Tort Flashcards
list some 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
explain the duty of care owed to a rescuer
Where a defendant’s actions have created a dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, the defendant owes a duty of care to the rescuer
what is the test for establishing a duty of care in novel situations?
Caparo v Dickman:
- reasonable foresight of harm to the claimant > Bourhill v Young
- sufficient proximity of relationship between the claimant and defendant; and
- that it is fair, just and reasonable to impose a duty > Hill v Chief Constable of West Yorkshire
- note > can look at policy factors e.g public benefit
the court also noted that when considering novel duty situations, the law should only develop incrementally and by analogy to an established duty
what is the general rule regarding liability for omissions?
what are the exceptions to the general rule?
- general rule = no liability for omissions > Stovin v Wise
EXCEPTIONS
- if someone decides to act, they have a duty not to make the situation worse > East Suffolk Rivers
Catchment Board v Kent and another
- the duty to act positively if a person has some sort of power or control over the other person or object:
- employer and employee;
- schools and children;
- parents and children;
- instructors and pupils.
- where one person has a relationship of control over another, they may have a duty to take positive action to prevent harm being caused to third parties > Home Office v Dorset Yacht Co Ltd
e.g. an instructor to make sure that a learner driver does not cause an accident or the duty of a teacher to prevent a pupil running into the road and causing a danger to drivers
in establishing whether a D has breached their duty of care, the court looks at what the _______________ ought to have done
- reasonable person > Blyth v Birmingham Waterworks
- objective test > the courts do not take into account the personal attributes of each D
explain the situations in which the ‘reasonable person’ test still applies when assessing breach but where special standards modify the test.
- the skilled defendant
- Bolam v Friern Hospital Management Committee
- where a person exercises a special skill, that person is not judged according to the standard of the reasonable person in the street, but is instead judged according to the degree of skill or competence to be expected from a person who has that special skill - the under-skilled defendant
- Nettleship v Weston > learner driver judged against the standard of a reasonable competent driver
- Wilsher v Essex Area Health Authority > a junior doctor is expected to show the level of competence befitting a doctor holding the same post
- if a defendant does not profess to have a particular professional skill, they may not be required to meet a higher professional standard
- however, they must still meet the minimum standard required by the task undertaken
- if they undertake a task which requires a special skill which they do not possess, that in itself is likely to be negligent - children
- Mullins v Richards > a child defendant will be expected to show such care as can reasonably be
expected of an ordinary child of the same age
a child under 18 cannot be sued (or sue) unless he has _______ to represent them.
even then a decision should be made about whether there is any point suing a child if they have no money to pay the judgment.
adult - known as a litigation friend
which factors are relevant when determining whether defendant has achieved the required standard of care?
- magnitude of the risk
- the greater the chances of the defendant’s activity causing injury to the claimant, the more precautions the defendant must take > Bolton v Stone
- duty to protect against ‘reasonable probabilities not fantastic possibilities’ - the seriousness of the harm
- the more serious the possible harm to the claimant, the more care the defendant must take
- Paris v Stepney Borough Council - cost and practicability of precautions
- where the defendant would incur great expense which would produce only a very small reduction in risk, it will be reasonable for the defendant to do nothing
- however great expense will not excuse a D where the risk of injury is great
- Latimer v AEC
- note, if the D’s failure to take reasonable care is attributable to his lack of resources, the courts will not allow the defendant to use this as an excuse - D’s purpose
- If the defendant’s behaviour, therefore, is in the public interest, the defendant is less likely to be held liable in negligence
- Watt v Hertfordshire County Council > if human life is at risk, the D MAY be justified in taking abnormal risks - common practice
- MAY be able to escape liability if they can show that they complied with the accepted practice in their trade or profession > Bolam v Friern - the current state of knowledge
- Roe v Ministry of Health > anaesthetic contaminated via invisible cracks, doctor uses the anaesthetic and paralyses the victim > D not in breach of duty
where there are no witnesses and experts may not be of particular help in a very small number of cases, the circumstances in which the damage occurred
will be such that a court may be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what the defendant did or did not do.
the maxim res ipsa loquitur will assist the claimant (‘the thing speaks for itself’)
what are the three conditions for the maxim to apply?
- The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible.
- The accident must be such as would not normally happen without negligence.
- The cause of the accident is unknown to the claimant – so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care.
Scott v London and St Katherine Docks Co
The defendant then has to provide a reasonable explanation of how the accident could have occurred without negligence by either explaining how the accident happened or showing they had shown reasonable care and skill.
what is the effect of effect of s 11 of the Civil Evidence Act 1968?
- a defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence
- the claimant can rely upon the conviction as evidence that this careless conduct did take place
- the claimant does not need to prove that behaviour again in the civil proceedings
e.g. a car accident occurs and the defendant is convicted of driving without due care and attention. The claimant in a subsequent civil claim can use this conviction as evidence that the defendant failed to take reasonable care when driving. This is because the criminal conviction is relevant to the claim in negligence.
However, this provision will not always be of assistance to the claimant. For example, if a driver is convicted of driving without insurance, this does not provide the claimant with any evidence that the defendant failed to drive carefully, as the criminal conviction is not relevant to the negligence claim
what is the standard of proof in tort?
on the balance of probabilities
Hotson v East Berkshire Area Health Authority:
the claimant fell from a tree and was injured, but was then treated negligently by the defendant. There was a
75% chance that the claimant’s medical condition following the fall would have been the same irrespective of diagnosis and treatment. The claimant had therefore failed to satisfy the causation test, as there was only a 25% chance the defendant’s breach had caused his disability and this did not satisfy the balance of probabilities.
explain factual causation
- the ‘but for’ test > But for the defendant’s breach of duty, would the harm to the claimant have occurred?
- Barnett v Chelsea and Kensington Hospital Management Committee
how would a claimant go about proving causation where there are several possible causes of their injuries?
- Wilsher v Essex Area Health Authority:
- the claimant failed to establish that the defendant’s negligence was the cause of his damage because there were SEVERAL POSSIBLE ALTERNATIVE CAUSES of his blindness, only one of which was the defendant’s negligence
- The claimant could not prove that he had been harmed by the defendant rather than by one of the other causes.
However, it is sometimes possible for a claimant to prove that several causes have together contributed to his harm:
- the claimant need not show that the defendant’s breach of duty was the only cause of the damage to the claimant, or even the main cause
- the claimant simply has to show that it MATERIALLY CONTRIBUTED to the damage > Bonnington Castings Ltd v Wardlaw
how would a claimant go about proving causation where they have been injured more than once?
- where one injury follows another and the two injuries do impact on each other
- Performance Cars v Abraham
- where a claimant (or his property) has already suffered damage, a later defendant who causes a subsequent injury should be liable only to the extent that he makes the claimant’s damage worse
- see divisible damages for how this effects how a D would pay damages
if the defendant has only contributed towards the claimant’s injury, should the defendant pay damages which reflect the full extent of the harm suffered?
- Where the court has evidence which will enable it to divide up the injury suffered by the claimant, it will apportion the damages accordingly > Holtby v Brigham and Cowan (Hull) Ltd [2000] (court apportions damages to the length of time the C worked for D)
- the injuries are divisible
- note this is an important for a claimant because they may need to sue all Ds in order to recover damages in full
- note, most injuries cannot be divided up this way
if two tortfeasors are liable to the claimant for the same injury in full, how should the court deal with damages as between the defendants
themselves?
note the difference between this and Holtby where the court divided up the damage so that each defendant was liable to the claimant only for the particular share of the damage which it caused
here we are talking about the D’s each being liable in full
- the injuries are indivisible
- the C is entitled to sue any and all of the Ds in full
- this is of benefit where one of the Ds is insolvent or untraceable
- Under the Civil Liability (Contribution) Act 1978, a person (D1) liable for any damage suffered by another person (C) may recover a contribution from any other person (D2) liable for the same damage.
- Although the court may apportion blame between the defendants, the apportionment does not affect the claimant as far as the enforcement of any judgment is concerned - so the C can go after any D in full - it would then be up to the D to seek contribution from the other D
EXAMPLE:
C is awarded damages of £20,000. D1 is found 90% to blame and D2 is found 10%
to blame.
* The total amount of damages C can recover is £20,000.
* C may enforce against D1 for the whole £20,000. However, D1 may seek a contribution from D2 for £2,000, ie 10% or
* C may enforce against D2 for the whole £20,000. However, D2 may seek a contribution from D1 for £18,000, ie 90%.
how might the chain of causation be broken?
- the instinctive interventions of a third party do not break the chain of causation > Scott v Shepherd
- the negligent intervention of a third party
- the chain of causation is unlikely to be broken by a negligent action of a third party which the defendant ought to have foreseen as a likely consequence of his negligence > Knightley v Johns - the conduct of a third party that is intentional or reckless is more likely to break the chain of causation
- Lamb v Camden London Borough Council - actions of the claimant
- where the claimant does something after the defendant’s negligent act which causes the claimant to suffer further harm
- McKew v Holland & Hannen & Cubitts (Scotland) Ltd > to amount to a novus actus interveniens the claimant’s
act has to be entirely unreasonable in all the circumstances to break the chain
- note the D may still raise a defence of contributory negligence
is the chain of causation broken where a defendant negligently causes an injury to the claimant, which is then followed by negligent medical treatment?
- unlikely to break the chain of causation unless treatment is so grossly negligent
explain remoteness of damage
- the general rule = if the damage is too remote, D will not be liable
- The Wagon Mound No.1 > Is the damage of such a kind that the reasonable person would have foreseen it? If not = too remote
THE SIMILAR TYPE RULE
- if the claimant suffers an injury of a type which was foreseeable, it does not matter that the precise way in which the claimant was injured was not foreseeable
- Hughes v Lord Advocate
EGG SHELL SKULL RULE
- Robinson v Post Office > This means that if the claimant suffers a particular disability or has a particular condition, they can recover in full from the defendant for their losses, even though the defendant could not have foreseen the full extent of the claimant’s loss.
what is the general rule for pure economic loss
general rule = where a claimant suffers damage which is classed as pure economic loss, that loss is not recoverable
(unless falls into one of the limited situations)
note therefore that it is not that the D has no duty not to cause economic loss, it is that they only have a duty in limited situations
explain the position on consequential economic loss
- the defendant owes a duty of care not to cause the claimant physical injury or property damage, so the defendant also owes a duty not to cause the consequential economic loss which follows from that injury or damage
note that there are no special rules regarding consequential economic loss
which types of economic loss are pure economic loss and as a result cannot be recovered from the D?
- economic loss caused by acquiring a defective item of property
- Murphy v Brentwood DC
- note you can still claim for personal injuries and consequential loss arising from the defective property - economic loss unconnected to personal injury to the claimant or physical damage to the claimant’s property
- the D doesn’t have a sufficiently close relationship to the Claimant - economic loss caused by damage to the property of a third party
- Spartan Steel & Alloys Ltd v Martin & Co > claimant was owed a duty of care for damage to property which it did own, and financial loss consequent on that damage because this was consequential loss - economic loss where there is no physical damage: actions
- no duty of care > Weller & Co v Foot and Mouth Disease Research Institute - economic loss where there is no physical damage: statements (e.g. negligent statements)
- unless special relationship > Hedley Byrne
the general rule is that economic loss suffered by a claimant for a defendant’s negligent statements is not recoverable unless there was a special relationship
when would a special relationship arise?
- no duty of care unless special relationship > Hedley Byrne v Heller & Partners Ltd
- two elements of a special relationship:
(a) an assumption of responsibility by the defendant - Caparo laid down four elements for their to be a
special relationship: - 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.
- James McNaughton Papers Group Ltd v Hicks Anderson & Co (a firm) > accountant not liable as wasn’t aware his accounts would be communicated to the claimant for the purpose of a takeover
VS - Morgan Cruicible v Hill Samuel Bank > the Court of Appeal > decided that in a contested takeover battle, if, after an identified bidder has emerged, the directors and financial advisers of a target company make express representations with a view to influencing the bidder’s conduct, they may owe a duty not to mislead
him negligently. In this case the identity of the bidder is known and the nature of the transaction is known, so proximity of relationship can be established. - Chaudhry v Prabhakar > a duty of care will not be owed in respect of advice given in a social situation, but the D was found liable in this case because they had more experience and knowledge about the subject matter and knew the C would rely on their skill and judgment
(b) reasonable reliance by the claimant
note there are some established situations where thre will be a special relationship
case law has shown that there are some situtions where a special relationship is established and therefore
- employer to employee
- Spring v Guardian Assurance plc > negligent reference > able to claim for pure economic loss as the employer had assumed a responsibility to the claimant to take care in providing the reference - solicitor to client
- White v Jones > negligent delay in will drafting meant again C was able to recover pure economic loss because the solicitor had assumed responsibility to the beneficiaries and to the testator to adequately draft the will
- note the sol didnt make negligent statements > negligent services
can a claimant rely on a claim in tort even though they also have a contract with the defendant for the professional services?
- Henderson v Merrett Syndicates
- can rely on a claim in tort even though they have a contract with the D if the duty in tort is consistent with the duties owed under the contract
- e.g. there was a duty to take reasonable care in both tort and contract
in what situations may a D be able to exclude their liability?
- by relying on an exclusion notice
- can only rely on an exclusion notice:
- 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.
- the Ds ability to exclude liability is further limited by UCTA + CRA 2015
- for UCTA > D must have been acting in the course of business
- CRA > D must have been acting as a trader and the claimant must be acting as a consumer (if they are not acting as a consumer, UCTA may still apply)
- cant exclude liability for death or personal injury arising from negligence
- for any other loss/damage, the D can exclude their liability if it satisfies the requirements of reasonableness under s 2(2) of UCTA 1977 or fairness under s 62 of CRA 2015:
i) reasonableness under UCTA = it should be fair and
reasonable to allow reliance on the exclusion notice, having regard to all the circumstances
ii) fairness under CRA = similar considerations to the above + requirement of good faith, taking into account any significant imbalance of the parties rights
In Smith v Eric S Bush; Harris v Wyre Forest District Council, the House of Lords listed factors which should be taken into consideration when assessing reasonableness (UCTA) of exclusion notices.
what were the factors to take into consideration?
- 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?
as with pure economic loss, a defendant does not owe any duty of care to a claimant not to cause pure
psychiatric harm. why is this?
there is generally a lack of a sufficiently proximate relationship between a claimant who has suffered pure psychiatric harm, and a defendant who may have caused this type of loss
Where a claimant has suffered pure psychiatric harm – ie without physical impact – the injury must be either…
- a medically recognised psychiatric illness; or
- a shock- induced physical condition (such as a miscarriage or heart attack).
cases of simple worry and anxiety will not suffice
note these are the same requirements for primary and secondary victims
the house of lords in Page v Smith stated a primary victim is a person who….
and stated the test for primary victims is…
A primary victim is someone who was actually involved in the incident. So, a primary victim:
a) was in the actual area of danger; or
b) reasonably believed that he was in danger.
The requirements for a duty of care to be owed to a primary victim are:
i) primary victims are owed a duty of care in relation to their pure psychiatric harm, provided the risk of physical injury was foreseeable;
ii) for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.
the house of lords in Page v Smith stated a secondary victim was a person who….
which case set down the test for secondary victims and what did it say?
A secondary victim is someone who is not involved in the incident in the same way. So a secondary victim:
a) witnesses injury to someone else; or
b) fears for the safety of another person
Alcock v Chief Constable of South Yorkshire Police - known as the Alcock control mechanisms:
- It must be reasonably foreseeable that a person of normal fortitude in the claimant’s position
would suffer a psychiatric illness. - The claimant must have a close relationship of love and affection with the person who is endangered by the defendant’s negligence.
- parent/ child, husband/ wife and fiancé/ fiancée = presumption of close relationship of love and aff
- if not in the above categories = must show relationship of love and aff
- can adduce evidence to rebut the presumption e.g. if they werent close with the endangered - The claimant must be present at the accident or its immediate aftermath.
- McLoughlin v O’Brian
- through sight or hearing
- not through third party - The claimant must see or hear the accident, or its immediate aftermath, with their own senses.
- McLoughlin v O’Brian
- note, in Alcock, Mr Alcock saw the body 8 hours after the incident = wasnt classed as immediate aftermath
what is the courts position regarding secondary victims viewing the incident through the TV
Alcock > some of the victims families watched the Hillsborough events unfold on TV but no one on the broadcast was identifiable = couldn’t recover damages
However, Alcock noted that a live television broadcast might be sufficient to render the tortfeasor liable to claimants in shock if the ‘impact of the simultaneous television pictures would be as great, if not greater, than the actual sight of the accident’
is there a special duty owed to rescuers (and those acting in the course of their employment)?
in White v Chief Constable of Yorkshire, police officers were involved in rescue activities at Hillsborough but weren’t actually in the area of danger > could they claim for psychiatric harm?
White = should be treated in the same way as any other victim who suffers only pure psychiatric harm. Therefore:
* If a rescuer has been in the actual area of danger, they are a primary victim. A duty of care is owed to a primary victim, provided there is a foreseeable risk of physical injury (even though the injury he in fact suffers is pure psychiatric harm).
- If a rescuer has not been in the actual area of danger so that they have not been exposed to any risk of physical injury, they will be classed as a secondary victim. They will be owed a duty of care only if they meet all of the tests laid down in Alcock.
what is an employer’s common law duty?
- Wilsons & Clyde Coal Co Ltd v English > common law duty comprises of three separate duties to take reasonable steps tor provide:
1. competent staff
2. adequate material
3. a safe system of work
4. (added by Latimer v AEC) a safe place of work - a proper system of work and supervision.
- Latimer v AEC added a 4th duty to the list being duty to take reasonable steps to provide:
- a safe place of work
can employer say it escapes liability for negligence because it delegated its performance to someone else whom it reasonably believes is competent to perform it? e.g. an independent contractor
it is a non-delegable duty
so if a contractor negligently services a machine and the machine explodes injuring an employee, the employee’s course of action is against the employer
(but the employer might then make a claim against the contractor)
explain an employers duty to provide competent staff
- competent staff
- Hudson v Ridge Manufacturing Co Ltd > claimant injured at work when fellow workman played prank on him > company new about the workman’s repeated pranking and had warned him someone would get hurt > employer liable > noted if the employer wasnt aware = not liable
- The duty to provide competent staff will not therefore arise merely from the fact that a worker is incompetent. Rather, it arises where an employer knows, or ought to know, about the risk a particular worker is posing to fellow workers
- the risk to the employee could be psychological as well as physical > Waters v Commissioner of Police for the Metropolis
explain an employers duty to provide adequate materials
- adequate material (ie plant, equipment and machinery)
- interpreted widely by the courts
- relevant where the employer doesn’t provide an adequate material and should’ve done
- and where the employer does provide materials but they are not adequate
- employee can sue employer for defective equipment > Employer’s Liability (Defective Equipment) Act 1969
- The injured employee needs to establish two things:
* fault on the part of the third party (most commonly the manufacturer of the equipment, but
a supplier would also come within the statutory provision);
* causation (ie that the fault of the third party caused the employee’s injury).
explain an employers duty to provide a safe system of work
- widest so invoked most frequently
- includes the physical lay out, training, warnings, notices, safety equipment and the issue of special instructions, and where the employee suffers from stress
- It is not enough for an employer simply to devise a safe system; this duty also requires an employer to take reasonable steps to ensure that it is complied with. The steps which a reasonable employer would take to ensure the safe system is being implemented include:
- providing adequate training to employees in the operation of the new system;
- ensuring the employees are supervised, at least at the outset;
- monitoring the operation of the system to ensure it is being fully complied with; and
- taking disciplinary action against any employee who fails to comply with the system
- the duty requires the employer to continuously assess the risks inherent in its particular working environment
explain an employer’s duty to provide a safe workplace
- fourth duty added by Latimer v AEC
- overlap with OLA 1957, however, the common law duty is more onerous than that imposed by OLA 1957:
i) common law duty is non-delegable
ii) General Cleaning Contractors v Christmas > confirmed that the common law duty to provide a safe system of work applies regardless of where the employees are at work - This means an employer has to assess premises to which his employees are sent for dangers and then, if such dangers are found, devise and implement a system of work so as to eradicate or minimise those
dangers.
explain an employer’s duty for stress at work
- Walker v Northumberland County Council first established employer’s duties towards employees who have suffered stress at work
- Hatton v Sutherland laid down guidelines that were approved by Barber v Somerset County Council
- Hatton guidelines > whether injury to health through stress at work was reasonably foreseeable (known as the threshold question)
- in considering the threshold question, the court should consider:
1. the nature and extent of the work done by the employee (eg was the workload obviously too demanding in terms of type or amount; was there a high degree of absenteeism or sickness in the relevant department, etc); and
2. signs from the employee themselves. The Court stated that an employer is generally entitled to assume an employee was up to the normal pressures of the job and was entitled to take what an employee told it at face value.
note - if the employee’s stress is coming from external sources e.g. going through a divorce = outside work so outside the ambit of the common law duty
explain how an employer breaches their common law duties to their employees
- Each of the duties owed by an employer requires the employer to take such steps as are reasonable
- same as the other areas of negligence > the court will look at all the circumstances of the case, including the magnitude of the foreseeable risk and also the
cost and practicality of precautions - the duty is owed to each individual employee > Paris v Stepney Borough Council (claimant had one eye, D shouldve done more to protect the good eye)
- health and safety at work = HSWA 1974 > breach is criminal offence but breach of these cannot be brought in civil claim
- HSWA = acts as guidance > precautions which are required by statutory health and safety regulations are likely to be regarded as a guide to the standard which a reasonable employer ought to meet
The defence of consent (voluntary assumption of risk / volenti non fit injuria) operates as a ____________ defence for the defendant.
complete defence
preventing the claimant recovering at all for the defendant’s breach of duty
which two things must a D establish for a defence of consent to succeed?
explain each
- that the claimant had full knowledge of the nature and extent of the risk; and
- must’ve had full knowledge of the nature and extent of the risk
- simply knowing the risk exists = not sufficient - that the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence
- D must prove C freely consented to run the risk of injury
- knowledge is not consent
> Dann v Hamilton:
- the claimant, knowing that the driver of a motor car
was under the influence of drink nevertheless chose to travel by the car and was injured
- while the claimant knew that the driver had been drinking so that there was a risk that he might drive carelessly, it could not be said that knowledge of the
risk was sufficient to imply consent to the risk
> Morris v Murray :
- The claimant must have realised how drunk the pilot was and thereby implicitly waived his right to damages
NOTE the consent must be given freely and voluntarily and not as a result of fear or duress
which statutory provision deals with the defence of consent in the case of motor vehicles and what is its effect?
Section 149 of the Road Traffic Act 1988 applies to any motor vehicle where insurance for passengers is compulsory. Its effect is that any acceptance of risk by the passenger is invalid. The defence of consent cannot be relied upon against a claimant who was a
passenger in their vehicle.
generally, does the defence of consent succeed in claims by employees against their employers?
- the defence of consent very rarely succeeds in these circumstances
- an employee acts under a duty and therefore has no real freedom of choice when carrying out a dangerous task requested by the employer
- if they do not carry out the task, they risk losing their job
- Smith v Baker > just because the claimant had continued to work, knowing the risks involved, it did not mean he had consented in law to the risk
generally, does the defence of consent succeed in claims by rescuers?
- a rescuer usually doesn’t act voluntarily they often act under moral compulsion
- rescuers will not be said to have consented to the risk of injury if:
- they were acting to rescue persons or property endangered by the defendant’s negligence; and
- they were acting under a compelling legal, social or moral duty; and
- their conduct in all the circumstances was reasonable and a natural and probable consequence of the defendant’s negligence.
- Haynes v Harwood
Note - Haynes demonstrates that the rules on rescuers apply equally to professional rescuers and to lay rescuers
A defendant who is unable to escape liability by relying on any of the complete defences may, nevertheless, be able to raise the partial defence of contributory negligence.
contributory negligence comprises of two elements, what are they?
- carelessness on the claimant’s part; and
- that carelessness has contributed to the claimant’s damage.
what is the effect of a finding for contributory negligence?
- partial defence
- Law Reform (Contributory Negligence) Act 1945
- the claimant’s damages are reduced to such extent
as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage - when making this assessment the court will take into account:
- culpability, ie the relative blameworthiness of the parties;
- causation, ie the extent to which the claimant’s carelessness has caused or contributed to the loss suffered.
- the relevant issue is not who caused the accident, but who caused the damage
in the case of Froom v Butcher, the CoA handed down a scale of reductions to be made when a claimant fails to wear a seatbelt, what are the reductions?
note this scale is also applicable to a claimant’s failure to wear a crash helmet
what is the court’s position on contributory negligence for drunk drivers?
- passengers who accept lifts from a driver whom they know to be drunk, can expect to have their damages reduced if they are injured in an accident caused by the driver’s intoxicated state.
- this applies even where the claimant was too drunk to appreciate the drivers intoxication but knew that by going out drinking together, they would later be driven home by the driver when the driver would be drunk > Owens v Brimmell
explain the court position regarding children and contributory negligence
- Gough v Thorne > ‘(a) judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety.’
- The child must also be ‘blameworthy’
- the test = whether an ordinary child of the claimant’s age would have taken more care for his safety than the claimant did
- if v young child = unlikely to find CN
- in some situations an injury to a child may be due partly to the defendant’s negligence but also partly to the negligence of the child’s parents = the child’s damages cannot be reduced to account for the negligence of the parents (D could seek contribution from the parents under the Civil Liability (Contribution) Act)
explain the position regarding contributory negligence of a rescuer
from Baker v TE Hopkins & Son Ltd :
- For the purposes of contributory negligence, a rescuer will be judged against the standard of the reasonable rescuer. Allowance will be made for the emergency situation in which many rescuers will find themselves.
- Only if a rescuer has shown a ‘wholly unreasonable disregard for his or her own safety’ is there likely to be a finding of contributory negligence. Such cases are likely to be rare in practice as the courts will always be reluctant to accept criticism of a rescuer’s conduct.
explain the position regarding contributory negligence of employers
In Caswell v Powell Duffryn Associated Collieries Ltd Lord Atkin said:
I am of opinion that the care to be expected of the plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain, and manifold risks of factory or mine.
courts will be less likely to make a finding of CN against a worker workman in a mine who is consistently exposed to danger so may take less care, than an office worker
The defendant’s negligence may sometimes put the claimant in a situation of imminent danger, compelling the claimant to take some action to try to save themselves.
Would a D be successful in arguing contributory
negligence against a claimant who is injured while trying to save themselves?
> Jones v Boyce:
- D negligently drove a coach which caused the C to jump out and break his leg
- The court held that the method used by the claimant to try to save himself ‘in the agony of the moment’ was found to be a reasonable one, given the perilous situation in which he was placed
- no finding of CN even though, with hindsight, he would have been safer had he opted for the alternative course of action
> Sayers v Harlow UDC = example of where the claimant did not act reasonably
The fact that the claimant was involved in an illegal enterprise at the time they were injured may sometimes provide the defendant with a defence. The maxim ‘ex turpi causa non oritur actio’ translates as ‘no action arises from a disgraceful cause’. (commonly referred to as the defence of illegality)
does this act as a complete defence for the D?
how does it work?
- operates as a complete defence for the defendant,
preventing the claimant recovering at all for the defendant’s breach of duty - Pitts v Hunt > The claimant’s case failed as the action by the claimant arose directly ex turpi causa, in that the reckless driving, which was the cause of the claimant’s injuries, was an inherent part of their joint criminal enterprise.
- For the defence of illegality to succeed there must be a very close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to
allow the claimant a remedy.
what is the aim of damages in tort?
The aim of damages in tort is to put the claimant in the same position they would have been in if the tort had not been committed.
This means that the claimant should be no worse off because of the occurrence – but also no better off - note the claimant’s duty to mitigate their losses
what is the difference between general damages and special damages?
- Special damages – those losses which are capable of being calculated precisely at the time of the trial and which are stated in the form of a calculation. This covers financial losses incurred before trial, such as loss of earnings.
- General damages – those losses which are not capable of being calculated precisely and are therefore left to the court to determine. They must still be stated but no definitive figure can be placed on them. This includes pain, suffering and loss of amenity and all
losses incurred after the trial.
in awarding damages for personal injury, the court considers two sub-categories. what are they?
pecuniary losses - calculated pre trial in monetary terms
non-pecuniary losses e.g. losses in the claimant’s personal injury
- loss of amenity
- pain and suffering
explain damages for pain and suffering
- covers past, present and future pain, physical and
mental anguish, the fear of future surgery, etc - covers claimant’s anguish of knowing that their life expectancy had been shortened because of the accident
- If a claimant was unconscious they would not recover damages for pain and suffering for that period because they would not be aware of it and would fail the subjective test (however, they would still be able to claim for loss of amenity)
explain damages for loss of amenity
- aims to compensate the claimant for the loss of the enjoyment of life, and it therefore covers a wide area of loss, eg loss of freedom of movement, loss of sight, loss
of smell, loss of marriage prospects, inability to pursue hobbies, etc - therefore follows that if a C was very active prior to the injury they will receive more than someone who wasnt
- this is an objective test > can claim for these damages regardless of whether they were conscious
how does the court assess non-pecuniary losses?
looks at the facts in each individual case
non-pecuniary damages e.g. damages for pain and suffering and loss of amenity are general damages.
why?
because they are not capable of being calculated precisely
looking at pecuniary losses…
The claimant is able to recover any medical expenses that have been incurred. If the expenses are incurred pre- trial they will be __________ damages
if they are to be incurred post-trial they will be ___________
special damages - already incurred
general damages - yet to be incurred
when might the C not be able to recover any damages for medical expenses?
when the claimant has received the medical treatment from the NHS
(In some circumstances, the defendant may be required to make a payment towards the costs of NHS medical treatment. However, this does not form part of
the claimant’s damages.)
note - a claimant who is treated by the NHS free of charge cannot recover what it would have cost them to have private treatment
is a claimant compensated in the same way for private medical treatment?
- a claimant can choose to pay for private medical treatment
- this will not be seen as a failure to mitigate losses
- note a claimant who is treated by the NHS free of charge cannot recover what it would have cost them to have private treatment
how does the court calculate damages for loss of earnings pre-trial?
- special damages
- It is necessary to ascertain net earnings, ie after deduction of tax, national insurance contributions, and pension contributions, because claimants should receive as compensation the same sum of money
they would have taken home with them if they had been able to work - if the claimant regularly earned overtime or bonuses, these should be included in the calculation
- any perks of the job which the claimant received, eg a company car, reduced rate mortgage, share options, should be included in the calculation.
how does the court calculate damages for loss of earnings post-trial?
- general damages
- various formulas:
- multiplicand
- if the claimant would have had an increase in earnings due to, for example, promotion, and that increase was very likely to happen, the court can take that into account in assessing the amount of the claimant’s loss
- the salary cannot be increased due to inflation (this is because the C can invest the salary in such a way to counter-act inflation)
- gross salary minus tax, national insurance, and pension contributions = net annual loss (known as the multiplicand) - multiplier
- court then needs to calculate how long the C will lose this money (the period of future loss)
- if not expected to work again = this period will be based on the claimant’s pre- accident working life expectancy, ie the length of time he would have to work until normal retirement age (this is the multiplier)
in what circumstances would a D be over-compensated for loss of future earnings?
if they received their full loss of future earnings at the date of the trial
this is because they would be able to invest that whole lump sum and allow it to earn interest
in what circumstances would a D be under-compensated for loss of future earnings?
if the interest they receive on their damages does not protect them against the effects of inflation
the rate of interest that a claimant is expected to receive when investing their damages (known as the ‘discount rate’) is, therefore, a crucial consideration
The Lord Chancellor exercises powers under the Damages Act 1996 to set the discount rate. The current discount rate is minus 0.25%.
- the justification of this is that claimants are treated as risk averse investors
- use the ogden tables - find the appropriate multiplier based on the claimant’s age and discount ratew
how does a court calculate loss of earnings where the injury has been so severe as to reduce the claimant’s life expectancy?
- Pickett v British Rail Engineering = claimants whose
life expectancy had been shortened by the incident could recover loss of future earnings for lost years - when the loss of earnings figure is calculated for the period after the claimant is expected to die, it is necessary to deduct the amount which the claimant would have spent on themselves from the multiplicand
- that deduction from the multiplicand is generally set at 25% for a person married with dependent children, and at 33% for those with no dependants
how does a court calculate loss of earnings where the injury has been so severe as to reduce the child claimant’s life expectancy?
- there is nothing that prevents the court from awarding a child damages for future loss of earnings but this will be difficult to calculate
- different approaches the court might take:
i) consider what the child’s parents earn and assume the child would reach a similar level
ii) take the national average earnings and base the child’s earnings on those figures
A solicitor is acting for a client who has been seriously injured. The client is about to be released from hospital to go home. The kind of help and services they might need includes:
* help with housework/ shopping/ gardening/ laundry etc;
* nursing care.
can a claimant recover these costs?
- can recover the costs of these services but has to be
able to show that the need for the services follows from the injury caused by the defendant’s negligence - these services may be provided by a carer or by a relative who gives up work = costs can be recovered in both situations however, the identity of the carer may affect the amount recoverable
- paid for professional nursing care > must show the costs were reasonable and in line with the usual market rate for such services
- where the C’s spouse or other relative > starting point is the loss of earnings suffered by the carer
- However, the costs cannot exceed the commercial rate for providing the services
A claimant faces the risk that if they lose their job in the near future, they will be disadvantaged on the job market because of their disability (caused by D’s negligence) they may find it very difficult to get employment.
Alternatively, they may be able to get some employment but find that it is less well paid.
how does the court compensate a claimant in these cases?
- judge can award to compensate the C for these losses
- very speculative
- the judge must be satisfied that there is a real risk of the claimant losing their job (known as the Smith v Manchester Corporation award)
- not relevant where the C has already been forced to move to a lower paid job > the C would simply make a claim for their loss of future earnings
if the damage includes damage to a C’s property, can the C recover pecuniary damages for things like clothing, jewellery, watches, spectacles, bags, shoes, etc?
- yes
- any reasonable loss incurred by the claimant as a result of the accident can be recovered
there is an exception to the general rule that a C should not be over-compensated - there are some payments which a claimant is allowed to keep in full, even though they are an extra benefit which the claimant has received only because of the accident.
what are they?
- insurance payments;
- ill- health pensions;
- charitable payments. (This would include ex gratia payments made by the claimant’s employer, provided the employer is not the tortfeasor.)
If the claimant receives State benefits as a result of an accident, some account must be taken of the receipt of these benefits.
On the one hand, if no account were taken and damages not reduced, the claimant would be over- compensated.
On the other hand, if State benefits reduced the damages which the defendant had to pay, the State would be bearing the costs of the defendant’s negligence.
what is the solution?
C still claims state benefits
the amount of these state benefits are deducted from the claimant’s damages
then the defendant is required to pay that amount back to the State
This is provided for by the Social Security
(Recovery of Benefits) Act 1997
note - no benefits are deductible from the claim for pain and suffering and loss of amenity
Mandeep has a 10% chance of loss of sight in one eye. On the basis that loss of sight in one eye would be worth £30,000, if the court awarded her 10% of this, Mandeep would receive £3,000. However, if Mandeep does lose the sight in her eye, she will be undercompensated by £27,000. If Mandeep does not lose sight in her eye, she will have been over- compensated by £3,000.
how would the court deal with an award of damages here?
- Section 32A of the Senior Courts Act 1981 allows for an award of provisional damages.
So, in this situation, because there is a chance of serious deterioration, a provisional damages award would be appropriate. At the trial, the court will assess damages on the basis that Mandeep will not lose the sight in her eye. The judgment will specifically provide that, in the event that Mandeep does lose the sight in her eye in the future, she will be entitled to further damages.
is it true that damages can never be awarded for personal injury in periodic payments?
no - in some circumstances, s 2 Damages Act 1996, allows the court to award damages for personal injury as periodic payments rather than as a lump sum
watch out for an SBAQ saying they can ‘never’ be awarded periodically
what happens if if a claimant dies before they have received an award of compensation?
- The Law Reform (Miscellaneous Provisions) Act 1934
- The 1934 Act does not create any new cause of action. It simply allows existing causes of action to continue after death
- all causes of action (except claims for defamation and bereavement damages survive the death of either the claimant or the defendant
- A claim by a claimant survives for the benefit of their estate.
- A claim against a defendant survives against their estate
- the receipt of insurance money payable on death, or a lump sum payment from a pension nor any funds the estate had to pay out on death = do not reduce the damages claimed by the estate (with the exception of that reasonable funeral expenses can be claimed, provided they have been paid for by the estate)
what can a deceased claimant claim damages for?
Non- pecuniary losses
* Pain and suffering and loss of amenity. Naturally, these end at the date of death.
Pecuniary losses
* Damage to property, eg clothes or a car damaged in an accident.
* Medical and other expenses. Naturally, these will end at the date of death.
* Loss of income up to the date of death.
- Where the claimant’s death has been caused by the defendant’s tort, the claim for loss of income under the 1934 Act must end at the date of death.
- If the deceased claimant leaves dependent relatives, they would be compensated by a claim under the Fatal Accidents Act 1976
how does the the Law Reform (Miscellaneous Provisions) Act 1934 affect court proceedings against a defendant, where the claimant has died?
- where the claimant dies before any proceedings have been brought against the D, PRs will be entitled to bring a claim on the deceased’s behalf
- if the claimant dies during proceedings, the PR can continue the proceedings on the deceased’s behalf
what is the effect of the Fatal Accidents Act 1976?
- created a new cause of action as it allows dependants to sue for the death of the person on whom they were dependent
- in order to bring a claim under the 1976 Act claimants have to be able to show that, had the deceased survived, the deceased would have been able to bring a claim against the defendant themselves
- any defence that would’ve the original claim, will defeat this claim
- in the case of CN if the deceased’s own damages would have been reduced, damages under the 1976 Act will also be reduced
what are the three claims that can be made under the Fatal Accidents Act 1976?
- A claim on behalf of dependants for loss of dependency.
- A claim for damages for bereavement – limited to certain persons only.
- A claim for funeral expenses – if paid by the dependants.
In order to claim damages for loss of dependency, a person must satisfy two requirements. What are they?
- they must fall within the class of dependants as listed in the 1976 Act (it includes current and former married spouses/ civil partners, cohabitees who have lived together for at least two years, parents, children, siblings; the list is definitive, so that if a person does
not fall within it, they cannot make a claim); and - they must have been actually financially dependent on the deceased (they must show that they had a reasonable expectation of pecuniary benefit from the deceased).
- note ‘pecuniary benefit’ does not simply mean provision of money
- dependants can claim for the cost of replacing services which were provided by the deceased e.g. child care, DIY, gardening and housework
- remember this is for future losses (as C is deceased)
in making a claim under the Fatal Accidents Act 1976, a dependent of the deceased can claim damages for loss of dependency.
how is this calculated?
MULTIPLICAND
- deceased’s net annual earnings minus what they would’ve spent on themselves
- the conventional deduction = 25% for a married person with children and 33% for a married
person without children
- note where the deceased’s children were no longer dependent on them at the time of death = conventional deduction is 33%
note the deceased may have contributed to the family’s wealth in other ways than the salary e.g. perks of the job or child care which will now need to be paid for - these contributions need to be taken into account
MULTIPLIER
- should be based on the period of loss to the dependant, ie on the period for which the dependency might have continued
- the longest possible period of dependency would be when the deceased wouldve stopped working
- if child = the period of dependency would be expected to cease when the child reached the age of 18 or ceased full- time education
- again, take the period of dependency and turn it into a multiplier via the ogden tables
when making a claim under the Fatal Accidents Act 1976, which two factors are not taken into account when calculating the value of a claimant’s lost dependency?
- damages for a dependant spouse do not take into account their remarriage or prospects of remarriage;
- the fact that dependants are likely to inherit money from the deceased (under a will or on intestacy) is not to be taken into account.
who are the only people who can claim damages for bereavement?
- the wife, husband or civil partner of the deceased;
- the parents (or mother if illegitimate) of a minor who was never married or a civil partner;
- the cohabiting partner of the deceased, who:
(a) was living with the deceased in the same household immediately before the date of the death; and
(b) had been living with the deceased in the same household for at least two years before that date; and
(c) was living during the whole of that period as the wife or husband or civil partner of the deceased.
note - children not on the list
what is the amount for damages for bereavement?
- £15,120
- fixed sum
- only one award can be made per death so where
both parents are entitled to claim, the award is split between them
can a dependent make a claim for funeral expenses?
- yes can make a claim where the funeral expenses have been paid by a dependent
- via the Fatal Accidents Act 1976 (in addition to other claims via the act e.g claim for damages for bereavement)
