General Principles of Liability Flashcards
1
Q
Intro
A
2 people defined it.
Sir William Salmond - “civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of trust or other merely equitable obligation”
Winifield - “the breach of a duty primarily fixed by law; this duty is owed to persons generally and its breach is redressable by an action for unliquidated damages”
- Purpose was to defend interest of the Claimant achieved by awarding damages or an injunction.
2
Q
Interests protected
A
3 important interests
- Persons bodily integrity - if assaulted, battered or falsely imprisoned could be trespass to body. If injury inflicted negligently, could be negligence action. If character or rep damaged, could be defamation.
- Property - interference with peaceful enjoyment, stealing or damage to property.
- Economic loss - loss of salary or medical fees. Pure economic loss not so much.
3
Q
Interests Protected (2)
A
- No action for legitimate business competition (Damnum sine injuria)
- Claims can be more so if you develop something, rather than the potential that you may develop it.
- are torts of conduct where they are actionable without harm - trespass to land and to person.
- trespass to land, without permission - injuria sine damno - it is actionable per se.
4
Q
Mental Element
A
- Def interferes with recognised protected interest
- Some torts, Def must be at fault either they failed to take care or acted intentionally.
- mental state doesn’t require Def to have “intended harm” but consider tortfeasor was “at fault”
- Doesn’t require Cl to prove fault on part of Def, whether that be malice, intention or negligence, known as tort of strict liability.
5
Q
Malice
A
2 meanings, may be - intentional doing of some wrongful act without proper excuse or acting with some collateral or improper motive
- if person has right to do something, motive is irrelevant, but if violates another persons right intentionally then responsible in tort.
*Bradford Corporation v Pickles 1895 - Def extracted percolating water flowing under land so water supply to reservoir was reduced. Def motive was to compel Cl to buy at asking price, but failed as Def had right to extract water
- Some exceptions, private nuisance whether Def behaviour was unreasonable interference and malice may be factor Christie v Davey 1893 . Defamation malice may defeat honest opinion or qualified priviledge.
6
Q
Intention
A
- State of mind relevant
- if want to produce result forbidden, foresee it and does it anyway, acted intentionally. Most relevant to trespass - no need to intend to cause harm
- may be liable in negligence where drive car contrary to medical advice and have accident.
7
Q
Negligence
A
- doesn’t describe state of mind - making assessment of conduct by looking back to time conduct caused harm to Cl
- totally disregards safety of others but doesnt injure may be morally reprehensible but not negligent. If tries best and falls below standard, is liable.
- objective standard, how “reasonable person” would behave so no account taken for disabilities or peculiarity.
- learner driver judged by standard of average qualified driver Nettleship v Weston 1971
- High risk been acknowledged by Parliament that requires learner drivers to be covered by 3rd party insurance - if to deter Defs then setting standard too high counterproductive
8
Q
Strict Liability
A
- impose strict liability if Def held liable even if Def taken every reasonable care to avoid accident.
- liability for interfering unreasonably with another’s use and enjoyment of land, nuisance, or liability for accumulating dangerous substances that escape and cause harm in others as per Rylands v Fletcher 1868 - dont have to prove that Def careless.
- liability of employers for tort of employees - Vicarious liability, dont need to show Def employer careless.
- defamation - not need to show careless in publishing statement.
- Reason could be employers stand to gain by employing others. Reason for dangerous substances is creates serious risk for use & enjoyment of land and fair to hold liable for damage.
9
Q
Objectives of tort
A
- 2 clear objectives - deterrence and compensation.
- not normally have punitive function, shown by exemplary damages, designed to punish Def, rarely available Cassell v Broome 1972
10
Q
Deterrence
A
- Individual deterrence - Def will change their behaviour and be deterred from causing similar accident in future.
- those legally attributable to lack of reasonable care on part of driver may be unavoidable.
- If cant avoid error, cant be said to be deterred.
- damages are not assessed according to degree of blame of Def, slight degree of fault can give rise to large legal award.
- More effective in defamation or professional negligence. - General or market deterrence - should aim to reduce costs of accidents and encourage accident prevention
-Those that participate in accident-causing activities should bear cost.
- Risk creator. if business, would pass costs of extra insurance cover through products manufactured and sold, so end result that public pay cost and spread it over large group
- usually Def insurer who pays comp and not Def. Watered down, especially if insurance compulsory.
11
Q
Compensation
A
- law shifts losses from Cl to Def where Def has been proved to have committed tort
- Systems for compensating accidental crime are Criminal Injuries Compensation Scheme (fixed comp paid for violent crimes) and Industrial Injuries Disablement Benefit Scheme (fixed periodic amounts for industrial accidents)
- State payments payable on occurrence, tort damages payable on proof that person caused injury and committing crime.
- criticised on basis that very expensive, system unpredictable and put pressure on Cl to settle, slow, and lump sum awards given so cant be changed later (now can do periodic payments)
- Pearson commission (Royal Commission on Civil Liability and Compensation of Personal Injury looked into comp - made proposals, some unworkable.
- NHS Redress Act 2006 - scheme to enable redress w/o lit where action in personal injury may be brought by hospital or healthcare. Covers acts and omissions in diagnosis, care and treatment.
- civil justice system is compensation culture, Cl sue at every opportunity for anything.
- Compensation Act 2006 had 3 objectives, ss1 and 2 address perception of comp culture into stat format, Law Lords in Tomlinson v Congleton Borough Council 2003
- in commentaries, wording of ss1 and 2 codifies existing pos by saying what Ct can consider when determining reasonable care re neg or breach of stat duty. Regard given to whether Def tried to prevent or discourage activity. Apology or offer of treatment not amount to admission of liability.
12
Q
Tort & Crime
A
- Tort civil law - standard of proof on balance of probabilities so easier burden on Cl. Purpose is to compensate Cl not punish Def, but criminal Ct can order Def pay comp
- minor assaults or theft, easier to get order than to bring separate civil proceedings for trespass to person or conversion of property.
13
Q
Tort & Contract
A
- difference used to be contract had obligation arise from agreement or will of parties, but tort obligation imposed by law.
- no longer, as contractual obligations imposed by Sale of Goods Act 1979 (as amended by Sale and Supply of Goods Act 1994) and Consumer Rights Act 2015, some torts arise out of pre-existing relationship (occupier to visitor or doctor to patient).
- contract said to protect expectation interest of Cl but tort protect reliance interest
- contract liability strict, tort is fault-based.
14
Q
Parties - special categories
A
- child of any age can be used in tort in theory, and parents not automatically liable but wont have assets or money.
1. Sovereign immunity - Crown Proceedings Act 1947 - Crown liable in tort for actions of servants or agents, as if were employer. Crown Proceedings (Armed Forces) Act 1982 says member of armed forces can sue fellow member for injury during exercise of duties. No proceedings can be brought against sovereign in person. - Foreign sovereigns cant be sued in English Court unless immunity waived (State Community Act 1978). Are exceptions - matters re commercial contracts, acts or omissions that lead to personal injury or death etc.
2. Administration of Justice - can attract total immunity, but not for negligence, apart from someone giving evidence at Court.
Roy v Prior 1971 - avoids being tried on evidence lots of times. Darker and Others v Chief Constable of the West Midlands Police 2000 - encourages people to assist justice. Not extend to all acts of police during investigation and prep as they made up evidence, so could be sued for conspiracy and misfeasance. - applies to jurors and Judge about what is said or done at Court.
3. artificial legal persons - corp, such as ltd co can be vicariously liable for employees or commence action in own name. - LLP can be set up by partners, not secured liability for tort. Set up under Limited Liability Partnership Act 2000 and can be used.
- Partnership - actions by or against must be in names of partners and name of firm. Can be jointly and severally liable for torts of other partners (Partnership Act 1890)
- not clear if trade unions or clubs can be sued or sue, could sue members and make personally liable, Ct can make representation order where certain members only of a body are allowed to take or defend proceedings in interest of whole membership.
15
Q
Special Categories (2)
A
- Minors - must sue by “litigation friend”
- Congenital Disabilities (Civil Liability) Act 1976 allows child born and disabled may have right of action for torts committed while in womb. - something that affected either parent of the child affected in ability to have normal healthy child, or affected mother during pregnancy over course of birth of child. Born = moment child first has a life separate from mother
Disabled = born with deformity, disease or abnormality including predisposition to physical or mental defect in future.
- no action taken against mum unless act falls within s2 (driving while pregnant), woman treated as owed same duty of care for unborn child as to other users. Exception if mother’s claim covered by compulsory 3rd party motor insurance.
Disabled child derivate no duty owed to unborn child - committed against parents, and damage to baby before or during birth. Accident at work may be actionable by disabled child if employer at fault - no defence of infancy in tort, held proper standard to be expected from child is what reasonable child of that age would be capable of achieving Mullin v Richards 1998
- In tort, parent can be liable for failure to control child properly, separate - Joint and several liability - no rule if 2 or more people cause one Cl different injuries - can sue each separately, but where 2 or more Cl cause same injury more complex, can sue all or any, as each Def wholly liable for full extent of harm.
- joint tortfeasors where made liable for same tort
- Civil Liability (Contribution) Act 1978 - s1(1) means Defs can claim contrib from other Defs.
- Ct have to consider allocation between Defs and Cl
Fitzgerald v Lane 1988 - Cl crossing road, light red to cross, hit by car D1 and thrown onto path D2. First contrib neg dealt with, then blame for Defs (50/50)
