Tort Law

Question 1

what is the definition of vicarious liability?

Answer 1

Where a third person has legal responsibility for the unlawful actions of another. It is commonly seen in the workplace where the employer is responsible for the actions of his or her employee, who acted in the course of his or her employement.

Question 2

what is the first sentence of the psychiatric scaffold?

Answer 2

Recognised psychiatric illness that can be independently verified on the basis of medical evidence.

Question 3

when does psychiatric illness usually occur?

Answer 3

when V witness something outside of the normal range of human experiences

Question 4

what did Reilly v Merseyside establish?

Answer 4

physical symptoms of fear and panic such as sweating and breathing difficulties are not sufficient to psychiatric injury

Question 5

what did Hinz v berry establish?

Answer 5

feeling of grief and sorrow are not sufficient to psychiatric injury

Question 6

what is a primary victim?
(there are 2 types):
1. those who are directly involved and in the zone of danger
2. rescuers

Answer 6

Primary victims are defined as those who are directly affected by the negligent act or omission and suffer psychiatric injury.

Question 7

what happened in Dulieu v White?

Answer 7

the claimant was successful as the claimant was directly involved and in the zone of danger

Question 8

what happened in page v smith?

Answer 8

the claimant was successful because she was involved in the incident and was at risk themselves as they were in the zone of danger

Question 9

what are rescuers defined as?
(primary victims)

Answer 9

Rescuers are defined as those who give assistance to those in danger and are also treated as a primary victim if he puts himself at risk

Question 10

what happened in white v chief constable of south yorkshire?

Answer 10

the police were unable to claim as rescuers as they were not directly involved in the incident

Question 11

what happened in hale v london?

Answer 11

underground the firefighter was able to claim as he voluntarily went back in to help and therefore was in the zone of
danger

Question 12

what are secondary victims?

Answer 12

those able to show close enough ties of love and affection to the victim of the incident and witness the incident or its immediate aftermath

Question 13

what case establishes the criteria of a secondary victim?

Answer 13

Alcock

Question 14

what must be established to claim as a secondary victim for psychiatric illness?
(3 things)

Answer 14

1. must be established that the claimant has close ties of love and affection with the victim. It must be reasonably foreseeable that they would suffer psychiatric harm (Mcloughin v o’brian)
2. it must be proven that the C witnessed the event or the immediate aftermath (Mcloughin v o’brian)
3. must be proven that they learned of the event with their own unaided senses

Question 15

what does bourhill v young establish?
(psych ill)

Answer 15

a bystander can not claim, unless they witnessed something truly and unimanagebly tragic (Alcock)

Question 16

psychiatric illness scaffold

Answer 16

Recognised psychiatric illness that can be independently verified on the basis of medical evidence. This usually occurs when they witness something outside of the normal range of human experiences. In reilly v merseyside physical symptoms of fear and panic such as sweating and breathing difficulties were not sufficient to psychiatric injury. In hinz v berry feelings of grief and sorrow do not account for psychiatric injury.

In this scenario the claimant suffered psychiatric injury when…

In order for the claimant to be successful, they must be either a primary or a secondary victim. Primary victims are defined as those who are directly affected by the negligent act or omission and suffer psychiatric injury. There are 2 types of primary victims, those directly involved and rescuers. In dulieu v white the claimant was successful as the claimant was directly involved and in the zone of danger. Also in page v smith the claimant was successful because she was involved in the incident and was at risk themselves as they were in the zone of danger.

Rescuers are defined as those who give assistance to those in danger and are also treated as a primary victim if he puts himself at risk. In white v chief constable of south yorkshire the police were unable to claim as rescuers as they were not directly involved in the incident. Whereas in hale v london underground the firefighter was able to claim as he voluntarily went back in to help and therefore was in the zone of
danger.

In this scenario…

Secondary victims are able to show close enough ties of love and affection to the victim of the incident and witness the incident or its immediate aftermath. The criteria for secondary victims is strict and outlined in alcock. Firstly it must be established that the claimant has close ties of love and affection with the victim. It must be reasonably foreseeable that they would suffer psychiatric harm for example a parent child or spouse (mcloughlin v o’brian). A bystander is not able to claim as in bourhill v young. However if the bystander witnessed something truly and unimaginably tragic they may have a claim as in alcock.

In this scenario…

Secondly it must be proven that the claimant witnessed the event or the immediate aftermath. In mcloughlin v o’brian the claimant arrived at the hospital to a scene that
was reminiscent of the accident that was deemed the immediate aftermath. Taylorson - not immediate aftermath as it was disconnected from the accident. Atkinson - it was the immediate aftermath as the victim’s body resembled the accident.

In this scenario the claimant witnessed the immediate aftermath when…

Thirdly it must be proven that they learned of the event with their own unaided senses this means that they must not have learnt of the event via the TV or telephone but must have seen or heard it first hand.

In this scenario…

therefore, D could claim for psychiatric injury

Question 17

Damage scaffold

Answer 17

There are two rules of causation that must be satisfied for the defendant to be liable for negligence. It must be proven that D has caused the C’s damage. In order to prove factual causation, the ‘But for’ test is used as in Barnett v Chelsea and Mensington hospitals where ‘but for’ the hospitals actions… therefore they were/ were not the factual cause.
In this scenario…
In order to prove legal causation, it must be proven that the damage done was not far remote. The test for this is that the damage must be a reasonably foreseeable consequence of the D’s actions. This was shown in the Wagon mound.
In this scenario…
Therefore, D is/ is not the legal cause.

Question 18

what are some examples of damages in negligence?

Answer 18

• car accident
• misdiagnoses
  -delayed diagnosis
  -surgical errors

Question 19

what case is used with ‘but for’
(negligence)

Answer 19

Barnett

Question 20

how do you prove legal causation for damages (negligence)?

Answer 20

must be proven that the damage was not too far remote

Question 21

duty of care scaffold

Answer 21

C could claim for negligence, against D for the damages caused to C.
First it must be established that a duty of care is owed to C. As in the case of Robinson v Chief Constable of West Yorkshire (2018), if an already established duty of care exists the court should follow this precedent and in cases where the court has not considered whether a duty of care exists, the court will consider the closest analogy. As a duty of care already exists in the case of [insert case], the three stage Caparo test does not apply. Therefore [insert defendant] owes [insert claimant] a duty of care. The issue of proximity has been established by following the case of [insert case]. Finally the harm must be reasonably foreseeable, in this scenario it is reasonably foreseeable that [apply] ……..(Kent v Griffiths).

Below is a list of cases where you could make links:

Ambulance Staff: Kent v Griffiths
Children: Mullin v Richards
Doctors: Bolam
Drivers/Road Users: Nettleship v Weston
Employers: Paris v Stepney Borough Council
Firemen: Watt v Hertfordshire CC
Manufacturers/Consumers : Donoghue v Stevenson
Police Officers: Robinson v CC of West Yorkshire
Property Owners: Miller v Jackson
Transportation (shipping etc):The Wagon mound
Workmen: Haley v London Electrical Board

Analogy links:

Learners in a skilled role owe a duty: Nettleship v Weston
Professionals in a skilled role: Bolam

Question 22

what does it mean by negligence?

Answer 22

failure to take proper care over something or someone

Question 23

what is the difference of civil law and criminal law?

Answer 23

Criminal law: enforced by police, offence against the state, a V and a D, examples include: murder, theft robbery, criminal damage
Civil law: Claimant and Defendant, defendant is liable rather than guilty, examples include: negligence, divorce, private disputes, compensation

Question 24

who enforces tort law?

Answer 24

Tort law is a civil wrong, not enforced by the police, a civil action taken by 1 citizen against another, rather than a criminal offence against the state. Examples are: trespassing on someone’s property, saying/printing untrue things about someone (Slander)

Question 25

scaffold for occupiers liability 1957

Answer 25

C would/ would not be able to claim against D under the Occupiers Liability Act 1957 (visitor) for their injuries. Firstly, it must be proven that D is an occupier. In this scenario, the occupier is… as they have legal and physical control (Wheat v Lacon) Secondly, it must be established that the area in the question is a ‘premises’ this is defined under s.1(3)(a) as ‘any fixed or moveable structure’, in this scenario, D’s … is a fixed/ moveable structure. Thirdly, it must be established that C is a lawful visitor. A lawful visitor is someone with express permission (Calgarth), implied permission (Lowery v Walker) or statutory authority e.g police. In this scenario, C… and so has express/ implied permission or statutory authority. Under the OLA 1957, s2(2) the occupier is required to take such care to keep visitors ‘reasonably safe’ whilst on the premises. Therefore, the visitor should be safe, this does not mean the premises are completely safe. Fourthly, it must be established that the occupier breached their duty. The occupier must take such care as in all the circumstances of the case as is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there (s2(2)). The duty owed to the visitor changes when (outline correct duty owed, if any: children, skilled visitors, warning signs, independent contractors) using the relevant sections from the Act. In this scenario, D has/ has not taken steps that are reasonable (outline the steps or what the D has failed to do). Therefore, C can/cannot claim for their injuries under OLA 1957.

Question 26

breach of duty scaffold

Answer 26

AO1: In order to prove that D has/ has not breached their duty, the D will be compared to the ‘reasonable person’ as established in Blyth. Therefore, the D must not fall below the standard of care expected of someone in that position, in this scenario D is compared to a reasonable person. Firstly, the standard of learners is that of… this was seen in… where… Secondly the standard of professionals is that of… this was seen in… where… Thirdly, the standard of children is that of… this was seen in… where… The courts consider various risk factors when deciding the level of care owed by the D. (would a reasonable person in the D's position have forseen that the C may be injured?) AO2: Firstly, the size of the risk is considered. The higher the risk, the bigger the standard of care owed. In Bolton v Stone, the level of risk involved hitting the ball out of the grounds, which was low, therefore, they did not breach their duty. Secondly, the courts will consider the magnitude of unlikely harm. This means D will owe a higher duty of care of risk or damage/ injury is likely to be more serious. In Paris v Stepney Borough Council, the C was blind in one eye and was not provided the safety googles he should have been provided with, therefore the standard owed by the employer was high, as the seriousness was more high. Thirdly, the courts balance the risk of harm risk of harm against the cost and whether the risk was easy to prevent, if it was, the courts will expect the D to prevent the risk. Therefore, they are more unlikely to breach the duty. For example, in Latimer v Acc, the cost and practicality of preventing the risk for the employee. The courts decided this was not practical or costly, therefore it was not expected of D and there was no breach. The courts will also consider whether taking the risk provided a social benefit - if the benefit is greater than the risk of injury, the courts will find no breach (Watt v Hertfordshire County Council). -paris v stepney (used for magnitude of likely harm, or cost and practicality of preventing risk) (C blind in one eye, did a job which needed goggles, was not given goggles, lost sight to other eye)