Note to module planner law of tort

Explain the essential elements of the tort of negligence, namely the duty of care, the standard of duty of care to needed to be discharged depending on the skill of the actor and the sig

How to use the Module Planner

General

The Module Planner has been divided into a number of ‘Units,’ which you will progress through (more-or-less) in order, and which represent an attempt to divide up Law of Tort

in a reasonably intellectually coherent fashion

This Module Planner sets out in detail the plan of work for your module Your classes will

be structured around it, and your seminars are likely to be based upon the materials to

be found here Each Unit has an Introduction to set the scene, and references to show you what to read Your lecture tutor is likely to follow the Planner’s order of topics, and your seminar tutor to set you a number of questions to prepare ahead of each next week’s class

Lectures

For lectures, make sure you know what the topic is going to be in advance, and reflect upon how what you know already relates to that If you have the opportunity to read ahead on the substance of the lecture, so much the better Bring your Planner to the lecture, so that you can check the issues and names of the cases as your lecturer refers

to them That will guide you in how much more you need to read ahead of the seminar

Seminars

The three elements of your pre-seminar reading are the cases (and statutes where applicable), any articles that catch your attention, and your chosen main textbook Which order you read them in seems a matter of choice The writer’s preference is the order just stated, which has the bonus that if the cases are read on Westlaw then the database itself will make some suggestions of its own for articles to read

You will then need to work at the seminar questions Outline answers will usually suffice, but you should feel free to offer your tutor more fully written-up answers from time to time for them to give you feedback Most will be happy to do this, since they know that only by practice will you get to a point where you can be confident of passing A low mark now is better than a low mark in the coursework or examination You should bring

at least a textbook to your seminar in order to check or look up novel points as they arise

Reading for Class

The cases are there to be read, not to show off the writer’s learning Although the general answer to ‘Which are the most important cases?’ is ‘All of them’, nevertheless it is sometimes possible to mark particular cases as the ones that are to be read first If you ‘do not have time to read the cases’ then you do not have time to pass the assessments – it is as simple and brutal as that The statutes listed are a matter of finding the relevant sections and becoming familiar with them: the writer’s advice is to print them off from Westlaw or follow the links from the House of Parliament’s website: www.parliament.uk

It should be stressed at the outset that all names used in Questions (of any kind), Assessments and Written Assignments are hypothetical, and all incidents imaginary, and that no resemblance to any person or being, living or dead, real or imaginary, is intended

or should be inferred All inappropriate similarities, whether of name or of incident or both, are coincidental

Study Unit One

Study Unit Two

Study Unit Three

Study Unit Four

Product Liability and the Consumer Protection Act 1987 23

Study Unit Five

Study Unit Six

Economic Loss caused by Negligent Misstatement 30

Study Unit Seven

Common Law Employer’s Duties towards Employees 34

Study Unit Eight

Study Unit Eleven

Study Unit Twelve

Study Unit Thirteen

Study Unit Fourteen

Trespass to Persons/Unlawful Interference with Goods 58

The Law of Tort – A Brief Introduction

A tort is a civil wrong which entitles a person who suffers a detriment by its commission

to claim damages for his loss or injury In some circumstances, such as where a person suffers from a nuisance, the most appropriate remedy will be an injunction to prevent the continuation of the nuisance The primary function of the law of tort is to compensate the victim of a civil wrong, but the law also acts as a deterrent

Tort distinguished from Crime and Contract

The duty to refrain from committing a tort is imposed upon us all by law whether we like

it or not and that duty is owed to everybody In contract any liability can only come into existence by the agreement of the parties concerned A tort differs from a crime in that a crime is not a civil wrong The object of criminal proceedings is to protect the community

as a whole, whereas the principal objective of tort is to compensate a claimant for his loss A crime is punishable by the state whereas a claim in tort is brought by the person who has suffered a detriment – the claimant

A tort may also be a crime – so for example, any person who drives his car is obliged by law to drive carefully so as not to injure any other road user In the event that a driver breaches his duty and is negligent in his driving any person who suffers as a result of his negligence may bring a claim against the driver of the vehicle The negligent driving may also be a crime such as driving without due care and attention – this will be punishable

by the state It can be seen therefore that a person who drives negligently causing an accident may be punished by the state and may face a civil claim from any person who has suffered as a result of his negligence

Interests Protected

There are many different distinct torts which protect a wide range of interests A person’s personal safety is protected by the torts of negligence, battery, assault and false imprisonment Personal property is protected by the torts of nuisance, trespass to goods and trespass to land A person’s personal reputation is protected by the tort of defamation These interests are protected by means of the law acting as a deterrent and

by providing a mechanism for claiming compensation in the event of a breach

Defences to an Action in Tort

There are two types of defences that may be raised to an action in tort – those which may be raised in respect of more than one tort are known as general defences and include contributory negligence, volenti non fit injuria (assumption of risk or consent), self-defence, necessity and Act of God Other defences such as the defence of qualified privilege in libel are only available in respect of one tort and are known as particular defences

Module Descriptor

the module will be delivered by means of two one-hour lectures (often delivered consecutively) and one one-hour seminar each week The lectures will set out the rules principles and caselaw concerning each topic, making particular reference to any especially problematic areas Seminars will develop, test and challenge students’ understanding of each topic and ability to apply it under assessment conditions As well as their unit-by-unit research and reading, students will be expected to prepare specific discursive and problem-solving questions for discussion

in class Extensive use will be made of formative assessment techniques

Learning Outcomes for the Module

Knowledge

On completion of the module you will:

1 Identify and compare the nature of tort liability in comparison with contractual and

criminal liability

2 Explain the essential elements of the tort of negligence, namely the duty of care,

the standard of duty of care to needed to be discharged depending on the skill of the actor and the significance of policy considerations

3 Explore issues of causation in law and remoteness in negligence

4 Explore particular areas of negligence such as medical causation, psychiatric

harm and economic loss which involve the application of specific rules

5 Explain the general defences in tort and also the rules relating to the assessment

of damages

6 Explain and apply the law relating to occupiers’ liability

7 Explain the doctrine of strict liability in tort as stated in the case of Rylands v

Fletcher, together with any defences that are available

8 Explain the law of defamation and apply the common law and statutory defences

available as well as the remedies available to a claimant

9 Explain the law of trespass to persons and property and evaluate the differences

between it and the law of negligence

10 Explain the criteria that is needed to satisfy private nuisances and any defences

that are available

11 Explain the main provisions of the Consumer Protection Act 1987 and the cases

based on this statute

Skills

On completion of the module the student will be able to:

12 Identify and explain key legal concepts in the law of tort and apply them to case

studies

13 Analyse and synthesise relevant knowledge of law to complex legal issues

14 Demonstrate a high degree of problem solving abilities, including the ability to

identify the relevant issues and propose different solutions to factual cases

15 Research both primary and secondary sources to evaluate key legal principles

16 Demonstrate clear and effective written communication of arguments given a

specified word limit or under timed examination conditions

17 Demonstrate the ability to work independently and in a team

18 Present clear and succinct oral arguments based on case studies

Assessment Criteria

In Law of Tort, as a Level Five module, the particular assessment criteria used to assess the knowledge, research skills, analysis, application, and communication skills in the Learning Outcomes for this module are that the student will be required to:

1 demonstrate a critical understanding of the main principles of Law of Tort and

their inter-relationship and development;

2 understand, interpret, analyse and discuss with clarity legal materials relating to

the Law of Tort;

3 identify issues relating to a given problem, apply legal rules and principles and

propose solutions, including a critical evaluation of the appropriateness of different problem-solving methods;

4 carry out research according to a selection of the main Law of Tort methods of

inquiry, showing an awareness of the limits of knowledge and issues of interpretation and produce a comprehensive analysis of the current state of the law in a given area of the Law of Tort;

5 retrieve up-to-date primary and secondary sources of legal information, use legal

terminology with accuracy, analyse primary legal materials and communicate effectively in the English language;

6 demonstrate the ability to work independently and as part of a group

Assessment Strategy

There will be three units of Assessment for the module, which will assess the Learning Outcomes according to the above Assessment Criteria as follows:

20% Team Oral Presentation You will be required to work in pairs and carry out

research on a hypothetical case study and present the issues and their solutions as opposing parties

to the dispute This will assess Learning Outcomes 1-10, 12-15 and 17 & 18

70% of the overall mark will be given towards the oral presentation 20% will be

allocated for the skeleton argument (500 words maximum) The final 10% will be for the bibliography

30% Coursework You will research a pre-advised general area and

then answer an unseen question under timed conditions (one hour) This will assess Learning Outcomes 1-5 and 12-16

50% Examination This will be a 2 hours 15 minutes unseen

examination (with reading time), consisting of short answer questions based on a case study (Section A) This will assess Learning Outcomes 1-11 and 12-16

Reading List

Paul Giliker and Silas Beckwith, Tort, 3rd Edition 2008 (Sweet & Maxwell)

You are strongly recommended to read this text book as we will be using it as the ‘core’ text book for this module You will be asked to read the relevant chapters at the start of each module

To accompany the above text book, you should also purchase Tort: Cases and Materials, Second Addition (Sweet and Maxwell) by Geoffrey Samuel

The following text and case books are also recommended:

Jenny Steele, Tort Law, Text, Cases and Materials, 1st Edition, Oxford University

Winfield and Jolowicz on Tort, Rogers (17th edition) 2006 (Sweet & Maxwell)

Markensis and Deakin, Tort Law, 6th Edition, 2007 (OUP)

Law Reports

Students are liable to ask ‘Do I have to read all these cases?’ The short answer is ‘Yes.’ Not for nothing is this known as a common law legal system The longer answer is that these are merely a selection – although it is intended to be a representative one that covers the main points on each topic – and that the better question is ‘Can I pass despite reading so few as these?’ The answer to that question may well be ‘Yes’, but you will need to read the Law Reports thoroughly and reflect upon what you read At any rate, it is on that basis that these lists were compiled

It is assumed that the reader is familiar by now with the various sets of Reports, and where to find them in the Library They will find that many important Tort cases are also available online, and that will be especially useful to them at coursework time

Websites

Increasingly the internet is becoming a good source of information for law students The following may be of use, but bear in mind that URLs are subject to change, as is the free access provided by some operators

(A) LAW REPORTS

(C) LEGAL REFERRAL SITES

www.venable.co.uk

Excellent free general resource site – provides a gateway to a host of other web

resources related to law

www.smlawpub.co.uk

Site for Sweet & Maxwell, leading law publishers

(E) GOVERNMENT SITES

A large number of journal articles are cited, so it is worth making clear what is expected.

You are expected (indeed, required) to read every single case cited (see above) You are not expected to read every journal article – indeed, you are expected not to do

so Instead, read those that seem most relevant to what you are assigned particularly by your tutor to work on, or seem most interesting from their title, and so on

Please bear in mind that articles are only secondary sources, whereas the caselaw is the primary source of English [and Welsh, as always] Law However, they will deepen your understanding of the subject, which will be especially relevant to those seeking or needing to obtain the higher grades in this module

Some of the less well-known sets of Law Reports are also listed here, since they will sometimes be cited in the Units that follow

CLJ Cambridge Law Journal

CLP Current Legal Problems

IHL In-House Lawyer

L Ex Legal Executive

L Teach Law Teacher Journal

Legal Studies Legal Studies

LQR Law Quarterly Review

MLR Modern Law Review

NLJ New Law Journal

Learning Outcomes

Each unit contains a number of learning outcomes: these are intended as a formal statement of its contents in order to guide you in your study of each topic Once you have completed the reading for each unit, you should go back to the learning outcomes and ensure that you understand the topics to which they refer Remember that the subject must always be looked at as a whole: if you do not understand what the learning outcomes refer to, you will need to repeat your reading

You should not progress from one unit to the next until you understand, and have reached, the learning outcomes for that particular unit You will be able to tell whether you have done so from your answers to the questions in the unit

Study Advice

One of the main areas of study in tort is negligence You will see that almost one third of the syllabus is devoted to this one particular tort Other torts that will be studied include occupiers’ liability, nuisance, defamation, liability for animals, trespass to the person, goods and land and vicarious liability

The law of tort is heavily case based and students are advised to make case notes from the outset – the same cases will be used to illustrate several legal principles and the making of case notes will help to save time and help in understanding a course which is conceptually challenging at times, but is generally thoroughly enjoyed by the vast majority of students

Plagiarism

Plagiarism is a form of dishonesty which is viewed by the College and the University as

a serious offence The University’s Regulations contain provisions by which the

Examination Board may penalise students who are found to have presented plagiarised work for assessment The purpose of this statement is to explain what plagiarism is Further information about the procedures which are followed, where allegations of plagiarism are made - together with the penalties that may be imposed - can be found in the University of Wales Regulations, and the Programme Handbook

Plagiarism consists of presenting someone else’s work as your own Some examples of plagiarism are:

• reproducing or paraphrasing published material without acknowledgement of the source

• copying from the work of another student

• undeclared collusion with another student

• getting someone else to do your work for you

This is not an exhaustive list There are clearly degrees of plagiarism, particularly where published work is concerned At one extreme there may be a very short section of a coursework which is copied without being properly referenced; at the other extreme a coursework may consist almost entirely of copied work

Study Unit One

Suggested minimum study hours: 3 hours

Topic

Introduction to the law of Torts

Learning Outcomes

• Explain the meaning of 'tort’;

• Explain the meaning of ‘negligence;’

• Explain the key differences between tort and criminal liability;

• Demonstrate awareness of Lord Atkin’s neighbourhood principle;

• Discuss the nature of acts and omissions in regards to duty of care and the circumstances which give rise to it;

• Explain the development of the neighbourhood principle in Anns v Merton and the three stage test in Caparo v Dickman

Essential Reading

Chapter 1 (Page 1 to 20), Tort, Giliker and Beckwith, 3rd Edition

Chapter 2 (Page 21 to 42 only), Tort, Giliker and Beckwith, 3rd Edition

Other Reading

Rodger ‘Lord MacMillan’s Speech in Donoghue v Stevenson’ (1992) 108 LQR 236 Markesinis and Deakin ‘An Analysis of the Tort of Negligence from Anns to Murphy’ (1992) 55 MLR 619

Primary Sources

Neighbourhood principle

Donoghue v Stevenson [1932] A.C 562

Bourhill v Young [1943] AC 92

Development of the principle of Duty of Care and the ‘Two Stage Test’

Dutton v Bognor Regis UDC [1972] 1 QB 373

Anns v Merton London Borough Council [1978] AC 728

Junior Brooks v Veitchi [1983] 1.A.C 520

Sutherland Shire Council v Heyman (1985) 60 ALR

Yuen Kun Yeu v Attorney General of Hong Kong [1988]

Murphy v Brentwood District Council [1991] AC 398

The Three Stage Test

Caparo Industries v Dickman [1990] 2 AC 605

4 What was the two-stage test enunciated by Lord Wilberforce in Anns v Merton

London Borough Council?

5 What did Lord Wilberforce mean by proximity? What is the ‘necessary

qualification of proximate relationship’?

6 What was the formulation of the test for duty of care in Caparo v Dickman?

7 There now appear to be four requirements for establishing whether a duty of care

exists: forseeability of damage, proximity, public policy and whether it is just and reasonable to impose a duty Will all these requirements be referred to by the court in every case?

8 In determining what is fair, just and reasonable, what factors will the court take

into account?

Seminar Questions

1 Analyse the fundamental differences between the law of Tort and

1) Criminal Law

2) Contract Law

2 Taken from A Casebook on Tort by Tony WeirSweet & Maxwell, 10th Edition

a) Suppose that Mrs Donoghue bought a bottle of Stevenson's ginger beer

for 40p and took it home; and that when she opened it, she saw a decomposed snail at the top of the bottle, and suffered shock at the thought of what she might have drunk Could she recover from the manufacturer (i) damages for shock; (ii) 40p?

b) Suppose that Stevenson got his bottles from Louis, and that Mrs

Donoghue had been injured because of a defect in the bottle which Stevenson couldn't have discovered Would Louis or Stevenson be liable,

or both?

c) Suppose that the victim is not a regular consumer like Mrs Donoghue but

a shop-lifter or a tester for "Which?"* Would you make the manufacturer liable? If not, would this be because he owed no duty or for some other reason?

* ‘Which’ is a consumer watchdog magazine

3 John is a window cleaner and has agreed to clean the windows of Samantha’s

house

Explain whether a duty of care arises in the following situations:

a) During lunch time, John decides to go to the café for something to eat He

leaves the ladder underneath the window to Samantha’s house A burglar climbs up the ladder and steals jewellery and money from Samantha’s bedroom

b) John needs to go the toilet and leaves the ladder lying on the floor A

burglar steels the ladder and uses it to break into a window of a house a few blocks away

c) John leaves the ladder alongside the door of Samantha’s house to

answer a telephone call on his mobile Samantha’s son, Peter climbs up the ladder and slips He lands on his elbow and requires hospital treatment

Study Unit Two

Suggested minimum study hours: 3 hours

Topic

The Standard of Duty of Care

Learning Outcomes

• Explain the key factors surrounding the general standard of duty of care including

foreseeability and magnitude of risk, the activity in question and steps taken to reduce risk;

• Research the key provisions of the Compensation Act 2006 in relation to the

standard of duty of care and evaluate its significance;

• Identify the standard of duty of care for professionals and amateurs and analyse

policy issues involved in case law decisions;

• Demonstrate awareness of the concept of causation;

• Briefly identify the difference between causation in ‘fact’ and in ‘law’;

• Explain the concept of Res Ipsa Loquitur

Essential Reading

Chapter 5 (Page 140 to 166), Tort, Giliker and Beckwith, 3rd Edition

Chapter 11 (11-018 – 11.033) (Page 356 to 372), Tort, Giliker and Beckwith, 3rd Edition ( Consent to Treatment )

Other Reading

Primary Sources

General Standard of Duty of Care

Blyth v Birmingham Waterworks Co (1856)

Roe v Ministry of Health [1954] 2 Q.B 66

Amateurs

Wells v Cooper [1958] 2 QB 265

Nettleship v Weston [1971] 2 QB 69

Standard of duty of care for professionals

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Whitehouse v Jordan [1980] All E.R 650

Wilsher v Essex Area Health Authority [1988] AC 1074

Is the Duty of Care Absolute?

Latimer v AEC [1953] AC 643

General Cleaning Contractors v Christmas [1953] AC 180

What steps need to be taken to eliminate risk?

Bolton v Stone [1951] AC 850

Paris v Stepney Borough Council [1951] AC 367

Res ipsa loquitur

Byrne v Boadle [1863] 2 H&C 722

Cassidy v Ministry of Health [1951] 2 KB 343

Henderson v Henry E Jenkins & Sons [1970] AC 282

Ward v Tesco Stores Ltd [1976] 1 WLR 810

Ng Chun Pui v Lee Chen Tat [1988] RTR 298

3 How was the standard of the reasonable man applied in Nettleship v Weston?

4 What does Bolton v Stone state about the foreseeability of risks? At what point

should the cost justify the reasonable man in taking no precautions?

5 What is the standard of care demanded of a child?

6 Is the standard of care required reduced in the case of an emergency?

7 What standard is used for skilled or professional persons?

8 Is there a distinction between negligence and an ‘error of clinical judgment’?

9 Explain what is meant by the term res ipsa loquitur?

Seminar Questions

1 Billy is an aged, accident-prone, golf-loving millionaire He owns a large estate on

the outskirts of Preston on which he has built a golf course

Billy has been blessed with the ability to hit a golf-ball very hard but, unfortunately, lacks the ability to direct his shots Occasionally he hits the ball out

of his estate on to a busy street in Preston

When this happens the ball is usually travelling very fast and should it hit anyone

it is likely to occasion serious injury Billy could largely reduce the risk of injury by erecting a 20-foot fence around his estate, at a cost of £80,000, but is unwilling to

do so because it would lower the appearance of his estate

One day a ball hit by Billy goes out of his estate and hits Jimmy, severely injuring him

Advise Billy as to whether or not he has been negligent

2 In 1996 Brenda, then aged 20, had recently started a modelling career She went

to Andrew, a dentist, complaining of intermittent severe pain in her jaw Andrew treated an infected tooth She did not experience the pain for some time but early

in 1998 it recurred more severely Tests have shown that she is suffering from a cancerous condition and will require major surgery which will leave her disfigured The medical evidence now is that early signs of her condition would normally have been detectable as early as 1995 and that there is a possibility that, if she had been treated in 1996,she would have experienced no disfigurement

Last month she was walking past a lorry belonging to Conrad plc which was parked in the street A heavy sack suddenly toppled from the lorry for no apparent reason and struck her in the face She was permanently scarred and lost an eye

Advise Brenda

3 Mrs White was admitted to hospital with breathing difficulties That evening Dr

Green decided to perform an emergency operation and insert a device in her windpipe She was then transferred to intensive care under Nurse Brown Nurse Brown was a temporary nurse hired from the Florence Agency The agency paid her remuneration and the hospital paid a fee to the agency Nurse Brown was instructed to summon a doctor if there was any change in Mrs White’s condition

She was a very experienced nurse who had previously worked in a specialist clinic where she had tended people in Mrs White’s condition When Mrs White’s windpipe became temporarily obstructed, she attempted to clear it herself but was unsuccessful

Most doctors would not have performed surgery when Dr Green did They would have waited until it was clear that she was not responding to other treatment, but some would have performed surgery It is not clear whether Mrs White would have recovered from the emergency if Nurse Brown had summoned help or if she would have died anyway

Advise Mrs White’s executors

Study Unit Three

Suggested minimum study hours: 3 hours

Topic

Causation

Learning Outcomes

Causation in Fact

• Explain the “but for” test in causation;

• Examine the liability of tortfeasors in cases where there are concurrent and

successive causes and apply to factual situations;

• Evaluate the burden of proof needed to demonstrate causation, in particular,

where the exact cause is difficult to establish;

• Identify the meaning of “materially increasing the risk” to a victim as stated in the

case of McGhee v National Coal Board (1973);

• Identify situations where joint and several liability arise with reference to decided

cases and the Compensation Act 2006;

• Explain the doctrine of “loss of chance” as exemplified in the case of Hoston v

East Berkshire Area Health Authority (2005) and Gregg v Scott (2005)

Causation in Law

• Demonstrate awareness of remoteness issues in regards to causation and apply

to factual situations;

• Evaluate the ‘directness’ approach taken in Re Polemis (1921) and why its ruling

was not followed in subsequent case law;

• Research the decisions of Wagonmound 1 and Wagonmound 2 and subsequent

cases which marked the turning point of the ‘new law’ on causation;

• Explain the doctrine of the “egg shell skull rule”;

• Explain the concept of ‘novus actus interveniens’ and evaluate the decided cases

surrounding it

Essential Reading

Chapter 6 (Page 167 to 201), Tort, Giliker and Beckwith, 3rd Edition

Other Reading

Dovey ‘Tort and Contact’ [2000] L Ex 18

Griffiths ‘The Standard of Care Expected of a First Aid Volunteer’ (1990) 53 MLR 255 Harpwood ‘Bolitho, Expert Evidence and the Role of Judges’ [2001] 6 Health Law 1 McInnes ‘The Death of Res Ipsa Loquitur in Canada’ (1998) 114 LQR 547

Robertson ‘Informed Consent to Medical Treatment’ (1981) 97 LQR 102

Teff ‘Consent to Medical Procedures: Paternalism, Self-Determination or TherapeuticAlliance?’ (1985) 101 LQR 432

Thomas ‘Sued rather than bruised’ [2002] L Ex 38

Trindade ‘Disclosure of Risks in Proposed Medical Treatment’ (1993) 109 LQR 352

Jobling v Associated Dairies [1982] AC 794

When the exact cause cannot be determined

Wilsher v Essex Area Health Authority [1988] AC 1074

McGhee v National Coal Board [1973]

Fairchild v Glenhaven Funeral Services and Others; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd and Another [2002] Barker v Corus (UK) plc [2006] UKHL 20

Loss of chance

Hoston v East Berkshire Area Health Authority (2005) A.C 750 3

Gregg v Scott [2005] 2 A.C 176

Causation in Law

The ‘directness’ test

Re Polemis [1921] 3 KB 560

New Law on causation

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co [1961] AC 388 a.k.a The Wagonmound No 1

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] a.k.a The Wagonmound No 2

Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518

Hughes v Lord Advocate [1963] AC 837

Tremain v Pike [1967] 1 WLR 337

Home Office v Dorset Yatch Co Ltd [1970] A.C 1004

Jolley v Sutton LBC [2000] 1 WLR 1082

The “thin skull rule”

Smith v Leech Brain & Co [1962] 2 QB 405

Novus actus interveniens

Self-Test Questions

1 What is the ‘but for’ test?

2 How was the ‘but for’ test applied in Barnett v Chelsea and Kensington Hospital

Management Committee? Do you think that the result was a fair one?

3 What principle do the courts apply where the damage suffered by the plaintiff is

attributable to a pre-existing condition rather than the defendant’s negligence?

4 What is the ratio of Hotson v East Berkshire AHA?

5 What is the ratio of McGhee v NCB?

6 How was McGhee interpreted by the House of Lords in Wilsher v Essex AHA?

7 What is the ratio of Baker v Willoughby? What difficulties may arise where there

are successive causes of harm to the plaintiff?

8 How was Baker interpreted in Jobling v Associated Dairies? Do you find the

distinction between the cases to be a satisfying one?

9 Do think that the decision of the House of Lords in Fairchild v Glenhaven Funeral

Services Ltd was correct?

Seminar Questions

1 Tony’s neighbour, Sid, offers to carry out the servicing of Tony’s car Sid has just

completed a series of fifteen evening courses on basic car maintenance Since Tony is unemployed and short of money he accepts Sid’s offer Sid forgets to replace the radiator cap after topping up the water, so that steam starts to come out of the bonnet of the car when Tony is driving for the first time after Sid has carried out the servicing

Tony leaves the car at the side of the road when he sees the steam and walks off

to find a telephone from which to summon help In his anxiety he forgets to lock the door of the car and leaves the keys in the ignition In his absence an unknown thief steals the car and when driving it at high speed through a red traffic light collides with Brian’s car, causing Brian severe injuries The unknown thief runs off and is never traced

Advise Brian

2 One night Alf stepped in front of a yellow car and was knocked down In panic

the driver of the yellow car drove off, leaving Alf lying in the road The driver of the yellow car cannot be traced Half an hour later Brian, who was late for an important business appointment, drove down the same road Because of the bad light Brian did not see

Alf’s body until he was 20 yards away He braked hard but failed to avoid it Brian’s car went into a skid on the slippery road, ran over Alf and crashed into a tree

Alf was killed in the second accident although medical evidence showed that he had already suffered brain damage in the collision with the yellow car Both Brian’s legs were broken when the car hit the tree and he will have a limp for the rest of his life and will be unable to carry out his favourite hobby of hill walking Medical evidence showed, however, that he already had a pre-existing arthritic condition which, despite the accident, would have caused stiffness in his legs in later years

Discuss

3 Explain the difference between the two “Wagonmound” cases?

Study Unit Four

Suggested minimum study hours: 3 hours

Topic

Product Liability and the Consumer Protection Act 1987

Learning Outcomes

• Explain the impact of Donoghue v Stevenson on product liability;

• Explain how manufacturers and suppliers could be held liable applying the

normal rules of negligence;

• Research the main provision of the Consumer Protection Act and the liability

which manufacturers and suppliers may incur under the act;

• Explain the possible defences under the CPA for a manufacturer and supplier;

• Evaluate whether the CPA improves the position of the claimant from common

Cartwright ‘Product Safety and Consumer Protection’ (1995) 58 MLR 222

Newdick ‘The Development Risk Defence of the Consumer Protection Act 1987’ [1988] CLJ 455

Newdick ‘The Future of Negligence in Product Liability’ (1987) 103 LQR 288

Tettenborn ‘Components and Product Liability: Damage to “Other Property” ’ [2000] LMCLQ 338

Primary Sources

Common Law Approach

Donoghue v Stevenson [1932] AC 562 (HL)

Liability under the Consumer Protection Act

A v National Blood Authority [2001] 3 All ER 289

Andrews v Hopkinson [1957] 1 QB 229

Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 All ER 135

Carroll & Others v Fearon and Others [1999] ECC 73

Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283

Grant v Australian Knitting Mills Ltd [1936] AC 85

Kubach v Hollands [1937] 3 All ER 907

Mason v Williams & Williams Ltd [1955] 1 WLR 549

Richardson v LRC Products [2000] Lloyd’s Rep Med 280

Self-Test Questions

1 What statement of principle was established by the House of Lords in Donoghue

v Stevenson relating to product liability?

2 What were the limitations of this common law rule? What were the factors

leading to the introduction of the CPA 1987?

3 What was the basis of the decision in Grant v Australian Knitting Mills Ltd?

4 Why were the defendants not liable in Evans v Triplex Safety Glass?

5 Who may be liable under s2(2) of the CPA? What is the relationship between an

action in negligence and the CPA when the claimant is injured by a defective product?

6 In what circumstances may the supplier of the product be liable?

7 What is a product for the purposes of the CPA? Who is a ‘producer’ for this

purpose?

8 When is a product defective according to the CPA?

9 To what extent can a manufacturer satisfy his obligations under the Act by

10 What is the ‘state of the art’ or ‘development risks’ defence? Do you think it

should have been included within the Act? What other defences are available to

a producer under the Act?

Seminar Question

AI inc are north American manufacturers of lifelike interactive pets which match the intelligence of real domestic animals AI does not deal directly with members of the general public and distributes it’s unique set of electronic Alsatian dogs in the UK through its subsidiary Ga Ga Electronics plc who replace the existing US batteries to make them compatible with the UK domestic market All dogs are sold exclusively through the retail shop Pets R Us

Each dog has a fail safe battery which can be operated through a remote control This is supplied to control the dog should it become unruly and in need of control However, the instructions accompanying the dog do state that Alsatian dogs have a wild temperament

by nature

Albert orders one of such dogs from Pets R Us When the electronic Alsatian Dog is delivered it behaves like any other domestic dog would and is receptive to commands given to it by Albert After one week,

Albert notices that Alsatian dog is chewing on his laptop after having destroyed his armchair He presses the remote control to operate the battery but it fails to work and the Alsatian attacks Albert

Pets R Us has now closed all of its branches and ceased business A spokes person for the company recommended that Albert refer the matter to Ga Ga electronics However,

Ga Ga Electronics maintain that they have an impeccable reputation in the consumer electric industry and since they had not sold the product to Albert directly they refuse to accept liability

The battery was developed by Megatron Electronics in France who state that they sell multi purpose batteries to different producers who use them for a variety of different products

Advise Albert as to how the Consumer Protection Act 1987 would apply to this situation.

Study Unit Five

Suggested minimum study hours: 3 hours

Topic

Psychiatric Injury

Learning Outcomes

• Demonstrate awareness of the development of law regarding psychiatric injury;

• Identify the classification of claimants who are able to claim for psychiatric injury;

• Analyse the “control mechanisms” in Alcock v Chief Constable of South

Yorkshire Police which are needed to establish psychiatric injury and apply to factual situations;

• Evaluate the policy decisions of White v Chief Constable of South Yorkshire

Police in relation to professional and non professional rescuers intending to claim for psychiatric injury;

• Evaluate the decision of Page v Smith as to whether psychiatric injury can be

determined to be the same kind of harm as physical injury;

• Research the extent to which the law would allow for psychiatric injury as a result

of injury and the work place and stress at work;

• Demonstrate awareness of calls for reform of the law on psychiatric injury and

evaluate proposals

Essential Reading

Chapter 4 (Page 107 to 137), Tort, Giliker and Beckwith, 3rd Edition

Chapter 7 (Section 7-008 and 7 -009) (Page 208 to 212 ), Tort, Giliker and Beckwith, 3rd

Edition for Stress at work

Chapter 6, Page 299 to 339, Tort Law Cases and Materials, Jenny Steele, 1st Edition

Other Reading

Hedley ‘Nervous Shock: Wider Still and Wider?’ [1997] CLJ 254

Hopkins ‘A New Twist to Nervous Shock: Page v Smith’ [1995] CLJ 491

Law Commission Consultation Paper No 137 (1995) ‘Liability for Psychiatric Illness’

Steele ‘Scepticism and the Law of Negligence’ [1993] CLJ 437

Tan ‘Nervous Shock: Bystander Witnessing a Catastrophe: McFarlane v Caledonia Ltd’ [1995]

111 LQR 48

Teff ‘Liability For Psychiatric Illness: Advancing Cautiously’ (1998) 61 MLR 849

Thomas ‘Page v Smith: A Scottish Footnote’ (1996) 112 LQR 383

Trindade ‘Nervous Shock and Negligent Conduct: Page v Smith’ (1996) 112 LQR 22 Woollard ‘Nervous Shock: the Story So Far: Law Commission Paper No 137’

(1996) 30 L

Teach 105

Primary Sources

Early cases on psychiatric injury

Dulieu v White & Sons [1901] 2 KB 669

Hambrook v Stokes Bros [1925]

Bourhill v Young [1943] AC 92

Control mechanisms on psychiatric injury claims

Alcock v the Chief Constable of the South Yorkshire Police [1992] 1 AC 310

White v the Chief Constable of the South Yorkshire Police [1999] 2 AC 455

Self-Test Questions

1 What is meant by the phrase ‘nervous shock’? Is ‘psychiatric damage’ a

preferable phrase? (See Bingham LJ in Attia v British Gas plc.)

2 Why are grief and sorrow alone not actionable?

3 What is the ratio of Bourhill v Young?

4 What is the ratio of McLoughlin v O’Brian? How has the case been subsequently

interpreted? To what extent may a stranger establish liability for nervous shock?

5 What was the test of liability laid down by Lord Wilberforce in McLoughlin?

6 What was the test of liability laid down by Lord Bridge in McLoughlin?

7 What is the role of public policy in nervous shock cases? What are the criteria for

establishing liability for nervous shock since Alcock?

8 Can damages be recovered for nervous shock suffered as a result of witnessing

property damage?

9 Does stress at work give rise to an action in negligence? What factors will be

taken into account by the courts?

Seminar Questions

1 Bill is burnt to death in a car accident caused by the negligence of Ben Advise

the following parties, who all suffer nervous shock, whether or not they have a cause of action in negligence against Ben:

a) Brian, who witnessed the accident;

b) Benedict, who unsuccessfully tried to rescue Bill;

c) Bill’s wife, who saw Bill’s mutilated body at the hospital;

d) Bill’s mother, who saw the accident live on television;

e) Bill’s father, who saw the accident on the television evening news;

f) Bill’s mistress, who saw a photograph of the accident in a newspaper the following morning;

g) Bernard, who saw the only copy of his research work (which had taken two years to complete) burnt to a cinder in Bill’s car;

h) Bobby, who saw the accident and realised that Bill was wearing his suit

2 The 16:30 train from Liverpool to London run by CABLE trains is already 30

minutes late in arriving at its destination in Euston station As the train approaches London, the train driver ignores the red signal on the level crossing and smashes into a car driven by Hassan

Hassan is seriously injured on impact Mike, a passenger on the train, can just about make out Hassan’s bruised and battered body inside the car from a distance and develops a rare form of post traumatic stress disorder as a result of what he sees

Hassan is taken out of the car wreckage with the help of police officer Mary who has twenty years experience on the job By coincidence, Hassan and Mary are also husband and wife Mary becomes sick and suffers nervous shock soon afterwards

The driver of the train is killed on impact His assistant Simon operating the train with him is traumatised by the scene and is diagnosed psychiatrically ill and put

on suicide watch

Assuming that CABLE trains is responsible for the actions of its employees examine its responsibility towards Hassan, Mike, Mary and Simon

Study Unit Six

Suggested minimum study hours: 3 hours

Topic

Economic Loss caused by negligent misstatement

Learning Outcomes

• Outline the difference between “pure economic loss” and consequential

economic loss as established in the case of Spartan Steel v Martin

• Evaluate the policy considerations traditionally surrounding economic loss

• Briefly outline the old law in relation to economic loss

• Outline the Hedley Byrne principle in relation to negligent misstatement

• Evaluate the application of the Hedley Law principle in subsequent cases

• Analyse the case decision of Caparo v Dickman

• Examine the liability for negligent references

• Examine the liability for negligently drafted wills

Cooke ‘Henderson v Merritt Ltd, Spring v Guardian Assurance’ (1995)

Hedley ‘Negligence – Pure Economic Loss – Goodbye Privity, Hello

Merrett Ltd’ [1995] CLJ 27

Heydon ‘The Negligent Fiduciary: Henderson v Merrett Ltd’ (1995) 111

Maher ‘The Auditor’s Duty of Care – Caparo Test Ten Years On’ [2000]

Norton ‘Auditor’s Liability since Caparo’ [2000] CLL Rev 92–107

Stapleton ‘Duty of Care and Economic Loss’ (1991) 107 LQR 249