Tort (Underlying Law) Flashcards
What are the 6 elements when considering a claim in negligence?
- Loss or Damage
- Duty of Care?
- Breach of Duty
- Causation
- Remoteness
- Defences
How to ascertain a duty of care?
- Consider whether there are any existing authorities establishing a duty in the factual situation (Precedent)
- If no precedent, a duty should be imposed by drawing analogies with existing cases
- When considering novel cases, the law develops incrementally considering (a) proximity between C and D; and (b) whether it would be fair, just and reasonable.
Do road users owe a duty of care to other road users?
Yes, a duty to not cause physical injury by careless driving.
What is the general rule relating to omissions?
No duty is imposed on a mere failure to act (omission) unless an exception applies.
For example, a stranger sees a child drowning, there is no legal obligation on that stranger to try to rescue them.
What are the five exceptions to the rule against liability for omissions?
- Statutory Duty
- Contractual Duty
- Sufficient Control over C
- D assumes responsibility
- D creates the risk
When do the ambulance service owe a duty of care in relation to omissions?
They owe a duty of care to respond to a 999 call within a reasonable time.
However, a duty may not be breached if there are more pressing emergencies to which they attend before C.
An ambulance service when responding to a call is not acting in pursuance of a public duty but a duty to the caller. However, note the assumption of responsibility** arose from the assurance and not merely the picking up of the call.**
When do the police force owe a duty of care in relation to omissions?
The police owe no duty of care to respond to emergency calls.
However, if a promise is made by a call handler that the police will respond immediately, that could result in an assumption of responsibility
When do the fire brigade owe a duty of care in relation to omissions?
The fire brigade owe no duty of care to attend a fire
However, if they do attend a fire, they owe a duty not to make the situation worse through a positive act.
Can the existence of a statutory power give rise to a duty on the part of a public authority to exercise the power?
In other words, does an omission to exercise a public power (e.g. re-tarmac the road) give rise to liability if C is injured?
No. The liability of public authorities for omissions is the same as individual liability for omissions.
The mere existence of a statutory power cannot found a positive duty to act.
There are only two options for bringing a case against an authority for failing to confer a benefit, either:
(a) the public authority assumed responsibility or that
(b) the public authority made things worse
What effect does a ‘special relationship’ have on the omission rule?
Relationships in which a duty to take positive action typically arises:
- contract
- fiduciary relationships
- employer and employee
- school and pupil
- health professional and patient
- parent and child
- landlord and tenant
- occupier and visitor.
What is the impact of creating a risk on the omission rule?
If A creates a risk of physical harm to B, and A knows or ought to know of the existence of this risk, then A is under a duty of care to protect A from the consequences of that risk
When does sufficient control lead to liability for an omission?
If A has control over a person or object, this justified a duty upon A to take care to protect B from foreseeable risks of physical harm connected with the person or object.
For example, a youth prison officer responsible for young boys on a trip to the harbour owes a duty of care to those who own yachts to ‘control’ the boys and prevent then causing damage
What is the general rule relating to liability for preventing a third party causing harm? Are there exceptions?
Generally, tort imposes no liability on those who fail to prevent a third party causing harm to another.
However, there will be a duty to prevent where….
(a) D assumed responsibility to protect B and fails to prevent a third party
(b) D does an act that prevents another from protecting C (e.g. makes a drowing child swim towards them into a current rather than towards a lifeguard)
(c) A has a special degree of control over the source of the danger (e.g. Teacher over children)
(d) As status creates an obligation to protect C (e.g. parent/child)
What is the most convicting distinction between an omission and an act for understanding the operation of the law?
The reason for the imposition of a duty of care is between:
(a) Causing harm (making things worse); and
(b) Failing to confer a benefit (not making things better)
The general rule against omissions captures situations best described as (b) - the exceptions apply because they are illustrations of D ‘making things worse’ and therefore liability is imposed
What is the standard of care for a claim in negligence?
D must behave as a reasonable person would in all the circumstances.
D need not do EVERYTHING to prevent the harm. They must do what a reasonable person would do.
The test is objective (an impersonal reasonable person test) and the standard used is set by the act not the actor.
However, despite the objectivity, there has been a subjetivisation of the reasonable man in certain situations.
What standard of care is a learner driver held to?
The standard of an ordinarily competent driver.
We do not subjectivise the standar dof care to accomodate the actor being a learner.
What standard of care is a junior doctor held to?
According to the act undertaken, not the level of experience.
A uniform standard of care is applied for medical professionals - not the level at which they are acting
What is the professional standard of care?
Despite the objective test, there is subjectivity when it comes to professionals.
The professional (e.g. doctor) is judged on what the reasonable professional in that field would have done, not what the reasonable person on the street would have done.
For example, a solicitor is held to the standard of a reasonably competent solicitor.
Are children held to the reasonable standard of care as an adult?
No.
The standard is that of the reasonable child of the defendant’s age carrying out the act in question.
For example, it was held that the act of ‘play fighting’ with rubber bands that cuased injury (15 year old girl) was reasonable for a 15 year old since the act was common place.
Is the reasonable person when it comes to the standard of care in negligence adjusted for people suffering an illness or disability?
the standard may be adjusted to account for sudden illness and disability but Only if D was reasonably unaware of it.
Two examples…
- D suffers a stroke whilst driving. He was aware his consciousness had been impaired. The standard was the reasonably competent driver, not of one who suffered a stroke. He was guilty of negligence.
- A lorry driver was unaware he suffered a hypoglycaemic attack and crashed - since he was unaware, he was judged according to a reasonably competent driver who is unaware of the impairment. He was not guilty of negligence.
What relevance does liklihood of harm have on the question of whether there is a breach of duty?
The more likely someone may be harmed, the more likely there will have been a breach
For example, the chance of being hit by a cricket ball in Bolton was so slight (6 times in 30 years) that there was no breach - the reasonable person need not guard and take precuations against every slight risk.
Is the likliehood of harm is generally low, but high for a certain category of person, is this indicative of breach?
Probably.
In Haley a C (a blind person) fell down a pavement hole. Despite many precautions for fully sighed people, the risk of causing injury to blind people was not so slight that it was irrelevant.
D must tailor their ‘precautions’ in light of characteristics of people who they know might be affected.
Does the magnitude of harm impact breach? If so, how?
If an injury may occur that would be serious, greater care is needed than if risk was of more minor injury.
For example, if D knows C only has one eye, and fails to provide goggles in a factory, despite the risk of injury being small the consequences of an object hitting the remaining eye result in injury is so great (blindness) that greater care should have been taken.
To what extent must D take precuations against forseeable risk?
Only practical and reasonable precautions.
For example, if a factory floods, and D puts down tonnes of sawdust, the only true way to avoid all risk of injury would be to close the factory but for such a slight risk (e.g. of slipping) that would be disproportionate and unreasonable
What is the approach to socially desirable activities that give rise to what seems to be a breach of duty?
For example, D tries to disarm a bomb but does so negligently and it explodes.
- If D takes a risk with the aim of protecting life, limb or property, this may be justified if the benefits outweigh the possible damage.
- The Social Action, Responsibility and Heroism Act 2015 requires courts to take into account benefit for society, the approach towards protecting the saftey and interests of others and whether the alleged breach occrued when acting ‘heroically’
What is the state of the art defence?
When assessing breach, courts must assess actions against the knowledge in the profession accepted at the time of the alleged breach.
For example, if an act relating to medical knowledge took place in 1940 and the ‘development’ in knowledge came in 1970, D must be judged according to what was ‘reasonable’ to a reasonable medical professional in 1940
What is the general principle when it comes to determining whether there has been a breach of duty in sports?
Nothing short of reckless disregard for Cs safety would constitute breach.
On whom does the burden rest to prove breach of duty of care?
The burden is on C to prove breach on the balance of probabilities.
What impact does s.11 Civil Evidence Act 1968 have on Cs trying to prove a breach of duty?
If the incident caused C injury to result in a criminal prosecution against D, C can use the conviction as evidence of careless conduct.
For example, a criminal conviction of dangerous driving (relating to the same incident) could be adduced as evidence of breach of duty.
What is the standard of care for medical professionals diagnosing and treating?
Bolam Applies:
Did D act in accordance with a practice accepted as proper by a responsible body of professionals skilled in that art
D will not have breached their duty of care if they acted in accordance with ‘a practice accepted as proper by a responsible body of medical men’ skilled in the area.’
This is true even if another body of medical opinion would adopt a different course of action.
This does NOT apply for medical advice, information relating to risks or suggesting alternative treatments
What is the standard of care for medical professionals providing advice, information relating to risks & alternative treatments?
Montgomery Applies:
The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
This means….
- The patient is entitled to be told of risks where necessary for them to make an informed decision
- Information provided must be comprehensible, including the benefits and risks
However, there are three exceptions:
- Patients can refuse to be informed about the risks
- Therapeutic exception: A doctor will not be liable for failing to inform a patient if doing so would be seriously detrimental to the patient’s health.
- Circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious
However, note that when it comes to deciding whether an ‘aternative treatment’ is reasonable (and should be brought to the attention of C) Bolam can apply - if a doctor has taken a view that it is not a reasonable alternative, it need not be brought ot the attention of C.
What is the factual test of causation in tort?
On the balance of probabilities, but for Ds breach of duty, would C have suffered their loss at that time in that way?
If the chance of breach of duty causing loss is less than 51% (e.g. 49 or 50%) can there be factual causation?
No - if there is less than a 51% chance Ds breach caused the loss, the accident (probability wise) might have happened anyway. The claim will fail.
What if loss could be caused by any one of five equally probable factors, is there factual causation?
Wilsher v Essex
No.
If the injury/loss could be caused by any five equally probable factors, C can only prove 20% probability.
51%+ is needed
What is the test of factual causation where, in clinical negligence, the breach is failure to advice on risk?
Chester v Afshar
The but for test is satisfied if C can prove that on the balance of probabilities, if they would have been warned of the risk, they would not have had the operation or deferred to a later dare.
What is apportionment?
Where there are multiple tortious factors, apportionment is the calculation to apply once factual causation is established to apportion liability between Ds representative of fault.
For example, if C crosses the road and is hit by two seperate drivers (D1 and D2) who were racing, each D may be responsible (e.g. 25% each).
How are mesothelioma cases dealt with when it comes to apportionment?
s.3 CA 2006 hold that Ds are jointly and severally liable.
Any or all negligent employers who exposed C to asbestos will be liable for to C for the whole sum of damages, but can recover contributions from eachother to make distribution of loss fair.
For example, if C worked for d1,d2,d3,d4 AND contracts mesothelioma, it need not be shown that only D1 caused the disease. It is sufficient to show that if asbestos could have been caused by the negligence of d1,d2,d3,d4, then they are jointly and severally liable.
What if D1 causes loss, and then D2 is negligent but doesn’t cause additional damage?
For example, D1 collides with Cs car causing damage. D2 then collides with the car but doesn’t cause additional damage (e.g. hit the same area that needed repair)
Performance Cars
If D2 doesn’t cause additional damage, D2 is not liable.
What if there are two tortious events, with the second injury causing the same or worsening the damage?
For example, D1 injures Cs leg. D2 later shoots C hitting the leg and causing it to be amputated.
Baker v Willoughby
If there are two tortious events…
- D1 remains liable for the original injuries even past the point of the second event - simply, the second tortious event does not end D1s liability.
- D2 compensates additional losses caused (not the original injuries)
This doesn’t apply if the second event is a ‘natural event’
What if there are two tortious events, with the second injury causing the same or worsening the damage due to a natural event?
For example, C injures their back due to D1s negligence. C later develops an illness (unconnected to D1) and is unable to work.
Ds liability ceases at the point of further injury (e.g to the back) due to the natural cause.
If the second event is naturally occurring, D is liable for damage only up to the natural event
What acts can break the legal chain of causation in tort?
- Acts of God - Natural Events
- Acts of Third Parties
- Acts of the Claimant
When will an act of god break the legal chain of causation?
If damage is caused by some exceptional natural event such as being struck by lightening, drowning in a flood or the onset of a natural disease.
However, such an event will not break the causal chain if they could have been forseen and D should have taken them into account (e.g. leaving C on a tidal beach who then drowns)
When will an act of a third party break the legal chain of causation?
If the third parties act was highly unforseeable as a result of Ds negligence.
For example, D causes a road accident. A third party (police officer) then negligently directs the traffic down the tunnel the wrong way. C is hit by the oncoming traffic. The third party act was so unforseeable that it broke the chain of causation.
When would the act of a medical professional (third party) giving treatement break the chain of causation>
The courts are reluctant to allow medical treatement to break the causal chain.
Only if the treatment is so gross and egregious as to be unforseeable.
When will an act of a claimant break the legal chain of causation?
Cs act must be highly unreasonable.
For example, if C breaks their leg due to Ds negligence but tries to descend a steep staircase without a handrail and falls, D will not be liable for the injuries caused by the fall since the act was so unreasonable.
However, if C acts carefully (e.g. using a stick or relying on someone) then reasonable actions will not break the causal chain.
What is the effect of a novus actus interveniens breaking the legal chain of causation?
D will still be liable for loss before the intervening act.
However, D is not liable for loss after the chain of causation is broken.
What is the tortious test of remotness?
C can only recover if the type of damages suffered was reasonably forseeable at the time D breached their duty.
What does ‘type of damage’ mean in the test of remoteness?
D ought to have forseen the type of damage suffered, not just that damage will be suffered.
Whilst some cases construe this narrowly (e.g. forseeing pollution not fire is too remote), most cases construe this more broadly (e.g. personal injury, property damage etc…)
Must psychiatric injury be reasonably forseeable to recover damages? In other words, is only forseeing physical injury too remote?
No.
In Page it was established that the type of harm forseeable need only be personal injury.
It matters note that the specific type of harm was not forseeable (e.g. pyschiatric harm) so long as some ‘personal injury’ defined as either physical or psychiatric is.
For remotness, does D need to/ought to forsee the exact way the damage occurs?
No. All that matters is the type (e.g. personal injury)
Likewise, D need not forsee the extent of the damage. For example, if a minor explosion causing minor injuries is reasonably forseeable, the damage doesn’t become too remote just because the magnitude was not.
What is the thin skull rule?
In remoteness, the damage can be aggravated by Cs own weakeness since D must take the victim as they find the,
For example, if D negligently burns C who then develops the onsent of pre-existing malignant cancer, the fact that D forsaw the original injury (burns) they are responsible for anything that flows from the injury - even the greater damage due to the pre-existing condition.
Can volenti be used as a defence by motorists facing claims from passengers?
No. This is an exception to volenti.
s.149 Road Traffic Act prevents use by motorists facing claims from passengers.
What is required for a patient to ‘consent’ to risk of injury in the medical negligence setting?
Nothing short of agreement to waive a claim for neglgience will suffice
Knowledge of the risk of ijury is insufficient.
Can a business exclude or limit liability for death or personal injury (and claim that C consented to the risks due to the inclusion of such terms?
Under UCTA and CRA a business cannot limit liability for death or personal injury
For boh provisions, a voluntary acceptance of risk cannot be assumed merely because the consumer agreed or knew about terms purporting to exclude or restrict liability.
What is contributorty negligence?
If the damages is partly due to Cs own fault, abut it isn’t so unreasonable as to break the causal chain, then Cs damages can be reduced by a percentage to reflect their contribution.
What must D show to reduce the damages payable under contributory negligence?
D must show that…
- C failed to take reasonable steps for their own safety (Objective Standard); and
- Cs failure contributed to their damage
However, remember that an allowance is made for Cs who have been placed in an emergency, rescuers and children.
C is in a car and believes it is about to crash due to the driver losing control.
She jumps out at the last minute.
If C is acting reasonably (to save her life) can she be found to be guilty of contributory negligence?
No, this falls under the ‘emergency or difficult decision’ exception
D will not be contributorily negligent if they are acting to try and save themselves.
When will a rescuer be held to be contributorily negligent?
Resucers are usualyl protected if they do what a resucer would usually do (e.g. knowingly descending into a room with fumes to try and save workers)
However, such a protection may not be justified if the ‘rescuer’ created the dangerous situation in the first instance
How does the age of C impact contributory negligence?
If C is a child, the court will consider their age to determine the standard of care.
For example, a 13 year old must act reasonably, judged according to what a reasonable 13 year old would do.
For contributory negligence, must Cs fault contribute to the accident or the damage?
It need not contribute to the accident, only the damage.
For example, failure to wear a helmet whilst riding a bike will not contribute to the accident. However, it may contribute to the amount of damage caused. It is the ‘damage’ that is operative for contributory negligence
How does the defence of illegality work?
The defence may be oeperative if C committed an illegal act.
If C committed an illegal act (applying Patel v Mirza) D may argue that the defence of illegality provides a complete defence so that there is no liability.
The court must consider (a) the purpose of the prohibition transgressed - will it be enhanced by denying the claim?; (b) public policy factors that denying the claim may impact; and (c) whether denying the claim is proportionate to the illegality.
Proportionality takes into account the seriousness of the conduct, the centrality to the tort and culpability.
Having considered (a)-(c) it is at the discretion of the court whether to allow the complete defence or not.
What are the aim of damages in tort law?
To put C in the position they would have been in but for Ds tortious act as far as possible with an award of money.
It seeks to restore C to the position before the tort happened.
What are the two types of compensatory damages?
- Special Damages > Provable and Quantifiable financial losses at the time of trial (e.g. loss of incurrings before the trial
- General Damages > Future Financial Losses that cannot be specifically proven, or non-quantifiable losses such as compensation for physical injury.
What are examples of special damages?
- Loss of earnings from injury up to the date of trial (C can calculat)
- Costs of repairing a car (that has already been repaired before trial)
- Expenses incurred relating to medical costs up to the date of trial
Special damages are those incurred/quantifiable up until trial!
What are examples of general damages?
- Compensation for pain and suffering
- Loss of earnings after the trial
- Cost of adapting a house
- Medical expenses after the trial
These are all FUTURE financial losses and non-quantifiable losses
How do damages for PSLA (Pain, Suffering & Loss of Amenity) work?
Damage for pain and suffering cover simply the pain/suffering as a consequence of the tortious act.
Damage for loss of amenity compensate the effect of the injury on lifestyle (e.g. no longer able to walk)
These are seperate but are expressed as one overall single lump sum.
Case law is used as a source of reference when quantifying compensation. The primary publication is Kemp and Kemp.
How are continuing future losses quantified?
For example, future loss of earnings or recurring medical expenses.
Using the Multiplier/Multiplicand Approach
- Take the Multiplicand (the net figure being lost each year) for example, a £30,000 salary
- Multiply the figure with the amount of years C is expected to lose out on the multiplicand (e.g. C is 30, will retire at 65, so 30,000 x 35 = £1,050,000)
- Adjust the figure downwards, by assuming that the amount will be invested. In other words, we assume a lesser multiplier so that investment wouldn’t exceed the sum. Use the Ogden Tables for this figure.
For example, imagine the Ogden Tables reduce 35 to 22.78 - this becomes the new multiplier. £30,000 x 22.78 = £683,400 awarded.
What damages are available if C dies as a result of the tort under LR(MP)A 1934?
Per LR(MP)A 1934, the ‘estate’ may bring a claim for any losses (pecuniary and non-pecuniary - suffered by the deceased as a result of the tort up to the date of death
Note…
* No damages post-death are recoverable
* There is no claim for the death itself
What damages are available if C dies as a result of the tort under the Fatal Accidents ACt?
The Fatal Accidents Act allows dependants of the deceased (close blood relations, related by marriage or cohabitees of 2 years) to bring a claim for any lossess suffered as a result of the death, if the death was caused as a result of a fatal accident.
For example, for loss of financial support if the deceased earned a wage that contributed to their life.
In addition to loss of financial support, the FAA also allows claims by a* spouse, civil partner, cohabiting partner or parents of an unmarried minor* to claim bereavment damages and recover funeral expenses
What duties does an employer have for their employee?
They owe personal and non-delegable duties.
Employers are directly directly liable if those entrusted with responsbility fail to exercise reasonable care in respect of employee safety
What are the four key duties of an employer?
To provide….
- Safe and competente employees
- Safe and proper plant and equiptment
- Safe palce of work/premises including safe access
- Safe systems of work, with adequate supervision
An employee injuries a fellow employee, what routes could C take?
C could…
- Bring a claim against the employer for breach of their primary duty
- Bring a claim against the employee who caused harm
- Bring a claim against the employer for vicarious liability
If an employer devises a safe system of working, is that sufficient to discharge their duty of care towards employees?
No. The employer must take reasonable steps to ensure it is complied with.
For example, providing protective equiptment may not be sufficient if they fail to encourage and insist on the employees wearing the goggles.
Does the duty of an employer to provide safe premises of work extend to third party premises?
Yes, many employees work on premises not owned or occupied by the employer. However the duty extends to such premises.
For example, a window cleaning company could be liable if they failed to take reasonable steps to ensure the locations where window cleaners went to work were safe.
What does it mean to be vicariously liable?
One party is held liable for the torts of another arising due to the special relationship between parties.
It is a form of secondary liability.
There is no need to prove fault on the part of the vicariously liable defendant. It is strict liability.
What relationhsip is requried for a party to be vicariously liable?
Party A committed the tort.
Party B will only be vicariously liable if the relationship between A and B is either….
(a) One of employment; or
(b) One **akin to employment **
In addition to an employment aspect, what else must be satisfied for vicarious liability?
The tort must have been carried out in the course of employment.
Ultimately, it will be in the ‘course of employment’ if there is a sufficiently close connection between the wrongful act and employment.
This requires consideration of (a) the dunction and field of activities the employer entrusts the employee; and (b) the connection between the act and such function/field.
What are some examples that indicate a close connection between the nature of employment and the tort for vicarious liability?
- Tort committed on the employers premises during working hours
- The tort was committed whilst performing employment duties
- The tort was expressly or impliedly authorised by the employer
- The tort was incidental to the carrying out of proper duties; or
- It was an unauthorised way of doing an authorised act
A good question to ask is whether the employee took their “metaphorical uniform”
Employee is smoking whilst filling his companies lorry up with petrol (during working hours) - it causes an explosion.
Could the employer be vicariously liable?
Yes
The tort is committed when the employee was doing an authorised act (filling the lorry up) in an unauthorised manner (smoking)
A milkman is driving a milk float.
The milkman was prohibited from allowing children to ride the float by the employer
The milkman allowed the child to help with the milkround - the child was injured.
Is there vicarious liability?
Yes, because the child was assisting with the milkround, the employee was conducting an authorised act (the milkround) in an unauthorised manner (allowing a child to assist) - therefore the employer is liable.
If the milkman was using the float for non-authorised purposes (e.g. to drive the child to the shop) arguably that would be an unauthorised act and an unauthorised manner and therefore the employer would not be vicariosuly liable.
If an employee goes off on a frolic of their own, will an employer be vicariously liable?
No.
If the act and manner are unauthorised (e.g. joy riding using a companies lorry) there will be no vicarious liability.
Much turns on the extend of the employees authorised duties, the time of the tort (was it during working hours?) and the extent of the deviation from what was authorised.
Can an employer who is sued for being vicariously liable seek something from their employee who committed the tort?
Under s.1(1) Civil Liability (Contribution) Act 1978, an employer is able to seek an indemnity from their employee should they be forced to pay damages due to the employees tort.
A court will only allow a claim if it is ‘just and equitable’ to do so.
This right of contribution is rarely used by insurers under a gentleman’s agreement not to sek employee contribution unless there was wilful misconduct or collusion.
What factors indicate an employment relationship for vicarious liability?
- Remuneration in exchange for services and mutuality of obligations (e.g. employer must provide work for the employee, and the employee must do that work)
- Control (e.g. providing the tools, deciding who works where and when)
- Other contractual factors such as Tax/PAYE treatment, integration with the organisation, benefits such as annual leave, equiptment being used (e.g. company laptop)
