tort Flashcards
Hedley Byrne
Damages may be recovered in tort where financial loss is caused by the negligent misstatement (common law, no recission).
For economic loss to be recovered there must be an assumption of responsibility giving raise to a special relationship + reliance by the applicant and such reliance must have been reasonable
Donoghue v Stevensen
Donoghue v Stevenson and Carparo established the neighbour principle for establishing new duties of care under tort.
The earlier case of Donoghue v Stevenson (snail in ginger beer bought by the claimant’s friend, hence no claim in contract, but the court found that a duty of care was owed by the manufacturer
The neighbor principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.
See caparo for the revised test
Caparo
Capare sets out a 3 step test based on Donoghue v Stevensen to establish a duty of care in new situations:
- Reasonable foresight of harm to the claimant
Bourhill v Young: not foreseeable that a woman who heard a car crash suffered miscarage after seeing blood on the ground. - Sufficient proximity of relationship between the claimant and defendant, and
In Caparo the claim failed because there was insufficient proximity between the claimant (buyer of shares) and defendant (auditors that had prepared a statutory audit of a company which the claimant then relied on the value of when buying shares)
Lack of proximity is the basis for special limitations for duty of care owed in special cases e.g. omissions, pure economic loss and pure psychiatric harm - That it is fair, just and reasonable to impose a duty
Hill v Chef constable of west Yorkshire: a claim from the family of a murder victim of a serial killer failed against the police, as the police does not owe individuals, but the public at large a duty of care.
Floodgate argument: allowing one case will lead to 100s
Deterrence: courts may rule in favor of a claimant to deter others from acting in a certain way
Resources: no insurance on the claimants side is taken into account + if insurance, a general risk of premium increase
Public benefit
Upholding the law
Breach of duty of care? test
Two stage test:
- How the defendant ought to have behaved given the circumstances (the reasonable man)
- Whether his behavior fell below this standard
The reasonable man: an objective test.
Breach of duty of care - special standards
Special standards for:
The skilled defendant (Bolam test):
1. Anyone exercising a special skill shall be judged according to a person who has the same skill.
2. As long as the defendant’s actions are supported by a reasonable body of professional opinion, they should not be judged as negligent.
The under-skilled defendant:
The standard is not reduced due to the learners lack of skill or experience.
Nettleship v Weston: driver learning to drive that caused an accident was judged based on an average drivers’ skill. Harsh, but compulsory insurance on the road.
WIlsher v Essex: Junior doctor is expected to have the same competence as an average doctor.
Wells v Cooper: amateur doing work around the house is treated as a reasonable competent amateur carpenter etc. but if tackling jobs that ought to be done by a professional, taking on the work may be negligent in the first place
Children: same care as an ordinary child of the same age
Young children are rarely liable and under 18 cannot be sued but must be represented by an adult.
Mullin v Richards 15 year old had not breached duty of care in a mock sword fight with plastic rulers as it could not be expected that a 15 year old released the danger for eye injury
Res Ipsa Loquitor
the court can in a small number of cases conclude negligence without hearing detailed evidence as the “thing speaks for itself”. Three conditions:
1. The thing that caused the damage is under the control of the defendant
2. The accident would not normally happen without negligence
3. Cause of the accident is unknown to the claimant
Scott v London: bag of sugar fell from crane and injured man walking passed. No witnesses, but liability under Res Ipsa Loquitur.
causation test
- Was the defendant’s negligence a cause of the claimant’s harm?
Test: would the damage have been caused “but for” the claimant’s action? - Was there an intervening act?
- Even if the defendant’s negligence caused the claimant’s harm, was the damage too remote?
Causation – but for test
Barnett v Chelsea: Person rejected from casual department at hospital later died of arsenic poison. There was a breach of care, but no causation, as the man would have died regardless.
Proof: claimant must prove on the “balance of probabilities”.
WIlsher v Essex: child became blind and the cause could be lack of oxygen from a mistake by a doctor, but the claimant failed to prove on the balance of probabilities that this was the cause.
If there were several causes, the claimant only has to show that the defendant’s actions materially contributed to the damage (does not have to be the sole or main cause)
Bonnington v Wardlow: lung disease had two possible dust causes, one of which the defendant would be liable for. The claimant managed to show that the defendant’s actions materially contributed to the damage
Exception in certain cases where a material increase in risk has been accepted as enough
If a claimant suffers two injuries, the later defendant should only be liable for the later injury. E.g. a defendant was not liable for respray of a car after he bumped it, as the car was already in need of a respray from a previous accident.
The court may award only a portion of damages if there are several defendants. Holtby v Brigham: claimant was ill from asbestos, but had several employers where he could have been exposed and the sued employer was therefore only liable for a portion of the claimed damages.
S. 1-2 in the Civil liability Act 1978, if two or more people are responsible for the same damage, the court may distribute damages between them.
If 2+ people are liable for the same damage, they are liable in full towards the claimant. The distribution between the defendants must later be agreed between the defendants.
Causation - intervening act
Was there an intervening act?
An instinctive intervention from a third party isn’t enough
Scott v Shepherd: fireworks landed in a crowd and several people threw it away from themselves was not enough to break the chain of causation.
A negligent intervention from a third party is unlikely to break the chain of causation
Knightley v Johns: defendant negligently blocked entrance to tunnel. a constable that was ordered to drive against traffic and injured when a vehicle struck him in the tunnel. The chain of causation was broken.
A reckless or intentional intervention from a third party is more likely to break the chain of causation
Lamb c Camden: squatters damaging house whilst being repaired for damage caused by the defendant was a break in the chain of causation and the defendant was not liable.
The claimant’s own act can break the chain of causation if it is entirely unreasonable.
Causation - was the damage too remote?
Even if the defendant’s negligence caused the claimant’s harm, was the damage too remote?
Wagon mound-test: if a reasonable person would not have foreseen the damage it cannot be recovered. Exceptions: similar in type + egg shell skull
Similar in type: if the injury itself is foreseeable it doesn’t matter that the precise way the claimant suffered the injury was not foreseeable. Contracting a rare disease from rat’s urine on a farm was not enough. burns on a child that fell into a manhole with paraffin lamps around left unguarded was covered.
Egg-shell skull: must take the victim as you find him. RObinson v Post office: claimant sued defendant for injury to his leg + allergic reaction from a vaccine he had to take as a result of the injury. He succeeded in both as the necessity for the vaccine was foreseeable.
Tort - types of damages
COmpensatory damages: aim to put the claimant in the same position as they had been if the tort wasn’t committed, but not profit from the incident. A claimant can only bring one claim based on each set of facts.
Special damages: losses that can be calculated precisely
General damages: losses that can’t be calculated precisely and is for the court to decide
Tort personal injury - type of damages
Non-pecuniary losses: not capable of being calculated in money e.g. pain and suffering.
Claimants must have been awarded damages for physical damages in order to claim for pain and suffering.
Covers past present and future pain, anguish of knowing they have a shorter life expectancy. Individual assessment.
Pecuniary losses: capable of mathematical calculation.
Medical expenses (must mitigate costs, but private health care is not excluded), loss of earnings before the trial and lump sum for post trial.
Claimable damages under faital accidents act
After death, relatives must apply under the fatal accident act for compensation where the estate cna continue or commence a claim. 3 possible claims: dependants for loss of dependency, damages for bereavement and funeral expenses if paid by the dependants (if paid by the estate they will be claimed under the 1934 act
Can a claim be made for pure economic loss in tort?
Usually no duty of care.
Economic loss caused by damage to third party property: Sartan Steel v Alloy: power cut in a factory that produced 24/7 by workers that cut the electricity cable. Steel products that were solidified in the melt + loss of profit on those products was recoverable, but loss of profits for the hypothetical melts that should have been produced during the power cut was economic loss and not recoverable.
Economic loss where there is no personal injury or damage to the claimant’s property.
Negligent statement: possibility of unlimited liability, as there generally is a higher chance that there is a special relationship between the parties that give rise to a duty of care.
Hedley Burne v Heller: there can be a duty of care even where the loss is purely economic if there is an especially close relationship between the claimant and defendant. Here the defendant were a banker that had supplied the claimants a favorable credit reference for X, whom the claimants extended a loan to and lost money after X went bankrupt. Two elements for a special relationship:
1. An assumption of responsibility by the defendant
2. Reasonable reliance by the claimant
Carparo expanded this test to cover where:
(from Hedley: did the defendant assume a responsibility over the claimant)
1. the defendant knew the purpose of the advice,
2. that is was communicated to the claimant,
3. that the claimant was likely to at on the advice without inquiry, and
4. that the advice was acted on to the claimants detriment
No duty of care is owed for advice in a social setting, as there is no assumption of responsibility.
Chaudrey v Prabhakar: exception where the defendant owed the claimant a duty of care in a social setting as he had extensive knowledge about cars
Negligent action: general role, no duty of care. Weller v foot and mouth disease: claimants that had to close auctions and lose money due to foot and mouth disease was purely economic loss and not recoverable.
Economic loss from negligent statement - test from case law
Hedley Burne v Heller: there can be a duty of care even where the loss is purely economic if there is an especially close relationship between the claimant and defendant. Here the defendant were a banker that had supplied the claimants a favorable credit reference for X, whom the claimants extended a loan to and lost money after X went bankrupt. Two elements for a special relationship:
1. An assumption of responsibility by the defendant
2. Reasonable reliance by the claimant
Carparo expanded this test to cover where:
(from Hedley: did the defendant assume a responsibility over the claimant)
1. the defendant knew the purpose of the advice,
2. that is was communicated to the claimant,
3. that the claimant was likely to at on the advice without inquiry, and
4. that the advice was acted on to the claimants detriment
