Tort Law Flashcards
(38 cards)
What is a prerequisite for a duty of care?
A sufficiently proximate relationship between the claimant and the defendant.
Why is there not a duty of care if a claimant suffered pure economic loss or pure psychiatric harm?
There is not a sufficiently proximate relationship.
What does a claimant need to show in order to recover compensation for their pure psychiatric harm?
That they are in the class of closely affected victims.
It is not enough to show that the defendant was negligent and that his negligence was the cause of their psychiatric harm.
What is pure psychiatric harm?
It is psychiatric harm suffered without physical impact.
What are the instances where a claimant can obtain a remedy for pure psychiatric harm?
Where a claimant has suffered pure psychiatric harm - i.e. without physical impact - the injury must be:
- caused by a sudden shock; and either
- a medically recognised psychiatric illness; or
- a shock-induced physical condition (such as a miscarriage or heart attack).
What does the ‘sudden shock’ requirement mean in claiming pure psychiatric harm?
It means that there is no duty of care in relation to harm caused by a gradual build-up of event. E.g. this rules out depression caused by caring for an injured relative (employer-employee relationship different).
How can a primary victim claim damage for psychiatric harm?
A primary victim is someone who was actually involved in the incident. So, a primary victim:
- was in the actual area of danger; or
- reasonably believed that he was in danger.
The requirements for a duty of care to be owed to a primary victim are:
- primary victims are owed a duty of care in relation to their psychiatric harm, provided the risk of physical injury was foreseeable;
- for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.
How can a secondary victim claim damages for pure psychiatric harm?
A secondary victim is someone who is not involved in the incident in the same way. So a secondary victim:
- witnesses injury to someone else; or
- fears for the safety of another person.
In order to be owed a duty of care, the secondary victim must have suffered a medically recognised psychiatric illness, or shock-induced physical condition, caused by sudden shock.
Also, all of the following requirements must be satisfied:
- foreseeability of psychiatric harm
- proximity of relationship (between primary and secondary victim)
- proximity in time and space
- proximity of perception
These are known as the ‘Alcock control mechanisms’.
What is the position re rescuers with regards to claiming damages for pure psychiatric harm?
Rescuers (and those acting in the course of their employment) should be treated in the same way as any other victim who suffers only pure psychiatric harm. I.e. they are a primary or a secondary victim.
Regarding secondary victim, being in a rescue situation would mean that the two tests of proximity in time and space and proximity of perception are met. Unlikely that they will have ties of love and affection though. So, proximity of relationship unlikely to be met.
When is damage too remote?
Damage is too remote if it is not a reasonably foreseeable consequence of the defendant’s negligence. However, a proviso to this requirement is the ‘egg-shell skull’ rule, i.e. some damage of some kind was foreseeable.
What are the two potential areas of liability in tort for the employer?
Primary liability in negligence for breach of the personal duty an employer owes to every employee.
Secondary liability under the principle of vicarious liability for the torts of employees committed in the course of their employment.
What is the duty owed by employers?
The duty to take reasonable care of its employees’ safety while at work.
The duties are to take reasonable steps to provide:
- competent staff;
- adequate material (i.e. plant, equipment and machinery);
- a proper system of work and supervision; and
- a safe place of work.
This is personal to the employer. They cannot escape liability by saying they delegated its performance to someone else. Non-delegable duty.
Can stress at work make an employer liable?
Yes - the duty to provide a safe system of work can extend to an employee who has suffered stress as a result of his work.
The threshold question:
- the nature and extent of the work done by the employee (e.g. was it obviously too demanding)
- signs from the employee (employer is generally entitled to assume an employee was up to the normal pressures of the job)
When will an employer be in breach of its duty?
If it fails to meet the standard of care to be expected of a reasonable employer in its position.
What is the main defence for an employer in a negligence case?
Consent (voluntary assumption of risk) and contributory negligence.
What does a defendant need to establish for the defence of consent to succeed?
- That the claimant had full knowledge of the nature and the extent of the risk.
- That the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence.
What does ‘sciens is not volens’ mean with regards to defence of consent to torts?
Knowledge is not consent.
What does s149 Road Traffic Act 1988 deal with?
It is a statutory provision dealing with the defence of consent in the case of motor vehicles.
Its effect is that any acceptance of risk by the passenger is invalid. The defence of consent cannot be relied on.
Are rescuers acting consentially?
No - they are usually acting under a moral compulsion.
Rescuers will not be considered to have consented to the risk of injury if:
- they were acting to rescue persons or property endangered by the defendant’s negligence; and
- they were acting under a compelling legal, social or moral duty; and
- their conduct in all the circumstances was reasonable and a natural and a probable consequence of the defendant’s negligence.
What is contributory negligence?
Comprises of two elements:
- carelessness on the claimant’s part
- that carelessness has contributed to the claimant’s damage
What is the effect of contributory negligence?
The claimant’s damages are to be reduced.
The court will first calculate the full amount of damages which would have been payable had it not been for the claimant’s contributory negligence.
Then it will make an appropriate reduction:
- to such extent as the court thinks just and equitable;
- having regard to the claimant’s share in the responsibility for the damage.
Case law shows they assess culpability and causation (who caused the damage - not the accident).
Whats the reduction on damages if failure to wear a seatbelt is the cause of contributory negligence?
If no damages would have occurred with seatbelt - 25%
If less severe injuries - 15%
If no difference - 0%
What is the test for contributory negligence?
Whether the claimant has failed to take reasonable care for their own safety.
That of a reasonable person (of that age).
What does ‘ex turpi causa non oritur actio’ mean?
No action arises from a disgraceful cause.
For the defence of illegality to succeed there must be a very close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy.
