A4.2 Explain the criteria required to establish a successful civil action for breach of statutory duty and negligence, etc.

Question 1

What is a breach of statutory duty?

Answer 1

Apart from negligence, an injured person might sue under the tort of breach of statutory duty.

The following elements must be proven (on a balance of probabilities) to establish a successful claim:

• the statute must specifically confer a civil right of action for breach of a duty imposed by the statute
• the statutory duty was owed to that claimant
• the injury was of a type contemplated by the statute
• the defendant must be in breach of that duty
• the breach of statutory duty must have caused the injury

Question 2

What are the main defenses to claims of breach of statutory duty?

Answer 2

• statute barred -
  Eg. the opportunity by the claimant for a civil claim has run out of time because the time limit has been exceed. eg 3 years
• no breach of duty-
  the defendant must be in breach of the duty of care they owe to the claimant be being careless or negligent.

- duty was not owed - 
the claimant did not fall within the class of persons that the statute was intended to protect

• harm not covered by statute-
  the injury suffered was not a type contemplated by the statute
• breach did not cause loss -
  no casual connection between the breach of statutory duty and the loss suffered by the claimant. or the breach did not result in loss to the claimant.
• contributory negligence -
  may be described as a partial defence
  eg partly fault of the defendant and partly carelessness of the claimant

Question 3

What are the main defenses to claims of negligence?

Answer 3

• Denial -
  denying it ever occurred
• no duty owed -
  this defense is based on the principle that there was no duty owed to the injured party
• no breach of duty-
  the defendant must have been careless or negligent. If there is no breach, the action must fail.
• breach did not lead to the damage -
  no direct connection between the breach and the damage/injury occurred
• type of damage was not foreseeable -
  the kind of damage must be reasonably foreseeable,
• Volenti non fit injuria -
  if someone has consented to the infliction of an act
  eg. boxing
• Contributory negligence -
  described as a partial defense. if any harm sustained is party both parties fault.
  the effect is to reduce the amount of damages awarded.
• time limitation -
  in injury and fatal accidents, the time limit is 3 years. This is easy for accidents as its clear cut. However, not easy for ill health issues arising from work.
  ‘date of knowledge’ is important here to determine when the parties knew of the substance for example.
  eg. asbestos symptoms may show in victims some years after exposure.

Question 4

What are the two kinds of damages?

Answer 4

• GENERAL DAMAGES -
  eg damages for pain and suffering, loss of employment, loss of life. These follow from a negligent act which has caused personal injury. Level of compensation awarded usually based on similar previous cases.

-SPECIAL DAMAGES -
arise from special facts of the case. eg. travel expenses to and from hospital, private medical costs. These can be relatively easy quantified.

Question 5

What is the Civil procedure rules 1999 and what does it aim to achieve?

Answer 5

• prior to 1999 rules, prospective claimants were often deterred from starting an action, due to costs and possible delaying tactics of defendants.

The rules give the genuine claimant a better chance of achieving justice at a reasonable cost and within a an acceptable period.

It is also makes it more difficult for a speculative claimant to make any progress.

• to achieve the aims mentioned above, the management of the case shifted from litigants (persons involved in the lawsuit) to the courts.
• They aim to ensure both parties are on equal footing
• they aim to save expenses
• dealing with cases proportionately
• ensuring it is dealt with quickly and fairly

To encourage early settlement

Question 6

what is the personal injury pre-action protocol outlined in the rules?

Answer 6

To encourage early settlement, a number of pre-action protocols are used which must be followed, otherwise the courts may impose sanctions. It has been designed for injuries at work such as slips, trips and road traffic accidents.

1. LETTER OF CLAIM
   - claimant sends letter dealing with summary of the facts, nature of injuries, requests details of the insurer
2. DEFENDANTS REPLY
   - defendant should reply within 21 days, identifying the insurer (if any)
3. INVESTIGATION
   - the defendant has up to 3 months to investigate and respond.
   they may admit or deny liability.
   During this time the parties involved are encouraged to enter into discussions and ideally settle before starting proceedings.
4. PROCEEDINGS
   - If parties do not settle, civil action may begin.