Unit A 4 Civil Law Flashcards
Tort
A ‘civil wrong’
Defamation, slander, trespass , negligence and BOSD Health and Safety related torts are negligence and BOSD Time limits apply – typically 3 years
Negligence
Failure to act as a reasonable man:
“Guided upon those considerations which ordinarily ‘regulate’ human conduct”
Failure to meet a Duty of Care:
Failure to avoid acts or omissions you can reasonably foresee are likely to injure your neighbour
Neighbour:
Persons who are so closely and directly affected by my acts that I ought to have them in my contemplation
Concept of ‘duty of care’
The ‘neighbour test‘-Donoghue v Stevenson The duty of care owed by:
Designers
Manufacturers and suppliers to customers /users Occupiers of premises to those visiting the premises Contractors to clients and vice versa
Extent of duty is bound by reasonableness and foreseeability Elevated duties to those who are vulnerable Paris v Stepney B.C. 1951-lost remaining eye!
Vicarious Liability
An employer may be held criminally or civilly liable for the acts or omissions of his employees
Even if they wilfully disobey instructions
Employees must be acting in the course of their employment
Master and servant
Rose v Plenty 1976 - milkman
The nature of an employers Duty of Care
To provide:
1. A safe place of work and safe access and egress 2.Safe systems of work
3. Safe plant, equipment and materials
4. Instruction, training and supervision
5. Competent fellow employees
Wilsons and Clyde coal v English 1938 -crushed by haulage plant
Main defences to claims of negligence
Denial No duty owed No breach of duty - not foreseeable, employer’s arrangements were reasonable Breach did not lead to damage Type of damage not foreseeable Volenti nonfit injuria (has limited application) Contributory negligence Time expired (Limitations Act)
Contributory Negligence
Where an individual contributes to his own injury Damages awarded may be reduced
Balance of ‘blameworthines s ’
Used tomitigatelosses
Udder v Associated Portland Cement 1965-pigeon rescue
Liability and foresight
Claimant may have contributed to own ill health Foreseeability is based on ‘current knowledge’ Courts will need to establish ‘date of knowledge’ Implications for employers and insurers
Need to assess status of ‘emerging risks’
Employer’s Liability Insurance
Employers ’ Liability (Compulsory Insurance) Act 1969 Amendment Regulations 2008
Employers MUST insure against liability for injury or disease to employees
Some exemptions
Minimum sum insured is £5m, although most commonly £10m Employers must display certificates at each place of business Must keep at record of previous cover and insurances for 40 years
Employers ’ Liability (Defective Equipment) Act 1969
Allows employees to seek damages from employer due to injuries sustained while us ing defective equipment
Defect to be partly or wholly attributable to a third party
Allows for employer(insurer) to recover damages from e.g. manufacturer, supplier
An example of vicarious liability
Davie v NewMertonBoard Mills 1959 -damaged chisel causing injury
Breach of a Statutory Duty
BOSD is a tort
Negates the need to prove negligence
Used in civil actions unless statute forbids it (HASWA S.47) Usually only applies to secondary legislation
Some regulations are ‘excluded’ or statute barred
Breach of Statutory Duty - Claimant must prove?
He/s he was within class of person statute was intended to protect The risk was of the type the statute was intended to prevent The defendant was in breach of duty The breach caused the injury
Double-Barrelled Actions
Claimant may pursue a civil claim for negligence and breach of statutory duty at the same time
Higher chance of success
If one action fails the other may succeed If successful only one award for damages is made
The main defences to the tort (delict) of BOSD
Statute-barred - HSWA, MHSWR and the CDM Duty not on the defendant No breach of duty Injured party not within the class of persons protected by the statute Harm not of the type that the statute was designed to prevent No causal connection between the breach and the loss suffered
Factors to be considered in the assessment of damages
General damages - pain & suffering
Special damages - actual losses
Other damages
Calculated by case Previous cases and payments considered
General Damages
Usually termed’ pain, suffering and loss of amenity
Examples include:
Physical or emotional pain and suffering Loss of companionship
Disfigurement
Loss of reputation
Loss or impairment of mental or physical capacity
Loss of enjoyment of life, etc.
Not easily quantifiable
Depends on the individual circumstances of the claimant May consider future implications (speculative)
Special Damages
Compensate for the quantifiable monetary losses (pecuniary)
Quantifiable and specific:
Costs
Repair or replacement of damaged property
Lost earnings (both historically and in the future)
Loss of irreplaceable items
Additional domestic cos ts , etc.
Includes amounts the claimant has already spent on medical treatment or support required to mitigate problems caused
The concept of joint tortfeasors
Tortfeasor - wrongdoer
Joint and several liability
More than one person identified as the tortfeasor
Judger will decide who is liable
Balance of blameworthines s
Recovery of damages from joint tortfeasors is usually from a single insurer
Personal Injury Action Protocol
Letter of claim: Summary of facts Details of loss The reply: Acknowledge within 24 hours The investigation: Defendant has max 30 days for EL claim & 40 days for PL claim to carry out investigations Reply must then be sent - admission, denial, partial admission
Occupiers Liability Acts 1957 & 1984
Statutory duty providing civil remedy only
1957-1984:
An occupier owes a ‘common duty of care’ to all lawful visitors
1984 on:
Extended to cover trespassers if:
Occupier is aware of a danger
Occupier knows trespassers may be gaining access
Occupier might reasonably be expected to do
something about the risk Discharging duty by giving warning is potentially limited? Herrington v BRB 1972-child through fence; breach in fence known about
Decided cases (1)
Bradford v Robins on Rentals Ltd 1967
British Railways Board v Herrington 1971
Caparo Industries Plc v Dickman 1990 - three-fold test (harm must be reasonably foreseeable; relationship & proximity; fair, just &
reasonable)
CornvWeirs Glass (Hanley)Ltd1960
Davie v New Merton Board Mills Limited 1958 Donalds on v Hays
Distribution Services Ltd 2005 Donoghue v Stevens on 1932 Herrington v British Railways Board 1972
Decided cases (2)
Latimer v A E C L t d 1 9 53
MerseyDocks &HarbourBoardvCoggins &Griffith(Liverpool)Ltd 1 946
Paris v Stepney Borough Council 1951
Rose v Plenty 1976
Sutherland v Hatton and others 2002
Thompson & others v Smiths Ship Repairers 1984
Wilsons and Clyde Coal Co v English 1938
