Tort main things Flashcards
Establishing a new duty with no precedent
1) neighbour principle (test of proximity - could have foreseen it?)
2) Caparo
a) foreseeability
b) proximity
c) fair just and reasonable
duty to act?
no, unless special relationship + duty to not make situation worse
elements of causation
1) did def cause harm (but for test) (material contribution test (Bonnington) (material increase test- McGhee)
2) was there NAI
3) was the damage too remote
what can happen if there is more than 1 def (in terms of injuries and liability)
they can be divisible injuries (judge proportions damage accordingly them)
or indivisible - in that case judge proportions % but case claim. claims from 1 and that one can recover from another)
what are the NAI
1) third party (instinctive intervention does not break chain, negligent intervention is unlikely to break - act should be reckless or intentional)
–> broad rule: unlikely to have been broken by an act defendant ought to have foreseen
2) claimant’s own acts (were they entirely reasonable in the circumstances they were at at the time? unlikely to be totally independent)
test for remoteness of damage
Wagon Mound - its about type of HARM being foreseeable, not extent or precise way
examples of PEL
- defective product
- damage to 3rd party property
- economic loss where no physical damage to claimant or property
- through statements and no special relationship
elements for special relationship in PEL
1) assumption of responsibility
2) reasonable reliance by the claimant
general rule for pure psychiatric harm (PPH)
no duty = not recoverable
what types of PPH give rise to duty
1) depends on type of injury
a) injury caused by sudden shock, and either
b) medically recognised psychiatric illness, or
c) shock induced physical condition (miscarriage or heart attack)
2) depends on type of victim
a) primary victim: was in the actual area of danger + reasonably believed they were in danger (risk of physical injury was foreseeable, even though psychiatric injury may not have been)
b) secondary victim: not involved but witnesses injury to someone else + fears for their safety (are in a loving and caring relationship)
-> foreseeability of PSYCHIATRIC harm, proximity of relationship, proximity in time and space, must percieve accident with their own senses
main differnce between 1a and 2nd victim in PPH
1 no need to foresee psychiatric harm (just physical)
2nd need to foresee psychiatric (+ satisfy all other factors of proximity of space, relationship, perception)
employer’s liability - what claim?
negligence - have duty of care
what’s employer’s duty of care
1) provide competent staff (knew or ought to have known of risks of exposing staff, didn’t train properly…)
2) provide adequate material (either failure to provide or providing bad quality plant and equipment)
3) not providing a proper system of work and supervision (devise + make sure its complied with it, particulalry relevant if employee makes known they’ve suffered stress + training, supervision, monitoring, taking disciplinary action against those who fail)
4) providing a safe place of work (Latimer case - was injury of stress reasonably foreseeable?) (consider signs given and nature and extent of work done)
–> cannot escape duty by delegating
what to be mindful about employers duty and breach of health and safety?
employer’s liability is a duty of care (negligence) - health and safety is a statutory breach
they’re not the same thing!! but statutory breach of health and safety might be helpful evidence to indicate breach of duty
defences available in tort
1) consent (full knowledge of NATURE and EXTENT of risk + willingly consented) (difficult to claim because relationship of parties usually comes in the way + knowledge of risk is not the same as consent)
2) illegality (very close connection)
3) contributory negligence: partial defence
test for contributory negligencea
1) did claimant fail to take reasonable care for their own safety (FAILURE)
2) did this failure contribute to the loss? (CAUSATION)
–> not about contributing to accident but to loss/damage (seatbelt)
–> need to consider agony of the moment
how to measure damages in tort
put claimant back in position would have been had loss not happened = mitigation of loss
** claimant has a duty to mitigate (eg lose their job = should still actively seek new job)
–> one action rule = court must award single lump sum to cover losses suffered and future losses
what’s the one action rule (damages)
court must award single lump sum to cover losses suffered and future losses
type of damages in tort
general
special
for PI:
pecuniary
non-pecuniary
example of non-pecuniary losses
- pain and suffering (past present and future mental anguish, stress, of surgery, of knowing life has been shortened)
–> subjective head = claimant must be aware of it = cannot claim under coma - loss of amenity (loss of enjoyment of life - not being able to do certain hobbies, marriage prospects, freedom, movement, smell)
–> objective test, so can recover even if they’re no conscious
pecuniary losses
1) medical expenses (obvi cant recover from free healthcare)
2) loss of earnings pre trial (net earnings for period = - tax, NI, contributions)
3) loss of earnings post trial (years of work x salary x inflation)
+ potentially lost years (if reduce life expectancy) but deducting amount they would have spent on themselves (usually 25% for married and 33% for no dependants)
4) services provided to claimant (eg a nurse - can be your wife if market rate)
5) loss of earnings capacity (continue to work but likely to suffer big disadvantage if you lose your job (satisfied of very high risk)) (THIS IS ONLY RELEVANT IF THEYRE STILL WORKING)
6) other pecuniary expenses (jewellery damaged, car,…)
7) deduct state benefits, redundancy pay (NOT: insurance, ill-health pension, charitable payments)
+ can make provisional payment
what damages can one claim on death?
The Law Reform (Miscellaneous Provisions) Act 1934
The Fatal Accidents Act 1976
The Law Reform (Miscellaneous Provisions) Act 1934
if claim. dies before receiving damages - allows claim to continue, PRs claiming on behalf (no defamation or bereavement damages)
damages awarded become part of estate
–> say you died instantly, can’t claim loss of amenity (because subjective)
The Fatal Accidents Act 1976
can claim up to date of death
its for dependants to claim
1) loss of dependance (for children ceases at 18, don’t consider inheritance might have received - must fall within class of dependants and be financially dependant)
2) bereavement (limited class)
3) funeral expenses (if paid by dependants)
who can claim dependance under 1976 Act
former spouse/CP, cohabitee living together for at least 2 years, parents, children, siblings
–> must have been financially dependant
who can claim for bereavement under the 1976 Act
statutory list - split damages if more than one (fixed at £15,120)
1) spouse
2) CP
3) parents (if deceased legitimate, unmarried and minor)
4) mother (deceased illegitimate, unmarried, minor)
5) cohabiting partners
CHILDREN CAN’T
vicariously liability requirements
1) worker must be employee (or in relationship akin = look at payment, contract, insurance?!, are in control?, who created risk)
2) must have committed a tort
3) in the course of employment
- frolic case: look at extent which they deviated from route and purpose of departure (geographical divergence and divergence from task)
doesnt matter if act is prohibited if either employer knew about it or if it further business
duty of care under OLA 1957
occupier must make sure that in all reasonable circumstances the VISITOR is reasonably safe using premise for the purpose in which they are permitted to be there
(about visitor safety, not about premise safety)
what are helpful factors to decide what is reasonably safe in OLA 1957
- type and nature of visitor
- nature of danger
- purpose of visit
- seriouness of injury
-cost and practicality of avoiding danger
-warning? - how long danger had been in premise
does a warning escape breach of OLA 1957
–> warning must be sufficient to keep visitor reasonably safe
depends on nature of warning (how SPECIFIC) and nature of danger (how obvious) and the type of visitor (can they understand the warning)
relationship between independent contractors and OLA 1957
1) did they entrust work to contractor
2) did they take steps to ensure they were competent
3) did they take steps to satisfy themselves work was properly done (if technical = discharged, something like stairts should check themselves)
