Breach of Statutory Duty & Negligence Flashcards
What is the purpose of suing for Breach of Statutory Duty?
A breach of a statutory duty may result in a criminal prosecution by the enforcing authority and, if successful, the guilty party will receive some sort of punishment, which is of little benefit to the injured person. Judges in the 19th century felt that those injured by acts declared criminal by statutes should give a right to compensation, which the common law at that time failed to provide.
A breach by the defendant of his statutory duty MAY give a claimant a cause of action in tort. Such an action may happen irrespective of whether the enforcing authority decides to prosecute.
List the elements that must be proved on a balance of probabilities to establish a successful claim for breach of statutory duty
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
What are the main defences to Claims of Breach of Statutory Duty? (There are 6)
Statute Barred
This means the stated legislation does not allow for civil action for breach of statutory duty to be taken
No Breach of Duty
The defendant must be in breach of the duty of care he owes to the claimant by being careless or negligent. If there is no breach, the action must fail.
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 of a type contemplated by the statute
Breach did not cause loss
There was no causal connection between the breach of statutory duty and the loss suffered by the claimant
Contributory Negligence
This may be described as a partial defence. If any harm sustained from an accident is deemed to be partly the fault of the defendant and the claimant then the claimant is said to have been contributory negligent.
What are the main defences to Claims of Negligence? (There are 8)
Denial
No defence is raised. When an action is denied the defendant is claiming that the incident never occurred.
No Duty Owed
This defence is based on the principle that there was no duty of care owed to the injured party
No Breach of Duty
The defendant must be in breach of the duty of care he or she owes to the claimant by being careless or negligent. If there is no breach, the action must fail.
Breach did not Lead to Damage
The basis of this defence is that there was no direct connection between the breach and the damage/injury that occurred.
Type of Damage was not Foreseeable
The damage must be reasonably foreseeable, although neither the extent of the damage, nor the precise manner of its occurrence, need be reasonably foreseeable.
Volenti Non Fit Injuria
This phrase means “No injury can be done to the willing”
Contributory Negligence
This may be described as a partial defence. If any harm sustained from an accident is deemed to be partly the fault of the defendant and the claimant then the claimant is said to have been contributory negligent.
Time Limitation
The Limitation Act 1980 identifies time limit within which actions for torts must be brought.
Describe the purpose of the Social Action, Responsibility and Heroism Act 2015
The purpose of the Social Action, Responsibility and Heroism Act 2015 is to protect persons who may be deterred from participating in socially useful activities due to worries about risk or liability.
Describe the two types of damages that can be used in claims for compensation
General Damages
Pain & Suffering, Injury, Personal Inconvenience, Loss of Enjoyment etc.
These are not easily quantifiable and depend on the individual who has suffered the loss.
Special Damages
Travel expenses to and from hospital, private medical costs, loss of earnings etc. These are easily quantified.
Explain relevant case law that refers to Contributory Negligence and the circumstances of the case.
Jones v Livox Quarried Ltd (1952)
This case considered contributory negligence and whether someone doing something they were forbidden to do at work contributed to his injuries when he was hurt as a result of it.
The Claimant, a quarry worker, hitched a lift by standing on a tow bar, against company rules, and unknown to the driver. Unfortunately a dumper truck, driven recklessly by another employee, crashed into the back of the vehicle crushing the claimants legs which had to be amputated. The defendant was liable but the claimant was held to be 1/5 to blame. He had acted against orders and exposed himself to danger and it was argued that contributory negligence requires the foreseeable of harm to oneself.
What is meant by Joint and Several Liabilities?
Where a person is injured by the actions of several tortfeasors he is only required to sue one of the defendants to recover the full damages even though more than one was to blame.
It would then be up to the defendant who had been successfully sued to try and recover the respective proprtion of the damages which he had paid from the other tortfeasors.
Outline the personal injury pre-action protocol under the Civil Procedure Rules
The letter of claim
The claimant sends the prospective defendant letters detailing a summary of the facts, the nature of any injuries, and any financial losses incurred and requests details of the insurer.
Defendants Reply
The defendant should reply within 21 days identifying the insurer (if any)
Investigation The defendant (in most cases the insurance company) then has up to three months to investigate the claim and to respond. The defendant may: Admit liability or Deny liability completely or partially, giving reasons.
The claimant must then decide whether to issue proceedings or abandon the claim.
During this protocol, the parties involved are encouraged to enter into discussions and, ideally settlement before starting proceedings so that litigation is seen as the last resort.
Proceedings
If proceedings begin, the defendant must offer a defence document which states:
The facts which are admitted
The facts which are denied
The defence’s version of events
The facts the defendant neither admits nor denies and that the claimant must prove
A statement of truth should accompany this document.
If the parties do not settle out of court, civil action may begin. All cases are allocated to one of three tracks, which is governed mainly by the value of the claim.
Outline the three tracks for claims for damages for personal injury.
Small claim track
(Damages no more than £1,000)
Fast track
(Proceedings issued on or after 6 April 2009, of not more than £25,000; and for proceedings issued before 6 April 2009, of not more than £15,000)
Multi-Track
(Normal track for any claim for which the small claims track or the fast track is not the normal track).
