Negligence & Vicarious liability

Question 1

TORT
NEGLIGENCE

1) What is it?

2) What are the 3 elements to be established

Duty and the exceptions
public policy and the exceptions

Answer 1

1) NEGLIGENCE
- Breach of legal duty to take care by negligent act or omission that injures another
- def may have a defence that defeats claim or reduces damages owed

1) Legal duty - owed by def to claimant to take care
- def must not only be at fault but must also have legal relationship with claimant , making carelessness have legal consequences
- Two types of duty
* ESTABLISHED DUTY
- relationship automatically gives rise to duty, Identified in precedent or facts so analogous to an existing precedent, that CT can apply
ESTABLISHED DUTIES
* One road user to another (D to D D to P)
* Doctor to patient
* Employee - employer
* Manufacturer to consumer
*Teacher to pupil
* Rescuer - where def creates dangerous situation which causes 3rd party to try and rescue another and 3rd party is injured

• CAPARO 3 stage test
• where no established duty
• novel situation - no precedent and no analogous case
• 3 limbs must be established
  i) It was reasonably foreseeable that def’s failure to take care could cause damage to C.
• duty to take care towards claimants at foreseeable risk of harm , C must be foreseeable victim of defs actions
  ii) relationship of proximity between C and Def
• must be relationship between D & C that makes if fair and reasonable that D owes a duty to C
• Proximity is NOT physical closeness - it means relationship between parties
  iii) fair just and reasonable in law to recognise a duty on def to not cause damage to C
• CTS focus on existing precedents, to ensure develops incrementally and is consistent with previous decisions
• policy question, CTS won’t impose duty in all scenarios - excessive claims and cost
• Factors courts will consider
  i) Floodgates - 1 case succeeds 100’s follow eg if police considered to owe a duty
• if police or public servant - duty of care unlikely to be established UNLESS actions direct injury to person and injury reasonably foreseeable
  ii) Deterrence
• CTS may find in favour of claimant to deter others from breaching duty
  iii) Resources - who pays claimant
• if it is defendant insurers, premiums rise and we all pay.
  iv) public benefit - imposing or not imposing duty may be beneficial for society
  *** Capro test not definitive
• used by CTS to see if JUST for a duty of care to be established
• only used if no case law similar on facts and show if fair, just and reasonable to establish duty of care
• in other words used for novel situations and provides ONLY general steer for courts
• emphasis always on looking for established duties/ similar precedents

SUMMARY DUTY OF CARE
1) Is there existing precedent - yes then that will follow
2) is there an analogous precedent similar on the facts - If Y apply precedent to material facts that follow precedent
3) CAPARO - was harm suffered, reasonably foreseeable - was it a reasonably foreseeable consequence of defs actions
4) PROXIMITY - Did D & C have relationship with sufficient proximity
5) FAIR JUST & REASONABLE - to impose Duty of care on D to C in circumstances

GENERAL RULE EXCEPTIONS
A) Omissions defs failure to act causes harm to C
GENERAL RULE = NO duty of care if harm to claimant caused by defs omission
EXCEPTION =
1) existing relationship provides positive duty to act parent child, teacher -pupil, sol-client and doc-patient
2) Rescue scenarios - if by attempting to make a rescue D makes situation worse, than if had done nothing
3) Control - sufficient control of C to prevent harm. Pre-exisitng relationships NOT strangers, does include where control is established - arrest
4) assumption of responsibility - responsibility for C welfare -then forgets about them.
5) creating or adopting risk - creates dangerous situation or fails to take steps to put end to dangerous situation - eg fail to put fire out that spreads

B) Acts of 3rd party causes harm to C
GENERAL RULE - no duty to prevent others from causing damage
EXCEPTION =
1) Special relationship - between D & C
- arises from contractual relationship between 2 parties
- D duty to protect C from 3rd parties
causing harm due to contract
- occurs when def gives express undertaking to C eg not to do something that might endanger C
2) special relationship between D and 3rd party that caused damage/harm, where D has a degree of control over 3rd party eg parent - child
3) Creation of a source of danger - 3rd party actions exacerbate dang situation
4) Failure to abate a known danger - def knows/ought to know 3rd party created danger and ought to do something about it, fails to do anything and C is harmed

PUBLIC POLICY AND THE EXCEPTIONS
- exceptions in omissions and acts of 3rd parties public policy limb in Caparo still applies
- must consider if makes sense to impose liability for public policy reasons - eg if defendant is the police

2) Breach of duty by defendant
- def falls below standard demanded by law
- key issue is what standard of care is for def, and if on facts did def breach that standard

• 2 x key questions
  a) how def ought to have behaved in the circs - standard of care - legal question
• defendant must behave reasonably
• must compare what def done to what “reasonable man” would have done in the position and circs of def
• objective test - personal circs of def IGNORED - looking at act not actor
• ask what level of care and skill did the activity def undertaking require?
• eg day to day driver- that of competent driver
• where person has special skill or profession standard is that of ordinary member of profession in defs circs
• eg def is doctor = standard of reasonably competent doctor, DOES NOT matter how much experience in the job
• if body of opinion in profession supports defs actions= NO BREACH - as long as opinion logical and not extreme/experimental/minor

b) how did def behave - did they fall below standard of care - factual question
- while personal characteristic def are ignored, standard of reasonable person must still be applied to circs of def to see how reasonable man would have acted in circs
- eg driving near school, sensible to slow down? = YES
SETTING THE STANDARD IS DONE BY ASSESSING THE FOLLOWING FACTORS:
*probability of risk of injury - more likely/foreseeable more likely will be liable for failing to take steps to avoid. Because reasonable person would have taken necessary steps
* Seriousness of injury - more serious more likely liable - if consequences of injury were to be serious, reasonable person would have taken steps to have prevented it
* cost of precautions - lower cost of taking steps to avoid injury, more likely liable. Reasonable person would have taken steps if those steps easy to take.
- also relates to the seriousness of the injury - more serious injury greater steps def should have taken, even if costs high
* social value of activity -
- more beneficial activity is to society, less likely liable, as more reasonable it would be to dispense with safety precautions eg emergency situations or sports - standard of care is lower in these scenarios
ESTABLISH BREACH
How did def behave- fall below standard of care?
- question of fact determined by CT on evidence
- burden on C on balance of probs, that actions fell below required standard of care
- EXCEPTION RTA burden of proof on def to show did not fall below standard
- criminal convictions can be used as evidence
- CTS can infer liability under doctrine of res ipsa loquiter ie circs surrounding negligence are enough to be evidence of carelessness, common sense to say there is negligence
- to arise def must have control of thing that caused injury, and accident would not have happened had def managed thing properly
- example - someone trips by pool because floor wet
Compensation act 2006 - CT may take into account whether taking any steps to prevent harm and meet standard of care would discourage /prevent desirable activities from taking place - school trips, volunteering
Social action, responsibility and Heroism Act 2015 - CT must take into account whether when being negligent def was acting for benefit of society or others, was being responsible for others or was carrying out a rescue as a hero

3) damage to claimant, caused by breach, not too remote
- must show defs breach caused their harm
- two aspects, both must be satisfied
A) Factual “but for” negligence would harm have occurred. ie is defs negligence necessary pre-condition for harm to occur

B) Legal if Yes, was negligence “real cause” of harm. Or was harm too remote, was there an intervening act ie factually harm wouldn’t have occurred but for negligence, BUT it must then be found IF IT REALLY caused the harm.
- on balance of probabilities
- therefore if more likely harm would have occurred anyway - no liability
- where multiple potential causes, and not clear enough to establish what IS the cause - but for test FAILS and escapes liability
EXCEPTION TO “BUT FOR” RULE
- CTS deviated where multiple causes in certain settings - mainly industrial disease cases
- multiple causes therefore impossible to establish what is the cause on balance of probabilities, which may lead to unjust outcome
- example = industrial disease caused by years of working at a factory of one or multiple employers, with employers negligence each contributing to a risk of that disease being caused and contributing to the risk of that disease being caused and contracted
- test depends on circumstances of inquiry
* where C cumulative exposure to toxins - dust or gas, and such exposure over time has cumulatively damaged C’s health and caused the injury - asbestosis = use material contribution test
* Material contribution test - defs negligence must have material contribution, more than negligible, on balance of probabilities, to the injury.
- test operates where C is exposed to toxins through innocent means (in course of job) and because of def’s negligence (eg did not provide adequate equipment) C awarded damages proportionately up to amount def is liable to the injury ie how much he materially contributed
- where C has pre existing condition - emergency or injury, and a series of medically negligent acts by def (hospital/doctor) materially contributes to injury- use material contribution test on balance of probs.
- where C has non-cumulative injury (not mesothelioma) because of one-off exposure to toxic material, but unclear whether Def (single or multiple employers) is liable under the but for test. Use Material increase in risk test. As a result of def negligence there was a material risk C would contract injury through one off exposure on balance of probabilities. Def will be 100% liable for damages or if multiple employers - joint and severally liable
- where C contracts mesothelioma only as a result of working for one or several negligent employers over time, as asbestos is caused by single moment, not necessarily over time, the material increase in risk test is used but there is not balance of probabilities calculation, provided that it can be shown there was a material increase in risk. Def will be liable - Fairchld exception - used because our scientific knowledge cannot be determinative using the but for test, but it still would be unjust not to award damages. But the employers will be joint and severally liable (or if one 100% liable). C can sue one employer, then they need to sue the other employers to recoup the damages under s1(1) of civil liability (contribution) act 1978
- where C suffers injury - not mesothelioma but lung cancer- because of one off exposure to a toxic material but there are multiple employers who over time could have caused that exposure (but it is unclear which did and therefore material risk on balance of probabilities test fails, but still unjust not to award C damages - fairchild exception) use material increase in risk test (assess each def and see if their negligent actions materially contributed to the risk) but def will be liable according to their contributions to the increased risk - damages will be apportioned according to the amount of time C was exposed to the risk under defs employment
- CAUSATION - multiple defs, and no complex industrial disease fact pattern, but neither defendant can be proved to be the cause of harm suffered. Apply material increase in risk test based on balance of probs - need to check no break in chain of causation

SUMMARY - MULTIPLE CAUSES IN INDUSTRIAL INJURY SETTINGS

1) Cumulative causes/conditions. C exposed to toxins innocently and caused by Defs negligence
= Defs negligence materially contributed to harm on balance of probs. Def is liable proportionately according to amount of harm caused.

2) One-off exposure causes injury - not meso. Single or multiple employers - balance of probs can be used
= Def’s negligence materially contributed to the risk of harm on balance of probs (more than 50% chance negligence materially increased the risk) Def 100% liable for damages or if multiple employers joint and severally liable.

3) One off exposure causes injury - lung cancer caused by asbestos, but balance of probs can’t be proven applying the material contribution of risk test ( because you have multiple employers/causes and it is unclear which materially contributed to risk on balance of probabilities
= same test - defs negligence materially contribute to risk of harm, but balance of probs is not relied on (fairchild). Instead cts look to what is just; damages are apportioned between defendants according to period of time C was exposed to risk as a result of each defs negligence

4) One off exposure causes mesothelioma, but balance of probs cannot be proven applying material contribution of risk test ( because has multiple employers/causes and it is uncles which materially contributed to risk on balance of probs
= Again, material increase in risk test used without balance of probs (fairchild), but key difference here is that defs are joint and severally liable

Question 2

Tort - Negligence Remoteness of damage

Answer 2

• was harm TOO REMOTE a consequence of defs negligence
• ie so far removed from defs negligence that was unforeseeable by def - reasonable person test - at time action occurred
• judge on circs known to def at the time - and apply reasonable person test- would they have foreseen the harm in these circumstances
• Need to ask:
  KIND OF DAMAGE
• reasonably foreseeable at time breach occurred?
• could be liable for one thing but not another that was a result of same breach because that was not foreseeable.
  AMOUNT OF DAMAGE NEED NOT BE FORESEEABLE ONLY THE KIND
• if def causes some foreseeable harm, that is enough, even if harm ends up seriously maiming someone
• liable for ALL physical consequences that arise from carelessness, provided foreseeable consequences
• eg - crash into wagon, damage foreseeable truck and contents would be damaged, also liable for contents even if expensive clothing
  EGG SHELL RULE
• applies to any foreseeable injury to the claimant that ends up causing serious damage, because of an illness or weakness of the claimant
• take claimant as find them. Even if claimant suffers more harm than would be expected because of some illness, as long as original harm is foreseeable. If found def is liable
  INTERVENING ACTS
• def may start chain of events - eg accident, BUT a later event may break chain of causation, and in fact be real cause of event
  INTERVENING ACT OF A 3RD PARTY
• instinctive intervention does NOT breach chain eg self-defence which then injures claimant
  INTERVENING ACT - NATURAL EVENT STORM
• provided unforeseeable
  NEGLIGENT INTERVENTION OF A THIRD PARTY
• 3rd party acts negligently as a result of defs negligence and def should have foreseen that as likely consequence of their actions, DOES NOT break chain
• BUT if 3rd parties act completely random, and this causes injury, DEF WON’T be liable
  -if 2 or more negligent drivers/3rd parties causing harm, CT will apportion damages rather than let driver off
• Medical intervention - will not break chain UNLESS extreme or palpably wrong
• 2 parties causing harm- same injury at different points = no break in chain as both part of same cumulative harm. Only if another injury caused will it break the chain
  RECKLESS OR INTENTIONAL ACT OF A 3rd PARTY
• Reckless/intentional actions of 3rd party that causes loss to C, WILL break chain if unforeseeable
• ie acts unexpected consequences of defs actions
  -BUT if established relationship/control between def and 3rd party, that causes loss, chain WILL NOT be broken by 3rd party
  CLAIMANTS ACTION AFTER EVENT CAUSE FURTHER HARM
• Def injures C, C then injures themselves as a result of original injury and causes further harm. Def MAY be liable for further harm
• BUT if further harm is stupid and careless actions of C, when knew had original injury, def will NOT be liable, as C’s actions break chain
• Claimant acts reasonably, will be seen as a natural event, as result defs original negligence causing first injury
  -In these situations contributory neg may be used rather than break in causation

FLOW CHART
ESTABLISH CAUSE IN FACT
- BUT FOR TEST
- IS BUT FOR TEST IMPOSSIBLE/UNJUST
- industrial disease context or multiple def drivers contributing to same injury = Y
- IS DISEASE CUMULATIVE
= Y - Use material contribution test, on balance of probs
- 1 def = 100%, multiple defs, each proportionately liable

= N - Disease non-cumulative? - one off disease - asbestos exposure, or multiple defs contributing to 1 injury - car accident?
=Y - Use material increase in risk test, use balance of probs - asbestos or car accident, DO NOT use balance of probs if dealing with mesothelioma or lung cancer caused by asbestos exposure (fairchild exemption)
- if mesothelioma - defs jointly & severally liable, if not Defs proportionately liable

ESTABLISH CAUSE IN LAW
- CAUSE IN LAW ESTABLISHED can move to cause in law.
- if cause in fact NOT established - Def NOT liable
- WAS KIND OF HARM/INJURY suffered by c reasonably foreseeable
=Y - was there an intervening event that broke chain?
- Intervening/negligent/reckless act of 3rd party; unforeseeable natural event, at of C

Question 3

DEFENCES TO NEGLIGENCE

Answer 3

CONSENT - Volenti non fit injuria
- complete defence , claim fails if shown
- arises in 2 situations
1) consents to specific harm caused by Def
2) consents to risk of harm - into pane with drunk pilot
To establish defence, C at time must have
a) full knowledge of nature and extent of risk- must know risk and potential harm could cause
b) willingly consented to accept risk being injured due to negligence of def
- subjective test - see if C knew of full extent of risk and consented to it
- NOTE s149 RTA - defence CONSENT is INVALID for drivers against passengers. C gets in car even though knows def drunk
- BUT if gets in fully knowing risk can establish contrib negligence
- Defence ONLY applies where C chooses to run risk voluntarily, NOT where C had no real choice
- defence WON’T RUN in
a) employer and employee - working, no choice but to run risk, could loose job
b) rescuer - take risk to rescue and become injured by defs neg, def CAN’Y use consent- acted out of moral compulsion, no choice

ILLEGALITY
- complete defence, claim fails
- no damages for losses whilst COMMITTING crim act
- BUT if crim act trivial or in background to negligence illegality WILL NOT apply eg park illegally and def negligently drives into car
- question of fact - seriousness of crime
- Public policy and common sense - CTs don’t want to reward crim behaviour, or let def off for serious harm or negligence if illegal act performed by C that is minor in comparison

CONTRIBUTORY NEGLIGENCE (CN)
- does not defeat claim but reduces amount of damages owed
- to establish
a) must fail to take reasonable care for own safety
- objective standard - reasonable man - position, age and actions
- NOTE age - young child - NO CN, older child - harder to establish. Illness eg hypoglycaemic attack
b) failure must have contributed to C’s loss - some contribution made to injuries suffered eg not wearing seat belt.
- C careless but has no effect on injury - doesn’t court
- BUT if C careless because drunk can’t use to try and defeat CN - test is still reasonable sober person in circumstances
- CT decides how much CN should reduce damages. Looks at proportion which C’s carelessness contributed to injury. If 33% to injury 33% reduction etc etc

Question 4

TORT - REMEDIES

Answer 4

• Damages - monetary - primary remedy
• Types
  a) exemplary damages - higher than usual to punish Def
  b) Agg damages - higher than usual sum to reward C for greater degree of suffering than expected
  c) Contemptuous damages - C gets less than expected, won but CT not happy not settled in first place
  d) Nominal damages - legal wrong but C suffered no harm
  e) Compensatory damages
• put IP in position would have been in had no injury occurred - return to pre-tort position

Compensation for injury
- injured and can’t work, awards =:
* sum reflects what would have earned had not been injured
* damages specific injury - use court guidelines - blindness £50 thousand
* expenses - eg medical- incurred as result of injury - up to trial and in future
* Cost of care, past and future (carers) provided reasonable
* non- pecuniary losses - pain, suffering, distress, including loss of enjoyment of life - footballer who can no longer play
* future loss of earnings

Two types of compensatory damages
1) Special damages
- cover costs - medical costs/loss of earnings plus interest already incurred by C up to date of trial. Easily quantifiable, past costs

2) General damages
- future loss of earnings/ medical costs & other general losses eg emotional pain, suffering and amenity - not easily quantifiable- future losses
- future care is recoverable provided reasonably incurred

CALCULATION
FUTURE LOSS OF EARNINGS
- multiplier used
- salary lost as result of injury multiplied by years claimant can no longer work
- discount also applied to account for money being given as a lump sum which then could be invested, and returns gained. To prevent over compensating
PARTICULAR INJURIES
- set of judicial guidelines
- brain damage - £236, 338 thousand
- loss of taste £16- 21,000
- can also impose periodical payment order (PPO) - periodical payments over time to compensate loss of earnings, due to injury, rather than
- benefit of PPO - flexible and amount can be changed is condition worsens

• Deductions can be made from award from damages, because of principle that damages compensatory
• if C receives benefits due to injury, these are deducted from the damages awarded
• NOTE insurance payments NOT deducted. CT does not want to dissuade from getting insurance.

COMPENSATION FOR DEATH - Fatal Accidents Act (1976)
- if death caused by negligence, claim survives death, estate can bring claim
- dependants entitled to damages to compensate loss
- dependant - spouse, cohabitee ( living together (2 years), child, parent, uncle aunt, brother or sister
- Loss can be
* Loss of earnings provided to household by deceased, up to date of death
* value of service of deceased - eg childcare, childcare costs can be added to damages
- funeral costs added. contributory neg still applies
- in addition to compensatory damages, spouse, cohabitee, parents (if victim minor) can get bereavement damages up to max £15,120

How Claimant can sue multiple defendants
ACT
- 2 or more parties causes different or different levels of harm to C
EXAMPLE
- car crash damage to property, 2nd car crashes into same car and causes injury
LIABILITY
- Defs independently liable
- pay for actual harm caused - damages apportioned according to harm caused

ACT
- 2 or more parties cause independent actions that contribute to same harm
EXAMPLE
- C suffers psychiatric harm after 2 drivers crash into car at same time or within minutes
LIABILITY
- Either def or both can be sued by C for all damages
- def sued can then sue other def to recoup damages under civil liability (Contribution) ACT 1978

ACT
- 2 parties act with same common goal and caused same damage
EXAMPLE
- 2 drivers joy riding, neg 1 or 2 cars crash into C and cause injury
LIABILITY
- Either def or both can be sued by C for all damages

Question 5

VICARIOUS LIABILITY (VL

1) What is it and how is it established?

Answer 5

1)
- employer can be liable for employees actions EVEN if employer hasn’t done anything
- employer liable for employees wrong committed during course of employment
- employee remains liable for their actions but likely not worth suing for financial reasons

NEED TO HAVE
1- employer - employee relationship
- obvious when company and employee
- more complicated where agents of seller, volunteers, hired help, casual workers etc
- look for relationship “akin to employment”
- if met even those not formally employed can be captured, as long as task carrying out while committing tort is in a way, and under relationship like an employee’s
- CT looks at:
* level of control company has over individual
* whether worker managed by company or accountable to it
* if they wear company uniform
* how integrated in the business - role integral to business?
NOTE independent individual with own business, does work for employer as contractor - DOES NOT give rise to VL

2- TORTIOUS ACT
- must commit tort most commonly negligence

3- IN COURSE OF EMPLOYMENT
- close connection test - between tort and individuals job
- must be committed whilst doing job as hired or in day to day role
- Look at functions assigned to employee and was Tort committed whilst doing these
- doesn’t matter if careless, reckless or acting below standard expected of employer, as long as did act while doing the job hired to. eg talking on phone while delivering goods and crashes
- if go outside job in course of employment eg running errand or dong something prohibited from doing, this is NOT in course of employment
- lunch break does not fall outside of job function