Tort Law Flashcards
(158 cards)
1
Q
What are the 3 limbs to the Caparo test for novel duty situations?
A
1) Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant?
2) Is there sufficient proximity between the claimant and defendant?
3) Is it fair, just and reasonable to impose a duty? (any policy factors preventing finding a duty of care).
2
Q
List some established duty situations?
A
- Between road users (includes pedestrians and other vehicles).
- Manufacturer to consumer.
- Employer to employee.
- Doctor to patient.
- Teacher to pupil.
- As a rescuer where D’s actions have created a dangerous situation.
3
Q
When will a DOC usually be owed?
A
Whenever harm is caused by one individual to another by a positive act of wrongdoing and that harm is foreseeable physical injury to the person or physical damage to property.
Caparo criteria of foreseeability, proximity and fair, just and reasonable are likely to be satisfied in such cases.
4
Q
When will a DOC not usually be owed?
A
When;
- Harm is caused by a public body, such as a local authority or the police (as opposed to an individual).
- Harm is caused by an omission to act.
- Harm caused is pure psychiatric injury.
- Harm caused is pure economic loss.
5
Q
What are the 2 exceptions to the rule that there is no liability for omissions?
A
1) If someone decides to act, duty not to make the situation worse.
2) Special relationship of control; one party has duty to take positive action to safeguard the other (instructor/pupils, employer/employee).
– May also have a duty to take positive action to prevent harm to 3rd parties.
6
Q
Do members of the police owe a duty of care when driving vehicles in the same way as any other drivers?
A
Yes. Established DOC between road users (includes pedestrians and other vehicles).
7
Q
Do the police owe a duty of care to any given individuals?
A
No; owed to the public at large otherwise would be too wide and onerous.
8
Q
What is the 2-stage test for considering whether a defendant has breached a DOC?
A
1) How the defendant ought, in the circumstances to have behaved (question of law).
2) Whether the defendant’s conduct fell below the required standard (question of fact).
– Harder to establish.
9
Q
How is a defendant’s conduct measured to determine whether breach of DOC has occurred?
A
Against the ‘reasonable person’.
10
Q
Will a defendant driver who suddenly suffers from an impairment of consciousness (having been previously unaware of this) be in breach?
A
No; will meet the standard if the reasonable driver who is unaware of his condition.
11
Q
To what standard is defendant’s conduct (NQ doctor) measured against to determine whether there is a breach of the duty of care?
A
The standard of a reasonably competent doctor.
12
Q
Will a defendant be in breach if they acted in accordance with a practice supported by a reasonable body of professional opinion in that field?
A
No.
N.B. Courts will always be final judges for skilled defendants.
13
Q
What standard of care is required for a defendant undertaking a task requiring a particular level of professional skill?
A
The standard required for the reasonable person undertaking that said task.
Defendant holds themselves out as having the necessary expertise for the task.
14
Q
What standard is a learner driver expected to reach?
A
That of the reasonably competent driver; mitigated through compulsory insurance.
15
Q
What standard of care is a child expected to show?
A
Such care as can be reasonably expected of an ordinary child of the same age.
N.B. The younger a child is, the less likely the child is able to foresee harm to others.
16
Q
When is it justifiable not to take steps to eliminate a real risk?
A
Where the risk of injury is small and the circumstances are such that a reasonable person would think right to neglect it (weighed against purpose of defendant’s activity and cost of precautions).
N.B. The greater the chances of defendant’s activity causing injury to claimant, the more precautions the defendant must take.
N.B. Magnitude of risk is half the equation; other involves assessing the risk of injury to claimant.
17
Q
What is the usual way of proving breach of duty for a negligence claim?
A
Burden of proof on the claimant to prove their case on a balance of probabilities. Usually done using witnesses of fact (people who saw the accident), and expert witnesses (those who can say what the normal practice or level of precautions would be for a particular activity or operation).
18
Q
Where there is no witness evidence, how can a claimant prove that the defendant has breached the duty of care owed on a balance of probability?
A
Res ipsa loquitur ‘the thing speaks for itself’, available when;
– The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible.
– The accident must be such as would not normally happen without negligence.
– The cause of the accident is unknown to the claimant.
N.B. 3 conditions only satisfied in small number of cases. ALL must be met or claimant to try prove their case in normal way.
19
Q
What must the defendant provide if the maxim ‘res ipsa loquitur’ applies?
A
The maxim raises a prima facie inference of negligence, claimant must then provide a reasonable explanation of how the accident could have occurred without negligence by evidence showing they exercised reasonable care at all times or that accident was not caused by negligence on their part.
N.B. In other circumstances, a relevant criminal conviction following the incident (not unrelated) will assist the defendant.
20
Q
What 3 questions does the concept ‘causation of damage’ cover?
A
1) As a matter of fact, was the defendant’s negligence a cause of the claimant’s harm?
- ‘but for’ test.
2) Even if the defendant’s negligence was a cause of the claimant’s harm, was there any intervening act?
3) Even if the defendant’s negligence was a cause of the claimant’s harm, was the damage too remote?
21
Q
What is the ‘but for’ test?
A
But for the defendant’s breach of duty, would the harm to the claimant have occurred?
– If yes, claimant has failed to establish causation and his claim against the defendant must fail.
– If no, causation is satisfied and the claimant may proceed with his claim.
22
Q
What does the claimant have to show in a multiple causes case?
A
That the defendant’s breach of duty materially contributed to the damage.
N.B. If there are many different causes, this is unlikely to be made out if defendant is responsible for e.g. 1/5.
23
Q
Are there any exceptions to the usual rules of causation?
A
Yes; principle of material increase in risk but strictly confined to cases of scientific uncertainty e.g. mesothelioma.
24
Q
What happens where the claimant suffers more than one injury, one after the other and they impact on each other?
A
Where a claimant (or his property) has already suffered damage, a later defendant who causes a subsequent injury should be liable only to the extent that he makes the claimant’s damage worse.
25
What will the court do when it has evidence which will enable it to divide up the injury suffered by the claimant?
*E.g. where cumulative exposure to asbestos from different employers caused a disease which got progressively worse as exposure continued.
It will apportion the damages accordingly.
N.B. Claimants will need to sue all the defendants in order to recover damages in full.
N.B. Most injuries cannot be divided up this way.
26
How do the court deal with cases where 2 or more people are responsible for the same damage (e.g. car crash where both drivers negligent)?
Court has the power to apportion the damage between them, according to each person's share of responsibility for the damage.
N.B. Each defendant is liable to the claimant in full; claimant will be able to recover full damages from 1 defendant even if the other is insolvent/untraceable.
N.B. Claimant is entitled to sue all or any of the defendant's to recover full amount from any/all of them.
N.B. Defendant may recover a contribution from any other person liable for the same damage.
27
Are the instinctive interventions of a 3rd party likely to break the chain of causation?
No.
28
Will a negligent intervention from a 3rd party which the defendant ought to have foreseen break the chain of causation?
No.
29
Is it more likely that the conduct of a 3rd party that is reckless/intentional will break the chain of causation?
Yes.
30
When can a claimant act to break the chain of causation?
Where the act is entirely unreasonable given the circumstances.
N.B. if claimant acts in a careless manner, defendant will raise defence of contributory negligence which can lead to a reduction in claimant's damages. More favourable to claimant than a finding that their actions broke the chain of causation as if broken, defendant will not be liable for claimant's injury.
31
What is the general rule regarding breaking the chain of causation?
Unlikely to be broken by an action which the defendant ought to have foreseen as a likely consequence of his negligence.
N.B. Negligent medical treatment unlikely to break chain of causation as a defendant who negligently causes injury ought to foresee that medical treatment will be necessary, carrying some risk that treatment may be negligent.
32
What is the basic rule regarding remoteness of damage?
The type of harm suffered by the claimant must be reasonably foreseeable (not too far removed).
N.B. 2 provisos;
-- 'Similar in type' rule - if claimant suffers an injury of a type which was foreseeable, it does not matter that the precise way in which claimant was injured was not foreseeable.
-- 'Egg-shell skull' rule - take your victim as you find him.
33
Once the type of damage is deemed foreseeable, does the extent of it have to be?
No.
34
What does the egg-shell skull rule for damages?
Claimant can recover in full from the defendant for their losses, even though the defendant could not have foreseen the full extent of the claimant's losses.
- Includes loss of wages (even if particularly high) and full injury.
35
What damage must have been suffered by the claimant for them to be able to rely on a DOC?
Physical damage (either personal injury or damage to property), and NOT pure economic loss or pure psychiatric harm.
36
List some limited duty situations regarding a DOC being owed?
Pure economic loss cases.
Pure psychiatric harm cases.
Employers' liability cases.
37
What is the general rule regarding a defendant owing a DOC to a claimant not to cause pure economic loss?
Not owed; generally a lack of a sufficiently proximate relationship between the claimant who has suffered pure economic loss and the defendant who may have caused this type of loss.
N.B. Lack of a proximate relationship means defendant's potential liability could be boundless; courts place limits on the DOC in such cases.
38
Are there any special rules for consequential economic loss?
No.
39
List some situations of pure economic loss that are not recoverable?
Economic loss caused by acquiring a defective item of property.
Economic loss unconnected to personal injury to the claimant or physical damage to the claimant's property.
Economic loss caused by damage to the property of a 3rd party.
Economic loss where there is no physical damage; actions.
Economic loss where there is no physical damage; statements.
40
Define consequential economic loss?
Loss following on from damage to property belonging to the claimant.
41
What is the outcome if the defendant negligently damages property belonging to a 3rd party and causes the claimant loss?
There is not a sufficiently close relationship between the claimant and the defendant; the defendant does not owe the claimant a DOC and the claimant cannot recover their loss from the defendant (pure economic loss).
42
How can economic loss be caused where there is no physical damage?
Either;
- Caused by negligent actions (no DOC for pure economic loss) or
- Caused by negligent statements (no DOC owed for pure economic loss; N.B. 1 exception).
43
Outline the 1 exception to the general rule that there is no DOC owed for economic loss caused where there is no physical damage; statements?
Situations where the defendant has assumed a responsibility towards the claimant; 2 elements to a special relationship under Hedley Byrne;
1) An assumption of responsibility by the defendant.
2) Reasonable reliance by the claimant.
44
What are the 4 criteria from Caparo to be satisfied for a defendant to have assumed responsibility towards a claimant?
1) The defendant knew the purpose for which the advice was required.
2) The defendant knew that the advice would be communicated to the claimant (either specifically or as a member of an ascertainable class).
3) The defendant knew that the claimant was likely to act on the advice without independent inquiry.
4) The advice was acted on by the claimant to its detriment.
E.g. been decided that a company accountant owed no DOC to a prospective takeover bidder who relied on the accountants hurriedly prepared draft accounts; insufficient proximity of relationship between the accountant and bidder; accountant did not know his statement, accounts would be communicated to the bidder for that particular transaction.
45
What is the general rule regarding DOC being owed in a social situation?
No; due to no assumption of responsibility (can be a DOC if advice given and reasonable for the claimant to rely on the defendant for advice).
46
How has the special relationship principle from Hedley Byrne been extended?
To cover a wider class of cases of pure economic loss; where the defendant has assumed a responsibility towards the claimant.
Also an extension from negligent statements to pure economic loss caused in the negligent provision of professional services, where there has been an assumption of responsibility.
47
What must then be considered in those situations where a DOC is found to be owed not to cause pure economic loss?
The other elements in a negligence claim; breach of duty and causation of damage.
If all elements are made out, consider relevant defences.
48
What 2 requirements must any defendant satisfy before being able to rely on an exclusion notice?
1) Reasonable steps must have been taken to bring the exclusion notice to the claimant's attention before the tort was committed.
2) The wording of the notice must cover the loss suffered by the claimant.
49
How is the ability of a defendant to exclude liability further limited by UCTA 1979 and CRA? 2015?
UCTA applies to claims in negligence; defendant must be acting in the course of business for it to apply.
For CRA to be applicable, defendant must be acting as a trader and the claimant as a consumer.
Defendant cannot exclude liability for death or personal injury resulting from negligence; for all other types of loss/damage, defendant can exclude or restrict his liability only if the exclusion satisfies the requirements of 'reasonableness'.
50
List some factors to be considered when deciding the question of reasonableness?
Were the parties of equal bargaining power?
Would it have been reasonably practicable to obtain the advice from an alternative source taking into considerations of cost and time?
How difficult is the task being undertaken for which liability is being excluded?
N.B. Depends on all the circumstances of the case.
51
What is the general rule for defendants owing a DOC to claimants not to cause pure psychiatric harm?
Not owed; lack of a sufficiently proximate relationship between the claimant who has suffered pure psychiatric harm and a defendant who may have caused this type of loss.
N.B. Lack of a proximate relationship means defendant's potential liability could be boundless; courts place limits on the DOC in such cases.
52
Are there any special rules for consequential psychiatric harm?
No.
53
Define what is meant by pure psychiatric harm?
Where a claimant has suffered pure psychiatric harm, the injury must be either;
- A medically recognised illness, or
- A shock-induced physical condition.
54
Explain the 2 types of victim?
Different types of victim;
1) Primary victim - someone who was actually involved in the incident (e.g. in the actual area of danger or reasonably believed that he was in danger).
2) Secondary victim - someone who is not involved directly in the incident (e.g. witnesses injury to someone else or fears for the safety of another person).
55
What are the rules for DOC in relation to pure psychiatric harm for primary victims?
Primary victims are owed a DOC in relation to their pure psychiatric harm, provided the risk of physical injury was foreseeable.
- Not necessary for the risk of psychiatric harm to be foreseeable.
56
What are the more stringent rules ('Alcock control mechanisms') for DOC in relation to pure psychiatric harm for secondary victims?
Secondary victims must have suffered a medically recognised psychiatric illness, or shock-induced physical condition.
Foreseeability of psychiatric harm - It must be reasonably foreseeable that a person of normal fortitude in claimant's position would suffer a psychiatric illness.
Proximity of relationship - The claimant must have a close relationship of love and affection with the person endangered by defendant's negligence.
- Presumption where parent/child, husband/wife etc, but defendant can adduce evidence to rebut this.
- If claimant falls outside the categories where presumption arises, claimant must prove that one existed.
Proximity in time and space - claimant must be present at the accident or in its immediate aftermath (max 1 hour after accident).
Proximity of perception - claimant must see or hear the accident, or its immediate aftermath, with their own senses.
- Cannot be compensated if the event is communicated by a 3rd party e.g. broadcasters unless the shock of impact on TV pictures would be greater than actual sight of accident.
57
What are the key differences for finding a DOC for primary and secondary victims?
No distinction is made between physical injury to a primary victim and psychiatric injury to a primary victim.
However, if claimant was a secondary victim, courts require them to demonstrate that psychiatric injury was a foreseeable consequence of defendant's negligence.
58
How are rescuers treated for psychiatric harm?
In the same way as any other victim who suffers pure psychiatric harm.
- If a rescuer has been in the actual area of danger, they are a primary victim. A DOC is owed to a primary victim, provided there is a foreseeable risk of physical injury.
- If a rescuer has not been in the actual area of danger so that they have not been exposed to any risk of physical injury, they will be classed as a secondary victim. A DOC will only be owed if all Alcock requirements are met.
59
How do the rules on DOC and remoteness of damage work together in the case of secondary victims?
In order to show that a duty is owed to them, the claimant must get over the first hurdle of foreseeability (show that it was reasonably foreseeable that a person of normal fortitude in the claimant's position would suffer a psychiatric illness). Then they must establish breach of duty.
After this, claimant can then rely on egg-shell skull rule in relation to causation of damages to recover damages for all psychiatric injury suffered.
60
Does stress at work come under pure psychiatric harm?
No; consider employers' liability.
61
What are the 2 potential areas of liability in tort for the employer?
1) Primary liability in negligence for breach of the personal duty an employer owes to every employee.
2) Secondary liability of employers under vicarious liability for the torts of employees committed in the course of their employment.
62
What 4 common law duties do employers owe to employees?
Duty to take reasonable care for its employees' safety whilst at work. Duty to take reasonable steps to provide;
- Competent staff.
- Adequate material (plant, equipment and machinery).
- A proper system of work and supervision.
- A safe place of work.
N.B. All duties are non-delegable, personal to the employer (cannot escape liability having delegated to contractor etc).
63
Explain what the duty to provide competent staff involves?
Arises where an employer knows, or ought to know, about the risk (physical or psychological harm) a particular worker is posing to fellow workers.
Employer to consider many practical issues, including;
- Selection of staff.
- Provision of training to ensure staff are equipped to do their job.
- Provision of supervision as necessary.
- Dismissal of employees who despite adequate training etc, continue to pose a risk to fellow staff.
64
Explain what the duty to provide adequate material (expanded to mean plant, equipment and machinery) means and when is it relevant?
Relevant;
- Where an employer does provide plant and/or equipment to his employees but it is inadequate in some way.
- Where an employer does not in fact supply all the plant and equipment needed for the job.
Demanding duty; employer must provide all necessary equipment and maintain it to a safe standard.
65
What does an injured employee have to establish for a claim against employer due to inherent defects in equipment?
Fault on the part of the 3rd party (commonly manufacturer of the equipment).
Causation.
66
Explain what the duty to provide a safe system of work involves?
*Widest and thus more frequently invoked branch.
Includes things such as the physical lay-out of the job, the sequence in which the work is carried out, the provision of training, notices, warnings, safety equipment and issue of instructions where appropriate.
Reasonable steps must also be taken to ensure the system is safe including training, supervising, monitoring and disciplining employees to ensure compliance.
- Complying with the duty requires an employer to continuously assess the risks inherent in its particular working environment.
67
Explain the differences between the employer's common law duty to provide employees with a safe place of work and the statutory duty under Occupiers Liability Act (OLA) 1957?
The employer's common law duty is more onerous in 2 respects;
- Under the 1957 Act, an employer can comply with its duty by delegating work to an independent contractor. The employer's common law duty is non-delegable.
- The 1957 Act duty only applies to premises of which the employer is 'occupier'.
68
What is used to determine whether a duty would arise for stress at work?
Whether injury to health through stress at work was reasonably foreseeable. Consider;
- The nature and extent of the work done by the employee (was the workload too demanding etc).
- Signs from the employee themselves (an employer is generally entitled to assume an employee is up to the normal pressures of the job if not told).
69
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.
70
Once an employee has established a breach of the employers' duty of care, are causation issues the same?
Yes; same tests.
71
What are the main defences raised by an employer?
Consent (voluntary assumption of risk)
Contributory negligence.
72
List the 3 general defences?
1) Consent (voluntary assumption of risk)
2) Contributory negligence
3) Illegality.
73
Explain the defence of consent (voluntary assumption of risk)?
Operates as a complete defence for the defendant, preventing the claimant recovering at all for the defendant's breach of duty.
Defendant must establish;
- That the claimant had full knowledge of the nature and extent of the risk, and
- That the claimant willingly consented to accept the risk of being injured due to the defendant's negligence.
N.B. Difficult to establish and rarely succeeds.
74
How is the defence of consent in the case of motor vehicles dealt with by statute?
S149 Road Traffic Act; applies to any motor vehicle where insurance for passengers is compulsory.
Effect = any acceptance of the risk by the passenger is invalid. Defence of consent cannot be relied upon.
75
Consider the defence of consent and claims by employees against their employers?
An employee acts under a duty and therefore has no real freedom of choice when carrying out a dangerous task requested by the employer.
If an employee refuses to carry out the task, they run the risk of losing their job.
76
Consider the defence of consent and claims by rescuers?
Courts take the view that rescuers often act under compulsion, and will not be considered to have consented to the risk of injury if;
- They were acting to rescue persons or property endangered by defendant's negligence.
- They were acting under a compelling legal, social or moral duty.
- Their conduct in all the circumstances was reasonable and a natural and probable consequence of defendant's negligence.
N.B. Rules apply equally to professional rescuers and lay rescuers.
77
Explain the defence of contributory negligence?
Operates as a partial defence for defendant; comprises carelessness on claimant's part that has contributed to claimant's damage.
78
What is the effect of a finding of contributory negligence?
Claimant's damages are to be reduced (calculate full amount of damages which would have been payable if not for claimant's contributory negligence and make an appropriate reduction to take it into account).
Damages to be reduced;
- To such extent as the court thinks just and equitable.
- Having regard to the claimant's share in the responsibility for the damage.
- Causation (extent to which claimant's carelessness has caused/contributed to the loss suffered).
79
What is the likely reduction as a result of claimant's failure to wear a seatbelt?
Claimant suffered injuries which would have been avoided had a seatbelt been worn - 25% likely reduction.
Claimant suffered injuries which would have been less severe had a seatbelt been worn - 15% likely reduction.
The wearing of a seatbelt would have made no difference to the extent of claimant's injuries - 0% likely reduction.
N.B. Defendant must establish causal link i.e. claimant's failure to wear a seatbelt caused/contributed to their injuries.
N.B. Same thresholds applied for failure to wear crash helmets.
80
Will passengers who accept lifts from a driver whom they know to be drunk have their damages reduced if they are injured in an accident caused by the driver's intoxicated state?
Yes.
81
What is the test for contributory negligence?
Whether the claimant has failed to take reasonable care for their own safety. Behaviour measured against reasonable person.
82
Can children be contributorily negligent?
Yes; no age below which a child cannot be but older a child is, more likely they will be.
N.B. Courts reluctant to find rescuers contributorily negligent unless actions so unreasonable.
83
Explain what is required for the defence of illegality?
Operates as a complete defence for defendant, preventing claimant recovering at all for defendant's breach of duty.
Must be a very close connection between claimant's illegal activity 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 claimant a remedy.
84
What are the general tortious principles regarding measure of damages?
To put the claimant in the same position they would have been in if the tort had not been committed.
N.B. Easy to do in most cases but with personal injuries, damages will not be able to do this so are seen as compensation for the injury.
85
Explain the mitigation of loss principle?
Claimants cannot claim damages for losses which they could have avoided by taking reasonable steps themselves.
Steps must be taken where possible to keep losses claimed to a minimum; includes looking for alternative employment, hiring replacement vehicle, seeking medical care.
86
Does using private healthcare automatically show a failure to mitigate loss?
No.
87
Explain the one action rule?
A claimant can bring only one claim based on one set of facts. This means that when a court assesses the claimant's damages, it must award a single lump sum to cover both losses already suffered up to the time of trial and losses which the claimant is expected to suffer in the future.
N.B. Judge must make assessment of claimant's future losses which cannot be changed (e.g. if condition worsens) once awarded.
88
Explain the difference between general and special damages?
Special damages - those losses which are capable of being calculated precisely at the time of trial and which are stated in the form of a calculation.
-- E.g. loss of earnings and all incurred prior to trial.
General damages - those losses which are not capable of being calculated precisely and are therefore left to the court to determine. They must still be stated but no definitive figure can be placed on them.
-- E.g. pain, suffering, loss of amenity and all losses incurred after trial.
89
Explain what is meant by the 'loss of amenity' head of damage?
The effects of an injury on the claimant's enjoyment of life; covers a wide area of loss e.g. loss of freedom of movement, loss of sight, loss of smell, loss of marriage prospects, inability to pursue hobbies.
N.B. A claimant who was very active prior to the accident will receive more under this head of damages than a claimant who was inactive.
N.B. Claimant can recover under this head whether conscious or not.
90
Explain what is meant by the 'pain and suffering' head of damage?
Covers the pain and suffering which the claimant has incurred as a result of the injury; covers past, present and future pain, physical and mental anguish, the fear of future surgery etc.
Court to assess the claimant's pain and suffering to reach a monetary figure for compensation,
N.B. Claimant MUST be aware of the injuries to be able to claim for pain and suffering, must therefore be conscious.
91
How are non-pecuniary damages quantified?
By courts considering the facts of each case and estimating through use of guidelines based on previous case law.
92
List some pecuniary losses?
- Medical expenses.
- Loss of earnings pre-trial.
- Loss of earnings post-trial.
- Loss of earnings - the lost years.
- Loss of earnings - children.
- Services provided to the claimant.
- Loss of earning capacity.
N.B. Any other reasonable loss incurred by the claimant as a result of the accident can be recovered.
93
How are medical expenses quantified?
Claimant can recover all medical expenses incurred.
- Pre-trial = special damages; calculated by adding together expenses.
- Post-trial = general damages; court to base its assessment on the annual cost of treatment and number of years treatment likely to continue.
Claimant can claim for any reasonable medical expenses which result from the accident (e.g. cost of wheelchairs, adapting the house, special dietary needs etc, cost of private medical treatment).
94
How is loss of earnings pre-trial quantified?
By putting claimant back in the position they would have been in if the accident never happened.
-- Calculation of net earnings for that period (including overtime, bonuses, perks).
-- Special damages.
95
How is loss of earnings post-trial quantified?
Court must make the assessment at the date of trial and award one lump sum to compensate for that future loss; assumes that client would continue to work up to normal retirement age but for injury.
Multiplicand - court to ascertain the claimant's gross annual loss as at the date of the trial (can include promotion prospects).
Multiplier - court to then calculate for how long the claimant will lose this money (period of future loss).
Multiplicand x multiplier = X. Then, adjust the figure to ensure that claimant is not over or under compensated.
- Ogden table used. Discount rate of minus 0.25% to ensure that claimants are treated as risk averse investors.
96
How are loss of earnings 'the lost years' quantified?
Where the client's injury reduces their remaining life expectancy; award of damages is important to ensure claimant can provide for their dependants.
When calculating figure, deduct the amount that the claimant would have spent on themselves from the multiplicand; only the balance of their earnings should be awarded as damages.
-- Deduction usually 25% for a person married with dependent children, and 33% for those with no dependants.
N.B. Different figures can be argued if the evidence is that a particular claimant would have spent more or less on themselves.
97
How are loss of earnings 'children' quantified?
If a child is very young at the date of the accident, virtually impossible to predict what their earnings might have been.
Could consider what parents earn and assume the child would reach a similar level.
Could take national average earnings and base theirs on this.
Could take a particular area of employment child has shown interest in and base on this.
98
How are losses for services provided to the claimant quantified?
Law does allow claimant to recover the cost of services of this kind e.g. help with housework/shopping, nursing care; claimant must show that the need for the services follows from the injury caused by the defendant's negligence.
Claimant can recover damages for the services they need and does not matter who renders these services but identity of carer may affect how much claimant can recover for cost of care.
- If family member, loss of earnings suffered by carer is starting point.
If a claimant has paid for professional nursing care, they can recover the cost of that care; must show that costs were reasonable.
99
How are losses for earning capacity quantified?
Compensate claimant for disadvantage where still working in their original job but suffers continuing injury or disability.
Speculative award of damages; judge must be satisfied that there is a real risk of the claimant losing their job.
100
As an exception to the general principle that a claimant should not be better off as a result of the accident, what payments are not deducted from the damages which the claimant receives?
Insurance payments.
Ill-health pensions.
Charitable payments.
N.B. If such sums were deducted, it would discourage people from protecting themselves by insurance or from making charitable payments as the benefit would simply go to the defendant.
State benefits are dealt with by deducting relevant benefits from the claimant's damages, and then requiring the defendant to pay that amount back to the state.
101
List the 2 limited statutory exceptions to the rule that damages should be awarded once and for all in a single lump sum?
s32A Senior Courts Act 1981 allows an award of provisional damages.
- Appropriate where there is a chance of serious deterioration.
s2 Damages Act 1996 allows the court to award damages for personal injury as periodic payments rather than as a lump sum.
102
What 2 situations do damages on death deal with?
1) Position if a claimant dies before they have received an award of compensation.
2) Damages that can be recovered where the defendant's negligence causes the claimant's death.
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How is situation 1) dealt with?
By the Law Reform (Miscellaneous Provisions) Act 1934;
-- Does not create any new cause of action; simply allows existing causes of action to continue after death.
-- All causes of action (except claims for defamation and bereavement damages) survive the death of either the claimant or defendant.
-- A claim by a claimant survives for the benefit of their estate; a claim against a defendant survives against their estate.
-- No account is taken of any money received by the estate as a result of the death; N.B. reasonable funeral expenses can be claimed, provided they have been paid for by the estate.
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What can the deceased claimant recover?
Non-pecuniary losses (pain and suffering and loss of amenity) ending at the date of death.
Pecuniary losses (damage to property, medical and other expenses and loss of income up to date of death).
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What happens where the claimant's death has been caused by the defendant's tort?
The claim for loss of income under the 1934 Act must end at the date of death; if the deceased claimant leaves dependant relatives, they would be compensated by a claim under the Fatal Accidents Act 1976.
Claim is brought by the estate, and awarded damages become part of the estate (distributed via will or intestacy rules).
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Is the 1934 Act relevant where the claimant's claim has already been settled?
No; claimant has already been compensated in full.
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What does the 1976 Fatal Accidents Act enable?
Creates a new cause of action for dependants to sue for the death of the person on whom they were dependant; claim usually commenced by the deceased's PRs.
In order to bring a claim under the 1976 Act, claimants have to be able to show that, had the deceased survived, the deceased would have been able to bring a claim against the defendants themselves.
Thus, the defendant must have committed a tort against the deceased; any defence able to defeat the original claim will also defeat the 1976 Act claim.
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What are the 3 possible claims under the 1976 Act?
1) A claim on behalf of dependants for loss of dependency.
2) A claim for damages for bereavement - limited to certain persons only.
3) A claim for funeral expenses - if paid by the dependents.
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Expand on claim 1) a claim on behalf of dependants for loss of dependency more?
2 requirements for person to satisfy;
-- They must fall within the class of dependents as listed in the 1976 Act (includes current and former married spouses/civil partners, cohabitees who have lived together for at least 2 years, parents, children, siblings).
(N.B. Definitive list; must fall within it to be able to make a claim).
-- They must have been actually financially dependent on the deceased (show that they had a reasonable expectation of pecuniary benefit from the deceased).
N.B. Future losses calculated using multiplicand-multiplier calculation.
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Who are the only people able to claim under 2) damages for bereavement?
- Wife, husband or civil partner of the deceased.
- Parents (or mother if illegitimate) of a minor who was never married or a civil partner.
- The cohabiting partner of the deceased who;
--- Was living with the deceased in the same household immediately before the date of death, and
--- Had been living with the deceased in the same household for at least 2 years before that date, and
--- Was living during the whole of that period as the wife or husband or civil partner of the deceased.
N.B. Amount of bereavement damages is currently £15,120 (fixed sum; only one award made).
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Who is liable under vicarious liability?
The employer in addition to its employees.
N.B. Claimant can sue either or, or both as jointly liable.
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List the 3 essential elements for vicarious liability to exist on the part of an employer?
1) The worker must be an employee (or in a relationship akin to employment).
2) The employee must have committed a tort (usually negligence).
3) The employee's tort must have been committed in the course of his employment.
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Who is an employee for the purposes of vicarious liability?
Employers cannot be held to be vicariously liable for the acts of independent contractors (self-employed persons providing services to several people).
Below situations to be considered when assessing whether relationship akin to employment, or fair, just and reasonable to impose vicarious liability on an employer;
-- The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability.
-- The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
-- The employee's activity is likely to be part of the business activity of the employer.
-- The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee.
-- The employee will have been under the control of the employer.
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When are acts classed as being 'in the course of employment'?
Wrongful acts which it has authorised.
Wrongful and unauthorised modes of carrying out an authorised act.
N.B. Consider cases where the employee deviated from the employer's instructions but was still carrying out the employer's business.
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Explain employer's indemnity?
Where an employer (or employee's insurers) has paid out compensation to someone, having been found vicariously liable, employer has a right at common law to claim an indemnity (full loss) from the employee who actually committed the tort.
Employer and employee are jointly liable.
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Will employers be vicariously liable for intentional torts?
Unlikely; neither authorised acts nor unauthorised ways of doing authorised acts.
However, an employer can be vicariously liable for an intentional wrongful act committed purely for an employee's own purposes, without any benefit to the employer, where there is a sufficient close connection between the work he had been employed to do and the acts in question.
Lister principle - requires a 'close connection' between the work an employee is employed to do and the tort they commit.
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Explain 'frolic' cases?
Cases concerning employees whose work involves driving and who commit a tort while deviating from the route authorised by their employers.
In such cases, consider whether an employee's departure from their authorised route is sufficient to put them 'on a frolic of their own' and consequently outside the course of their employment. Consider;
- Geographical divergence.
- Departure from the task set.
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What is occupiers liability?
A special liability regime because statutory regulation combines with common law negligence to produce a package of obligations imposed on, occupier of premises.
OLA 1957 governs an occupier's duty to 'visitors'.
OLA 1984 governs an occupier's duty to others (mostly trespassers).
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What is required for a claimant to fall within the OLA 1957 Act to prove an occupier's liability to a visitor?
Claimant would need to;
- Establish that they have suffered loss due to the state of the premises.
- Identify the occupier.
- Prove that they are a visitor.
- Establish that the occupier failed to take reasonable care for the visitor's safety.
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Who is an occupier under OLA 1957 and OLA 1984?
Someone with a 'sufficient degree of control over premises'.
-- E.g. where a landlord lets flats in a block, but retains control of the common staircase, the landlord will be regarded as 'occupier' for the purposes of OLA 1957.
Term is widely interpreted; may be more than one occupier of the same premises; independent contractor may also meet definition if they have required degree of control over the area where it is working.
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Who is a visitor under OLA 1957?
Those persons who have express or implied permission to be on the occupier's land.
-- Includes persons who enter under the terms of a contract and persons who enter in order to exercise any right conferred by law.
N.B. A visitor who exceeds his express or implied permission becomes a trespasser and may fall under OLA 1984.
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Would a teenager who has managed to see a film at a cinema without paying be a occupier or trespasser?
Trespasser; occupier has permitted the teenager to be on the premises only if they have paid the entrance fee.
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How is 'premises' interpreted under OLA?
Widely; includes open land and fixed or moveable structures.
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What duty is owed by an occupier to visitors under OLA 1957?
Common duty of care; reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there.
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List some factors that the court will take into account when assessing the standard of care expected of the 'reasonable occupier'?
Nature of the danger.
Purpose of visit.
Seriousness of injury risked.
Magnitude of risk.
Cost and practicability of steps required to avoid danger.
Type of visitor.
Any warning of the danger.
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What types of visitor receive special treatment under OLA?
Child visitors - higher degree of care required; cannot be expected to appreciate dangers which would be obvious to an adult.
-- Where the danger is an allurement, an occupier must do even more to safeguard a child's safety than where it is not.
-- N.B. Parental responsibility can reduce or eliminate the liability of occupiers for the harm suffered by very young children.
Skilled visitors - lower standard of care required; an occupier can reasonably expect them to appreciate and guard against any risks which are part and parcel of their job.
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How can warnings be used to escape breach?
Adequate warnings, consider;
-- Nature of the warning (how specific was it to the danger).
-- Nature of the danger (hidden or obvious).
-- Type of visitor.
N.B. Consider things like language of notice.
N.B. An occupier need not warn of every danger, especially those dangers that would be obvious to an adult visitor.
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What is the difference between warning notices and exclusion notices?
Warning notices allow an occupier to comply with their common duty to a visitor; exclusion notices may operate as a potential defence to a claim once the visitor has established breach of the common duty of care.
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What 3 requirements must be satisfied to prevent occupier being liable for injury to independent contractor?
Occupier acted reasonably in;
1) Entrusting the work to an independent contractor.
2) Taking such steps as they reasonably ought to satisfy themselves that contractor was competent.
3) Taking such steps as they reasonably ought to satisfy themselves that the work had been properly done.
N.B. Same causation (inc intervening acts) and remoteness rules apply to all torts.
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List the arguable defences open to an occupier who has breached their common duty of care?
Consent (same principles to be shown as under common law; claimant must know of precise risk that causes the injury and show by their conduct that they willingly accepted the legal risk).
Contributory negligence (same principles apply; damages will be reduced accordingly).
Exclusion of liability;
-- Reasonable steps must have been taken to bring the exclusion notice to the claimant's attention before the tort was committed, and
-- The wording of the notice must cover the loss suffered by the claimant.
Ability of defendant to exclude liability is further limited by UCTA and CRA.
-- Under UCTA, business occupiers unable to exclude liability for a non-consumer visitor's death or personal injury but may for property damage if fair and reasonable to do so.
-- Private occupiers are not subject to UCTA.
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To whom is the OLA 1984 duty owed?
To people other than visitors.
A person can initially enter premises as a visitor but then become a trespasser; entrant does not need to be aware that they are trespassing.
N.B. A person using a public highway is excluded from protection under the act.
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What conditions is the duty owed by an occupier to a trespasser subject to? (does not automatically arise unlike OLA 1957)
Occupier must;
- Be aware of the danger or has reasonable grounds to believe that it exists.
- Know or have reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned or that they may come into the vicinity of the danger.
- Be reasonably expected to offer the same protection against the risk.
N.B. 'has reasonable grounds to believe' requires actual knowledge of facts which would lead a reasonable occupier to be aware of the danger or presence of the trespasser.
N.B. ALL conditions must be met for the occupier owes a duty to the trespasser.
N.B. Act does not cover damage to trespasser's property; death or personal injury only.
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What information is important when assessing whether it is reasonable to expect the occupier to have offered the trespasser some protection?
The nature and extent of the risk (more serious it is, more protection needed).
The type of trespasser (adults, children, deliberate).
The cost and practicability of precautions.
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Does the liability have to occur due to the state of the premises for OLA 1984 to be engaged?
Yes; nothing to do with activity.
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List some factors to consider when deciding what constitutes 'reasonable care' for duty owed to trespassers?
The nature of the danger.
The age of the trespasser.
The nature of the premises (how dangerous).
The extent of the risk.
The nature and character of the entry.
The gravity and likelihood of injury.
The foreseeability of the trespasser.
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Can warnings be used to discharge duty owed to trespassers?
Yes; in same way as for common visitors.
- Barriers may also be needed especially to discourage young children who may not read or fully appreciate danger.
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Is occupier's liability for children and causation, remoteness and defences the same under OLA 1984 as 1957?
Yes; except for exclusion of liability (silent under OLA 1984).
Also, defence of illegality does not apply for public policy reasons.
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A cause of action for defective products may lie in 1 of 3 areas of law?
1) Tort of negligence.
-- Breach of duty, proof of breach, warnings, causation and remoteness, defences all same apply.
2) Under Consumer Protection Act (CPA).
3) Contract law (not available where claimant did not buy product or where supplier has gone out of business).
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What must a claimant establish to show a duty of care for a defective product under the narrow rule in Donoghue v Stevenson?
1) That the defendant is a 'manufacturer'
2) The item causing damage is a 'product'
3) The claimant is a 'consumer'
4) The product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination.
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Who is a 'manufacturer'?
Widely interpreted by the courts; case law extends it to mean any person who works in some way on a product before it reaches the consumer.
-- E.g. repairers, installers and occasionally suppliers of products.
N.B. Suppliers may owe a duty under the narrow rule if the circumstances are such that they ought reasonably to inspect or test the products which they supply (e.g. because the manufacturer has asked them do), or because they actually know of a danger/defect.
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What is a 'product'?
Covers almost any item which is capable of causing damage.
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Who is a 'consumer'?
Widely interpreted to mean both the ultimate user of the product and anyone whom the defendant should reasonably have in mind as likely to be injured by the defendant's negligence (neighbour).
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What if there is a reasonable possibility of intermediate examination?
The 'manufacturer' of the product will not owe a duty under the narrow rule.
-- Manufacturer must believe there is a likelihood of such an examination taking place.
N.B. Does not necessarily mean an injured party will be without a cause of action as the duty may be owed instead by the party having the opportunity to examine the product.
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What types of loss are within the scope of duty for defective products?
Covers any injury to persons or damage to property done by the defect in product.
Does NOT cover pure economic loss (defective quality of product itself, reduction in value of product, cost of repairing/replacing product).
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Who is the onus on to prove breach of duty?
Claimant; needs to produce evidence of what went wrong in the manufacturing process.
May be assisted by the res ipsa loquitur in negligence but this cannot be relied upon in product liability cases; courts have sometimes been prepared to infer breach of duty from facts that the claimant is able to prove.
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Expand on the defences for product liability in more detail?
Consent - Knowledge of risk is not on its own enough to amount to consent; claimant's conduct must also indicate a willing acceptance of the risk (difficult to show).
Exclusion of liability - same (UCTA and CRA).
Contributory negligence - same.
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Who is able to sue under the CPA 1987?
Anyone who can establish that they have suffered damage, caused by, a defect, in a product.
-- Wider class (claimant doesn't need to be foreseeable victim).
-- Product widely defined.
N.B. Claimant unable to recover damages twice over for the same loss under negligence and CPA 1987.
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How is 'damage' defined in the CPA 1987?
Claims for death and personal injury are without limit.
Damage to private property must exceed £275 before a claim for it can be brought. Provided this, the full amount of the loss or damage is recoverable.
N.B. Damage caused by a defective product to business property is outside the scope of CPA 1987.
N.B. The cost of repairing or replacing the defective product itself is not recoverable (pure economic loss).
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How does causation differ under CPA 1987 compared to negligence?
Usual 'but for' test applies; under CPA, the claimant must show that the defect caused the damage. In negligence, the claimant must show that the defendant's breach of duty caused the damage.
N.B. Rules on remoteness are not addressed under CPA; means if a claimant can establish damage caused by a defect, the defendant will be liable for this without limit.
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Explain how 'defect' is defined in the CPA 1987?
Means 'unsafe' (safety of the product is not such as persons generally are entitled to expect).
To decide the level of safety persons are generally entitled to expect, the CPA sets out some circumstances to be taken into account, including;
- The whole get-up and presentation of the product (including packaging, warnings, instructions).
- What the expected use of the product is.
- The age of the product in question.
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List the 4 categories of potential defendants under the CPA 1987?
1) Producer of the product (manufacturer).
-- Producer of part and producer of whole product could both be sued.
2) Own-brander
-- Person holding themselves out as being its producer by putting name or trademark on product.
3) An importer.
4) A supplier, but only in limited circumstances outlined in CPA 1987.
-- Where they are unable to meet a victim's request to identify any of the people involved in the chain of supply (e.g. wholesaler or manufacturer).
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What is the nature of the liability under CPA 1987?
Strict; makes it advantageous for claimants when compared with a claim in negligence based upon proving fault.
Liability not absolute due to availability of defences.
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What defences are available under CPA 1987?
The defect was attributable to compliance with legal requirements.
The defendant did not supply the product to another.
The defendant supplied the product otherwise than in the course of business.
The defect did not exist when the defendant supplied the product.
'Development risks' (applies to cutting edge new products coming onto market e.g. pharmaceuticals).
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When is a claim in nuisance appropriate?
Where a claimant suffers interference with the use and enjoyment of their land (e.g. unpleasant smells caused by chemical fumes from the defendant's factory).
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What are the 2 types of nuisance at common law?
Private nuisance.
Public nuisance.
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What is the definition of private nuisance?
An unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it.
N.B. Definition requires the claimant to show;
- That there is an interference with the claimant's use and enjoyment of land or some rights over it, and
- That the interference is unlawful.
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What 3 types of interference were identified in Hunter v Canary Wharf for private nuisance?
1) Nuisance by encroachment on a neighbour's land.
2) Nuisance by indirect physical injury to a neighbour's land.
3) Nuisance by interference with a neighbour's quiet enjoyment of his land.
-- 3 = very wide; encompasses smells, dust, noise, right to light.
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