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Tort Law Flashcards

1
Q

What is a tort?

A

Civil wrong

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2
Q

What is civil law concerned with?

A

Settling private disputes between individuals/ businesses

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3
Q

What is the objective of tort law?

A

Enforce the law by compensating those who suffer damage when the law is broken

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4
Q

In civil law, who is the burden of proof on?

A

The claimant

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5
Q

What is the standard of proof in civil law?

A

On the balance of probabilities (more likely than not)

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6
Q

What is the rule of res ipsa loquitur?

A

When it is difficult for the claimant to know what happened but it is obvious that defendant has been negligent, this rule is used to shift the burden of proof from the claimant to the defendant

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7
Q

What is the tort of negligence concerned with?

A

Compensating people who have suffered damage as a result of the carelessness of others

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8
Q

What is negligence?

A

Failing to do something which the reasonable person would do or doing something which the reasonable person would not do (defined in Blyth V Birmingham Waterworks 1856)

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9
Q

What can negligence come from?

A

An act or omission

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10
Q

In order to establish liability on negligence, the Claimant must prove which 3 things on the balance of probabilities?

A
  1. That they were owed a Duty of Carenby the Defendant
  2. That the Defendant was in Breach of Duty
  3. That the Claimant suffered Damage caused by the Defendant, which was not too remote
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11
Q

How is a Duty of Care established?

A
  • By applying existing precedent or a statutory obligation (the Robinson approach)
  • When no previous precedent exists, applying the Caparo test
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12
Q

What is the Robinson approach?

A

In Robinson v CC West Yorkshire Police 2018, the Supreme Court emphasised that a judge should first look to existing precedent/ statutory obligation when deciding whether a duty of care exists

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13
Q

Give examples of well established categories of duty

A

Manufacturer and consumer- Donoghue v Stevenson
Doctor and patient- Bolam v Barnet Hospital
Drivers and other road users including pedestrians- Nettleship v Weston, Road Traffic Act 1988
Employer and employee- Paris v Stephney
Instructor and learner- Day v High Performance Sports
Teacher and student- Simonds v Isle of Wight Council
Parent and child

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14
Q

Donoghue v Stevenson 1932 🐌

A

Summary: C ill after consuming remains of decomposed snail in ginger beer
Decision: manufacturer owed a duty of care to consumer
Importance: Lord Atkin created the ‘neighbour principle’ where people should take reasonable care to avoid actions that could injure their neighbours

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15
Q

What is the Caparo test?

A

Used in novel situations where there is no previous statue/precedent to establish a duty of care

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16
Q

What are the 3 parts of the Caparo test?

A
  1. Was the harm reasonably foreseeable?
  2. Was there sufficient proximity?
  3. Is it fair, just and reasonable to impose a duty?
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17
Q

Give cases for ‘was the harm reasonably foreseeable’ in the Caparo test

A

Kent v Griffiths 2000- reasonably foreseeable that C’s condition would worsen if the ambulance did not arrive promptly
Topp v London Country Bus 1993- not foreseeable that the bus would be stolen or the driver would then run someone over

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18
Q

What is meant by ‘was there sufficient proximity’?

A

Closeness between Claimant and Defedant in a physical space (time and space) or a legal relationship

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19
Q

Give cases for ‘was there sufficient proximity’ in the Caparo test

A

Bourhill v Young 1943- miscarriage after hearing a motorcycle accident around the corner but she was not close enough in time or space
McLoughlin v O’Brien 1983- mother arrived at immediate aftermath of serious accident involving family members so there was sufficient proximity

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20
Q

What is meant by ‘is it fair, just and reasonable to impose a duty’ ?

A

Policy based decision where judges take into account the best interests of society when deciding whether to impose a duty

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21
Q

Give cases for “is it fair, just and reasonable to impose a duty?”

A

Hill v Chief Constable of West Yorkshire Police 1990– not JFR to impose duty on police for not catching killer sooner since the threat of being sued could restrict future investigations and open floodgates to large volume of claims
Capital & Counties plc v Hampshire CC 1997- JFR when firefighter turned off sprinkles, making fire damage worse

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22
Q

What is the floodgates argument?

A

Judges are concerned if a new duty of care was created it might lead to a large volume of similar claims

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23
Q

Once it’s established that the Claimant is owed a duty of care, what is the next step?

A

For the Court to determine whether or not a duty has been breached

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24
Q

What 2 parts make up breach of duty?

A
  1. Comparing D’s conduct with the standard of care expected from a reasonable person
    AND
  2. Considering various risk factors which my raise or lower that standard
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25
What is the reasonable person test?
An objective test where a Defendant will have breached their duty if he or she fails to act in a way which a reasonable person would not have- Blyth v Birmingham Waterworks 1856
26
Who is the reasonable person?
Average intelligence and self-control, and possesses average skill and experience. There is no absolute duty to prevent harm or physical damage to others
27
As the reasonable person test is objective what does it ignore?
Any particular characteristics in the defendant
28
Nettleship v Weston 1971
Learner driver crashed on her third lesson, injuring her instructor. The fact that she was a learner was not relevant, she was judged against the standard of a reasonably competent driver
29
What are the exceptions when the special characteristics of the defendant will be relevant in the reasonable person test?
- Children - Amateurs - Professionals/ experts
30
What is the standard of care for children (give case)?
Reasonable child of the same age as the Defendant- Mullins v Richards 1998
31
What is the standard of care for amateurs (give case)?
Reasonably skilled amateurs doing the same task provided that it is one that a reasonable homeowner might carry out- Wells v Cooper 1958
32
What is the standard of care for professionals/experts (give case)?
Competent experts in the same field. There must be a substantial body of professional opinion that would support D’s course of action- Bolam v Barnet Hospital 1957
33
What is the standard of care in relation to the medical profession (give case)?
Doctors must ensure patients are fully informed of all material risks involved in treatment and of reasonable alternatives- Montgomery v Lanarkshire Health Board 2015
34
What are risk factors?
Raise or lower the standard of care expected from a reasonable person
35
Name the risk factors
- Probability of harm - Seriousness of harm - Cost and practicality of taking precautions - Potential benefits (social utility) - Unknown risks
36
What is probability of harm?
If probability of harm is low= D will not be expected to take s much care to guard against the risk if probability of harm is high= higher standard of care will be expected
37
Give cases for probability of harm
Bolton v Stone 1951- no breach of duty very low likelihood of the cricket ball being hit out of the ground and injuring a passer-by as they had already taken reasonable precautions of a 5 metre high fence Hayley v LEB 1965- breach of duty as blind people regularly use the road so the workmen should’ve done more than propping up a hammer to warn people of a hole in the road to guard people against this risk. This led to a blind man falling into the hole
38
What is seriousness of potential harm?
If potential harm could be serious, the standard of care might be raised
39
Give a case for seriousness of potential harm
Paris v Stephney 1951- Claimant was a welder who was already blind in one eye. He had a higher risk of becoming completely blind so his employer was under a higher duty to provide protective goggles
40
What is the cost and practicality of taking precautions?
The Court balances size of risk with the cost and effort to the defendant in guarding against it
41
Give a case for cost and practicality of taking precautions
Latimer v AEC Ltd 1953- Disproportionate to the level of risk when C injured himself when he slipped on a wet floor. Court decided sensible precautions would be laying sawdust on the floor to reduce effects of flooding, however this would have to close the factory
42
What are potential benefits (social utility)?
Standard of care may be lower if there is a greater public benefit to the activity e.g in an emergency
43
Give a case for potential benefits (social utility)
Day v High Performance Sports 2003- Benefit outweighed any potential risk so standard of care was lower. C froze while climbing an indoor wall and had to be rescued but the rescuer caused C to fall and become injured
44
What are unknown risks?
If the risk of harm is not known, there can be no breach of duty
45
Give a case for unknown risks
Roe v Minister of Health 1954- C was a patient who was paralysed by a contaminated anaesthetic. Unknown to medical experts that contamination could occur in that way so there was no breach
46
What is the third part of a negligence claim?
Damage
47
What does damage mean in the context of negligence claims?
Loss suffered by the Claimant. Both factual causation and remoteness (legal causation) must be proved in order for a negligence claim to succeed
48
What is factual causation?
The starting point, decided by the “but for” test
49
What is the “but for” test?
But for D’s act or omission would the Claimant have suffered damage?
50
Give cases for factual causation
Barnett v Chelsea & Kensington Hosptial 1969- No factual causation when doctor failed to diagnose B’s arsenic poisoning, instead sent him home then died. “But for” for the failure to diagnose, B would’ve died anyway Chester v Afshar 2004- Factual causation was established because “but for” the doctor failing to warn patient about risks involved in back surgery, C would not have had surgery and suffered injury
51
What are intervening acts?
Breaks the chain of causation
52
Give case for intervening acts
Knightly v Johns 1982- D’s driving caused an accident in the tunnel but senior police officer sent college against flow of traffic to close the tunnel at the other end, causing a second accident. Conduct of senior police officer was so unreasonable that it broke the chain of causation, D was not cause of second accident
53
What is remoteness?
Claimant can only claim for types of loss that are a reasonably foreseeable result of D’s breach
54
Give cases for remoteness
The Wagon Mound (No.1) 1961- D’s negligently spilled oil in water, two days later sparks from welding at a nearby dock ignited the oil, causing fire damage to dock and ships. Damage to fire was too remote Hughes v Lord Advocate 1963- Young boy knocked paraffin lamp into open manhole (left unguarded by D) and was burned in the explosion. His claim succeeded because burn injuries caused by unattended lamp were foreseeable
55
What is the thin skull rule?
If the type of injury or damage is reasonably foreseeable, but it is much more serious because the Claimant had a pre-existing condition, then D is liable for all the subsequent consequences
56
Give a case for the thin skull rule
Smith v Leech Brain 1962- C who has a rare cancer gene was burned by molten metal at work, bringing on the cancer and then he died. The Court decided a burn is a reasonably foreseeable result of D’s negligence and that D had to take C as he found him- making him liable for the death
57
What are the two main defences in a negligence claim?
- Contributory negligence - Consent
58
What happens if the defence is successful?
The defence may allow the Defendant to escape liability, even where all the elements of the tort are present
59
What is contributory negligence?
Where the Defendant alleges that the Claimant has partly caused or contributed to the damage
60
What is the significance of The Law Reform (Contributory Negligence) Act 1945?
Judge may reduce any damages awarded to a Claimant according to the extent to which Claimant contributed to his or her own injuries
61
What type of defence is contributory negligence?
Partial defence- both the Defendant and Claimant are each partly to blame for the injury suffered by the Claimant
62
Give a case for contributory negligence
Froom v Butcher 1975- C’s head injuries were caused by his decision not to wear a seatbelt so damages were reduced by 20%
63
What happens if wearing a seatbelt or helmet would’ve made no different?
No deductions should be made
64
What happens if wearing a seatbelt would’ve meant no injury?
C can be 100% contributory negligent (Jayne’s v IMI 1985)
65
Sayers v Harlow UDC 1958
Council was liable in negligence when C got trapped inside a public toilet. C tried to escape by climbing a toilet roll holder and slipped when it gave way, reducing C’s damages by 25%
66
Jones v Livox Quarries 1952
C was riding on the back of a vehicle at work against company rules when a dumper truck crashed into the back of it. C had contributed to his on injuries through his own negligence so damages were reduced by 20%
67
What is the defence of Consent?
If the Claimant has voluntarily agreed to a risk of harm with full knowledge of this risk, then he or she cannot complain when they do suffer injury
68
What type of defence is Consent?
Complete defence- if successfully pleaded by Defendant, the Claimant will receive no damages
69
What do you have to show when using the defence of Consent?
That the Claimant 1. Knew the nature and extent of the risk of harm 2. Voluntarily agreed to it
70
Morris v Murray 1991
Significance: defence of Consent C and D decided to fly in D’s light aircraft after an afternoon drinking. The plane crashed, killing D (pilot) and seriously injuring C. Court of Appeal decided C voluntarily assumed risk of injury but accepting a flight in an aircraft by an obviously heavily intoxicated pilot
71
What happens to the defence of Consent if the Claimant had no choice but to accept the risk?
Defence will not succeed
72
What happens if a person has a duty to act and is injured because of D’s negligence?
Defence will not be available
73
Can you use the defence of Consent in a road traffic accident?
No, a driver cannot claim that a passenger consented to a risk of negligent driving simply by accepting a lift
74
Ogwo v Taylor 1987 🧑‍🚒
D negligently set fire to his house using a blowtorch. C (fireman) suffered burns despite wearing breathing apparatus and protective clothing. D’s argument that C consented to the injuries was rejected
75
What are “damages”?
In tort, the court can award a successful claimant monetary compensation for personal injury or damage to property
76
What is the aim of compensatory damages?
To put the Claimant in the same position that he or he would have been in had the tort not taken place
77
What are the two types of compensatory damages called?
- General - Special
78
What are special damages?
Cover pre-trial expenses Pecuniary losses
79
What are pre-trial expenses?
Loss of earnings or expenses from the date of the accident up to the date of the judgement e.g medical or travel expenses
80
Do special damages cover loss of property?
Yes
81
What happens with special damages if a property is destroyed?
The special damages will be the market value
82
What happens with special damages if a property is damaged?
Special damages will be the cost of repair (unless repair cost exceeds market value, when the latter is used)
83
What are general damages?
Cover post-trial losses Judge decides how much to award, following argument by counsel Include pecuniary losses and non-pecuniary losses
84
What are the types of post-trial losses do general damages cover?
- Future losses - Pain and suffering - Loss of amenity - Specific injuries
85
What are future losses?
Pecuniary loss. Future medical care and personal assistance, such as adapting a house, future loss of earnings
86
What is pain and suffering in general damages?
Non-pecuniary loss. Claimant must be able to appreciate his or her condition, e.g no award for pain if the Claimant is unconscious or cannot feel pain
87
What is loss of amenity?
Non-pecuniary loss. Loss of things Claimant used to enjoy e.g sport. Damages may be increased where a Claimant had a particular skill or hobby
88
What are specific injuries?
Non-pecuniary loss. The Claimant can claim a set mount for the injury itself e.g loss of a leg. These are calculated with reference to guidelines
89
What is a pecuniary loss?
Financial losses compensated for
90
What is a non-pecuniary loss?
Loss that is not financial, although the court can only compensate for them in a financial way
91
What are lumps sums?
“Once only” award so C cannot come back to court for more However can be be unfair if C’s condition becomes worse or unfair to D if C’s condition improves
92
What is a structured settlement?
Amount paid periodically e.g once a year and can be reassessed at intervals in the light of any changes to C’s condition. The parties have to agree to this, the court cannot impose a structured settlement
93
What happened in the Damages Act 1996?
Allows parties to agree a structured settlement for general damages
94
What is mitigation of loss?
The Claimant is under a duty to keep their loss to a reasonable level e.g Claimant cannot claim for private treatment for the injury if there is suitable treatment available under the NHS
95

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