This is a step-by-step guide, or cheat sheet if you will, of how to approach, assess, and apply your knowledge to exam questions or scenarios in Tort Law. This cheat sheet is compact and goes through all elements in a tort, and even has authoritative citations through statutes and leading caselaw.
Quick few notes:
• When dealing with a dead claimant, all claims must be made under the Fatal Accidents Act 1976,
and the Law Reform (Miscellaneous Provisions) Act 1934 (per Hoyle v Hampshire CC [2022]).
• Both of these Acts must be mentioned during your analysis, mentioning only one or the other will
not suffice and can cause you to lose marks.
ELEMENT #1: DUTY OF CARE
• Must be proved per Donoghue v Stevenson [1932].
• Is established via the Caparo test (Caparo Industries plc v Dickman [1990]), voluntary
assumption of liability (Kent v Griffiths [2000]) or the incremental test (Michael v South Wales
Police [2015]).
- Caparo elements:
i. Reasonable foreseeability of harm by either the claimant or defendant.
ii. Proximity: geographical, temporal, relational and causal proximity (distinguished
in Australia’s Sutherland SC v Heyman (1985), approved in Stovin v Wise (1996)).
iii. Policies: is it fair, just and reasonable to impose a duty of care on the defendant?
• Consider statutory preclusions: mother’s immunity (s1(1) Congenital Disabilities (Civil Liability)
Act 1976); doctor’s failure-to-warn (Pearce v United Bristol Healthcare NHS Trust [1999]).
• It is difficult to establish a duty of care on a pure omission (Stovin v Wise [1996]).
ELEMENT #2: BREACH
• Had the defendant met the objective standard of care (SOC) (Wilsher v Essex AHA [1987])?
- Younger children have a diminished SOC (Carmarthenshire CC v Lewis [1955]).
- Those with a specialism have an increased SOC (Bolam v Friern Hospital Management
Committee (1957))
- Those unaware of their disability have a diminished SOC (Mansfield v Weetabix [1998]);
those aware of their disability do not have a suppressed SOC (C v Burcombe [2003]).
- Inexperience does not suppress one’s SOC owed (Nettleship v Weston [1971]).
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