Chapter 41- Novel Duty situations

Question 1

Define Novel Duty Situations

Answer 1

• These are situations that involve special relationships that are established by the court but lack sufficient precedence
• This tort is important in order to seek remedies

Question 2

Describe pure economic loss

Answer 2

• This refers to when the claimant suffers a financial loss due to the negligence of the defendant
• This loss was not the result of any personal injury or damage to property

Question 3

What are the number of requirements the HOL set in order to establish a duty of care

Answer 3

• A special relationship between the parties
• A voluntary assumption of responsibility by the party giving advice
• The party giving the advice must know that it will be relied on and it must be reasonable for the party to rely on that advice
• Public relationship

Question 4

How do the courts outline when a special relationship has been formed

Answer 4

> special relationships are defined as relationships which serve as a basis for determining whether a duty of care exists as certain legal obligations are established. Example: Service provider
- A reliance by the claimant on the defendant’s special skill and judgment
- Reasonable knowledge that the claimant would be relying on the advice
- It being reasonable in the circumstance for the claimant to rely on the defendant

Question 5

When is responsibility voluntarliy assumed for advice

Answer 5

When people choose to advise without any warnings or disclaimer

Question 6

What is the Hedley Byrne principle

Answer 6

This principle establishes that a party can be held liable for pure economic loss caused by a negligent misstatement

Question 7

What are the key elements of the Hedley Byrne principle

Answer 7

• Special relationship
• Economic loss
• Negligent misstatement
• Reasonable foreseeability

Question 8

Weaknesses of Novel duty situations

Answer 8

• Its hard to decipher whether the advice given is with warning or not
• There’s unfamiliarity with these cases
• Theres a potential of per incurium

Question 9

Why did the courts reject cases that involved liability over nervous shock

Answer 9

• There was insufficient understanding of psychological harm arising from an accident
• Because of the floodgates of cases

Question 10

The law recognises 2 categories of victim:

Answer 10

PRIMARY: A person present at the scene of an incident who is either harmed or at risk of harm
SECONDARY: A victim who is a passive or an unwilling witness of injury caused to others

Question 11

What are the conditions for liability of nervous shock

Answer 11

• 1.Recognised psychiatric injury/ no mimicking symptoms
• 2.Foreseeability
• 3.Causation

Question 12

What are the conditions for a second victim to claim psychiatric harm

Answer 12

• Relationship proximity: They must have a close tie with the primary victim
• Proximity in time and space: Have to be present at the scene
• Perception: The claimant must have directly perceived the incident
• Psychiatric harm must be foreseeable

Question 13

What are the exclusions for claiming nervous shock

Answer 13

• Normal emotional distress e.g upset, grief.
• Gradual relaization- less likely to succeed if the harm arises later

Question 14

Evaluate the law on the rules of Negligent misstatement being strict

Answer 14

• Difficult to apply rules consistently
• Can lead to floodgates of cases However, this restricts legitimate claims from individuals who suffer real losses due to negligent misstatements
• Critics argue that the contract requirement is too restrictiveand excludes many victims of negligent misstatements from obtaining compensation.
• The requirement for “special relationships” makes it difficult for some claimants to prove their case, even where clear economic loss has occurred.
• There is uncertainty—should liability depend on whether the defendant had expertise, or should it also consider how much the claimant relied on the advice?

Question 15

Evaluate the law on nervous shock

Answer 15

• Policy Considerations Have Limited Liability e.g in a case, claimants were denied damages despite foreseeable harm because they were secondary victims.
• Floodgates of cases
• Psychiatric harm is harder to verify than physical injuries, leading courts to impose strict evidentiary rules
• Mental health conditions vary in severity and impact, making compensation difficult to quantify.
• The Law Commission criticized the inconsistencies and unfair restrictions on secondary victims. They suggested to remove some requirements such as proximity