Topic 8: Torts (Negligence, Economic Loss & Type of Victims)

Question 1

What is a tort?

Answer 1

A civil wrong independent of a contract with that party

Question 2

Difference between contract and tort?

Answer 2

• Contract is where parties voluntarily accept contractual obligations, in tort the duty of care is imposed on the parties by law.
• Contract if a party breaches it the excuse is irrelevant as they breached it, in a tort the liability is fault based
• In a contract, damages aim to put parties into position as if the contract had been properly performed. In a tort, the damages aim to put parties into positions as if the tort had never been committed.

Question 3

What does fault liability mean?

Answer 3

Someone is at fault, and this enables the injured party to seek compensation for the resultant injury/loss.

Question 4

What are the time limits in torts?

Answer 4

Limitation Act 1980 section 2, Actions in tort must be brought within six years of the date of the event giving rise to the right of action

OR

for claims based on personal injury, itt must be brought within three years of the date on which the tort was committed or from when the injury attributable to the tortfeasor became known.

Question 5

What does product liability mean?

Answer 5

The manufacturer of a product owes the ultimate consumer a duty of care based on the neighbour principle.

Question 6

What’s the neighbour principle? (what case did it come from?) and who can be classed as a neighbour?

Answer 6

Lord Atkins neighbour principle came from Donoghue v Stevenson 1932 where it stated
“you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure a neighbour”.

The neighbour can be “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions in question”.

Question 7

To succeed in tort a clamant must show? (whats the test known as?)

Answer 7

As part of the three-stage test:

1) The defendant owed the claimant a duty of care; and
2) There was a breach of that duty; and
3) The claimant suffered reasonably foreseeable damage as a result of the breach.

Question 8

Explain stage 1 of the three-stage test including cases

Answer 8

Stage 1: Did the defendant owe the claimant a duty of care?

These three points must be met for it to apply:

1) Proximity of relationship – the ‘neighbour’ test Donoghue v Stevenson [1932]
2) Foreseeability of loss (Bourhill v Young) and
3) Whether it is fair, just, and reasonable to impose the duty (Caparo v Dickman(1990)).

Question 9

Explain stage 2 of the three-stage test including cases and what standards are there? What does the court weigh up?

Answer 9

Stage 2: Did the defendant fail to take reasonable care?

1) Objective standards apply (Nettleship v. Weston (1971) p277);
2) Higher standards expected of professionals;
Bolton v. Stone (1951) p278

The court weighs up the likelihood of harm AND potential seriousness of harm vs Cost of prevention and usefulness of defendant’s actions

Question 10

Explain stage 3 of the three-stage test including cases

Answer 10

Stage 3: Consequential damage

Must show that they would not have been injured BUT FOR the defendants behaviour

Case used for this damage is: Barnett v Chelsea Hospital 1969

Question 11

What are the exemptions to stage 3 of the three-stage test? and what’s the egg-shell skull rule?

Answer 11

Must not be too remote: (The Wagon Mound 1961)

Egg shell skull: The unexpected frailty of the injured person is not a valid defense to the seriousness of any injury caused to them.

Question 12

What are the two types of defences for a negligence claim?

Answer 12

Partial defence - business accepts some liability for what occurred, but asserts that the claimant was also partially responsible (the defendant will still have to pay a percentage of the award).

Complete defence - whereby the business asserts it has no liability at all

Question 13

What are the common forms of defence to a negligence claim?

Answer 13

1) Illegality
2) Consent (no actionable injury/no injury is done to the consenting party)
3) Contributory negligence
4) Necessity

Question 14

Explain illegality as a form of defence to negligence claim including cases

Answer 14

the claimant has committed an illegal act they may be prevented from raising a negligence action (this is specific to the circumstances of the case).

Ashton v Turner [1980]

Question 15

Explain consent as a form of defence to negligence claim including cases

Answer 15

There has been an express agreement to the particular risk of damage or it may be implied from the conduct of the claimant due to the actions of volunteering. Example of volunteering - physical sports and express includes medical surgery experiment or similar etc.

Question 16

Explain contributory negligence as a form of defence to negligence claim including cases

Answer 16

Claimant having ‘contributed to their own misfortune’ and if they have been at fault in any activities that have led to their injury, then the court will reflect this in the damages awarded with typically a reduction.

Regulation: Section 1 (1) of the Law Reform (Contributory Negligence) Act 1945

Case: Jackson v Murray and another 2015

Question 17

Explain necessity as a form of defence to negligence claim including cases (is there any tests?)

Answer 17

The tortfeasor had acted in a way so as to prevent a greater harm occurring.

Defendant must demonstrate that there was imminent danger to a person or to property and the actions taken were reasonable in the circumstances.

One test used in this is Esso Petroleum Co. Ltd v Southport Corporation 1955

Question 18

Whats the aim of damages?

Answer 18

To place the injured party, as far as money can, in the position they were before the tort was committed

Question 19

How are damages worked out? How does the judge arrive at the figure?

Answer 19

1) Direct losses incurred such as loss of earnings, medical expenses, and travel expenses.
2) Further losses that may be compensatable include damages for pain and suffering, and loss of amenity

If there’s no real loss to the claimant then the court can award nominal damages (small sum of money where claimant suffered no financial loss)\

Question 20

What law regulations are used when someone has died as a result of damages? and explain

Answer 20

Law Reform (Miscellaneous Provisions) Act 1934: If the deceased had been financially supporting their family, then the dependants may claim for the lost earnings. The claim will also incorporate the funeral expenses

Fatal Accidents Act 1976 s. 1A(3) : spouses, and the parents of a deceased minor, may make a statutory claim of £11,800.

Question 21

What happens if there is damages to property?

Answer 21

Damages to compensate for e.g. cost of restoration and an amount where a replacement of the goods/property was difficult to achieve.

Question 22

What requirement is there to the award of damages?

Answer 22

The Injured party must try to mitigate their losses where this is reasonable.

Question 23

Whats the two types of remedies for negligence claims?

Answer 23

1) Damages

2) Injunction

Question 24

Whats are the types of injunction and explain? failure to comply leads to etc?

Answer 24

Injunction is when there is a court order requiring the subject to stop committing the tort

1) PROHIBITORY INJUNCTION requires that the defendant ceases the action that is causing the tort;
2) MANDATORY INJUNCTION requires the defendant to act to prevent the tort being committed
3) INTERIM INJUNCTION to prevent a tort being committed and any (further) damage being sustained until the case comes to court.

Failure to comply = contempt of court that can lead to fine/imprisonment.

Question 25

What is Economic loss?

Answer 25

A financial loss/damage which is not a physical injury to person/party.

Question 26

What must there be for economic loss to succeed? and case showing

Answer 26

A special relationship between claimant and defendant.

Commissioners of Customs and Excise v Barclays Bank Plc [2006]

Question 27

Whats the case and test used for professional advice?

Answer 27

Bolam v Friern Hospital Management Committee (1957)

Bolam Test: whether the advisors were acting in accordance with a practice of competent respected professional opinion

Question 28

Whats the three steps to show a special relationship?

Answer 28

1) The claimant relied on the defendant’s skill and judgment;
2) The defendant knew, or reasonably should have known, that the claimant was relying on him; and
3) It was reasonable in the circumstances for the claimant to rely on the defendant.

Question 29

Whats an example Non-physical psychiatric damage and a case?

Answer 29

Stress/depression based on workload or something else placed onto party. Where it is reasonable for an employer to be aware of this, and they do not take positive and sufficient action to remedy the problem, they may be held liable

Intel Corp. (UK) v Daw [2007]

Question 30

What type of victim can you be as party of psychiatric injury? and explain them

Answer 30

Primary or Secondary.

Primary = claimants who assert they have suffered some form of psychiatric injury as a result of being in the zone of physical danger of fearing for their own safety.

Secondary = must be a direct relationship between the injured party and the claimant that would enable a claim (as no physical injury has been sustained, and the claimant was not in fear of their own safety). E.g. siblings/spouses

Question 31

Whats the test to prove secondary victim? and what case did it evolve from?

Answer 31

1. there must exist close proximity between the claimant and the person suffering harm (such as a close tie of love and affection);
2. the claimant must have been present at the scene of the accident or there in the immediate aftermath;
3. the claimant must have perceived directly the events of the accident or the immediate aftermath.

Evolved from:Alcock v chief constable ofSouth Yorkshire [1991]

Question 32

What’s rescuers and what did lords state?

Answer 32

Only those who were physically injured or in danger of being physically injured could bring a claim, and if not the secondary victims had to establish their claim under the rules laid down in Alcock case.