Principles, Tests and mistakes Flashcards
what are the other types of claimants in a psychiatric harm situation?
- guilt ridden claimant
- AOR : stress at work
- Self-harm
- Rescuers
- communication of shocking news
- fear of the future
Foreseeability - proximity - policy
joint and severable liability
When two or more tortfeasors combine to create a loss (as in Fitzgerald), the Civil Liability (Contribution) Act 1978 provides in ss 1 and 2 that a person made liable in respect of any damage suffered by another person could recover a contribution from any other tortfeasor to the extent that the court finds just and equitable, taking into account each party’s blameworthiness.
Facts of Fitzgerald: The claimant was crossing the road and was struck by car 1 and then by car 2, causing the claimant to suffer a neck injury. It could not be determined which car was responsible/caused the damage because both incidents happened so soon after each other. Therfore Ds were jointly and severally liable
What does McBride think about the Supreme Court reasoning in TIndall?
‘To give rise to a duty of care, it would be sufficient that the activity of the
police as a whole created a danger, i.e. that the activity of the police as a whole created an
unreasonable and reasonably foreseeable risk of physical harm to the victim.’ But this gets
things twisted up the wrong way – one can only say that ‘their activity as a whole’ created ‘an
unreasonable and reasonably foreseeable risk of physical harm’ to Bird and Tindall if you
include in that activity their inaction after they saw Kendall off to hospital. But the police will
have owed a duty of care to Bird and Tindall (if they owed them a duty at all) before they failed
to do anything to clear up the danger posed by the black ice on the road. What generates the
police’s duty of care cannot include their inaction after seeing Kendall off because the police
are being sued for that inaction – it is that inaction that the claimants have to establish is
wrongful (= in breach of a duty of care, not establishing a duty of care) in order to sue the
police.
Are the actions under the Fatal Accidents Act 1976 susceptible to defences?
YES. (b) Action by dependants of deceased suing in their own names, but note that their action is derivative, so defences available against the deceased are available against the dependant’s claim
do doctors and social services owe a duty of care in investigationg abuse?
NO - JD v East Berkshire Community Health NHS Trus
can you recover under the PHA if fall short of recognised psychiatric illness?
Yes.
Which case was applied in Darnley to find a duty of care?
Barnett v Kensington and Chelsea Hospital
For what kinds of damage is compensation not available under the Consumer protection Act 1957?
For what kinds of damage is compensation not available?
According to s 5, compensation is not available for:
loss or damage to the product itself (this would be pure economic loss). This will be interpreted in favour of the claimant—EU jurisprudence indicated that the cost of surgery to discard and replace a defective medical implant would be covered by the CPA 1987;
loss or damage to property not ordinarily intended for private use, occupation, or consumption and intended by the claimant for that purpose;
loss or damage to property totalling less than £275.
How has the new Product Liability directive improved the current framework?
- it is fit for the new digital age : 3D printing, AI, softwares
- includes destruction and death of data as actionable damages
- Online plateforms can now be held liable
How is the discoverability defence to be interpreted ?
In European Commission v United Kingdom (C-300/95) [1997] All ER (EC) 481, the CJEU noted that the knowledge referred to must be scientific and technical knowledge (i.e. not the practices and safety standards in the industrial sector in which the producer was operating)
In which case did the court, reiterate the importance of causation in the CPA?
The CPA does not cover PEL.
The courd said it in Hastings s 2(1) of the Act
Where a claimant’s case is based upon a defect causing an increased risk of harm, there is a debate as to what precisely the claimant has to prove. The case of XYZ v Schering Health Care Limited [2002] EWHC 1420 (QB) (concerning oral contraceptives) suggested that in such cases a claimant is required to prove that the risk of the adverse event had more than doubled. However, in Sienkiewicz v Greif [2011] UKSC 10, in obiter comments, the members of the Supreme
Court took very different views as to the appropriateness of the doubling of the risk test, and whether further evidence, beyond the risk identified by the epidemiological evidence, is necessary. A different approach (not without its conceptual difficulties) is to say that the court, having been satisfied that the level of safety was less than it ought to be, should find causation proved on the basis of material contribution (relying for example on cases such as Fairchild v Glenhaven Funeral Services Limited [2002] UKHL 22).
This was specifically left open in Wilkes [137] and Gee [186].
Standard v Non-standard products
some products are inherently dangeroous and does not mean that they are defective (a sharp knife, a hot coffee - bogle-)
Burton J in A v NBA had appeared to suggest that a ‘risk- benefit’ (or risk-utility) analysis was not relevant to the CPA. However, both
Hickinbottom J in Wilkes and Andrews J in Gee considered the questions of risk-benefit,14 avoidability,15 and cost as potentially
relevant considerations. => hollistic approach
