Law of tort for OCR AS Level - Sally Russell

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Law of tort for OCR AS Level

Answers to self-test questions and tasks

Chapter 1

Task 1

The role of law in society is to regulate behaviour so the court will look at protecting pedestriansfrom harm caused by cricket balls. However, when doing this the court will take the interests ofsociety into account and it is this public interest which prevailed. Having cricket was judged as moreimportant in these circumstances and it is interests of society as a whole. When balancing interests,the judge will try to achieve justice, but there is no agreed definition of what justice is and there isunlikely to be agreement on whether it was achieved. The club took precautions so it seems just thatit was not liable, but the woman may not feel justice was achieved. Finally, the woman may have feltshe had a moral right to be compensated but she did not have a legal one.

Chapter 2

Task 2

You may have put it slightly differently but one way of putting it would be that you should take care

not to do something, or fail to do something, that might harm others. This does not mean everyone

but those who are likely to be affected by your actions, e.g., people you should have considered

before acting. Applying this to Donoghue v Stevenson, a manufacturer should owe a duty to a

consumer because a consumer is someone likely to be affected by the actions of a manufacturer. A

consumer is also someone whom a manufacturer ought to have in mind when manufacturing the

product, in this case ginger beer.

Task 3

Mrs D couldn’t sue the shopkeeper because she had no contract with the shopkeeper, her friend

bought the drink.

She sued the manufacturer and the HL decided that a manufacturer owes a duty to the consumer.

I think the manufacturers were negligent in not checking the contents properly or by allowing a snail

to get into the production area.

Task 4

There are several types of relationships which arise in sporting situations and therefore many people

could owe a player a duty of care. These could include the organiser of the event and a referee as in

Watson and Vowles. It could also include a manager or coach, the club where the player was injured

or played for, other participants in the sport or anyone who had a role to play in setting up the

event.

Self-test questions

1. In Sutherland Shire County, Brennan J said, “It is preferable, in my view, that the law should

develop novel categories of negligence incrementally and by analogy with established

categories.”

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2. The three-part Caparo test is:

a. there must be foreseeability of harm

b. there must be proximity between C and D

c. it must be fair, just and reasonable to impose a duty on D

3. Among others, police, hospitals, rescue services and local councils might be immune from

owing a duty.

4. No duty was owed in Bourhill v Young because there was no proximity between her and the

driver since she was not at the scene.

5. No duty was owed in Caparo because there was no proximity between the investor and the

auditors, nor was it fair, just and reasonable to impose a duty.

Chapter 3

Task 5

Applying the factors to Bolton v Stone 1951, the potential harm would be serious as cricket balls are

very hard and can kill. However, this is balanced against the low degree of risk (it had rarely

happened) and the precautions the cricket club had taken (erecting a high fence). It is also arguable

that it was justifiable due to the social benefit of the game of cricket. Finally, it was a ‘desirable

activity’ under the Compensation Act. On balance, the club was not in breach because it had done

all that a reasonable cricket club would do.

Task 6

You may have chosen other cases, but here is one example. In The Scout Association v Mark Barnes

2010, the important factor was whether the activity had sufficient social value. The CA thought the

value was limited and therefore the risk was not justified.

Applying the other factors, it can be said that the risk of harm was foreseeable because the main

lights were off and the scouts were running around in the dark. The seriousness of harm would not

seem that great though, because there is only a limited amount of harm that can be caused by

people running around indoors. The club had taken some precautions by using the emergency

lighting but arguably should have removed the furniture, at least at floor level. On balance, it seems

the lack of social value was the deciding factor in finding the Scout Association had breached its

duty.

Task 7

Here is the summary with some cases added

The standard of care expected is that of the reasonable person in those circumstances

Reasonable parent (Harris v Perry)

Reasonable employee (Daw v Intel)

Reasonable child (Mullins/Orchard v Lee)

Reasonable doctor (Bolam/Bolitho/Montgomery)

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The standard expected is based on 4 factors:

The degree of risk (Bolton v Stone)

The seriousness of potential harm (Paris v Stepney BC)

Whether the risk was justifiable (Watts)

The expense and practicality of taking precautions (Latimer)

Self-test questions

1. The objective standard was explained by Baron Alderson in Blyth v Birmingham Waterworks

Co. 1856.

2. The four factors which the court may consider when deciding what is reasonable, with a case

example, are:

a. the degree of risk – Bolton v Stone

b. the seriousness of potential harm – Paris v Stepney BC

c. the expense and practicality of taking precautions – Latimer v AEC

d. whether the risk was justifiable – Watt v Hertfordshire CC

3. The standard expected of a professional is the standard of a person in that line of work

4. The standard expected of a child is the standard of a child of similar age, not an adult

5. The employers had not breached their duty in Maguire v Harland & Wolff plc 2005 because

at the time of C’s exposure the risks of secondary exposure were unknown. The injury to a

member of C’s family was therefore not foreseeable.

Chapter 4

Task 8

The answer depends on your chosen cases but here is one example from the duty cases and one

from breach.

In Watson v British Boxing Board 2000, the boxer Michael Watson suffered head injuries during a

fight against Chris Eubank. He sued the Board on the basis that had proper medical treatment been

given at the ringside he would not have suffered brain damage. It can be said that ‘but for’ the

failure to provide medical treatment he would not have suffered brain damage. As regards

remoteness of damage, it is foreseeable that if medical treatment is not available at a boxing match

where people are hitting each other, then someone could suffer harm. As harm is foreseeable it is

not too remote from the negligent act or omission (the failure to provide medical treatment) so the

Wagon Mound test is also satisfied.

In Palmer v Cornwall CC 2009, a boy of 14 hit another boy in the eye while throwing stones at

seagulls. The CA held that only one supervisor for around 300 children was clearly inadequate so the

council was in breach of duty. It can be said that ‘but for’ this breach the boy would not have been

injured. It is also foreseeable that if there is not adequate supervision the boys may do something

like this (based on the idea that children are likely to “do the unexpected” as held in Jolley). The

harm was therefore not too remote from the breach of duty (the failure to provide adequate

supervision).

Task 9

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Here are the questions with some cases added.

Would the harm have occurred ‘but for’ D’s act or omission?

The ‘but for’ test comes from Barnett v Chelsea and Kensington HMC. In that case the man would

have died regardless of treatment so the ‘but for’ test was not satisfied. The answer to ‘but for the

breach would he have died?’ was ‘yes, he would have died anyway’.

Was the harm foreseeable or was it too remote?

Under the Wagon Mound rule, causation in law is only proven where the harm was foreseeable. The

damage from the fire was not foreseeable so it was too remote from the breach and D was not liable

for this, only for the damage from the oil.

Was this type of harm foreseeable?

In Hughes v Lord Advocate, the court held that as long as the type of harm was foreseeable the

exact extent of the harm need not be. Here the burns were foreseeable so D was liable for the

greater injury caused by the explosion.

Does the thin-skull rule apply?

If there is something which makes V more vulnerable than other people this will not affect D’s

liability. In Smith v Leech Brain 1962, D’s negligence caused a small burn, which activated a latent

cancer from which C died. D was liable for the death, not just the burn.

Self-test questions

1. The ‘but for’ test asks ‘but for D’s action would harm have occurred?’ It comes from Barnett

v Chelsea & Kensington HMC.

2. The Wagon Mound case established the rule on foreseeability

3. Hughes added that if the type of harm is foreseeable this is enough; the exact harm need

not be

4. The ‘thin skull rule’ means that if a person is harmed because he/she is particularly

vulnerable (e.g., has a thin skull), D is liable for the full consequences even if someone

without the vulnerability would not have been harmed to the same degree.

The point made in Jolley (in the HL) regarding children, was that they do the unexpected.

Chapter 5

Task 10

There are many possibilities and you may have chosen others. Lawful visitors would include anyone

called in such as a doctor, plumber, decorator or electrician. Others who may have implied consent

to be on the premises would include the emergency services, delivery or postal workers, refuse

collectors and meter readers.

Task 11

In Glasgow, the claim succeeded because the berries were attractive to a child, so classed as an

allurement, and the child was old enough not to require the constant supervision of a parent as it

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was a public park (where children are expected to play). In Phipps, the court held that if the child is

very young, a parent or other adult should take responsibility so D is less likely to be liable for an

allurement.

Task 12

In Woodward, it was easy to check the work of the cleaner. In Gwilliam, D could not be expected to

check how a ‘splat-wall’ had been set up (so this is more like Haseldine). In Bottomley, the cricket

club should have checked insurance was in place whereas in Gwilliam, the hospital had specifically

asked about insurance, and paid for it, so were not liable.

Task 13

Pete’s injury may not be one he is expected to take precautions against, if it is seen as outside his

area of expertise, so Tim may be liable. However, it could go either way. If, e.g., the plank is rotten

due to the faulty water tank, it is arguable that he is in the exercise of his calling, and should guard

against such risks.

Eddie is more clearly in the exercise of his calling, and should guard against the risk of being

electrocuted. In this case, Tim is unlikely to be liable.

Task 14

There is no set answer for this but hopefully you spotted some signs.

Self-test questions

1. The control test is used to decide who is an occupier – Wheat v Lacon

2. The occupier’s duty is to take such care, as in all the circumstances of the case is reasonable,

to see that the visitor will be reasonably safe in using the premises for the purposes for

which he is invited to be there – Poppleton

3. An allurement is something attractive, especially to a child. In the case of children this could

mean the 1957 Act rather than the 1984 Act applies, i.e., a child trespasser may become a

lawful visitor by being ‘invited’ by the allurement – Glasgow Corporation v Taylor

4. An occupier may owe a duty for work done by an independent contractor when not taking

reasonable care in selecting a suitable contractor, or not checking the work – Woodward v

Mayor of Hastings

Chapter 6

Task 15

I would explain to Paul the provisions of s 1(3) of the 1984 Act, because he knows the neighbours’

kids are coming in, and he knows the pool is deep so possibly dangerous. However, it may not be

reasonable to expect him to protect against this risk more than he has done. I would also tell Paul

that even if a duty was owed (and this is not very likely) under s 1(5) OLA 1984, an occupier can

discharge any duty by putting up warning signs. The sign he erected may not be enough on its own,

as it does not warn of any danger, but by also erecting a high fence he has taken such care as is

reasonable in the circumstances so will not be liable. I would add that a swimming pool may be

considered an allurement and could bring any claim within the 1957 Act. However, I would reassure

him that he has again discharged his duty by putting up a high fence and the sign.

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As regards why my advice might be different on the later occasion, I would again explain the

provisions of s 1(3) of the 1984 Act, in particular that Paul now knows of the danger because it

happened before. He has reasonable grounds to believe the neighbours’ kids might come into the

vicinity now there are gaps in the fence. It is reasonable to expect him to protect against this risk by

mending the gaps in the fence. He is likely to be liable unless he can persuade the court that the

harm was caused by the activity rather than the state of the premises, but as it would be easy to fix

the fence it is more likely that BRB v Herrington rather than Tomlinson or Keown would be

followed.

Task 16

There is a diagram for this in the summary.

Self-test questions

1. British Railways Board v Herrington led to the OLA 1984

2. The case of Scott and Swainger illustrates the more limited duty under the 1984 Act

3. The three points for proving the occupiers’ duty under s 1(3) are:

a. D is aware of the danger or has reasonable grounds to believe it exists

b. D knows or has reasonable grounds to believe a ‘non-visitor’ is in, or may come

into, the vicinity of the danger

c. The risk is one against which, in all the circumstances of the case, D may

reasonably be expected to offer protection

4. There was no liability in Ratcliff because he knew what he was doing and the risk of hitting

his head on the bottom would be obvious to anyone.

5. Cases involving child trespassers sometimes come under the OLA 1957 if there is an

allurement, something so attractive that it effectively ‘invites’ the child onto the premises.

Summary 1

Task 17

If a case is based on policy the judge will take into account what is best for society as a whole, so

each case will depend on its particular facts.

Tasks 18 and 19

Duty

Based on the Caparo test

The loss must be foreseeable – Donoghue

There must be proximity between the parties – Bourhill

It must be fair, just and reasonable to impose a duty – Hill

Breach

The standard expected of D is that of the reasonable person – Blyth. Note, though the subjective

element:

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professionals (Bolam/Bolitho/Montgomery)

learners (Nettleship)

children (Mullin)

Add the four factors which apply in all cases:

the degree of risk – Bolton v Stone/Maguire v Harland & Wolff plc 2005

the seriousness of potential harm – Paris v Stepney BC1951

whether the risk was justifiable – Watt v Hertfordshire CC 1954

the expense and practicality of taking precautions – Latimer v AEC 1952

Causation

Would the harm have occurred ‘but for’ D’s act or omission? Barnett v Chelsea & Kensington HMC

but note also Fairchild v Glenhaven Funeral Services Ltd

Was the harm foreseeable or was it too remote? The Wagon Mound

Was this type of harm foreseeable? Hughes v Lord Advocate

Does the thin-skull rule apply? Smith v Leech Brain

Task 20

Case Brief facts Principle

Glasgow Corporation v

Taylor

A 7-year-old child died after

picking and eating some berries in

a park and the council was liable

if there is an allurement a child

may be a lawful visitor

Phipps v Rochester

Corporation

A 5-year-old C was injured on

council land but was only with

another child. The council was not

liable

adults should be responsible for

very young children

Jolley v Sutton LBC 2000 A 14-year-old boy was injured

when working on a derelict boat

on council land. The council were

liable

children should be expected to do

the unexpected

General Cleaning

Contractors v Christmas

A window cleaner was injured

when he fell off a building after a

defective window closed on his

hand

a professional is expected to guard

against risks incidental to the job

Ogwo v Taylor C was a fireman who was injured

putting out a fire negligently

if a professional is on the premises

because D has been negligent,

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started by D there is more likely to be a duty

Bottomley v Todmorden

Cricket Club

A cricket club hired an uninsured

stunt team to perform firework

displays on its land and a helper

was injured

taking reasonable care includes

checking insurance is in place

Tomlinson An 18-year-old dived into a lake

and sustained injury

if an injury is caused by a voluntary

activity rather than the state of the

premises D is not likely to be liable

Chapter 7

Task 21 AS examination practice

Question 1 (A01 10 marks)

The literal rule is the traditional approach to statutory interpretation. It requires the judge to take

the words of an Act at face value. The literal rule is hard to apply if the wording in the Act is

ambiguous. It can also lead to an interpretation which may go against the intentions of Parliament.

The literal rule was used in Fisher v Bell 1961 where a shopkeeper who displayed a flick-knife in the

window was found not guilty of offering it for sale. It was an offence under the Restriction of

Offensive Weapons Act to ‘offer for sale’ such weapons. The words ‘offer for sale’ were interpreted

strictly under contract law, and in contractual terms, goods in a shop window display are not an

offer. The decision that the shopkeeper was not guilty does not seem to accord with what

Parliament intended when it passed the Offensive Weapons Act. This was recognised in the case

itself when Lord Parker said “I, for my part, though I confess reluctantly, am driven to the conclusion

that no offence was here committed”. The fact that he was reluctant shows that he recognised the

result was not satisfactory. Another example is Whiteley v Chappell 1868, where an Act of

Parliament made it an offence in an election to impersonate any person entitled to vote. A man tried

to vote by impersonating a dead man. The literal rule was applied and as a dead man is not ‘entitled

to vote’ he was acquitted. This again seems contrary to what Parliament was trying to achieve which

was to stop election fraud.

In the Times Law Awards ceremony 1997, Lord Mackay (the then Lord Chancellor) said, “The duty of

the judge is to apply the law as he finds it, not to seek to rectify perceived inadequacies by the use of

creative interpretation.” This seems right as Parliament is elected and judges are not, but as shown

above it is not always sensible to take the words too literally.

The decisions in Fisher and Whiteley are both examples of the literal rule leading to an

unsatisfactory result. However, it seems the judges did not think the result was absurd in either

case. This is because if a result of using the literal rule leads to absurdity the golden rule may be

used, and it wasn’t. The golden rule adjusts the literal rule in such cases to remove the absurdity

which results from its use. This is the broad sense of the rule and is used where there is no ambiguity

but the use of the literal rule needs to be avoided because otherwise the resulting decision would be

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absurd. If the judge in Fisher had thought the result absurd he could have used the golden rule. This

would be to interpret the words to avoid the absurdity but no further. Thus, the words ‘offer for

sale’ could have been interpreted as meaning ‘offer for sale expressly or by implication’. This would

achieve the purpose of Parliament as goods in a shop window would be for sale by implication. The

narrow approach would not have worked in Fisher as the words were not ambiguous in contract

law. This narrow use of the rule is where a word has several meanings, some of which produce less

absurd outcomes when using the literal rule. The judge can choose the interpretation which leads to

the least absurd even though another is more literally correct.

An example where the rule was used successfully is Adler v George 1964, where an Act provided

that it was an offence to obstruct a member of the RAF ‘in the vicinity’ of a prohibited place. The

man was arrested at the RAF station and argued that as he was on the premises itself he could not

be ‘in the vicinity’ of it. The judge interpreted the words ‘in the vicinity’ of a place as including the

place itself and said any other interpretation would be absurd, so he was found guilty.


There are many stages to go through in the process of changing or making a law, both informal and

formal. Before the formal procedure starts the proposals for the law are discussed with various

organisations and people who may be affected by them. At this informal stage, the government may

publish Green and White Papers. These are ‘consultation documents’, which give people an

opportunity to comment on the proposals. The introduction of the Draft Bill into one or other of the

Houses of Parliament starts the formal procedure. The only bills that must be started in the

Commons are Finance Bills. Most Bills can start in either House and go through several stages there

before moving on to the other House to further debate the proposed law and suggest amendments.

Public bills are usually introduced by the relevant government minister and there is a first reading.

This merely notifies the House of the Bill and its subject matter. There is no debate, but there is a

vote. The second reading is where the main debate on the principles of the Bill occurs, followed by a

vote. The next stage is the committee stage where a committee of Members of Parliament examines

the details of the Bill clause by clause and suggests amendments. This is where there is the greatest

scrutiny and the chance of correcting any errors. In the Commons, the report stage is next; this is

where the committee report the amendments back to the House. This stage usually goes along with

the third reading, and then a vote is taken. The Bill then goes to the other House for similar

procedures, although in the committee stage in the Lords the whole House acts as a committee so

there is no need for a report stage.

The role of the House of Lords is that of a revising chamber. As it has more time for debate the HL

can spend longer looking at the issues in depth and make suggestions for amendments after a period

of consideration. However, this does mean it is more time-consuming and there are examples of a

ping-pong procedure where bills get sent back and forth between the two Houses with various

amendments and objections. This can go on for a considerable time before the Bill eventually

becomes law, an example being the Immigration Bill in 2016. The House of Lords can delay but

cannot veto a Bill. This is because the Parliament Acts allow the Commons to bypass the House of

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Lords after a period of time and send the Bill through for Royal Assent without the consent of the

Lords. This happened with the Hunting Bill and highlights the greater power of the elected

Commons.

The final stage is Royal Assent; this is where the Monarch gives approval to the Bill. This is a

formality and not undertaken by the Queen personally. The last time Royal Assent was refused was

by Queen Anne in 1707. The bill is now an Act of Parliament although not necessarily law as

sometimes time is given for implementation of the Act and it becomes law later. The Act may specify

a date on which it will come into force, or give power to a Minister to bring it in at a later date, as

with the Human Rights Act 1998. This also started in the Lords and is an example of how lengthy the

process can be. It took over two years to go through the two Houses and another two years before it

was brought into law by the Home Secretary.


Persuasive precedent means that a judge does not have to follow the earlier decision but may be

persuaded to do so. To decide what is binding and what is only persuasive when looking at

judgments, a distinction needs to be made between the ratio decidendi and obiter dicta. The first is

the reason behind the decision, the principle on which it is based and it is this that is binding on a

later judge. Obiter dicta are ‘by the way’ statements and are not binding, though they may be

persuasive precedents. An example is Howe 1987. The House of Lords ruled that duress could not be

a defence to murder and added that it was not a defence to attempted murder. The case did not

involve attempted murder so this was obiter dicta. However, it was followed in Gotts 1992.

In appeal courts, there is more than one judge, so more than one judgment. If a judge did not agree

with the majority this is called a dissenting judgment. Sometimes this is followed rather than the

majority judgment, especially if made by a well-respected judge, so this is another type of persuasive

precedent. An example is Hedley Byrne v Heller 1963. In this case the House of Lords followed a

dissenting judgment by Denning LJ in Candler Crane v Christmas 1951 where he said there could be

a duty in tort for economic loss.

Decisions of the Privy Council are not binding because it is an appeal court for commonwealth

countries not for England and Wales. However, it is made up of judges from the UK Supreme Court

so its decisions are highly persuasive. In Holley, the Privy Council rejected the earlier law on

provocation and said the defendant should be judged against a person having “ordinary powers of

self-control”. This was followed in later cases and the Coroners and Justice Act 2009 put Holley into

statutory form in the new defence of loss of control. This is an example of a persuasive precedent

becoming a binding law.

The court hierarchy is important because courts are bound by earlier decisions of the courts above,

and usually their own, but not by the courts below. However, one type of persuasive precedent is

where a higher court follows a lower court even though it is not bound to. An example is R v R where

the House of Lords followed a decision of the Court of Appeal, and in so doing overruled an earlier

decision of its own because it felt it was right to do so in the interests of justice.


In the interests of certainty Lord Bingham thought judges should ensure that there is a clear majority

ratio where possible, even if judges disagreed. There may be a dissenting judgment but he felt it

important that later judges should be able to find a clear ratio for the principle behind the final

decision. Clarity is important because a precedent can only be persuasive if the rules on overruling

do not prohibit it. The House of Lords was persuaded by a decision of the Court of Appeal in R v R

and refused to follow its own previous decision. That could not have happened the other way round

because if there was already a previous decision of the Supreme Court, the CA would have to follow

that and not any persuasive precedent.

In conclusion, a binding precedent must be followed, whereas a persuasive precedent does not have

to be but a court may be persuaded to follow it, especially if it is based on the decision of a

respected judge in the higher courts.


Precedent is based on the Latin term stare decisis, which means judges should follow earlierdecisions. A key element of this principle is the court hierarchy. It is important because courts arebound by earlier decisions of the courts above, and usually their own, but not by the courts below.Despite the fact that judges should usually follow earlier decisions, there are ways for judges in thesenior courts to avoid this rule. The law requires certainty, especially in the criminal law, soprecedent should normally be followed, but it may be that this would cause unfairness so thereshould also be some flexibility. Unfairness in the law as it stands is one reason a judge may not wantto follow an earlier decision. The Supreme Court (SC) can overrule its own decisions by using the1966 Practice Statement if ‘it appears right to do so’. In Edwards v Environment Agency 2011, theSC confirmed that it had all the powers previously invested in the HL. So, the powers given under the1966 Practice Statement have passed to the SC. This gives a wide discretion and allows an old law tobe changed. An example of the HL overruling an earlier decision of its own is Gemmell & Richardswhere Caldwell was overruled and all recklessness made subjective. This is one reason the highercourts might not want to follow a precedent, in order to achieve justice. It is necessary to be flexibleif justice is to be achieved, and also if an error has been made the senior courts will want to avoidrepeating it.

One reason to avoid following an earlier decision is to achieve justice. Another is that the law shouldadapt to social and technological changes. Parliament does not always react quickly to such changesand if the law is outdated there should be a way to amend it. An example of responding to socialchange is R v R, where the HL decided that it was no longer acceptable that a man should haveimmunity from raping his wife.

However, very few cases reach the SC so it is important for the Court of Appeal (CA) to have its ownpowers as a CA judge may not want to follow an earlier decision. The rules from Young v BAC allowthe CA to overrule its own earlier decisions in certain circumstances, but they are fairly limited. TheCriminal Division of the CA has a little more flexibility as it is able to avoid following a decision if itwould cause injustice to do so, because a person’s liberty is a stake. Even though an appeal courtjudge may not want to follow a decision of the Supreme Court there is no way of avoiding this underthe above rules as the Supreme Court binds all courts below. However, distinguishing is a way ofavoiding following an earlier decision which applies to all courts. A case may be distinguished wherethe material facts are different. An example is seen in Wilson where Brown was distinguished.Although the facts were similar, as both involved serious harm suffered during consensual sexual


activities, the judge found material differences. In Brown, there was more unacceptable violenceand in Wilson the activity was between a man and his wife. The judge could avoid finding Wilsonguilty of GBH by distinguishing the earlier case on the basis that whether such activities occurredoutside or within marriage was a material fact.

In conclusion, judges might not want to follow a previous decision for several reasons. In particularin order to do justice, correct errors, modernise the law and to distinguish between cases where thefacts are different.


I would advise Sam that the first step in a claim in negligence is to prove duty of care which is basedon Donoghue v Stevenson. In that case it was established that people are owed a duty of care ifanother person’s acts affected them and the resulting harm was foreseeable. This was laterextended and is now based on a three-part test as set down in Caparo v Dickman. The Caparo testfor duty is foreseeability of harm, proximity between the claimant and defendant and whether it isfair, just and reasonable to impose a duty.

In Donoghue v Stevenson, it was foreseeable that the manufacturer’s actions could harm aconsumer of the ginger beer. Here it is foreseeable that Andy’s actions in leaving the bridgeunattended would cause harm to motorists and other passers-by, as it was in a dangerous state.

Proximity can be in time, space and relationship. In Kent v Griffiths, an ambulance service was inproximity to a patient once it had accepted the call and dispatched an ambulance. Here Sam waspresent at the time of the bridge collapsing and Andy had a proximate relationship with all motoristsnear the bridge, including Sam, as he had taken charge of the situation.

Whether it is fair, just and reasonable to impose a duty is based on policy so will take into accountthe interests of society. This can sometimes exclude claims against the police, as here, because it is apublicly funded body and allowing claims could lead to ineffective policing as stated in Hill v CC forWest Yorkshire. It seems fair, just and reasonable to impose a duty in these circumstances becauseit will not open the floodgates to claims as only a limited number of people will be in the area. It willnot make policing ineffective as in Hill, where it was not in the public interest to impose a dutybecause it could lead to defensive policing.


To prove breach of duty and causation there are several legal tests.Breach is based on what a reasonable person would do (Blyth v Birmingham Waterworks Co.). Thecourts will consider whether Andy had acted as a reasonable police officer should, by balancingseveral factors against each other.

Firstly, the degree of risk was high because the bridge was in a dangerous state. In Bolton v Stone,the risk was low so sufficient care was taken by erecting a fence. Here there was a higher risk, whichraises the standard, so greater care should have been taken. The gravity of potential harm is high, asin Paris v Stepney BC, which again raises the standard expected. A collapsing bridge couldpotentially cause serious harm to anyone nearby. There appears to be no justification for taking therisk, which could have been the case, e.g., if Andy was called to an emergency. Then he could rely onWatt v Hertfordshire CC, where a fire service was not in breach because they were rushing to anemergency. Finally, taking precautions against the risk would not have been expensive orimpractical; he could have put up cones or warning signs. In Latimer v AEC sufficient precautionswere taken, but this is not the case here. On balance, he did not reach the standard expected of areasonable police officer.


Sam would not have been injured ‘but for’ Andy leaving the scene unattended, unlike in Barnettwhere the man would have died anyway. The harm is not too remote from the breach (The WagonMound) because it is foreseeable that leaving a bridge in a dangerous state could cause harm. Thereis causation both in fact and in law. Sam is likely to succeed in his claim.


To prove breach of duty D is judged against the standard of a reasonable person in the same

circumstances (Blyth). However, this objective test is a little different in the case of a professional.

Dr Blood will be judged against the standard of a reasonably competent doctor. This requires looking

at what a reasonable body of medical opinion would consider reasonable, as established in Bolam.

Although, in Bolitho the court held that this opinion must have a logical basis. It says he went

‘against normal procedure’ so he is likely to fail this test. It would be normal procedure to check for

allergies before giving drugs, so Dr Blood has not reached the standard of a reasonably competent

doctor. The factors that are balanced in other cases of breach also apply to professionals. There is

quite a high risk of harm and it would be easy to take the precaution of asking Sam about allergies,

unlike in Latimer where precautions would be costly and impractical. There is no evidence that he

was called to an emergency, which may have tipped the balance in his favour. He has therefore

breached his duty of care.

The next step is causation. Factual causation is assessed using the ‘but for’ test, established in a case

on similar facts (Barnett v Kensington HMC). In that case the man would have died even if the

doctor had not been in breach of duty but here if the doctor had checked for allergies Sam would

have been given different drugs so would not have suffered an allergic reaction. It is also foreseeable

that not checking for allergies would lead to further harm as per the Wagon Mound. The fact that

Sam has an allergy may indicate that the harm was not normally foreseeable but the ‘thin-skull’ rule

will apply. This is that if the person has an existing vulnerability, as in Smith v Leech Brain, D is still

liable for the harm that results even though a normal person would not have been so affected.

Dr Blood has breached his duty of care and caused Sam the further harm so will be liable to

compensate him for the injuries, loss of earnings and other related expenses.


The last part of the Caparo test is a matter of public policy. The court will consider whether it is fair,just and reasonable to impose a duty in the circumstances. To decide this, the court looks at what isbest for society as a whole and will also consider whether it is necessary to restrict the duty to avoid‘opening the floodgates’ to claims.

The courts are reluctant to impose a duty on those providing a public service. Actions against publicbodies such as the police, hospitals, rescue services and local councils may therefore fail on thispoint. This means that the courts may refuse to impose a duty on such groups, even though harm isforeseeable, as a matter of public policy. A key case is Hill v CC for West Yorkshire where the Houseof Lords refused to impose a duty on the police to a member of the public who was a victim of the‘Yorkshire ripper’. The HL thought imposing a duty in such cases could lead to defensive andineffective policing, so it was not in the interests of society.

In Michael v CC of South Wales, the victim of an attack sued because she had told the police about alikely attack threatened by her ex-partner and the police had failed to do anything. The SupremeCourt followed Hill and said that the public at large should not bear the burden of compensating a


victim for harm caused by a third party for whom the state was not responsible. Two dissentingjudges felt that Hill could be distinguished because there was a closer proximity, as she hadcontacted the police. However, the majority held that public policy considerations of placing toomuch of a burden on the police and on the public purse outweighed this.

The reluctance of the courts to open the floodgates to claims is also reflected in these cases,especially Hill where the victim was a member of the general public rather than an identifiablepotential victim. This argument is less justified in Michael because imposing a duty would not haveopened the floodgates. A duty would only apply to people who had contacted the police to warn of athreatened attack. One case where a duty was imposed on the police is Reeves v MPC, where thepolice owed a duty to a man who committed suicide in custody. This was because he was not only incustody, but also the police knew he was a suicide risk. Imposing a duty was therefore fair and therewere no policy reasons not to do so.

Local councils also have some immunity, again depending on the circumstances. In Fernquest vSwansea CC 2011, a man sued the council after slipping on ice at a bus stop. The judge appliedCaparo v Dickman 1990 and held that there was proximity between the parties and the risk of injurywas foreseeable as the council knew about the ice. However, the CA reversed the decision and heldthat although injury was foreseeable, it was not fair, just and reasonable to impose a duty of care ona council for ‘normal hazards’ which members of the public could be expected to be aware of.

Hospitals will owe patients a duty of care in most cases but again policy considerations may prevail.In Darnley v Croydon NHS Trust 2017, a man attended an Accident and Emergency department afterbeing injured in an attack, and was told he would have to wait for up to four or five hours. He was inpain so left after only a matter of minutes, not realising that he would have been seen by a triagenurse earlier than that. His condition later got worse and he sued the hospital, saying that hisdecision to leave was based on incorrect information and had he stayed he would not have suffereda greater degree of harm. The court applied the Caparo v Dickman 1990 test and held that it wouldnot be fair, just and reasonable to impose a duty on the hospital for the failure by the receptioniststo inform him of the likely waiting time to be seen by a triage nurse. He should take responsibility forthe consequences of his decision, not the hospital or its reception staff. The CA agreed and rejectedC’s appeal.

In conclusion consideration of public policy is seen in many cases when deciding whether to imposea duty of care, especially where compensation would be paid by public funds.

Law of tort for OCR AS Level - Sally Russell

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