TORT - Special duty problems Flashcards
1) Special duty problems - what are these?
PURE PSYCHIATRIC HARM
1)
- areas where CTS reluctant to establish duty of care owed by def to C
- special rules/restrictions created which must apply in order for a duty to be established
- 3 areas Pure psychiatric harm, pure economic loss and employers liability
- for all 3 rules determine if there is a duty, if found the other elements must still be satisfied, breach, causation, remoteness and defences
PURE PYSCHIATRIC HARM - PPH
- form of personal injury
- can claim for pure psychiatric harm without any accompanying physical injury PROVIDED it is a recognised psychiatric illness
- CAN’T recover for distress or grief MUST be diagnosed anxiety, depression or PTSD
- PPH must be distinguished from mental illness that is a result of physical injury or damage to property. This would be consequential economic loss and would fall under standard negligence
NEED TO ESTABLISH VICTIM
- PRIMARY VICTIM
- someone actually involved in incident
- someone actually in area of danger, or who reasonably believed they were in danger zone
- SECONDARY VICTIM
- not involved in incident
- witness injury to someone else, or fear for safety of another
APPLY RULES TO VICTIM TO SEE IF PPH CAN BE ESTABLISHED
- PRIMARY VICTIM
- where reasonably foreseeable defs negligence may cause physical harm to C, they can recover for any psychiatric harm they suffer, ie must have been at risk of PHYSICAL injury
- risk of PSYCHIATRIC harm does not have to be reasonably foreseeable
- Meaning if reasonably foreseeable Defs negligent act would result in any kind of PHYSICAL harm to C, if C actually suffers PSYCHOLOGICAL harm as a result of this, that IS ENOUGH. PSYCHIOLOGICAL harm itself does not have to be foreseeable.
- example def causes C to be involved in accident, no physical inj but does suffer from PTSD. PPH satisfied because physical injury reasonably foreseeable
- EEG SHELL RULE operates. Provide physical harm reasonably foreseeable if C suffers severe psychological injury because of per-existing disposition, def is liable to this.
SECONDARY VICTIM
- Must satisfy
1) Psychiatric injury suffered must be reasonably foreseeable, in person of ordinary fortitude in same circs
- eg if C suffers PPH in circs an ordinary person wouldn’t = no claim
- BUT is some psych harm foreseeable & eggshell rule operates so that C suffers more than normal person = Def will be liable
2) There must be a relationship with the immediate victim. Must be close tie of “ love and affection” between C and accident victim
- presumed for spouses, parents and children. Evidence required in respect of all others.
3) Must be proximity to accident or event which caused shock
- must witness or hear event or immediate aftermath
- Immediate aftermath = scene of accident or hospital as soon as it has happened
- can’t claim for event removed in time from original incident eg death some weeks after original negligent action.
4) Accident must have caused claimant to suffer recognised psychiatric illness
- must be causal connection between what C witnessed and harm they suffer
- accident does not have to be horrifying by objective standard - causation just needs to be proven
- Accident unexpected and unintended event caused by defs negligence, causing injury or risk of injury by violent means
- BUT CAN’T bring a claim if suffered psych illness caused by separate event far removed from original accident, eg death some weeks later, or id of body some days after an accident in a mortuary
- in addition SC recently ruled claimant cannot recover damages from a hospital if doctor misdiagnosed disease of a loved one, and loved one dies which they witness
- secondary victim claims have been limited to people who are actually at scene or immediate aftermath
- no liability to anyone merely told about shocking event by third party - inc newspaper and TV
- Police considerations used by CTS, if def is hospital or police, courts may be reluctant to find liability
RESCUERS
- someone sees accident and helps victim and suffer PPH
- no special rules
- Treated as primary victims, so these rules applied
- must be reasonably foreseeable that would suffer some physical harm when rescuing
- rescuer should be going into danger zone which is still dangerous, or reasonably believed he was exposing himself to a danger
PURE ECONOMIC LOSS (PEL)
- differs from consequential loss
- NOT consequent of any other type of harm
- It is financial loss stemming directly from harm caused by negligent act or omission
- no injury or damage to person or property required
GENERAL RULE
- PEL irrecoverable. D owes no duty to C to compensate them for any pure economic loss
EXCEPTION
- Negligent misstatement - C suffers loss base don reliance on a statement made by Def
- statement = quite broad - something said by Def, but can also cover negligent professional services - sol or accountant, any info or advice, or any info given impliedly by conduct.
- 3 principles must be established to apply
1) Fiduciary/special relationship must exist between D & C
- must be relationship of trust and confidence. Trusting advice/info/service on grounds of defs expertise knowledge
- mostly in business contexts
- purpose for which statement was made counts when establishing special relationship
2) Def giving advice/providing service has voluntarily assumed risk in giving advice or service
- UNLESS def has given disclaimer/exclusion of liability, they have taken on the risk that their advice/service is correct
- can be express or implied (conduct)
- eg submitting statement about someone negligently drafted
- disclaimer would be subject to CRA 2015 - fairness - consumer contract and written standard terms contract UCTA 1977 test of reasonableness
3) C relied on statement and such reliance is reasonable in all circs - fair, just and reasonable.
- reasonable
- info can only be relied upon for purpose for which prepared
- must be sufficient proximity between def and claimant - def owed duty to C
- Def WON’T owe duty if communication not intended for claimant, which links back to special relationship requirement
EXAMPLES of negligent misstatement which show how broad it can be
1) - employer receives reference - negligently and inaccurately prepared
- claimant not employed as a result
C suffered PEL and can sue as special relationship between Former employer and employee
C relied because gave def opp to submit statement, relying on statement o be accurate
2) Sol fails to draft new will or draft negligently
- person should of inherited doesn’t
- person suffers PEL
- can sue special relationship - sol and would be beneficiary
3) professional services contract - sol and client
- professional acts negligently
- can sue in tort and contract as special relationship applies
4) - indirect statement not made directly to C, but foreseeable, reasonable and fair for C to rely on statement
WHETRE PEL DOESNT APPLY
- can’t recover economic loss as a result of defective works to property (N o injury or property damage), or if buy property that turns out to be defective
- if defective property/defective works DOES then cause property damage - standard claim in negligence is used
- PEL does not apply where 3rd party property damaged and as a result C has suffered economically.
- C cannot recover from D as it is not their property that has been damaged and therefore not consequential loss
DEFENCES PEL
- can use disclaimer or exclusion of liability when providing statement or service
- disclaimer must have been brought to notice of C and working must actually cover loss caused by Negligence
- must not be excluded by CRA 2015 and UCTA 1977 - must be reasonable
- exclusion in addition to any other defence available to Def eg contributory negligence
EMPLOYER LIABILITY
- employer owes non-delegable common law duty and MAY be personally liable for harm caused to employees
- Non delegable = employer can still be liable even if manager/supervisor appointed to run business
- employer must show taken reasonable care to show all employees safe at work
HOW EMPLOYERS DISCHARGE DUTY TO TAKE REASONABLE CARE OF THEIR WORKFORCE
4 components
1) Competent staff
- employer duty to provide competent fellow workers
- liability when C injured by fellow worker - Inc Psych Inj - bullying
- employer potentially liable if knew or ought to have known member of staff posed risk to C, either because rubbish at job, risk fatal mistake or harassing bullying claimant for period of time
- employer also deemed to have known or ought to have known if haven’t reasonably taken steps to ensure their staff are competent.
- steps are
* good selection of staff
* adequate training provided
* Adequate supervision
* Dismissing employees who pose risk to other employees
2) Adequate plant and equipment
- duty to provide, instructions how to use and ensure kept in safe condition
3) Proper system of work
- must provide reasonably safe system of work
- must take reasonable steps to
* provide safe system of work
*ensure physical layout of office/factory safe
* work carried out in safe manner
* staff given sufficient training
* warning notices and safety equip should be laid out
- not enough to JUST provide safety equipment, needs to make efforts to ensure properly understood and used by claimant, and must be properly implemented
- must take reasonable steps to ensure safe system is complied with
* train employees to work safely
* supervise sufficiently
* monitor system at least at start
* discipline employees who don’t follow system
* continually make sure safe system complied with
4) Safe workplace
- reasonable care to provide safe place of work.
- Does not require completely safe as long a reasonable steps taken
- duty extends to places where employer sends employees to work
- safe workplace also means should not cause harmful stress to claimant.
- employee liable if harmful stress reasonably foreseeable, foreseeable if
* work very stressful or demanding, or
* sign that the employee is suffering from stress that employer knows or ought to know about;
*history of stress, or told employer struggling
