Section 4. The law of tort Flashcards
What does tort mean?
A civil wrong. The word comes from the French for ‘wrong’. The aim of the law of tort is to compensate an injured victim for the wrong done to them
What is a claimant?
An injured victim of a wrongdoing. The claimant brings an action to recover compensation for their loss or damage
What is a defendant?
The person or body responsible for the loss or damage and who, generally, has been at fault
What does remedy mean?
An order made by a court to enforce or satisfy a tort claim. It is usually damages or an injunction
What are ‘damages’
The payment of money as compensation for the loss or damage suffered
What is an ‘injunction’?
A court order addressed to the defendant to stop doing something
In tort law, who is a civil case started by?
A person who has suffered loss or injury.
-The injury will be some form of personal injury
-The injury may be minor or severe, involving lifelong care
-It may also involve damage to some property or an interference with a right related to property
What does the claimant have to do in a civil tort claim?
-Prepare the claim and the initial evidence to show that it is valid
-Suggest the amount of damages they intend to claim, so that the claim can be issued in the correct court and to follow the correct tracking procedure
In a civil trial, what will a judge sit alone to decide?
-The liability- whether the claimant has proved the case or whether the defendant has a valid defence. The standard of proof will be on the balance of probabilities
-The amount of damages to be paid or, if another remedy should be ordered, if this is more appropriate
-If the winning party is entitled to the payment of their legal costs by the losing party. In civil cases the general rule is that the loser pays the winner’s legal costs in addition to their own costs
What can the parties appeal against the judge of the decision for?
-Against liability-because the judge might have misdirected themselves on the relevant law, or
-Against the amount of damages awarded-too much or too little
Who are usually the parties involved in the law of tort?
-The claimant is generally an individual. If the claimant is under the age of 18, their parent or litigation friend will take the action on their behalf
-The defendant can be either an individual person, or in some cases, a business which may exist in law as a company or a partnership
What is the standard of proof in civil cases?
‘The balance of probabilities’
Why is the standard lower in civil cases than in criminal cases?
-In a criminal case the defendant is punished and could lose their freedom if found guilty
-In a civil case the defendant is found responsible for the damage/injuries and only has to compensate the injured party
What are the defences for civil cases?
There are fewer defences available than in criminal law. However, the defendant can dispute the claimant’s case and, in some cases, suggest that the claimant wholly or partly caused their own injury
What are the interests protected in tort law?
-Personal harm, which can include physical, psychological and reputation all harm and personal freedom. This interest will include the torts of assault, battery and false imprisonment. Reputational harm is covered by the tort of defamation which in turn can be libel or slander
-Harm to property, which can include direct and indirect interference with land and rights over land such as use and enjoyment of land. This interest will include the torts of trespass and private nuisance
-Harm to financial interests
What are the aims of tort law?
-To provide compensation in the form of damages to injured victims
-To achieve or provide justice for an injured victim-this can be achieved by the payment of compensation but money can only partly achieve justice for a victim who has suffered serious physical injuries
-It is morally fair that a person who has caused injury to another should be required to pay for the suffering caused, penalising a defendant for their fault; it may also act as a deterrent to others not to commit the same or similar actions
-Loss distribution- there is a view that the greater liability should be imposed on businesses or companies whose activities cause physical injury and damage as they are in the best position to spread the cost of losses associated with their activities either directly, by increasing the price of their products and services, or indirectly, by purchasing liability insurance.
-To achieve policy aims of improving standards- for example, of products sold or the quality of the environment, by making those who sell defective goods or pollute rivers pay for their shortcomings actions
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What is the ‘compensation culture’?
This refers to an attitude to sure for even the most trivial reasons or where only minor injury or damage has been caused.
What do critics of ‘compensation culture’ suggest?
That people’s approach to risk taking has changed to them being less risk averse because, if something goes wrong, a claim for compensation can be taken. It is argued that people should take greater responsibility and accept responsibility for accidents which are their own fault.
What has been done to counter ‘compensation culture’?
The compensation act 2006 was passed to regulate claims management companies. It became an offence to run an unauthorised claims management company. This authorisation was intended to improve standards of service and to reduce instances of cold calling
What are the differences between tort law and contract law?
The main difference between the 2 forms of law is the relationship between the parties.
-Contract law- there will be a relationship because of a previously entered contract, whether written or oral. It will contain agreed terms as to, for example, the nature and quantity of goods and services and the price. The parties will know at the outset the terms and what they each have to do to perform their respective terms
-Tort law- the parties will not have a formal legal relationship before the incident, but a relationship commences when one of the parties is injured or suffered loss or damage. This relationship is used as the initial basis of a claim
What are the distinctions between tort law and criminal law?
- The purpose of the law:
Tort law-to provide a form of compensation for those injured by the wrongful, but not necessarily criminal, acts of others - Because of the effect of punishment the standard for judging whether an action is criminal is high. If the action does not meet this high standard, then it may amount to a civil, tortious wrong.
- Judiciary:
-Tort law- a legally qualified judge decides whether a person is liable, using formal reasons
-Criminal law- a lay person, a magistrate or a jury decides whether a person is in breach of the law, unless there is a guilty plea - Consequences of breaching the law:
-Tort law- merely concerned with compensating the victim for the injuries suffered. Except in nuisance claims, it will not be concerned with the offender’s future behaviour
-Criminal law- some form of punishment where the offender repays a debt to society. The ultimate aims of punishment are reparation, deterrence and reform so that the offender addresses their future behaviour.
What are 2 examples of situations that where a tort of negligence can apply as a result of an accident?
-A car crash in which Vehicles are damaged and a driver and/or passenger(s) are injured. The injured person will want to claim compensation for their injuries and for damage to their vechile
-People being injured at work or through medical negligence
In what case was negligence defined?
Blyth v Birmingham waterworks co. (1856)
What was negligence defined as in Blyth v Birmingham waterworks co. (1856)
“Failing to do something which the reasonable person would do or doing something which the reasonable person would not do
According to this definition, negligence can arise from either an act or an omission
What is negligence?
An act or a failure to act which causes injury to another person or damage to their property
What does the claimant have to prove in a negligence claim?
That the defendant was at fault and is to blame for the injuries or damage.
-The level of fault is on the balance of probabilities- it is more likely than not the defendant’s fault caused the injuries or damage
-The burden of proving this fault and providing evidence is on the claimant
In a successful claim for negligence, the person who caused the injury or damage is only liable if:
-The owe the claimant a duty of care, and
-They breached this duty, and
-The breach causes reasonably foreseeable injury or damage
What must be proved for negligence?
-Duty of care: Reasonably foreseeable harm, proximity between the parties, fair, just and reasonable to impose duty
-Breach of duty: Defendant falls below standard of care appropriate to the degree of risk
-Damage caused: Defendant’s breach causes damage, damage is reasonably foreseeable
What is the duty of care?
-The idea of a duty of care in the tort of negligence is to establish a legal relationship between the parties.
-It has developed through judicial precedent- judges making decisions in cases. The modern law of negligence began with the case of Donoghue v Stevenson (1932). In the judgements, the Law Lords used used the principles from Heaven v Pender (1883) to set out when a duty of care is owed
In what case was ‘the neighbour principle’ established?
Donoghue v Stevenson (1932)
This cases established for the first time the broad principles of owing a legal duty of care and general liability in negligence. This is known as ‘the neighbour principle’
What is the neighbour principle?
The person who is owed a duty of care by the defendant. It is not the person living next door: it is anyone you ought to bear in mind, who could be injured by your act or omission
What’s happened in the development of the duty of care?
-In Anns v Merton London Borough council (1978) a 2 stage approach was developed by Lord Wilberforce where there was sufficient legal proximity between the parties unless there were policy reasons for not doing so
-Junior Books v Veitchi (1983) appeared to be a unique decision in negligence as it involved a purely contractual relationship between the parties.
-It was decided that the parties were sufficiently proximate to each other and there was a duty between them
-It was found that this was not limited to a duty to avoid causing foreseeable harm to persons or property, but also created a duty to avoid pure economic loss, as a result of the work that had been defective
In what case was the Camaro test established?
Camaro v Dickman (1990)
What is the Caparo test?
A 3 part test for deciding, in all cases, better a duty of care existed:
1. Was damage or harm reasonably foreseeable?
And
2. Is there a sufficiently proximate (close) relationship between the claimant and the defendant?
And
3. Is it fair, just and reasonable to impose a duty
What happened in Caparo v Dickman (1990)
-The claimant company wanted to take over another company- Fidelity Limited. They look3d at the statutory accounts prepared by the defendant, which showed that the company made a profit.
-Based on these accounts, the claimants decided to take over Fidelity. After completing the purchase, they inspected the detailed accounts which showed a large loss. They sued the defendant in negligence for their loss
-The House of Lords, when deciding whether the defendant owed a duty of care, set the 3 part test
-They decided that the defendant did not owe a duty of care as the accounts were prepared for Fidelity and for statutory reasons, and not for prospective buyers
What is damage or reasonably foreseeable harm?
Whether the injury or damage is reasonably foreseeable depends on the facts of the case. An example of this is the case of Kent v Griffiths (2000)
What happened in Kent v Griffiths (2000)
-The claimant was suffering an asthma attack and an ambulance was called to take her to hospital. Despite repeated assurances by the control centre and for no obvious reason, the ambulance failed to arrive within a reasonable time.
-As a result, the claimant suffered a respiratory arrest
-The court decided it was reasonably foreseeable that the claimant would suffer further illness if the ambulance didn’t arrive promptly
-No good reason was given why it failed to do so. A duty of care came into existence when the control centre accepted the call and, as they failed in this duty, they were liable
What is proximity of relationship?
-Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship between the claimant and the defendant is sufficiently close or proximate
What is an example to demonstrate proximity of relationship?
Bourhill v Young (1943)
What happened in Bourhill v Young?
-A pregnant woman heard an accident as she got off a tram. The accident was caused by a motorcyclist who died in the accident. She approached the scene of the accident and saw blood on on the road
-She suffered such shock from what she saw that she later gave birth to a still born baby. She sued the relatives of the dead motorcyclist
-Under the neighbour test, she had to prove that she was proximate, or close, to the motorcyclist so that he owed her a duty of care
-The House of Lords decided that he could not anticipate that, if he was involved in an accident, it would cause mental injury to a bystander
-He was not proximate to her and did not owe her a duty of care
What could have been a reason for the decision in Bourhill v Young?
Because Mrs Bourhill was not related to the victim and, if she could sue, it would open the floodgates to claims
What is meant by fair, just and reasonable to impose a duty?
-The courts are often reluctant to find that it is ‘fair just and reasonable’ to impose a duty of care on public authorities such as police.
-In the case of Hill v Chief Constance of West Yorkshire (1990), it was pointed out that imposing a duty of care on police (and allowing them to be sued) could lead to policing being carried out in a defensive way, which might divert police resources and attention away from the prevention and detection of crime
-This could lead to lower standards of policing, not higher ones
What is the case that illustrates fair, just and reasonable to impose a duty?
Hill v chief cons table of West Yorkshire (1990)
What happened in Hill v chief constable of West Yorkshire police?
-The Yorkshire ripper had been attacking and murdering women in Yorkshire and across the North of England.
-The claimants daughter was his last victim before he was caught. By the time of her death, the police had enough information to arrest him but failed to do so.
-The claimant alleged that the police owed her daughter a duty of care
-It was decided by the House of Lords that the relationship between the victim and the police was not sufficiently close for the police to owe a Duty of care to the victim, ans that it was not fair, just and reasonable for the pi Luce to owe a duty of care to the general public
-The police knew that tge killer might stroke again, but they had no way of knowing who the victim might be
What is the definition of occupiers?
-Potential defendants are the same under either act:
-Occupiers of premises who may be, but do not have to be, the owner or tenant of the premises. There is in fact no statutory definition of ‘occupier’
What is the test for deciding the occupier in th OL act 1957?
-It’s found in case law
-In practice, a decision of who is in control of premises may be influenced by whose insurance policy covers the premises and will meet a claim
-However, sometimes the courts will find that no one is in control of the premises, leaving the injured visitor with no claim
In what cases are occupiers defined for the OLA 1957?
-Wheat v E Lacon & Co Ltd (1966)
-Harris v Birkenhead corporation (1976)
-Bailey v Armes (1999)
What happened in Wheat v E Lacon & Co. Ltd?
-The manager of the pub was given the right to rent out rooms in his private area. He had no ownership rights on the premises
-A paying guest fell on an unlit staircase and died
-It was decided that both the manager and his employers could be liable, so there can be more than one occupier of premises
What happened in Harris v Birkenhead corporation?
-A local council had served a compulsory purchase notice on a house but had not taken possession or made it secure.
-A 4 year old boy was Injured in the empty house
-It was decided that the council were occupiers as they were effectively in control of the premises
What is the definition of premises in the OLA 1957?
-There is no full statutory definition of ‘premises’ except in s1(3)(a) of the 1957 act, where there is reference to a person having occupation or control of any ‘fixed or moveable structure, including any vessel, vehicle and aircraft’
Besides the obvious houses, land etc what else has been held as ‘premises’?
-A ship in dry dock
-A vehicle
-A lift
What do lawful adult visitors include in the OLA 1957?
-Invitees
-Licensees
-Those with contractual permission to be on the premises- E.g someone who bought a ticket to an event
-Thise given a statutory right of entry, such as meter readers or a police constable exercising a warrant
What are invitees?
Persons who have been invited to enter premises and who have express permission to be there
What are licensees?
Persons who have express or implied permission to be on the premises for a particular period and purpose. In Lowery v Walker (1911), in a negligence case, a licence to be on the land was implied from repeated use by trespass which the defendant had not stopped
What is said about children in the OLA 1957?
Children aren’t defined in the act, but the age of the child affects how the standard of care to be taken by the occupier will be assessed
What is said about workers in the OLA 1957?
Again, these are not defined by the act, but it will have to be decided whether the worker is injured by something that relates to work or something else
What is the duty owed to lawful adults and when is that duty breached?
-An adult visitor lawfully on premises is owed a common duty of care
-According to s2(2), this means that the occupier doesn’t have to make the visitor completely safe in the premises- only to do what is reasonable
Which cases show the duty owed to a lawful visitor?
-Laverton v Kiapasha Takeaway Supreme (2002)
-Dean and Chapter of Rochester Cathedral v Debell (2016)
What happened in Laverton v Kiapasha Takeaway supreme (2002)?
-The defendants owned a small takeaway food shop. They had fitted slip resistant floor tiles and used a mop and bucket to clean the floor when it had been raining
-The claimant went into the crowded shop when it was raining.
-She slipped and broke her ankle. The court of appeal decided that the shop owners had taken reasonable care to ensure their customers were safe
-They didn’t have to make the premises completely safe and were not liable
What happened in Dean and Chapter of Rochester Cathedral v Debell (2016)
-The claimant was injured when he tripped and fell a small piece or concrete protruding about 2 inches from the base of a traffic billard in the precincts of a cathedral. The CoA decided that:
-Tripping, slipping and falling are everyday occurrences. The obligation on an occupier is to make premises reasonably safe for visitors, not to guarantee their safety
-A visitor will be reasonably safe even if there may be visible minor defects which carry a foreseeable risk of causing an accident or injury
What do the judgements in the duty of care cases show?
-They emphasise that the common duty of care imposes a duty on the occupier to keep the visitor reasonably safe, not necessarily to maintain completely safe premises
-If these cases had been decided in favour of the visitors, it could have opened the floodgates to a tide of claims against occupiers, and created a very high level of responsibility for the safety of visitors
-The common duty of care, however, does not extend to liability for pure accidents. A duty of care for a specific risk cannot last indefinitely, where there could be other causes of the damage
What is the duty of care owed to a lawful child and when is this duty breached in the OLA 1957?
-The occupier will owe children coming onto the premises the common duty of care, but there is an additional special duty owed to child visitors.
-Under s2(3)(a) of the OLA 1957 the standard of care for children is measured subjectively, according to the age of the child
-The younger the child, the greater the care that the occupier must take to make sure the child is not injured
-The reasoning is logical: what mate not pose a threat to an adult may be very dangerous to a child
-The occupier should guard against any kind of ‘allurement’ or attraction which places a child visitor at risk of harm
What case shows that if an allurement exists, there will be no liability on the occupier if the damage or injury suffered is not foreseeable?
Holley v London Borough of Sutton (2000)
What happened in Jolley v London Borough of Sutton (2000)
-The council failed to move an abandoned boat that had been on it’s land for 2 years. Children regularly played on and in the boat, which was a potential danger
-When 2 14 year old boys jacked the boat up, it fell on one of them, causing serious injuries
-The HoL decided the council were liable as it was foreseeable that children would play on an abandoned boat
-It was not necessary for the council to foresee exactly what children would do in their play
-Children often find ways of putting themselves in danger, which needs to be taken into account by an occupier when considering how to keep them safe
What is the duty owed to a lawful worker and when that duty is breached in the OLA 1957?
-The occupier owes a common duty of care to workers coming on the premises to carry out repairs to the property or anything on it
-By s2(3)(b) of the 1957 act an occupier will not be liable where workers do not guard against risks which they should know about or be expected to know about
What case protects occupiers from being liable for risks that workers should know about or are expected to know about?
Roles v Nathan (1963)
When does the defence in Roles v Nathan apply?
-It only applies where the worker is injured by something related to their work
-If the worker is injured by something different, the occupier will still owe the common duty of care
-In Ogwo v Taylor, it was held that a duty could be owed to a rescuer (in this case a firefighter) if they are injured by something incidental to the rescue
-Section 2(5) provides that the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor
What 3 requirements must apply for an occupier to pass on the claim to an independent contractor?
- Must be reasonable for the occupier to have given the work to the independent contractor. The more complicated and specialist the work, the more likely it will be for the occupier to have properly given the work to a specialist. - Hazeldine v Daw & Son Ltd (1941)
- The contractor who is hired must be competant to carry out the task. The occupier should check the contractor’s references and make sure they carry insurance. Not being insured could indicate that the contractor is not competent- Bottomley v Todmorden cricket club
- The occupier must check the work has been properly done. The more complicated and technical the work, and the less expert the occupier, the more likely that the occupier will need to employ an expert such as an architect or surveyor- Woodward v Mayor of Hastings (1945)
What happens if occupiers satisfy all conditions for hiring independent contractors?
-The occupier will have a defence to a claim
-The inured claimant will have to claim directly against the contractor
What was held in Ferguson v Welsh?
It was held by the HoL that an occupier would not be liable for the unsafe system of work of a sub contractor, since he could not reasonably be expected to supervise it
What are the defences for the occupier by claims from lawful visitors for the OLA 1957?
-Volenti (consent)
-Contributory negligence
-Exclusion clauses
-Warning notices
What is volenti (consent)?
-It applies for occupiers liability in the same way as negligence
-If it is successfully argued, the defendant will not be liable to pay damages to the claimant, as the claimant has freely accepted to run the risk of injury while on the occupier’s premises
What is contributory negligence?
-It is set out in the Law reform act 1945
-The occupier will argue that the claimant is partly responsible for the injuries they have suffered while on the occupier’s premises
-If it is successfully argues the amount of compensation will be reduced by an appropriate amount
What are exclusion clauses?
-By giving written warning the occupier will be able to limit or exclude completely their liability for any injury caused to the visitor
-This is the case for residential occupiers, though whether an exclusion clause would work against a child visitor may depend on the child’s age and ability to understand the effect of the exclusion
-In addition, s65 consumer rights act 2015 provides that if there are such notices, say in a shop, they are ineffective and cannot operate as a defence to an occupier if a consumer is injured on the premises
What are warning notices?
-If there is a notice warning of a danger, this can be a complete defence for the occupier. A warning can be oral or written. By s2(4)(a) of the 1957 act, a sufficient warning will be decided by the judge on the evidence and varies
-If the premises are extremely dangerous then according to Rae v Mars (UK) Ltd (1990), the visitor should be given specific notice of the danger
-However, if the danger is obvious, and the visitor is able to appreciate it, no additional warning is necessary
What case can be used for warning notices in the OLA 1957?
Darby v National trust (2001)
What was decided in Darby v National trust?
The court of appeal decided that the risk to swimmers was obvious and there was no duty on NT to warn of an obvious risk
What are the remedies of the OLA 1957?
If a claimant is successful, the court can award damages for personal injury and for damaged property (such as clothes).
What is a trespasser defined as in the OLA 1984?
-A person who has no permission to be on the occupier’s premises, or
-A lawful visitor who has gone beyond their permission to be on the premises- they have outstayed their welcome, they have been told to leave or have gone into an area where they are not supposed to be e.g. in Tomlinson v Congleton Borough council (2003), when he paddled in the lake he was a lawful visitor, but when he dived in and started swimming he became a trespasser
