Tort Law Flashcards
What is the professional standard of care?
A reasonable man having that skill that the defendant professes to have
The defendant can point to a body of medical opinion to justify their view BUT there must be a logical basis for that opinion
The knowledge is judged by the knowledge in the industry at the time of the incident
Factors to consider when deciding if a duty of care has been breached i.e. someone has fallen below the standard expected of them in that situation:
- Likelihood of harm
Whilst probably that a cricket ball might be hit out of the premises, it was unlikely it would hit a pedestrian (which it did) and was a precaution an ordinary man wouldn’t protect against - Magnitude of harm (was it reasonably foreseeable?)
Employer of a garage hand who had one good eye should have taken into account seriousness of consequences for C of injuring healthy eye by providing goggles - Practicality of precautions – cost and ease
Owners of factory that had been flooded had done all that was reasonable (sawdust) to prevent employees slipping – unreasonable to send employees home as would mean shutting down factory which would be very costly - Social value/benefit of D’s conduct
Playing a game in the dark added no social value, only excitement, and Scout Association were liable for scout’s injuries sustained while playing the game
Explain the doctrine of Res Ipsa Loquitor
ONLY used where the cause of the accident is unknown (e.g. in the absence of any evidence or witnesses)
The argument is that ‘the thing speaks for itself’ i.e. that the occurrence of the incident is evidence of negligence itself
Requirements:
* Control - whatever caused damage must be under control of D
* Damage would not normally occur without negligence
* Cause of accident must be unknown e.g. if vehicle loses control and passengers in the vehicle are injured
Principles of remoteness of damage (tort):
If the damage is not foreseeable then it is likely to be too remote
The foreseeable damage must be of the same TYPE of damage as that which actually occurred - general personal injury can be a ‘type’ for this purpose
Thin-skull rule
How do you assess causation where there is more than one possible cause of the claimant’s injury?
- Multiple potential causes - where multiple causes acted independently of one another
(Generally rule is to look at balance of probabilities)
In industrial cases with single causal agents - look at the material increase test.
Where more than one cause of C’s loss - factual causation is satisfied if can show D’s breach materially increased the risk of C suffering loss - Multiple sufficient causes - where multiple causes acted cumulatively.
Apply the material contribution test (Bonnington).
Factual causation will be satisfied provided D’s breach made a more than negligible contribution
What are the types of novus actus interveniens that can occur to break the chain of causation and mean D will not be liable?
- Act of God
- Act of 3P which was highly unforeseeable (higher bar for medical 3P - must be so gross and egregious as to be unforeseeable)
- Acts of the claimant - if occurs AFTER breach and is highly unreasonable
How can a defendant establish the defence of consent?
Elements:
1. Claimant had capacity to give valid consent to the risk
2. Claimant had full knowledge of nature and extent of risks
3. Claimant agreed to the risk of injury
4. Claimant agreed voluntarily
The defence will not apply where danger created by D’s own negligent act and a rescuer puts themselves in danger to save someone put in peril by D’s actions IF it is reasonably foreseeable that someone would try to rescue.
How can a defendant establish the defence of contributory negligence?
- Claimant must fail to take reasonable steps for their own safety
- The failure has contributed to the loss suffered (there must be a causal link - so failure to wear a helmet where the claimant suffers a broken leg in a bike accident won’t result in a defence of contributory negligence)
Factors to establish a duty of care for secondary victim suffering psychiatric harm:
- Was psychiatric harm reasonably foreseeable?
- Proximity of relationship? (close bond of love and affection extending only to parent and child, spouses and fiances)
- Is there proximity in time and space? (easy if at scene - if saw after then unlikely unless in exactly same condition then potentially)
- Was the psychiatric harm shock-induced? (as opposed to a gradual appreciation of what has happened over time - needs to be as a result of sudden shock to nervous system)
Test for whether an employer will be liable for the psychiatric harm suffered by an employee in an occupational stress claim:
- If psychiatric harm to the claimant was reasonably foreseeable
- Foreseeability depends on the relationship between characteristics of the claimant and the requirements made of them by the employer, including:
a. nature and extend of work being undertaken
b. signs of stress
c. size and scope of the business and availability of resources
(thin skull rule applies here too)
What is pure economic loss?
Economic loss NOT flowing from damage to person or property (could be negligent advice leading to a bad investment)
Loss arising from damage to property of another
Cost of repairing or replacing defective items (bought defective, not damaged while in your possession)
Exceptions to the general rule that no DofC is owed in respect of pure economic loss:
In the context of Wills
Duty to provide an accurate reference
Pure economic loss caused by negligent misstatements - 3 DIFFERENT tests for this:
- Reasonable reliance test
a. Has C relied on D’s advice
b. Was it reasonable for C to rely on D’s advice
c. Did D know or ought to know C was relying on advice? - Has there been a voluntary assumption of responsibility?
- Is there a special relationship of trust and confidence between the parties
What does C need to show if D made a negligent statement to a 3P who relayed it to C which resulted in C’s pure economic loss?
- D must communicate advice to C (an identifiable individual or class) or know it would be communicated to them
- D must know the purpose for which C will use the advice
- D must know or reasonably believe that C will rely on the advice without independent enquiry
- C has acted upon the advice to their detriment such that it must be reasonable to expect D to protect C from that loss
Factors a court will consider when deciding if a disclaimer is reasonable:
- Were the parties of equal bargaining power?
- Was it reasonably practicable to obtain advice from another source (time and cost)
- How difficult was the task being undertaken by D?
- What are the practical consequences, taking into account sums of money at stake and ability of parties to bear loss involved, in light of insurance?
A client, the owner of a small garage, seeks advice about whether he may seek damages from highway contractors who negligently cut the power supply to numerous properties whilst working on roadworks outside his property. The power supply was not reconnected for 48 hours. As a result, the client had to turn away three customers and lost approximately £5,000 in profit.
What advice should the solicitor give the client about his entitlement to claim damages?
a) The client may seek damages in negligence from the highway contractors for his resulting lost profit as he was owed a duty of care that was breached, and which caused the loss.
b) The client may not seek damages in negligence from the highway contractors as the cutting of the power supply did not cause damage to the client’s property.
c) The client may not seek damages in negligence from the highway contractors, but may seek damages in public nuisance as the cutting of the power supply unlawfully interfered with his property.
d) The client may seek damages for private nuisance as the cutting of the power supply caused him a personal loss.
e) The client may not seek damages in negligence against the highway contractors as a duty of care cannot be owed to the public at large.
b) The client may not seek damages in negligence from the highway contractors as the cutting of the power supply did not cause damage to the client’s property.
This follows the case of Spartan Steel & Alloys Ltd v Martin [1973], which provides that a claim cannot be made for economic loss resulting from damage to property belonging to a third party.
