© A. Barrie Goldstone 2020: page 0 The Barrie Guide to Tort 2020 Volume One Barrie Goldstone Head of the School of Law London Metropolitan University © A. Barrie Goldstone 2020: page 1 CONTENTS PART 1: INTRODUCTION TO TORT 1 DICTIONARY DEFINITION 2 TYPES OF TORT 3 THE FUNCTION OF THE LAW OF TORT 4 TYPES OF TORTIOUS DAMAGES PART 2: THE ELEMENTS OF NEGLIGENCE 5 THE THREE STAGES PART 3: THE DUTY OF CARE IN NEGLIGENCE 6 THE GENESIS OF NEGLIGENCE: Heaven v. Pender 7 THE NEIGHBOUR PRINCIPLE: Donoghue v. Stevenson 8 CONFIRMING THE TEST IN DONOGHUE V. STEVENSON 9 EXTENDING THE DUTY OF CARE: Denning and Co. 10 THE POLICY ELEMENTS: McLoughlin v. O’Brian 11 THE HIGH-WATER MARK: Junior Books v. Veitchi Co. Ltd. 12 THE RETREAT FROM ANNS v. MERTON: Lord Keith and Co. 13 REINTERPRETING ANNS v. MERTON 14 ISOLATING PROXIMITY: Hill v. Chief Constable of West Yorkshire 15 THE TRIPARTITE TEST: Caparo v. Dickman PART 4: THE DRIVE OF PUBLIC POLICY IN DUTY OF CARE 16 THE DRIVE OF POLICY: Practical Solutions 17 ACTS AND OMISSIONS 18 THE EMERGENCY SERVICES: Duty of Care and Omissions 19 THE EMERGENCY SERVICES: Duty of Care and Commissions 20 PUBLIC POLICY AND THE ARMED FORCES 21 PUBLIC POLICY AND LOCAL AUTHORITIES 22 THE EDUCATIONAL NEEDS OF CHILDREN 23 THE PHYSICAL SAFETY OF CHILDREN 24 A DUTY TO ADOPTIVE PARENTS? 25 PUBLIC POLICY AND WRONGFUL BIRTH 26 BARRISTERS’ IMMUNITY © A. Barrie Goldstone 2020: page 2 PART 5: DUTY OF CARE AND HUMAN RIGHTS 27 POLICY, ARTICLE 6 AND STRIKING OUT ACTIONS 28 THE OSMAN CASE 29 THE CHILD ABUSE CASES 30 ARTICLES 2 AND 3: Police Liability PART 6: BREACH OF THE DUTY OF CARE 31 GENERAL PRINCIPLES 32 WHO IS THE REASONABLE MAN? 33 WHAT IS A REASONABLE STANDARD OF CARE? 34 THE MAGNITUDE OF THE RISK 35 THE SERIOUSNESS OF THE POTENTIAL HARM 36 THE COST OF ELIMINATING THE RISK 37 COMMON PRACTICE 38 THE SOCIAL VALUE OF THE DEFENDANT’S CONDUCT: Emergency Vehicles 39 OTHER SITUATIONS OF SOCIAL VALUE 40 GENERAL KNOWLEDGE AT THE TIME OF THE INCIDENT 41 THE UNSKILLED DEFENDANT 42 ATTENDANCE AT DANGEROUS EVENTS: The Sports Cases 43 THE CHILD DEFENDANT 44 RES IPSA LOQUITUR PART 7: PROFESSIONAL NEGLIGENCE: Duty of Care 45 INTRODUCTION TO THE PROFESSIONAL DUTY OF CARE 46 THE BRISTOL ROYAL INFIRMARY HEART SCANDAL 47 THE DUTY OF DISCLOSURE: Informed Consent PART 8: PROFESSIONAL NEGLIGENCE: Breach of Duty 48 INTRODUCTION 49 THE BOLAM TEST 50 THE STANDARD OF CARE UNDER BOLAM 51 THE BOLAM TEST AND OTHER PROFESSIONS 52 THE TEST OF REASONABLE CARE UNDER BOLAM 53 CONFLICTING PROFESSIONAL STANDARDS 54 THE BOLITHO REFINEMENT © A. Barrie Goldstone 2020: page 3 55 LIMITS OF CONTRACTUAL NEGLIGENCE PART 9: CAUSATION IN FACT 56 INTRODUCTION 57 THE SCOPE OF THE DUTY 58 CAUSATION IN FACT: The But-For Test 59 CAUSATION IN FACT: Unfortunate Coincidences 60 CAUSATION IN FACT: Proving Causation 61 CAUSATION IN FACT: Significant Increase in Risk 62 CAUSATION IN FACT: Non-Disclosure of Risk 63 CAUSATION IN FACT: Loss of Chance 64 CAUSATION IN FACT: Professional Negligence 65 CAUSATION IN FACT: Cumulative Causes 66 CAUSATION IN FACT: Consecutive Causes PART 10: CAUSATION IN LAW: Remoteness 67 INTRODUCTION 68 EXCESSIVE INJURIES 69 INJURIES OF AN UNFORESEEN TYPE 70 NOVUS ACTUS INTERVENIENS: Introduction 71 NOVUS ACTUS INTERVENIENS: Acts of the Claimant 72 NOVUS ACTUS INTERVENIENS: Acts of Nature 73 NOVUS ACTUS INTERVENIENS: Acts of a Third Party TUTORIAL QUESTIONS © A. Barrie Goldstone 2020: page 4 PART 1: INTRODUCTION TO TORT 1 DICTIONARY DEFINITION 1.1 tort n. Law a breach of duty (other than under a contract) leading to liability for damages. [Middle English via Old French from medieval Latin tortum ‘wrong’, neut. past part. of Latin torquere tort – ‘twist’] Oxford English Dictionary 2 TYPES OF TORT 2.1 The law of tort is concerned with obligations arising under civil law, other than by contractual agreement or the law of trusts. Unlike contractual obligations, most tortious obligations are negative – i.e. things you must NOT do unless you wish to be sued for a remedy. 2.2 Although the law of tort covers a great many unsociable activities, there remain many indiscretions which are not recognised as torts. Thus whilst people who shout into mobile phones on the train, rustle sweet wrappers at the theatre or try to beat toddlers at Snakes and Ladders are certainly annoying, such bad manners do not make them ‘tortfeasors’. Such things are said to be "damnum absque injuria": injuries which does not give rise to legal rights. 2.3 D v. East Berkshire Community Health NHS Trust [2005] 2 AC 373 (HL) “The world is full of harm for which the law furnishes no remedy. For instance, a trader owes no duty of care to avoid injuring his rivals by destroying their long-established businesses. If he does so and, as a result, one of his competitors descends into a clinical depression and his family are reduced to penury, in the eyes of the law they suffer no wrong and the law will provide no redress – because competition is regarded as operating to the overall good of the economy and society. A young man whose fiancée deserts him for his best friend may become clinically depressed as a result, but in the circumstances the fiancée owes him no duty of care to avoid causing this suffering. So he too will have no right to damages for his illness. The same goes for a middle-aged woman whose husband runs off with a younger woman. Experience suggests that such intimate matters are best left to the individuals themselves. However badly one of them may have treated the other, the law does not get involved in awarding damages.” per Lord Rodger at para 10 2.4 On the other hand, wise people should not engage in the following activities… NEGLIGENCE: By far the most common tort, the ambit of legal negligence is strictly controlled by the courts. Mere careless behaviour will not do. There must be a breach of a recognized duty of care which has caused foreseeable loss or damage, and even all that might not be enough to ensure a successful claim. Most of this manual is involved in discussing the intricacies of this complex tort. OCCUPIERS’ LIABILITY: Occupiers of premises owe a special duty in addition to normal ‘negligence’ to consider the safety of those who enter those premises. Originally entirely a common law matter, predating even the modern tort of negligence, Occupiers’ Liability is now governed by two statutes, imaginatively titled the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. PRIVATE NUISANCE: It is a tort unreasonably to interfere with people’s enjoyment of their land. Smoke, noise, vibrations – even perambulating prostitutes – may be targeted here, but only a person with an interest in the land may bring the action. RYLANDS v. FLETCHER: A rather clumsy name for a largely defunct tort, this is akin to private nuisance. It involves bringing something onto your land which is not naturally there and which may cause injury to your neighbour if it escapes. If it does escape and causes injury – oh dear! Originally applied to a leaking reservoir, it has been known to cover fumes, electricity and even chairs from a fairground ride! © A. Barrie Goldstone 2020: page 5 TRESPASS: A direct, unlawful and intentional interference with someone’s property or person. Trespass to land is the most common form of this, but the tort extends to touching people without their consent (battery); threatening immediate battery (assault); preventing people from exercising their freedom of movement (false imprisonment); and generally interfering with their stuff. Unlike negligence, trespass is actionable without proof of any consequent injury – i.e. actionable per se. DEFAMATION: A tort for the very rich who want to be even richer (but may end up destitute and/or in prison) this involves the publication of an untrue statement which lowers the victim’s reputation in the estimation of right-thinking members of society and causes the victim serious harm. Shout it in the street and it is slander; write it on the wall and it is libel. PASSING OFF: This is a commercial tort by which one business concern misrepresents itself as being part of, or associated with, another business, and thereby benefits unfairly from the goodwill established by that other business. 3 THE FUNCTION OF THE LAW OF TORT 3.1 There has been much academic and political debate about the function of the tort system. 3.2 As an individual deterrent it arguably has little effect as most torts involve accidents, and people will generally try to avoid accidents whether or not a lawsuit might result. That said, a reputation for committing torts, especially negligence, will not help the members of a professional practice, who might therefore take elaborate steps to avoid it. Also, publishers will try to avoid publishing libel for fear of the excessive damages that could result. 3.3 The immediate interest of the claimants in a tort action is usually to get the activity stopped and/or to claim damages. Where nuisance or trespass is concerned an injunction can be effective, but it is not automatically awarded as the courts consider the wider public interest in preventing an activity, and the tort system may in that respect entirely fail the claimant. 3.4 As far as compensation is concerned, it is clear that many cases are in fact covered by insurance, and insurance companies will fight to avoid paying out on claims to the extent that many claimants are coaxed into accepting inadequate damages or even to give up the claim entirely to avoid the trauma and time of an uncertain hearing.