Tort Law 1 Flashcards
(113 cards)
1
Q
What is tort
A
A civil (as opposed to criminal) wrong which entitles the claimant to a remedy
Concerned with protecting persons rights
Claimant (injured person) sues Defendant (tortfeasor)
2
Q
Who can sue
A
Deceased (relatives)
Companies
Competent adults
Vulnerable adults
Children (litigation represented)
3
Q
Damnum sine injuria
A
Damage without wrongful act
4
Q
Damage scope
A
- Personal injury
- Property damage
- Economic loss
- Loss to reputation
- Not death
- Not grief/upset
- Damnum sine injuria
5
Q
Human rights act 1998
A
Direct claim possible against the State or public body for breach of these rights
Court also has duty to take rights into account when making decisions
6
Q
Limitation act 1980
A
- Personal injury claims
- Most other tort claims
- Children
- Claimants who lack capacity
7
Q
Aims and functions
A
- Compensation
- Fault
- Justice
- Deterrence
8
Q
Causes of cases
A
- Pollution
- Personal injury
- Invasion of privacy
- Defamation
- Incidents at work
- Medical errors
- Major incidents
- Global implications
9
Q
What is negligence
A
Carelessness
10
Q
ABC (DE) elements of negligence
A
D must owe C A legal duty of care
D must have Breached that duty
The breach must have Caused (resulted in) damage to C
Are there any Defences
Is there an Effective remedy
11
Q
A legal duty owed by D to C
A
Duty already established by prior case law
Court must decide as question of law if is new situation
12
Q
Breach of duty
A
D’s behaviour must fall below the standard of care expected by the law
What would the law expect of a reasonable person in D’s position?
13
Q
Breach must Cause damage (loss) to Claimant
A
Damage
C must suffer tangible harm recognised by the law
Breach must in fact cause C’s loss (factual causation)
Loss must not be too remote a consequence of D’s breach
14
Q
Defences
A
Complete defences such as consent
Partial defence of contributory negligence
15
Q
Effective remedy
A
To put C back into their pre-tort position - in so far as money can
Not intended to be a ‘windfall’
Fair and reasonable - not excessive
Justice/Deterrence?
Apologies
16
Q
Types of liability
A
Individual
Independent
Strict V Fault-based
Joint
Joint and several
Vicarious
17
Q
Individual liability
A
Single defendant responsible for whole of claimant’s loss
18
Q
Independent liability
A
More than one defendant
Each defendant causes different damage to claimant
Claims may be linked factually but claimant must sue all defendants to fully recover losses
19
Q
Joint liability
A
More than one defendant liable for same loss to claimant
Both defendants can be sued together
Either defendant can be sued for the total loss
20
Q
Possible scenarios for joint liability
A
D1 and D2 act together to commit tort
D1 and D2 act separately but C’s loss cannot be divided
D2 is vicariously liable for D1’s loss
21
Q
Joint and several liability
A
Joint defendants are jointly and severally liable to claimant
If D1 ad D2 jointly cause RTA in which C injured, C can sue
D1 alone
D2 alone
D1 and D2
22
Q
If C 100% sues D1 for RTA or smth like that
A
D1 must pay 100% compensation for C’s loss (even if not 100% to blame)
- D1 can then sue D2 for a contribution
Civil Liability Contribution Act 1978
23
Q
Vicarious liability
A
One person can be made liable for the tort of another
E.g. employer responsible for actions of employee if tort committed in course of employment
Relationship between tortfeasor and vicariously liable defendant likely to be akin to that of an employer/employee relationship
24
Q
Donoghue V Stevenson [1932]
A
Snail in beer case
25
Examples of relationship based general duties of care
- Road users (drivers, passengers and pedestrians)
- Dr to patient
- Solicitor to client
- Parent to child/teacher to pupil
- Rescuer to rescue
- Employer to employer (some special rules)
26
Specific duties subject to restrictions
- Duty to not cause psychiatric harm
- Negligent Misstatement and Economic Loss
- Duty owed by occupiers to visitors and trespassers
27
Novel situations
* Similar to existing precedent but new case distinguishable
- Is existing precedent close enough to apply as incremental step?
* New situation NOT previously considered by Courts at all
* Existing law says NO duty, new case seeks to challenge this (example – omission cases
28
Strict liability
In certain cases, defendants can be held liable without proof of negligence or intent to harm. This often applies in situations involving inherently dangerous activities or defective products
29
Omissions and actions of third party
Failing to act at all
Failing to act positively to prevent a third party affecting the claimant
30
Third party failing to act at all
Off-duty Dr sees man collapse in shop but does not intervene at all = omission
Contrast where Dr fails to check patient’s records when treating
31
Failing to act positively to prevent a third party affecting the claimant
D’s omission allows a third party to injure C
32
General rule
No duty to act positively for benefit of others
33
Exceptions from general rule
Alter perspective: could nonfeasance be misfeasance?
Is it truly an omission
D has degree of control over C or over third party
Assumption of responsibility by D for C
Where D has created or adopted a risk
34
Misfeasance
The act of engaging in an action or duty but failing to perform the duty correctly.
35
Nonfeasance
The willful failure to execute or perform an act or duty required by one's position, office, or law whereby that neglect results in harm or damage to a person or property
36
Foreseeability of harm
No foresight = no duty
Rarely an obstacle in cases as no need to foresee specific harm/circumstances
Test really asks – is C a ‘foreseeable victim’?
37
Proximity of relationship
Cases where D directly causes physical harm to C
Geographical closeness
Cases where D’s involvement is indirect or loss is not physical
- Has D ‘assumed responsibility’ for C?
- C must usually be singled out over and above rest of the public
38
S11 Civil Evidence Act 1968
Hearsay
Defendant’s conviction for a relevant criminal offence admissible as proof of breach in civil case unless the contrary is proven
39
Res ipsa loquitur
'The thing speaks for itself'
Refers to situations where the evidence is so clear it implies negligence without needing further proof
Suggests circumstances are sufficient to establish liability on their own
40
Res ipsa loquitur example
Scott V London and St Catherine’s Docks [1895]
- Heavy bag of sugar fell from a docked ship and injured Scott (passing by)
- Court held that circumstances surrounding the incident were such that it could be inferred that the dock operators were negligent without needing direct evidence of their actions
- Allowed the plaintiff to prove negligence through the circumstances of an incident rather than direct evidence
41
The reasonable person test
Negligence
'Negligence is the omission to do something that the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do'
42
Issues with reasonable person test
Who is the reasonable person?
What standard of behaviour will the law expect of the reasonable person?
Did the defendant fall below that standard so breaching his duty?
43
Reasonable person test types
Children
- Same age as defendant
Professing to have skill/experience
- Ordinary skilled person professing to exercise relevant skill
44
Standard of care
Reasonable person test
What behaviour does the court expect of the reasonable person in this situation?
The degree of caution and concern an ordinary person must exercise in their actions to avoid harming others
Helps determine whether a defendant's conduct was unreasonable or failed to meet the expected level of care
Likelihood of harm
Severity of potential harm
Degree and magnitude of risk
45
Social benefits of defendant's activity
Consideration of whether the activity that caused harm has a greater social value or benefit
May justify the taking of more risks than usual
46
The Bolam Test
Standard is what is accepted as proper by a responsible body of medical opinion
Merely because there is a body of opinion that takes a contrary view
47
Considerations to standard of care
How should it be determined where a duty of care arises from novel (new) facts?
Recognition of a duty of care may lead to conflicting duty relationships, with differing standards of care expected
A potential claim may involve more than one breach of duty
48
Duty of care with rescuers
If a person has been negligent, they owe a rescuer a duty of care
49
Causation questions
But for breach of duty, would loss have risen? (factual)
Is loss too remote to be recoverable? (legal)
Is there novus actus interveniens that breaks chain of causation? (intervening act)
50
When was but for test established for factual causation
Barnett v Chelsea & Kingston Hospital [1969]
- Arsenic poisoning case
- On facts ‘but for’ the breach patient would still have died
- Factual causation not proven
51
All or nothing approach to causation
More than one possible cause
- Can result in no person being recognised as the factual cause of C’s loss
52
Exceptions to relax strict application of but for test
* Industrial disease cases
* Material contribution
* Failure to inform
53
Traditional and current approach of legal causation
Remoteness
Traditional = Re Polemis [1921] direct consequence test
Current = Wagon Mound test
54
Problems defining the 'type' of harm
Similar in type approach = Hughes v Lord Advocate [1963]
- Provided harm similar to what is foreseeable irrelevant that it is more extensive or occurs through unforeseeable means
- How similar is similar?
* More modern approach = broad definition of ‘type of harm’
- Jolley v Sutton [2000]
55
Acts of the claimant
Causation
Later conduct of Claimant = NAI if wholly unreasonable in the circumstances
Suicide and other deliberate acts
56
Hypothetical claimant choices
Causation
What would claimant have done had there been no Breach?
If C’s conduct is NOT a NAI, it may still be evidence of contributory negligence
57
Contributory negligent statute
Contributory Negligence Act 1945
58
Actions of a third party
Causation
Later actions of a third party will be a NAI if wholly unforeseeable as a consequence of D’s breach
Instinctive reactions
Medical error (may not always b NAI)
59
How to evade liability in tort
Denial
- Preliminary issue
- Limitation
Defence
- Justifications – reasonableness
- Public policy
60
Defences in tort
Voluntary assumption of risk
- Volenti non fit injuria
Requirements
- Knowledge of risk
- Acceptance of risk
- S149 Road Traffic Act 1988
- Not for rescuers
61
What was the s1 Law Reform Contributory Negligence Act 1945
- ‘Where any person suffers damage [partly] as a result of his own fault .....the damages in respect thereof shall be reduced to such extent as the court thinks is just and equitable ...’
62
Failure to take reasonable care for own safety
Objective standard
Rescuers
Agony of moment
-C will not be penalised with the benefit of hindsight provided conduct reasonable when they acted
63
Contribution to fact or extent of loss
Fault must make difference
Contribution to fact C harmed
Contribution to extent of harm
64
Part 20 Civil Procedure Rules 1998
- Defendant seeks to involve a third party whom C hasn’t sued
- Defendant argues that liability for any compensation should be shared
- Civil Liability (Contribution) Act 1978
- Claimant may sue more than one defendant
65
Concluding a claim structure
*Resolution or Settlement?
*Offers
- Financial
- Rehabilitation
- Part 36, Civil Procedure Rules
*Alternative Dispute Resolution
- Mediation
- RTM
*Apologies
*Costs
66
Compensation - schedule of loss
Structure
*General Damages
- Injury
- PSLA
*Special Damages
- Past Losses – need evidence
- Future Losses
- Includes care, earnings, adaptations, accommodation
*Gratuitous Care
*Periodic Payments
67
Public bodies - justiciability
* Case may not be ‘justiciable’ at all
- Preliminary question
- Cases which concern a statutory discretion
- If justiciable courts then consider if DUTY arises
* Public policy considerations
- May mean not fair, just and reasonable to impose a duty
- Police cases
68
Blanket immunity post HRA 1998
* Special relationships: duty of confidentiality?
* May be an alternative claim under HRA
- Art 2 ECHR = must be a real and immediate threat to life of identifiable individual
* Does ‘blanket immunity’ affect right to a fair trial?
* Armed forces
* Emergency services
69
Vicarious liability
* Classically principle applied in employment context so employer (ER) is liable to C for tort of an employee (EE)
* Where VL applies to ER is jointly liable with EE so C can sue either or both oft them
* If ER compensation C, ER may seek indemnity from EE
70
Traditional requirements for vicarious liability
Must be tort committed by an EE
Commission of a tort by EE
Tort must be committed in course of EE’s employment
71
Must be tort committed by an EE
VL requirement
Employment relationship
Traditional approach confined VL to employment relationship
No VL for the actions of an Independent Contractor
Often clear that worker is an ‘employee’ (employed under a ‘contract of service’)
Test, in cases of doubt: Ready Mixed Concrete[1968]
72
Commission of a tort by EE
VL requirement
Can be any but cases commonly involve
o Negligence
o Assault and battery
o Harassment
73
Ready mixed test for VL
- Does worker agree to provide own work and skills in return for remuneration?
- Does worker agree to be subject to the other’s control to a sufficient degree?
- Can ER direct what EE does (not necessarily how)?
- Are other terms consistent with a contract of service? (inconsistent if worker must provide all own tools or take financial risk)
74
Modern more flexible approach to VL
Extended VL outside the employment relationship
Is it ‘fair just and reasonable’ to impose liability on defendant?
5 policy factors identified which would be relevant to this question
Nature of relationship between an individual and a defendant
Manner in which individual’s conduct is related to the above relationship
75
New terminology for VL
* ‘EE’ = tortfeasor (TF) akin to an employee
* ‘ER’ = vicariously liable defendant (VLD) akin to an employer
76
Stages of VL w new terminlogy
- Stage 1: Relationship between TF and VLD that is – or is akin to - an EE/ER relationship
- Stage 2: Tortious act committed by TF/EE in the course of ‘employment’
77
Why was new approach needed
Classical test doesn’t really help where EE used employment opportunity for acts of personal gratification (e.g. violence or sexual abuse)
78
Factual causation test
Barnett 'but for' test
79
Legal causation Wagon Mound no1 remoteness test
Is the type of harm suffered by the claimant a reasonably foreseeable consequence of the defendants breach of duty of care
80
Where is psychiatric illness medically recognised
DSM-V
ICD 10
81
Law Commission Report 1998 on psychiatric illness
‘The ordinary emotions of anxiety, fear, grief or transient shock are not conditions for which the law gives compensation’
82
What is CPH
Consequential psychiatric harm
* Psychiatric injury that is a consequence of a physical injury
- Subject to proof of factual and legal causation in negligence under normal principles
83
What is PPH
Pure psychiatric harm
No physical injury
Primary victim
Secondary victim
Property damage
84
Preconditions for duty to arise for psychiatric harm
* C must suffer from a medically recognised condition
* Psychiatric injury or
* Stress-induced physical condition, e.g. heart attack
* Normal emotions of grief and distress NOT sufficient (Vernon v Bosley [1997])
* Medical condition must have been caused by a sudden shock on the senses
85
PV and SV
Primary and secondary victim
* If pre-conditions satisfied C must then be classified as either a PV or SV
* Classifications are mutually exclusive
* Approach to DUTY of care differs depending on classification
86
PV
Primary victim
Participants
- Those in zone of physical danger
- Those who reasonably believe themselves to be so
- Test of duty of care for primary victims
87
Test of duty of care for primary victims
If personal injury reasonably foreseeable in circumstances then any duty for physical harm (i.e. Road users duty in Page) covers the psychiatric harm
Irrelevant that psychiatric harm may not be foreseeable
So no ‘control mechanisms’ for PV’s who are treated very favourably compared to SV’s
- C must witness with own unaided senses
C must witness accident OR immediate aftermath
88
SV
Secondary victims
Bystanders
Alcock test
89
Alcock test
Sets out duty of care t4est for SV
Known as Alcock control mechanisms
Psychiatric injury must be foreseeable in someone of normal fortitude
Reasonably foreseeable consequence
No longer needs to be horrific
Objectively assessed so modifies ‘egg-shell’ skull rule
Relationship of close love and affection between C and person actually involved
90
Key points from supreme court about psychiatric harm accident
Accident: refers to ‘an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means’
Affirms Alcock & Frost but restricts class of eligible claimants
Restrictions to duty of care owed by doctors/hospitals
Corrects ‘unfortunate wrong turn’ in interpretation of Alcock
Rejects notion that ‘accident’ witnessed by SV needs to be a particularly ‘horrifying event’ but reasonable foreseeability still important
91
Duty of care for self-inflicted injuries
No duty where defendant negligently self-inflicts harm which C witnesses
92
Position of duty of care for rescuers
- No special class of ‘primary victim’ – normal rules apply
- Rescuer = PV if they objectively expose themselves to physical danger or reasonably believe they are so doing
- Otherwise rescuer = SV and subject to Alcock test
93
Alcock test simplified
Recognised medical condition (illness) and sudden shock
Foreseeable to someone of normal fortitude
Close tie of love and affection
See it with own unaided eyes
94
Exception to Alcock test
Lord Nolan
Even if see without unaided eyes, live TV counts as watching it all happen in real time
95
What did Baker vs TE Hopkins state
Rescuer is not contributory negligent
96
Scope of the occupier's liability acts
(OLAs)
* Replace previous common law duties owed by occupier
* Cover ‘dangers due to the state of the premises and things done or omitted to be done on them’
* Due to the state of the premises:
- Something wrong with fabric or surface of the premises or land
97
What does OLA 1957 involve
About visitors
* A duty of care, s2(2)
- Occupier owes the common duty of care to all visitors
Covers personal injury and property damage
- Nature of the duty
To take such care is reasonable in all circumstances to ensure the visitor is reasonably safe in using premises for the purpose for which is invited/permitted to be there
- Not a duty to make premises safe
- Duty owed to the particular claimant (the visitor)
98
Breach of duty regarding
* Usual reasonable person test applies
* Standard of care takes into account all circumstances of the case
* Degree of care to be expected of the visitor – s2(3)
* Duty can be discharged by a warning – s2(4)(a)
99
Application of OLA 1984
* Risk must be due to the state of the premises
* D must know (or reasonable grounds to believe) non-visitor will be in vicinity of danger at the time they were injured
* It must be reasonable to expect D to offer C some protection from the risk
* Duty
100
Pure economic loss (PEL)
* Financial loss that is not consequential on damage to C’s person or property
Examples
Car hire following damage to vehicle in an accident
Loss of earnings caused by injury
101
Basic rule of PEL
No duty owed
102
Economic loss case examples
* Activity cases (damage to property or products)
* Negligent misstatement
* Cases involving wills
* References
* Professional service
* Wrongful Life Claims
103
Wrongful life claims examples
Healthy, much-loved child
Child born with significant disabilities
Hereditary disease
104
Exclusion of liability from UCTA 1977 s2
Exclusion of ‘business’ liability
VOID if loss is death or personal injury
Other loss valid only if reasonable to allow D to rely on exclusion in all circumstances of the case
105
Occupiers' liability flow chart
Identifying correct defendant
Is the claimant a visitor or a trespasser?
A duty of care
Breach of duty
Causation and defences
106
OLA acts
1957
1984
107
OLA 1957 visitor definition
s1(2)
All lawful visitors including invitees, licensees at common law and contractual visitors (s5)
108
OLA 1984 trespasser definition
s1(1)(a)
All on-visitors (usually trespassers)
109
OLA 1957 duty of care definition
Occupier owes a 'common duty of care' to all visitors simply by virtue of the fact that they are visitors s2(1)
110
OLA 1984 duty of care definition
Occupier only owes a duty (defined in s1(4)) if
(1) aware of danger (or has reasonable grounds to believe it exists) and
(2) knows (or has reasonable grounds to believe) a non-visitor is (or may be) in vicinity of danger; and
(3) the risk is one in all circumstances the occupier may be reasonably expected to protect against (s1(3))
111
Premises definition OLA 1957
Any fixed or moveable structured including vehicles s1(3)
112
OLA 1957 breach of duty
s2(2) Duty to keep the visitor reasonably safe not to keep premises safe
s2(3)(a) Greater care expected if visitor vulnerable/child
s2(3)(b) Skilled visitors expected to take care of self to some degree
s2(4) Warnings may satisfy standard of care
113
