Tort - ALL Flashcards
What are the 4 categories of intentional torts?
- Trespass to land* Trespass to the person* Trespass to goods* Conversion
What is trespass to land?
An: * unlawful * direct interference with * the claimant’s possession of * land.It is actionable per se (i.e. claimant does not need to show any actual damage or injury to the land). The fact that the claimant’s right has been infringed is sufficient.Defences are: lawful entry and necessityRemedies are: damages, injunction, action for recovery of land/order of possession, self-help
What is the possession requirement under the intentional tort of trespass to land?
- To bring an action for trespass to land, the claimant must have exclusive possession of the land.* Note, they do not need to have actual physical possession e.g. they may be away on holiday when the trespass occurs but can still sue provided they have exclusive possession.
What consitutes ‘land’ under the intentional tort of trespass to land?
Trespass protects land and buildings erected on the land. It includes:* the surface of the land and the subsoil. * airspace above the land up to a height necessary for the ordinary use of the land and the buildings on it. Examples of trespass:* Digging a tunnel from your own land underneath your neighbour’s land.* Swinging a crane or flying a drone through your neighbour’s airspace* Placing an ad which overhangs on your neighbour’s property
What is a ‘direct interference’ under the intentional tort of trespass to land?
The interference must be direct. A person directly interferes with land by e.g:* wrongfully setting foot on it, * riding or driving over it, * taking possession of it, * placing or fixing anything on it throwing anything on it* allowing their animals to stray onto property of another.Indirect interference does not amount to trespass. Example: * if the defendant plants a tree on their own land but the roots or branches grow so as to extend under or over the claimant’s land* allowing smoke from a fire to drift repeatedly to a neighbour’s garden* interference by noise, vibrations or bad smellsNote: indirect interferences may give rise to a claim in the tort of nuisance or negligence
Relying on boundary markers fixed by a reputable surveyor, a gardener clears land for a garden that she believes to be hers. In fact, the survey was in error and the gardener cleared a portion of her neighbour’s land. Is the gardener liable for trespass to land?
Yes, it is irrelevant that the gardener mistakenly believed they owned the land.
What is the intention required to commit the tort of trespass to land?
- Trespass to land is usually committed by an intentional act of interference. * The defendant only needs to intend the act of entering the land. * The defendant need not intend to commit the tort of trespass and need not know that the land belongs to another.* It is no defence to mistakenly think that one owns the land or had authority to be there.* A claimant who enters land involuntarily does not commit trespass. Example: a driver who accidentally veered off the road and onto the claimant’s land would not commit the tort of trespass. (Note, they may be liable in the tort of negligence) or a person pushed through a hedge
Can trespass to land be committed by negligence?
- Yes, trespass is usually intentional but case law recognises the possibility of trespass by negligent interference, e.g. when the defendant knows that their animals are likely to enter the claimant’s land but carelessly fails to prevent them from doing so. * A claimant in this situation might prefer to bring the claim in trespass rather than in the tort of negligence, so as to obtain the remedy of an injunction (which is not available in a negligence claim).
What are the 2 defences to the intentional tort of trespass to land?
Lawful Entry* A defendant whose presence on the land is lawful does not commit trespass e.g a defendant who enters land without the permission of the claimant but pursuant to a statutory authority.Necessity* It is a defence to trespass to land for the defendant to show that it was necessary to enter onto the land to preserve life or property, e.g. the defendant entered to stop a fire from spreading or to avoid a speeding vehicle.
What are the 4 remedies available to the intentional tort of trespass to land?
Damages (most common)* Any trespass to land allows the claimant to recover at least nominal damages (it is actionable per se) e.g. if the action was simply to establish their title to the land* If actual loss has been suffered, damages may be awarded to reflect this.Injunction* This would prohibit the defendant from continuing to trespass on the claimant’s land.Action for Recovery of Land - Order for Possession* This would be a remedy for a claimant who is entitled to possession of land has been dispossessed by the defendantSelf-Help* In theory a person who is entitled to possession of land may use reasonable force to remove a trespasser. However, this right is subject to statutory controls. It is an offence for a person, other than a displaced residential occupier, to threaten or use violence to secure entry to premises which are occupied by another.
Which 3 torts are encompassed by the tort of trespass to the person?
- Battery* Assault* False imprisonmentEach tort is actionable per se because their purpose is to protect against interference with the claimant’s bodily integrity. The fact that the claimant’s right to bodily integrity has been infringed is sufficient.They all require intention and a direct interference with the person
What is the tort of battery?
Battery is:* the intentional * direct application of* unlawful force * to the claimant’s person.Defences include consent, necessity, self-defence, lawful arrest and lawful authorityThe remedy is damages
What constitutes unlawful force for the tort of battery?
- Force includes any unwanted physical contact that is not consented to e.g. kissing or touching a person without their consent/a hairdresser dying hair when only a perm was requested* Even contact which is directed at helping the claimant can be a battery if they have not consented, such as unwanted medical treatment e.g. a person having surgery for an injurt and having a mole also removed as a precautionary measureException: Conduct which is generally acceptable in the ordinary conduct of everyday life does not amount to abattery e.g. minor bumping on a crowded bus.
What constitutes direct contact for the tort of battery?
The application of force must be direct e.g. striking or taking hold of the claimant, or throwing something which strikes the claimant. It would also include contact with the claimant’s clothing, such as deliberately throwing paint which splashes the claimant’s jacket.
What is the required intention for the tort of battery?
- The act of applying force must be intentional; an involuntary action does not amount to a battery e.g. a man deliberately pushes his friend into contact with a police officer. The man has committed battery, but his friend has not.* The defendant only needs to intend the application of force, and does not need to intend to harm the victim. The defendant will nevertheless be liable for all direct consequences of the application of force e.g. a security guard takes hold of a woman, causing bruising to her arm. The security guard can be liable for battery because he intended the contact, even though he did not intend the bruising.* An intention to apply force to one person may be ‘transferred’ to a different person e.g. The defendant throws a missile intending it to hit person A, but it in fact strikes person B. The defendant has committed a battery against B.
What is the tort of assault?
An assault is: * an intentional act * which causes the claimant reasonably to apprehend * the immediate and direct infliction of * unlawful force on their person (i.e. apprehension of a battery).Defences include consent, necessity, self-defence, lawful arrest and lawful authorityThe remedy is damages
What is the required intention to commit the tort of assault?
The defendant must have intended the claimant to apprehend the use of force.
What constitutes ‘apprehension of force’ in the context of the tort of assault?
- The claimant must be aware of the threat of force.* No assault is committed if the claimant is unaware of the threat e.g. if the defendant shakes their fist at the victim from behind/the defendant approaches the claimant from behind and strikes them, there is no assault (but there is a battery).* ‘Apprehension’ of force does not require the claimant to be afraid e.g. a demonstrator runs towards a security guard with fists raised to strike him. The guard is capable of defending himself and is not afraid, but the demonstrator has still committed assault.
What does it mean that the apprehension of force must be reasonable for the tort of assault?
- The claimant’s apprehension of immediate force must be reasonable. * If the claimant is aware that the defendant is not capable of carrying out the threat of force, there is no assault e.g. claimant is on a bus and unarmed demonstrators are shouting threats at them from outside the bus.
Can words amount to the tort of assault?
- Yes, the use of words alone can amount to an assault provided they amount to an immediate threat of force e.g. “I’m going to punch you in the jaw” and looking like you are about to/threats on the telephone provided the claimant has reason to believe that they may be carried out in the sufficiently near future to qualify as ‘immediate’.* Words can also negate the threatening nature of a gesture which would otherwise be an assault e.g. the defendant shakes a clenched fist at the claimant, saying “If I weren’t such a good guy, l’d hit you”, there is no assault because the words have removed the threat of immediate force.
What is the tort of false imprisonment?
False imprisonment is:* the unlawful * constraint of the claimant’s freedom of movement from a particular place.Defences include consent, necessity, self-defence, lawful arrest and lawful authorityThe remedy is damagesThe most common example is wrongful arrest by a security guard or the police
What is the intention required to commit the tort of false imprisonment?
- The defendant’s actions in constraining the claimant’s freedom of movement must be intentional. * The defendant does not need to intend that the constraint is unlawful. * It is not a defence that the defendant mistakenly believed that they had the right to detain the claimant.
What constitutes a ‘constraint on the freedom of movement’ for the tort of false imprisonment?
- “Imprisonment’ refers to actions which deprive the claimant of freedom of movement. * There must be a complete constraint on the claimant’s freedom of movement in every direction. * If the claimant is able to move in one direction or the claimant is given a reasonable means of escape, there is no false imprisonment e.g. being prevented from leaving a park by the exit intended, but being free to leave by an alternative exit/not being able to cross a footbridge but being able to walk to another bridge further down the bank.* It is not necessary that the claimant know of the constraint, because the purpose of the tort is to protect the claimant’s freedom of movement
A person is locked in a room and their only route of escape is by climbing through a first floor window. Is the person falsely imprisoned?
Yes, the means of escape is not reasonable as it puts the person at risk of injury.
What are the defences to torts of trespass to the person?
- Consent* Necessity* Self-defence* Lawful arrest and lawful authority
What is the defence of consent to the torts of trespass to the person?
If the claimant consented to the contact, there is a defence.* Medical treatment: An adult claimant who is of sound mind and full understanding is entitled to withhold consent to medical treatment, even when it is necessary to save the claimant’s life (without consent, medical treatment will be battery)* Implied consent: The physical contact that takes place during sport would be a battery were it not for the fact that participants are taken to impliedly consent to contacts which occur when the sport is played within the rules of the game. Players are not taken to consent to contact which is not within the rules of the game. (Also, when harm is caused by playing carelessly, it may be possible to bring a claim in the tort of negligence). * Limits: The claimant’s consent must not be induced by fraud, misrepresentation or duress. Also, policy-based limits to consent likely would prevent a claimant from giving valid consent to the infliction of serious physical injury.
What negates the defence of consent to trespass to the person?
- Fraud, misrepresentation or duress* Policy-based limits (e.g. infliction of serious injury cannot be consented to)* Playing sport outside the rules negates implied consent
What is the defence of necessity to the torts of trespass to the person?
This defence may apply when the defendant acts reasonably to prevent harm e.g. if an adult lacks capacity to consent to treatment, statutes set out the conditions under which treatment is authorised and so provide a defence to what would otherwise be a battery.
What is the defence of self-defence to the torts of trespass to the person?
- It is a defence if the defendant proves that they acted in self defence e.g. in response to an attack by the claimant. * The defence also applies when the defendant believes they are about to be attacked, provided that the belief is both honest and reasonable.* The force used by the defendant in self-defence must be reasonable and proportionate to the force used against them e.g. it will not apply if a defendant causes serious injury in response to a slight blow/responds with a knife to a push.* It also applies when the defendant acts in defence of others or in defence of their property. However, the degree of force which is reasonable is likely to be lower in the case of defence of property than in defence of the person.
What is the defence of lawful arrest and lawful authority to the torts of trespass to the person?
- A person effecting a lawful arrest will have a defence to trespass to the person e.g. taking hold of a person to detain them will not amount to battery and false imprisonment if this was done in the course of a lawful arrest.* There is a defence to false imprisonment if a person is imprisoned pursuant to a statutory power, such as the statutory power authorising the imprisonment of persons who have been sentenced to imprisonment or committed to prison pending trial.
What remedy is available for the tort of trespass to the person?
- Trespass to the person is actionable per se, so if the claimant has not suffered any actual damage, the claimant may still recover an award of nominal damages. * If the claimant has suffered actual damage (e.g. physical injury), an award of compensatory damages may be made to reflect this. * Even if there is no physical injury, damages could be awarded for the indignity or inconvenience caused by the trespass.
What is the tort of trespass to goods?
Trespass to goods is:* an intentional and* direct interference with * the claimant’s possession of goods.Damage is not required as the tort is actionable per se.Remedy: damages
What constitutes an ‘interference’ for the tort of trespass to goods?
Trespass may be committed by:* taking the goods* damaging the goods* interfering with them (e.g. by moving them)* touching goods, provided it goes beyond what is acceptable in everyday life. Examples: hiding someone’s car keys, deliberately scratching a car, or unlawfully applying a wheel clamp to a car to prevent it being moved.
What is the intention required to commit the tort of trespass to goods?
- The defendant must intend to do the act of interference.* The defendant does not need to intend to commit the tort of trespass. * The defendant’s mistaken belief that they own the goods is no defence.
What remedy is available for the tort of trespass to goods?
- The tort is actionable per se, so if the claimant has not suffered any loss, there may be an award of nominal damages. * If the claimant has suffered actual damage (e.g. damage to the goods or interference with use of the goods), an award of compensatory damages may be made to reflect this. * If the claimant has been deprived of the goods, the damages should reflect their fair market value.
What is the tort of conversion?
A person commits the tort of conversion when: * they deal with goods * in a way which is seriously inconsistent * with the rights of the owner.Remedies include an order for delivery of the goods and damagesNote, this tort is more serious than the tort of trespass to goods. In essence, it involves the defendant acting in a way to deprive the owner from use and possession of goods e.g. throwing keys in a pond (as opposed to hiding them)
What is the intention required for the tort of conversion?
- The defendant must intend to do the act of interference with the goods. * They do not need to intend to infringe the claimant’s rights. * It is no defence that the defendant was mistaken as to the ownership of the goods e.g. X steals A’s car and sells the car to B who purchases in good faith. B is liable for conversion. B’s dealing with the car is deliberate. B’s good faith resulting from a lack of awareness of A’s title to the chattel is irrelevant.
What 6 actions constitute conversion of goods?
The defendant commits conversion when their actions are inconsistent with the rights of the owner to such an extent as to exclude the owner from use and possession of the goods. Acts of conversion include:* wrongful acquisition (theft)* wrongful transfer* wrongful detention* substantially changing* severely damaging (e.g. beating property with a bat)* misusing a chattelLiability in conversion does not extend to minor interferences (such as scratches to the panel of another’s car). In such cases, the appropriate cause of action is the tort of trespass to goods, not conversion.
What is the relationship between conversion and trespass?
Trespass to goods involves interference with possession and that conversion involves dealing with goods in a way which is inconsistent with the rights of the owner. Both torts may sometimes exist concurrently.Example: * defendant takes away and steals a book belonging to the claimant. This is both trespass and conversion. * defendant picks up a book belonging to the claimant and throws it across the room. This is a trespass, because there is an interference with possession. However, it is not conversion because the defendant has not asserted rights over the book inconsistent with those of the owner.
What remedies are available for the tort of conversion?
If the defendant still has possession of the claimant’s goods:* An order for delivery of the goods and* Damages - the fair market value of the goodsIf the defendant no longer has possession of the goods, only an award of damages will be available.
Does the defence of contributory negligence apply to intentional torts?
No
Negligence Flowchart
Did D owe claimant a duty of care?* Is this a situation or relationship for which an established duty of care exists? Examples: Doctor › Patient; Employer › Employee; Product Manufacturer › Consumer* If no, Is this a situation where a novel duty can be established based on Foreseeable; Proximity; Fair, just and reasonable.* If not - no duty.Did D breach the duty of care owed?* Did D’s conduct fall below the standard of care of a reasonable person in D’s position based on Magnitude of risk (likeliness of harm and seriousness of potential harm) and Practicability of precautions (include consideration of social utility of conduct)* Also consider whether claimant can establish res ipsa loquitur* If not - no breachDid D’s breach of duty cause damage to claimant? Requirements:* Causation in fact: show that but for D’s breach of duty, the loss would not have happened* No new intervening facts: there must be no new acts which intervene between the defendant’s breach of duty and the claimant’s loss (Intervening act of third party - does not break chain of causation if a foreseeable consquence of D’s negligence/Intervening act of claimant - breaks the chain of causation if C acted entirely unreasonably).* Damage not too remote: show that the claimant’s damage was reasonably foreseeableExceptions: egg shell skull rule and similar in type ruleIf not - no liabilityIf yes, D is liable unless they can establish a defence
What is negligence?
A breach by the defendant of a legal duty to take care which causes damage to the claimant (onus on the claimant to establish this).To establish a prima face case for negligence, the following elements must be proved (in order, on the balance of probabilities):* The defendant owed the claimant a duty of care* The defendant breached that duty and* The defendant’s breach caused damage to the claimant.Liability is based on fault of the defendant. Aim: put the claimant back in the position they would have been in if the tort had not been committed.
What are the established duties of care under negligence law?
Case law has established many situations and relationships in which a duty of care is owed. * Drivers and others on the road (i.e. other drivers, passengers, pedestrians). * Doctors to their patients. * People running a casualty department (including receptionists) and persons presenting themselves complaining of injury or illness)* Teachers to their pupils. * Parents to their children. * Solicitors to their clients. * Employers to their employees. * Manufacturers of products owe to consumers of the products. There are also some situations in which existing case law has decided that no duty of care is owed* police to victims of crime arising from their failure to apprehend offenders or prevent the crime from occurring* omissions to act (subject to exceptions), * pure economic loss* psychiatric harm
How are novel duty of care situations established?
In novel duty situations there is no previous authority establishing (or negating) the existence of a duty of care, so courts develop the law incrementally, by analogy to established authority. The three criteria which must be met for a duty of care to arise are:* Foreseeability* Proximity* Fair, just and reasonable in all circumstances to impose the duty
What does foreseeability mean in the context of establishing a novel duty of care?
The claimant must be a foreseeable victim i.e. the defendant’s negligence must have created a foreseeable risk of harm to this claimant.Example: a person gets off a bus to look at an accident further down the road and is injured by debris from the accident. This is not within the range of foreseeable claimants so no duty would be established
What does proximity mean in the context of establishing a novel duty of care?
- There must be a relationship of sufficient proximity (i.e. not necessarily physical proximity) between the claimant and the defendant. * This may be best understood by reference to situations in which there is not sufficient proximity e.g. the restrictions on duty of care in cases of pure economic loss and psychiatric harm without physical impact illustrate situations in which there may be a lack of proximity between the parties.
What does ‘fair, just and reasonable’ mean in the context of establishing a novel duty of care?
The court will also consider whether it is fair, just, and reasonable, in all the circumstances, to impose a duty of care. This aspect of the test for duty of care allows the court to consider policy factors e.g. floodgates concerns/can the duty be practically and fairly implemented?
In which 4 situations will an omission to act amount to a breach of duty of care?
Generally, one does not have a legal duty to act e.g. no duty to go to the rescue of someone in danger.Exceptions:* Where there is a special relationship between the parties* If the defendant exercises control over the claimant e.g. police officer arresting the claimant* Defendant has control over a third party or has assumed responsibility over the third party e.g. a parent with control over a young child has a duty to take reasonable care to prevent the child from causing harm to others* Rescue situations
In which 4 situations will an omission to act amount to a breach of duty of care?
Generally, one does not have a legal duty to act e.g. no duty to go to the rescue of someone in danger.Exceptions:* Where there is a special relationship between the parties* If the defendant exercises control over the claimant e.g. police officer arresting the claimant has a duty to take care of the claimant* Defendant has control over a third party or has assumed responsibility over the third party e.g. a parent with control over a young child has a duty to take reasonable care to prevent the child from causing harm to others* Rescue situations (i.e. a limited duty not to make a situation worse)
In what situations would a special relationship exist between parties giving rise to a duty of care which would be breached by an omission to act?
A special relationship between the parties (e.g parent-child) may create a duty on the defendant to take care for the claimant.Such special relationship could also arise when the defendant has assumed a responsibility towards the claimant (often in contractual and employment situations).* a lifeguard having responsibility to rescue swimmers* a decorator painting a house while the pwner is away has a duty to take steps to prevent a theft because, as part of his contract, he assumed a responsibility to look after the house.
If defendant begins to carry out a rescue but then unreasonably abandons it, have they breached a duty of care?
If the defendant’s initial actions prompted others not to stop and assist the claimant, believing that the defendant would complete the rescue, the defendant may have breached a duty to the claimant because the defendant has actually made the claimant’s situation worse.
What is the scope of the duty of care?
- If the harm suffered was not within the scope of the defendant’s duty of care, damages will not be recoverable even if the defendant owed the claimant a duty and acted negligently. * This applies even if the defendant’s actions did, as a matter of fact, cause the claimant’s harm and the harm was reasonably foreseeable. Example: A mother asked a doctor to advise whether she was a carrier for hemophilia. The doctor negligently advised that she was not. The mother conceived a child which did have hemophilia and also autism. Had the mother been correctly advised, she would have terminated the pregnancy and the child would not have been born. The mother sought damages from the doctor for the additional costs of bringing up a child with both disabilities. The doctor would not be liable for the costs associated with autism, as that was outside the scope of the doctor’s duty of care.
What is the standard of care and how is it breached?
The defendant is required to take reasonable care i.e. the standard of care to be expected of a reasonable person in the defendant’s position. If the defendant’s actions fall below this, the duty of care will be breached.* This is and objective and impersonal standard. * The defendant’s own personal characteristics, such as lack of knowledge and experience, are not taken into account e.g. if someone has a psychiatric episode, they will be judged by the ordinary reasonable person test (note, children and professionals will be judged slightly differently). * The Court will look at the activity which the defendant was undertaking and will ask what a reasonable person, undertaking that activity, could be expected to have done (or not done). This will take into account magnitude of risk, practicability of precautions and social utility. A breach may be proven by:* evidence* res ipsa loquitur* criminal convictions involving negligence
How is a breach of duty assessed?
It is assessed after the event. The claimant has suffered harm caused by the defendant’s actions and asserts that the defendant fell below a reasonable standard of care.In assessing whether the defendant’s conduct did fall below a reasonable standard of care, the court will balance two factors:* The magnitude of the risk involved in the activity undertaken by the defendant and* The practicability of taking precautions to avoid that risk.
What does magnitude of risk mean in the context of breach of duty?
In assessing the magnitude of risk involved in the defendant’s activities, the court will ask the following questions:How likely is it that harm will occur* If the activity carried a very low risk of causing harm to the claimant, the claimant may not be able to establish that the defendant fell below a reasonable standard of care and the claim would fail e.g. a claimant outside a stadium injured by a ball hit by a defendant inside the stadium. * This is assessed in light of knowledge available at the time, not with the benefit of hindsight e.g. a doctor failing to take precautions against a risk not foreseeable at the time will not fall below the standard of careHow serious is the potential harm?* The greater the potential harm from the activities, the more precautions the defendant is expected to take in order to meet the standard.* An activity might carry a low risk of harm occurring, but, if harm does occur, it is likely to be very serious. In those circumstances the defendant would be expected to take appropriate precautions e.g. mechanic who was already blind in one eye was injured and had not been provided with protective goggles. The risk of injury was low but for the particular claimant, any eye injury would be very serious. Likely the employer fell below the standard in allowing them to work without goggles.
What does practicability of precautions mean in the context of breach of duty?
- In assessing whether the defendant fell below a reasonable standard of care, the court will balance the practicability of taking precautions against the risk in question.* If cost and practicability of taking precautions far outweighs the risk, the defendant will probably not be in breach for failing to carry out those measures* If they can show they took all precautions commonly taken in this situation, that is evidence that a proper standard of care has been exercised. * The court will also take into consideration social utility of the conduct e.g. when a defendant is acting in an emergency/rescue situation, they may be justified in taking fewer safety precautions than would otherwise be required e.g. risk of damage to property may be justified in using a hose to put out the fire.Example:Claimant slips on a slippery floor in a factory. The defendant took some precautions to alleviate the danger. Closing the factory would be the only precaution to prevent the injury. The court would be satisfied that it was not practicable to close the factory.
A firefighter travelling to the scene of an accident was injured by heavy lifting equipment that slipped. Insufficient fixings had been available to secure the equipment in place. In the circumstances of the emergency the decision is made to set off in any event. Would the firefighter be able to establish a breach of duty?
In a claim against those responsible for failing to secure the equipment adequately, the firefighter may be unable to establish that the defen- dants fell below a reasonable standard of care. The urgency of the emergency may have justified taking fewer safety precautions in transporting the equipment.
How is the standard of reasonable care a particular defendant must achieve determined?
- According to the task the defendant is undertaking. * The standard of reasonable care does not depend on the skill and experience of the particular defendant
Can an under-skilled defendant rely on their lack of skill to argue they are not in breach of duty?
No. Example: the driver of a vehicle must meet the standard of care to be expected of an ordinary competent qualified driver, even if they are a learner. This applies even if a driver did their incompetent best and was incapable of achieving the required standard.
What standard of care is applied to a skilled or professional defendant?
- Defendants who exercise a particular skill or profession are required to meet the level of skill of a reasonably competent member of that profession. * Test: whether the defendant acted in accordance with a responsible body of professional opinion i.e. what an ordinary skilled person in that job would have done e.g. the reasonable doctor, the reasonable accountant etc.* There is an onus on skilled persons to keep abreast of changes and improvements in professional practice and technology* Trainee professionals must exercise the same standard of care as those already proficient in that skill e.g. junior doctors.* The person is judged on the standard of knowledge possessed by the profession at the time the action occurred.
A doctor does not warn their patient of certain risks associated with medical treatment. The treatment is carried out with proper care and skill but, despite this, the risk does occur and causes the patient harm. Could the doctor arque that their decision not to warn the patient of the risks was in accordance with a responsible body of professional opinion and so wasnot in breach of duty?
No. In the context of a doctor warning their patient of the risks of medical treatment, the duty owed by a doctor is to take reasonable care to warn of material risks in treatment so that the patient can make their own decision. What is material depends on what the patient would consider important, not on professional opinion.
What standard of care is expected of children?
- There is no minimum age for liability in tort. * A child defendant is expected to meet the standard of a reasonable child of the same age as the defendant i.e. the foresight and prudence of a normal child their age. The standard of care remains objective. * The court does not look at the level of care that this particular child was capable of.
How is a breach of duty proven in the tort of negligence?
- Evidence* Res Ipsa Loquitur* Criminal convictions involving negligence (evidence of the conviction is admissible as evidence of any civil claim arising from the incident) e.g. criminal conviction for careless driving.The claimant has the burden of proving the defendant was in breach of duty.
What is res ipsa loquitur and what are the 3 conditions for application of the doctrine?
‘The thing speaks for itself‘In some cases, there may be an absence of any explanation of how the incident happened. In cases of this kind the court may be prepared to infer a breach of duty from the circumstances of the accident. The inference of negligence may be rebutted if the defendant is able to show they did exercise reasonable careThe 3 conditions for the doctrine to apply are:* There must be an absence of any explanation for how the incident occurred (if there are other possible explanations, the doctrine will not apply)* The thing which caused the accident must have been under the control of the defendant and* The accident must be such as would not normally happen if proper care had been taken.Example: a stone in a bun bought from a bakery, a man on the street is hit by a barrel of flour that falls out of a bakery’s second story window.
What is causation in negligence?
To succeed in a claim in negligence, the claimant must establish that they have suffered damage. The damage claimed must have been caused by the defendant’s breach of duty. The claimant has the burden of proving this. The claimant must establish:* Causation in fact: That as a matter of fact the claimant’s damage was caused by the defendant’s breach.* Causation in law: That no new act (or event) intervened to break the chain of causation between the defendant’s breach and the claimant’s harm and * That the harm suffered by the claimant was a reasonably foreseeable consequence of the defendant’s breach.
Can carelessness of a defendant result in a claim in negligence if no damage is caused?
NoExample: Employer exposes employees to a dangerous chemical. When the employees become aware of the exposure they are angry and afraid but have not suffered any specific loss. The employer is in breach of the duty of care owed to employees, but since the breach has not caused loss, no claims arise.
Who bears the burden of proving causation of damage?
Claimant
What are the 3 stages in establishing causation?
- Causation in fact: The claimant must prove that, “but for” the defendant’s breach of duty, the claimant would not have suffered the loss. A modified test applies when the claimant’s injury results from a number of different causes acting together * No new intervening acts (legal causation): There must be no new acts which intervene between the defendant’s breach of duty and the claimant’s loss* Damage not too remote (legal causation): The loss suffered by the claimant must be a reasonably foreseeable consequence of the defendant’s breach of duty.
What is causation in fact?
- The first step in proving causation is for the claimant to show that, as a matter of fact, the loss suffered by the claimant was caused by the defendant’s breach of duty on the balance of probabilities. * This is done by applying the ‘but for’ test i.e. can it be said that, “but for the defendant’s breach of duty, the loss would not have happened? e.g. a speeding driver hit a child who jumped onto the road. If the driver did not speed and therefore wouldn’t hit the child, but for causation is established. If the driver did not speed but would have hit the child anyway because there was no time to reach, but for causation is not established. * The ‘but for’ test also applies when there is more than one possible alternative cause of the claimant’s loss.* Note, if a number of different causes acted together to cause the damage, a modified test is used: Material contribution.
A doctor at a hospital negligently fails to attend to a patient complaining of sickness. The patient is sent away and later dies. However, the medical evidence shows that the patient had consumed poison such that they would have died in any event even had the doctor examined them. Is causation established in relation to the doctor’s negligence and the patient’s death?
No, The doctor was clearly in breach of the duty of care owed to the patient. However, that breach did not cause the patient’s loss (the death). It cannot be said that, ‘but for the doctor’s breach, the patient would not have suffered the loss. Therefore, there is no claim in negligence.
A boy climbs a tree and falls to the ground, suffering an injury to his hip. He is then taken to a hospital where he is treated negligently. He suffers a permanent disability to his hip. The disability was caused either by the boy’s own actions or by the hospital’s breach of duty. Who has the burden of proving which cause resulted in the injurt?
The boy has the burden of proving that his loss (the disability) was caused by the hospital’s breach of duty rather than the initial fallfrom the tree.
What is the standard of proof for causation?
The claimant has the burden of proving causation on the balance of probabilities. The claimant must show that it wasmore likely than not that the defendant’s breach (and not some other cause) caused the claimant’s harm.
What is the material contribution test?
This test is used when one injurymay result from a number of different causes acting together (as opposed to when there are two (or more) alternative possible causes of the damage for which the ‘but for’ test is used) The claimant is only required to prove that the defendant’s breach of duty made a material contribution to the claimant’s loss.Example: a negligently caused fire and a naturally occurring fire joined together to burn a claimant’s house. If the negligently caused fire contributed to the house burning down, the claimant can establish causation in fact against the person that caused the fire.
A worker suffers from industrial asthma caused by excessive inhalation of dust. There are two sources of dust: First, dust unavoidably in the atmosphere of the workplace, as to which there is no breach of duty (the ‘innocent’ dust); second, dust entering the atmosphere because of defective equipment, as to which the employer is in breach of duty (the ‘negligent’ dust). What must the claimant prove to establish causation?
Here it is not possible for the claimant to prove which source of dust caused his loss (the asthma), so it would be impossible to show that, but for the ‘negligent’ dust, he would not have suffered the asthma, and the claim would fail. Instead, because the claimant’s loss was caused by two different causes acting together, the claimant is only required to prove that the defendant’s breach of duty made a material contribution to the claimant’s loss.
How are divisible and indivisible injuries dealt with in negligence?
Divisible* Damages can be apportoned between the defendants according to the share of injury which each of them caused. This means that the claimant can only recover a portion of their damages from each defendant, and so must sue them all if the claimant is to recover in full. * This can have important adverse consequences for the claimant if, for example, one of the defendants has ceased to trade and/or does not have effective insurance cover.* Example: industrial deafnessIndivisible:* Claimant is entitled to recover his damages in full from either of the defendants. (Of course, the claimant can only recover his damages once).* By statute, the paying defendant may recover from the other(s) a contribution to the damages payable. * The contribution is to be assessed in such amount as the court considers just and equitable having regard to each defendant’s responsibility for the damage.* Example: claimant is hit by vehicle A and thrown into the path of vehicle B which also hits him. Both drivers were driving negligently. This causes a single indivisible injury of a concussion and multiple fractures.
What is the position in causation where there are successive injuries?
If the claimant suffers one single injury and then later suffers a second separate injury whichimpacts on the first one, the defendant in the second accident is only liable to the extent that their negligence made the claimant’s damage worse than it already was (this is not the same as when two (or more)causes act together to bring about a single injury).Example: Claimant’s car is damaged in an accident caused by the negligence of A, with the result that it needs to be re-sprayed. Before the car can be re-sprayed, it is damaged again in a separate accident caused by the negligence of B also necessitating a re-spray. Here, the cost of the re-spray would not be recoverable from B because B’s negligence has not made the damage any worse.
How is the chain of causation broke?
- When a new act has intervened between the defendant’s original negligence and the claimant’s ultimate injury* If the chain is broken, the defendant is not liable for that further loss.* We ask whether the whole sequence of events is the probable consequence of the defendant’s actions and whether it is reasonably foreseeable that these events may happen* Intervening acts may be caused by third parties, claimants, and natural events
What is required for the intervening act of a third party to break the chain of causation?
- An intervening act by a third party will break the chain of causation only if it was not reasonably foreseeable.* This means the chain of causation is unlikely to be broken by an action which the defendant ought reasonably to have foreseen as a likely consequence of their negligence.
A road accident is caused by D’s negligence, blocking the entrance to a road tunnel. A police officer arrives and directs traffic to drive the wrong way through the tunnel in order to avoid the blockage. As a result of the officer’s directions, a further collision occurs in which the claimant is injured. Is D liable to the claimant for injuries suffered in the later collision?
No * The “but for’ test is satisfied: But for the defendant’s negligence causing the initial road accident blocking the tunnel, the claimant’s injury in the later collision would not have occurred. * Nevertheless, the defendant who caused the initial road accident would not be liable for the later collision caused by the intervention of the police officer, which broke the chain of causation. This is because the police officer’s actions were not reasonably foreseeable
What is required for the intervening act of a claimant to break the chain of causation?
- The claimant must have acted entirely unreasonably. * It is important to distinguish the partial defence of contributory negligence, which allows the claimant’s damages to be reduced if the claimant has failed to take reasonable care for their own safety, contributing to the initial injury occurring. By contrast, if the claimant’s own actions are sufficient to break the chain of causation from the initial injury, the claimant will recover no damages for the subsequent injury.
The claimant suffers a leg injury caused by the defendant’s negligence. The injury renders the claimant’s leg unstable. Although fully aware of this, the claimant later descends a steep staircase with no handrail and falls to the bottom, suffering further injury. The later fall would not have happened had the claimant’s leg not been unstable. Is the defendant liable for the further injury?
The defendant is liable to the claimant for the initial leg injury but would not be liable for the later injury caused by the intervention of the claimant’s own unreasonable decision to descend the stairs.
Can a natural event to break the chain of causation?
A natural event may break the chain of causation and cut off the defendant’s liability for further damage.Example: D’s negligence causes a collision at sea in which there is extensive damage to the claimant’s ship. The ship changes course to head for a harbour to make repairs. En route, the ship encounters a violent storm and suffers further damage. But for the initial collision caused by the defendant’s negligence, the ship would not have encountered the storm. However, the storm may be regarded as a new intervening event which breaks the chain of causation, so that the defendant does not become liable for the further damage caused by the storm.
What is remoteness in the context of causation in negligence?
- Even if it can be said that the claimant’s damage was, as a matter of fact, caused by the defendant’s negligence, the defendant will not be liable if that damage is too remote a consequence of the defendant’s act.* The basic test for remoteness is reasonable foreseeability i.e. Was the claimant’s damage a reasonably foreseeable result of the defendant’s negligence? If the answer is no, the damage was not reasonably foreseeable, and the defendant is not liable for it.* Exceptions: Egg Shell Skull and Similar in Type rules
D’s employees are carrying out repairs in a harbour using welding equipment. They are aware that oil is floating on the water in the harbour. They negligently allow sparks to fall onto the water. The oil ignites and the fire spreads to the claimant’s ship, destroying it. Is causation established?
No, it is accepted that no one could have foreseen that oil floating on water could be ignited by sparks from the welding equipment. Therefore, the damage to the claimant’s ship is too remote a consequence of the defendant’s negligence. The defendant is not liable for that damage.
What is the egg shell skull rule in causation?
- The rule describes the situation in which the claimant suffers from a pre-existing condition (such as a very thin skull) which causes the effect of the defendant’s negligence to be more extensive or severe than might have been reasonably foreseeable. * This is often referred to as the principle that ‘the defendant must take their victim as they find them’Example: Claimant suffers an injury caused by the defendant’s negligence which necessitate a tetanus injection. When the injection is given, the claimant suffers an allergic reaction which greatly increases the harm suffered. Although the severity of the reaction might not have been reasonably foreseeable, the defendant remains liable for the full extent of the claimant’s harm.
What is the ‘similar in type’ rule in causation?
The rule describes a situation in which the claimant suffers the type of harm which would be reasonably foreseeable, but the manner in which it occurs is unforeseeable e.g. if damage to property was foreseeable, the defendant would be liable for damage to extremely expensive property/loss of earnings was foreseeable, the defendant would be liable for extremely high loss of earnings.
The defendant’s employee leaves a paraffin lamp with a naked flame to protect an open manhole cover in the street. The claimant, a child, approaches the manhole. The lamp is knocked into the hole and explodes, causing severe burns to the child. Is the defendant liable for the child’s injuries?
Yes, under the ‘similar in type’ rule. The precise way in which the harm was caused could not have been foreseen. Nevertheless, the defendant is liable for the claimant’s harm because the type of injury (injury by burning) was foreseeable.
A driver injures a pedestrian in an accident caused by the driver’s negligence. The pedestrian’s injuries necessitate a period of absence from work and he suffers a loss of earnings. The pedestrian is a very highly paid investment banker, and his loss of earnings is much higher than that of a person on an average salary, so that the extent of the harm was unforeseeable. Is the driver liable for the high loss of earnings?
Yes, under the ‘similar in type’ rule because the type of injury (loss of earnings resulting from personal injury) was foreseeable. The same principle would apply when the defendant causes damage to a piece of property which was much more valuable than might have been foreseen.
What 4 defences are available to the tort of negligence?
- Contributory negligence (partial defence)* Voluntary assumption of risk (volenti non fit injuria) (complete defence)* Exclusion of liability (subject to statutory controls)* Illegality (complete defence)
What is the defence to negligence of contributory negligence?
It is: 1. a failure by the claimant to take reasonable care for their own safety2. Which contributes to the harm suffered by the claimant.* The onus is on the defendant to show the claimant was at fault and that it contributed to their loss.* The claimant’s failure to take care need not have contributed to the happening of the accident; it only needs to contribute to the damage suffered* It is a partial defence and reduces liability but does not remove it completely - it is not a break in the chain. Damages are reduced to such extent as the court considers just and equitable, having regard to the claimant’s share in responsibility for the damage* Note, it is not a defence to intentional torts e.g. trespass to the person.
Does the defence of contributory negligence apply where two or more people have been negligent and contributed to the loss but the claimant has taken reasonable care?
No, it is not correct to use the term ‘contributory negligence’ todescribe this situation. ‘Contributory negligence’ is only applicable when referring to the claimant’s own failure to take reasonable care. Instead, the rules for contribution between tortfeasors apply.
A passenger travelling in a car fails to wear a seat belt. A collision is caused by the negligence of the defendant, the driver of another vehicle. Claimant is thrown through the windscreen and her injuries are more serious than they would have been had she been wearing a seat belt. Is the defence of contributory negligence available to the defendant?
Yes, Claimant’s failure to wear her seat belt did not contribute to the happening of the accident, but her injuries were more serious than they would have been had she wore the seatbelt.
Claimant is riding a bicycle without wearing a helmet. In an accident caused by the negligence of the defendant, she is thrown from the bike and suffers a broken wrist. Does the defence of contributory negligence apply?
No, Claimant failed to take reasonable care for her own safety by not wearing a helmet. However, this did not contribute to her injury (her wrist).
What are the consequences of the defence of contributory negligence?
- Under the Law Reform (Contributory Negligence) Act 1945, a finding of contributory negligence does not defeat the claim entirely * Damages are to be reduced to such extent as the** court considers just and equitable**, having regard to the claimant’s share in responsibility for the damage.
What is the defence of voluntary assumption of risk to the tort of negligence.
It is a complete defence if the defendant shows that the claimant voluntarily assumed the risk of the defendant’s negligence.For the defence to apply:* The claimant must have had full knowledge of the risk and* The claimant must have freely and voluntarily assumed the risk.Exception: statute prevents the defence of voluntary assumption of risk from applying to passengers in RTAs.Note, courts are reluctant to find the claimant accepted the risk as it defeats the claim entirely and more often find contributory negligence.
What is the defence to negligence of exclusion of liability?
A defendant may seek to exclude liability by displaying a notice to that effect e.g. often used by occupiers. Such exclusions of liability are subject to statutory controls which provide that, when the defendant acts in the course of a business: * Liability for death or personal injury arising from negligence can never be excluded; and * Liability for other damage caused by negligence can only be excluded if the exclusion satisfies a requirement of reasonableness or fairness.
What is the defence to negligence of illegality?
- A complete defence. * A claimant cannot base a claim on their own illegal act. So, the claimant cannot recover damages for harm suffered whilst taking part in criminal activity.Example: C and D steal a car together, D drives negligently and causes an accident injuring C. The defence applies when C seeks to rely on their criminal activity as the basis for their claim. The defence will not apply when the claimant is guilty of some criminal activity, but this is just part of the background circumstances.
Defendant drives her car carelessly and collides with Claimant’s parked vehicle. Claimant’s vehicle was parked safely, but in a location where parking was prohibited. Can the defence of illegality be used by the defendant?
No. The fact that the car was illegally parked should not give rise to the defence of illegality since it is only part of the background circumstances. The claim is not based on the illegal conduct.
What are the elements required to establish a claim in pure economic loss?
- Duty of care* Breach of duty* Causation of damage.Note, there are special principles for duty of care in the case of pure economic loss as the general test is considered inadequate to prevent floodgates being opened/fraudulent claims.
What are the 2 categories of pure economic loss?
Pure economic loss caused by negligent acts * damage to property not belonging to claimant* cost of damage suffered by defective products acquired by the claimant Pure economic loss caused by negligent statements* financial loss which does not flow from damage to the claimant’s person/property (note, exception where a special relationship exists between the parties in the provision of a service)
Is pure economic loss recoverable?
- General rule: pure economic loss is not recoverable in an action in negligence. * Exception: pure economic loss caused by negligent statements may be recoverable when there is a special relationship between defendant and claimant* Note, the ordinary rules of negligence apply to consequential economic loss. In other words, the duty of care owed in respect of the physical injury or damage also extends to economic loss which is consequential on such physical injury or damage.
Are the following examples pure economic loss or consequential economic loss?1) The claimant is injured in an accident caused by the negligence of the defendant. The claimant is absent from work as a result and suffers a loss of wages totalling £3,000. 2) The claimant’s taxi is damaged in an accident caused by the negligence of the defendant. Whilst it is off the road for repairs, the claimant suffers a loss of £10,000 profit that would have been made on hiring out the taxi. 3) A musician’s drum kit is damaged in an accident caused by the defendant, and the musician cannot perform at a booked event. The musician suffers the loss of the drums themselves, valued at £5,000, and the loss of the fee of £2,000 which would have been earned for the booked event.
All of these items of damage are consequential economic loss rather than pure economic loss. They all flow from physical damage caused to the claimant or the claimant’s property and can be recovered as part of the damages in an ordinary negligence action.
A baker is driving a borrowed van to deliver a wedding cake when the defendant crashes ito him through negligent driving. The baker is injured (bumps and bruises) and the van is damaged so he can’t use it until it is repaired and he has no access to another. The cake is ruined. Can the baker claim any damages?
- The baker can claim for his injury and damage to his property i.e. the cake and loss of profit on the ruined cake (these are consequential losses)* He can’t claim for the van as it didn’t belong to him (pure economic loss)* He can’t claim for the loss of profit on the rest of the cakes he was due to deliver but can’t because the van is out of action (pure economic loss)
Can a claimant recover damage to property not belonging to them?
A claimant may suffer loss when property belonging to someone else is damaged. This damage generally is not recoverable. Example: C owns a factory which is supplied with electricity via a cable belonging to an electricity supply company. D negligently damages the supply cable, with the result that C’s factory is without electricity. The factory is forced to close for three days. C suffers increased costs and expenses and loss of profit as a result. C has suffered pure economic loss. This loss is not recoverable from D because D does not owe C a duty of care in respect of this loss.
C manufactured steel alloys 24 hours a day which required continuous power. D’s employees damaged a power cable belonging to a utility company, resulting in a lack of power for 14 hours. There was a danger of damage to the furnace so it was shit down and the products in the process of manufacture were removed, thereby reducing their value. C also suffered loss of profits because of the interruption to manufacturing. Is D liable for C’s losses?
- D is liable for physical damage to the products in the furnace and the loss of profts from these products.* D is not liable for the economic loss as a result of the interruption to manufacturing because it was unconnected with the physical damage.
Can a claimant recover the cost of damage suffered by a defective product they acquired?
- When a claimant acquires a product which is defective, the cost of damage to the product itself is regarded as pure economic loss - which is not recoverable in tort (note, it may be recoverable in contract). * This may arise if the defective product was a gift or if the person with whom the claimant did have a contract for supply of the product may no longer be available as a defendant. * It is important to distinguish the situation where a defective product causes damage to other property e.g. a defective oven overheats and causes a fire that destroys both the oven itself and the furniture in the claimant’s kitchen. The claimant cannot recover from the oven manufacturer the cost of damage to the oven itself but can recover the cost of damage to the kitchen furniture, because that is not pure economic loss.
A retailer sold a product to the claimant, which proved to be defective and suffered extensive damage as a result of the defect. The retailer has since ceased to trade, leaving the claimant unable to pursue a claim in contract. Can the claimant pursue a claim in tort?
No, the manufacturer does not owe the claimant a duty of care in respect of the damage suffered by the defective product. This damage is classified as pure economic loss in respect of which no duty of care is owed.
A caterer purchases an oven to use in his restaurant kitchen. The oven overheats and burns an expensive cut of meat. The caterer loses the cost of the meat itself and also the profit he would have made in serving it in his restau ant. He incurs substantial costs to repair the oven. Also, whilst the oven is undergoing repairs, the caterer suffers a further loss of profit due to being unable to use the oven in his restaurant. The supplier from whom he purchased the oven has ceased to trade, so he sues the manufacturer. He is able to show that the manufacturer’s negligence caused the defect in the oven. Can the caterer recover his losses?
Can recover (as these are not pure economic loss)* The cost of the cut of meat and* the profit which the caterer would have made on it Can’t recover (as these are pure economic loss)* The cost of repairs to the oven and * the **loss of profit due to not being able to use the oven **
Can a claimant recover pure economic loss caused by negligent statements?
- The relevant kind of pure economic loss is likely to be financial loss which does not flow from damage to the claimant’s person or property e.g. failed investment made on the basis of financial advice. * There is generally no remedy in tort. If the claimant did not receive the advice pursuant to a contract (e.g. the claimant relied upon advice provided gratuitously/information was given during a social occassion), pure economic loss is not recoverable.* Note: Silence and inaction can rarely amount to negligent misstaement* Exception: A claimant can recover for this type of loss if there is a special relationship between the parties involving an assumption of responsibility by the defendant and reasonable reliance by the claimant. This exception has been extended to the provision of services* If the advice was provided pursuant to a contract and the defendant has acted in breach, the claimant should be able to recover their financial loss as damages for breach of contract.
What 4 conditions must exist for the special relationship exception to pure economic loss recovery to apply?
A special relationship will arise if the following conditions are satisfied: * The advice is required for a purpose which is made known to the defendant (defendant should have specialist knowledge)* The defendant knows that: (1) the advice will be communicated to the claimant in order to be used for that purpose, and (2) the claimant is likely to rely on the advice without independent enquiry* The claimant must actually have relied on the advice; and * It must have been reasonable for the claimant to do so.i.e. there must be an assumption of responsibility by the defendant and reasonable reliance by the claimant.
A company employs an accountant to prepare a report on its accounts for the purpose of attracting investors. An investor relies on it and invests. The accountant had negligently misstated the company’s solvency and the investor suffered significant losses. If no remedy is available in contract, can the investor recover their losses?
If the investor can show that the accountant knew a third party investor would rely on the report and it was reasonable to do so, a special realtionship would exist between the investor and accountant allowing the investor to sue.
Does the special relationship exception to pure economic loss recovery apply to the provision of services?
Yes, e.g. a solicitor engaged to draft a will undertakes a responsibility towards the beneficiaries under the will, and so may owe them a duty of care.
If a duty of care is established according to the principles governing pure economic loss, what is required to recover damages?
- In the usual way: by showing that the defendant fell below a reasonable standard of care. * The claimant must also show that the defendant’s breach of duty was the cause of the claimant’s loss - applying the usual principles for causation of damage. * Any relevant defences would then also be considered
What is ‘pure psychiatric harm’
Psychiatric harm that is caused without physical impact.It may be caused by: * the shock of being placed in danger by the defendant’s actions (primary), or * by the shock of witnessing harm to others caused by the defendant’s actions (secondary). The harm may be:* A recognised psychiatric condition caused by shock (i.e. grief or fright generally aren’t recoverable); or* A shock-induced physical condition (such as a miscarriage).It is a form of personal injury
What are the elements required to establish a claim in pure psychiatric harm?
- Duty of care* Breach of duty* Causation of damage.Note, there are special principles for duty of care depending on the type of victim in the case of pure psychiatric harm as the general test is considered inadequate to prevent floodgates being opened/fraudulent claims.
What is the difference between pure psychiatric harm and consequential psychiatric harm?
- When a victim suffers a physical injury caused by the defendant’s negligence, they may also suffer from consequential psychiatric harm e.g. a person who suffers a broken leg in a car crash may also suffer from nightmares/a person who suffers cuts and scarring may also suffer from depression as a result. * The ordinary rules of negligence apply to this type of psychiatric harm - the duty of care owed in respect of physical injury also extends to consequential psychiatric harm even if it is not foreseeable as a result of the injury.
A boy standing by a road witnesses a crash, caused by the negligence of a car driver. The boy is so close to the scene that a piece of debris from one of the vehicles strikes him and causes a minor injury to his leg. He is so shocked that he develops post-traumatic stress disorder. Can the boy recover for his injury and the PTSD?
The car driver owes the boy a duty of care (which he has breached, causing the boy injury). The duty extends to both the physical injury and the consequential psychiatric harm. Even if psychiatric harm may not have been foreseeable as a result of such a minor injury, so long as some personal injury was foreseeable, the defendant is liable, since the defendant must take his victim as he finds him.
What are the 2 types of victims recognised under the law of pure psychiatric harm?
- Primary victims2. Secondary victimsThe duty of care rules are different for each of them.
What is the difference between a primary and secondary victim of pure psychiatric harm?
- Primary: Someone who is in the actual area of danger created by the defendant’s negligent act (or who reasonably believes themselves to be) e.g. sitting in a car a negligently driven bus swerves to avoid and developing PTSD.* Secondary: Everyone else who is affected by the defendant’s negligent act, but is outside the actual area of danger e.g. a parent who develops PTSD after watching their child get hit by a negligently driven bus.
What is the duty of care owed to a primary victim of pure psychiatric harm?
A duty of care arises provided:* they were at foreseeable risk of physical injury, even though such physical injury did not in fact occur. * There is no requirement that psychiatric harm be foreseeable as a result of the defendant’s actions. Example: C is involved in a minor road accident which placed C at risk of physical harm. C was not physically injured. However, C does suffer from PTSD. A duty of care is owed, despite the fact that the PTSD may not have been a reasonably foreseeable consequence of the accident.
When is a duty of care owed to a secondary victim of pure psychiatric harm?
All of the following requirements must be satisfied: * It must be reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer a psychiatric illness in the circumstances* The secondary victim must have had close ties of love and affection with the person endangered by the defendant’s negligence (e.g. mother and child)* The secondary victim must have been present at the accident or its immediate aftermath e.g. A&E hearing and seeing family in terrible state crying in pain (often referred to as proximity to the accident in time and space) and * The secondary victim must have witnessed events with their own unaided senses.
A mother is told by telephone that her child had been run over. She suffers a sudden shock and collapses. However, she is unable to see the child until some hours later. The mother is diagnosed as suffering from post-traumatic stress disorder. Is she owed a duty of care?
No, she does not satisfy the requirements of being in proximity to the accident and witnessing the events with her own unaided senses. So, no duty of care is owed to her.
What constitutes a medically recognised condition for the purposes of claims in pure economic loss?
For both primary and secondary victims the psychiatric harm must amount to a medically recognised psychiatric condition (or shock-induced physical condition) [Note, sudden shock requirement for secondary victims]. * Medically recognised conditions: PTSD, medically diagnosed depressive disorder or anxiety disorder. * Not recognised: simple anxiety, alarm or distress. Note, when there is physical injury to the claimant with consequential psychiatric harm, this limitation does not apply. A victim suffering from physical injuries and consequential effects, such as nightmares and anxiety, should recover damage for those effects in the usual way.
