Tort Flashcards
Test for negligence?
- Duty of care
- Breach of that duty
- Causing damage to Cl?
- Defences
Established duty of care categories (negligence)?
What type of cases relevant to?
Doctor / patient 👨⚕️
Employer / employee 📈
Manufacturer / consumer 🏭
Road users 🚗🚵♀️
(inc cyclists)
Defendant to rescuer where created dangerous situation so rescue was reas foreseeable 🧗♀️
Only personal damage (ie damage to property/personal injury - not pure economic/psych)
NB: there is NO duty police officer to suspect re way police conduct investigation
Caparo test on categories for duty of care?
What cases does it apply to?
Explain each limb?
Physical damage (PI/property damage only)
If no established duty of care:
- Reasonable FORESIGHT of harm to Cl
(eg ❌ miscarried due to shock of road accident) - Sufficient PROXIMITY
- D should have C in mind / neighbour test
- legal/social duty - FJR fair, just and reasonable to impose duty (policy)
(eg less likely owed by public authorities to specific individual)
Who do police officers owe duty of care to?
Public at large, not specific individual
(eg no specific victim)
comes down to fair/just/reasonable
Policy considerations in fair/just/reasonableness of novel duty of care? (Caparo)
floodgates🌊
benefit to society
deter dangerous behaviour (means more likely rule in favour of Cl)
inc cost of insurance premiums if allow too many claims
Will there be liability in negligence for omissions?
(explain general rule and each exception)
General rule: no
Exceptions:
1. not to make situation worse
(eg dive to save drowning person, ends up causing injuries to Cl - liable)
- act positively if had control over the other person or item
a) **special reli **to protect that person
(fact-dependent but may arise child-parent/instructor-pupil etc)
eg lifeguard to swimmer
b) to protect TPs
eg driving instructor to other road users where learner driving
eg youth offenders who escaped - Home Office liable (vic liability)
(don’t make worse luv ! b positive !)
What is the test as to whether D has breached duty of care?
- How D OUGHT to have acted in circumstances
(Q of law) - Whether D’s standard fell below that ^
(Q of fact)
How will the courts USUALLY determine standard of care owed by D?
(part 1 of breach of duty test - ie what D ought to have done)
Man on clapham omnibus / what would ‘reasonable person’ have done in those circumstances
Objective
Don’t consider personal attributes
eg
driver, unexpected disability, assessed against standard of reasonable driver who has condition but is unaware of it
(so not liable if have sudden heart attack)
Standard of care owed by skilled D?
anyone who holds self out as having SPECIAL skill (not just doctors)
must meet higher standard required for the task which would expect from someone with that skill
Not liable if actions accepted by reasonable body of professional opinion
- but up to court to decide if this body of opinion is reasonable / responsible
(otherwise profession could excuse self from liability)
(eg reasonable manufacturer/reasonable doctor)
Standard of care owed by under-skilled Ds?
(negligence)
must still meet minimum standard required of task
and if undertake task requiring special skill, could be negligent for attempting in first place
e.g.
- learner driver = standard reasonably competent driver
- no allowance inexperienced doctor
- odd jobs around house = owe skill of reasonably competent amateur carpenter etc
(could mean negligent for attempting something outside capability)
Standard of care owed by children in negligence?
Ordinary child of same age
Younger child is, less likely able to foresee harm (v unlikely liable)
Can child under 18 be sued in civil law?
Only if has an adult to represent (litigation friend)
(often not worth suing cos children have no money)
What helps to determine whether D FALLEN BELOW standard of care?
- MAGNITUDE of risk created; and
a) likelihood injury
b) severity of injury
(e.g. goggles bcos blind one eye) - PRECAUTIONS D ought taken
(resources irrelevant)
MP fell below standard
LS is the mag.
How will courts assess whether RISK D has taken falls below standard of care taken?
- Likelihood of injury
- justified if the risk of injury was ‘fanatical possibility’
eg child caused lorry to swerve, driver killed - was realistic possibility
eg dog broke window, pedestrian injured by splinter of glass - not liable
- Severity of injury
- more severe = more likely
eg no goggles, risk accident small, but blind in one eye so would mean fully blind, damaged good eye
= total loss of sight
- reasonable care required goggles should have
(NB even if justified in risk taken, still need to consider precautions taken - 2 parts)
In deciding what PRECAUTIONS D should have taken to risk, what will courts consider?
(second part of breach test - did D fulfil standard of reasonable person)
what practical measures could have been taken, inc cost
if substantially reduce risk at low cost - more likely unreasonable
but great cost small reduction risk - reasonable to have done nothing
Ds lack of resources not an excuse (mean)
eg
slippery floor due to leak, covered sawdust but couldn’t cover all, kept factory open - not in breach (high costs of closure/risk employees small)
Will courts consider D’s purpose in assessing breach of duty in negligence?
Yes
Less likely if societal benefit
If human life is at stake, may be justified in taking abnormal risks
(but obvs still can be liable - eg ambulance failing to use sirens)
Will courts consider ‘common practice’ in assessing breach of duty in negligence?
Yes if can show complied with accepted practice in profession
But not if that practice is negligent one
eg practice as not to check that ferry doors were shut
At what period of time is D’s state of knowledge assessed from in negligence?
Current knowledge
eg at time doctor did something, risk of seepage was not known - could not taken precautions
Burden of proof for establishing breach of duty in negligence and to what standard?
Claimant
Balance of probabilities
What Latin rule can help claimants in negligence where there are no witnesses available?
Explain test for relying on.
Describe to client?
Res ipsa loquitur - ‘the thing speaks for itself’ - presume D’s fault:
- CONTROL of D or someone D responsible for
- would not usually happen w/o negligence
- CAUSE is UNKNOWN to Cl
Courts can infer negligence without hearing detailed evidence
How can D defend selves where Cl relying on res ipsa loquitur (the thing speaks for itself)?
(negligence)
- Provide evidence as to how it happened; or
- Show that they took reasonable care at all times
what can Cls in negligence rely on where D has also been convicted of criminal offence?
if convicted criminal offence, presumed in subsequent civil proceedings to have committed the offence
Cl can rely on to show that careless conduct did take place - don’t need to prove it again
but not always helpful
eg if criminal case was driving w/o insurance - doesn’t show that D acted negligently
3 Qs in assessing causation for negligence?
- But for? (or material inc/contribution); then
- Novus actus interventions? (intervening act); then
- Remoteness?
(same for nuisance/D v S etc)
Explain test for factual causation in negligence?
but for negligence, would harm have occurred
eg
even if patient was correctly diagnosed, it would have been too late
If multiple possible contributors - use material increase
(e.g. mesothelioma)
If but for fails, use material contribution
(e.g. taxi driver vs cyclist)
Explain material contribution and material increase approach to causation (negligence)?
If multiple contributing causes of loss,
Cl not need to prove it is the main cause (ie but for)
Just that it MATERIALLY:
a) contribute to loss; or
b) inc RISK (v rare)
When will Claimant be able to rely on material increase in risk for causation?
Scientific uncertainty as to actual cause
Probs just for mesothelioma
When will Cl be able to rely on material contribution to loss (negligence)?
if multiple simultaneous causes, must have materially contributed to harm
doesn’t have to be only or main cause
e.g.
- guilty dust and innocent dust - both contributed
- 5 possible risk factors, each could have caused damage / only resp for 1 - not liable
(because it just added to a list, it need to be cumulative and add ONTO the other factors, not be seperate)
e.g.
- taxi driver swerved to avoid motorbike which pulled out
- taxi driving above speed limit
- wouldn’t use but for, would use material contribution
- because if used but for, both could point to the other
if Cl suffers one injury after another, and two injuries impact each other, to what extent should subsequent D be liable?
extent that own negligence made Cl’s damage worse
How are damages divided where Cl suffered injury with more than one cause
If injury is DIVISIBLE:
- will apportion damages accordingly
(eg multiple employers, apportion based on how long worked there)
If indivisible:
- 2 or more liable for same damage
- Cl can recover damages IN FULL from one OR ALL of them
- then Civil Liability (Contribution) Act will allow D to recover from others
(eg D1 liable 90%, D2 liable 10%, can recover 100% D2)
Does an instinctive novus actus interventions break chain of causation in negligence?
no
e.g. D threw firework at TP, TP threw firework away from self
D still liable
Does an negligent novus actus interventions of TP break chain of causation in negligence?
(eg medical?)
only if unlikely foresee as consequence of negligence
Main one: cause injury, then had negligent medical treatment - still liable, unless grossly negligent
eg
D1 negligently drove lorry. blocked 2 lanes.
driver 2 stopped to help.
driver 3 negligently failed to notice. killed driver 2.
drivers 1 and 3 both liable
Foreseeable that other drivers may come too fast
Does an reckless or intentional novus actus interventions of TP break chain of causation in negligence?
(nb reckless/intentional instead of negligent)
Q of fact
Unlikely if D ought foreseen
e.g. painter left door open, told to ensure was closed, thief robbed necklace
- liable
(court placed weight on relationship between parties implying agreement to take care)
eg Ds negligently caused damage to council house, squatters recklessly damaged - squatters broke chain
Do ACTIONS OF CLAIMANT break chain of causation in negligence (intervening act)?
Only if entirely unreasonable
Not if careless
E.g. weakened Cl’s leg, injured self going down steep stairs w/o handrail - broke chain. v silly !
E.g. neck brace, difficult to use glasses, fell down stairs - can u blame them !
(nb carelessness can be used as contributory negligence)
General rule on remoteness of damage in negligence and 2 provisos?
(in summary)
Damage REASONABLY FORSEEABLE
Exceptions:
- ‘similar in type’ 📝
- as long as type of damage reas foreseeable, still liable if way occurred was unforeseeable
(eg rare disease rat urine, not same in type - only rat bites were)
(leave candles out, child goes crazy, burning - same type/still liable) - ‘egg-shell skull’ 🍳
- if some loss RP, still liable - even if full extent not RP
(eg bleeds to death, even tho minor cuts)
(loss of wages higher cos t fury - still liable)
(pass REMOTE to watch ❤️🏝️- type on paper? eggs in morning?)
General rule on duty of care for pure economic or psychiatric loss and why?
D owes no duty
Because insufficient proximity
What is NOT pure economic loss and pure psychiatric harm?
Is it recoverable?
consequential economic/psychiatric fine. PEL and pure psych not.
consequential
economic = money loss follows from physical damage
yes recoverable
eg
bonfire destroys shed so pay:
- £500 replacement shed
£5 for local garage to store mower
psychiatric = follows from personal injury
eg diagnosed phobia and nightmares after car accident causes leg injury (can recover for both)
^ none of this is pure economic loss, it follows on from damage
YES is recoverable
Which types of loss are classified as pure economic loss and are they recoverable?
General rule is no duty of care so not recoverable in negligence
Economic loss:
- Caused by acquiring defective property
(e.g. coffee machine faulty. PEL.) - Unconnected to personal injury or physical damage to Cl
- Statements
(e.g. negligent investment advice)
- Actions
(e.g. release animals causes outbreak) - Caused by damage to property of a TP
(eg damage to train lines means have to pay for a taxi)
Explain what economic loss caused by acquiring defective property is and whether can sue in negligence it?
e.g.:
- house with defective foundations
- faulty hairdryer
Tort would interfere with contract law.
Damage would be PEL and no duty care owed for PEL.
Could recover for negligence if caused personal injury/damaged other property - since is consequential.
Can’t recover PEL e.g. replacement/repair costs of that property.
best example: (e.g. AirPods overheated, damaged bag, could recover replacing bag as consequential. but couldn’t recover cost of AirPods since PEL.)
e.g.
- buy a house. foundations dangerous.
- defects were apparent before caused physical damage (only thing suffering damage was house itself)
- not recoverable. selling property or paying for repairs is the remedy and that is PEL.
- simply bought something less valuable.
- would be recoverable if discovered due to personal injury or damage to property as a result of the defective item
faulty hairdryer
- recoverable only if caused fire/PI
- but replacing hairdryer PEL and not recoverable
swimming pool not constructed properly
- no one hurt and nothing damaged but cost repairs
- not recoverable
Explain when there will be economic loss caused by damage to property of a TP and if it will be recoverable?
NOT recoverable because classed as PEL.
e.g.
- have to pay for taxi back from Liverpool because trains are cancelled / trains cancelled due to train operator negligence
- employee’s damaged cable, cable belonged to supplier’s not employer, employer suffered economic loss from damage but can’t recover
(employer could recover for damage to cable and consequential losses if owned cable)
(nb would be liable if damage is caused by D to Cl’s stuff/body - not case pure economic loss and proximity exists)
Is economic loss caused by negligent actions recoverable?
Can’t recover if no physical damage.
Classed as PEL.
E.g.
- D caused outbreak of foot and mouth, C had to close their market.
- not liable - loss was caused by closure to market, not physical damage.
(if cattle died, I think there would be able to recover)
When will there be a special reli between D and C?
imp
(one effect of this is that negligent statement resulting in pure economic loss = liability)
AR.
- D assumed responsibility towards C:
- D knew reason for advice?
- Knew advice would be communicated to C
(either individually or as member of ascertainable class?) - D knew likely rely without independent inquiry
- Did C act on advice to detriment?
- Was it reasonable for Cl to rely on that advice?
(the above would probs show it was)
e.g.
- auditor told do a report, did not know would be communicated to bidder - not liable
- but told to do report for takeover purposes and identified bidder, obvs would go to claimant - liable if negligent eg misled
is there duty of care owed for negligent statements made in social situations, which cause pure economic loss?
general rule is no as no assumption of responsibility
but yes if:
1. assumed responsibility
2. reasonably to rely
will be case if friend has greater skill/knowledge and Cl made clear relying.
eg
friends, sold car, car unroadworthy - seller had more knowledge - so it was not simply advice on social occasion - assumed resp
Can you get damages where D’s negligence causing pure economic loss was made to a third party instead of the claimant?
Is this for negligent statements only?
Few examples - one imp example!
Yes - if Hedley Byrne principle applies (ARRR)
- special relationship:
- a) D assumed responsibility to C; and
(knew purpose/communicated/indeo enquiry etc) - b) reasonable to rely on
(AR is to Cl but TP relies on)
Can extend to:
- negligent breaches of contract, only if relates to duty to take reasonable care (!!!!!!)
- negligent provision of professional services (eg will drafting)
eg would-be beneficiaries
e.g. gives bad reference to new employer, employee could claim.
Can claimant rely on tort if have contract with D for professional services?
Only if duty under contract is to take reasonable care
(and therefore consistent with tort)
2 main requirements for D to rely on exclusion notice in tort?
(inc negligence and OLA)
- Reasonable steps to bring to Cl’s attention
- Covers loss suffered by Cl
What can D never EXCLUDE liability in negligence for?
What is the one exception?
- personal injury
- death
As per CRA and UCTA
(check when get to it but think unless private occupier)
(i dont think u can)
What will be considered in determining whether D EXCLUDE liability in negligence/OLA under UCTA/CRA?
Explain.
- UCTA (B2B)
- REASONABLE (in circumstances)
- take into account:
a) bargaining power
b) could they have obtained alternative advice given cost/time?
(eg could I have found a new surveyor or effectively forced into this one and therefore the exc clause)
c) difficulty of task subject to clause
d) practical consequences for parties, inc insurance
- CRA (B2C/C2C)
- FAIR (consider circumstances)
(fairness cos consumers fairness seems right)
Requirements of injury for pure psychiatric harm
If suffered pure psychiatric, injury must be:
- Caused by sudden shock; AND
(not gradual build up - eg depression after caring for injured relative over long time)
- Medically recognised; OR
(eg not simple anxiety)
- Medically recognised; OR
- Shock-induced physical condition
(eg miscarriage or heart-attack)
applies secondary and primary
Who will be primary vs secondary victims of psychiatric harm in negligence?
Primary
- in arena of danger; or
- reasonably thought they were
(eg miscarried because car accident / though would be in danger, even if weren’t)
Secondary
- WITNESSES or FEARS injury to another
When will duty of care be owed to primary victim (psychiatric harm)?
Risk of PHYSICAL harm foreseeable, even if risk of PSYCHIATRIC harm wasn’t
but remember may be non-consequential loss, in which case standard categories apply and no need to consider
^ think i mean if injury DID occur as a result of breach, then satisfies w/o being fors.
(eg PTSD arose from injured leg and road user so est duty of care)
When will duty of care be owed to secondary victims?
Explain each part.
(psychiatric harm)
(assuming already satisfied test on sudden shock etc)
psychiatric foreseeable and 3 proximities.
- PSYCHIATRIC injury foreseeable 🧠👀
ie normal fortitude in Cl’s position - Proximity of relationship 😘
- close relationship love and affection ❣️ - Proximity in time and space ⏰🪐
- present at accident or immediate aftermath - Proximity of *perception 🕶️
- see or hear the accident, or its immediate aftermath, with own senses
(Alcock ^)
When will there be proximity of relationship for secondary victim psychiatric harm?
Close ties love and affection
Presumption if:
- spouses, parent/child, fiancés 💍
^ D can rebut to show not that close
Claimant must prove close relationship exists if fall outside those categories
When will there be proximity in:
a) time and space
b) perception
for duty to secondary victims?
a)
- immediate aftermath, even if not present at time
e.g.
- 1 hour later, were in same condition, counts
- 8 hours later, asked to identify in mortuary, didn’t count
b)
- see or hear event, or aftermath, with own unaided senses
(not communicated by a TP)
- if live on TV and no images of those individuals, doesn’t count
- if broadcast with images, usually novus actus interventions
- but maybe liable from broadcast in exceptional circumstances
(eg children on hot air balloon, live on TV, parents watching, suddenly burst in flames)
Is a duty of care owed to rescuers?
They are treated on same rules of primary and secondary victims
No special rules afforded to professional rescuers
(ie not expected to have higher degree of fortitude)
Will usually be harder for rescuers to satisfy secondary victim and show close tie of love and affection
e.g.
- rescuer asked to crawl under railway to save people, primary victim as put at risk of physical harm and in arena of danger (even though didn’t suffer)
Does egg shell skull rule apply to psychiatric injuries?
At remoteness stage yes - so can get damages to greater extent than foreseeable
But remember secondary victims would first have to show that ordinary person of normal fortitude would have also suffered psychiatric harm
What is employer’s common law duty?
(negligence NOT VL)
(there are 4)
- Competent fellow staff 👭
- Adequate materials; and 🔧
- Proper system of work and supervision 👀📈
- Safe place of work ⛑️
Can an employer delegate their common law duties?
(negligence)
Examples show why this is imp
No
H and Tommy
(it is a personal duty)
(employee doesn’t need to show who is to blame)
E.g.
- local contractor was negligent in servicing machinery
- employee injured
- employee can claim against employer
(employer can claim against contractor)
E.g.
- knocked over outside factory by lorry driven by a supplier - not liable
Explain duty of employer to provide competent staff and when it arises / employer becomes liable?
(negligence)
Employer** knows or ought** to know the risk of a particular worker
Would ought to know if not adequately train or supervise
Can be psychological and physical harm
e.g. bullying
(nb: could often ALSO bring vicarious liability claim in these instances)
When would employer be negligent for failing to supply adequate plant and equipment?
What must employee show if suing for inherent defects?
(plant, machinery and equipment)
- inadequate in some way
(eg defects, not maintained) - don’t supply what need for the job
(eg safety goggles)
Inherent defects:
1. failure on part of TP (eg manufacturer);
2. causation (ie fault caused injury)
(^ statute allows sue employer cos hard to sue manufacturer if u aren’t the one who bought)
Explain duty on employer to provide safe SYSTEM of work?
(negligence)
Wide -ranging and onerous / easy for Cls
Must take reasonable steps to ensure safe SYSTEM implemented, by:
- training
- supervising, at least at outset
- monitoring compliance
- disciplinary if fail to comply
Explain common law duty in negligence to provide safe WORKPLACE
and compare to statutory Occupiers Liability Act requirement to provide safe workplace?
CL
- take reas steps to provide safe place to work
Statutory/OLA - CL is more onerous:
- OLA can be delegated
(tom not liable)
- OLA only applies if ‘occupier’ / CL applies everywhere - eg on site - have to check safety and eradicate/minimise
When can duty to provide safe system of work extend to stress at work cases?
(ie requirement to establish and considerations)
(negligence)
Yes
(Hatton Guidelines:)
‘Threshold Q’ - Was injury to health via stress reasonably foreseeable?
(PM. 14 hrs. Wght Ls).
Considering:
1. nature and extent of work done by employee; and
(eg obvs too high workload)
- signs from employee
^ employer can assume employee is fine and take what told at face value
(eg off work with stress, return to more work)
MUST relate to work and not personal problems.
Duty to take steps if those considerations satisfied. If don’t, breach.
To prevent breaching common law duty, employers must take ___ steps?
How is breach of duty assessed?
Reasonable
Assessed on usual principles
(eg standard reasonable employer, consider magnitude risk and precautions)
^ which makes sense because CL duty is in negligence x
Will employer owe extra duties to certain employees?
Yes - owe duty to each individual employee
But if require an additional duty, employer must know of this
E.g. if one employee has one eye, owe extra duties to protect them
- links to magnitude of risk and costs/practicalities of precautions
(balancing exercise)
- but employer not liable if (reasonably) unaware
Can employee bring breach of regs under Health Safety Work Act be brought under civil claim? Will they be relevant other ways?
No
Criminal offence
BUT
Relevant to the showing standard reasonable employer should have met
What must D establish for defence of consent in negligence?
What is this defence aka and is it a full defence?
- Claimant had full KNOWLEDGE of nature and extent of risk; and
- Claimant willingly CONSENTED to accept risk of being injured due to negligence
Full defence. Voluntary assumption of risk.
When will claimant have willingly consented to negligence?
Can Cl consent in motor vehicles?
How does it applies to employees?
(second limb of consent requirement)
Freely and voluntarily consented
If there reli where doubt whether can truly decide, no consent
D cannot rely on defence of consent in motor vehicles
Employees under duty so little choice but to consent, rarely succeeds
e.g.
- if v obvious that cyclist is v drunk, then consented / if knew drinking but not extent, not consented
e.g. employee
- just bcos consented to work despite knowing risks, did not consent
Explain how consent defence operates with rescuers?
Applies same to professional or lay rescuers.
Rescuers will NOT have consented if:
- rescuing people endangered by D’s negligence; and
- under moral, legal or social duty to act; AND
- acted in reasonable way / natural consequence of D’s negligence
Rarely succeeds - would often use con neg instead
(otherwise, rescuers rarely be entitled to anything!)
(when rescuer been very silly!)
When will contributory negligence be found?
3 main examples
- Carelessness of C
- contributed to own damage
- fell below standard reasonable person
Examples
- failing to wear seatbelt 💺
- motorcyclist crash helmet ⛑️
- accept lift from driver know to be drunk 🍷
(even if too drunk to appreciate D’s intoxication)
can use con neg but not consent in motor cases
To what extent should damages be reduced in contributory negligence?
- just and equitable
- C’s share responsibility
- culpability (ie blameworthiness)
- causation relating to damage (ie on C’s part) - not about who caused accident
If relying on seat belt/helmet failure to wear for con neg, what must D show?
Causal link
i.e. it would have made a difference to injuries if C did wear
eg if didn’t wear helmet but broke leg, can’t rely on it
Likely % reduction for failure to wear seatbelt/motor cyclist helmet? (con neg)
if made no diff - 0%
if less severe if wore seatbelt - 15%
if could have avoided if worn - 25%
when can a child be contributorily negligent?
if took same level of care that reasonable child of same age would have
very young = very unlikely
