SQE - Tort Law (copy)

What are the elements of a tortious claim?

• Loss or damage of a recognised kind

• Duty of care

• Breach of duty

• Causation (both in law and in fact)

• Remoteness ( the damage suffered was reasonably foreseeable)

• Defences

What are the types of tortious loss?

• Physical / bodily injury

• Psychiatric harm (recognised mental illness)

• Property damage

• Consequential economic loss (as a result of injury)

• Pure economic loss (i.e bad investment advice)

What is the significance of the case Donoghue v Stevenson [1932] AC 562 in tort law?

It was the first case to establish a test for duty of care, where the House of Lords recognized that a manufacturer owed a duty of care to the ultimate consumer even where they weren’t in direct contract.

What was the three stage test for duty of care established in Caparo v Dickman?

The Caparo test is used where there is not a precedent establishing a duty of care already.

• foreseeability of harm

• proximity of relationship

• whether it is fair, just, and reasonable to impose a duty.

What did the case of Nettleship v Weston establish with regard to a duty of care owed by drivers?

Established that a driver (road user) owes a duty of care to other road users to avoid causing physical injury through careless driving.

What did the case of Cassidy v Ministry of Health establish with regard to a duty of care owed by medical professionals?

Established that medical professionals owe a duty of care to their patients once they have accepted them for treatment.

What did the case of Baker v T.E. Hopkins & Son Ltd establish with regard to a duty of care owed to those who are rescuing others?

Established that a duty of care is owed to a rescuer if it is reasonably foreseeable that someone would attempt to rescue those in danger.

What did the case of Robinson v Chief Constable of West Yorkshire Police establish with regard to a duty of care owed by the police?

Established that the police owe a duty of care to the public to protect them from reasonably foreseeable physical injury when carrying out an arrest.

What did the case of Watson v British Boxing Board of Control establish with regard to a duty of imposed on the organisers of sporting events?

Established that the organization responsible for setting safety regulations owes a duty of care to ensure that appropriate medical attention is available during sporting events.

Is a duty of care owed for a failure to act?

Generally no, however there are 5 exceptions:

1. Duty imposed by statute (e.g occupiers liability)

2. Contractual duty

3. Sufficient control (e.g control of children or police and suicide watch)

4. Assumed responsibility (e.g taking care of someone drunk)

5. Defendant creates the risk (e.g knew of danger creating a fire)

What duty of care does the ambulance service owe according to Kent v Griffiths & Others

The ambulance service owes a duty of care to respond to a 999 call within a reasonable time.

Does the fire brigade owe a duty of care to attend a fire?

No, the fire brigade owes no duty of care to attend a fire, but if they do attend, they owe a duty not to make the situation worse through a positive act (Capital and Counties plc v Hampshire County Council

Does the police force owe a duty of care to respond to emergency calls?

No, the police owe no duty of care to respond to emergency calls (Alexandrou v Oxford)

What is the general rule regarding duty of care for preventing third-party harm?

The general rule is that there is no duty of care owed for failing to prevent a third party from causing harm to another.

What are the exceptions to the rule that there is no duty of care owed on behalf of third parties causing harm to another?

1. There is sufficient proximity between the defendant and claimant;

2. There is sufficient proximity between the defendant and third party;

3. The defendant created the danger;

4. The risk was on the defendant’s premises.

What duty of care was established in Stansbie v Troman in relation to a third party decorator?

A duty of care was established where the defendant decorator owed a duty to the property owner to prevent burglary by securing the building, creating sufficient proximity between the defendant and claimant.

What did the court rule in Home Office v Dorset Yacht regarding proximity and liability of third party escapee’s in their control?

The court held that there was sufficient proximity between the defendant (Home Office) and the claimant (Dorset Yacht Co) because the claimants were identifiable victims at particular risk due to the borstal boys’ history of escape.

How was proximity established in Swinney v Chief Constable of Northumbria in relation to police and informers?

Proximity was established because the police assumed responsibility to protect the claimant (an informer) from the criminal she provided evidence against, making her an identifiable victim.

Why was no duty of care owed in Hill v Chief Constable of West Yorkshire relating to the Yorkshire Ripper serial killer?

No duty of care was owed because there was insufficient proximity between the police and any woman as a potential victim of the Yorkshire Ripper, making the victim an unidentifiable member of a large group.

Why was no duty of care owed in Palmer v Tees Health Authority regarding a previous patient who had left their mental facility?

No duty was owed because there was no sufficient proximity between the authority and the psychiatric patient at the time of the harm, as the patient was not under the authority’s care and control when the harm was committed.

What was the outcome in Smith v Littlewoods regarding liability for risks on the defendant’s derelict premises?

The defendant was not liable because they did not know of the danger (vandals entering and starting a fire) and it was not foreseeable (there had been no previous break-ins), so no duty of care was owed.

What duty of care was imposed in Phelps v Hillingdon London Borough regarding education and dyslexia diagnosis?

A duty of care was imposed because the local authority assumed responsibility for a child's educational services, making them liable for the misdiagnosis of the claimant’s dyslexia.

Why was a duty of care imposed in Jebson v Ministry of Defence regarding drunken soldiers and the commander?

The duty of care was imposed because the camp commander impliedly assumed responsibility for the safety of soldiers during a return trip, leading to liability when the claimant was injured due to inadequate supervision and transport.

What is the general rule for determining the standard of care in negligence cases?

The defendant must behave as a reasonable person would in all the circumstances, applying an objective standard rather than considering what could reasonably be expected of that particular defendant.

What was established in Nettleship v Weston [1971] regarding learner drivers?

A learner driver is judged by the standard of the ordinarily competent driver, with no allowance made for their inexperience.

How did the court rule in Wilsher v Essex AHA [1986] regarding junior doctors?

Junior doctors are judged according to the standard of a reasonably competent doctor, not based on their level of inexperience.

How is the standard of care adjusted for children in negligence cases?

Children are required to meet the standard of care expected of a reasonable child of the same age, as illustrated in Mullin v Richards [1998].

What did the court decide in Bolam v Friern Hospital Management Committee [1957] regarding professional standards?

The standard of care for professionals is based on what a reasonable professional in that field would do, not on the ordinary person standard.

What factors are considered in determining the standard of care for those with illness or disability?

The standard may be adjusted if the defendant was reasonably unaware of their impairment, as seen in the driving cases of Mansfield v Weetabix Ltd (hypoglycaemic attack), but not if they were aware, as in Roberts v Ramsbottom (suffered a stroke and then drove but knew)

What is the significance of the case Condon v Basi [1985] in sports law and the differentiation between professional players and non-professionals?

The standard of care in competitive sports is objective but may vary according to the level of competition, with higher standards expected at higher levels.

What are the two stages in determining whether there has been a breach of duty?

1. First, establish the standard of care expected of the defendant (a question of law).

2. Second, has the defendant fallen below that standard (a question of fact).

How does the court assess the likelihood of harm in determining a breach of duty?

The more likely someone is to get injured, the more likely it is that there will be a breach. Precautions must be taken against risks that are reasonably likely to happen, as seen in Bolton v Stone [1951].

What are the relevant factors to consider when assessing breach of duty?

• The likelihood of harm

• The magnitude of harm

• The practicality of precautions

• Any benefit of the defendant's conduct

• Common practice

• The 'state of the art' at the time of breach

How does the magnitude of harm affect the determination of a breach of duty?

Greater care is required if the potential injury is serious, even if the likelihood is small, as demonstrated in Paris v Stepney Borough Council [1951], where the risk of blindness required higher precautions.

What is the significance of practicality of precautions in determining a breach of duty?

The court considers how easily the risk could have been avoided, balancing the cost and practicality of precautions against the severity of the risk, as in Latimer v AEC Ltd [1953] - the practicality of making the floor completely ‘un-slippy’ after a flood was not reasonable.

If a risk is taken but the overall outcome benefits society, will the court be more lenient?

Yes, if the defendant's conduct benefits society, especially in emergencies, taking risks may be justified, as in Watt v Hertfordshire County Council [1954] (a fireman was injured trying to save a lady and this was considered to be justified).

The court also considers the Compensation Act 2006 and Social Action, Responsibility and Heroism Act 2015 in such cases.

How does common practice relate to the determination of a breach of duty?

If a defendant follows common practice in their field, this may favor their defense, but the court can still rule that the practice itself is negligent.

What is the 'state of the art' defense in negligence cases?

The defendant's actions are assessed against the knowledge and practices at the time of the alleged breach e.g in medical terms.

How does the court view breaches of duty in sports?

In sports, breaches occur only when there is reckless disregard for safety. The court considers the demands of the game and risks taken in the heat of the moment.

Who bears the burden of proving a breach of duty?

The claimant must prove that the defendant breached the duty of care on the balance of probabilities, which may be supported by a criminal conviction or the maxim res ipsa loquitur (‘the facts speak for themselves’) in certain cases.

What is the Bolam Test, and when is it applied?

The Bolam Test determines whether a professional has fallen below the standard of care by assessing if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular field. It applies to both medical and non-medical professions.

How did De Freitas v O’Brien and Connolly [1995] define a responsible body of opinion in relation to the Bolam Professionals test?

A responsible body of opinion does not need to represent the majority but must be an acceptable one. In this case, 11 out of over 1,000 surgeons supported the defendant’s decision, and it was considered a responsible body of opinion.

Can a common professional practice be negligent even if it is commonly accepted?

Yes, as per Bolitho v City and Hackney Health Authority [1997]. The principle that even a common professional practice can be found negligent if it does not withstand logical analysis. The practice must be responsible, reasonable, and logically defensible.

What is the 'but for' test in factual causation?

On the balance of probabilities (more than 50%), but for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in that way?

In what circumstances might the 'but for' test fail?

When there are multiple possible causes for the loss, and it cannot be shown that the defendant's breach was more likely than not to have caused the loss (e.g., Wilsher v Essex AHA).

How does factual causation apply in clinical negligence cases where the breach is a failure to advise on risks?

In such cases, the 'but for' test can be satisfied if the claimant proves that they would not have undergone the treatment, or would have deferred it, had they been warned of the risks (e.g., Chester v Afshar).

What is the material contribution test with reference to factual causation?

The material contribution test applies when multiple causes cumulatively contribute to the claimant's loss. If the defendant's breach materially contributed to the loss, factual causation is established, even if the 'but for' test is not satisfied.

How does apportionment work generally?

Apportionment is the process of dividing liability among multiple defendants who have caused part of the claimant's loss. Each defendant is held responsible for their respective fault in causing the damage.

Except in asbestos cases- all defendants are joint and severally liable.

How does apportionment work where there are multiple tortious factors?

The courts apportion liability between the defendants to produce a practical result, providing compensation to the claimant while recognising the respective fault of the defendants.

How does apportionment work where there are multiple tortious factors but they are separate?

• If the second defendant has not caused any additional damage to the claimant, they will not be liable.

• If the second event is tortious, the first defendant is liable for the original damage past the point of the second event. The second defendant is liable for any additional damage.

• If the second event is naturally occurring, the defendant is liable for damage only up to the natural event.

What is legal causation?

Legal causation involves determining whether there are any intervening events (novus actus interveniens) that break the chain of causation between the defendant's breach and the claimant's damage.

What is a novus actus interveniens?

A novus actus interveniens is an intervening act that breaks the chain of causation, meaning the defendant is not liable for any damage that occurs after the intervening act. (They are liable for losses before)

What are the three types of novus actus interveniens?

1. Acts of God or natural events

2. Acts of third parties

3. Acts of the claimant

How do acts of God or natural events affect legal causation?

Acts of God break the chain of causation if they are exceptional natural events that could not have been foreseen or taken into account by the defendant.

How do acts of third parties affect legal causation?

Acts of third parties break the chain of causation if they are highly unforeseeable and not a natural consequence of the defendant's breach.

How does medical treatment as an act of a third party affect legal causation?

Medical treatment generally does not break the chain of causation unless it is so grossly negligent and unforeseeable that it can be considered a novus actus interveniens.

How do acts of the claimant affect legal causation?

Acts of the claimant break the chain of causation if they are highly unreasonable. However, unreasonable behavior by the claimant is often dealt with through contributory negligence rather than breaking the chain.

What is the test for remoteness in tort law?

The test for remoteness is whether the type of damage suffered was reasonably foreseeable at the time the defendant breached their duty of care.

This is an objective test of reasonable foreseeability.

How does foreseeability of the exact way damage occurs affect liability?

Once the type of damage is foreseeable, there is no need to foresee the exact way in which the damage occurs. The defendant is liable if the type of harm is foreseeable, even if the specific events were not.

Is a defendant liable for the full extent of the damage if it was greater than expected (e.g an explosion when there was only a risk of fire?)

Yes, the defendant is liable for the full extent of damage if the type of harm was foreseeable, even if the extent of the damage was greater than expected.

What is the 'thin skull' rule?

The 'thin skull' rule states that the defendant must take the claimant as they find them, meaning the defendant is liable for all damages, even if the claimant's pre-existing condition or weakness exacerbates the harm.

What is the principle behind the defence of consent in tort law?

The principle is that "to which a man consents cannot be considered an injury" (volenti non fit injuria).

What are the four elements a defendant must prove to successfully use the defence of consent?

• The claimant had capacity to give valid consent to the risks.

• The claimant had full knowledge of the nature and extent of the risks (subjective).

• The claimant agreed to the risk of injury (subjective).

• The claimant agreed voluntarily.

Can the defence of consent be used by motorists facing claims from passengers?

No, and knowing a driver was under the influence does not imply consent to the risk of injury.

What is the summary of the defence of consent in tort law?

If a claimant has consented to the risk of injury, the defendant has a complete defence. To establish this, the defendant must prove that the claimant had capacity, full knowledge of risks, agreed to the risks, and agreed voluntarily.

If the defendant is raising a defence, on what basis to they need to prove this?

A defendant needs to prove a defence on the balance of probabilities.

What is contributory negligence?

occurs when a claimant's own fault contributes to their loss or damage, leading to a reduction in the damages they can recover.

What must be established for a finding of contributory negligence?

• The claimant failed to take reasonable steps for their own safety (objective)

• this failure contributed to the damage

If contributory negligence can be established, what is the impact on liability?

The claimants damages are reduced by a % the court thinks is just and equitable. It is a partial defence.

Can a claimant be found to be contributory negligent if they get in the car knowingly with a drunk driver?

There is no full defence of consent, but yes, a claimant can be found to be contributory negligent and have their damages reduced.

Are claimants who act in emergencies generally found contributorily negligent? What about rescuers?

No, allowances are made for claimants in emergencies or difficult dilemmas.

Rescuers are usually not found contributorily negligent, unless they negligently created the emergency.

How does the standard of care differ for children in contributory negligence cases?

The standard is adjusted to what is appropriate for the child's age

Does the claimant’s failure need to cause the accident for a defence of contributory negligence to apply?

No, the claimant's fault must contribute to the damage suffered, although it need not contribute to the accident.

Therefore, failure to wear a seat belt will be contributory negligent if wearing a seat belt would have reduced or avoided injury (Froom v Butcher [1976] QB 286) even though failing to wear the seat belt does not cause the accident.

What is the ‘illegality’ defence? ex turpi causa non oritur actio

This is a full defence.

It means that "no action may be based on an illegal cause." It bars claims where the claimant was involved in illegal activity at the time they suffered their loss.

What is the test for an ‘illegality’ defence?

1. Did the claimant commit an illegal (or grossly immoral) act at the time they suffered their loss?

2. Consider policy for supporting defence, policy for denying defence and whether denial would be proportionate?

What is the defence of ‘necessity’?

A complete defence that is applicable where the defendant acted to save a life, limb or property.

The defendant must prove they were:

1. acting in an emergency (preventing death or serious injury - subjective)

2. not at fault in causing the emergency

What are the two main remedies in tort?

• Damages

• Injunctions

What is the general rule for awarding damages in tort?

Damages are awarded on a compensatory basis to restore the claimant to their pre-tort position.

What are the two main categories of damages?

• Special damages (specific financial losses e.g loss of earnings, repairs)

• General damages (future losses and non-quantifiable losses e.g pain compensation, future loss of earnings).

Are payments made to the Claimant able to be deducted from a damages award?

Yes, State benefits, contractual sick pay, and redundancy payments, if they resulted from the injury are able to be deducted from the damages paid to the claimant.

Who is eligible to claim bereavement damages under the Fatal Accidents Act 1976?

The spouse, civil partner, cohabiting partner (2+ years), or parents of an unmarried minor.

How does the Law Reform (Miscellaneous Provisions) Act 1934 differ from the Fatal Accidents Act 1976 in relation to damages as a remedy?

Law Reform (Miscellaneous Provisions) Act 1934 allows the estate to claim damages for loss before the death.

Fatal Accidents Act 1976 allows the estate to claim damages for losses as a result of the death. These could include loss of financial dependency, fixed sum bereavement damages and funeral expenses.

What does ‘volenti’ mean?

Consent

What are the types of employer liability?

• Employers primary liability: liability to the employee

• Vicarious liability: libaility on behalf of the employees

What is employers' primary liability?

Where the employer is directly at fault for breaching their duty of care owed to an employee.

What is vicarious liability?

the employer being held responsible for the torts of their employees, even if the employer is not personally at fault.

What are the specific obligations included in an employer's duty of care according to Wilsons and Clyde Coal Co Ltd v English [1938] AC 57?

• Providing safe and competent employees

• Providing safe and proper plant and equipment

• Ensuring a safe place of work/premises, including safe access and exit

• Establishing safe systems of work with adequate supervision and instruction

What standard is applied to determine a breach of duty by an employer?

The employer's duty is to take reasonable care, measured by the standard of a reasonable employer in similar circumstances.

What is vicarious liability?

Vicarious liability is the liability of an employer for a tort committed by the employee, with no need to prove fault on part of the employer.

What are the three elements required to establish vicarious liability?

1. A tort has been committed by Party A (e.g negligence).
   

2. Party A is an employee or in a relationship akin to employment with Party B.
   

3. The tort was committed in the course of Party A's employment/quasi-employment.

When is a tort considered to be committed in the course of employment?

A tort is committed in the course of employment if there is a sufficiently close connection between the wrongful act and the employment.

Can an employer seek indemnity from an employee if held vicariously liable?

Yes, under the Civil Liability (Contribution) Act 1978, an employer may seek indemnity from the employee if it is just and equitable to do so.

What factors are considered when establishing an employment relationship?

• Remuneration

• Control

• Other contractual factors (tools, tax, labelling, benefits).

Who is liable if an employee is lent to another employer? (e.g a crane driver?)

There is a rebuttable presumption that the original employer remains liable but there may be a possibility of dual liability.

What are the three types of victims relevant to psychiatric harm cases in negligence?

• actual victims (suffered actual PI)

• primary victims (feared for their safety)

• secondary victims (feared for another’s safety)

What is ‘psychiatric harm’?

a type of loss in negligence:

1. a medically recognised psychiatric illness; or

2. a shock-induced physical condition (such as a heart attack).

What is a primary victim in the context of psychiatric harm?

someone who suffers psychiatric harm as a result of:

• a reasonable fear for their own physical safety and is involved in the traumatic event or within the danger zone (but doesn’t actual suffer physical injury)

What is a secondary victim in the context of psychiatric harm?

suffers psychiatric harm due to:

• fear for someone else's safety, not their own, and is not involved in the event or within the danger zone.

What is the 'floodgates' argument in restricting claims for psychiatric harm?

The 'floodgates' argument suggests that allowing too many claims could lead to a significant increase in the class of claimants, overwhelming the legal system.

How are rescuers treated in psychiatric harm cases?

Rescuers are classified as either primary or secondary victims. If they feared for their own safety, they are primary victims; otherwise, they are secondary victims and must meet stricter criteria to establish a duty of care.