Tort Flashcards

Question

Duty of care and policy

Answer 1

- Floodgates - if one case succeeds, it will open hundreds of similar cases - Deterrence - courts fell in order to deter other, they should rule for C - Resources - aware that damages often funded by insurers, who will potentially raise premiums. Additionally, if D has no insurance. - Public benefit - beneift to the public as a result of the decision - Upholding the law - uphold legal rules despite public criticism.

Answer 2

where harm caused: * by public body (eg local authority, police - see police cases) * by omission to act * general rule - no liability for omissions (*Stovin v Wise* [1996] - highway authority knew junction was dangerous but did nothing) * exeption: D has special relationship with C (*Home Office v Dorset Yacht Co Ltd*) - see Positive Acts * is pure psychiatic injury is pure economic loss

Answer 3

**if acted but not obligated**: * East Suffolk Rivers Catchment Board v Kent and another* [1940] - C's land flooded and D, though not obligated repaired wall but it took a long time to repair, during which C's land remained flooded. - \> HoL held no liability in tort, even if careless (_unless you make matters worse_) - guilty of omission. - \> same argument for rescuers **Occasions where there is a duty to act positively**: * -if a person has some sort of power or control over the other person or object (special relationship: eg employer employee, parent child, etc may also have duty to take positive action to prevent harm being caused to third parties (eg driving teacher) - *Home Office v Dorset Yacht Co Ltd* [1970] - HoL held was duty of care because they should have seen harm to yacht when officers failed to supervise boys with criminal records. Officers had control over the boys. (Better to sue Home Office than boys (£)) - *Smith v Littlewoods Organisation Ltd* [1987] - HoL held no duty owed. Too wide if occupier held responsible for damaged caused by 3rd party (vandals) to neighbor's property, when he had no control over 3rd party. Vandals started fire in D's property which spread to C's. - *Carmarthenshire County Council v Lewis* [1955] - After 4 year old strayed into street, driver swerved and died trying not to hit it. C (wife) sued council who ran nursery. Hold authority owed duty to prevent child harming third parties

Answer 4

C must show D must be at fault by failing to come up to the standard required by law for fulfilling the duty. * How D ought, in the circumstances, to have behaved (_standard of care_, question of law) * Did D's conduct _fall below the required standard_ (question of fact) Standard of Care: *Blyth v Birmingham Waterworks* (1856) - D must meet the standard of the _reasonable person_ (objective test).

Answer 5

Standard of Care *Blyth v Birmingham Waterworks* (1856) - D must meet the standard of the _reasonable person_. Ordinary reasonable person test (_objective test_) - in D's position (eg skilled, child, disabled) **Skilled:** - *Bolam v Friern Hospital Management Committee* [1957] - same degree of skill as a reasonable doctor (applies to all special skills) - \> supported by a reasonable body of porfessional opinion - not negligent - *Bolitho v City and Hackney Health Authority* [1997] - in some cases it cannot be demonstrated that the body of opinion relied on is reasonable or responsible. Court could still find negligent. **Under-skilled:** * Wells v Cooper* [1958] - even for odd jobs, a certain minimum level of skill expected (eg reasonably competent amatuer capenter). If out of depth, negligent for trying. * Nettleship v Weston* [1971] - learner driver must reach the standard of the reasonably competent driver. * Wilsher v Essex Health Authority* [1987] - a junior doctor on his first day must come up to the standard of a reasonable doctor. He should call for assistance when necessary (as in this case). If D presents himself a a specialist, he will be expected to meet that higher standard. **Children:** Mullin v Richards [1998] - standard of care expected is ordinary child of same age. (only age adjusted not maturity) The younger the less likely able to foresee harm.

Answer 6

Risk created by D vs precautions D ought reasonably to have taken in response **Magnitude of risk:** _Likelihood_ and _impact:_ the higher, the more precautions required * Bolton v Stone* [1951] - only six cricket balls out of the ground in 28 years with no injury (not likely) * Miller v Jackson* [1977] - cricket balls hit out of ground eight or nine times per season, damaging C's property on several occasions (more likely) * Paris v Stepney Borough Council* [1951] - D knew C blind in one eye, so injury to the other much more serious impact for not wearing goggles. (higher impact) **Precautions:** Cost/practicability: low cost of implementation or highly practical, more likely breached duty. The greater the risk of injury, the less weight attached to cost of eliminating risk. *Latimer v AEC Ltd* [1953] - D's decision not to close down section of factory reasonable given small risk high cost of closure. **Defendant's Purpose:** If D's behavior is in the public interest, less likely liable for negligence *Watt v Hertfordshire County Council* [1954] - if human life at stake, D may be justified in taking abnormal risks. However, D can still be liable for taking undue risks (eg running traffic light) **Common Practice:** D may escape liability if they can show they complied with accepted practice in trade/profession. (*Bolam*) *Re The Herald of Freee Enterprise* (1987) - common practice of setting sail without checking doors was negligent, though common practice. **Current State of Knowledge:** *Roe v Ministry of Health* [1954] - whether risk of injury foreseeable must be judged in light of the knowledge available at the time of the event.

Answer 7

*Fordon v Harcourt-Rivington* [1932] - D left dog in car and the dog broke window. C blinded by shard of glass. =\> _fantastic probability_ - D not liable Exception: *Carmarthenshire CC v Lewis* [1955] - still reasonable possibility though unlikely (4 year old caused driver to swerve) * Mansfield v Weetabix* [1998] - _sudden impairment_ - not liable if no knowledge of impairment. * Waugh v James K Allen* [1964] - driver with sudden heart attack not liable if no knowledge

Answer 8

_C must prove on balance of probabilities_ \*Usually use witnesses **Res Ipsa Loquitur** (the thing speaks for itself): inference of negligence based on circumstances of damages *Scott v London and St Katherine Docks Co* (1865) - C injured by sugar walking under hoist of D's warehouse. No witnesses. Three conditions must be met: * the thing causing damage under control of D or 3rd party D is responsible for * accident must be such as would not normally happen without negligence * the cause of the accident is unknown to C - C has no direct evidence of any failure by D to exercise reasonable care. Raises prima facie inference of negligence against D who must provide reasonable explanation of how it occurred without negligence. D can show: * how the accident actually happened, not due to negligence or * though he doesn't know how it happened, he had at all times used reasonable care. **Civil Evidence Act 1968 (s11):** If D is convicted of the criminal offence, it is presumed to have committed the civil offence. (evidence careless conduct did take place)

Answer 9

Burden on C to prove causal link between breach and loss. - Causation in Fact * But for test * modified tests: material contribution/increase in risk * where more than one cause: * divisible - will be apportioned * not divisible - can obtain in full from any D based on CL(C) A 1978 * consecutive injury - difficult to establish but will be proportional - No intervening Acts * actions of a 3rd party * actions of C - Damage not too remote * basic rule * similar in type rule * egg shell skull rule - No defences * voluntary assumption of risk * excluding liability * contributory negligence * defending * contribution between tortfeasors

Answer 10

**But for:** *Barnett v Chelsea & Kensington Hospital Management Committee* [1969] - Breach of hospital not actual cause of death (arsenic was) and hopital could not prevent death But for D's breach, would harm have occurred? =\> Yes, no causation **All or nothing:** *Hotson v East Berkshire AHA* [1987] - fell from tree and medically treated negligently. =\> 75% chance of the same result despite treatment -\> did not satisfy balance of probabilities * Wilsher v Essex AHA* [1988] - possible 5 causes for blindness of baby. - \> causation difficult to establish and C did not (retrial on question of causation) **Material contribution:** several causes together created harm * Bonnington Castings Ltd v Wardlaw* [1956] - exposure to unmaintained equipment. Disease caused by 2 factors (unmaintained equipment (negl) and hammer dust (not negl)). Only needed to show that D's breach materially contributed to harm -\> succeeded in claim. * McGhee v National Coal Board* [1973] - exposed to dust. Two causes of disease: during work day (not negl); after work on journey home (no washing facilities - negl). C could not show specifically which cause but HoL held that C did not need to show which only that D's negligence materially increased risk of harm. **Proportional damages:** * Holtby v Brigham & Cowan (Hull) Ltd* [2000] - asbestos exposure over the years through various employers. Brought suit against one who argued he should only be responsible for a portion. Court agreed. - \> C would need to sue all to get full damages, only apportioned as it was over time. **Contribution between tortfeasors:** _Civil Liability (Contribution) Act 1978 ss1(1) & 2(1)_ - Gives court power to apportion damage between tortfeasors according to share of responsibility for damaage - Does not affect amount of damages recovered by C: - \> can obtain full damages from one only (unlike Holtby) * Fairchild v Glenhaven Funeral Services Ltd* [2003] - different employer over time exposure to asbestos; ruled all jointly liable * Barker v Corus UK Ltd [*2006] - HoL held only liable for proportion of the damages **C injured more than once:** - injuries impact on each other * Performance Cars v Abraham* [1962] - car damaged in area already damaged. D only liable to extent damage worse. * Rahman v Area Rose Ltd* [2001] - in attach employer negligent causing physical injuries. Then hospital negligently treats C causing blindness in one eye. Also continuing psychiatric injury. Court held Employer liable for origial injuries, hospital for blindness, both for psych issues (proportionate damages).

Answer 11

Novus actus interveniens (new intervening act) **Actions of a 3rd party:** Broad rule - chain of causation is unlikely to be broken by an action which D ought to have foreseen as a likely consequence of his negligence (eg medical negl unlikely to break chain) * Scott v Shepherd* (1773) - threw lit firework nto crowd and others threw it away from themselves as an _instinctive reaction_ =\> this _did not break chain of causation_ * Knightley v Johns* [1982] - D's negligent driving blocked exit of tunnel. Police ordered constale to drive against traffic to close it and constable was hit/injured. D not liable as he could not foresee acts of police =\> chain broken * Rouse v Squires* [1973] - lorry driver jack-knifed and blocked 2 lanes and a car hit the lorry. Another car stopped to help and a 3rd lorry negligently hit other vehicles. Held both lorries liable (both with material contribution) =\> chain not broken because 1st could have foreseen. * Lamb v Camden London Borough Council* [1981] - Squatters damaged C's house but borough not held liable. * Stansbie v Troman* [1948] - D decorating houe and left for 2 hours. Told by C to ensure it was closed before he left. A thief came and stole jewelry. D liable as he had impliedly agreed to take reasonable care =\> chain not broken **Actions of claimant:** C's act must be unreasonable to break chain. * McKew v Holland & Hannen & Cubitts* (Scotland) Ltd [1969] - D's negl weakened C's leg. C fell and further injured. HoL held C acted _unreasonably_ =\> chain broken * Wieland v Cyril Lord Carpets Ltd* [1969] - C injured neck due to D's negl. Neck collar made it hard to use glasses and C fell down stairs. Held chain not broken - C acted reasonably.

Answer 12

**Basic Rule: ** * Overseas Tankship (UK) Ltd v Morts Dock & Engineerin Co Ltd, (_The Wagon Mound_) (No 1)* [1961] (Privy council) - operated ship and employee negl allowed oil spill which ignited as C continued to weld. _Held test for remoteness is reasonable foreseeability_ and this was not reasonably foreseeable. * Cunningham v Reading FC* [1992] - a football club was liable for not taking steps to ensure that pieces of the concrete could not be ripped up and thrown at people. Held should have foreseen violence of football fans. **Similar in Type Rule:** * Hughes v Lord Advocate* [1963] - D's employees left lamps unattended, which caused an explosion. Held that burning was foreseeable but not explosion. However, the result was similar in type, thus D held liable. * Tremain v Pike* [1969] - C worked on D's farm. C caught disease from rats. Injury not foreseeable (maybe rat bites but not disease). Held no damages =\> unusual/unexpected. * Jolley v Sutton* [2002] - Child played with jack on a boat, which fell on him and broke his back. C liable as it was foreseeable that children would emulate adults as play. **Egg Shell Skull Rule:** 'you take victim as you find him' =\> liable for full extent of harm, even if precise extent of damage not foreseeable. *Robinson v Post Office* [1974] - C had injuries to leg from D's negl. Doctor gave anti-tetanus shot causing an allergic reaction. C received damages for both injuries from D. =\> Medical treatment foreseeable as result of injury and D liable for consequences, those these not foreseeable.

Answer 13

- voluntary assumption of risk - illegality - excluding liability - contributory negligence - defending

Answer 14

*Nettleship v Weston* [1971] - D must establish that C: a. had full _knowledge_ of both the _nature & extent_ of risk, not just that there was some risk b. willingly _consented_ to accept risk Consent: - knowledge is not consent (sciens is not volens) * Dann v Hamilton* [1939] - Drunk driver where C was passenger. C knew D was drunk but held knowledge was not sufficient to imply consent. Later, _Road Traffic Act 1988 s149_ =\> defence of voluntary assumption of risk is never valid, specifically related to motor vehicles. * Morris v Murray* [1990] - pilot obviously glaringly drunk. C was held to have accepted the risk. - \> Employer/Employee: Defence rarely works with employers * No real freedom of choice * Risk of losing job * Other work pressures * *Smith v Baker* [1891] - load of stones dropped on C. Held C knew risk but didn't consent. =\> Rescuers: Act under moral compulsion. Not voluntary assumption if: * Acting to resue persons/property endangered by D's negl, and * Acting under compelling legal, social, moral duty, and * conduct was reasonable and natural and probable consequence of D's negligence. * *Haynes v Harwood* [1935] - policeman injured while rescuing - acted under complusion and not voluntary assumption Rules on resucuers apply equally to professional and lay rescuers

Answer 15

ex turpi causa non oritur actio (no action arises from a disgraceful cause) If C involved in illegal enterprise at time of injury, no liability. Must be a close connection between illegal act of C and injury, so that damage directly caused by illegal act in such a way contrary to public policy to allow remedy. * Ashton v Turner* [1981] - C escaping from burglary and D's negl driving caused C injury. Defence of illegality upheld. * Pitts v Hunt* [1990] (authority) - reckless driving causes C injuries. Not possible to determine appropriate standard of care for criminal. Inherent part of joint criminal enterprise.

Answer 16

Through clauses/notices =\> eg 'no liability is accepted for any loss'

Answer 17

Partial defence - C must be careless and this contributes to damage - Only C can be contributorily negligent. _Law Reform (Contributory Negligence) Act 1945 s 1(1)_ Damage partly own fault and partly of another -\> claim can't be automatically defeated but damages reduced based on what court thinks is equitable From case law -\> _culpability_/relative blameworthiness; extent of C's _cause_ of damage. C needs to contribute to damage, not necessarily accident itself. *Reeves v Metropolitan Police Commissioner* [1999] - C sued as a prisoner hanged himself in police custody. Prisoner deemed 50% to blame, so 50% of damages recoverable _Vehicles:_ *Froom v Butcher* [1975] - lack of seatbelt = contributory negligence. Likely reductions: * 25% reduction if C had injuries that would have been avoided with seatbelt * 15% if injuries would have been less severe * 0% if seat belt would've made no difference. * Capps v Miller* [1989] - same reductions for seatbelts as helmets * Cowens v Brimmell* [1997] - if passenger gets into car with drunk driver, damages will be reduced, even if passenger drunk. Self-intoxication no excuse _C's Behavior:_ If C fails to take reaonsable care for his own safety - _measured against ordinary reasonable person_ in same classification _Children:_ Can be contributorily negligent. The older the more likely, though measured agains ordinary child of C's age. Child not identified with negligence of parents. *Gough v Thorne* [1966] - 13 year old stepped out in road past lorry, so car did not see. Child blameworthy, as reasonably expected to take precautions. _Rescuers:_ *Baker v TE Hopkins & Son Ltd* [1959] - rescuer judged against standard of reasonable rescuer, with an allowance made for emergency situations. Contributorily negligent only if rescuer had _wholly unreasonable_ disregard for his own safety (rare). _Dilemma:_ Injured trying to save himself due to situation caused by D's negligence. * Jones v Boyce* [1814-23] - Found action of C to save himself was reasonable, even thoug, with hindsight there may have been a better alternative. * Sayers v Harlow UDC* [1958] - C trapped in public WC and tried to climb out and fell (weight on toiletpaper holder). Court found contributory negligence =\> method of escape unreasonable. _Workers:_ Failure to follow instructions, use safety equipment may amount to contrib. negl. Worker must have been careless given circumstances.

Answer 18

* Corr v IBC Vehicles Ltd* [2008] - D caued injury to employee which led to suicide. D argued against liability for the suicide, as it was not foreseeable and too remote and that suicide was intervening act. D also argued that suicide was a voluntary act and contributory. All arguments failed. * Gray v Thames Trains Ltd* [2009] - C injured in rail crash and had PTSD, then stabbed stranger to death (personality change). D argued not liable for killing. C sued for future earning, damages for conviction and future claims from victims family. D argued illegality for add'l earnings, conviction, future lawsuits. D's illegality argument succeeded. * St George v Home Office* [2008] - C was prisoner with drug issues and withdrawal induced seizures. He told officers but was put on top bunk. He fell 7-8 feet due to seizure and had head wound. Court held C at fault for becoming addicted but fault was too far removed from accident and true cause was D's negligence. Even though at fault, not just/equitable to reduce damages.