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)
What is a primary and secondary victim?
Primary:
1. In actual area of danger; OR
2. REASONABLY BELIEVED he was in danger.
Secondary:
Less closely involved in incident:
1. witnessed incident; or
2. feared for safety of another.
What 3 factors are needed for a duty to be owed for PPH? Different types of victim?
- Caused by sudden single shock (NOT drawn out events e.g watching mother slowly dying from cancer);
- Inducing medically recognised psychiatric illness OR shock induced physical injury such as a miscarriage.
Rules different for different victims:
Primary Victim:
In addition to 2 criteria above, risk of PHYSICAL injury must be foreseeable, but the psychiatric harm need not be. PSYCHIATRIC INJURY NEED NOT BE FORSEEABLE! Examples:
- Page v Smith, victim in car crash. Physical injury was foreseeable but no physical injury, only psychiatric. As the physical injury could be foreseen there was a duty of care.
- Dulieu v White & Sons - Horse drawn carriage driven negligently in pub. Victim reasonably feared for her own safety (and was therefore a primary victim). Sudden shock caused a miscarriage. Physical injury was reasonably foreseeable BY HER so duty was owed for PPH.
Secondary victim:
In addition to 2 criteria above must satisfy ALCOCK CONTROL MECHANISMS.
- PSYCHIATRIC HARM needs to be foreseeable (was it reasonably foreseeable that a person of normal fortitude would suffer a psychiatric illness);
- Close ties of love and affection between actual victim (Presumption with husband, wife, parent, child. D can disprove if not actually close. If don’t fall into category but are v close C must prove);
- Close proximity in space and time; Secondary victim must witness either the event OR the immediate aftermath (e.g case where saw children at hospital straight after. NOT for brother identifying remains in morgue 8 hours after);
- Close proximity of perception; must witness with own sense and not on TV (if broadcasting channel broke ethics and broadcasting probs an intervening act). - EXCEPTION if watching the broadcast as bad as seeing the real thing (e.g watching kids in hot hair balloon take of and burn)
Big difference is need actual foresight of psychiatric harm for secondary victims.
Alcock case - victims who watched Hillsborough disaster tried to sue. No duty of care.
What is the test for duty of care for rescuers suffering PPH?
No special test - treated in same way.
If they were a primary victim then needs to be 1.sudden event 2. Causes PPE or shock induced injury. And also need physical injury to be foreseeable.
Secondary? Alcock control mechanisms.
Professional rescuers like police treated in same way. Any rescuer, professional or not, is NOT expected to be more resilient.
Chawick v British Rail - man who lived near by came to train crash site, asking to crawl under debris due to small size and give injections to victims. Primary victim as in physical danger. No physical injury but PPH. Duty owed even though rescuer.
What else is needed to recover for PPH apart from a duty of care?
- Duty of care
- breach of duty
- Causation
- Any defences
Have to show D fell below the reasonable standard of care, their negligence caused the damage (damage cannot be too remote). Usually duty of care & causation is disputed.
Egg shell skull rule - must take victim as you find them. For secondary victim, have to get over is PPH is foreseeable to person of reasonable fortitude. But can then rely on egg shell skull rule - even if harm is way more severe than normal person. EXTENT OF HARM NEED NOT BE FORSEEABLE.
Primary victim - just need physical injury foreseeable, then can rely one gg shell skull.
The skilled defendant standard?
Fell below standard of reasonable person with that specific skill. May be able to rely on reasonable body of professional opinion that they were not negligent (Bolam v Friern).
Bolitho - if that body of prof opinion not reasonable or responsible then cannot rely. not capable of withstanding logical analysis?
The under skilled defendant?
Nettleship v Weston 1971 - even if inexperienced still judged to same standard (learner driver held to same standard of reasonable driver).
Wisher v Essex Health - junior doctor still reasonable standard of doctor
Standard of care based on task carried out not their skill.
Wells v Cooper - doing odd jobs around the house expected to meet the standard of an amateur. E.g amateur carpenter. If carried out a job that should have been done by professional that is completely out of your capabilities you are negligent for attempting it.
Summary of standard of care.
If you have special skill you are judged on reasonable person with that special skill. Think Consultant Surgeon or something.
If you carry out a task that requires a specific skill (such as doctor, lawyer, driver) by carrying out that task you are holding yourself out to have that skill. Therefore judged on basis of reasonable driver / lawyer / doctor. No allowances for inexperience.
If not holding yourself out to have a skill but still attempt something (like doing odd jobs in home) judged to lowest standard i.e amateur. So if completely out of skill set may be negligent for eve attempting.
Special standard of care - children?
Held to standard of child that age.
Mullin v Richards - 15 year old girls sword fighting with rulers, one snaps and partially blinds the other. Did not fall below standard of 15 year old.
Younger the child the harder it is to fall below standard.
Children must be represented by litigation friend in Court - usually parent.
What factors will the Courts consider when deciding if fell below the standard of reasonable care?
- Magnitude of risk
- Cost and practicalities of precautions
- Defendant’s purpose
- Common practice
- Current state of knowledge
Factors Court considers for breach of duty
Magnitude of risk?
- How likely D could cause injury (Bolton - cricket ground hit balls out of club, only 6 times in 30 years so no breach as accident forseeable but v unlikely. Fardon Harcout - **protect against reasonable probabilities not fanatstic probabilities ** 4 year old straying from school and walking in road causing lorry to swerve not fantastic. Justificable to not take steps to mitigate risks where risks of injury is small and personably person would.
- If injury caused then how serious? (greater chance of injury then more care - Paris v Sepney, didn’t give goggles to someone blind in one eye durign expeirent. Blind in both eyes. Small risk great injury).
Factors Court considers for breach of duty
Cost and practicalities of precautions?
- Is cost and expenditure proportionate? Latimer - clsoing whole factory down because ran out of saw dust topoor on slippy floor not proportionate. Small risk of injury & large expenditure? Probs not. If large risk of injury and large expenditure then probs will.
- Court generally won’t allow lack of money as an excuse!
Factors Court considers for breach of duty
Defendant’s purpose
- Saving a life, less likely to be liable
- Watt v Hertfordshire - fireman saving woman under lorry, carried equiptment in normal lorry as didn’t have truck, claiamnt got hurt but no breach of duty.
- Ambulances can still be liable
Factors Court considers for breach of duty
Common practice?
May eb able to escape laibility if can show acted out of common practice (think of the Boham case where did not give D a muscle relaxant before shock therpay. Relied on reasonable body of professional opinion).
Factors Court considers for breach of duty
Current state of knowledge?
- Was risk forseeable?
- can only mitigate what is forseeable
- Roe v Ministry of Health - woman paralysed as anaesthetic was contaminate through invisible crack. Hospital di not know about risk as risk of seepage not know at time. No breach. Could not reasonably be expected to take precautions.
How to provde breach of duty?
- Usually:
* Witness of fact;
* Expert evidence. - Rarely: Res Ipsa Loquitur (“the thing speaks for itself)
* Can rarely be used if no evidence
* Scott v London - bag of sugar loaded by hoist fell and injured claimant. Test:
(a) Thing causing accident under control of control (or caused by someone claimant controls)
(b) Accident would not normally occur without negligence
(c) C does not know how accident caused and no direct evidence of falling below breach.
It is rare the above is met, but if it is, the obligation will then be on D to provide a** reasonable explanation as to how the accident could occur without negligence. 2 possible routes:
1. Show how accident actually happened without D’s neggy;
2. If don’t know - show reasonable standard of care was used the whole time.**
s11 Civil Evidence Act 1968?
If the D was convicted of the criminal offence is presumed to have committed the offence in civil proceedings. If convicted of careless codncut (e.g careless driving) claimant cant rely on this as evidence of breach.
Won’t work if D convicted of not having insurance !
What are the 3 parts of causation?
- Did negligence cause damage?:
* Causation in fact NOT law like crim - Was there an intervening act?
- Was the damage to remote?
What are the different factors for causation of fact?
- But for negligence, would damage have happened - Barnett case, patietn came into hospital unwell and died of arsenic poisioning. Even if hospital discovered it, would ahve died anyway. No causation.
Show on balance of probs negigence caused damage. If illness had 75% chance of killing anyway, doctor did not cause it. Case where baby had 5 different causes of blindness (one being negligent acts by doctor). No causation on BoP.
- Multiple causes cases, D just needs to show negligence materially contributed. Guilty dust cases, 2 causes of illness. Employer materially contributed. Not on facts on baby blindess cause, didn’t show materially contributed simply shown tehre were many alternative causes and may be one of them. Have to shwo ACTUALLY materially contributed on balance of probs (not just one of many factors).
3.. (EXCEPTION) Material increase in risk of injury rather than actually contributing - very rare, only if scientific uncertainty. New case says probs only mesothelioma (cancer rare).
Usually BUT FOR, exceptionaly (if multiple contributing causes) no 2
RARELY 3. Only for the rare cancer.
If a Claimant is injured more than once, can you claim against the second?
If in car accident that damages your car, but already got in a previous accident that damaged paint on car, cannot claim against second one (Performance Cars case). D only liable for what he makes worse.
How are damages divided if more than one Defendant causing damage?
If the injury is easily split up the Court will apportion the damages between defendants (e.g Holtby v Brigham and Cowan (Hull) Ltd 2003 where employee worked for many different employers over the years and got asbestosis from being around asbestos - the court made each employer liable depending o how many years the claimant worked there.
Most cannot be divided in this way.
What if multiple D’s but an indivisible injury?
Each person liable to pay all, Claimant can chose who to use and up to them to seek contribution from the other.
Civil liability (Contribution Act) 1978- court can apportion damage if between multiple people if they are responsible for damage, however, the damages recovered by claimant are not effected
What are the different types of intervening acts?
- Claimant’s own acts
- Acts of third parties
- Natural events “act of god”
When does an act of a third party (1) break the chain (2) break the chain?
Does not break chain:
- Instinctive intervention does not berak chain - think Scott v Shepard - light firework thrown into crowd, others threw it further along. Blew up in front of 3rd person. Did not break chain.
- Forseeable consequences of negative act unlikely to break chain - car negligently blockd tunnel, police drove his car back through tunnel to tell people it was blocked. Collided with car. This act was NOT a forseeable consequence of the car blocking tunnel so did break chain.
- Did the third parties just materially contribute to negligence rather than break chain? Rouse v Squires - lorry blocked two lanes of motorway (car A collided with the lorry. Mr Rouse got out to assist but another car (B) struck him and killed him. Car A and B were liable - the chain wasn’t broken as it was forseeable that other cars could come along and crash. Both cars
materially contributed to the negligence. - Defendant was liable in Stansbie v Trojan (1948) defendant was redecorating for the claimant and left the house unattended - house owner had told him to ensure it was closed before he left - thief
came in and stole items.Claimant was responsible as he did not take care to avoid thief’s getting in- the defendant had impliedly agreed to take responsibility to take care
Consider if there was implied or express responsibility to take care. Relationships between the parties is important.
Might break the chain:
- If conduct of third party is RECKLESS or INTENTIONAL might break chain.Lamb v Camden London Borough Council (1981) defendants caused damage to claimants house, whilst being repaired squatters came in and caused damage - original defendants werent liable
- Medical treatment only breaks chain if so grossly negligent it was disproportionate to neglgient act.
To decide if act is reckless/intentional or if materially contributed to neggy, consider if it was forseeable consequence of action that was also negligent and not instinctive.
When does an act of a the claimant (1) break the chain (2) break the chain?
Breaks chain:
- For a claimant actions to break the chain of causation they have to be entirely unreasonable.
McKew v Holland and Hansen & Cubitts (Scotland)Ltd (1969) defendant weekend claimant’s leg, claimant then walked down steep stairs without handrail, leg gave way and he hurt himself further. this broke the chain and the defendant wasn’t responsible.
Does not break chain:
- If Claimant acted reasonably
Wieland v Cyril Lord Carpets Ltd (1969) claimant’s neck injured due to claimant couldn’t wear glasses with her neck brace and fell down the stairs and caused further injury - chain of causation not broken as the claimant had acted reasonably.
- If D acted in careless manner usually just claim contributory negligence instead. Reduction in damages.
What does it mean that the damage cannot be too remote? What is the test?
Damage cannot be too far removed from act i.e not too unusual and unexpected.
Test:
The Wagon Mound 1 - is the damage itself a kind that a reasonable person would foresee? If not then not recoverable.
Wagon mound case was D operated ship that negligently spilled oil in the water, claimant was a ship builder who owned wharf in harbour and its employees were using welding equipment on the water. Oil on water ended up igniting - the claimat’s wharf and a ship under repair were damaged. Court used this test and found defendant was not liable as damage was not forseeable.
What are the two provisions to the usual remoteness of damage (Wagon Mound 1) test?
- Similar in type rule
* If C suffers injury that is forseeable it doesn’t matter the exact way the injury happened even if a bit weird. Hughes v Lord Advocate (1963) repairing a cable under ground, man whole left with parifin lamp around the site whilst employees went on tea break. 8 year old boy and 10 year old boy took lamps and went in the man hole - as they came out one of them knocked lamp into hole which caused big fire. The claimant then fell in the hole and suffered burns. didn’t matter that the way the burns happened were a bit odd - burns were forseeable when
paraffin lamps are left around so the way in which the burns occurred didn’t matter.
When is similar in type test not satisfied? Termain v Pike - C worked on D’s farm, D allowed rats to negligently multiply and breed on farm. C came into contact with rats and goy rare disease from rat piss. Forseeable injury would have been from rat bites - not rare injury from piss. Loss too remote.
- Egg shell skull rule
* Take victim as you find them
Robinson v post Office(1974) claimant suffered injuries to his leg as a result of negligence - got anti-tetanus shot and had a bad reaction. Defednant was liable for both the injury and the reaction -
defendant ought to have reasonably foreseen claimant would need medical treatment, therefore, defendant was liable for the consequences of the treatment even if they were not forseeable as
you must take the victim as they come.
Also relates if victim say lost loads of money because they are a high earner! Or if refuse transaplant for religious reasons and dies.
What are the defences?
- Consent (volunatry assumption of risk) (complete defence)
- Contributory negligence (partial defence)
- Illegaility (complete defence)
What is the defence of consent and when is it used?
Consent (volunatry assumption of risk) is a compelte defence.
1. STEP 1: Know about risks
2. STEP 2: Go on to consent to the risks (cannot just know about them).
* Consent given FREELY and WITHOUT DURESS
Road Traffic Act - cannot use consent as defence in road traffic.
RARE!
* Rarely works on employees as don’t really have freedom of choice.
Smith v baker (1891) man injured when heavy crane dropped load on him - carried on working knowing the risks involved.Court found he did not consent in law to the risk
* Rarely used on rescurers as not freedom of choice more of a moral obligation. TEST: Recuers not consented if:
(a) Rescuing person or property endangered by C;
(b) Acting under a social or moral duty; and
(c) Actions were reasonable and a probable consequence of the negligence. (i.e not anything out of pocket!)
Haynes v Harwood (1935) police offer chased defendants runaway horses with a van attached, got injured and sued, defence of consent failed as he was acting to rescue people from imminent danger.
