SPECIMEN SUPERVISION HANDOUTS 2023-24

SUPERVISION 1 – TRESPASS TO THE PERSON,

NEGLIGENCE: BREACH OF DUTY

1. INTRODUCTION TO TORT LAW

(Note: Skim through one of the books’ introductory chapters to get a general overview.
There is no need to take detailed notes at this stage.)

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), Chapters 1 and 2
McBride and Bagshaw, Tort Law (6th ed., 2018), Chapter 1
Winfield and Jolowicz, Tort (20th ed., 2020), Chapter 1

Casebook:
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), Chapter 1
Steele, Tort Law (5th ed., 2022), Chapter 1

2. TRESPASS TO THE PERSON AND RELATED TORTS

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), Chapter 9
McBride and Bagshaw, Tort Law (6th ed., 2018), Chapter 2 and pp. 553-54, 587-96
Winfield and Jolowicz, Tort (20th ed., 2020), Chapter 4
Gardner and Green, Tort Law (1st ed., 2021), Chapter 12

Casebook:
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed., 2015), Chapter 13
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), Chapter 2
Steele, Tort Law (5th ed., 2022), Chapter 2 (up to p. 90)

Further reading:
Morgan, Great Debates in Tort Law (1st ed., 2022), Chapter 2

Cases:

(1) Battery and Assault

Fowler v Lanning [1959] 1 QB 426 (negligent trespass?)
Letang v Cooper [1965] 1 QB 232

Collins v Wilcock [1984] 1 WLR 1172 (battery)

Wilson v Pringle [1987] QB 237

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Re F [1990] 2 AC 1

Mbasogo v Logo [2006] EWCA Civ 1370 (assault)

Turberville v Savage (1669) 1 Mod. 3

Chatterton v Gerson [1981] 1 All ER 257 (vitiated consent)

Ashley v CC of Sussex [2008] 2 WLR 975 (self-defence) (noted McBride [2008] CLJ 461)
Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564 (necessity)

(2) False Imprisonment

Bird v Jones (1845) 7 QB 742 (restraint must be complete)
Walker v MPC [2014] EWCA Civ 897 (temporary restraint)
Robinson v Balmain New Ferry (1919) AC 295 (reasonable condition)
Herd v Weardale Steel, Coal and Coke Company Ltd [1915] AC 67

Meering v Grahame-White Aviation (1920) 122 LT 44 (claimant’s lack of knowledge)

R v Bournewood Community and Mental Health NHS Trust, ex p. L [1999] AC 458
R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4

R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19 (defendant’s state

of mind)
Iqbal v Prison Officers Association [2010] 2 WLR 1054 (omission)
R (on the application of Lumba) v Secretary of State for the Home Department [2011]
UKSC 12 (damages)

(3) The tort in Wilkinson v Downton

Wilkinson v Downton [1897] 2 QB 57
Wainwright v Home Office [2004] 2 AC 406
Rhodes v OPO [2015] UKSC 32

(4) Harassment
Equality Act 2010, s. 26
Protection from Harassment Act 1997
Hayes v Willoughby [2013] UKSC 17

3. BREACH OF DUTY

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), 182-201
McBride and Bagshaw, Tort Law (6th ed., 2018), pp. 229-245
Winfield and Jolowicz, Tort (20th ed., 2020), Chapter 6
Gardner and Green, Tort Law (1st ed., 2021), Chapter 5

Casebook:
Hepple and Matthews’s Tort Law: Cases and Materials (7th ed., 2015), Chapter 5
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), Chapter 4
Steele, Tort Law (5th ed., 2022), pp. 123-156

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Cases:
*Nettleship v Weston [1971] 2 QB 691 (objectivity of test)
Roberts v Ramsbottom [1980] 1 WLR823 (disability)
Mansfield v Weetabix [1998] 1 WLR 1263
Dunnage v Randall [2015] EWCA Civ 673; [2016] QB 639 (mental capacity)
Mullin v Richards [1998] 1 All ER 920 (age)
Ng Chun Pui v Lee Chuen Tat [1988] RTR 298 (emergency)
Caldwell v Maguire [2001] EWCA Civ 1054 (sport)
Czernuszka v King [2023] EWHC 380 (KB) (sport)
Blake v Galloway [2004] 1 WLR 2844 (informal play)
London Passenger Transport v Upson [1949] AC 155 (others’ carelessness)

*Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (professionals)

Bolitho v Hackney HA [1997] 4 All ER 771
Montgomery v Lanarkshire Health Board [2015] UKSC 11 (risk disclosure)
McCulloch v Forth Valley Health Board [2023] UKSC 26

Bolton v Stone [1951] AC 850 (likelihood of harm)

Miller v Jackson [1977] QB 966
Haley v LEB [1965] AC 778
Paris v Stepney BC [1951] AC 367 (severity of harm)
Latimer v AEC [1953] AC 643 (cost of precautions)
Daborn v Bath Tramways [1946] 2 All ER 333 (social utility of activity)

Legislation:
Compensation Act 2006, section 1
Social Action, Responsibility and Heroism Act 2015, sections 2-4

QUESTIONS:

(Note: You don’t have to write answers to these questions. Just think carefully about
them so that we can discuss them in class. We will try to do as many as possible, not
necessarily in the order that they appear.)

1. George ran a sports club for local children. Jane, Lucy and Mary, all aged twelve,
attended the first session of the club. At the start of the session, George informed the
children that the doors of the gym would be locked for security reasons and no one
would be permitted to leave until the end of the session. The session started
uneventfully, but whilst George was supervising a game of table tennis at the other end
of the gym, an argument broke out between Jane and Lucy, who both wanted to climb
on the same section of the climbing wall. Lucy grabbed Jane, who had started to climb,
and caused her to fall, as a result of which Jane broke her jaw. Mary, seeing Jane on the
floor, became agitated and tried to leave the gym, but George, who was attending to
Jane, refused to unlock the door. When he eventually unlocked it at the end of the
session, Mary, screaming hysterically, ran to her mother Nancy, who had come to meet
her and who was holding a small, timid-looking dog on a lead. After discovering the
reason for her daughter’s distress, Nancy confronted George and shouted ‘How dare you
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treat my daughter like that? I’ve a good mind to set the dog on you.’ George, who was
terrified of dogs, ran away from her, but on the way he fell and broke his leg. Consider
whether any torts have been committed. If so, identify carefully the claimant and the
defendant for each tort.

2. Discuss the liability in tort, if any, which arise from the following events at an FA Cup
Tie match between first division Rock United and non-league Goth City.

(a) The Goth City captain, Chris, is sent off for a tackle, later described by the referee as
“reckless”, which breaks the leg of Rock United’s star centre forward, Damon. The
referee has no experience of the play of non-league teams where such tackles are
everyday occurrences.

(b) Goth City winger, Elias, runs into and seriously injures a newspaper photographer
who has come very close to the touchline in order to get a good picture of the action.

(c) Norman, a pensioner, who has supported Rock United all his life is terrified by the
abuse and the threats shouted at him by the Goth City fans. The fans are separated from
him by steel barriers and a row of policemen.

(d) Fearing trouble, the police lock the Goth City fans into their own enclosure for the
duration of the match. One fan that desires to leave is prevented from doing so. The
others are too enthralled in the match to notice the police action. The enclosure is
opened again just before the match ends.

3. What standard of care is required of:

(a) a 7-year old child?

(b) an 85-year old man?
(c) people suffering from mental illnesses

4. Does the law on fault take into account:

(a) the defendant’s wealth?

(b) the risk that other people may act carelessly?
(c) the fact that the defendant’s act was a momentary lapse of concentration?
(d) the recognised and usual practice of a particular trade or profession?

5. Michael is a bus driver in Cambridge. One day a dog appears from nowhere in front of
him whilst he is driving on Huntington Road. He applies the brakes suddenly to avoid
the dog and a passenger is thrown to the bus floor. Is Michael careless?

SUPERVISION 2 – CAUSATION, REMOTENESS OF

DAMAGE, SCOPE OF DUTY
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1. CAUSATION IN FACT

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), pp. 202-238
McBride and Bagshaw, Tort Law (6th ed., 2018), pp. 255-297
Winfield and Jolowicz, Tort (20th ed., 2020), Chapter [7.001]-[7.045]
Gardner and Green, Tort Law (1st ed., 2021), Chapter 6

Casebook:
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed., 2015), pp. 345-391
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), pp. 227-273
Steele, Tort Law (5th ed., 2022), Chapter 6

Further reading:
Lord Hoffmann, ‘Fairchild and After’ in A Burrows et al (eds.), Judge and Jurist: Essays in
Memory of Lord Rodger of Earlsferry (OUP, 2013), pp. 63-70
Morgan, Great Debates in Tort Law (1st ed., 2022), Chapter 4 and pp. 95-113

Cases:

But-for test
Barnett v Chelsea Hospital [1969] 1 QB 428
McWilliams v Arrol [1962] 1 WLR 295

Exceptions to but-for (1): Material Contribution to Damage

Bonnington Castings Ltd v Wardlaw [1956] AC 613
Holtby v Brigham Cowan (Hull) Ltd [2000] 3 All ER 421
Williams v Bermuda Hospitals Board [2016] AC 888 (noted in Stapleton & Steel (2016)
132 LQR 363)

Exceptions to but-for (2): Material Contribution to Risk?

McGhee v National Coal Board [1973] 1 WLR 1
Wilsher v Essex AHA [1988] AC 1074
*Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 (noted Weir [2002] CLJ 519)
Barker v Corus UK Ltd [2006] 2 AC 572 (noted Kramer (2006) 122 LQR 547)
Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229 (noted Steel & Ibbetson [2011] CLJ 451)
IEG v Zurich Insurance plc [2015] UKSC 33 (focus only on causation) (noted Morgan
[2015] 74 CLJ 395)
Heneghan v Manchester Dry Docks Ltd [2016] 1 WLR 2036

Exceptions to but-for (3): Loss of Chance

Allied Maples v Simmons & Simmons [1995] 1 WLR 1602
Hotson v East Berks HA [1987] AC 750
*Gregg v Scott [2005] 2 AC 176 (noted Spencer [2005] CLJ 282)

Other Exceptions to but-for (4)

Chester v Afshar [2005] 1 AC 134 (noted Amirthalingham [2005] CLJ 32)
Wright v Cambridge Medical Group [2011] EWCA Civ 669

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Baker v Willoughby [1970] AC 467 (successive sufficient causes)
Jobling v Associated Dairies [1982] AC 794

Legislation:
Compensation Act 2006, s.3; s. 16(3)

2. CAUSATION IN LAW, REMOTENESS OF DAMAGE & SCOPE OF DUTY

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), pp. 202-225
McBride and Bagshaw, Tort Law (6th ed., 2018), pp. 297-310, 314-331
Winfield and Jolowicz, Tort (20h ed., 2020), Chapter [7.046]-[7.078]

Casebook:
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed., 2015), pp. 392-424
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), pp. 273-295
Steele, Tort Law (5th ed., 2022), Chapter 6

Further reading:
Morgan, Great Debates in Tort Law (1st ed., 2022), pp. 113-131

Cases:

(1) Causation in law (‘break in the chain of causation’)

The Oropesa [1943] P. 32 (third party)
Knightley v Johns [1982] 1 WLR 349
Wright v Lodge [1993] 4 All ER 299
Topp v London Country Bus [1993] 1 WLR 976
Stansbie v Troman [1948] 2 KB 48

Carlslogie SS Co v Royal Norwegian Government [1952] AC 292 (act of nature)

McKew v Holland and Hannen and Cubitts Ltd [1969] 3 All ER 1621 (C’s own act)
Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006
Meah v McCreamer (No 2) [1986] 1 All ER 943
Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360
Corr v IBC Vehicles [2008] 2 WLR 499 (noted O’Sullivan [2008] 67 CLJ 241)
Spencer v Wincanton Holdings [2009] EWCA Civ 1404
Scott v Gavigan [2016] EWCA Civ 544

(2) Remoteness of damage

Re Polemis [1921] 3 KB 560 (old approach)
*Wagon Mound (No 1) [1961] AC 388 (new approach)
Hughes v Lord Advocate [1963] AC 837
Corr v IBC Vehicles [2008] 2 WLR 499

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Page v Smith [1996] 1 AC 155
Smith v Leech Brain [1962] 2 QB 405
Lagden v O’Connor [2004] 1 AC 1067

(3) Scope of duty

South Australia Asset Management Corp v York Montague [1997] AC 191 (known as
‘SAAMCO’) (scope of duty)
*Manchester Building Society v Grant Thornton [2021] UKSC 20 (noted Howarth [2022]
81 CLJ 20)
*Khan v Meadows [2021] UKSC 21 (noted Nolan & Plunkett (2022) 138 LQR 175)

(4) Damage
Rothwell v Chemical and Insulating Co [2008] 1 AC 281 (need for ‘damage’)
Dryden v Johnson Matthey Plc [2018] UKSC 18 (meaning of ‘actionable personal injury’)

QUESTIONS:

(Note: Please think through question 1 so that we can discuss it in the supervision)

1. ‘It is now, I think, generally accepted that the ‘but for’ test does not provide a
comprehensive or exclusive test of causation in the law of tort’ (Lord Bingham in
Chester v Afshar [2005]). Discuss.

2. ‘The ‘but for’ test of factual causation in tort is under-inclusive – it rules out events
that should count as factual causes.’ Discuss.

3. ‘The decision in Fairchild v Glenhaven Funeral Services [2003] established an arbitrary

rule masquerading as a principled one. It is capable of causing endless difficulties as to
the limits of its application and should be overruled.’

4. ‘There is no single test for deciding whether an act or omission of a third party, an act
or omission of the claimant himself, or a natural event, breaks the chain of causation so
as to relieve a defendant from liability for negligent conduct.’ Discuss.

5. Owing to the carelessness of Charlie, a technician, Freda, aged 60, was given an
excessive dose of radiation when her chest was x-rayed after she fell off a ladder at her
home. Two years later she develops lung cancer. According to the agreed expert report,
the excessive dose increased the risk of her developing lung cancer, but may or may not
have caused it; other possible causes include (a) the fact that she is a heavy smoker and
(b) a strong genetic predisposition.

6. David and John are stevedores loading a vessel berthed in Southampton harbour.
Advise each as to his liability in the following circumstances:

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 (a) David, engaged in loading chemicals in part of the ship, carelessly spills some
sulphuric acid from a damaged barrel. Peter, a stevedore who is working next to
David, manages to avoid the spilled acid, but is badly burned when, a minute
later, the acid comes into contact with another of the chemicals and causes it to
explode. Another stevedore, Xavier, who is working on the dockside, is also
injured as a result of the explosion.

(b) John carelessly drops a coin on the head of Zephan, who is walking along the
quay. Zephan has an abnormally thin skull and is mortally wounded.

7. Crofton Hospital is a National Health Service Trust Hospital. It finds that it has
insufficient funds to keep open a full accident and emergency service. It does however
retain a scaled-down service staffed by one junior doctor, Philip. Anne comes to the
hospital having slipped down the stairs at home and broken her arm. This is set
incorrectly by Philip. Anne also has a trapped nerve after the fall. Medical opinion
differs as to whether this would have occurred had the arm been correctly set. The
dominant view is that there would have been a 40% chance of a trapped nerve
occurring even if the bone had been correctly set. All doctors do however agree that the
precise causes of trapped nerves are difficult to determine and that it may have been the
result of a variety of factors which were not related to the fall at all. Advise Anne.

TO HAND IN:

Andy is an itinerant ice-cream seller. One day, after selling ice-cream cornets to a group
of children, Andy drives off without checking that all have left the vicinity of the van. He
runs over the left foot of six-year-old Pip as well as her brand new bicycle. Duncan, a
scoutmaster, sees Pip’s plight. He applies a tourniquet to Pip's foot and drives her to
hospital. Due to delays caused by a combination of road works and political
demonstrations the drive to the hospital takes an hour and a half. Duncan omits to
slacken the tourniquet, with the result that Pip's foot eventually has to be amputated. Dr
Brown, the house surgeon assigned to perform the operation, is nearing the end of an
exhausting 48-hour shift. He misreads the instructions given to him and amputates the
right foot instead of the left foot. Discuss Andy’s liability.

(Note: The question asks only about Andy’s liability. Do not discuss any liability that
Duncan and Dr Brown may have; just the way in which their actions affect Andy’s
liability).

SUPERVISION 3 – DUTY OF CARE (1)

1. THE DUTY OF CARE CONCEPT

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Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), pp. 85-107
McBride and Bagshaw, Tort Law (6th ed., 2018), Chapter 4 and pp. 105-118
Winfield and Jolowicz, Tort (20th ed., 2020), Chapter [5.001]-[5.028]
Gardner and Green, Tort Law (1st ed., 2021), Chapter 2.1-2.3

Casebook:
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed., 2015), pp. 31-60
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), Chapter 3
Steele, Tort Law (5th ed., 2022), Chapter 4

Further reading:
Morgan, Great Debates in Tort Law (1st ed., 2022), Chapter 6 & 7
N McBride, ‘Duties of care – do they really exist?’ (2004) 24 OJLS 417
D Howarth, ‘Many duties of care – or a duty of care?’ (2006) 26 OJLS 449
J Stapleton, ‘Duty of Care Factors: a Selection from the Judicial Menus’ in P Cane & J
Stapleton (eds.), The Law of Obligations: Essays in Celebration of John Fleming
(Clarendon Press, 1998), pp. 59-95

Cases:
*Donoghue v Stevenson [1932] AC 562 (compare Lord Atkin with Lord Macmillan)
Anns v London Borough of Merton [1978] 1 AC 728
Caparo v Dickman [1990] 2 AC 605
*Robinson v Chief Constable of West Yorkshire [2018] AC 736 (noted Tofaris [2018] 77
CLJ 454)

James-Bowen v Metropolitan Police Commissioner [2018] 1 WLR 4021 (noted Morgan

[2019] 78 CLJ 15) (‘novel’ situations)
Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

2. LIABILTY FOR OMISSIONS AND ACTS OF THIRD PARTIES

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), pp. 161-168
McBride and Bagshaw, Tort Law (6th ed., 2018), Chapter 6
Winfield and Jolowicz, Tort (20th ed., 2020), Chapter [5.029]-[5.039]
Gardner and Green, Tort Law (1st ed., 2021), Chapter 2.4-2.5

Casebook:
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed., 2015), pp. 60-83
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), Chapter 9
Steele, Tort Law (5th ed., 2022), Chapter 4

Further reading:
S Tofaris and S Steel, ‘Negligence Liability for Omissions and the Police’ [2016] 75 CLJ
128
S Steel, ‘Rationalising Omissions Liability in Negligence’ (2019) 135 LQR 484

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Cases:
Home Office v Dorset Yacht Co [1970] AC 1004
Smith v Littlewoods [1987] AC 241 (especially Lord Goff)
Stovin v Wise [1996] 3 All ER 801
Gorringe v Calderdale MBC [2004] 1 WLR 1057
Mitchell v Glasgow City Council [2009] 1 AC 874
*Michael v Chief Constable of South Wales Police [2015] UKSC 2 (noted Goudkamp
(2015) 131 LQR 519)
*Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 (noted Tofaris [2018] 77
CLJ 454)
*Poole BC v GN [2019] UKSC 25 (noted Deakin [2019] 78 CLJ 516)

Haynes v Harwood [1935] 1 KB 146 (creation of danger)

Topp v London Country Bus Ltd [1993] 1 WLR 976
Barrett v Ministry of Defence [1995] 1 WLR 1217 (making situation worse)
Carmarthenshire CC v Lewis [1955] AC 549 (control over third party)
Stansbie v Troman [1948] 2 KB 48 (headnote) (assumption of responsibility)
Rushbond plc v JS Design Partnership LLP [2021] EWCA Civ 1889
Swinney v CC of the Northumbria Police [1997] QB 464
Reeves v Metropolitan Police Commissioner [2000] 1 AC 360
Capital & Counties v Hampshire CC [1997] 3 WLR 331
Kent v Griffiths [2001] QB 36
Tindall v Chief Constable of Thames Valley [2022] EWCA Civ 25 (noted Morgan [2022] 81
CLJ 245)
HXA v Surrey County Council [2022] EWCA Civ 1196 (noted, alongside Tindall, at
https://mcbridesguides.com/wp-content/uploads/2022/09/HXA-v-Surrey-CC-YXA-v-
Wolverhampton-CC.pdf) (appealed to SC)

3. MISCELLANEOUS CATEGORIES

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), pp. 178-180
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed., 2015), pp. 156-171

Cases:

(1) Rescuers
Haynes v Harwood [1935] 1 KB 146
Baker v TE Hopkins [1959] 3 All ER 225
Ogwo v Taylor [1988] AC 431
Harrison v British Railways Board [1981] 3 All ER 679

(2) Wrongful Birth

McFarlane v Tayside Health Board [2000] 2 AC 59
Parkinson v St. James University Hospital [2002] QB 266
Rees v Darlington NHS Trust [2004] 1 AC 309

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QUESTIONS:

1. ‘There is no single test for duty of care.’ Is this statement accurate? Is such a test
possible and/or desirable?

2. What do ‘proximity’ and ‘policy’ mean in the context of the duty of care?

3. What is a ‘pure omission’? Why is there no general liability for a ‘pure omission’?
Should it make any difference that the defendant is a public authority?

4. Might liability in negligence arise in the following circumstances?

(a) Adam fails to brake as his car approaches an intersection and crashes into Bob.

(b) Charles receives a phone call to say that his eight-year-old son, who ought to
have been at school, is standing in the middle of a busy road. Charles does
nothing. Dorothy is injured when she swerves to avoid the boy.

(c) Emily sells Francis a gun. Before Francis leaves the premises, he tells Emily that
he plans to shoot his mother-in-law. Emily does nothing. Francis is in fact
mentally ill and shoots his mother-in-law later that day.

5. ‘The ‘duty of care’ is a concept of doubtful utility built on shaky philosophical

foundations. More clarity in the law would be achieved if the phrase ‘there is no duty of
care’ were to be confined to cases in which the defendant can plausibly be said to have
established that he or she (or more often, it) should benefit from some degree of
immunity from actions in negligence.’ (HOWARTH, 1991) Discuss.

6. ‘You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who then, in law, is my neighbour?
The answer seems to be persons who are so closely and directly affected by my act that
I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called into question.’ (LORD
ATKIN in Donoghue v Stevenson [1932]). To what extent does this statement remain an
accurate summary of the test for a duty of care in negligence today?

7. ‘The development of the law of negligence has been by an incremental process rather
than giant steps. The established method of the court involves examining the decided
cases to see how far the law has gone and where it has refrained from going. From that
analysis it looks to see whether there is an argument by analogy for extending liability
to a new situation, or whether an earlier limitation is no longer logically or socially
justifiable. In doing so it pays regard to the need for overall coherence. Often there will

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be a mixture of policy considerations to take into account.’ (LORD TOULSON in Michael
v. Chief Constable of South Wales (2015)). Examine critically the courts’ approach to the
‘duty of care’ in the tort of negligence in the light of this statement.

8. ‘English law does not as a general rule impose liability on a defendant (D) for injury
or damage to the person or property of a claimant (C) caused by the conduct of a third
party (T): Smith v. Littlewoods Organisation Ltd [1987] AC 241, 270. The fundamental
reason, as Lord Goff explained, is that the common law does not generally impose
liability for pure omissions.’ (LORD TOULSON in Michael v. Chief Constable of South
Wales [2015]). Discuss.

SUPERVISION 4 – DUTY OF CARE (2)

1. PURE ECONOMIC LOSS

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Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), pp. 124-161
McBride and Bagshaw, Tort Law (6th ed., 2018), 142-184
Winfield and Jolowicz, Tort (20th ed., 2020), [5.048]-[5.056]
Gardner and Green, Tort Law (1st ed., 2021), Chapter 3

Casebook:
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed., 2015), Chapter 4
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), Chapter 8
Steele, Tort Law (5th ed., 2022), pp. 233-288

Further reading:
C Witting, ‘Duty of Care: An Analytical Approach’ (2005) 25 OJLS 33
J Stapleton, ‘Duty of Care: A Wider Agenda’ (1991) 107 LQR 249

Cases:
*Spartan Steel v Martin [1973] QB 27 (defining pure economic loss)
The Aliakmon [1986] 2 All ER 145
West Bromwich Albion Football Club Ltd v El-Safty [2006] EWCA Civ 1299

*Hedley Byrne v Heller [1964] AC 465 (establishing a duty of care)

Smith v Eric S Bush [1989] 2 All ER 514 (cf Scullion v Bank of Scotland Plc [2011] EWCA
Civ 693)
*Caparo Industries v Dickman [1990] 1 All ER 568
Spring v Guardian Assurance [1994] 3 All ER 129
Henderson v Merrett Syndicates [1994] 3 All ER 506
White v Jones [1995] 1 All ER 691
Williams v Natural Life Health Foods [1998] 1 WLR 830
*Customs & Excise v Barclays Bank [2007] 1 AC 181
*Steel v NRAM Ltd [2018] 1 WLR 1190 (noted Gordon [2018] 77 CLJ 251)
Playboy Club London Ltd v Banca Nazionale del Lavoro [2018] 1 WLR 4041

Anns v London Borough of Merton [1978] 1 AC 728 (defective buildings)

D&F Estates v Church Commissioners [1989] AC 177
*Murphy v Brentwood DC [1991] 1 AC 398
Simaan v Pilkington [1988] 1 All ER 791
Robinson v PE Jones [2011] EWCA Civ 9 (noted O’Sullivan [2011] CLJ 291)

QUESTIONS:

1. ‘In Smith v. Eric S Bush (1989) Lord Griffiths said, “I do not think that voluntary
assumption of responsibility is a helpful or realistic test for liability.” Yet thirty years
later, “voluntary assumption of responsibility” is treated as the solution to every
controversial duty of care issue.’ Discuss in relation to the duty of care in negligence.

2. Is the loss suffered in the following examples pure economic loss?

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 (a) Adam’s hotel is damaged by fire. It has to close for repairs. Adam suffers a loss of
profits as a consequence.

(b) Ben’s hotel has to close for repairs after the plaster on the dining room ceiling
collapses, damaging furniture underneath. It takes two weeks to replace the
furniture and two further weeks to have the room re-plastered. Ben suffers a loss
of profits as a consequence.

(c) Caroline, a newsagent, is injured in a car crash and has to close her shop for three
months while she recuperates. She suffers a loss of profits as a consequence.
David, who delivers newspapers for Caroline, suffers a loss of earnings while the
shop is closed.

3. In 2006 Francis bought The Glades, a three-storey house situated on an estate built
two years previously. The purchase price was £500,000. Gerald, the builder of The
Glades, had neglected to build proper foundations, and no inspections had been carried
out during construction because of expenditure cuts made by the local authority, the
Highshires County Council. Ian, a surveyor employed to write a report on the house for
the Jointways Bank, which was considering whether to give Francis a loan, failed to spot
that the foundations were defective. The bank agreed to Francis’s loan application on
the basis of Ian’s report, which was stated to be ‘without liability’. A year after Francis
moved in, cracks began to appear in the walls and ceilings of The Glades, the result of
the foundations being defective. Francis decided to sell The Glades without delay.
Because of a slump in house prices, there were very few potential buyers. In the spring
of 2008 he sold the house to Lenny, a builder, for a fifth of its original purchase price.
Lenny was able to restore the property and make it safe at a cost of £100,000. Discuss.

2. NERVOUS SHOCK & PSYCHIATRIC HARM

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), pp. 107-124
McBride and Bagshaw, Tort Law (6th ed., 2018), 121-142
Winfield and Jolowicz, Tort (20th ed., 2020), [5.070]-[5.083]
Gardner and Green, Tort Law (1st ed., 2021), Chapter 4

Casebook:
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed., 2015), pp. 124-156
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (7th ed., 2023), Chapter 7
Steele, Tort Law (5th ed., 2022), pp. 201-233

Further reading:
Law Commission Report No. 249 (including (Draft) Negligence (Psychiatric Illness) Bill
1998)
Morgan, Great Debates in Tort Law (1st ed., 2022), Chapter 9

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Cases:
Dulieu v White [1901] 2 KB 669 (nervous shock)

*Page v Smith [1996] AC 155 (primary victims)

Dooley v Cammell Laird & Co [1951] 1 Lloyd’s Rep 271
Chadwick v British Transport Commission [1967] 1 WLR 912
McFarlane v EE Caledonia [1994] 2 All ER 1
CJD Litigation: Group B plaintiffs (1998) 41 BMLR 157
Grieves v FT Everard & Sons Ltd [2007] UKHL 39 (at [93]-[100])

McLoughlin v O'Brian [1983] AC 410 (secondary victims)

*Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310
*White (or Frost) v Chief Constable of the South Yorkshire Police [1999] 2 AC 455
Galli-Atkinson v Seghal [2003] EWCA Civ 697
Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588
Taylor v Novo [2013] EWCA Civ 194
*Paul v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 (noted Tofaris [2022]
81 CLJ 452) (awaiting SC judgment)

Greatorex v Greatorex [2000] 1 WLR 1970

Attia v British Gas [1988] QB 304 (psychiatric harm arising from property damage)
Hatton v Sutherland [2002] 2 All ER 1 (cf Barber v Somerset CC [2004] 2 All ER 385)
(work-related stress)

QUESTIONS:

1. Is P in the following cases a primary or secondary victim of D's act, assuming that he
suffers psychiatric harm but no physical injury?

(a) D negligently drops a lump of stone into the path of a bus driven by P. The stone
damages the driver’s cabin.
(b) D negligently drops a lump of stone into the path of a bus driven by Q. P is
travelling in the driver's cabin, which is damaged by the stone.
(c) D negligently drops a lump of stone into the path of a bus on which P is a
passenger. The driver's cabin is damaged, but not the rest of the bus.
(d) D negligently drops a lump of stone into the path of a bus which P has just got off.
(e) D negligently drops a lump of stone into the path of a bus. P is on the other side
of the road.
(f) D negligently drops a lump of stone into the path of a bus. P helps to drag the
driver from the wreckage.

2. P sees Q being badly burned. Does P have the necessary relationship with Q to
recover damages for psychiatric harm if Q is:

(a) P's husband

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 (b) In same-sex civil partnership with P
(c) P's workmate
(d) A person unknown to P
(e) P's dog
(f) P's car

3. Advise the following claimants who claim to be suffering from psychiatric illness:

(a) A, who sees his stepbrother (whom he utterly hates) being quashed by an
elephant, released carelessly by C, on a live TV game show.
(b) D, who hears a loud crash in the road outside his house (caused by the
carelessness of E), knowing that his baby is lying there in its pram.
(c) F, who hears a loud explosion nearby caused by G’s fault. Shortly afterwards F
discovers that it was in a building where his wife works.
(d) P, who reads in a newspaper that his mother has been seriously injured in a car
crash caused by the carelessness of Q.
(e) S, who sees an old friend badly injured at work (due to the careless of their
employer T). S has a history of mental illness.
(f) U, a management consultant, who has become depressed as a result of the erratic
behaviour of V, her main client.
(g) X, a Cambridge law student, whose parked bike is destroyed, in front of her eyes,
by a careless lorry driver, Y.

4. ‘[T]he law on the recovery of compensation for pure psychiatric harm is a patchwork
quilt of distinctions which are difficult to justify. There are two theoretical solutions.
The first is to wipe out recovery in tort for pure psychiatric injury…. The second
solution is to abolish all the special limiting rules applicable to psychiatric harm’ (LORD
STEYN in White v Chief Constable of South Yorkshire Police (1998)). Discuss.

5. ‘In White v. Chief Constable of South Yorkshire (1998) Lord Hoffmann said, ‘It seems to
me that in this area of the law, the search for principle was called off in Alcock v. Chief
Constable of South Yorkshire (1992). No one can pretend that the existing law, which
your Lordships have to accept, is founded upon principle. I agree with Jane Stapleton’s
remark that … “once the law has taken a wrong turning or otherwise fallen into an
unsatisfactory internal state in relation to a particular cause of action, incrementalism
cannot provide the answer”’. In the light of Lord Hoffmann’s view, how should the
courts today develop coherent principles to deal with cases involving so-called
‘secondary victims’ of psychiatric harm?

3. PUBLIC AUTHORITIES

Textbook:
Markesinis and Deakin’s Tort Law (8th ed., 2019), pp. 169-174, 296-321
Winfield and Jolowicz, Tort (20th ed., 2020), [5.057]-[5.062]

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Gardner and Green, Tort Law (1st ed., 2021), Chapter 2.5

Casebook:
Hepple and Matthews’ Tort Law: Cases and Materials (7th ed, 2015), pp. 105-124
Lunney, Nolan and Oliphant, Tort Law: Text and Materials (8th ed., 2023), Chapter 10
Steele, Tort Law (5th ed., 2022), pp. 288-351

Further reading:
D Nolan, ‘The Liability of Public Authorities for Failing to Confer Benefits’ (2011) 127
LQR 260
S Tofaris and S Steel, ‘Negligence Liability for Omissions and the Police’ [2016] 75 CLJ
128

Cases:

(1) Social services

X v Bedfordshire CC [1995] 2 AC 633
Barrett v Enfield LBC [2001] 2 AC 550
D v East Berkshire NHS Trust [2005] 2 AC 373
*Poole BC v GN [2019] UKSC 25; [2019] 2 WLR 1478
HXA v Surrey County Council [2022] EWCA Civ 1196 (appealed to SC)

(2) Education authorities

Phelps v Hillingdon LBC [2001] 2 AC 619

(3) Highway Authorities

Stovin v Wise [1996] AC 923
Gorringe v Calderdale MBC [2004] 2 All ER 326

(4) Fire Service & Ambulance

Capital & Counties v Hampshire CC [1997] 3 WLR 331
Kent v Griffiths [2001] QB 36
Darnley v Croydon Health Services NHS Trust [2018] UKSC 50; [2018] 3 WLR 1153

(5) Police
Hill v Chief Constable of West Yorkshire Police [1989] 1 AC 53
Brooks v MPC [2005] 1 WLR 1495
*Michael v Chief Constable of South Wales [2015] UKSC 2; [2015] 2 WLR 343
*Robinson v Chief Constable of West Yorkshire [2018] UKSC 4; [2018] 2 WLR 595
Tindall v Chief Constable of Thames Valley [2022] EWCA Civ 25

QUESTIONS:

1. Should public authorities be liable in negligence in the same way as private

individuals?

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2. ‘There are good reasons for treating public and statutory bodies as special classes of
defendants in tort law.’ Discuss.

3. ‘[T]here are certain circumstances in which public authorities, like private individuals
and bodies, can come under a duty of care to prevent the occurrence of harm ... In the
absence of such circumstances, however, public authorities generally owe no duty of
care towards individuals to confer a benefit upon them by protecting them from harm,
any more than would a private individual or body...’ (LORD REED in Robinson v Chief
Constable of West Yorkshire Police (2018)). Comment on the law’s approach to the
negligence liability of public authorities, in the light of this statement.

TO HAND IN:

‘In cases of personal or physical injury, reasonable foreseeability of harm is usually

enough… to generate a duty of care. In the case of economic loss, something more is
needed.’ (LORD HOFFMANN in Customs & Excise Commissioners v Barclays Bank (2006)).
Discuss.

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