FLK1 - tort (copy)

Elements of negligence claim

Loss

Duty

Breach

Causation

Remoteness

Defences

Standard of proof re tort?

Balance of probabilities

When is there duty of care?

If precedent, YES. If not, use Caparo v Dickman;

1. (Objectively) reasonably foreseeable that lack of care would cause harm

2. Relationship of sufficient proximity

3. Fair just and reasonable to impose duty

Caparo v Dickman - 3 steps?

1. (Objectively) reasonably foreseeable that lack of care would cause harm

2. Relationship of sufficient proximity

3. Fair just and reasonable to impose duty

Approach to duty of care?

Development of the law incrementally and by analogy with established authority.

‘Fair just and reasonable’ re duty of care - what does it take into account?

Broad analysis, including policy considerations;

• Floodgates

• Insurance

• Crushing liability

• Deterrence

• Maintenance of high standards

• Defensive practices

What does Nettleship v Weston say?

Driver (road user) owes duty of care to passengers and pedestrians not to cause them physical injury by careless driving

What does Cassidy v Ministry of Health say?

Medical professionals owe duty to patients once accepted for treatment

Emergency services - duties of care (basic)?

Police do NOT owe duty to respond to all emergency calls, but duty to protect from reasonably foreseeable injury when arresting 

• AND protect public from reasonably foreseeable injury when carrying out arrest

Ambulance service owe a duty to respond to 999 call within reasonable time

Consequential economic loss?

e.g. loss of wages thanks to broken arm

General rule re liability for omissions?

General rule = no liability for failure to act - but quite a few exceptions….

5 exceptions to general rule on omissions?

1. Statutory duty

2. Contractual duty

3. When D has sufficient control over C

4. When D assumes responsibility for C

5. When D creates risk

When D creates risk - example?

guy failed to properly extinguish fire causing damage to claimants land when he had means to do so

When D assumes responsibility - example?

• nature of employment such as tutor-pupil relationship

• Barrett v Ministry of Defence 1995, guy got drunk, friend began to care for him but then left and Barrett choked and died

When D has sufficient control - example?

• parent has sufficient degree of control over their child

• Reeves v Commissioner of Police for Metropolis, have to protect prisoners e.g. from suicide

Statutory duty re omissions - example?

occupiers liability act 1957, premises have to be kept safe

Omissions and emergency services

• Ambulance = duty to respond within reasonable time (potentially no breach if exercised discretion re allocation of resources)

• Fire = no duty to attend fire, but can’t make worse through positive act

• Police = no duty to respond

General rule re 3rd parties (tort)?

Only liability for those who directly cause injury/damage - BUT AGAIN, lots of exceptions…

4 exceptions to rules re 3rd parties (tort)

1. Sufficient proximity between D and C (painter forgot to lock, premises burgled)

2. Sufficient proximity between D and 3rd party

3. D created the danger

4. Risk was on D’s premises

Sufficient proximity between D and C re tort and third parties - example?

• Painter forgetting to lock C’s property - burgled by others

• Home Office v Dorset yacht Co (1970). Prisoners escaped, only way to escape was via boat = damage was foreseeable 

• Have to be identifiable victim at risk over and above public at large, and whether has assumed responsibility for the claimants safety e.g. petter Sutcliffe case (too many women = not identifiable)

• Whereas police informant whose identity was left lying around = sufficient proximity 

Sufficient proximity between D and 3rd party re tort - example?

• e.g. in Borstal boys case, proximity between home office (prison) and borstal boys (prisoners)

• Palmer v Tees Health Authority (2000) claimant lost because third party wasn’t under local authority’s care at the time

Interaction of acts of Parliament and duty of care?

act which normally amounts to a breach of duty cannot if it is specifically authorise by act of parliament (PARLIAMENTARY SOVEREIGNTY)

Public bodies and negligence - 3 considerations

• Power doesn’t equal duty = just because public body has duty/power to act in area, doesn’t mean failure to act is negligence

• Policy considerations = taxpayer ultimately pays damages. And might lead to floodgates, and restriction of public services

• Operational stuff = normally, public body not held liable for policy matters, only operational ones (specific instance)

Two step process re establishing breach?

1. Determine standard of care (question of law)

2. Have they fallen below (question of fact)

Objective, but will look at particular circumstances

How is standard of care assessed?

Starting point = must behave as a reasonable person would in all the circumstances (objective)

• Act, not actor (driving car = standard of driver, not learner driver)

• Those training within profession = NOT taken to lower standard (e.g. ‘junior’ doctor = will be regular doctor)

Standard of care for professionals?

Bolam test = standard of the ordinary reasonable man exercising and professing to have that special skil

Standard of care for children?

that of the reasonable child of the defendant’s age carrying out that act

Standard of care re illness/disability?

• If knew they were being impaired, should have stopped act, so normal standard.

• If didn’t know they were impaired, standard is ‘reasonably competent x who is unaware that suffering condition that impairs ability to x’

Establishing breach - relevant factors?

-likelihood of harm

-magnitude of harm

-practicality of precautions

-benefit of defendant’s conduct (e.g. fireman being negligent while trying to do good thing)

-common practice 

-sport (has to be nothing short of reckless disregard)

Likelihood of harm - examples (cricket and hole in pavement)

• The claimant was injured by a cricket ball, hit out of the cricket ground. This had happened six times in the previous 30 years and the ground had a 7ft high fence around it. The chance of this happening was therefore so slight that there was no breach.

• The blind claimant fell down a hole in the pavement dug by the defendant. The defendant had taken precautions to protect sighted but not blind persons. Held: The risk of causing injury to blind people was not so small that it should be ignored. The defendant must tailor their conduct in light of the characteristics of people who they know might be affected by their actions.

Magnitude of harm - examples (one eye, boxers)

• Claimant only had one good eye but employer didn’t give goggles. Accident = became blind. Consequence of injury were so significant that should have taken greater care.

• Body regulating boxer didn’t provide suitable ringside resuscitation equipment and doctors = breach, since potential ahrm was sos erious

Practicality of precautions re tort - examples (sawdust)?

Factory floor became slippery - laid down 3 tonnes of sawdust. Only other option was to stop factory or employ loads of people, which were not justified given mall risk of injury.

Benefit of defendants conduct re tort

Statute requires court to consider whether person was acting for benefit of society/others

AND allows them to consider deterrent effect which imposing liability might have on desirable activities.

Arguments in D’s favour re tort - 2 (not full defences necessarily?)

COMMON PRACTICE = if a defendant can show they have acted in accordance with a practice usually followed by others in that field, this will be an argument in the defendant’s favour, and the defendant may escape liability.

STATE OF ART = assess based on knowledge/accepted practice at time of breach

Position re sport and establishing breach?

Position re using convictions as evidence of breach?

Civil Evidence Act = if incident that caused claimant’s injury led to a criminal prosecution, C can rely on conviction if its evidence of careless conduct

Res Ipsa Loquitur re tort - meaning?

‘Acts speak for themselves’. Occurs when only explanation for set of given facts is negligence by defendant. Very rare. Helps when its unknown how incident occurred

1. Thing causing damage was under control of D/someone they were responsible for

2. Accident wouldn’t normally happen without negligence

3. Cause of accident unknown to C, i.e. no evidence

Bolam test re prof neg

If a professional can show that they acted in accordance with a responsible body of professional opinion, they will not be in breach of duty.

• Even if 11 spinal surgeons said OK, if they are responsible body, then OK

• BUT if illogical, will be breach

State of the art defence in professional context

• Impractical/unrealistic to expect them to know of every new development.

• HOWEVER, GMC says must do what is reasonable to keep up to date with developments via mainstream literature etc.

Failure to advice of risks re med neg

• Duty to make patient aware of any material* risks involved in any recommended treatment

• AND duty to make them aware of reasonable alternatives (BOLAM only applies to this leg)

• = anything which reasonable person in their position would likely attach significance to. Or doctor is aware, or should be aware, that particular patient would attach significance to.

What is material risk re prof neg

• = anything which reasonable person in their position would likely attach significance to. Or doctor is aware, or should be aware, that particular patient would attach significance to.

Test for factual causation re tort?

The ‘but for’ test: On the balance of probabilities, but for the defendant’s breach of duty, would the claimant have suffered their loss at that time and in that way?

Factual causation re failure to warn of risks

The ‘but for’ test can be satisfied if the claimant can prove that they would not have had the treatment or would have deferred the treatment had they been told of the risk

Material contribution test - when to use?

when there is more than one cause of the claimant’s loss + causes were acting together (cumulatively) to cause the loss + contribution of negligent cause was more than negligble

• disease due to dust exposure, of which some was natural and some was tortious. Operated together + couldn’t say which one

• Also applies to sequential causes e.g. has fall, then gets negligent treatment, both acting

Material contribution test?

Did it materially* contribute to damage

• * = by material contribution, the court meant a ‘more than negligible’ contribution to the loss

Material increase in risk test - when to use?

ONLY applies to industrial diseases where there is scientific uncertainty over cause - mesothelioma cases (or lung cancer caused by asbestos dust) - and where one causal agent (e.g. dust, which is then divided into tortious and non-tortious) although potentially multiple tortfeasors (e.g. numerous employers over the years, exposed to dust at all of them)

Material increase in risk test?

BREACH because medical experts could demonstrate that the tortious exposure to the dust materially increased the risk of contracting dermatitis

Loss of chance test?

Only for pure economic loss - ‘real and substantial chance’ that would have been able to get contract etc.

When are tortfeasors jointly and severally liable?

in mesothelioma cases, can get full amount from any, but may be able to recover from one another

Apportionment re tort

Where multiple tortious factors, courts apportion liability between Ds in way that produces practical result, providing compensation to claimant while recognising the respective fault of the defendants.

Position re liability when multiple causes (all of whom pass but for test)?

• If second D has not caused any additional damage to claimant, they will not be liable (i.e. car crash, needs respray, then another car crash, but not been resprayed yet = no new damage)

• 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. (I.E. leg injured, then someone else shot leg)

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

3 types of NAI

Acts of God or natural events

Acts of third parties

Acts of the claimant

When does act of God break chain of causation?

if it is some exceptional natural event

When does act of 3rd party break chain of causation?

If it was highly unforeseeable (e.g. car accident, but then policeman negligently handled traffic flow, causing further injury = chain was broken)

Act of 3rd party breaking chain - position re medical treatment

Courts reluctant to let it break the chain. WILL ONLY BREAK IF so gross and egregious as to be unforeseeable.

Act of claimant re breaking the chain?

The legal test for an act of the claimant breaking the chain of causation is that the act must be highly unreasonable - but pretty rare, and normally dealt with under cont neg.

Remoteness test

The test of reasonable foreseeability: A claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the defendant breached their duty of care.

This is an objective test: what was reasonably foreseeable.

Wagon Mound test?

Wagon mound = remoteness (reasonable foreseeability) test

• Oil spilled into harbour, into water. Nearby ship them did welding works, where spark set oil on fire and caused damage to premises. Pollution damage foreseeable, but fire wasn’t, so too remote.

Inconsistencies re remoteness and type of harm?

Rat bite was foreseeable, but disease from rat urine wasn’t, so too remote?

WHEREAS frostbite rare in UK, but cold-related injury wasn’t, so not too remote

• 2nd may be explained by fact that both would’ve involved same precautions.

Necessary to foresee how damage occurs (tort)?

NO - so long as type of damage is foreseeable

Nor does extent need to be foreseen.

Thin skull rule

Defendant must take their victim as they find them

• Also applies even if damage aggravated by C’s lack of money (i.e. couldn’t pay straight away, so had to pay more via credit card loan)

Burden re defences in tort

D must prove on balance of probabilities - only becomes relevant once tort established.

3 main defences re tort?

volenti non fit injuria (consent) + contributory negligence + illegality

Criteria for volenti non fit injuria

1. Had capacity to give valid consent to the risks

2. Had full knowledge of the nature and extent of the risks

3. Agreed to the risks of injury

4. Agreed voluntarily

=COMPLETE DEFENCE

Volenti - capacity requirement?

Need mental capacity to consent to risk (may be issue where children involved)

• Person at risk of committing suicide in custody cannot consent to that risk

Volenti - knowledge requirement example (flight)

Drunk C accepted lift with drunk pilot - court said wasn’t so drunk that couldn’t understand danger, so no breach

Volenti - agreement requirement?

Can be express or implied, but only implied where engaging in intrinsically + obviously dangerous occupation

• In sport, agrees to inherent risks, but not to non-inherent risks, e.g. serious foul play

Volenti - agreed voluntarily requirement?

Very difficult to succeed with employees (since not necessarily voluntary, since might lose job)

If acting out of impulsive desire to save life (e.g. rescue cases), won’t be voluntary

Re Volenti - can consent be negated by statute?

YES

-Motorists can’t use re claims from passengers

-UCTA and CRA mean being aware of term doesn’t = consent

What must be established for cont neg re tort?

1. That the claimant failed to take reasonable steps for their own safety (objective); and

2. That this failure contributed to the claimant’s damage.

What is effect of cont neg if found re tort?

reduces the liability of a defendant, i.e. damages reduces by percentage court thinks is just and equitable (so partial defence)

Part 1 of test for cont neg re tort?

Failed to take reasonable steps (that reasonable and prudent person would make) for own safety. Allowances made for emergencies/difficult dilemmas + their age.

• If passenger knows driver is drunk, or goes drinking with them knowing they’re driving

• Got stuck in cubicle, tried to balance on loo roll holder to escape, fell

• BUT jumping off cart which though was going to overturn wasn’t cont neg

Position re rescuers and cont neg?

Rescuers are generally protected from contributory negligence (unless negligently helped create emergency in first place, e.g. told of inmates risk of seizure + didn’t look after him adequately, then rescued = no cont neg)

Second leg of cont neg test?

MUST show failure to take reasonable care contributed to the damage suffered, although it need not contribute to the accident

• So no seatbelt or helmet can be cont neg

• Greater reduction in damages if it contributed to accident as well as in jury

ex turpi causa non oritur actio meaning?

Refers to defence of illegality in tort

When might defence of illegality apply re tort?

Illegality might apply where the claimant was involved in an illegal activity at the time they suffered their loss.

Test re defence of illegality in tort?

Patel v Mirza

1. Were they doing illegal/grossly immoral act at time suffered loss

2. Would allowing recovery produce inconsistency/disharmony, so as to damage integrity of legal system

   1. underlying purpose of prohibition - would it enhance?

   2. other public policy rendered less/more effective?

   3. Would denying be proportionate response to illegality

If illegality directly caused damage/central to tort, more likely to deny (vs if just ‘context’)

Patel v Mirza - driving example

C and D been drinking. C rode on back of D’s motorcycle and told him to drive recklessly + knew he had no license + D died and C injured. C’s injury didn’t pass Patel v Mirza test, so couldn’t recover.

WHEREAS driving negligently (with weed in the car) = could recover, since was just context.

Defences - necessity re tort

defendant acted to save life, limb or property - NOT CLEAR IF VALID

Must prove a) acting in emergency (subjective) to do one of above, and b) weren’t at fault in causing the emergency (i.e. acted reasonably + necessity arose without their negligence)

Two principle remedies re tort?

Damages and injunctions (rare)

Damages re tort - what type?

Compensatory damages, e.g. backwards looking. Put them in position they would have been but for tort.

General vs special damages re tort

Special damages = cover specific, provable + quantifiable losses at time of trial

General damages = future losses which can’t be proven, or non-quantifiable (e.g. for physical injury) e.g. PSLA or loss of earnings after trial, or future house adaptations

PSLA damages re tort

Part 1 = pain and suffering award.

Part 2 = loss of amenity award

BUT will be expressed as single lump sum

Calculation of future losses re tort

General damages (since not incurred yet). Take annual expense + multiply by years will be suffered (multiplier/multiplicand approach), NOT by life expectancy. Work on basis that it will be invested.

Deductions from damages re tort?

State benefits received by claimant (pay back to state)

Contractual sick pay received

Redundancy payment received

NOT insurance payouts/ill health pensions/things received by charities etc.

Are insurance payouts deducted from damages re tort?

No

Damages when claimant dies re tort

Law Reform (Miscellaneous Provisions) Act 1934 = estate can bring claim for losses suffered up to date of death. BUT cannot claim for death, or loss of life expectancy (if not already dead)

Fatal Accidents Act 1976 = dependents can claim for loss suffered as result of death, e.g. bereavement damages (and funeral expenses, if they paid for it )

• Parents/issue/siblings/uncles + marriage + cohabited for over 2 years and living with at time of death (CHECK THIS)

• Lower multipliers

Fatal Accidents Act 1976

dependents can claim for loss suffered as result of death e.g. bereavement damages (and funeral expenses, if they paid for it )

• Parents/issue/siblings/uncles + marriage + cohabited for over 2 years (CHECK THIS)

• Lower multipliers

Law Reform (Miscellaneous Provisions) Act 1934

Law Reform (Miscellaneous Provisions) Act 1934 = estate can bring claim for losses suffered up to date of death. BUT cannot claim for death, or loss of life expectancy (if not already dead)

Employer’s primary liability

CLAIMANT = EMPLOYEE (suing company)

Employer primary liability vs vicarious liability?

Employer primary liability = employee is the claimant (suing company)

Whereas vicarious = claimant sues employee for tort committed by employee. AND strict liability.

Employer liability insurance?

compulsory for employers to have insurance to cover employer liability insurance claims

Employers duty of care?

Personal and non-delegable

ONE SINGLE DUTY, which contains;

• Safe and competent employees;

• Safe and proper plant and equipment;

• Safe place of work/premises, including safe access and way out; and

• Safe systems of work, with adequate supervision and instruction.

Duty to provide safe and competent employees

Employing someone who keeps doing pranks but not fired = breach (if know or ought to know)

Duty to provide safe place of work - where specifically?

Extends to 3rd party premises too, although lower standard

Duty to provide safe system of work - what does it entail?

Not just enough to have it - must also take reasonable steps to ensure it’s complied with, i.e. must encourage/insist employees wear goggles etc.

-But if encouraged + given instructions etc, and why they should use it, prob not negligent

Employer primary liability - same for all colleagues?

Employer must take into account personal characteristics (e.g. bloke with one eye = take greater care to ensure he wears goggles)

Employer’s vicarious liability?

This is the liability of one party for a tort committed by another party. STRICT, so no fault needed.

1. A has committed tort

2. Is employee of Z, or in relationship akin to employment

3. Committed tort in course of (quasi) employment (close connection test)

Close connection test re vicarious liability

1. What functions or ‘fields of activities’ has employer entrusted to employee been entrusted by the employer to the employee

2. Was there sufficient connection between their position + tort to make it fair and just to hold them accountable?

Crossing the road near office 40 minute after shift = apparently no close connection, since not known why he was crossing road

Doing some authorised, but in unauthorised manner = close connection (re vicarious liability)?

Yes (so long as doing for purpose of business)

Even if stopping for lunch break, or on trip but being paid travel expenses and within working hours.