Tort Flashcards
When does negligence arise?
When a person owes a duty of care to another and breaches that duty and the breach causes damage (to person owed duty or to their property)
If duty is not established the courts will imply a duty of care if what?
- the claimant is a foreseeable claimant (defendant’s conduct caused a foreseeable risk of harm);
- relationship of sufficient proximity between the defendant and claimant; and
- it’s fair, just and reasonable to impose the duty on the defendant
Generally not liable for an omission as no general duty to act. What are some exceptions?
- special relationship between the parties – parent-child, teacher-student
- defendant has control over the victim – police officer who takes person into custody
- harm caused by a third party under the defendant’s control – parent may owe duty to control their child to prevent them causing harm
- if someone attempts a rescue they have a duty to not make the situation worse.
What happens if the harm suffered by the claimant was not within the scope of the defendant’s duty of care?
Then damages are not recoverable even if the defendant acted negligently.
How is duty usually measured?
Usually the duty to act with reasonable care. This is an objective standard so defendant’s special characteristics are not taken into account. Courts will consider the likelihood of harm arising and the seriousness of potential harm when assessing whether the care used was reasonable. Practicability of precautions will also be considered.
When are special duties owed?
By skilled defendants and professionals (such as doctors) they must act as a reasonably competent member of that profession would
What does causation do?
Claimant show that the breach caused the claimant’s injury.
What are the three components of causation?
- Show on the balance of probabilities that but for the defendant’s breach the claimant wouldn’t have suffered harm
- No new act intervened between the breach and the injury. To break the chain of causation the intervening act must have been unforeseeable e.g. a doctor’s gross negligence when treating the claimant, the claimant’s own action can break the causal chain if it was unreasonable
- Claimant’s harm was reasonably foreseeable – but take victim as find them still liable if claimant has weak bones.
What happens if multiple defendants?
If two or more defendants breached a duty and is indivisible injury for example claimant broke leg when in car crash and both drivers negligent then the claimant can recover fully from either driver.
If one can prove they paid more than their share of fault they can seek contribution from the other driver. If claim is divisible then each defendant only liable for proportion of injury they caused.
If successive injuries claimant can recover from each defendant only for the injury caused by them.
What is test for remoteness of damage?
Is whether the kind of damage suffered was reasonably foreseeable by the defendant, at the time of the breach.
Principle of remedies for personal injury?
Goal to put injured party in position they would have been in had the tort not occurred to extent money can do so.
Tort victims have duty to mitigate loss to avoid avoidable damages.
What do recoverable pecuniary (financial) losses for personal injury claims include?
- Loss of past income – between injury and trial/settlement this bases on net wages lost
- Loss of future income – income won’t be able to earn after trial or settlement due to injuries. Adjusted for contingencies of life such as possibility could have lost their job in the future. Is awarded as a lump sum. If injury shortens life expectancy then loss of future income lowered to reflect expected time.
- Past and future expenses of medical treatment, care, equipment and modification to claimant’s home. Note: choosing private treatment over NHS isn’t a failure to mitigate.
What do recoverable non-pecuniary losses for personal injury claims include?
Past and future pain and suffering and loss of amenity (loss of enjoyment from life due to injury).
What happens for claiming if victim dies?
Any existing tort cause of action survives but not claim for the death itself on behalf of the victim
If deceased would have been able to bring a tort claim on the negligent act that caused their death then dependents can seek damages for what?
- Bereavement damages – statute fixed and only recoverable by spouse, civil partner or cohabitant of 2+ years, or parents if under 18 and unmarried; and/or
- Loss of dependency damages – if dependent of deceased and financially dependent on the deceased.
Funeral expenses are recoverable if defendant’s tort caused death.
Are claims for pure economic loss arising from a negligent act usually recoverable?
As a general rule pure economic loss not recoverable in negligence claim
for example damage to property which doesn’t belong to the claimant or cost of damage suffered by a defective product which is acquired by the claimant.
Are claims for pure economic loss arising from negligent misstatements by the defendant recoverable?
Can be recovered if they arise from negligent misstatements by the defendant and:
- The defendant knew the claimant was likely to rely on their advice without independent enquiry; and
- The advice is required for a purpose which is made known to the defendant.
What is pure psychiatric harm?
psychiatric harm not accompanied by physical impact
Can a claim be made for pure psychiatric harm?
Special rules apply to allow to recover. If was accompanied by physical injury then is labelled as consequential psychiatric harm and ordinary recovery rules apply.
Rule to recover for pure psychiatric harm if a primary victim?
Primary victim in actual area of danger created by the defendant.
Damages can only be recovered for medically recognised psychiatric conditions (PTSD etc.)
Rule to recover for pure psychiatric harm if a secondary victim?
Secondary victim outside the danger area must establish: they were present at the accident scene or immediate aftermath; sudden shock; close ties with the person endangered by defendant’s negligence and psychiatric harm was foreseeable.
Damages can only be recovered for medically recognised psychiatric conditions (PTSD etc.)
What is an employer’s duty for employees?
Duty to take reasonable care for the safety of employees, includes a duty to take reasonable steps to reduce the risk of psychiatric herm from stress.
Must take such care as would be expected of a reasonable employer.
