Professor Richard A Buckley , M.A, D.Phil, DCL, Oxford
Professor Buckley is an Emeritus Professor of Law 2008 -. Formerly Professor of Law, University of Reading 1993-2008; Fellow and Tutor in Law, Mansfield College, Oxford 1975-1993; Lecturer in Laws, King's College, London 1970-1975. Leverhulme Research Fellow, 2001. Publications include The Law of Negligence and Nuisance, 5th ed (2011, LexisNexis); Illegality and Public Policy, 2nd ed (2009, Sweet & Maxwell); The Law of Nuisance, 2nd ed (1995, Butterworths). Professor Buckley is also a contributing editor to Clerk and Lindsell on Torts, Halsbuy's Laws of England, Atkin's Court Forms, Fleming's The Law of Torts, 10th ed (2011), and formerly to Salmond and Heuston on Torts.
Practice Area
Panel
- Contributing Author
6 Contributions by Richard A Buckley
PRACTICE NOTES
Breach of statutory duty: tests for implied private rights of action, standard and defences, overlap with negligence and public authority liability, and competition law damages
This Practice Note examines claims for damages for breach of statutory duty. For guidance on claims for damages for a negligent breach of the duty of care outside a statutory duty, see the following Practice Notes:
Negligence—when does a duty of care arise?
Negligence—when is the duty of care breached?
—nature of liability
A claimant who suffers loss or injury in circumstances where a defendant has contravened a statutory requirement may, in some cases, recover damages in tort, even if the facts do not fall within the scope of a recognised tort such as negligence. Where the statute expressly provides a right to damages, the position will generally be straightforward. In the absence of such a provision, the availability of a claim turns on Parliament’s intention, which must be identified by construing the statute in question. Because that intention is seldom explicit, the courts have developed a series of tests and presumptions, applied both to the legislative wording and to the facts of the incident, to decide whether liability ought to be imposed on that basis...
Dispute Resolution
PRACTICE NOTES
Negligence claims in England and Wales: duty, breach, causation, remoteness, res ipsa, multiple tortfeasors, limitation and pre-action
This Practice Note sets out the principal components for bringing a negligence claim. For targeted guidance on negligence concerning company/parent company liability, banks, and professional negligence, see:
Practice Note: Tortious liability—companies
Practice Note: Negligence—banks and the duty of care
Professional negligence claims—overview
Negligence—what are the key ingredients to establish a claim in negligence?
To found liability in negligence, four essential elements must exist:
a duty of care owed by the defendant to the claimant
a breach of that duty
loss or damage resulting from the breach
the damage being reasonably foreseeable
These tests can intersect, and in some situations strict compartmentalisation is somewhat artificial on close analysis. Nonetheless, addressing each in turn is a vital framework for assessing whether an actionable negligence claim has emerged.
Negligence—a duty of care is required
Negligence is only made out where the defendant owes the claimant a duty to exercise reasonable care so as not to cause him or her harm...
Dispute Resolution
PRACTICE NOTES
Negligence duty of care: Caparo test, scope of duty, omissions/assumption, interference principle, non-delegable duties, exclusions, and applications to public authorities, emergency services, economic loss, psychiatric injury, corporate contexts
This Practice Note addresses the initial issue to consider when confronted with a prospective negligence claim—whether a duty of care exists between the claimant and the defendant so that, if that duty is breached, liability may arise. For analysis of what may then constitute a breach, see Practice Note: Negligence—when is the duty of care breached? For specific guidance on banks and the duty of care, see Practice Note: Negligence—banks and the duty of care. For specific guidance on breach of statutory duty, see Practice Note: Negligence—breach of statutory duty. For specific guidance in professional negligence claims, see: Professional negligence claims—overview, including Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity.
Duty of care—what are the requirements to establish a duty of care?
The tort of negligence fixes liability for loss or injury arising from a want of care. Two core questions emerge:
what amounts to carelessness?
when is liability not imposed even though the defendant was careless?
The courts deploy the concept of a ‘duty of care’ to address both questions...
Dispute Resolution
PRACTICE NOTES
Negligence: breach of duty and standard of care—objective test, four risk factors, professionals, children, sport and public bodies, common practice, hindsight, errors of judgment, Compensation Act 2006 s 1
Once a duty of care is confirmed (see Practice Note: Negligence—when does a duty of care arise?), the next step is to assess whether that duty has been breached. The answer turns on several factors outlined below and is judged against the objective baseline of reasonableness, taken from an impersonal standpoint and the general background against which reasonableness is assessed.
Breach of duty of care—reasonableness
To decide if there has been a breach, the law applies the artificial, objective measure of the ‘reasonable person’, setting aside the realities of the defendant’s position insofar as their abilities diverge from that norm, notwithstanding any inexperience or personal shortcomings (Glasgow Corpn v Muir, per Lord Macmillan).
Breach of duty of care—objectivity
This objective demand for a reasonable level of competence covers skills attainable only through training and effort, as well as ordinary attributes most people are expected to have. Accordingly, learner-drivers of motor cars owe the same obligation to drive with the skill and care expected of a competent and experienced motorist, the standard applied in practice to competent and experienced drivers (Nettleship v Weston)...
Dispute Resolution
PRACTICE NOTES
Negligent misrepresentation and negligent misstatement: elements, reliance, limitation, remedies, defences, alternatives and practical considerations (England and Wales)
Claims for negligent misrepresentation are frequently pursued together with, or as an alternative to, claims for negligent misstatement. It is therefore helpful to grasp the key practical considerations relevant to both types of claim.
Comments
Negligent misrepresentation
Key ingredients of claim
the representee relied upon a statement made to them by, or on behalf of, the representor
the representor intended that statement to prompt the representee to enter the contract
the statement did in fact induce the representee to enter the contract
the statement bore the character of a representation
the representation was untrue
Accordingly, a negligent misrepresentation claim inherently involves entry into a contract brought about by the misrepresentation.
Negligent misstatement
Key ingredients of claim
an inaccurate statement made by the representor to the representee
the claimant relied on that misstatement
the claimant suffered loss as a consequence
there is no need for a contract to have been concluded between claimant and representor
Parties to such claims
the representor (or their agent, if acting within authority when making the representation for their principal)
the representee in the context of the representor’s misrepresentation inducing
It is therefore useful to understand the key practical considerations for both types of claim fully....
Dispute Resolution
PRACTICE NOTES
Negligent misstatement: disclaimers, UCTA reasonableness, contributory negligence, illegality, Misrepresentation Act options, limitation, director liability, financial mis-selling, public policy immunity, and defence strategy
Liability for negligent misstatement can, in various ways, be avoided and/or curtailed. For an explanation of how to found such a claim, see Practice Note: Negligent misstatement—founding a claim. For general guidance on clauses that seek to limit or exclude liability, consult the following Practice Notes:
Misrepresentations—excluding and limiting liability for them
Contractual estoppel
Contractual estoppel—illustrative cases
Disclaimers of liability for negligent misstatement
A disclaimer will be effective where the statement is coupled with wording that plainly signals an intention to disclaim. In Hedley Byrne v Heller, the defendants said their advice was provided 'without responsibility', which the court accepted as excluding what would otherwise have been negligence liability. The wording must be explicit and unequivocal; the court will not infer a disclaimer (see Box v Midland Bank [1981] 1 Lloyd’s Rep 434, not reported by LexisNexis®).
Third parties
The mere involvement of a third party will not, of itself, make it impracticable to disclaim liability...
Dispute Resolution
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