🚑Tort: Negligence, defences, PSH, PEL, employers liability

Question 1

What is the legal definition of negligence

Answer 1

A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant

Question 2

Elements of Negligence

Answer 2

1. Duty of care
2. Breach of duty
3. Causation
4. Damages

Question 3

Duty: 8 examples of established duty of care

Answer 3

Dr/patient
Parent/child
Road users/other road users
Driver/passenger
Employer/Employee
Manufacturer/consumer
Teacher/pupil
Tutor/tutee

Question 4

Duty: Test for novel duty of care

Answer 4

Caparo test:

1. Reasonable foresight of some harm to claimant (C a foreseeable victim)
2. Sufficient proximity of relationship
3. It is fair, just and reasonable to impose a duty

Question 5

Duty: Proximity of relationship: Where might there not be a duty of care owed

Answer 5

• caused by omission to act
• PEl/PSH

Question 6

Duty: What 5 policy factors may the court consider when deciding if its ‘fair, just and reasonable’ to impose a DoC?

Answer 6

• Floodgates
• Deterrence
• Resources
• Public benefit
• Upholding the law

Question 7

Duty: is there liability for omissions

Answer 7

No, EXCEPT
1.statutory duty
2.contractural duty (employment)
3. special relationship (eg. parent/child)
4. duty not to make situation worse
5. where person has positive duty to exercise control over 3rd party

Question 8

Duty: Do public bodies owe a duty of care?

Answer 8

NOT to all individuals but can do public at large UNLESS
□ if police failure to apprehend a criminal created an exceptional risk, different from the risk to the public at large
□ OR when the police take someone into custody, they assume responsibility

Question 9

Breach: Elements of breach of duty

Answer 9

1. Question of law: What standard of care was the D expected to reach?
2. Question of fact: did the defendants conduct fall below the required standard?

Question 10

Breach: Tests for what standard of care defendant was expected to reach

Answer 10

-Reasonable person test
OR modified tests:
-Skilled defendant
-Child defendant

Question 11

Breach: what standard will a child be expected to reach?

Answer 11

a reasonable child of their age

Question 12

Breach: What does a reasonable dr have a duty to do?

Answer 12

Advise of:
1. alternative treatments
2. AND any material risk of harm arising from the recommended treatment ( A risk is material if the reasonable person would consider it so)

Question 13

Breach: What standard will an inexperienced driver/Jr dr be expected to reach

Answer 13

no allowance made, same as normal dr/driver

Question 14

Breach: How do courts determine if the Ds conduct fall below required standard of care ?

Answer 14

RISK:
-Magnitude/likelihood of risk
-Defendant to guard against ‘reasonable’ not ‘fantastic’(unexpected) possibilities

REASONABLE PRECAUTIONS
-Cost/practicality of precautions in relation to risk of harm
-Common precautions
-Current state of knowledge of defendant?
-Ds purpose (value of Ds activity to society)

Question 15

Breach: How do the courts decide if a professional breached their duty?

Answer 15

• Did D act in accordance with a practice accepted as proper by a responsible body of professionals? (Bolam)
• BUT in some cases, it cannot be demonstrated that the body of opinion referred to in the evidence isreasonable or responsible (Bolitho)

Question 16

Breach: Is lack of resources a relevant excuse for breaching a duty of care?

Answer 16

No

Question 17

Breach: To what standard must breach of duty be proved?

Answer 17

Claimant must prove breach of duty on balance of probabilities

Question 18

What is res ipsa loquitur? (breach)

Answer 18

“The thing speaks for itself” =can infer negligence from breach where:
1. damage under control of D
2. AND accident wouldnt happen without negligence
3. AND cause of accident unknown

D must then show how accident would have been caused without negligence by:
1. Show how it actually happened and this wasn’t due to their negligence
2. OR if they cant, show they used all reasonable care at all times

Question 19

Causation: what are the elements of causation?

Answer 19

1. Causation in fact
2. Chain of causation broken by intervening act?
3. Damage too remote? (The Wagon Mound)

Question 20

Causation: How is factual causation normally established?

Answer 20

BUT FOR THE defendants breach of duty, would the harm to the claimant have occurred?

Question 21

Causation: Modified tests for causation

Answer 21

-Material contribution approach (multiple causes)

-Material increase in risk (cases of scientific uncertainty)

Question 22

Causation: General rule for divisible vs indivisible injury

Answer 22

Divisible: Damagers apportioned accordingly

Indivisible: Contribution between tortfeasors:
anyone liable for damage suffered by another may recover a contribution from anyone else liable for the same damage.

Question 23

Causation: What is a novus actus interveniens?

Answer 23

an intervening act that breaks the chain of causation

Question 24

Causation: what actions of a third party WILL/WONT break the chain of causation?

Answer 24

WILL
* Intentional intervention
* Reckless intervention
* Grossly negligent medical treatment which is a completely inappropriate rection to Cs injury

WONT
* Instinctive interventions
* Negligent intervention if its foreseeable consequence of defendants negligence (eg. negligent medical treatment)

Question 25

Causation: When will the claimants actions break the chain of causation?

Answer 25

if entirely unreasonable in all the circumstances

Question 26

Causation: Test for remoteness of damage

Answer 26

The Wagon Mound Test: reasonable foreseeability-would a reasonable person have foreseen the damage/harm

Question 27

Causation: What is the 'similar in type' and 'egg-shell skull' (remoteness of damage)

Answer 27

Similar in type: if claimant suffers a type of foreseeable injury/damage, doesn't matter the precise way claimant was injured wasn't foreseeable Egg shell skull: Take your victim as you find them: Once the type of damage is deemed foreseeable the extent of it does not have to be

Question 28

What are the defences to negligence?

Answer 28

1. Voluntary assumption of risk (volenti non fit injuria)/consent 2. Illegality 3. Excluding liability 4. contributory negligence

Question 29

What defences CANT be relied on by a driver in claims against them by their passengers?

Answer 29

* Consent/Volenti * CAN rely on contributory negligence

Question 30

Defences: Elements of consent

Answer 30

1. Claimant had full knowledge of the nature/extent of risk. AND 2. Claimant willingly consented to accept the risk of being injured due to the defendant's negligence

Question 31

3 exceptions to the defence of consent/volenti?

Answer 31

□ **Employees**-have no choice to carry out dangerous tasks □ **Rescuers** if: 1. rescuing person endangered by D negligence 2. under social/legal duty 3. conduct reasonable, natural and probable in all circumstances □ **Passenger to drunk driver**

Question 32

When wont rescuers have consented to the risk of injury?

Answer 32

1. Rescuing person endangered by D negligence 2. under social/legal duty, 3. conduct reasonable, natural and probable in all circumstances

Question 33

Defences: When will the illegality defence apply?

Answer 33

Where harm a result of an inherent part of (joint) criminal enterprise

Question 34

When does the defence of illegality not apply?

Answer 34

Caselaw has est that illegality cannot be relied upon where a trespasser is bringing a claim under the Occupiers’ Liability Act 1984.

Question 35

What does the defence of exclusion of liability apply to?

Answer 35

□ PEL □ Occupiers liability to visitors (probs NOT trespassers) □ Product liability-common law negligence claim (NOT consumer protection act)

Question 36

# 3 Requirements to rely on an exclusion notice?

Answer 36

1) Reasonable steps must have been taken to bring it to Cs attention BEFORE the tort was committed. 2) Wording of the notice must cover the loss suffered by the C. 3) Its fair and 'reasonable' to allow reliance on the exclusion notice having regard to all the circumstances

Question 37

Defences: What cant liability for negligence be excluded for?

Answer 37

Negligence that causes personal injury/death

Question 38

Factors to consider when deciding if an exclusion notice is reasonable?

Answer 38

1. Parties of equal bargaining power? 2. For advice, was it reasonably practicable to obtain advice from other source, considering cost/time 3. How difficult is task liability is being excluded for? 4. What are the practical consequences taking into acc the sums of money at stake/the ability of the parties to bear the loss involved, particularly in light of insurance

Question 39

How can businesses/traders exclude liability?

Answer 39

UCTA & Consumer Rights Act 2016

Question 40

What happens if a disclaimer isnt bought to the claimant attention?

Answer 40

Defendant cant use exclusion of liability as a defence

Question 41

Elements of Contributory Negligence

Answer 41

1. carelessness on claimants part (reasonable person test) 2. which contributed to claimants damage

Question 42

Effect of contributory negligence

Answer 42

Damages will 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. Court will consider: 1. **Culpability**: relative blameworthiness of the parties; 2. **Causation**: extent to which the claimant’s carelessness has caused or contributed to the loss suffered.

Question 43

When wont contributory negligence stand as a defence?

Answer 43

claimant act in 'agony of moment'

Question 44

(Contributory Negligence) what standard will rescuers be judged against/found contributorly negligent?

Answer 44

A reasonable rescuer-contributory neg only found if rescuer shown 'wholly unreasonable disregard for his/her own safety'

Question 45

(Contributory Negligence) what standard will children be judged against?

Answer 45

a reasonable child their own age-the older the child more likely a finding of contributory negligence

Question 46

How do seatbelts affect damages in Contributory Negligence

Answer 46

25%- Cs injuries would have been avoided. 15%-injuries less severe 0%-no difference

Question 47

How do crash helmets affect damages in Contributory Negligence

Answer 47

same as seat belts: 25%- Cs injuries would have been avoided. 15%-injuries less severe 0%-no difference

Question 48

How does the driver being drunk affect contributory negligence?

Answer 48

If passengers knows driver is drunk, passanger may be contributorlily negligent if injured in an accident caused by the driver's intoxicated state

Question 49

What DOC do independent contractors owe?

Answer 49

Owe a duty to take reasonable care to avoid harm to those who can reasonably be expected to be affected by their work

Question 50

When is PEL recoverable?

Answer 50

**1. Assumption of responsibility by D**? * D knew why advice was required * knew advice would be communicated to C * knew C would likely act on advice without independent inquiry * C acted to their detriment **2. Was it reasonable for C to rely on advice?**

Question 51

Examples of PEL

Answer 51

1. Economic loss caused by acquiring a defective item of property 2. Economic loss caused by damage to the property of a 3rd party 3. Economic loss where theres no PI or physical property damage

Question 52

When is PSH recoverable?

Answer 52

1. Harm is caused by a sudden shock 2. AND is a medically recognised psychiatric condition or shock induced physical condition 3. C is primary or secondary victim

Question 53

PSH: what is a primary victim?

Answer 53

i. Was in actual area of danger ii. OR reasonably believed they were in danger (was risk of physical injury was foreseeable?)

Question 54

PSH: what is a secondary victim and when will they be owed a DOC?

Answer 54

1) Witnesses injury to someone else 2) OR fears for the safety of another Owed DoC: 1. Reasonably foreseeable that person of normal fortitude in Cs position would suffer psychiatric illness? 2. Proximity of relationship?-close relationship of love/affection (rebuttable presumption for parents/spouses) 3. Proximity time/space? Present at accident/immediate aftermath 4. Proximity of perception?-See/hear accident/immediate aftermath with own senses

Question 55

PSH: is 2h after the birth of a child the 'immediate aftermath'?

Answer 55

Yes

Question 56

# 3 Employers L: type of duty owed to employees by employers

Answer 56

1. Established 2. Non-delegable duty (ie. 'personal to the employer') 3. To each individual employee(= If an employee has a specific problem the employer must take this into account).

Question 57

What is the meaning of the fact that an employer’s duty to its employees is personal and non-delegable?

Answer 57

Employer can delegate tasks but is held legally responsible when a contractor it employed is negligent.

Question 58

Can breaches of statutory duty be relied on by employees for a claim against an employer?

Answer 58

No but can be used to prove breach

Question 59

Specifically, what do employers owe their employees a duty to provide?

Answer 59

1. Competent fellow staff 2. Adequate plant/equipment 3. Provide and maintain a proper system of work and supervision 4. Safe place of work

Question 60

When will employers have breached their duty to provide a safe system of work via imposition of stress?

Answer 60

Threshold q: was stress reasonably foreseeable? Consider: 1. Nature/extent of work done 2. Signs from the employees themselves Refinements: a) Duty only imposed where employee foreseeably vulnerable to stress b) No specific job that automatically gives rise to inevitability of extreme stress c) Employer that take reasonable steps not in breach (eg. Free counselling)

Question 61

Employers L: what do employers need to consider when providing competent fellow workers

Answer 61

1. Selection of staff 2. Training so staff can do their job 3. Provision of supervision 4. Dismissal of employees that pose a risk 5. Employer liable for pranks played by fellow workman, even if they’ve told them to stop on multiple occasions

Question 62

Employers L: what does the duty to provide adequate plant and equipment cover?

Answer 62

1. Where an employer does provide equipment but it is inadequate in some way. (For these purposes ‘equipment’ covers anything provided by an employer for the purposes of its business.) 2. Where an employer does not supply all the plant/equipment needed for the job.

Question 63

Employers L: can an employer be liable if the equipment is defective?

Answer 63

Yes, injured employee must est: 1. fault on the part of the third party (usually the manufacturer) 2. causation

Question 64

Employers L: what does the duty to provide proper system of work and supervision include?

Answer 64

eg. Training, supervision, monitoring operation, disciplinary action). Must also MAINTAIN safe system of work

Question 65

Employers L: what does safe place of work include?

Answer 65

Duty applies regardless of where the employees are at work (not just 'occupiers'

Question 66

Employers L: elements of breach

Answer 66

Will be in breach if failed to meet the standard of care to be expected of a reasonable employer in its position. They must take reasonable steps to care for employees safety.

Question 67

Employers L: factors to consider for breach

Answer 67

1. How likely is it that injury will result from the employers’ acts or omissions? 2. How serious would such injury be likely to be? 3. How easy would it have been for the employer to have taken precautions which would have avoided the injury? 4. Did the social utility of the employer’s activity justify taking the risks that resulted in the injury?

Question 68

Employers L: causation

Answer 68

Normal: i. Factual causation: But for (Barnett) OR modified test : Material contribution approach : in multiple cause case, breach of duty doesn’t have to be only or main cause, only materially contribute ii. Intervening acts? iii. Remoteness? (Wagon mound reasonable foreseeability)

Question 69

Employers L: which defence rarely succeeds and why?

Answer 69

Volenti (voluntary assumption of risk) because: □ Employee is obliged to work where his or her talents lie. □ Even when the employee may know that his line of work is dangerous, he or she is not taken to be truly willing to accept the risk that his or her employer will act negligently.

Question 70

Employers L: other defences

Answer 70

Contributory negligence ALSO: employees were sometimes compelled to perform repetitive dull tasks. In such circumstances, errors were understandable and would not amount to contributory negligence.