cases first half Flashcards
What are the criteria for liability for personal misconduct (fault liability)?
- Is there a duty of care?
- Breach of the dury of care?
- Once a duty of care has been established, it must be shown that a duty has been breached. Here, the threshold of a ‘reasonable man’ is applied.
Donoghue v Stevenson
Facts: Mrs Donoghue went to a cafe with her friend. The friends bought her ice cream. The drink had decomposing snail remains in the bottle but she couldn’t see it. She suffered physical and psychological injuries after consuming it.
Her friend bought the drink so Mrs Donoghue couldn’t sue (she was not in a contractual relationship with the manufacturer). However, she could claim negligence against the manufacturer as there was a fault in the manufacturing process.
Court’s decision: The manufacturer is liable in negligence to the consumer that was damaged by the products.
Legal Principle: You must take reasonable care to avoid acts or omissions where it is reasonably foreseeable that they would be likely to injure your neighbour.
- “Neighbour principle”
Hedley Byrne v Heller (NOT MANDATORY)
Hedley Bryne, an advertising agency, asked their bank about the creditworthiness of Easipower. Heller communicated directly to Hedley Byrne that Easipower was good. However, then Easipower went bankrupt and Hedley Bryne lost a lot of money.
Question: Does Heller have a duty of care towards Hedley Bryne? (Duty of care for misstatement in a direct relationship)
Answer: YES, because there was a direct/special relationship between Hedley and Heller. Heller directly communicated to Hedley Bryne that Easipower was trustworthy, it was not a general statement addressed to no one in particular but instead specifically addressed to Hedley Bryne, after Hedley had asked for said information. Therefore Heller has a duty of care because he fulfills all the criteria for the proximity test. (later on called Carparo test, check Carparo v. Dickman for more)
Rule to remember: For duty of care for misstatements a ‘special’, direct relationship is needed, e.g. customers specifically asking the bank for information.
Carparo v Dickman
Accountant Dickman audited the company Fidelity and mistakenly stated that the company had made profit. Trusting this general audit, Caparo Industries purchased 100k shares in Fidelity.
In reality, however, Fidelity had made losses. Hence, Caparo suffered economic damage through their investment. Caparo wanted to sue the accountant Dickman for negligently giving an inaccurate audit and causing economic damages to Carparo.
Question: Does the Auditor owe a duty of care to Carparo? (Duty of care for misstatement in indirect relationships)
Judgement: The auditor is under no duty of care because there was no special/direct relationship between Carparo and Dickman. Carparo didn’t specifically ask Dickman for information on Fidelity’s financial status and Dickman’s audit was not addressed to Carparo in particular (as was the case in Hedley v Heller).
The Court established the Carparo test/proximity test for duty of care:
- Was the damage reasonably foreseeable?
- Relationship of proximity between the parties
- Fair, just and reasonable to impose a duty of care
White v Jones
An old man had fights with his daughters and wrote them out of his will. They made up and he wanted to write them back into the will. However, the solicitor (lawyer, in this case responsible for the testament) was on a vacation and also missed a lot of appointments with the old man. Meanwhile, the old man died and his daughters still had not been written into his will. Daughters wanted to sue, but the problem was that they had no contractual relationship with the solicitor.
Question: Does the solicitor have a duty of care towards the daughters”?
Answer: Yes the solicitor is under a duty of care towards the intended beneficiaries.
Court applied the Carparo Test:
- It was reasonably foreseeable that the intended beneficiaries (the daughters) would suffer damage
- There was a relationship of ‘proximity’ or ‘neighbourhood’ between the solicitor and beneficiaries
- It is fair, just and reasonable to impose a duty of care
Snow-covered steps
DUTY OF CARE IN NEGLIGENT OMISSIONS
Plaintiff splipped on snow covered steps. The steps were in bad shape due to being neglected and also unlit.
Question: Is the municipality under a duty of care because the steps are used by the public?
Answer:
The owner of a piece of land which is dedicated to public use is under a duty of care.
BECAUSE, the owner (in this case municipality) has the control over the state of the land and it is available to the public, therefore there is a duty of care to make sure that it is safe for public use.
Lettuce leaf
DUTY OF CARE IN NEGLIGENT OMISSIONS
Plaintiff slipped on a lettuce leaf in a supermarket and sueD the shop’s owner.
Question: Does the shopkeeper have a duty of care?
Answer:
The Court found that the shopkeeper had a duty of care to keep the floor clean, but ther was a reduction of liability by 1/3 because of the contributory negligence of the customer.
Court’s assessment:
Duty of care of the shopkeeper:
- shopkeeper has to regularly inspect and clean the shop
- to avoid liability he would have to prove that shortly before the accident the area had been inspected and found to be clean
Duty of care of the customer:
- Customer has to take particular precaution in certain areas of the shop (i.e. in the fruits and vegetable aisle and the checkout) and also depending on the time of the day (i.e. friday afternoon where shops tend to be quite busy)
Hooligans harming spectators
A person died during a football match when a hooligan spectator.
Question: Does the football club have a duty of care even though the tort was committed by a third part? (Duty of care in cases of tort by third party)
Answer: The football club has a duty of care to take adequate security measures (which it didn’t in this case=omission) and is liable for physical and mental damages to relatives.
Court’s argumentation:
The football club did not provide sufficient safety measures.
Right from the start, the game had strong indications for violent behavior at the event, due to the strong rivalry of the opposing teams and the amount of spectators, which the football club failed to take into account. Additionally, there were no inspections to prevent spectators from carrying objects which would term-28cause injury and the spectators from the opposing teams were not seated in a safe distance.
REMEMBER: French law says that the organizer of a sporting event is under a duty of care to take adequate security measures in order to prevent third parties from causing harm. (different than in English law, see. Haynes v. Hardwood and Littlewoods case)
What is negligence? (Theory)
- Nature and extent of potential loss = L
- Probability of loss = P
- Costs of preventive measures = C
Negligence is when:
L x P > C
Haynes v Harwood
(not mandatory)
The defendant left a horse-drawn van unattended in a crowded street. A child threw a stone at the horses (tort by third party) and the horses bolted. A police officer got injured by trying to bring the situation under control.
Question: Does the owner of the horses have a duty of care towards the police officer?
Answer: The owner of the horse is liable for the damage
Requirements:
- The defendant must negligently cause the creation of a source of danger (fulfilled in this case)
- It must be reasonably foreseeable that third parties may interfere and spark off said source of danger and cause damage
REMEMBER:
Under English law owners do not have the general duty to prevent third parties from causing harm, UNLESS certain circumstances apply such as in the requirements above (i.e. defendant is source of danger, danger manifesting was reasonably foreseeable)
Smith v Littlewoods Organisation Ltd
Vandals cause fire on premises of old theatre belonging to Littlewoods. The fire then causes damages to the property of the neighbors (the Smiths).
Question: Do the Littlewoods have a duty of care towards the Smiths?
Answer:
No, because there is no general duty of care to prevent third parties from causing harm. The special circumstance of creating a source of danger and said danger manifesting is not given in this case. Imposing a general duty of care on on every owner to prevent others from abusing their property to cause harm would amount to an unreasonable burden.
Topp v London Country Bus
Defendant left his minibus unlocked in front of a pub with the keys in the ignition. Someone stole the bus and ran a woman over, subsequently killing her. The husband of the deceased woman wanted to sue the bus company for damages.
Question: Does the owner of the bus (the bus company) have a duty of care towards the woman?
Answer:
NO, because there is no general duty of care for vehicle owners (as well as property owners as established in Smith v Littlewood, Haynes v Hardwood)
‘Special circumstances’ do not apply to this case the bus company did not create a source of danger, nor was it reasonably foreseeable that the potential danger would manifest in the way it did.
NB: It doesn’t matter whether the event was reasonably foreseeable if the defendant did not create the source of danger!
Osman v Ferguson
Obsessed teacher Paul Paget Lewis harasses his student Ahmed Osman. The police were notified on several occasions but never arrested him. He’s eventually arrested after killing Ahmed’s father and injuring Ahmed. Afterwards, the Osman’s want to sue the police for acting negligently.
Question: Is there a duty of care owed towards Osman and his father?
Answer:
No because the case does not pass the Carparo test:
- Reasonably foreseeable: fulfilled, pretty self-explanatory
- Relationship of proximity: the police was notified several times by the Osman’s, they were familiar with each other
- Fair, just and reasonable to impose duty of care: Yes, in this case it is just and reasonable to do so
Garde des Sceaux v Banque populaire (Hold-up by convicts)
STRICT LIABILITY
Prisoners got some liberty to go out and decided to rob a bank. The bank wanted to sue the Ministry of Justice (Garde des Sceaux)
Question: Is the State liable to the bank?
Answer:
A decision of the State may give rise to liability when it creates a special risk for the plaintiff in question.
Court’s argumentation:
- There was no fault since they were following protocols (it’s in the interest of the public to let prisoners get adjusted to the outside world before their release)
HOWEVER even though there was no fault there can still be strict State liability because…
- No citizen/private party (in this case the Bank) should have to bear an excessive amount of public burdens (‘equality of the citizens before the public burdens’). This means that if the State makes a decision that serves the public interest BUT also creates a special danger for a private party, the State must be liable for damages to essentially counterbalance the public burden that was laid on the private party.
Requirement for State liability in such cases: Direct causal link between the decision of the State (in this case to release the prisoners) and the damages caused to the plaintiff/private party (in this case the bank robbing).
Losses par ricochet
Also called secondary losses.
If, for example, a bullet ricochets, it hits a surface and moves away from it.
In losses par ricochet A does something to B which results in damage to C. (B may also suffer a loss)
There are three types:
1. A breaches contractual liability to B which results in a damage to C (Carparo v Dickman, White v Jones)
2. A causes harm to B (human being) which subsequently causes damage to C
3. A causes harm to B (an object) which subsequently causes damage to C
French Case: Claim by Concubine
EXAMPLE OF A SECONDARY LOSS IN A SITUATION OF GRIEF
A man died in a car accident and the lover of the man wanted to claim damages but they were not married.
Question: Is the unmarried partner entitled to secondary losses for grief?
Answer: Unmarried partners can claim material and non-material damages under French law.
Court’s argumentation:
-To claim secondary losses you can be unmarried, an illegitimate child or even a friend if you can prove that your ‘affection for the victim is genuine’. -> Principle of legitimate interest (all legitimate interests are to be protected under tort law, not only specific rights, such as those of married partners or biological family members)
- The relationship has to be sufficiently stable and continuous (adulterers can also count, their legal status does not matter as much as the nature of the relationship)
- Biological/legal family members have the benefit of a presumption of an affectionate relationship to the victim, while other people have to prove their special relationship
Alcock v Chief Constable of South Yorkshire
EXAMPLE OF A SECONDARY LOSS IN A SITUATION OF NERVOUS SHOCK
NB:
nervous shock ≠ psychological harm
nervous shock = psychological ILLNESS
A football stadium was already overly crowded and the police let in even more people into the stadium. As a result, 95 spectators were crushed to death and it was broadcasted on live television. The police admitted to liability with regards to the direct victims, however, they denied that they had any duty of care towards the plaintiffs who were relatives of the direct victims and claimed to have suffered nervous shock from seeing/hearing about the disaster on TV/Radio.
Question: Do the police officers owe a duty of care to the secondary victims so that they can claim compensation for psychiatric illness?
Answer: Damages for injuries caused by psychiatric illness can be claimed by the:
-Primary victim (Psychiatric illness is foreseeable in that case)
- Secondary victim, BUT only if the psychiatric illness was ‘reasonably foreseeable’
Criteria for the ‘foreseeability of psychiatric illness’ (Alcock test)
1. Emotional proximity
- There needs to be a relationship between primary and secondary victim of ‘close ties of love and affection’ (this relationship is presumed in the case of spouses, parents and children, but must be proven for all others)
2. Physical and Temporal proximity to incident
- Being physically present during the accident or its immediate aftermath, i.e. seeing the loved on in intensive care and very bad shape in the hospital
3. Proximity of perception
- The psychiatric illness must be caused by actually seeing or hearing the event or its immediate aftermath (e.g. on TV the faces were blurry, the relatives could not actually recognize and SEE their loved ones die)
Spartan Steel & Alloys Ltd v. Martin & Co Ltd
PURE ECONOMIC LOSS OF SECONDARY VICTIMS IN ENGLAND
While digging up a road the defendant negligently cut a power cable to the plaintiff’s factory. The plaintiff sued to the physical damage to the melt in the furnace, loss of profit on the melt that had to be thrown away as a result of the physical damage, as well as the loss of profit on the four other melts that could have been carried out during the power cut.
Question:
Does the defendant owe a duty of care for pure economic loss to a secondary victim?
Answer:
Damages for physical damage to the property, consequential economic loss resulting directly from physical damage to their property can be claimed. BUT NOT for ‘pure economic loss’ independent of any physical damage to the property of the victim.
For dummies: He can get money for the melt that was damaged. He can also get money for the profit that was lost because the melt was damaged and had to be thrown away. But he can’t get the money back for the lost working time and the melts that he theoretically could have made in the time of the power cut, i.e. no compensation for hypothetical/imaginary profit.
Court’s argumentation:
- Most people make up for economic loss by working harder the next day; healthy attitude that the law wants to encourage
- The supply can usually be restored in a couple of hours
- If you know that your business is dependent on continuous power supply, take precautionary measures
- Allowing claiming damages for ‘pure economic loss’ by secondary victims could encourage fraudulent claims; hard to prove how much profit was actually lost in a specific time frame
- Fair distribution of the loss
Power Cable ‘Right to business’ Case
PURE ECONOMIC LOSS OF SECONDARY VICTIMS IN GERMANY
Worker in one company damaged a power cable that provided another company with power. Company sued for economic loss due to the power cut.
Question: Can the victim company claim damages for pure economic loss as a secondary victim?
Answer:
There is no interference with the ‘right to business’ when there is loss of profit from electricity cut.
Court’s argumentation:
The ‘right to business’ in Germany was meant to protect companies from unlawful interference with their business. However, there are limitations to the right to business:
- The interference has to be direct (a power cut was not direct enough)
- Professions/service of an employee are not protected under the right to business
Other examples:
A bridge was damaged by a Truck and had to be repaired. Because of the repairs, no cars were driving on that particular part of the driveway anymore and a close by restaurant/gasstation sued for economic loss
-> not direct enough, there was no damage to the property itself, solely less circulation in the area
A ship was blocking one side of the waterway. The owners of the ships which could not move because of the blocking wanted to sue for economic losses.
-> not direct enough, their ships weren’t the ones that were damaged (the owner of the ship that got stuck could’ve sued)
Categorisation of privacy
Older categories:
1. Intrusion
2. Public disclosure of embarassing private facts (injury to reputation)
3. False light (no injury of reputation)
4. Appropriation
Newer categories/things included in the right to privacy
1. Dignity (Bismarck case)
2. Right to be forgotten
3. Self-determination (Destruction of sperm)
Le Grand Secret
The French president died due to medical complications. After his death, his personal doctor published about about his medical condition. The president’s wife and children sued for non-material damages. (they were ‘wounded in their deepest feelings’)
Question:
Can the tort of publishing information covered by medical confidentiality can be used to claim damages as secondary victims?
Answer: Disclosing information that is covered by medical secrecy allows for family to claim non-material damages.
Court’s argumentation:
Right to privacy is not explicitly mentioned BUT it is said the publication of matters relating to the personality and private life of a person can lead to non-material damage (being wounded in their deepest feelings) for the spouse and children. Especially because it was an infringement of an obligation that is based on a relationship of trust, that continues to exist after the death of a patient.
Publishing facts covered by medical confidentiality is a crime/tort and is therefore not covered by the freedom of opinion/freedom of press. (Abuse of said freedom)
How can one claim damages on the infringement of privacy?
Right to privacy is not explicitly recognised as such in many countries.
Therefore, certain torts/unlawful acts can be used to claim damages in situations where the privacy of a person was violated.
Examples for such unlawful acts are infringement of medical confidentiality, trespassing or even bodily injury.
Bismarck Case (not mandatory)
Question of dignity
Photographers unlawfully gained access to the hospital room in which Bismarck died and took pictures of him and sold them to be published.
Bismarck/his relatives had no right to the pictures back in 1899, but the Photographers were arrested on the basis of trespassing.
Hachette Filipacchi Ass. v France (not mandatory)
ECHR case. Man was murdered and the pictures of the scene were published later. Family asked court to prohibit the publication. Privacy outweighs freedom of expression sometimes.
Right to be forgotten
search engines can be obliged to remove links certain search results that are inadequate, irrelevant or no longer relevant, or excessive in the light of the time that has passed.
Destruction of Sperm
Right to privacy/private life -> right to self-determination
The plaintiff had to undergo surgery which would cause infertility, so he requested beforehand that his sperm would be frozen for later use. However, through negligence the sperms are destroyed without the plaintiffs consent.
Question:
Does the destruction of sperm count as the tort of ‘bodily injury’? If yes, can the plaintiff use this tort to claim damages for the infringement of his right to privacy?
Answer: The culpable destruction of sperm constitutes ‘bodily injury’ in German law and therefore the plaintiff can claim damages.
Court’s argumentation:
Right to self-determination can also apply to parts of the body that are removed from it to be reintegrated later due to recent medical advances.
This does not apply to parts of the body such as hair or teeth which are treated by German law as personal property once they’re removed.
The same goes for blood or organs that are removed from the body and meant to be donated to someone else, they are also deemed as private property.
THEREFORE, the characterization of the destruction of sperm as bodily injury is dependent on whether or not the intention is to later reintegrate the part of the body into the body. (Parts of the body that are separated from it and will never become part of it again, simply become property, they ‘lose’ their status as ‘body parts’. Body parts that are only temporarily separated from the body, continue being classified as parts of the body for the time of separation.)
Bodily injury was already applicable to eggs but not to sperm because they were formerly classified to be bodily functions. This changed after this case.
