Tort Law Flashcards
What does occupiers liability act 1957 deal with
Duties owed to lawful visitors
What does occupiers liability act 1984 deal with
Duties owed to others ie trespassers
Pre 1972 there was no duty owed to child trespassers … case ?
Addie v dumbereck
Lots of machinery and knew children trespassed … done nothing to keep them out
1972 -84 there was the duty of ?
Common humanity
Herrington v BRB
Trainline had no fences - child electrocuted and died
Who is an occupier ? Wheat v e lacon 1966 says
Test is who had control
In case it was pub landlord and brewery that owned pub
Husband died after falling down stairs without bulb - not held to be enough tho
Fat from absolute duty tho as many cases where c injured but no breach ie
Kiapasha v laverton
C broke ankle after slipping on floor in takeaway
Raining and many customers
Precautions taken ie non slip floor, door mat , mopped 7 x but cannot mop Whne so many customers
Lady hale- no beach … question of what is reasonable to expect
Warning cases
English heritage v Taylor = c fell from platform with no warnings at castle … sheer drop
Held : duty breached but 50% cn as obvious danger
Independent contractors
William v west herts hospitals trust 2002
Splat wall case
C Injured when jumping from trampoline onto Velcro wall
Wall operated by contractor at hospital charity event run by defendant hospital d
Held c could not recover against the hospital ; hospital had taken reasonable steps in selecting contractor
But also said d was under a duty to check insurance - no breach of this as d had gone far enough to check insurance
Duty to trespasser only owed if
1) he is aware of the danger or has reasonable grounds to believe that it exists and
2) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger and
3) risk is one which in all the circumstances of the case, he may reasonably be expected to offer the other some protection
Tomlinson v congleton bourogh council 2003
Duty to trespasser case
D owned old sand quary and land which was turned into country park and lake
Notices erected banning swimming as dangerous
C 18 years old visited and dived from beach, hit head and left severely paralysed
D had report by council which proposed closing beaches to prevent swimming
Initially claimed as lawful visitor but then accepted trespasser when swimming
Held - no risk which gave rise to duty 1(3) a - 1984 act and risk was obvious so fails at first step no danger
Brown v south west lakes trust 2022
Accident, victim driving car along road next to reservoir in Cornwall , car left road, went through fence into reservoir and drowned
Family claimed that owner of reservoir was in breach of 1984 act … argued Tomlinson was distinguished because no voluntary act , v was unintentional trespasser , d should have provided more secure fence
Struck out as no reasonable cause of Acton - clearly no danger as to state of premises
Claim against highway authority allowed to proceed though as failed to fence securely is a prospect
Negligence step process
1) is there a duty of care
2) has it been breached
3) did breach cause loss or damage to c which is actionable
4) is loss or damage to remote ?
5) satisfy all then cause of action subject to defences
Dryden v matthey plc 2018
Exposed to platinum salts that resulted in them developing a sensitivity to platinum which had no physical effect, but prevented them from working in chemical plants as doing so would result in full blown platinum salt allergy that would have physical effect
C claimed for loss of earnings and and earning capacity against d employers
Held - allergy amounted to actionable personal injury as it changed their physical capacity to enjoy ordinary life which prior to exposure had involved working with platinum salts
FB v Rana
13 month old developed meningitis combined with other features and suffered irreversible brain damage
Held - doctor had failed to take adequate history and failed to conduct adequate examination
Also standard of care by senior house offer expected to be same as more senior doctor
Robinson v chief Constable of West Yorkshire police
Duty of care owed by police to prevent foreseeable injury to those in the vicinity
Jackson v Murray
13 year old girl stepped out from behind bus into road
D was driving car and crashed into her
Supreme Court - d not slow down when saw bus
Girl stepped out without looking
D negligent but girl 50% contributory negligence
Wagon v mound
Type of damage must be reasonably foreseeable
Intervening act by third party cases relieving liability
Reckless conduct - Wright v lodge
Criminal acts
Mere negligence not enough , must be gross - Webb v Barclays Bank
Unreasonable conduct by claimant to break chain has to be …
McKew unreasonable
McKew v Holland - common sense gone out the window
Supervening event may break chain
Baker v Willoughby
C damage falls outside scope of d duty = break chain
Meadows v Kahn
Thin skull rule -
As long as some damage of same type suffered by c is reasonably foreseeable, d does not need to foresee its extent
Cunningham v Rochdale
Not probable so but for failed
Bonnington v wardlaw
Material contribution case
Silica dust causing pneumoconiosis
Condition caused by dust but how can only be guilty dust - in combination with innocent dust
Divisible harm cases
Holtby
Rahman v arearose
Indivisible harm
Bailey v mod
Williams v Bermuda hospitals
Increase in risk test
Cases ?
McGhee
Fairchild
Barker v corus
Wilshere
Hedley v Byrne
Negligent misstatements causing pure economic loss
If d has objectively assumed responsibility (assessed by ref to professional relationship and Ds conduct ) and corresponding reliance by c then use Byrne test
Hedley is relevant where representor is not contracting party
Use caparo if d not identifiable
Distinction between first party insurance eg fire, life and liability insurance
First party insurance - party pays to ensure their own loss
Liability insurance - party pays to insure in respect of their legal liabilities to third parties
Peter cane - a fault with insurance system
Compulsory liability insurance for road accidents creates a system where there is damage to drivers , vehicles, passengers and other road users as a result of provable negligence of another , compensation will be paid if d was insured
But if victim was entirely responsible then only has recourse under first party insurance
Vast majority of cases are settled
86% of personal injury cases settle without proceedings being issued
11% settle after proceedings issued but before trial date
1% settled at door of court or went to trial
Costs in tort law
Legal aid for personal injury claims reduced in 1995 and removed in 2001 for all except medical negligence; this went in 2012
Now personal injury either funded by before the event insurance or conditional fee agreements ie no win no fee
Arguments against Tort system
1) expensive to run - 47% used up in operation of system
Accident victims only received 53%
Operational costs include - lawyers, court costs, medical costs, insurance company costs and benefits
Compares with approx 10% spent in costs in New Zealand no fault scheme which replaced tort
2) big gaps in coverage ie where claimant cannot prove fault of another who is insured or has sufficient resources to pay …
No witnesses - risk of insufficient evidence
Where only c at fault
Where accident not caused by anyone’s negligence
3) tortfeasor hardly ever pays personally , yet claimants pay through contributory negligence eg Jackson v Murray
Any deterrent effect that tort liability has is weakened by d knowing liability will be covered by insurance
Regressive distribution - people pay into liability insurance pool according to risk they create, but take out according to existing level of wealth
Alternatives to tort law
No fault scheme
No fault scheme in New Zealand
State run scheme which provides compensation for victims of accidents irrespective of fault - periodical payments
Funding - work accidents : funded by levy on employers
Road accidents : funded by levy on patrol and vehicle licenses
Other accidents
Compensation covers only 80% of lost earnings
Administrative costs only 10% not 47%
Pearson commission proposed alternative
Modifications to tort
No fault scheme for road accidents funded by levy on patrol , but at lower level of compensation claims with tort for high level
Nhs redress scheme alternative
Rejected no fault scheme because of cost ie if tort level of compensation kept same then overall cost would multiply ; if reduced then claimants worse off
Nhs redress scheme for patients harmed by seriously substandard care - claimants can sue in tort instead but would waive right if scheme package accepted
Put into legislative form but not implemented
All about money but no apology
Oconnor case 2005 - legal system not conductive to get apology
Compensatory damages
To put the claimant back in position as far as possible as if tort not committed
Compensatory culture ?
Claims reducing though since 2013 now half what it was in 2013 but half maybe because of pandemic
96% of people believe that we are more likely to seek damages today than we were a decade ago
However only 25% of those having faced personal injury said they had claimed with top reason for not claiming compensation being “ i did not think the accident or illness/ disease was bad enough to warrant a claim”
Whiplash study= almost 40% have not claimed compensation after suffering whiplash …. And 80% of sufferers either report symptoms accurately or underplay
List of duties of care
- Motorists owe duty of care to other road users
- doctors owe duty of care to patients
- police owe duty to prevent forceable harm to those in the vicinity
Bolam test for professional negligence
If what d did is supported by reasonable body of opinion within the relevant specialism of the profession then d will have discharged duty of care
Bolam does not apply if
Bolitho- d expert opinion is illogical or not based on sound science
Montgomery- If d wrongdoing relates to a failure to inform about options for treatment ie advisory duty - fail to inform of 9-10% risk
Damages main remedy
100% principle ie full compensation but speculate about the future means most damages either under or other compensate
Psychiatric harm
Alcock 1991- primary victim= involved either mediately immediately as a participant
Secondary victim = spectators or bystanders
Secondary victims control factors
1) must be close tie of love and affection; spouse and parent child presumed ; rest have to be proved
2) must be proximate in time and space
3) must be caused by shock
C must show reasonable fortitude
Liverpool hospital v ronayne- not caused by shock
Taylor 2013- no duty where mother died due to accident 3 weeks prior - not proximate
Page v smith 1995
Primary victim
If physical harm foreseeable to pv then psychiatric harm not need to be foreseeable
White v chief Constable South Yorkshire
Rescuers need to be in zone of physical danger to be pv
Sherratt v chief Manchester police 2019
Police will only owe duty of care if there is a voluntary assumption of responsibility
Section 1 1957
Occupier can exclude or restrict liability by agreement
Arguments for tort
Corrective justice - d wrong requires compensation
Dynamic development ie recognising new harms
