🚑Tort: Negligence, defences, PSH, PEL, employers liability Flashcards
What is the legal definition of negligence
A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant
Elements of Negligence
- Duty of care
- Breach of duty
- Causation
- Damages
Duty: 8 examples of established duty of care
Dr/patient
Parent/child
Road users/other road users
Driver/passenger
Employer/Employee
Manufacturer/consumer
Teacher/pupil
Tutor/tutee
Duty: Test for novel duty of care
Caparo test:
- Reasonable foresight of some harm to claimant (C a foreseeable victim)
- Sufficient proximity of relationship
- It is fair, just and reasonable to impose a duty
Duty: Proximity of relationship: Where might there not be a duty of care owed
- caused by omission to act
- PEl/PSH
Duty: What 5 policy factors may the court consider when deciding if its ‘fair, just and reasonable’ to impose a DoC?
- Floodgates
- Deterrence
- Resources
- Public benefit
- Upholding the law
Duty: is there liability for omissions
No, EXCEPT
1.statutory duty
2.contractural duty (employment)
3. special relationship (eg. parent/child)
4. duty not to make situation worse
5. where person has positive duty to exercise control over 3rd party
Duty: Do public bodies owe a duty of care?
NOT to all individuals but can do public at large UNLESS
□ if police failure to apprehend a criminal created an exceptional risk, different from the risk to the public at large
□ OR when the police take someone into custody, they assume responsibility
Breach: Elements of breach of duty
- Question of law: What standard of care was the D expected to reach?
- Question of fact: did the defendants conduct fall below the required standard?
Breach: Tests for what standard of care defendant was expected to reach
-Reasonable person test
OR modified tests:
-Skilled defendant
-Child defendant
Breach: what standard will a child be expected to reach?
a reasonable child of their age
Breach: What does a reasonable dr have a duty to do?
Advise of:
1. alternative treatments
2. AND any material risk of harm arising from the recommended treatment ( A risk is material if the reasonable person would consider it so)
Breach: What standard will an inexperienced driver/Jr dr be expected to reach
no allowance made, same as normal dr/driver
Breach: How do courts determine if the Ds conduct fall below required standard of care ?
RISK:
-Magnitude/likelihood of risk
-Defendant to guard against ‘reasonable’ not ‘fantastic’(unexpected) possibilities
REASONABLE PRECAUTIONS
-Cost/practicality of precautions in relation to risk of harm
-Common precautions
-Current state of knowledge of defendant?
-Ds purpose (value of Ds activity to society)
Breach: How do the courts decide if a professional breached their duty?
- Did D act in accordance with a practice accepted as proper by a responsible body of professionals? (Bolam)
- BUT in some cases, it cannot be demonstrated that the body of opinion referred to in the evidence isreasonable or responsible (Bolitho)
Breach: Is lack of resources a relevant excuse for breaching a duty of care?
No
Breach: To what standard must breach of duty be proved?
Claimant must prove breach of duty on balance of probabilities
What is res ipsa loquitur? (breach)
“The thing speaks for itself” =can infer negligence from breach where:
1. damage under control of D
2. AND accident wouldnt happen without negligence
3. AND cause of accident unknown
D must then show how accident would have been caused without negligence by:
1. Show how it actually happened and this wasn’t due to their negligence
2. OR if they cant, show they used all reasonable care at all times
Causation: what are the elements of causation?
- Causation in fact
- Chain of causation broken by intervening act?
- Damage too remote? (The Wagon Mound)
Causation: How is factual causation normally established?
BUT FOR THE defendants breach of duty, would the harm to the claimant have occurred?
Causation: Modified tests for causation
-Material contribution approach (multiple causes)
-Material increase in risk (cases of scientific uncertainty)
Causation: General rule for divisible vs indivisible injury
Divisible: Damagers apportioned accordingly
Indivisible: Contribution between tortfeasors:
anyone liable for damage suffered by another may recover a contribution from anyone else liable for the same damage.
Causation: What is a novus actus interveniens?
an intervening act that breaks the chain of causation
Causation: what actions of a third party WILL/WONT break the chain of causation?
WILL
* Intentional intervention
* Reckless intervention
* Grossly negligent medical treatment which is a completely inappropriate rection to Cs injury
WONT
* Instinctive interventions
* Negligent intervention if its foreseeable consequence of defendants negligence (eg. negligent medical treatment)
Causation: When will the claimants actions break the chain of causation?
if entirely unreasonable in all the circumstances
Causation: Test for remoteness of damage
The Wagon Mound Test: reasonable foreseeability-would a reasonable person have foreseen the damage/harm
Causation: What is the ‘similar in type’ and ‘egg-shell skull’ (remoteness of damage)
Similar in type: if claimant suffers a type of foreseeable injury/damage, doesn’t matter the precise way claimant was injured wasn’t foreseeable
Egg shell skull: Take your victim as you find them: Once the type of damage is deemed foreseeable the extent of it does not have to be
What are the defences to negligence?
- Voluntary assumption of risk (volenti non fit injuria)/consent
- Illegality
- Excluding liability
- contributory negligence
What defences CANT be relied on by a driver in claims against them by their passengers?
- Consent/Volenti
- CAN rely on contributory negligence
Defences: Elements of consent
- Claimant had full knowledge of the nature/extent of risk.
AND - Claimant willingly consented to accept the risk of being injured due to the defendant’s negligence
3 exceptions to the defence of consent/volenti?
□ Employees-have no choice to carry out dangerous tasks
□ Rescuers if:
1. rescuing person endangered by D negligence
2. under social/legal duty
3. conduct reasonable, natural and probable in all circumstances
□ Passenger to drunk driver
When wont rescuers have consented to the risk of injury?
- Rescuing person endangered by D negligence
- under social/legal duty,
- conduct reasonable, natural and probable in all circumstances
Defences: When will the illegality defence apply?
Where harm a result of an inherent part of (joint) criminal enterprise
When does the defence of illegality not apply?
Caselaw has est that illegality cannot be relied upon where a trespasser is bringing a claim under the Occupiers’ Liability Act 1984.
What does the defence of exclusion of liability apply to?
□ PEL
□ Occupiers liability to visitors (probs NOT trespassers)
□ Product liability-common law negligence claim (NOT consumer protection act)
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Requirements to rely on an exclusion notice?
1) Reasonable steps must have been taken to bring it to Cs attention BEFORE the tort was committed.
2) Wording of the notice must cover the loss suffered by the C.
3) Its fair and ‘reasonable’ to allow reliance on the exclusion notice having regard to all the circumstances
Defences: What cant liability for negligence be excluded for?
Negligence that causes personal injury/death
Factors to consider when deciding if an exclusion notice is reasonable?
- Parties of equal bargaining power?
- For advice, was it reasonably practicable to obtain advice from other source, considering cost/time
- How difficult is task liability is being excluded for?
- What are the practical consequences taking into acc the sums of money at stake/the ability of the parties to bear the loss involved, particularly in light of insurance
How can businesses/traders exclude liability?
UCTA & Consumer Rights Act 2016
What happens if a disclaimer isnt bought to the claimant attention?
Defendant cant use exclusion of liability as a defence
Elements of Contributory Negligence
- carelessness on claimants part (reasonable person test)
- which contributed to claimants damage
Effect of contributory negligence
Damages will be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.
Court will consider:
1. Culpability: relative blameworthiness of the parties;
2. Causation: extent to which the claimant’s carelessness has caused or contributed to the loss suffered.
When wont contributory negligence stand as a defence?
claimant act in ‘agony of moment’
(Contributory Negligence) what standard will rescuers be judged against/found contributorly negligent?
A reasonable rescuer-contributory neg only found if rescuer shown ‘wholly unreasonable disregard for his/her own safety’
(Contributory Negligence) what standard will children be judged against?
a reasonable child their own age-the older the child more likely a finding of contributory negligence
How do seatbelts affect damages in Contributory Negligence
25%- Cs injuries would have been avoided.
15%-injuries less severe
0%-no difference
How do crash helmets affect damages in Contributory Negligence
same as seat belts:
25%- Cs injuries would have been avoided.
15%-injuries less severe
0%-no difference
How does the driver being drunk affect contributory negligence?
If passengers knows driver is drunk, passanger may be contributorlily negligent if injured in an accident caused by the driver’s intoxicated state
What DOC do independent contractors owe?
Owe a duty to take reasonable care to avoid harm to those who can reasonably be expected to be affected by their work
When is PEL recoverable?
1. Assumption of responsibility by D?
* D knew why advice was required
* knew advice would be communicated to C
* knew C would likely act on advice without independent inquiry
* C acted to their detriment
2. Was it reasonable for C to rely on advice?
Examples of PEL
- Economic loss caused by acquiring a defective item of property
- Economic loss caused by damage to the property of a 3rd party
- Economic loss where theres no PI or physical property damage
When is PSH recoverable?
- Harm is caused by a sudden shock
- AND is a medically recognised psychiatric condition or shock induced physical condition
- C is primary or secondary victim
PSH: what is a primary victim?
i. Was in actual area of danger
ii. OR reasonably believed they were in danger (was risk of physical injury was foreseeable?)
PSH: what is a secondary victim and when will they be owed a DOC?
1) Witnesses injury to someone else
2) OR fears for the safety of another
Owed DoC:
1. Reasonably foreseeable that person of normal fortitude in Cs position would suffer psychiatric illness?
2. Proximity of relationship?-close relationship of love/affection (rebuttable presumption for parents/spouses)
3. Proximity time/space? Present at accident/immediate aftermath
4. Proximity of perception?-See/hear accident/immediate aftermath with own senses
PSH: is 2h after the birth of a child the ‘immediate aftermath’?
Yes
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Employers L: type of duty owed to employees by employers
- Established
- Non-delegable duty (ie. ‘personal to the employer’)
- To each individual employee(= If an employee has a specific problem the employer must take this into account).
What is the meaning of the fact that an employer’s duty to its employees is personal and non-delegable?
Employer can delegate tasks but is held legally responsible when a contractor it employed is negligent.
Can breaches of statutory duty be relied on by employees for a claim against an employer?
No but can be used to prove breach
Specifically, what do employers owe their employees a duty to provide?
- Competent fellow staff
- Adequate plant/equipment
- Provide and maintain a proper system of work and supervision
- Safe place of work
When will employers have breached their duty to provide a safe system of work via imposition of stress?
Threshold q: was stress reasonably foreseeable?
Consider:
1. Nature/extent of work done
2. Signs from the employees themselves
Refinements:
a) Duty only imposed where employee foreseeably vulnerable to stress
b) No specific job that automatically gives rise to inevitability of extreme stress
c) Employer that take reasonable steps not in breach (eg. Free counselling)
Employers L: what do employers need to consider when providing competent fellow workers
- Selection of staff
- Training so staff can do their job
- Provision of supervision
- Dismissal of employees that pose a risk
- Employer liable for pranks played by fellow workman, even if they’ve told them to stop on multiple occasions
Employers L: what does the duty to provide adequate plant and equipment cover?
- Where an employer does provide equipment but it is inadequate in some way. (For these purposes ‘equipment’ covers anything provided by an employer for the purposes of its business.)
- Where an employer does not supply all the plant/equipment needed for the job.
Employers L: can an employer be liable if the equipment is defective?
Yes, injured employee must est:
1. fault on the part of the third party (usually the manufacturer)
2. causation
Employers L: what does the duty to provide proper system of work and supervision include?
eg. Training, supervision, monitoring operation, disciplinary action).
Must also MAINTAIN safe system of work
Employers L: what does safe place of work include?
Duty applies regardless of where the employees are at work (not just ‘occupiers’
Employers L: elements of breach
Will be in breach if failed to meet the standard of care to be expected of a reasonable employer in its position. They must take reasonable steps to care for employees safety.
Employers L: factors to consider for breach
- How likely is it that injury will result from the employers’ acts or omissions?
- How serious would such injury be likely to be?
- How easy would it have been for the employer to have taken precautions which would have avoided the injury?
- Did the social utility of the employer’s activity justify taking the risks that resulted in the injury?
Employers L: causation
Normal:
i. Factual causation: But for (Barnett) OR modified test : Material contribution approach : in multiple cause case, breach of duty doesn’t have to be only or main cause, only materially contribute
ii. Intervening acts?
iii. Remoteness? (Wagon mound reasonable foreseeability)
Employers L: which defence rarely succeeds?
Volenti (voluntary assumption of risk) because:
□ Employee is obliged to work where his or her talents lie.
□ Even when the employee may know that his line of work is dangerous, he or she is not taken to be truly willing to accept the risk that his or her employer will act negligently.
Employers L: other defences
Contributory negligence
ALSO: employees were sometimes compelled to perform repetitive dull tasks. In such circumstances, errors were understandable and would not amount to contributory negligence.
