Tort Law 3.2 Theory of Tort Law

Question 1

Why do judges exercise caution when deciding to impose liability?

Answer 1

To not create an avalanche of new claims.

Question 2

What are decisions of judges known as?

Answer 2

Precedents

Question 3

Binding precedent

Answer 3

A case from a senior court that must be followed in future cases

Question 4

Persuasive precedent

Answer 4

Part of the judgement that should be followed in similar cases, but is not binding, a reason must be given for not following it.

Question 5

Why are there policy decisions?

Answer 5

To create a precedent that is fair, just and reasonable.

Question 6

What do judges take into account when creating a precedent?

Answer 6

Loss allocation, floodgates and practical impact.

Question 7

Loss Allocation

Answer 7

Who can afford to bear the loss? Any insurance? Either body funded by a taxpayer?

Question 8

Floodgates

Answer 8

Will imposing the liability cause a flood of new claims? What would the impact of this be?

Question 9

Practical impact (standards)

Answer 9

Will they be raised, will essential funds be diverted away from frontline activities to defend legal claims?

Question 10

Case on Morality of Public Funding

Answer 10

Caparo v Dickman:
C bought shares in D company in reliance of accounts which stated they had made a pre-tax profit, but they actually made a loss. C brought a claim saying they were negligent.

Held: No duty of care owed, not sufficient proximity between C and auditors, auditors did not know of C’s existence, nor the purpose of what accounts were being used for.

Question 11

What means there is no legal authority to suggest that police are immune to breaking tort law.

Answer 11

The recent Supreme Court judgement in Robinson v Chief Constable of West Yorkshire Lord Reed reiterated that Hill is not ‘authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime’

Question 12

What is proof that judges will follow policy decision principles?

Answer 12

In Robinson, Lord Mance stated ‘it would be unrealistic to suggest that, when recognising and developing an established category, the courts are not influenced by policy considerations.

Question 13

Pure economic loss

Answer 13

Physically present earned income.

Question 14

Why is PEL not actionable in negligence

Answer 14

There would be no reasonable limit to a defendants liability and courts would be overwhelmed.

Question 15

PEL Case (policy decisions and liability)

Answer 15

Hedley Byrne and Co. Ltd v Heller and Partners Ltd:

• C was an advertising agency who wanted info on the creditworthiness of a potential client from D’s bank.
  D confirmed worthiness of the other client and gave a disclaimer.
  C entered into the contracts and the other client went into liquidation, losing $17,000.
  C brought a claim against D.

Held: D not liable, disclaimer excluded any duty of care.

Question 16

Psychiatric Injury Case (policy decisions and liability)

Answer 16

McLoughlin v O’Brian:
- C suffered mental illness after a car crash where husband and 3 children injured, one child died. Went to hospital witnessing the injuries and went into shock.

Held:
C’s claim for psychiatric injury allowed, it was reasonably foreseeable, close proximity and shock was of sight and hearing of the immediate aftermath.

Question 17

What case created the reasonable persons test?

Answer 17

Vaughan v Menlove, D built a haystack near the property line, it caught fire and spread to C’s barns, stables and cottages. The court said that if the standard was that D only needed to act to the best of his judgement, it would be too vague, there needs to be a standard which requires in all cases a regard to caution such as an ordinary man would observe.

Question 18

Injunction

Answer 18

A court order to stop a person doing something or requiring a person to do something, commonly used in nuisance and trespass.

Question 19

What does The Supreme Court of Judicature Act 1925 s45 say about injunctions?

Answer 19

An injunction may be granted… in all cases in which it shall appear to the court to be just or convenient.

Question 20

What does the court do to help decide an injunction?

Answer 20

Weighs up the social usefulness of activity against harm it causes the claimant.

Question 21

What is a case for deciding an injunction?

Answer 21

Miller v Jackson:
- Cricket played by local club D.
C’s home was near.
Several cricket balls hit into home and damaged it.
C sued nuisance and brought an injunction to stop cricket.

Held:
C liable in negligence and damages for the damages to C’s home were granted. No injunction granted since social benefit outweighed C’s right to enjoyment without interference.

Question 22

Vicarious Liability

Answer 22

Employer held liable for wrongdoing of an employee.

Question 23

What do you need for vicarious liability to be established?

Answer 23

Needs to be proved that the employer was employed

Question 24

Why is the employer held liable?

Answer 24

They have deepest pockets and likely to be insured against liability.

Question 25

Vicarious Liability Case, what was the issue?

Answer 25

Ready Mixed Concrete Ltd v Minister of Pensions:
- Driver contracted to deliver concrete, he was an independent contractor. He was to purchase own car and paint it in company colours and drive in a manner compliant with the company.

Was he an employed person?

Held:
Driver had sufficient freedom in the performance of his contractual obligations as he was free to decide the vehicle, his own labour, fuel, and other requirements in the performance of the task. In lieu of these freedoms, he was an independent contractor and not an employee of the company.

Question 26

Why did Ready Mixed Concrete Ltd v Minister of Pensions set a judicial precedent?

Answer 26

They had to decide whether he was an employee or not, these rules can now be applied to future cases.

Question 27

Law by consensus

Answer 27

Judges interpret how law should be applied.

Question 28

Rule by consensus

Answer 28

Judges’ interpretation of law should be applied; reasonable, fair and just.