Tort Flashcards
4 parts to committing a tort?
- Was the C owed a duty of care;
- Did D breach the duty (fell below standard of reasonable person etc)
- Causation / remoteness of damage
- Consider defences
Establishing a duty of care, what are the steps?
- Established duty situations (look to case law); or
- Novel duty situations (look at Caparo v Dickman test).
What are the common established duty situations?
- one road user to another: this would include driver to other drivers; driver to passenger; driver to pedestrian; cyclist to driver; cyclist to pedestrian
- doctor to patient
- employer to employee
- manufacturer to consumer
- tutor to tutee, teacher to pupil
(No pure psychiatric harm or pure economic loss)
Can establish duty NOT owed e.g no established general duty owed by the police to a suspect regarding the way in which the police conduct their investigation. This is considered in the case of Hill v Chief Constable of West Yorkshire [1989].
Baker v TE Hopkins & Son Ltd - motorists owe duty owed to rescuers
What is 3 part Caparo test?
- Is the foresight of harm reasonable;
- Is there a relationship of close proximity; and
- Is it fair, just and reasonable to impose a duty.
What situations will Courts not impose duty?
- a negligent police investigation;
- a careless omission to act by a local authority;
- a negligent statement by a journalist causing economic loss; and
- psychiatric injuries caused by a major train crash.
Case re foreseeability of harm?
Bourhill v Young [1943] - pregnant woman heard traffic accident, ran over to see and had miscarriage from shock. Harm was unforeseeable so no duty of care.
“is it reasonably forseeable that my actions harm victim”
Fair just and reasonable?
Policy reasons - Hill v Chief Constable of West Yorkshire [1989] C sued D for failing to catch serial killer who killed their child. Court chose not to impose duty due to floodgates.
What will Courts consider when taking into account if its fair, just and reasonable to impose a duty?
- Will it open floodgates
- Will it deter others from acting in anti-social way
- Would it be in public’s best interest
- Will it uphold the law
- Will it use up scarce resources (e.g if someone doesn’t have insurance and will have hard time paying out of pocket).
General rule: no duty of care for omissions
What are the exceptions? (2 of them but 2 parts to second 1)
- Cannot make situation worse (case where wall eroded, counsel didn’t fix when they could, eventually fixed it, found no duty unless made it worse);
- Special relationship i.e control over the other then positive duty to safeguard:
- teacher to pupil
- Employer to employee
- Doctor to patient
May be duty on person in control to stop hard to hird parties caused by person under control (think case where young offenders on trip damaged yacht and home office was liable). (Or think or student driver and driving instructor)
What is the general rule re pure economic loss? Is it the same for consequential economic loss?
No duty imposed for pure. No special rules for consequential economic loss (economic loss arising out of damage).
What is case of Murphy v Brentwood?
The key point in Murphy was that the defects in the house had become apparent before they caused any physical damage to any person or other property. The only thing suffering damage from the cracking and subsiding was the house itself. A claimant in that situation would incur the cost of repairs, or suffer a reduction in value of the property – and the court held that this amounted to pure economic loss. Essentially, the claimant had simply acquired something which was less valuable than the price he paid for it.
This case means the cost of a defective item is not recoverable i.e I bought hairdryer and it blew up. Cost of hairdryer not recoverable but any other property it damaged whilst blowing up is.
What are the two types of economic loss?
- economic loss caused by damage to the property of a third party; or
- economic loss caused where there is no physical damage
Can you recover economic loss that flows from damage to third party property?
No the loss needs to flow from damage to your own property. If borrow suit for wedding from your friend, fire burned suit so you have to hire one. The cost of hiring is pure economic loss.
Economic loss where the loss is not connected to any damage:
- Whats the situation with negligent actions?
- Whats the situation with negligent statements?
- negligent actions - no duty of care. Think case where research centre negligently released foot and mouth disease which infected local cattle and forced cattle markets to close. Local auctioneer lost money and sued centre. Negligent action caused no damage to auctioneer so no duty.
- negligent statements - no duty unless special relationship. Often fiduciary. Case: Hedley Byrne v Heller originally but then later on Caparo v Dickman (accounts case and also case for testing if a novel duty arises)
What is the case of Hedley Byrne v Heller (test for a special relationship)
The two elements to a special relationship under Hedley Byrne are:
(a) an assumption of responsibility by the defendant;
(b) reasonable reliance by the claimant.
Expansion of special relationship test (with regards the first part of an assumption of responsibility) in Caparo for negligent statement?
The case of Caparo laid down the four criteria to be satisfied for a defendant to have assumed a responsibility towards a claimant:
- The defendant knew the purpose for which the advice was required.
- The defendant knew that the advice would be communicated to the claimant (either specifically or as a member of an ascertainable class).
- The defendant knew that the claimant was likely to act on the advice without independent inquiry.
- The advice was acted on by the claimant to its detriment.
Negligent statement - will a duty of care be owed in respect of advice given in a social situation?
Generally no duty of care will be owed in respect of advice given in a
social situation because there is no assumption of responsibility. This is confirmed in the case of Chaudhry v Prabhakar [1989]. In this case duty was owed because:
1. the defendant had more experience and knowledge about cars than the claimant, and
2. the claimant had made it clear that she would be relying on his skill and judgment.
In those circumstances this was not simply advice given on a social occasion. The defendant had gone beyond this and had assumed a
responsibility to the claimant.
Connection between Hedley and Caparo?
In order to have duty for PEL, there must be a special relationship between C & D. The test for the 2 elements of a special relationship are from Hedley (being (1) assumption of responsibility and (2) reasonable reliance on advice).
In order to establish if responsibility has been assumed look at Caparo
- Know what advice for
- Know advice communicated to D
- Know will act on advice without independent inquiry
- Acted on advice to detriment
Extensions of Hedley principle?
- Spring v Guardian Assurance plc - Duty of care owed by former employer to take care in providing reference to THIRD PARTY (not made to claimant)
- White v Jones - Client instructed solicitor to prepare will, took to long and he died, beneficiaries lost out. Duty owed to benes. Bene did not rely on solicitor, but sufficiently close relationship none the less. Foreseeability of solicitors actions.
White also to do with NEGLIGENT SERVICES rather than STATEMENT (think professional services)
Can D rely on exclusion notice (defence - first establish 1. duty 2. breach 3. causation. Then move to defence)? Need 2 things:
- Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed.
- The wording of the notice must cover the loss suffered by the claimant.
- Cannot be excluded under the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015.
What does UCTA say and who does it relate to?
B2B
- Cannot exclude liability for personal injury or death
- Must satisfy reasonableness test under s2 of UCTA
Requirement of reasonableness means that it should be fair and
reasonable to allow reliance on the exclusion notice, having regard to all the circumstances.
Elements:
1. Fair
2. Reasonable
3. Regard to all circumstances
What does CRA say re limitation of liability
Consumer 2 Business - Defendant must be acting in Course of business
!
- Cannot exclude liability for personal injury or death
- Must satisfy fairness test under s62 of CRA
A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
Different to reasonable as has element of:
1. Unfair
2. Good faith
3. Imbalance of parties’ rights and obligations under the Contract
Case law re fairness test under UCTA
Smith v Eric S Bush; Harris v Wyre Forest District Council [1989] - surveyor tried to exclude liability for any accuracy of survey or any responsibility. Did not pass fairness test.
Factors to consider:
- Were the parties of equal bargaining power?
- In the case of advice, would it have been reasonably practicable to obtain the advice from an alternative source taking into account considerations of cost and time?
- How difficult is the task being undertaken for which liability is being excluded?
- What are the practical consequences, taking into account the sums of money at stake and the ability of the parties to bear the loss involved, particularly in the light of insurance
(think: 1. parties bargaining power 2. cheap/easy tog et other advice 3. is it a hard or complex task 4. lots of money job / are they insured)
What is the general rule for psychiatric harm? Does it relate to consequential psychiatric harm? What is pure psychiatric harm?
No duty of care for PPH (exceptions apply). No special rules for consequential.
PPH = psychiatric harm not caused by damage (similar to pure economic loss)