Tort introduction Flashcards
Tort law: Name the parties and describe and describe their role in civil court?
Claimant- Person who brings case to court with claim against another. In a (Group) action claim- possibly multiple claimants.
Defendant- Person or organisation claim made against- may be more than one D.
Who has the burden of proof in civil court?
As with all Civil claims, burden is on the claimant to the prove the claim but a lower burden than criminal cases. It is called the “balance of probabilities” meaning the claimant has to show their claim is most likely true than not (more than 50% likely).
Name the different types of Tort law?
1) Tort of negligence (where someone wrongs you by not taking enough care- e.g personal injury)
2) Tort of tresspass- Where someone is wrongly using your land- not criminal.
3) Tort of nuisance- someone interfering in your life and spoiling your enjoyment.
Before which year did you not always have to prove fault to be able to claim damages?
1994
Now what do you have to prove fault for and what do you need show?
Must prove Fault in claim for negligence, Occupiers’ Liability, Psychiatric damage, and pure economic loss caused by negligent misstatement. In these cases, you need to show that the incident happened, that somebody was at fault, and that you suffered damage because of it (it caused the damage)
What happened in Cambridge Water v Eastern Counties Leather 1994?
The D owned leather tanning business. Spillages of small quantity of solvents occurred over long period of time, seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the Claimant water company. The borehole used for supplying water to local residents. The water contaminated at a level beyond that which was considered safe, Cambridge Water ceased using the Borehole. Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher.
Held: D not liable damage was too remote. Not reasonably foreseeable that the spillages would result in closing of borehole.
Name the Torts where you still DON’T need to show fault?
Nuisance, Rylands v Fletcher cases, Vicarious Liability.
In these 3 types of claims, you just need to show the incident happened and that it caused damages.
Name the 2 defences a defendant can use in a civil case?
Accuse the Claimant of causing or contributing to their own claim – e.g contributory negligence
Accuse some other party (person or organisation) of causing or contributing to the claim – e.g third party negligence.
In either case, the Defendant may also claim that they have also suffered damage and seek to make their own claim for compensation.
Name the remedies for a succesful claim?
If an Action succeeds, the Claimant will be looking for:
Damages – MONEY
OR
Injunction – a Court order to stop a trespass or a nuisance
There is a duty on a Claimant to keep his losses to a minimum and not to inflate them. This is called the duty to MITIGATE. If he doesn’t, he won’t recover those extra losses
Why do courts be cautious when making a decision in relation to Public policy and duty of care and what do they do to avoid this?
The courts take care not to make decisions that will “open the floodgates” to lots of new claims. They make “Policy decisions” sometimes. They look at the realities of that individual case and try and achieve fairness and justice but they are also careful to create good precedent and avoid creating bad precedent.
E.g- claims against paramedics, local authorities, the police, the CPS, other emergency services, NHS etc.
Public Policy and Liability for Pure Economic Loss: What do the courts do to limit a defendants liability and prevent thousands of claims?
The courts ensure a Claimant can only claim for pure economic loss (where there has been no other loss or injury) if the Defendant was in a position of trust/ authority and made a negligent misstatement (like bad legal advice) – The case is Hedley Byrne v Heller (1963)
What happened in Hedley Byrne v Heller (1963)?
Parties:
Claimant: Hedley Byrne & Co Ltd, an advertising agency.
Defendant: Heller and Partners Ltd, merchant bankers and financial referees for Easipower Ltd.
Facts:
Hedley Byrne sought a financial reference about Easipower from Heller and Partners through their own bank.
Heller and Partners provided a reference stating Easipower was financially sound but included a disclaimer saying it was given “without responsibility on the part of this bank.”
The reference was incorrect, and Easipower was not financially stable.
Relying on the reference, Hedley Byrne engaged in business with Easipower and suffered financial losses when Easipower defaulted.
Outcome:
The House of Lords ruled Heller and Partners not liable due to the effective disclaimer included in the reference.
Legal Principle
The case established that there can be liability for negligent misstatements causing economic loss if there is a “special relationship” involving an assumption of responsibility, even without a contract.
A disclaimer can negate such liability if it clearly states that no responsibility is accepted for the provided information.
Public Policy and Liability for Psychiatric injury: Why it difficult to bring this to civil court and what is the alternative instead of sending it to court?
these claims are very limited as they are hard to prove, are easily exaggerated and there would be thousands of them (after every road accident, minor accident at work etc.)
The Courts have said that Parliament should deal with this area (through Statute), not Judges.
Key case is McLoughlin v O’Brian (1983)
What happened in the case of McLoughlin v O’Brian (1983)?
Facts
The claimant’s husband and three children were involved in a serious road accident caused by the defendant lorry driver’s negligence. One child was killed instantly.
The injured family members were taken to the hospital by ambulance.
Another son, who was a passenger in a car behind the family, was taken home and informed his mother of the accident. She was then driven to the hospital.
At the hospital, she saw her injured family members before they were treated and cleaned, leading to severe shock, organic depression, and a personality change.
She sued the defendant for the psychiatric injury she suffered.
Legal Proceedings:
The Court of Appeal held that no duty of care was owed to her.
She appealed to the House of Lords.
Held:
The House of Lords allowed the appeal, ruling that the claimant was entitled to recover for her psychiatric injury.
The decision extended the class of persons considered proximate to the event to include those present in the immediate aftermath of the incident.
