reduction.

Damage Reduction = “Just and Equitable”

No fixed formula – courts assess relative blame.

● Froom v Butcher [1976] – No seatbelt. Reduction:

○ 25% if injury preventable
○ 15% if injury would be less severe
● Capps v Miller [1991] – Froom rules apply to motorcyclists not wearing helmets.
● Stinton v Stinton [1995] – C knowingly rode with a drunk driver → 33% reduction.

Exceptions

● No CN against intentional torts (e.g. assault)

● No CN for rescuers if D created the danger (Baker v Hopkins [1959])

HOW TO APPROACH DEFENCES IN AN EXAM

1. Start with the elements of negligence – is liability established?

2. Identify if D raises any defence:
○ Volenti? → Did C truly accept the risk?
○ Illegality? → Was the harm caused by C’s crime?
○ CN? → Did C act carelessly?
3. Use clear case law support with explanation
4. Apply statutes (UCTA, RTA, CN Act) when relevant
5. Show awareness of policy tensions (e.g. rescuers, public interest)

EXAM TIPS - IRAC: FIRST CLASS

1. Read the Question Properly

● Spend 5–10 minutes identifying:

○ The area of law (e.g. negligence, omissions, psychiatric
harm)
○ Who is the claimant and defendant
○ Who is worth suing (e.g. manufacturer, council, employer)
○ What’s clearly negligent (no argument), and what’s
contentious (arguable)
○

2. Identify the Structure of the Tort

In negligence, use this core skeleton:

1. Duty of care
2. Breach
3. Causation in fact
4. Remoteness (legal causation)
5. Defences (contributory negligence, volenti, etc.)

3. Break Down Each Claim

Example: Joe v Supersmooth (Manufacturer)

Joe received a new car as a gift from his wealthy uncle on his 20th birthday. The car was
manufactured by a company called Supersmooth. A worker working in the test centre of
Supersmooth failed to notice that the steering mechanism was defective. Two days after
receiving the car, Joe was driving along a country lane when the steering failed and he
crashed into a tree just past the crest of a long hill. The local authority had previously
considered placing a SLOW marking near the crest of the hill because of previous
accidents at that spot, but no action was taken due to other priorities. Joe was shaken up
and his left arm was broken. He exited the vehicle, which was still occupying about half
of the left side of the road. Five minutes later Fred, who was driving a lorry at excessive
speed, failed to see Joe’s car as he came over the hill until just before he came upon it,
and when he swerved to avoid it he lost control of his lorry and crashed into the
oncoming car being driven by Sam, who was killed instantly.

Discuss the liability of all parties.

Here’s how the slides teach you to do it:

Joe v Supersmooth (Defective Car)

Duty

● Manufacturer → consumer duty (Donoghue v

Stevenson)
Also Grant v Australian Knitting Mills

Breach

● Apply reasonable skill test (like doctors): Bolam

Use breach factors:
○ Probability of harm: Bolton v Stone
○ Seriousness: Paris v Stepney
○ Precautions: Latimer
○ Social value: Watt
● Balancing test supports breach

Causation in fact

● But for test: Barnett

Remoteness
 ● Injury is reasonably foreseeable: Wagon Mound
No intervening act — D remains liable

Defences

● No contributory negligence, volenti, or ex turpi here

Conclusion: Supersmooth is likely liable

Sam’s Estate v Fred

● Duty – Driver to road users = Nettleship v Weston

● Breach – Speeding = fails reasonable driver test
● Causation – Even if crash may have happened anyway,
speeding increased risk and harm
● Remoteness – Death is foreseeable → Yes
● No break in chain → Fred still liable

Conclusion: Fred is liable to Sam’s estate

Sam’s Estate v Supersmooth and Joe

You apply similar analysis:

● Was there a foreseeable risk that others would crash into

Joe’s broken-down car?
● Was Joe expected to do something more (e.g. warning
triangle)? Maybe not — he had a broken arm

Wright v Lodge and Rouse v Squires → help you decide

whether a second driver’s negligence breaks the chain
(novus actus interveniens)
Local Authority?

No duty for omissions (Stovin v Wise, Gorringe v Calderdale)

No statutory duty to erect signs under Highways Act 1980

To get a First (70+) - All key issues identified, best case law used,
smart analysis

FINAL EXAM STRATEGY

● Use case law early and often — not dumped at the end
● Prioritise analysis (why D did/didn’t breach) over just stating
rules
● Make every sentence help solve the problem, not explain
background law
● Keep your answer organised by party — e.g. Joe v
Supersmooth, then Fred v Supersmooth, etc.