Tort Law

Question 1

What is a prerequisite for a duty of care?

Answer 1

A sufficiently proximate relationship between the claimant and the defendant.

Question 2

Why is there not a duty of care if a claimant suffered pure economic loss or pure psychiatric harm?

Answer 2

There is not a sufficiently proximate relationship.

Question 3

What does a claimant need to show in order to recover compensation for their pure psychiatric harm?

Answer 3

That they are in the class of closely affected victims.

It is not enough to show that the defendant was negligent and that his negligence was the cause of their psychiatric harm.

Question 4

What is pure psychiatric harm?

Answer 4

It is psychiatric harm suffered without physical impact.

Question 5

What are the instances where a claimant can obtain a remedy for pure psychiatric harm?

Answer 5

Where a claimant has suffered pure psychiatric harm - i.e. without physical impact - the injury must be:

• caused by a sudden shock; and either
• a medically recognised psychiatric illness; or
• a shock-induced physical condition (such as a miscarriage or heart attack).

Question 6

What does the ‘sudden shock’ requirement mean in claiming pure psychiatric harm?

Answer 6

It means that there is no duty of care in relation to harm caused by a gradual build-up of event. E.g. this rules out depression caused by caring for an injured relative (employer-employee relationship different).

Question 7

How can a primary victim claim damage for psychiatric harm?

Answer 7

A primary victim is someone who was actually involved in the incident. So, a primary victim:
- was in the actual area of danger; or
- reasonably believed that he was in danger.

The requirements for a duty of care to be owed to a primary victim are:
- primary victims are owed a duty of care in relation to their psychiatric harm, provided the risk of physical injury was foreseeable;
- for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.

Question 8

How can a secondary victim claim damages for pure psychiatric harm?

Answer 8

A secondary victim is someone who is not involved in the incident in the same way. So a secondary victim:
- witnesses injury to someone else; or
- fears for the safety of another person.

In order to be owed a duty of care, the secondary victim must have suffered a medically recognised psychiatric illness, or shock-induced physical condition, caused by sudden shock.

Also, all of the following requirements must be satisfied:
- foreseeability of psychiatric harm
- proximity of relationship (between primary and secondary victim)
- proximity in time and space
- proximity of perception

These are known as the ‘Alcock control mechanisms’.

Question 9

What is the position re rescuers with regards to claiming damages for pure psychiatric harm?

Answer 9

Rescuers (and those acting in the course of their employment) should be treated in the same way as any other victim who suffers only pure psychiatric harm. I.e. they are a primary or a secondary victim.

Regarding secondary victim, being in a rescue situation would mean that the two tests of proximity in time and space and proximity of perception are met. Unlikely that they will have ties of love and affection though. So, proximity of relationship unlikely to be met.

Question 10

When is damage too remote?

Answer 10

Damage is too remote if it is not a reasonably foreseeable consequence of the defendant’s negligence. However, a proviso to this requirement is the ‘egg-shell skull’ rule, i.e. some damage of some kind was foreseeable.

Question 11

What are the two potential areas of liability in tort for the employer?

Answer 11

Primary liability in negligence for breach of the personal duty an employer owes to every employee.

Secondary liability under the principle of vicarious liability for the torts of employees committed in the course of their employment.

Question 12

What is the duty owed by employers?

Answer 12

The duty to take reasonable care of its employees’ safety while at work.

The duties are to take reasonable steps to provide:
- competent staff;
- adequate material (i.e. plant, equipment and machinery);
- a proper system of work and supervision; and
- a safe place of work.

This is personal to the employer. They cannot escape liability by saying they delegated its performance to someone else. Non-delegable duty.

Question 13

Can stress at work make an employer liable?

Answer 13

Yes - the duty to provide a safe system of work can extend to an employee who has suffered stress as a result of his work.

The threshold question:
- the nature and extent of the work done by the employee (e.g. was it obviously too demanding)
- signs from the employee (employer is generally entitled to assume an employee was up to the normal pressures of the job)

Question 14

When will an employer be in breach of its duty?

Answer 14

If it fails to meet the standard of care to be expected of a reasonable employer in its position.

Question 15

What is the main defence for an employer in a negligence case?

Answer 15

Consent (voluntary assumption of risk) and contributory negligence.

Question 16

What does a defendant need to establish for the defence of consent to succeed?

Answer 16

• That the claimant had full knowledge of the nature and the extent of the risk.
• That the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence.

Question 17

What does ‘sciens is not volens’ mean with regards to defence of consent to torts?

Answer 17

Knowledge is not consent.

Question 18

What does s149 Road Traffic Act 1988 deal with?

Answer 18

It is a statutory provision dealing with the defence of consent in the case of motor vehicles.

Its effect is that any acceptance of risk by the passenger is invalid. The defence of consent cannot be relied on.

Question 19

Are rescuers acting consentially?

Answer 19

No - they are usually acting under a moral compulsion.

Rescuers will not be considered to have consented to the risk of injury if:
- they were acting to rescue persons or property endangered by the defendant’s negligence; and
- they were acting under a compelling legal, social or moral duty; and
- their conduct in all the circumstances was reasonable and a natural and a probable consequence of the defendant’s negligence.

Question 20

What is contributory negligence?

Answer 20

Comprises of two elements:

• carelessness on the claimant’s part
• that carelessness has contributed to the claimant’s damage

Question 21

What is the effect of contributory negligence?

Answer 21

The claimant’s damages are to be reduced.

The court will first calculate the full amount of damages which would have been payable had it not been for the claimant’s contributory negligence.

Then it will make an appropriate reduction:
- to such extent as the court thinks just and equitable;
- having regard to the claimant’s share in the responsibility for the damage.

Case law shows they assess culpability and causation (who caused the damage - not the accident).

Question 22

Whats the reduction on damages if failure to wear a seatbelt is the cause of contributory negligence?

Answer 22

If no damages would have occurred with seatbelt - 25%

If less severe injuries - 15%

If no difference - 0%

Question 23

What is the test for contributory negligence?

Answer 23

Whether the claimant has failed to take reasonable care for their own safety.

That of a reasonable person (of that age).

Question 24

What does ‘ex turpi causa non oritur actio’ mean?

Answer 24

No action arises from a disgraceful cause.

For the defence of illegality to succeed there must be a very close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy.

Question 25

What is the aim of damages in tort?

Answer 25

To put the claimant in the same position they would have been if the tort had not been committed.

The claimant should be no worse off because of the occurrence but also no better off.

Question 26

What is the duty to mitigate?

Answer 26

The claimant must take all reasonable steps to keep the losses he is claiming to a minimum.

Question 27

What is the one action rule?

Answer 27

The claimant can only bring one claim based on one set of facts.

A limited exception to this rule is in the case of provisional damages and periodic payments.

Question 28

What is the distinction between special damages and general damages?

Answer 28

• Special damages: those losses which are capable of being calculated precisely a the time of the trial and which are stated in the form of a calculation. This covers financial losses incurred before trial, such as loss of earnings.
• General damages: those losses which are not capable of being calculated precisely and are therefore left to the court to determine. They must still be stated but no definitive figure can be placed on them. This includes pain, suffering and loss of amenity and all losses incurred after the trial.

Question 28

If the claimant has received treatment from the NHS, does this affect the damages paid by the defendant?

Answer 28

No because the claimant has not incurred any costs.

The defendant may be required to contribute to the NHS but this will not form part of the claimant’s damages.

Question 29

What is the formula that the court applies to calculate the future loss of earnings of the claimant?

Answer 29

Multiplicand:
Ascertain the claimant’s gross annual loss at the date of trial. Salary not increased for inflation. Then, deduct tax etc. and the resulting figure is the net annual loss, the ‘multiplicand’.

Multiplier:
This is how long the claimant will lose this money - the period of future loss.
Lost years are included in this (but what the claimant would have spent on themselves is deducted).

Question 30

Can a claimant recover damages for future professional care?

Answer 30

Yes. The cost of the care is included in damages.

If a spouse gives up work, the loss of their future earnings can be claimed. But this figure cannot exceed the commercial rate for the care.

Question 31

Where are the limited alternatives to lump sum awards of damages?

Answer 31

• s32A Senior Courts Act 1981 allows for an award of provisional damages.
• s2 Damages Act 1996 allows the court to award damages for personal injury as periodic payments rather than a lump sum.

Question 32

What happens if a claimant dies before they have received an award for compensation?

Answer 32

Law Reform (Miscellaneous Provisions) Act 1934 allows for existing causes of action to continue after death.

Question 33

What happens re damages if the claimant dies because of the defendant’s actions?

Answer 33

May cover:
- pecuniary loss
- non-pecuniary loss
These are up to the date of death.

The claim is brought by the estate and damages awarded become part of the estate.

Question 34

How can dependants claim damages for the death of someone?

Answer 34

Under the Fatal Accidents Act 1976 a new cause of action was created as it allows dependants to sue for the death of the person on whom they were dependant.

In order to bring a claim, the claimants have to be able to show that, had the deceased survived, the deceased would have been able to bring a claim against the defendant themselves.

No claim for dependency or bereavement can be made if the deceased already completed their claim.

Question 35

What are the three claims dependents can make under the Fatal Accidents Act 1976?

Answer 35

• a claim for loss of dependency
• a claim for bereavement (limited)
• a claim for funeral expenses

Question 36

Who can make a claim for loss of dependency?

Answer 36

• current and former married spouses/civil partners
• cohabitees who have lived together for at least two years
• parents
• children
  -siblings

They must have been actually financially dependent on the deceased.

From annual earnings, the deduction is 25% for a married person with children and 33% for a married person without children (or where no children are dependent) for the expenses they would have spent on themselves.

Question 37

Who can claim damages for bereavement?

Answer 37

• wife, husband, civil partner
• parents (or mother if illegitimate) of a minor who was never married
• the cohabiting partner of the deceased who:
  a) was living with them at time of death
  b) had been living together for two years
  c) was living during the whole of that period as the wife, partner etc.

Amount of bereavement damages is currently £15,120.