Paper 2 Section B Flashcards
What is the aim of remedies in tort law?
Compensation,also known as compensatory damages.
What’s the aim of compensatory damages?
The aim of damages is to put the C back into the position they were in before the D’s negligence happened to them.
What are the two types of losses?
And what are they?
- Pecuniary loss~ things that have a price
e.g repair costs, lost wages - Non-pecuniary loss~ things that don’t have a price
e.g pain and suffering, future loss of earnings, loss of amenity
What are the two types on damages?
What are they?
- Special damages~ amounts which can be calculated specifically up to the date of the court hearing (for pecuniary losses)
- General damages~ Amounts for non-pecuniary losses, looking forward from the court hearing. Speculative because the future cannot be predicted.
What are the two ways the court can decide how the compensation should be paid out to the C?
- Lump sum — money paid out in one amount
- Structured settlement — structured payments, the payments can be monthly or yearly
What is mitigation of loss?
C is entitled to claim for any and every loss they have suffered due to D’s negligence. However these losses must be kept to a reasonable level.
This is the duty to mitigate.
Case: Marcroft v Scruttons (1954)
What is contributory negligence?
This is a partial defence to claims of negligence and occupiers’ liability. D argues that the C partly caused the injuries suffered, and asks the court to reduce the blame and therefore the damages to be paid
What does the Law Reform (Contributory Negligence) Act 1945 provide?
Provides that any damages are awarded to C can be reduced according to the extent to which they had contributed to their own harm. The judge will decide the percentage that C is responsible for, and then reduce the amount of damages by this percentage.
Contributory Negligence
Failure to take care ->
This defence involves showing that C did not take appropriate care in the situation.
C is expected to act like a reasonable person would have in taking care of themselves in light of D’s negligence.
Case — Sayers V Harlow UDC (1958)
Gough V Thorne (1966)
Contributory Negligence
Defences
Contributing to the harm ->
C’s own negligence must have helped to cause the injuries suffered, despite the defendant’s fault.
Case — O’Connel V Jackson (1972)
Froom V Butcher (1976)
Contributory Negligence
Defences
100% reduction in damages
Although rare, it has been possible for the court to reduce damages by 100%.
This is usually where an employer has an unavoidable statutory duty to keep employees safe
Case — Jayes V IMI Kynoch (1985)
What is volenti non fit injuria?
Consent, also known as Volenti non fit injuria, is a full defence to a claim in negligence or occupiers’ liability, when D shows that C voluntarily accepted a risk of injury. If successful, C will receive no damages
Volenti non fit injuria
Defences
Knowledge of the risk
Firstly, C must have knowledge of the risk which is subjective rather than objective
It is not enough for C to know of the existence of a risk, they must fully understand the nature of the actual risk.
Case — Morris V Murray (1991)
Condon V Basin (1985)
Volenti non fit injuria
Defences
Free choice
The defence will not succeed where C has no choice but to accept the risk: they must freely undertake the risk of harm.
Case — Smith V Baker (1891)
Volenti non fit injuria
Defences
Voluntarily accepted the risk
Where a person has a duty to act and is then injured by D’s negligence, volenti will not be available as a defence.
The duty usually means C had no real choice but to act, so it was not voluntary.
Case — Haynes V Harwood (1935)
Road traffic act 1988
One restriction on the use of volenti is section 149 of the Road Traffic Act 1988.
This states that the defence cannot be used in road traffic accidents. This is because everyone must have third-party insurance, which will compensate injured victims.
What is precedent?
Precedent is the theory that says that when one court makes a ruling, other courts should follow it.
The court making the decision sets the precedent (legal principle) and when similar cases come to court those courts should apply the legal principle to their case.
What is judicial precedent?
This happens when a judge explains the reason, they gave their decision in a case and will be published as part of their judgement.
This is called ‘reasons for the decision’ in latin ‘ratio decidendi’
Anything else said (such as hypothetical its and buts) is called obiter dicta. This does not have to be followed, but it could be persuasive to future judges.
What are the three types of precedents?
- Binding precedent
- Original precedent
3.Persuasive precedent
What is binding precedent?
Binding precedent is where a decision has already been made in an earlier case which is similar to the current one.
It must be followed if it was made by a more senior court.
Case — Donoghue v Stevenson 1932
What is original precedent?
This is where there is no previous binding precedent to follow.
The judge will have to make a new decision. They might do this by looking at similar cases (called ‘reasoning by analogy’)
Case examples — Hunter v Canary Wharf Towe
Fearne and others v Board of Trustees of the Tate Gallery
What is the persuasive precedent?
This is precedent that is not binding, but it might be persuasive.
There are 6 sources it can come from:
1. Courts lower in the hierarchy
2. Decisions of the Judicial Committee of the Privy Council
3. Obiter dicta statements
4. Dissenting judgments
5. Decisions of courts in other countries
6. Decisions of the European Court of Human Rights
N E G L I G E N C E
Define negligence
Negligence is doing something the reasonable person would not do or failing to do what the reasonable person would do as defined by Baron Alderson in Blythe V Birmingham Waterworks.
The reasonable person…
Is the man or woman on the London Underground. This is an objective test.
Duty of care
The Robinson Approach
Duty of care us a legal relationship between the defendant and the claimant. The case of Robinson V CC West York Police outlines that there is a pre-established or analogous precedent the court will apply this to the case before them
What does analogous mean?
Similar or comparable to
e.g teachers —> student
Parent —> children
The caparo test
*only used in novel situations
Foreseeable
Court will ask: “ is it reasonably foreseeable the D’s careless acts or omissions could result in loss or damage to the claimant?”
Proximate
Court will determine whether the parties are in a relationship of proximity, this could be: temporal proximity/ relational proximity
Fair just and reasonable
It must be fair just and reasonable for a duty of care to exist. The court will take account of any reasons a duty should exist e.g public interest
Breach of duty
For a successful claim in negligence, the Claimant must demonstrate that the Defendant breached their duty of care. Depending on their position, depends on the standard they must fall below
Ordinary person
The ordinary person will be held to the standard of the reasonable man
Professionals
The bolam test
The standard test is known as the bolam test which asks: “would a reasonable and competent body of professional opinion have acted the same way?”
If yes then there is no breach
Case — Bolam V Friern Hospital
Professionals
The Montgomery test
Additional test which will determine whether doctors specifically have breached their duty.
Doctor must inform their patient of and and all risks linked to the procedure, surgery or medical treatment given. Patient must give informed consent
Case — Montgomery V Lanarkshire
B.o.D
Learners
Learners are amateurs that are held to the standard of the experienced person.
e.g learner driver will be held to the standard of a reasonable experienced driver.
Case — Nettleship V Western
B.o.D
Children
A child will be held to the standard of the reasonable child of their age.
e.g 14 year old child would be held against whether a reasonable 14 year old would do the same thing
Case — Millin V Richard
Risk factors
To decide whether the defendant was acting reasonably, several factors will be considered.
The courts must complete a balancing act between the responsibilities of the defendant and the rights of the claimant.
Risk factors
Special characteristics
Where the claimant has a special characteristic, it is the responsibility of the defendant to increase protection against potential risks.
This could be through specialist equipment, additional safety rules of guarding against specific risks.
Failure to do so may mean a defendant has acted unreasonably.
Case — Paris V Stepney BC
Risk factors
Size of the risk
The protections offered by the defendant against risks must be balanced against the likelihood of harm occurring.
If the risk of harm is likely, then precautions should be in place to reduce the risk as much as possible.
Where the risk of harm is unlikely then the defendant is not expected to go to extreme means.
Case — Bolton V Stone
Risk factors
Cost and effort required for precautions
Where the defendant has taken reasonable precautions to protect against a risk, they are not expected to go to large expense or effort to completely irradicate the risk.
There is no need for the defendant to eliminate every possible risk, this would be unreasonable.
Case — Latimer V AEC
Risk factors
Knowledge of the danger
Where the risk is unforeseeable, then the defendant will not be in breach of their duty when risk occurs.
Where the defendant follows standard practise at the time they will not be unreasonable.
Case — Roe V Minister of Health
Risk factors
Public Benefit
Where the defendant is carrying out a risk which will have a public benefit such as saving a human life, this will outweigh the need to take precautions.
The defendant is acting reasonably to protect the life of another person or for a public good.
Case — Watt V Hertfordshire CC
Factual causation
Factual causation asks one question: But for the defendants actions, would the loss, damage or injury have occurred
Case — Barnett V Chelsea Kensington Hospital
Define causation
For a D to be liable for the damage or injuries sustained, there must be an unbroken link between the defendant and the claimant.
This is known as the chain of causation.
There cannot be a break in this chain, if there is then the defendant is NOT liable.
Legal causation:intervening actions
There cannot be any intervening acts which will break the chain of causation.
1. Act of a Claimant—McKew V Holland, Hannen &Cubbits
Where a claimant does something unreasonable and unforeseeable, then they will break the chain of causation for the original injury.
2. Act of a Third Party— Knightly V John & others
Where a third party does something unforeseeable and causes loss or injury to the claimant then the chain of causation will be broken.
If the third party’s act is foreseeable, the chain of causation will remain in-tact.
3. Act of God
An act of God is an unforeseeable, natural event which breaks the chain of causation, it must significantly contribute to the final consequences of the result.
Legal causation: Remoteness of Damages and type of injury
The damage must not be too remote from the breach of duty by the defendant.
The injury or damage must be reasonably foreseeable (a reasonably foreseeable person should predict or expect from his negligent action)
The defendant will also be liable if the type of injury was reasonably foreseeable, even though the precise way in which it happened was not.
Case — The Wagon Mound
What is the Thin Skull Rule
You must take your victim as you find them.
If the type of injury is reasonably foreseeable, but is much more serious because the C has a pre-existing condition, then the D is liable for all subsequent consequences.
Case — Smith v Leech Brain
O C C U P I E R S L I A B I L I T Y
Define the Occupiers Liability Act 1957
The Occupiers Liability Acts 1957 ensures that lawful visitors are kept reasonably safe on a premises, where a visitor is injured due to the state of the premises then the C may claim against the occupier for any loss or injury
The occupier (s1(2) OLA 1957)
A person who may, but doesn’t not have to be the owner or tenant of the premises. There is no statutory definition of the term ‘occupier’. In practice, it is the person who is in control of premises usually who insurance policy covers the premises
Case — Wheat V E Lacon [1966]
The Premises (s1(3)(a) OLA 1957)
A person having occupation or control of any ‘fixed or moveable structure, including any vessel, vehicle or aircraft’ this includes: houses, offices , buildings
Case — Wheeler V Copas [1981]
Name the 4 Lawful visitors
- Invitees
- Licencees
- Contractual Permissions
- Statutory Permissions
Define Invitees
A persons who have been invited to enter the premise and who have expressed permission to be there
Define Licensees
Persons who have expresses or implied permission to be on the premises for a particular period and purpose
Define Contractual Permissions
e.g a person who has brought an entry ticket for an event
Define Statutory Permissions
Those given a statutory right of entry. e.g the police exercising a warrant or meter readers
What’s the case for lawful visitors?
Lowrey V Walker [1911]
Who will not be considered as a lawful visitor?
- Trespassers
- Invitees exceeding permission
- Those exercising public right of way
- Those exercising private right of way
Define trespasser
A person who has no permission to be in the occupiers premise
Define [invitees exceeding permission]
Person who has outstayed their welcome have been told to leave or have gone into an area where they aren’t supposed to be
Define [those exercising public right of way]
Where it allows the public to walk, drive, cycle along specific routs of land that belong to someone else. The land itself is privately owned
Define [those exercising private right of way]
The right to use the part of another’s property in a particular way even though they do not own it.
For example: an alleyway between houses
Case for people that are not going to be considered as a lawful visitor
The Calgarth (1927)
Define adult visitors
Common duty of care to keep adult reasonably safe for the purpose of their visit
Case — Laberton V Kiapasha Takeaway Supreme
Children, skilled visitors and independent contractors
S2(3)(a) OLA 1957
The occupier must be prepared for children to be less careful than an adult and the premises must be reasonably safe for a child of that age
Children, skilled visitors and independent contractors
Define allurements
Something on the premises that may be attractive to children and which may cause them harm or injury
Case — Glasgow Corporate V Taylor (1922)
Children, skilled visitors and independent contractors
Foreseeable damage or injury
If an allurement exists, there will be no liability on the occupier of the damage or injury suffered is not foreseeable
Case — Jolley V Sutton LBC (2000)
Children, skilled visitors and independent contractors
Parental supervision
Where very young children are injured, the courts are reluctant to find the occupiers liable, as the child should be under the supervision of a parent or other adult.
Case — Phipps V Rochester (1955)
tradespeople
An occupier owes a tradesperson coming onto their premises a ‘common duty of care’ however:
Tradesperson
S2(3)(b) OLA 1957
The occupier can expect that a person in the exercise of their calling (trade) will: ‘appreciate and guard against any special risks ordinarily to it so far as the occupier leaves him free to do so’
Tradesperson
S2(3)(b) OLA 1957
Guarding against risks
The occupier owes a common duty of care to workers. This means that an occupier will not be liable where work do not guard against risks which they should know/expected to know about this defence to an occupier only applies where the worker is injured by something related to their work. If the worker is injured by something different the occupiers will still owe the common duty of care.
Case— Roles V Nathan (1963)
S2(4) OLA 1957
The occupier is not liable for the damage caused to a visitor by danger due to the faulty execution of any work or construction, maintenance or repair by and independent contractor employed by the occupier
