TORT LAW EXAM NOTES
LECTURE ONE
3.’Foresight’ Heaven v Pender [1883] per Brett MR;
P was a ships painter working for D. Ropes holding scaffold were defective, he fell onto a dock and was seriously injured. Went on appeal before:
Held: The ratio was that a duty of care to exercise reasonable care for the safety of the plaintiff arose by occupier to invitee. The dicter:
there must be some unifying principle – attempt to create tort.
Donoghue v Stevenson
i. Manufacturer-consumer duty of care
P and her friend went to a café. The friend bought P a ginger beer.
The bottle was dark brown glass and it was not possible for anybody to look at the contents. P drank half, then poured the rest and found a decomposed snail. She became sick that night with gastroenteritis.
She did not have a contractual agreement with the seller, as her friend bought it, and so she sued the manufacturer for negligence.
She contended for a new duty of care owed to her by the manufacturer.
Held by House of Lords: Manufacturer owed a duty of care in tort to P. This duty was not owed to her personally, but rather as an ultimate consumer. Neighbour principle was a factor.
Lord Atkin ‘neighbour principle’
You must take reasonable care to avoid acts or omissions, which you can reasonably foresee that would be likely to injure your neighbour.
Neighbour – Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected by my acts or omissions.
Grant v Australian Knitting Mills [1936]
D manufactured woolen underwear. P purchased two pairs of them.
In the manufacturing process, D’s used sulfur, which should be washed out of the wool before the product is finished. By accident, these two sets had not been washed and P contracted a serious form of skin disease and almost died. He sued for negligence.
Held: D was negligent and owed a duty to ultimate consumer.
ii. Generalized duty- foresight principle
Haley v London Electricity Board [1965]
Established that D may be expected to foresee the effect of their acts or omissions on a person who is not the ‘average person’.
Employees of the board were working in the street, and when they finished they left a hole in the pavement. They put a lamp next to it and left a sledgehammer on its side in front of it. They thought this was an adequate warning. Mr. Haley was blind and tripped over sledgehammer, fell into the hole and was injured. He sued the board for negligence. D argued that their warning was adequate for well- sighted people.
Held: D’s owed him a duty of care, and they breached this duty.
There were many blind people in the community at that time and therefore this was foreseeable.
4. Modern negligence model:
Requirements to establish a claim for negligence:
(No litigation where these are ALL raised. Normally it concerns one of these aspects)
i. Legal duty to behave so as to protect P against the kind of harm suffered- the duty of care;
Owed by the D to the P for the type of harm suffered. Enormously extensive amount of duties of care, however this does not mean there is ALWAYS a duty of care. May still be the case that D has caused harm but does not owe a duty.
ii. Failure to conform to standard of care as assessed by court as a matter of fact - the breach issue;
D must be shown to be in breach of the duty of care. It is up to P to prove, as a matter of fact, that D failed to exercise reasonable care in all of the circumstances.
Nova Mink v Trans-Canada Airlines [1951]
P was mink ranchers in a part of Canada where it was common.
They appeared on maps, which the airlines had. P asked them to use the maps and asked them not to disturb the mink, as they will
devour their young. One of the aircraft flew off the normal flight route, at low altitude, over the mink ranch and the mink ate their young.
Held: There was no failure to exercise reasonable care. The airline said there was an unforeseeable storm and they had to deviate. In light of the peril, it was reasonable conduct to take the risk of the mink.
iii. Injury or damage resulting from breach
No damage, no case. A near miss is not negligence, because there was no actual harm.
The damage must be a kind that is actionable, e.g. personal injury.
Not, for instance, a ‘shock’.
The ‘causation’ issue;
Must be a causal link between the conduct of the tortfeasor and the harm claimed for.
Most of the time, negligence law requires that D caused the harm and there is no argument.
However, in some cases, the cause of the harm is not clear and then it is incumbent on P to show the harm was caused by D’s conduct.
Areas of problem with causation Blood transfusion cases
Very difficult to establish a causal link.
P contracted virus through a blood transfusion, but this blood had been through three separate parties, and he had to prove that it was through D.
Cancer cases
In many cases, P says that they ‘got cancer’ from e.g. working in a coal mine, even though they may have smoked, etc.
iv. Sufficiently close connection between the breach of duty and the kind of harm suffered-‘remoteness’;
If the entire claim is said to be ‘too remote a consequence of the breach’ or any part of the claim is remote, P’s action will fail.
Where it is not possible, or very unlikely, for a risk to eventuate, the claim is likely to fail for being too remote a consequence of the breach.
Palsgraf v Long Island RR Co. [1928]
P was a janitor in an apartment building. She was to board a train with two of her children at central railroad station. P was sitting on a bench waiting for the train and suddenly there was an explosion. It appeared that another train had been departing and a male
passenger managed to board at the rear. He accidentally let go of a package with fireworks, and they struck the electric part of the rail. P was sitting next to heavy scales,
