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 Law - Week 1 - Fault in the Tort of Negligence	M2002
Negligence Fault - The Standard of Care McBride & Bagshaw, Tort Law, pp. 43-45, *ch. 7, *pp. 435-449, 539-545 Winfield & Jolowicz, (16th) pp. ch. 3 & 190-208 Markesinis & Deakin, (4th) pp. 41-44, 155-174, 285-289 (Atiyah’s Accidents, Compen’n & the Law, (6th ed. by Cane) Chapter 2) Fleming, (9th ed.) pp. 113-137 Weir, A Casebook on Tort (9th), Chapters 2 & 5
A. Core Cases *Paris v Stepney BC [1951] AC 367 *Bolton v Stone [1951] AC 850 *Watt v Herts CC [1954] 1 WLR 835 *Haley v LEB [1965] AC 778 *Wagon Mound (No.2) [1967] 1 AC 617, at 640-644 (i) Objective or subjective? Goldman v Hargrave [1967] 1 AC 645, at 663-664 Holbeck Hall v Scarborough BC [2000] 2 All ER 705, esp. at 719-726 Compare *Nettleship v Weston [1971] 2 QB 691 with *Mansfield v Weetabix [1998] 1 WLR 1263 (ii) Professionals Maynard v West Midlands RHA [1985] 1 All ER 635 Wilsher v Essex [1986] 3 All ER 801, at 810-816, 830h-831g & 832j-834f. *Bolitho v City and Hackney Health Authority [1998] AC 232 (H.L.) (on Bolitho) Teff (1998) 18 Ox. JLS 473 Arthur J S Hall & Co v Simons [2000] 3 WLR 543, h’note and 596C-597H (iii) Limited funds Knight v Home Office [1990] 3 All ER 237 (but NB ECHR Article 2)
B. Information for patients & Consent to medical treatment *Markesinis & Deakin, pp. 264-272 Sidaway v Bethlem Hospital [1985] 1 All ER 643 Gold v Haringey [1987] 2 All ER 888
C. Contributory Negligence McBride & Bagshaw, pp. 539-545; Winfield & Jolowicz, pp. 247-262; Markesinis & Deakin, pp. 680-692 **Law Reform (Contributory Negligence) Act 1945 Froom v Butcher [1976] QB 286
D. Volenti Non Fit Injuria & Exclusion McBride & Bagshaw, pp. 435-437, 441-9 Winfield & Jolowicz, pp. 844-863 Markesinis & Deakin, pp. 692-708 **Unfair Contract Terms Act 1977 ss 1,2; Road Traffic Act 1988 s.149 Wooldridge v Sumner [1963] 2 QB 43, at 68-70 Simms v Leigh RFC [1969] 2 All ER 923 ICI v Shatwell [1965] AC 656 **Morris v Murray [1990] 3 All ER 801 Barrett v Ministry of Defence [1995] 1 WLR 1217 *Reeves v Comm’r of Police of the Metropolis [2000] 1 AC 360. (also on contrib. negl.)
E. Illegality McBride & Bagshaw, pp. 437-441; Winfield & Jolowicz, pp. 863-867; Markesinis & Deakin, pp. 708-711 *Pitts v Hunt [1991] QB 24 Compare Revill v Newbery [1996] 1 All ER 291 with Cross v Kirkby [2000] Unreported, CA (use database) Clunis v Camden and Islington Health Authority [1998] QB 978 Law Com. Consultation Paper No. 160 (2001), (from http://www.lawcom.gov.uk) pp. 118-121 (summary) To think about: In a recent case Aldous LJ said, "There is in my view but one principle [of illegality] which is applicable to cases based upon contract, tort or recovery of property. It is, that public policy requires that courts will not lend their aid to a man who founds his action upon an immoral or illegal act. The action will not be founded upon an immoral or illegal act, if it can be pleaded and proved without reliance upon such an act." True?
Strategic Guidance If I owe someone a duty to take reasonable care, how must I behave? How much care must I take? The heading at the top of the reading list could easily be ‘standard of care’ or ‘breach of duty’ instead of ‘fault in the tort of negligence’. The first five weeks of the course centre on the tort of negligence; and negligence liability is (supposedly) liability for fault. The purpose of this week’s work is to investigate what tort lawyers mean by ‘fault’ in this context, or at least, what judges mean when they find that a party in a negligence case has been ‘at fault’. There are sub-headings on the list covering Volenti non fit injuria and Illegality. These are often dealt with separately as ‘defences’. However, the relevant sections from Winfield & Jolowicz explain how they might also be thought to be related to the question of what counts as ‘fault’. I recommend that you begin by reading all the portions in either McBride & Bagshaw, Winfield & Jolowicz or Markesinis & Deakin. I think that you should then aim to get on top of the major cases, ensuring that you read in full the starred cases under the first heading. Then move to headings C, D and E, paying particular attention to the 1945 Act and the double-starred cases. The material under heading B is a little more specialised, but is important if you want to think about medical negligence.
*Please write an answer to the following problem - (Free advice - Structure your answer carefully, keep it reasonably concise, and cite authority to support the principles which you feel govern the matter.) Benny, a well-known Bolivian male-model who is in England for the first time, wants to find out “what this cricket thing is all about” (cricket is not played in Bolivia) and therefore persuades his modelling agency to supply him with a free ticket to watch a one-day international cricket match between England and the West Indies. The match is organised by the ECB (English Cricket Board) at a ground belonging to them. The ground is smaller than average for an international cricket venue, but cannot be expanded because of its city-centre location. ECB chose not to arrange the match at a bigger ground outside the city-centre since the city-centre ground usually gets the largest crowds. As he goes into the ground Benny sees a sign saying “All spectators enter at their own risk”. During the match Clive, a West Indian batsman, repeatedly strikes the ball over the boundary fence and into the crowd. The seventh time he does this the ball heads towards Benny. Instead of taking evasive action Benny decides to try to catch the ball, but it goes through his fingers and breaks his nose. An ambulance is summoned. As it speeds to the scene, driven by Doreen, it skids on a tight bend in the road and knocks down Fiona, who was riding home on a bicycle she had just stolen. Fiona is badly hurt. Doreen has no recollection of the incident, and it is discovered that she is suffering from a rare brain disease which makes her incapable of judging speed accurately. The speedometer in the ambulance worked correctly. When Benny eventually reaches the Gruntville Hospital (managed by Gruntville Hospital Trust), he is treated by Helen, a trainee casualty officer. Helen recognises Benny as the well-known male-model and she therefore decides to set the broken nose using an experimental technique which can reduce swelling and bruising (thus making the injury less apparent). The technique is more complicated than the normal technique for dealing with a broken nose and is usually undertaken only by highly-experienced plastic surgeons. Helen fails to get it to work. The experimental technique also requires an incision which carries an irreducible 1% risk of causing nerve damage, leading to uncontrollable facial spasms. Benny’s nose is left permanently crooked and he develops uncontrollable facial spasms. Explain whether any of the above exhibited less than reasonable care, showing how you reach your conclusions. Are any defences relevant?
Links to other reading lists: 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