Principles of Torts Law (Part A and B)
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PRINCIPLES OF TORTS LAW (PART A AND B)
PART A
Cassie has been diagnosed with serious Post Traumatic Stress Disorder (PTSD) and is
subsequently unable to continue with her employment as a retail assistant. This means that she is
can sue Abingdon Council because she has suffered serious distress that a reasonable person is
not expected to endure. The harm suffered is severe and has caused her to forfeit her job. the
dictates of this part will seek to examine whether Abingdon Council owed a duty of care to
Cassie. The genesis of the legal duty of care can be traced to the 1932 landmark case of
Donoghue vs Stevenson 1932 1 . The House of Lords was categorical that every person owes a
duty of care to their “neighbour”. Furthermore, the Court directed that a ‘neighbour’ was any
person that could be directly or closely affected by a person’s actions that were reasonably
expected. 2 In a summary, the description of the Lords concerning a neighbour in the Donoghue
case was so wide and could be construed to include every person. This means that every person
through their acts and omissions owes a duty of care to everyone. This position was asserted in
Mustapha v Culligan of Canada Ltd, 2008. 3 In a scenario where the duty of care is breached then
a legal liability is placed on the wrongdoer to compensate the aggrieved party for the damages
incurred. 4 Under the fact scenario, the Abingdon Council undertook an activity that made Barry
get lost and that ended up causing Cassie to suffer from Post-Traumatic Stress Disorder (PTSD).
Therefore, it is correct to conclude that Abingdon Council owed a duty of care to Cassie, the
mother of Barry who was at the event. This is as per the neighbour principle devised by Lord
Atkinson in the Donoghue case.
1 Donoghue v Stevenson [1932] UKHL 100.
2 Castle, Richard. "Lord Atkin and the neighbour test: origins of the principles of negligence in Donoghue v
Stevenson." (2003) Ecclesiastical Law Journal 7, no. 33): 210-214.
3 Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.
4 Nolan, Donal. "Deconstructing the Duty of Care." (2013) The Law Quarterly Review 129: 559-588.
The breach of a duty of care is one of the integral elements of negligence. 5 To determine whether
the Abingdon Council had breached their duty of care by failing to have ‘child-friendly’ games
and activities for children of Barry’s age, the court will look at two factors. First, it will be
prudent to establish whether the legal duty of care was breached and whether the breach resulted
in damage. The test ought to be both objective and subjective 6 . The standard of care required of
the Council herein is that of a reasonable person. In that, the question would be whether a
reasonable person under the same circumstances would have left the unsafe place unguarded
knowing that children were at the "Day of Pop" event and could climb over the place and get
injured. Was the danger sign sufficient knowing that children were attending the event? In a
scenario where the duty of care is breached then a legal liability is placed on them to compensate
the aggrieved party for the damages incurred. Furthermore, everyone ought to undertake an
activity that should reasonably not cause harm to their clients or other third parties.
Abingdon Council owed a duty of care to everyone who attended the event including the
children. Under the fact scenario, the Council did not guard the unsafe parts of the showground
and therefore undertook an activity that could reasonably cause harm to the children who
attended the Day of Pop” event. To determine whether the Abingdon Council owed a duty of
care to the children, it is prudent to consider the threefold test established by Lord Bridge in the
case of Caparo Industries plc v Dickman (1992 7 ). This is to mean the principle of foreseeability,
proximity, and fairness precedes the foregoing position. The harm caused to Barry must have
been reasonably foreseeable by the Council staff and event organizers because they put security
personnel to guard the unsafe parts of the showground and the dangerous fence knowing that the
5 Tingle, John. "Establishing breach of the duty of care in the tort of negligence." (2002) British journal of
nursing 11, no. 17: 1128-1130.
6 Ibid.
7 Caparo Industries PLC v Dickman [1990] UKHL 2.
children were around. By not providing children with entertainment, it was foreseeable that they
would leave the playground and wander through other parts. They ought to have secured every
place knowing that the children were around. Therefore, it is correct to conclude that Abingdon
Council breached its duty of care towards Barry and other children who were expected at the
event. Furthermore, a plaintiff ought to demonstrate that the injury suffered was a result of the
defendant’s acts or omissions. The nexus for Barry’s injury can directly be linked to the negligent
acts of the Council in failing to put security officers to guard the dangerous parts of the
showground. Therefore, it is prudent to conclude that the action of the Council amounted to
negligence under the fact scenario and the injury suffered by Barry was a result of the
aforementioned negligence. Thus, they breached that duty of care towards the children and Barry
in particular.
The issue of contributory negligence 8 can be used as a defence by the Council against Cassie. A
child cannot be liable for contributory negligence as was in the case of Gillick v Wisbech (the
Gillick competence) 9 . However, the mother by leaving the child alone is liable for contributory
negligence and thus will share damages will the Council for the injury suffered by Barry. This
defence was maintained in the case of Jones v Livox Quarries 10 where the court reduced the
plaintiff’s damages by twenty percent for contributory negligence. Similarly, the court may
apportion liability when it finds that Cassie had equally contributed to Barry’s injury.
Cassie can sue Abingdon Council under the principle of vicarious liability 11 for the failure of the
security guards to notice that Barry had scaled the fence and to prevent him from doing so. The
doctrine of vicarious liability is a profound concept in the common law and it entails the rule of
8 Bohlen, Francis H. "Contributory Negligence." Harv. L. Rev. 21 (1907): 233.
9 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
10 Jones v Livox Quarries Ltd [1952] 2 Q.B. 608 (25 April 1952).
11 James Jr, Fleming. "Vicarious Liability." (1953) Tul. L. Rev. 28: 161.
responsibility in tort. This is to mean, that the defendant’s liability in tort shifts to another. In tort,
employers are strictly liable for acts and omissions of their employees as long as the employee
was acting in the line of duty. 12 Therefore, it breaks the causal link and shifts the liability to the
employer. Under the fact scenario, the security officers are the employees of the Council and
thus the Council can be sued under the doctrine of vicarious liability for the negligent actions of
the security officers.
PART B
Question 1.
The standard of a "reasonable person" also known as the man in the Clapham omnibus’ has
survived close to two decades since its inception in the common law. 13 It is a fictional person of
legal standing, often used by courts in deciding cases. In a nutshell, they are often envisaged in
case laws and was first used in the case of Vaughan v. Menlove (1837) 14 . The courts often
determine the character of the person in line with public policy. in addition to that, the care
conduct of the person in line with the law of negligence has to be of good and acceptable
practice. The precautions required of a reasonable man are enlisted under the provisions of
Section 48(2) of the Wrongs Act 1958. The position that the law of negligence measures the
defendant’s conduct against the standard of an ordinary reasonable person is correct since the
courts have adopted an objective standard to the test rather than a subjective one. This was
affirmed in the case of Blyth v. Company Proprietors of the Birmingham Water Works. 15
Question 2
12 Laski, Harold J. "Basis of vicarious liability." Yale LJ 26 (1916): 105.
13 Nourse, Victoria. "After the reasonable man: Getting over the subjectivity/objectivity question." New Criminal
Law Review 11, no. 1 (2008): 33-50.
14 Vaughan v Menlove (1837) 132 ER 490 (CP).
15 Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781.
The most integral role of compensatory damages in torts and negligence is to try to restore the
plaintiff to the position they could have been if the actual damage or act or omission by the
defendant had not occurred in the first place 16 . However, this purpose has been challenged since
it cannot apply to every tort, like privacy torts which are vastly irreversible. Nonetheless, Justice
Windeyer in the case of Uren v John Fairfax & Sons Pty Ltd [1966], 17 affirmed that the core
purposes of compensatory damages included vindication of the plaintiff to the public,
consolation to him for a wrong done in matters of defamation, and restoration in other forms of
tort. In Victoria, damages are pinned under the statute. That is Section 28 of the Wrong’s Act of
1958. Personal and psychiatric injuries cannot be undone with damages. However, damages can
provide in part a measure of solace for the injury suffered.
Question 3.
The laws of Victoria maintain that not all damage caused by a defendant’s breach of the tortious
duty of care will be compensated 18 . Some defences can be raised for negligence. Section 54 of
the Wrongs Act 1958 provides for the defence of voluntary assumption of risk. Section 54(1)
asserts that if the person who suffered harm is presumed to have been aware of the risk or if the
defence of volenti non-fit injuria is raised in a proceeding on a claim for damages for negligence
and the risk of harm is an obvious risk unless the person who suffered harm proves on the
balance of probabilities that the person was not aware of the risk. Where the persons were aware
and with free will got themselves in danger then, the defendant might not be liable for the
plaintiff’s injury.
Question 4.
16 Demogue, René. "Validity of the Theory of Compensatory Damages." Yale LJ 27 (1917): 585.
17 Uren v John Fairfax & Sons Pty Ltd – [1966] HCA 40.
18 Goldberg, John CP. "Two Conceptions of Tort Damages: Fair v. Full Compensation." (2005) DePaul L. Rev. 55:
435.
The provisions of Section 73 of the Wrongs Act 1958 explicitly provide for the liability of a
defendant in relation to causing pure mental harm. 19 The dictates of Section 73(1) imply that the
mental harm may arise partly or wholly from a nervous or mental shock. Compensation for
negligently caused mental shock was first recognized in the Victorian case of Coultas v Victorian
Railway Commissioners 20 (1886) 12 VLR 895. However, this decision that affirmed the pure
mental harm as a tort that had to be compensated was reversed on the appeal where the court
maintained that it was only a physical injury that could attract compensation. The decision to
establish principles that would govern compensation of negligently inflicted pure mental harm
was ascertained in 2002 through the court decisions in the High Court of Australia in Tame v
New South Wales 21 and in Annetts v Australian Stations Pty Ltd (2002) 22 . The principles were
subsequently penned into statutes.
5.
Section 24(1) of the Wrongs Act 1958 defines a concurrent wrongdoer as two or more persons
whose actions have either jointly or independently caused loss or damage to another person.
Section 24(2) of the legislation goes on to maintain that it does not matter whether the persons
are dead, have ceased to exist, or are insolvent for the purposes of the Act. The Victoria law
recognizes the issues revolving around third-party liability. 23 The Wrongs Act 1958 guarantees
the defendant’s right to join a third party to the case if they think they may be found liable to the
client. The award of damages for concurrent wrongdoers may not be proportional as was
established in the case of Mahoney v. J. Kruschich (Demolitions) Pty.Ltd 24 This is to mean, that
19 Allcock, Martin. "Pure psychiatric injury pursuant to the civil liability legislation: An (other) economic
perspective." (2015) Journal of Law and Medicine 25 814-836.
20 Coultas v Victorian Railway Commissioners (1886) 12 VLR 895.
21 Tame v New South Wales (2002) 191 ALR 449.
22 Annetts v Australian Stations Pty Ltd [2002] HCA 35 (High Court of Australia).
23 Popa, Tina. "Righting wrongs: Lawyers’ reflections on the amendments to the Wrongs Act 1958 (Vic) on medical
negligence and mental harm claims." (2017) Torts Law Journal 24, no. 1 64-82.
every party will pay damages concordances with the part they played in the defendant’s injury as
was in the case of Smith v. Dyer. 25
BIBLIOGRAPHY
24 Mahoney v. J. Kruschich (Demolitions) Pty. Ltd. (1985) 156 CLR 522 at 527.
25 Smith v. Dyer [1949] SASR 187 at 194-5.
Books
Bohlen, Francis H. "Contributory Negligence." Harv. L. Rev. 21 (1907): 233.
Journal Articles
Castle, Richard. "Lord Atkin and the neighbour test: origins of the principles of negligence in
Donoghue v Stevenson." (2003) Ecclesiastical Law Journal 7, no. 33): 210-214.
Nolan, Donal. "Deconstructing the Duty of Care." (2013) The Law Quarterly Review 129: 559-
588.
Tingle, John. "Establishing breach of the duty of care in the tort of negligence." (2002) British
journal of nursing 11, no. 17: 1128-1130
James Jr, Fleming. "Vicarious Liability." (1953) Tul. L. Rev. 28: 161.
Laski, Harold J. "Basis of vicarious liability." Yale LJ 26 (1916): 105.
Nourse, Victoria. "After the reasonable man: Getting over the subjectivity/objectivity question."
New Criminal Law Review 11, no. 1 (2008): 33-50.
Demogue, René. "Validity of the Theory of Compensatory Damages." Yale LJ 27 (1917): 585.
Goldberg, John CP. "Two Conceptions of Tort Damages: Fair v. Full Compensation." (2005)
DePaul L. Rev. 55: 435.
Allcock, Martin. "Pure psychiatric injury pursuant to the civil liability legislation: An (other)
economic perspective." (2015) Journal of Law and Medicine 25 814-836.
Popa, Tina. "Righting wrongs: Lawyers’ reflections on the amendments to the Wrongs Act 1958
(Vic) on medical negligence and mental harm claims." (2017) Torts Law Journal 24, no. 1 64-82.
Legislation
Wrongs Act 1958.
Case laws
Donoghue v Stevenson [1932] UKHL 100.
Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.
Caparo Industries PLC v Dickman [1990] UKHL 2.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
Jones v Livox Quarries Ltd [1952] 2 Q.B. 608 (25 April 1952).
Vaughan v Menlove (1837) 132 ER 490 (CP).
Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781.
Uren v John Fairfax & Sons Pty Ltd – [1966] HCA 40.
Coultas v Victorian Railway Commissioners (1886) 12 VLR 895.
Tame v New South Wales (2002) 191 ALR 449.
Annetts v Australian Stations Pty Ltd [2002] HCA 35 (High Court of Australia).
Mahoney v. J. Kruschich (Demolitions) Pty.Ltd. (1985) 156 CLR 522 at 527.
Smith v. Dyer [1949] SASR 187 at 194-5.
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