Authorities Flashcards
Trespass to the Person > Steps
Step 1: State, ‘The claimant may sue the defendant in tort of trespass to the person for [insert conduct from facts]
Step 2: Define relevant tort, assault or battery
Step 3: Consider what defences are available to the defendant
Trespass to the Person > Step 1 > State?
‘The claimant may sue the defendant in tort of trespass to the person for [insert conduct from facts]
Trespass to the Person > Step 1 > Assault and Battery
Both assault and battery are actionable per se, so there is no need to prove the physical harm
Assault > Define
An intentional act by the defendant causing the claimant to reasonably apprehend the immediate infliction of unlawful force
Assault > Intentional Act > Letang v Cooper
Intentional conduct is essential, if not, relevant tort is negligence
Assault > Intentional Act > Intentional conduct is essential, if not, relevant tort is negligence
Letang v Cooper
Assault > Intentional Act > R v Ireland
Words, as well as actions, may constitute an assault. ‘A thing said is a thing done.’
Assault > Intentional Act > Words, as well as actions, may constitute an assault. ‘A thing said is a thing done.’
R v Ireland
Assault > Intentional Act > Tuberville v Savage
However, words may also negate an assault, e.g. ‘if we weren’t being watched…’
Assault > Intentional Act > However, words may also negate an assault, e.g. ‘if we weren’t being watched…’
Tuberville v Savage
Assault > Immediate > R v Ireland
Means within a minute or so
Assault > Immediate > Means within a minute or so
R v Ireland
Battery > Define
The intentional direct application of unlawful force to another person
Battery > Define > Wilson v Pringle
‘Intentional’: the defendant must intend his actions only, not the consequences.
Battery > Define > ‘Intentional’: the defendant must intend his actions only, not the consequences.
Wilson v Pringle
Battery > Define > Direct application of force
Force must flow almost immediately and without intervention. Physical contact is not necessary
Battery > Define > F v West Berkshire Health Authority
‘Unlawful force’: physical contact which is generally acceptable in the ordinary conduct of everyday life will not be unlawful
Battery > Define >
F v West Berkshire Health Authority
Trespass to the Person > Defences > List of defences
Consent
Defence of the person
Defence of property
Necessity
Trespass to the Person > Defences > Co-operative Group Ltd v Pritchard
Defendant cannot allege contributory negligence as a defence to claims for assault and battery
Trespass to the Person > Defences > Defendant cannot allege contributory negligence as a defence to claims for assault and battery
Co-operative Group Ltd v Pritchard
Trespass to the Person > Defences > Consent
May be implied or express consent
Trespass to the Person > Defences > Consent > Chatterson v Gerson
Medical cases – a patient is deemed to have consented to a medical treatment once informed in broad terms of the nature of procedure intended
Trespass to the Person > Defences > Consent > Medical cases – a patient is deemed to have consented to a medical treatment once informed in broad terms of the nature of procedure intended
Chatterson v Gerson
Trespass to the Person > Defences > Consent > Chester v Afshar
Medical cases – a doctor’s failure to disclose risks will NOT invalidate the patient’s consent
Trespass to the Person > Defences > Consent > Medical cases – a doctor’s failure to disclose risks will NOT invalidate the patient’s consent
Chester v Afshar
Trespass to the Person > Defences > Consent > Condon v Basi
A sports competitor consents not only to all conduct within the rules of the sport, but also, the conduct outside the rules, but within the spirit of the sport
Trespass to the Person > Defences > Consent > A sports competitor consents not only to all conduct within the rules of the sport, but also, the conduct outside the rules, but within the spirit of the sport
Condon v Basi
Trespass to the Person > Defences > Defence of the Person > Cockroft v Smith
The defendant must establish that the force was:
(a) used in self-defence
(b) reasonable; and
(c) proportionate to the force used/threatened by the claimant
Trespass to the Person > Defences > Defence of the Person >
The defendant must establish that the force was:
(a) used in self-defence
(b) reasonable; and
(c) proportionate to the force used/threatened by the claimant
Cockroft v Smith
Trespass to the Person > Defences > Defence of Property > 2 rules
(a) One may take reasonable steps to defend one’s property
b) This includes taking reasonable steps to eject a trespasser (which might mean first asking trespasser to leave
Trespass to the Person > Defences > Defence of Property > Green v Goddard
(b) This includes taking reasonable steps to eject a trespasser (which might mean first asking trespasser to leave)
Trespass to the Person > Defences > Defence of Property >
b) This includes taking reasonable steps to eject a trespasser (which might mean first asking trespasser to leave
Green v Goddard
Trespass to the Person > Defences > Necessity > What must the defendant show?
(a) the defendant must show that:
1. that a situation of necessity existed, and
2. that his actions were reasonable
Trespass to the Person > Defences > Necessity > F v West Berkshire Health Authority
Identified two situations where defence of necessity could justify treating an adult medically without consent:
i. An emergency situation where patient is unconscious
ii. a state of affairs (e.g. stroke) rendering patient incapable of giving consent.
Trespass to the Person > Defences > Necessity > Identified two situations where defence of necessity could justify treating an adult medically without consent:
i. An emergency situation where patient is unconscious
ii. a state of affairs (e.g. stroke) rendering patient incapable of giving consent.
F v West Berkshire Health Authority
Trespass to the Person > Defences > Necessity > 2 situations identified without consent
F v West Berkshire Health Authority
Identified two situations where defence of necessity could justify treating an adult medically without consent:
i. An emergency situation where patient is unconscious
ii. a state of affairs (e.g. stroke) rendering patient incapable of giving consent.
Tort under the Rule in Wilkinson v Downtown > Rule
Only consider this rule if assault and battery are ruled out
Tort under the Rule in Wilkinson v Downtown
Established a separate tort, in cases where the defendant intends to cause shock to the claimant, who suffers tangible damage as a result.
What is the alternative tort to assault or battery?
Wilkinson v Downtown Established a separate tort, in cases where the defendant intends to cause shock to the claimant, who suffers tangible damage as a result.
Tort under the Rule in Wilkinson v Downtown > Rhodes v OPO
Reformulated Wilkinson v Downtown to comprise the following elements:
• Conduct requiring words or conduct directed at the claimant for which there was no justification or excuse
• An intention to cause at least severe mental or emotional distress and
• Cause physical harm or recognised psychiatric illness
Tort under the Rule in Wilkinson v Downtown > Causation
Not actionable per se, must cause damage
Defamation (Essay Only) > Steps
Intro
- State claimant may sue defendant for damages in the tort of defamation for [insert conduct from the facts]
- Consider whether the elements of defamation are present
- Consider what defences are available
Defamation > Libel
Defamation in permanent form (actionable per se);
Defamation > Slander
Defamation in transient or temporary form (requires loss)
Defamation > Defamation Act 2013
Consider the changes this bought into force, particularly ss.1 and 8
Defamation > Defamation Act 2013 > s.1
Serious harm
- A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
- For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
Defamation > Defamation Act 2013 > s.8
Single publication rule
- This section applies if a person—
a. publishes a statement to the public (“the first publication”), and
b. subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same. - In subsection (1) “publication to the public” includes publication to a section of the public.
Defamation > Defamation Act 2013 > pursuant to s.1…
Pursuant to s.1, a statement will be defamatory if its publication has or is likely to cause serious harm to the claimant’s reputation (this rules out trivial claims)
Defamation > Defamation Act 2013 > Difference between Libel and Slander
Defamation in the form of libel is actionable per se – the claimant does not need to show tangible loss.
Defamation > 2. Elements of defamation
- Defendants words are defamatory
- The words are to REFER TO the claimant
- The words have been published
- Defendants words are defamatory. Words will be defamatory if: > Sim v Stretch
They lower the claimant in the eyes of right-thinking members of society;
- Defendants words are defamatory. Words will be defamatory if: > They lower the claimant in the eyes of right-thinking members of society;
Sim v Stretch
- Defendants words are defamatory. Words will be defamatory if: > Youssoupoff v MGM
They cause the claimant to be shunned/avoided;
- Defendants words are defamatory. Words will be defamatory if: > They cause the claimant to be shunned/avoided;
Youssoupoff v MGM
- Defendants words are defamatory. Words will be defamatory if: > Parmiter v Coupland
The expose the claimant to hatred/contempt/ridicule
- Defendants words are defamatory. Words will be defamatory if: > The expose the claimant to hatred/contempt/ridicule
Parmiter v Coupland
Defamation > 2. The words are to REFER TO the claimant. Where the claimant is not named, the relevant test is: > J’Anson v Stewart
Whether the description is so detailed, and the resemblance so strong, that a reasonable person who knew the claimant would assume the article is about him (intention not required)
Defamation > 2. The words are to REFER TO the claimant. Where the claimant is not named, the relevant test is: Whether the description is so detailed, and the resemblance so strong, that a reasonable person who knew the claimant would assume the article is about him (intention not required) > Authority?
J’Anson v Stewart
Defamation > 3. The words have been published
i.e. communication to a third party
Defamation > Step 3. Defences > List
Truth
Fair Comment
Qualified Privilege
Defamation > Step 3. Defences > Truth > s.2 Defamation Act 2013
The defendant has a complete defence if his statement is factual, and the facts are substantially true
Defamation > Step 3. Defences > Truth > The defendant has a complete defence if his statement is factual, and the facts are substantially true
s.2 Defamation Act 2013
Defamation > Step 3. Defences > Fair Comment > 2 factors
(a) an EXPRESSION of OPINION (rather than fact), as set out in s.3
(b) On a matter of PUBLIC INTEREST
Defamation > Step 3. Defences > Fair Comment > (a) an EXPRESSION of OPINION (rather than fact), as set out in s.3
Defamation Act 2013. In particular, the statement will have to fulfil the following conditions:
- The statement was a statement of opinion
- The statement set out the basis of the opinion expressed therein; and
- An honest person could have held the opinion on the basis of:
i. Any fact which existed at the time the statement complained of was published
ii. Anything asserted to be a fact in a privileged statement published before the statement complained of
Defamation > Step 3. Defences > Fair Comment > Note
This defence will be defeated if the claimant is able to show that the defendant did not hold the opinion.
Defamation > Step 3. Defences > Fair Comment > s.3(6) Defamation Act 2013
Pursuant to s.3(6) Entities reproducing someone else’s statement (for instance a newspaper publishing a letter from a reader) would only be liable if the claimant is able to show that the publisher knew that the author of the statement did not hold the opinion expressed.
Defamation > Step 3. Defences > Fair Comment > Entities reproducing someone else’s statement would only be liable if the claimant is able to show that the publisher knew that the author of the statement did not hold the opinion expressed.
s.3(6) Defamation Act 2013
Defamation > Step 3. Defences > Fair Comment > s.4 Defamation Act 2013
(b) On a matter of PUBLIC INTEREST – a defendant has a valid defence against an action for defamation for both statements of facts and statements of opinion if he can show that:
1. the statement complained of was on a matter of public interest; and
2. the defendant reasonably believed that publishing the statement complained of was in the public interest
Defamation > Step 3. Defences > Fair Comment > (b) On a matter of PUBLIC INTEREST – a defendant has a valid defence against an action for defamation for both statements of facts and statements of opinion
s.4 Defamation Act 2013
Defamation > Step 3. Defences > Fair Comment > under s4 Defamation Act 2013 what must the defendant show to prove it is a matter of public interest?
- the statement complained of was on a matter of public interest; and
- the defendant reasonably believed that publishing the statement complained of was in the public interest
Defamation > Step 3. Defences > Fair Comment > Moreover, under s.4 Defamation Act 2013
Moreover, under Section 4, the court must:
i. have regard to all circumstances of the case, and
ii. make allowances for editorial judgement when determining whether or not the defendant reasonably believed that publishing the statement complained of was in the public interest
Defamation > Step 3. Defences > Qualified Privilege
Applies to statements of both fact and opinion
There is a defence where the maker of a statement has a duty (legal, moral or social) to make the statement, and the recipient has an interest in receiving the information.
This defence does not apply if the claimant can show that the defendant acted with malice and making the statement
Defamation > Step 3. Defences > Qualified Privilege > What does it apply to?
Applies to statements of both fact and opinion
Defamation > Step 3. Defences > Qualified Privilege > What is the defence?
There is a defence where the maker of a statement has a duty (legal, moral or social) to make the statement, and the recipient has an interest in receiving the information.
Defamation > Step 3. Defences > Qualified Privilege > When does it not apply?
This defence does not apply if the claimant can show that the defendant acted with malice and making the statement
Defamation > Missuse of Private Information > Following Campbell v MGM Ltd
The action for misuse of private information will succeed if the claimant can show the two conditions are satisfied:
- The information divulged must be private. this can be established by analysing whether the claimant had a reasonable expectation of privacy in relation to the information disclosed.
- There must not be a legitimate public interest in disclosure of the information. for example, there would be legitimate public interest in the disclosure of the private information if publication would
i. show that the claimant had previously lied on the matter disclosed
ii. that the claimant had engaged in illegal or iniquitous behaviour
iii. where it concerns political figures in their public role
Defamation > Misuse of Private Information > Following Campbell v MGM Ltd, contractual duty of confidence
If private information is divulged in breach of a confidential relationship (especially a contractual duty of confidence) then it is more likely that this tort has been committed.
Defamation > Misuse of Private Information Authority
Campbell v MGM Ltd
Negligence > Steps
- state - The claimant can consider suing the defendant for [insert harm] in the tort of negligence
- Consider whether the defendant owes the claimant a legal DUTY OF CARE
- Consider whether there has been a breach of that duty of care – apply two stage test.
- Causation – did the defendant’s breach of duty CAUSE the harm suffered by the claimant?
- Defences – consider whether the defendant can raise any defences
Negligence > 1. State?
State - The claimant can consider suing the defendant for [insert harm] in the tort of negligence
Claimant v Defendant [insert the relevant names]
Negligence > 1. State > Define Negligence
A breach by the defendant of a legal duty of care owed to the claimant that results in actionable damage to the claimant unintended by the defendant
Negligence > 1. State > 4 elements
For a negligence claim, run through the four elements: duty of care, breach, causation, defences
Negligence > 2. Legal Duty of Care > Established Duty Situations
(a) one road user to another
(b) teacher to pupil
(c) doctor to patient
(d) manufacturer to the ultimate consumer of the product
(e) defendant to RESCUER, where the defendant has created a dangerous situation so that it is reasonable that somebody will attempt to resuce
(f) Driver to pedestrians and passengers
(g) Referee to Sports Player
(h) Parent/adult in loco parentis to child
(i) Advocate to client
(j) In limited circumstances, ambulance service to emergency callers
Negligence > 2. Legal Duty of Care > Established Duty Situations > London Passenger Transport Board v Upson
(a) one road user to another
Negligence > 2. Legal Duty of Care > Established Duty Situations > (a) one road user to another
London Passenger Transport Board v Upson
Negligence > 2. Legal Duty of Care > Established Duty Situations > Baker v Hopkins
(e) defendant to RESCUER, where the defendant has created a dangerous situation so that it is reasonable that somebody will attempt to rescue
Negligence > 2. Legal Duty of Care > Established Duty Situations > (e) defendant to RESCUER, where the defendant has created a dangerous situation so that it is reasonable that somebody will attempt to rescue
Baker v Hopkins
Negligence > 2. Legal Duty of Care > Established Duty Situations > Nettleship v Weston
(f) Driver to pedestrians and passengers
Negligence > 2. Legal Duty of Care > Established Duty Situations > (f) Driver to pedestrians and passengers
Nettleship v Weston
Negligence > 2. Legal Duty of Care > Established Duty Situations > Vowles v Evans
(g) Referee to Sports Player
Negligence > 2. Legal Duty of Care > Established Duty Situations > (g) Referee to Sports Player
Vowles v Evans
Negligence > 2. Legal Duty of Care > Established Duty Situations > Arthur J S Hall and Co. v Simmons
(i) Advocate to client
Negligence > 2. Legal Duty of Care > Established Duty Situations > (i) Advocate to client
Arthur J S Hall and Co. v Simmons
Negligence > 2. Legal Duty of Care > Established Duty Situations > Kent v Griffiths
(j) In limited circumstances, ambulance service to emergency callers
Negligence > 2. Legal Duty of Care > Established Duty Situations > (j) In limited circumstances, ambulance service to emergency callers
Kent v Griffiths
Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Mulcahy v Ministry of Defence
Soldier to Colleague
Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Soldier to Colleague
Mulcahy v Ministry of Defence
Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Capital and Counties v Hampshire County Council
Fire Service to Emergency Caller
Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Fire Service to Emergency Caller
Capital and Counties v Hampshire County Council
Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Morris
You can discharge your duty of care if you ask your supervisor for advice.
Negligence > 2. Legal Duty of Care > NO Established Duty Situations > You can discharge your duty of care if you ask your supervisor for advice.
Morris
Negligence > 2. Legal Duty of Care > Police > Hill v Chief Constable of West Yorkshire
General Rule: Public policy driven – The Police do NOT owe A duty of care to individuals, only to the public at large.
Negligence > 2. Legal Duty of Care > Police > General Rule: Public policy driven – The Police do NOT owe A duty of care to individuals, only to the public at large.
Hill v Chief Constable of West Yorkshire
Negligence > 2. Legal Duty of Care > Police > Brooks and Osman
confirmed Hill’s General Rule: The Police do NOT owe A duty of care to individuals, only to the public at large.
Negligence > 2. Legal Duty of Care > Police > confirmed Hill’s General Rule: The Police do NOT owe A duty of care to individuals, only to the public at large.
Brooks and Osman
Negligence > 2. Legal Duty of Care > Police > Robinson v Chief Constable of West Yorkshire Police
However, in 2018 the Supreme Court held unanimously that was a misrepresentation of the law and there is no general rule that, in the prevention and investigation of the crime, the police are free from liability. the police owe a duty of care to avoid causing by a positive action foreseeable personal injury to another person
Negligence > 2. Legal Duty of Care > Police > However, in 2018 the Supreme Court held unanimously that was a misrepresentation of the law and there is no general rule that, in the prevention and investigation of the crime, the police are free from liability. the police owe a duty of care to avoid causing by a positive action foreseeable personal injury to another person
Robinson v Chief Constable of West Yorkshire Police
Negligence > 2. Legal Duty of Care > Police > Main Exception > Kirkman
Where the police have assumed responsibility for someone, or someone who’s been entrusted to their care the police owe a duty of care to that person
Negligence > 2. Legal Duty of Care > Police > Main Exception > Where the police have assumed responsibility for someone, or someone who’s been entrusted to their care the police owe a duty of care to that person
Kirkman
Negligence > 2. Legal Duty of Care > Police > Other Exceptions > Rigby
to take action with reasonable care
Negligence > 2. Legal Duty of Care > Police > Other Exceptions > to take action with reasonable care
Rigby
Negligence > 2. Legal Duty of Care > Police > Other Exceptions > Swinney
to keep the identity of informants safe
Negligence > 2. Legal Duty of Care > Police > Other Exceptions > to keep the identity of informants safe
Swinney
Negligence > 2. Legal Duty of Care > Police > Other Exceptions > The Worboys Case
HOWEVER, throws into doubt the established duty for police a test cases needed to fully interpret the decision.
Negligence > 2. Legal Duty of Care > Police > Other Exceptions > HOWEVER, throws into doubt the established duty for police a test cases needed to fully interpret the decision.
The Worboys Case
Negligence > 2. Legal Duty of Care > Novel Duty Situations > Steps
(a) Starting point (AKA the neighbour principle)
(b) explain how the Donoghue v Stevenson ratio was redefined in Caparo and apply the three part test for whether a duty of care is owed.
Negligence > 2. Legal Duty of Care > Novel Duty Situations > Donoghue v Stevenson
(a) Starting point (AKA the neighbour principle)
‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’
Negligence > 2. Legal Duty of Care > Novel Duty Situations > (a) Starting point (AKA the neighbour principle)
‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’
Donoghue v Stevenson
Negligence > 2. Legal Duty of Care > Novel Duty Situations > Caparo Industries plc v Dickman and others
i. Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant? (Bourhill v Young)
ii. is there sufficient proximity of relationship between the claimant and defendant?
iii. is it fair just and reasonable to impose a duty? E.g. it may not be fair if the defendant is a non-profit organization or acting in a quasi-public capacity (Marc Rich v Bishop Rock Marine Co)
Negligence > 2. Legal Duty of Care > Novel Duty Situations > i. Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant? (Bourhill v Young)
ii. is there sufficient proximity of relationship between the claimant and defendant?
iii. is it fair just and reasonable to impose a duty? E.g. it may not be fair if the defendant is a non-profit organization or acting in a quasi-public capacity (Marc Rich v Bishop Rock Marine Co)
Caparo Industries plc v Dickman and others
Negligence > 2. Legal Duty of Care > Novel Duty Situations > Bourhill v Young
Caparo:
i. Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant? (Bourhill v Young)
Negligence > 2. Legal Duty of Care > Novel Duty Situations > Caparo:
i. Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant?
Bourhill v Young
Negligence > 2. Legal Duty of Care > Novel Duty Situations >
Caparo:
iii. is it fair just and reasonable to impose a duty? E.g. it may not be fair if the defendant is a non-profit organization or acting in a quasi-public capacity
Marc Rich v Bishop Rock Marine Co
Negligence > 2. Legal Duty of Care > Novel Duty Situations >
Marc Rich v Bishop Rock Marine Co
Caparo:
iii. is it fair just and reasonable to impose a duty? E.g. it may not be fair if the defendant is a non-profit organization or acting in a quasi-public capacity
Negligence > 2. Legal Duty of Care > Novel Duty Situations > Robinson
[For extra points, note that] the court has confirmed in Robinson that where the courts have already determined that a duty exists it is unnecessary to accept to assess whether it should exist using the Caparo test. Caparo should be used as a framework to analyse whether it is fair and reasonable that a duty come into existence in law it will only be used where a novel situation arises and the law needs to develop (albeit in line with existing authorities.
Negligence > 2. Legal Duty of Care > Omissions > Stovin v Wise
General Rule: there is no liability for pure omissions, and you do not owe a duty to the world for doing nothing to prevent harm.
Negligence > 2. Legal Duty of Care > Omissions > General Rule: there is no liability for pure omissions, and you do not owe a duty to the world for doing nothing to prevent harm.
Stovin v Wise
Negligence > 2. Legal Duty of Care > Omissions > East Suffolk Rivers Catchment Board v Kent
This rule applies if you decide to act despite no duty to do so, even if you act carelessly – UNLESS you make matters worse
Negligence > 2. Legal Duty of Care > Omissions > This rule applies if you decide to act despite no duty to do so, even if you act carelessly – UNLESS you make matters worse
East Suffolk Rivers Catchment Board v Kent
Negligence > 2. Legal Duty of Care > Omissions > Exceptions > Home office v Dorset Yacht
There is a duty to act positively in some cases where a person has a special relationship of control over another (Smith v Littlewoods – but this duty does not extend to cover actions of third parties who are OUTSIDE the defendant’s control.)
Negligence > 2. Legal Duty of Care > Omissions > Exceptions > There is a duty to act positively in some cases where a person has a special relationship of control over another (Smith v Littlewoods – but this duty does not extend to cover actions of third parties who are OUTSIDE the defendant’s control.)
Home office v Dorset Yacht
Negligence > 2. Legal Duty of Care > Omissions > Exceptions > Smith v Littlewoods
this duty [to positively act] does not extend to cover actions of third parties who are OUTSIDE the defendant’s control
Negligence > 2. Legal Duty of Care > Omissions > Exceptions > this duty [to positively act] does not extend to cover actions of third parties who are OUTSIDE the defendant’s control
Smith v Littlewoods
Negligence > 3. Breach of Duty > 2. Stage Test
- How OUGHT the defendant have behaved? Identify the standards of care expected in the circumstances; a question of law.
- How did the defendant behave? Identify whether the defendant fell below the relevant standard of care; a question of fact.
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved?
(a) General Standard: standard of the REASONABLE PERSON
(b) Where the defendant is a PROFESSIONAL
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > Blyth v Birmingham Waterworks
(a)General Standard: standard of the REASONABLE PERSON
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON
Blyth v Birmingham Waterworks
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON > Glasgow Corp v Muir
i. This is an objective test
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON > i. This is an objective test
Glasgow Corp v Muir
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON > Roe v Ministry of Health
ii. The defendant’s conduct should be considered in relation to the state of knowledge at the time of the event only
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON > ii. The defendant’s conduct should be considered in relation to the state of knowledge at the time of the event only
Roe v Ministry of Health
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > Bolam v Friern Hospital Management Committee
(b) Where the defendant is a PROFESSIONAL: the standard of the defendant’s profession/ a reasonably competent professional in the circumstances.
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved >
(b) Where the defendant is a PROFESSIONAL
Bolam v Friern Hospital Management Committee
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > Bolam
i. The Courts will consider compliance with common practice in the relevant profession as strong evidence that the defendant is not negligent
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > i. The Courts will consider compliance with common practice in the relevant profession as strong evidence that the defendant is not negligent
Bolam
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > Bolitho
ii. BUT – the final decision whether a skilled defendant’s behaviour is reasonable is the court’s
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > the final decision whether a skilled defendant’s behaviour is reasonable is the court’s
Bolitho
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > Re the Herald of Free Enterprise
iii. Common practice won’t necessarily justify the taking risks, as the courts can reject ‘expert evidence’ and condemn commonly accepted practice as negligent
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > iii. Common practice won’t necessarily justify the taking risks, as the courts can reject ‘expert evidence’ and condemn commonly accepted practice as negligent
Re the Herald of Free Enterprise
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Nettleship v Weston
there is no allowance for inexperience
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > there is no allowance for inexperience
Nettleship v Weston
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Nettleship
E.g. care drivers must reach the standard of a reasonably competent driver, even if learners
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > E.g. care drivers must reach the standard of a reasonably competent driver, even if learners
Nettleship
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Mansfield v Weetabix
EXCEPTION: Where the defendant suffers from an unexpected disability
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > EXCEPTION: Where the defendant suffers from an unexpected disability
Mansfield v Weetabix
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Wilsher v Essex Area Health Authority
Rule also applies in cases of professional inexperience
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Rule also applies in cases of professional inexperience
Wilsher v Essex Area Health Authority
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Wells v Cooper
Rule applies for cases of Home DIY – requires certain level of expertise
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Rule applies for cases of Home DIY – requires certain level of expertise
Wells v Cooper
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > Mullin v Richards
(d) Where the defendant is a CHILD: reasonable child of the defendant’s age
Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (d) Where the defendant is a CHILD: reasonable child of the defendant’s age
Mullin v Richards
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave
Consider the following factors in deciding if there has been breached?
(a) If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.
(b) If there is a VERY SERIOUS HARM, one must take appropriate steps to mitigate
(c) Consider the COST AND PRACTICABILITY of solutions. If taking precautions would have been impracticable and incurred great expense, this may excuse the defendant for not doing so, provided the risk of harm is small.
(d) If the defendant’s actions are in the PUBLIC INTEREST/ have substantial social utility, this may justify the defendant’s taking greater risk
(e) There is no duty on the defendant to protect against “fantastic” probabilities
(f) The defendant is not liable if his actions were due to a sudden incapacity
(g) Res Ipsa Loquitor – the defendant may be liable even if there is no conclusive proof of blame (in limited situations only).
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Bolton v Stone
(a) If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (a) If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.
Bolton v Stone
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Paris v Stepney Borough Council
(b) If there is a VERY SERIOUS HARM, one must take appropriate steps to mitigate
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (b) If there is a VERY SERIOUS HARM, one must take appropriate steps to mitigate
Paris v Stepney Borough Council
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Latimer v AEC Ltd
(c) Consider the COST AND PRACTICABILITY of solutions. If taking precautions would have been impracticable and incurred great expense, this may excuse the defendant for not doing so, provided the risk of harm is small.
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (c) Consider the COST AND PRACTICABILITY of solutions.
Latimer v AEC Ltd
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Watt
(d) If the defendant’s actions are in the PUBLIC INTEREST/ have substantial social utility, this may justify the defendant’s taking greater risk
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (d) If the defendant’s actions are in the PUBLIC INTEREST/ have substantial social utility, this may justify the defendant’s taking greater risk
Watt
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Fardon v Harcourt-Rivington
(e) There is no duty on the defendant to protect against “fantastic” probabilities
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (e) There is no duty on the defendant to protect against “fantastic” probabilities
Fardon v Harcourt-Rivington
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Waugh v James K Allen
(f) The defendant is not liable if his actions were due to a sudden incapacity
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (f) The defendant is not liable if his actions were due to a sudden incapacity
Waugh v James K Allen
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Scott v London and St Katherine’s Docks
(g) Res Ipsa Loquitor – the defendant may be liable even if there is no conclusive proof of blame (in limited situations only).
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (g) Res Ipsa Loquitor – the defendant may be liable even if there is no conclusive proof of blame (in limited situations only).
Scott v London and St Katherine’s Docks
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > s.11 Civil Evidence Act 1968
If guilty in criminal proceedings, the defendant is also presumed liable in tort.
Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > If guilty in criminal proceedings, the defendant is also presumed liable in tort.
s.11 Civil Evidence Act 1968
Negligence > 4. Causation
Causation is only established once all three elements are satisfied: FACTUAL CAUSATION, INTERVENING ACT, LEGAL CAUSATION
Negligence > 4. Causation > Factual > Barnett
(a) Apply the ‘BUT FOR’ test – actual causation is established if, ‘but for the defendant’s breach, the claimant would not have sustained the harm.’
Negligence > 4. Causation > Factual > (a) Apply the ‘BUT FOR’ test – actual causation is established if, ‘but for the defendant’s breach, the claimant would not have sustained the harm.’
Barnett
Negligence > 4. Causation > Factual > Approaches to the BUT FOR test.
- All or nothing approach (standard) – the claimant must show on the balance of probabilities that the defendant caused harm.
- Modified Test (often employed where multiple causes have together contributed to the harm) – the claimant must show the defendant’s breach:
i. MATERIALLY CONTRIBUTED to the harm
ii. MATERIALLY CONTRIBUTED TO THE RISK of harm through recent decisions
Negligence > 4. Causation > Factual > Hotson
- All or nothing approach (standard) – the claimant must show on the balance of probabilities that the defendant caused harm.
Negligence > 4. Causation > Factual > 1. All or nothing approach (standard) – the claimant must show on the balance of probabilities that the defendant caused harm.
Hotson
Negligence > 4. Causation > Factual > Bonnington Castings Ltd v Wardlaw
i. MATERIALLY CONTRIBUTED to the harm
Negligence > 4. Causation > Factual > i. MATERIALLY CONTRIBUTED to the harm
Bonnington Castings Ltd v Wardlaw
Negligence > 4. Causation > Factual > McGhee v National Coal Board
ii. MATERIALLY CONTRIBUTED TO THE RISK of harm through recent decisions
Negligence > 4. Causation > Factual > ii. MATERIALLY CONTRIBUTED TO THE RISK of harm through recent decisions
McGhee v National Coal Board
Negligence > 4. Causation > Factual > Sienkiewicz v Grieff
Appear to have the restricted the application of this second limb only to cases where there is scientific uncertainty on causation (mesothelioma)
Negligence > 4. Causation > Factual > Appear to have the restricted the application of this second limb only to cases where there is scientific uncertainty on causation (mesothelioma)
Sienkiewicz v Grieff
Negligence > 4. Causation > Factual > (b) Where the claimant’s harm has more than one cause > Holtby v Bigham
If the harm is DIVISIBLE, court will apportion damages accordingly
Negligence > 4. Causation > Factual > (b) Where the claimant’s harm has more than one cause > If the harm is DIVISIBLE, court will apportion damages accordingly
Holtby v Bigham
Negligence > 4. Causation > Factual > (b) Where the claimant’s harm has more than one cause > Civil Liability (Contribution) Act 1978
If the harm is INDIVISIBLE (more than one party is responsible for the same harm), the claimant may sue any one defendant for the whole loss – but under the Civil Liability (Contribution) Act 1978, the defendant may seek a just and equitable contribution from other liable parties.
Negligence > 4. Causation > Factual > (b) Where the claimant’s harm has more than one cause > If the harm is INDIVISIBLE the claimant may sue any one defendant for the whole loss.
Civil Liability (Contribution) Act 1978
Negligence > 4. Causation > Factual > Mesothelioma Cases > Fairchild v Glenhaven Funeral Services Ltd.
If more than one employer is being sued, the responsibility of each employer need not be categorically proven
Negligence > 4. Causation > Factual > Mesothelioma Cases > If more than one employer is being sued, the responsibility of each employer need not be categorically proven
Fairchild v Glenhaven Funeral Services Ltd.
Negligence > 4. Causation > Factual > Mesothelioma Cases > Barker v Corus UK Ltd
Awarded damages for creation of risk, and in proportion to the extent each defendant added to it.
Negligence > 4. Causation > Factual > Mesothelioma Cases > Awarded damages for creation of risk, and in proportion to the extent each defendant added to it.
Barker v Corus UK Ltd
Negligence > 4. Causation > Factual > Mesothelioma Cases > s.3 Compensation Act 2006
BUT, this act overruled Barker v Corus and each employer will now be wholly liable (contribution can then be sought from other parties.)
Negligence > 4. Causation > Factual > Mesothelioma Cases > BUT, this act overruled Barker v Corus and each employer will now be wholly liable (contribution can then be sought from other parties.)
s.3 Compensation Act 2006
Negligence > 4. Causation > Factual > Intervening Act
Causation can only be established if the chain of causation has not been broken by an intervening event:
(a) Intervening events by third parties
(b) Intervening acts by the claimant
Negligence > 4. Causation > Factual > Intervening Act > Knightley v Johns, Rouse v Squires
i. NEGLIGENT ACTS – only break the chain if unforeseeable
Negligence > 4. Causation > Factual > Intervening Act > i. NEGLIGENT ACTS – only break the chain if unforeseeable
Knightley v Johns, Rouse v Squires
Negligence > 4. Causation > Factual > Intervening Act > Lamb
Stansbie v Troman
ii. RECKLESS or INTENTIONAL ACTS – more likely to break the chain (Lamb), unless unforeseeable (Stansbie v Troman)
Negligence > 4. Causation > Factual > Intervening Act > ii. RECKLESS or INTENTIONAL ACTS – more likely to break the chain (X), unless unforeseeable (Y)
Lamb
Stansbie v Troman
Negligence > 4. Causation > Factual > Intervening Act > Scott v Shepherd
iii. INSTINCTIVE/ NATURAL RESPONSE ACTS – will not break the chain
Negligence > 4. Causation > Factual > Intervening Act > iii. INSTINCTIVE/ NATURAL RESPONSE ACTS – will not break the chain
Scott v Shepherd
Negligence > 4. Causation > Factual > Intervening Act > Rahman v Arearose Ltd
iv. Negligent MEDICAL TREATMENT – will not usually break the chain
Negligence > 4. Causation > Factual > Intervening Act > iv. Negligent MEDICAL TREATMENT – will not usually break the chain
Rahman v Arearose Ltd
Negligence > 4. Causation > Factual > Intervening Act > McKew and Wieland
(b) Intervening acts by the claimant – will only break the chain if ENTIRELY UNREASONABLE in all the circumstances.
Negligence > 4. Causation > Factual > Intervening Act > (b) Intervening acts by the claimant – will only break the chain if ENTIRELY UNREASONABLE in all the circumstances.
McKew and Wieland
Negligence > 4. Causation > Legal
The defendant can only be said to have caused the harm in question if it is not too REMOTE.
Negligence > 4. Causation > Legal > The Wagon Mound (No.1)
Remoteness Rule: the defendant is ONLY liable for REASONABLY FORESEEABLE DAMAGE – i.e. damage is only recoverable if a reasonable man could have foreseen it
Negligence > 4. Causation > Legal > Remoteness Rule: the defendant is ONLY liable for REASONABLY FORESEEABLE DAMAGE – i.e. damage is only recoverable if a reasonable man could have foreseen it
The Wagon Mound (No.1)
Negligence > 4. Causation > Legal > Jolley
Applied Wagon Mound (No.1)’s Remoteness Rule
Negligence > 4. Causation > Legal > Applied Wagon Mound (No.1)’s Remoteness Rule
Jolley
Negligence > 4. Causation > Legal > 2 Provisos > Hughes v Lord Advocate
It is not necessary to foresee the precise WAY in which the harm is caused, provided the TYPE OF HARM is reasonably foreseeable;
Negligence >4. Causation > Legal > 2 Provisos > It is not necessary to foresee the precise WAY in which the harm is caused, provided the TYPE OF HARM is reasonably foreseeable;
Hughes v Lord Advocate
Negligence > 4. Causation > Legal > 2 Provisos > Robinson v Post Office
The Egg Shell Skull Rule: Take your victim as you find them. If the claimant suffers from a particular disability or condition, the claimant may recover in full from the defendant, even where the defendant could not have foreseen the claimant’s losses.
Negligence > 4. Causation > Legal > 2 Provisos > The Egg Shell Skull Rule
Robinson v Post Office
Negligence > 5. Defences
- VOLUNTARY ASSUMPTION OF RISK (Complete defence volenti non fit injuria)
- ILLEGALITY
- CONTRIBUTORY NEGLIGENCE
Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Nettleship v Weston
The defendant must prove:
i. The claimant had FULL KNOWLEDGE of nature and extent of risk; and
ii. The claimant WILLINGLY ACCEPTED THE RISK of being injured due to the defendant’s negligence (hard to show)
Negligence > 5. Defences > 1. Voluntary Assumption of Risk >
The defendant must prove:
i. The claimant had FULL KNOWLEDGE of nature and extent of risk; and
ii. The claimant WILLINGLY ACCEPTED THE RISK of being injured due to the defendant’s negligence (hard to show)
Nettleship v Weston
Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Smith v Baker
(b) Rare for employers to succeed with defence against employees because of doubts as to whether truly voluntary.
Negligence > 5. Defences > 1. Voluntary Assumption of Risk > (b) Rare for employers to succeed with defence against employees because of doubts as to whether truly voluntary.
Smith v Baker
Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Haynes v Harwood
(c) Rare for defence to succeed against rescuers, who are deemed to be ‘compelled by moral instinct’
Negligence > 5. Defences > 1. Voluntary Assumption of Risk > (c) Rare for defence to succeed against rescuers, who are deemed to be ‘compelled by moral instinct’
Haynes v Harwood
Negligence > 5. Defences > 1. Voluntary Assumption of Risk >
Ratcliff v McConnell and another
More successful against trespassers
Negligence > 5. Defences > 1. Voluntary Assumption of Risk > More successful against trespassers
Ratcliff v McConnell and another
Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Dann v Hamilton
Knowledge must be sufficient to inform the consent for voluntary assumption of risk, BUT this was a drunk driver case. Following Road Traffic Act 1988 s.149, consent will not be a valid defence for motor vehicle cases (still valid for other cases)
Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Knowledge must be sufficient to inform the consent for voluntary assumption of risk, BUT this was a drunk driver case. Following Road Traffic Act 1988 s.149, consent will not be a valid defence for motor vehicle cases (still valid for other cases)
Dann v Hamilton
Negligence > 5. Defences > 2. Illegality > Pitts v Hunt
The defendant may have a defence if the claimant was involved in an illegal enterprise when injured.
Negligence > 5. Defences > 2. Illegality > The defendant may have a defence if the claimant was involved in an illegal enterprise when injured.
Pitts v Hunt
Negligence > 5. Defences > 2. Illegality > Revill v Newbury
The injury must directly flow as a result of the criminal act.
Negligence > 5. Defences > 2. Illegality > The injury must directly flow as a result of the criminal act.
Revill v Newbury
Negligence > 5. Defences > 3. Contributory Negligence
(a) To prove contributory negligence, the defendant must show that:
i. The claimant was careless; and
ii. The claimant’s careless behaviour contributed to the claimant’s harm.
Negligence > 5. Defences > 3. Contributory Negligence > s.1(1) Law Reform (Contributory Negligence) Act 1945
(b) Operates to reduce the claimants’ damages, if shown
Negligence > 5. Defences > 3. Contributory Negligence > (b) Operates to reduce the claimants’ damages, if shown
s.1(1) Law Reform (Contributory Negligence) Act 1945
Negligence > 5. Defences > 3. Contributory Negligence > Caswell
(c) Employees: courts typically generous and rarely reduce employees’ damages, particularly where the work involved is dull/repetitive
Negligence > 5. Defences > 3. Contributory Negligence > (c) Employees: courts typically generous and rarely reduce employees’ damages, particularly where the work involved is dull/repetitive
Caswell
Negligence > 5. Defences > 3. Contributory Negligence > Gough v Thorne
(d) Children: judged according to their own standard – would a child of that age have taken more care for his safety
Negligence > 5. Defences > 3. Contributory Negligence > (d) Children: judged according to their own standard – would a child of that age have taken more care for his safety
Gough v Thorne
Negligence > 5. Defences > 3. Contributory Negligence > Baker v TE Hopkins and Sons Ltd
(e) Rescuers: findings of contributory negligence are very rare – only where rescuer has shown a ‘wholly unreasonable disregard for his/her own safety.’
Negligence > 5. Defences > 3. Contributory Negligence > (e) Rescuers: findings of contributory negligence are very rare – only where rescuer has shown a ‘wholly unreasonable disregard for his/her own safety.’
Baker v TE Hopkins and Sons Ltd
Negligence > 5. Defences > 3. Contributory Negligence > Jones v Boyce
(f) Situations of imminent danger: where the claimant’s response is reasonable there will be no finding of contributory negligence
Negligence > 5. Defences > 3. Contributory Negligence > (f) Situations of imminent danger: where the claimant’s response is reasonable there will be no finding of contributory negligence
Jones v Boyce
Negligence > 5. Defences > 3. Contributory Negligence > Froom v Butcher
(g) passengers and drivers will be liable for not wearing seatbelts
Negligence > 5. Defences > 3. Contributory Negligence > (g) passengers and drivers will be liable for not wearing seatbelts
Froom v Butcher
Negligence > 5. Defences > 3. Contributory Negligence > Capps v Miller
(g) passengers and drivers will be liable for not wearing helmets
Negligence > 5. Defences > 3. Contributory Negligence > (g) passengers and drivers will be liable for not wearing helmets
Capps v Miller
Negligence > 5. Defences > 3. Contributory Negligence > Owens v Brimmell
Passengers who accept ride with drunken drivers can see damages reduced, even if themselves are highly intoxicated
Negligence > 5. Defences > 3. Contributory Negligence > Passengers who accept ride with drunken drivers can see damages reduced, even if themselves are highly intoxicated
Owens v Brimmell
Negligence > 5. Defences > 3. Contributory Negligence > Capps v Miller
Manufacturers can be liable, e.g. helmets (Capps v Miller) or seatbelts (Froom v Butcher)
Negligence > 5. Defences > 3. Contributory Negligence > Reductions
- 25% reduction if injury could have been avoided
- 15% reduction if injury would have been less servere
- 0% reduction if it made no difference
Pure Economic Loss > Steps
Step One: state – the claimant can consider suing the defendant for [insert harm] in the tort of NEGLIGENCE
Step Two: Is the Harm in question Pure Economic Loss (PEL)
Step Three: Is a DUTY OF CARE owed?
Step Four: has there been a BREACH of this duty?
Step Five: CAUSATION – did the defendant’s breach of duty CAUSE the harm suffered by the claimant?
Step Six: Consider whether the defendant may raise any defences
Pure Economic Loss > 1. State?
the claimant can consider suing the defendant for [insert harm] in the tort of NEGLIGENCE
Pure Economic Loss > 2. Define and Apply
PEL = Financial Loss that does not flow from: (a) physical injury or (b) property damage
Pure Economic Loss > 3. Duty of Care > Murphy v Brentwood District Council
- GENERAL RULE: no duty of care is owed in tort in respect of PEL
Pure Economic Loss > 3. Duty of Care > 1. GENERAL RULE: no duty of care is owed in tort in respect of PEL
Murphy v Brentwood District Council
Pure Economic Loss > 3. Duty of Care > Weller & Co v Foot and Mouth Disease Research Institute
(a) illustrated that a duty is not owed if financial loss is caused by actions rather than physical damage
Pure Economic Loss > 3. Duty of Care > (a) illustrated that a duty is not owed if financial loss is caused by actions rather than physical damage
Weller & Co v Foot and Mouth Disease Research Institute
Pure Economic Loss > 3. Duty of Care > Spartan Steel & Alloys v Martin & Co. (Contractors) Ltd.
(b) recovered consequential economic loss that stemmed from the property damage but not pure economic loss
Pure Economic Loss > 3. Duty of Care > (b) recovered consequential economic loss that stemmed from the property damage but not pure economic loss
Spartan Steel & Alloys v Martin & Co. (Contractors) Ltd.
Pure Economic Loss > 3. Duty of Care > Hedley Byrne & Co Ltd v Heller & Partners Ltd
- Exception: in cases of NEGLIGENT MISSTATEMENT, a duty of care is owed if there is a SPECIAL RELATIONSHIP between the parties.
Pure Economic Loss > 3. Duty of Care > 2. Exception: in cases of NEGLIGENT MISSTATEMENT, a duty of care is owed if there is a SPECIAL RELATIONSHIP between the parties.
Hedley Byrne & Co Ltd v Heller & Partners Ltd
Pure Economic Loss > 3. Duty of Care > Two elements to the exception
(Exception: in cases of NEGLIGENT MISSTATEMENT, a duty of care is owed if there is a SPECIAL RELATIONSHIP between the parties. (Hedley Byrne))
(a) An ASSUMPTION OF RESPONSIBILITY to the claimant by the defendant
(b) REASONABLE RELIANCE on the defendant’s statement, by the claimant
Pure Economic Loss > 3. Duty of Care > Elements to the Hedley Byrne Exception> (a) An ASSUMPTION OF RESPONSIBILITY to the claimant by the defendant > Caparo Industries plc v Dickman and others
The four criteria required to establish an ‘assumption of responsibility’ are:
i. Adviser knew the purpose for which the advice was required
ii. Adviser knew the advice would be communicated to the advisee
iii. Adviser knew the advisee was likely to act on the advice without further inquiry; and
iv. Advisee acted on the advice to his detriment
Pure Economic Loss > 3. Duty of Care > Elements to the Hedley Byrne Exception> (a) An ASSUMPTION OF RESPONSIBILITY to the claimant by the defendant > The four criteria
Caparo Industries plc v Dickman and others
The four criteria required to establish an ‘assumption of responsibility’ are:
i. Adviser knew the purpose for which the advice was required
ii. Adviser knew the advice would be communicated to the advisee
iii. Adviser knew the advisee was likely to act on the advice without further inquiry; and
iv. Advisee acted on the advice to his detriment
Pure Economic Loss > 3. Duty of Care > Elements to the Hedley Byrne Exception> (a) An ASSUMPTION OF RESPONSIBILITY to the claimant by the defendant > “knew”
Constructive Knowledge will suffice
Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle > White v Jones; Henderson v Merritt Syndicates Ltd
(a) Extends Hedley Byrne to the negligent provision of professional services, providing there is an assumption of responsibility and clearly foreseeable damage (no need for reliance)
Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle >
(a) Extends Hedley Byrne to the negligent provision of professional services, providing there is an assumption of responsibility and clearly foreseeable damage (no need for reliance)
White v Jones; Henderson v Merritt Syndicates Ltd
Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle >
Spring v Guardian Assurance Plc
(b) Extends Hedley Byrne to cases where the negligent misstatement is made to a THIRD PARTY (not to the claimant), provided the third party relies on it to the detriment of the claimant
Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle >
(b) Extends Hedley Byrne to cases where the negligent misstatement is made to a THIRD PARTY (not to the claimant), provided the third party relies on it to the detriment of the claimant
Spring v Guardian Assurance Plc
Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle > Desmond v Chief Constable
Narrows the Spartan ruling (recovered consequential economic loss that stemmed from the property damage but not pure economic loss) – the duty to act in the public interest overrides the duty of care owed to the claimant. If there is a conflict between Common Law duty and statue, statute prevails.
Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle >
Desmond v Chief Constable
Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle
(a) The duty will NOT be owed in a SOCIAL SITUATION
(b) Insufficient proximity of relationship defeats a negligent misstatement PEL claim (James McNaughton Papers Group Ltd v Hicks Anderson & Co)
Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (a) The duty will NOT be owed in a SOCIAL SITUATION > i. Unless – the defendant’s advice has gone beyond social advice, and he has assumed a responsibility.
Chaudhry v Prabhakar
Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (a) The duty will NOT be owed in a SOCIAL SITUATION > Chaudhry v Prabhakar
i. Unless – the defendant’s advice has gone beyond social advice, and he has assumed a responsibility.
Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (a) The duty will NOT be owed in a SOCIAL SITUATION > (Chaudhry v Prabhakar) This will be the case where?
- It was clear that the claimant would be relying on advice; and
- The defendant has more experience/knowledge
Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (a) The duty will NOT be owed in a SOCIAL SITUATION > Full Limitation
(a) The duty will NOT be owed in a SOCIAL SITUATION
i. Unless – the defendant’s advice has gone beyond social advice, and he has assumed a responsibility. This will be the case where:
- It was clear that the claimant would be relying on advice; and
- The defendant has more experience/ knowledge
Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > James McNaughton Papers Group Ltd v Hicks Anderson & Co
(b) Insufficient proximity of relationship defeats a negligent misstatement PEL claim
Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (b) Insufficient proximity of relationship defeats a negligent misstatement PEL claim
James McNaughton Papers Group Ltd v Hicks Anderson & Co
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY
To rely on a disclaimer/exclusion notice as a defence
Pure Economic Loss > 6. Defences > To rely on a disclaimer/exclusion notice as a defence
EXCLUSION OF LIABILITY
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > Two Criteria:
INCORPORATION and CONSTRUCTION
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > INCORPORATION
a) The defendant must have taken reasonable steps to bring it to the claimant’s attention before the tort was committed
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > CONSTRUCTION
b) The wording of the clause/notice must cover the loss
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > C =
UCTA 1977
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977
c) Applies to the exclusion notice (provided the defendant is acting in the course of a business, the claimant may be a consumer or trader)
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > s.2(1) UCTA 1977
I. The defendant cannot exclude liability for death or personal injury
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > I. The defendant cannot exclude liability for death or personal injury
s.2(1) UCTA 1977
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > II. In order to exclude liability for other loss or damage, the clause must be reasonable
s.2(2) UCTA 1977
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > s.2(2) UCTA 1977
II. In order to exclude liability for other loss or damage, the clause must be reasonable
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > s.11(3) UCTA 1977
III. Defines reasonableness: must be fair and reasonable to allow reliance on the clause, having regard to all circumstances
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > III. Defines reasonableness: must be fair and reasonable to allow reliance on the clause, having regard to all circumstances
s.11(3) UCTA 1977
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > UCTA > Reasonableness > Smith v Eric S Bush
In deciding reasonableness, take into account the following:
- Were the parties of equal bargaining power?
- In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source?
- How difficult is the task from which liability is excluded?
- What are the practical consequences – are the parties able to bear the loss?
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > UCTA >
In deciding reasonableness, take into account the following:
1. Were the parties of equal bargaining power?
2. In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source?
3. How difficult is the task from which liability is excluded?
4. What are the practical consequences – are the parties able to bear the loss?
Smith v Eric S Bush
Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > UCTA > Reasonableness
Smith v Eric S Bush
In deciding reasonableness, take into account the following:
- Were the parties of equal bargaining power?
- In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source?
- How difficult is the task from which liability is excluded?
- What are the practical consequences – are the parties able to bear the loss?
Pure Psychiatric Harm > Steps
Step One: State: the Claimant can consider suing the defendant for [insert harm] in the tort of negligence.
Step Two: Is the harm in Question ‘Pure Psychiatric Harm’?
Step Three: Is there a Duty of Care Owed?
Step Four+: Breach, Causation, Defences
Pure Psychiatric Harm > Define
Psychiatric harm that stands alone, i.e. does not flow from physical injury
Pure Psychiatric Harm > Requirements to be PPH
(a) caused by sudden shock to the nervous system; and
(b) either a medically recognised psychiatric illness, OR a shock induced physical condition (no gradual build up) e.g. miscarriage, heart attack.
Pure Psychiatric Harm > 3. Duty of Care Owed?
This depends on whether the claimant is a primary or secondary victim
Pure Psychiatric Harm > 3. Duty of Care Owed > Steps to determining a primary or secondary victim
- Is the harm medically recognised
- Caused by sudden shock?
- In the area of danger? If YES = Primary / If NO = Secondary
Pure Psychiatric Harm > 3. Duty of Care Owed > Primary Victims > Page v Smith
To be a primary victim, the claimant must have:
i. been in the actual area of danger; OR
ii. reasonably believed he was in danger
Pure Psychiatric Harm > 3. Duty of Care Owed > Primary Victims >
To be a primary victim, the claimant must have:
i. been in the actual area of danger; OR
ii. reasonably believed he was in danger
Page v Smith