week 9 - tort of negligence Flashcards
what is tort law?
a branch of civil law that deals with civil wrongs where an innocent party suffers loss or harm.
some actions can be both criminal + tort law eg a drunk driver injuring a pedestrian.
how does tort law work?
the defendant is sued by the claimant in the county court or high court. if found liable the defendant will have to pay compensation to the claimant.
what is meant by the law of torts?
duties owed to persons in various circumstances eg by law all uk drivers owe a duty of care to all other road users.
what is the tort of negligence?
a civil wrong where someone fails to exercise the standard of care that a reasonable person would in similar circumstances, resulting in harm or loss to another due to negligence.
in order to succeed in a legal action, what 3 things does the claimant have to prove?
- the defendant owed the claimant a duty of care.
- the defendant breached that duty of care.
- reasonably foreseeable damage was caused by the breach
what is meant by reasonably foreseeable?
this means that a reasonable person in the same situation should have anticipated the potential harm or damage that resulted from their actions, particularly in relations to negligence and liability.
what is the neighbour principle?
one must take reasonable care to avoid acts or omissions that could reasonably foreseen as likely to injure one’s neighbour.
determines whether a duty of care was owed for a loss caused by negligence.
every person owes a duty of care to their neighbour.
what is meant by a neighbour?
somebody that a person could reasonably foresee would be injured by their acts or omissions.
what case is an example of where the manufacturer owed a duty of care?
Donoghue v stevenson (1932)
The claimant brought a bottle of soft drink which unknowingly contained a dead snail, she fell ill + sued the manufacturer.
Decision: even though her contract was with the cafe that sold her the bottle, the manufacturer owed her a duty of care as it was foreseeable that failure to ensure the product’s safety would harm the end customer.
how can duty of care be established?
can be established by existing case law.
if not the 3 stage test can determine this.
what are the parts of the 3 stage test?
- the harm or loss must be reasonably foreseeable.
- there must be proximity between the claimant + the defendant for duty to be imposed.
- it must be fair, just and reasonable to impose a duty on the defendant.
what case is an example of proximity not being sufficient in regard to losses incurred?
Caparo industries v dickman (1990)
Claimants owned shares in fidelity plc, were considering a takeover bid, defendant prepared the audited accounts for fidelity which the claimants were relying upon to consider their takeover bid.
The accounts were inaccurate, the claimants sued the auditors for the losses incurred.
Decision: auditors owed no duty to the public at large, nor to shareholders relying on the accounts to purchase further shares. Eg the proximity between the claimant + defendant was not sufficient in regards to the losses incurred.
what case is an example of where the court rules in favour of the claimants as the company owed them a duty of care?
Margerson v jw roberts ltd (1996)
Margereson developed mesothelioma from childhood exposure to asbestos dust released by jw roberts factory in leeds. It contaminated the area around where children played.
Decision: the court ruled in favour of the claimants as the company owed a duty of care to the local residents, the exposure was foreseeable and the company was negligent for failing to prevent the release of asbestos.
what case is an example of where a duty of care was not owed to the claimant?
Evans v triplex glass (1936)
Mr Evans bought a vauxhall car with a windscreen manufactured by triplex but fitted by vauxhall. Mr Evans sued Triplex when the windscreen shattered, injuring him + family.
Decision: triplex did not owe Mr Evans a duty of care because there was not enough proximity between the windscreen leaving triplex control + the accident.
what case is an example of where the police do not owe a duty of care towards the public?
Hill v chief constable of west yorkshire (1989)
The claimant was the mother of 1 of Peter Sutcliffe’s last murder victims. She claimed damages for negligence due to the police force failing to prevent her daughter from being murdered.
Decision: generally, the police do not owe a duty of care towards individual members of the public unless their actions increase the risk towards an individual.
what is meant by pure economic loss?
where a claimant suffers a financial loss but not for reasons due to any injury they suffer or damage to their property. Usually a duty of care is not imposed + damages cannot be recovered.
what case is an example of a pure economic loss?
Waller v foot + mouth RI (1966)
Defendant negligently let a cattle virus escape from their lab, resulting in movement of cattle was highly restricted. The claimant was an auctioneer of cattle, unable to hold auctions during this time.
Decision: because this was a pure economic loss, no damages could be recovered from the defendant.
what is meant by a standard of care?
the level of caution + diligence that a reasonable person would exercise in a given situation to prevent harm or damage to others.
an objective test/benchmark to determine if someone has acted negligently.
what are 2 examples of standard of care?
- the defendant must act with the degree of care + skill expected from a reasonable person.
- a learner driver will still owe the same standard of care to his passengers + road users as every other driver, lack of experience is not taken into account.
what is a question to ask if a defendant did breach the duty of care?
did the defendant act with the degree of care + skill expected from the reasonable person (or competent professional)?
what factors need to be taken into account if a defendant did breach the duty of care?
- what was the likelihood of harm being caused to the claimant?
- what was the potential seriousness of harm?
- how reasonable/practical was it to take precautions (including cost of doing so)?
- was there an emergency situation? What was the social usefulness of the defendant’s action?
what occurs when the claimant has suffered loss as a result of the breach of duty?
- must be a causal link between the breach of duty + the damage suffered.
- negligence needed to have caused the injury or loss sustained.
- if claimant partially contributed to own loss, this will be taken into account by the court (the duty to mitigate can still apply).
what is meant by the eggshell skull principle?
the defendant must “take the victim as they find them”.
a defendant is liable for the full extent of the harm caused to the victim even if the victim suffers greater injury because they have a susceptibility or weakness. eg a weak heart.
what is meant by psychiatric injury (nervous shock)?
a mental or psychological illness caused/triggered by witnessing or experiencing a traumatic event due to someone else’s negligence.
