Tort Law – Reading Lists

 

 

 

 

 

 

PLEASE NOTE: The reading-lists published on this website are NOT the official Oxford University Law Faculty reading lists for tort law.

 

 

 

 

 

 

Tort - Week 2 - Negligence - The Duty of Care

 

M2002

 

 

 

 

The tort of negligence is at the core of the syllabus.

The tort imposes liability on some of those who cause damage through their careless behaviour. Those people who will be liable for damage caused by their carelessness are said to be under "a duty of care". This week we will focus on one of the most important questions in negligence law: How does the law decide whether somebody owes a duty of care to someone else?

 

 

 

 

 

 

A. General Approach:

How to decide who is under a duty of care and who is not.

McBride & Bag’w, pp 33-43 and ch 4 (but not pp. 87-125) and chs. 5 & 6

(or)Winfield & Jolowicz (16th ed), pp 103-189 (though not pp. 145-163)

(or) Markesinis & Deakin, pp. 69-88, 123-154

Weir, Casebook, Ch. 1 (esp. pp. 33-57 & 91-112)

*eDonoghue v Stevenson [1932] AC 562 (esp Lord Atkin); 20 MLR 1

*eDorset Yacht v Home Office [1970] AC 1004 (Reid and Diplock.)

*e Anns v Merton [1978] AC 728, at 751-752

Yuen Kun-Yeu v A-G for HK [1987] 2 All ER 705, at 709-712

*e Caparo v Dickman [1990] 2 AC 605

*Murphy v Brentwood [1990] 2 All ER 908, esp. at 914-924 & 933-938.

*The Nicholas H [1995] 3 All ER 307, h’note and 326-333 (esp 326f-327c)

*eStovin v Wise [1996] 3 All ER 801, at 824b-f

*e Barrett v Enfield LBC [1999] 3 All ER 193, HL

Phelps v Hillingdon LBC [2000] 3 WLR 776, at 808-809

*J. Stapleton “Duty of Care Factors” in Cane & Stapleton (ed) The Law of Obligations – Essays in Celebration of John Fleming, pp. 59-95

J. Conaghan & Mansell, The Wrongs of Tort (2nd ed. 1999, Pluto), Ch. 2

D. Howarth (1991) 50 CLJ 58

J. Stapleton “ In Restraint of Tort” in P. Birks (ed.), The Frontiers of Liability, Vol. 2, pp. 83-102

 

 

 

 

 

 

B. Categories of Cases Where Duty of Care Issues Arise

 

(i) Omissions and Liability for Third Parties

McBride & Bagshaw, Ch 5,

Or Winfield & Jolowicz, pp.134-45 or Markesinis & Deakin, pp. 137-145

eDorset Yacht [1970] AC 1004

**eSmith v Littlewoods [1987] AC 241; Markesinis 105 LQR 104

*eHill v Chief Constable of West Yorkshire [1989] AC 53

*eOsman v UK (1998) 29 EHRR 245, European Ct. of Human Rights (http://www.echr.coe.int/Eng/Judgments.htm)

**eZ v UK (2001) 34 EHRR 245, E. Ct. of Human Rights (http://www.echr.coe.int/Eng/Judgments.htm)

*eStovin v Wise [1996] 3 All ER 801, Headnote & at *818-820

Van Oppen v Bedford Trustees [1990] 1 WLR 235, at 250-251C, 259H-268 [compare Phelps, below]

Kirkham v Chief Constable of Greater Manchester [1990] 3 All ER 246

Compare *eCapital & Counties v Hants CC [1997] QB 1004

with  Kent v Griffiths [2000] 2 All ER 474

*eStapleton 111 LQR 301

Vicarious Liabiltiy: Week 9, and Lectures

 

(ii) Negligence in the exercise of Statutory Functions

(Review this sub-heading after studying Administrative Law)

McBride & Bagshaw, pp. 135-7, 150-8,

or Winfield & Jz, pp. 163-71 or Markesinis & Dn, pp. 145-50, 354-86

*Anns v Merton (supra) at 754

*eX (minors) v Bedfordshire County Council [1995] 3 All ER 353, HL

*eStovin v Wise [1996] 3 All ER 801, HL

**eOsman v UK (1998) and  *eZ v UK (2001), see above

**eBarrett v Enfield LBC [1999] 3 All ER 193, HL

*ePhelps v Hillingdon LBC [2001] 2 AC 619

 

(iii) Psychiatric Injuries (Nervous Shock)

McBride & Bagshaw, pp. 60-78,

or Winfield & Jz, pp. 176-189 or Markesinis & Deakin, pp. 123-137

*eMcLoughlin v O'Brian [1983] 1 AC 410

**eAlcock v Chief Constable of South Yorks. [1992] 1 AC 310

on these see Teff 99 LQR 100; Teff (1992) 12 OxJLS 440

*ePage v Smith [1996] AC 155, HL

**eWhite (or Frost) v Chief Cons. of South Yorks [1999] 2 AC 455, HL

Vernon v Bosley (No. 1) [1997] 1 All ER 577 (Headnote)

*eLaw Commission Report No. 249  “Liability for Psychiatric Illness” esp. pp. 57-80, 122-126

*W v Essex CC [2001] 2 AC 592, HL

*Hatton v Sutherland [2002] 2 All ER 1

 

(iv) Economic Loss & Negligent Misstatement are covered in Week 5

 

(v) Liability of Builders for Defective Premises and Occupiers are covered in Week 3

 

(vi) Products Liability is covered in Week 6

 

(vii) Lawyers and the Justice System

McBride & Bagshaw, pp. 431-435, Winfield & Jz. pp. 171-76

Hall (Arthur J.S.) v Simons [2000] 3 All ER 673 (Headnote)

 

 

 

 

 

 

 

Issues to consider:

1. Buckland, in a venerable article, claimed that 'duty' was the 'fifth wheel on the coach'. Why did he think that it served no useful function? Was he right?

2. What is the incremental approach? What are the alternatives? What is the relationship between the incremental approach and the "three-stage test"? Where do ‘categories’ fit in?

 

 

 

3. What does 'proximity' mean? (Those with time to spare might like to look at the essay by McHugh J in an Australian collection of "Essays on Tort" edited by P. Finn. McHugh J’s judgment in the recent case of Perre v. Apand (1999) – trace through www.austlii.edu.au - is also helpful) What is 'policy'? Is it helpful to talk of ‘policy’ as if it is a tangible thing?

4. What's the problem with omissions? How do we explain our difficulties using 'duty arguments'? Do you prefer the approach of Lord Mackay or of Lord Goff in Smith v Littlewoods?

 

 

5. How does the House of Lords tie the issues normally associated with nervous shock in with the three-stage duty test? If V witnesses an accident and then suffers a heart-attack, but not a recognised psychological injury, do the nervous shock rules apply? Is the primary / secondary victim distinction satisfactory? Is the distinction between primary and secondary victims satisfactory?

 

 

 

 

 

 

ESSAY:

“The reason that proximity cannot be the touchstone of a duty of care is that it “is a category of indeterminate reference par excellence”. … [A]ttractive as concepts of fairness and justice may be in appellate courts, in law reform commissions, in the academy and among legislators, in many cases they are of little use, if they are of any use at all, to the practitioners and trial judges who must apply the law to concrete facts arising from real life activities.” Per McHugh J in Perre v. Apand (High Court of Australia, 1999).

                   Discuss the appropriate approach to identifying duties of care in the light of these views.

 

 

 

 

 

 

Strategic Guidance.

I am sorry that the list is so long. I have tried to select relevant portions of cases where possible. My suggestion is that you concentrate on three of the headings: A, B(i), and B(iii) - if you get time also look at B(vii). Although the essay may look as if it can be answered using only the general material under A, to deal with it well you will want to be able to draw on examples from other parts of the list. B(iii) should be easy for you to cover if you have been at Mr Nolan's lectures … if you haven't, then whose fault is that??

 

 

 

NB Whichever textbook you use, read ALL the recommended portions.

 

Do not write an essay about pure economic loss. We will look at this in more detail in 5th week.

 

[On this list ** indicates a case you MUST read the judgments in, * a case that I think you SHOULD read the judgments in or an important article, etc., and e indicates a case that the examiners will assume all students have read.]

 

 

 

 

 

 

Links to other reading lists:

1. Negligence 1: Fault

2. Negligence 2: Duty of Care (General)

3. Negligence 3: Causation and Remoteness

4. Negligence 4: Duties of Care (Occupiers, Builders & Employers)

5. Negligence 5: Duties of Care (Pure Economic Loss)

6. Alternatives to Negligence (incl. Product Liability, Insurance and Compensation Schemes)

7. Nuisance and Rylands v. Fletcher

8. Economic Torts

 

 

 

 

 

 

Feedback: roderick.bagshaw@law.ox.ac.uk