Tort/Disputes

Duty of care

1. Precedent?

2. Caparo:

   1. Reasonably foreseeable that a duty would be owed

   2. Relationship of proximity

   3. Fair, just and reasonable

Omissions and a duty of care

Generally no duty unless:

• D exercises control over C

• Assumption of responsibility for C by D

• D creates a dangerous situation C

• Contractual duty

Third parties and duty of care

No general duty unless:

• Special relationship between C and D

• Special relationship between D and third party 

• Creating source of danger

• Danger on D’s premises created by a third party and they ought to have known or knew

Breach of duty

1. What was standard of care?

   1. Reasonable [ ] act not actor

   2. Professionals = acted in accordance with responsible body of men skilled in that particular art, must notify of material risks

2. Did they fall below standard

Test for falling below standard of care?

a.     Usual or common practice

b.     Level and practicality of precautions

c.     Benefit of D’s conduct – policy consideration e.g. taking a risk to try save a limb

d.     Likelihood of harm

e.     Seriousness of injury

f.       State of the art – what was the knowledge in the profession at the time

g.     Sport – likely to take risks in heat of moment

Factual causation

• But for test

• Material contribution - if multiple factors contributed but cannot tell how much each did and operated together

• Material increase in risk - single agent industrial disease cases

Legal causation

Act of god

Act of third party

Act of claimant

Remoteness

Remoteness = was the harm reasonably foreseeable as a result of D’s breach (kind or type of damage) – only type needs to be foreseeable not the way it occurs

·       Thin skull – take victim as find them

·       Thin wallet – extent of damage increased by C’s inability to fund immediate repairs can still claim

Special vs General damages

·       Special damages = e.g. loss of earnings, medical care, transport

·       General damages = pain and suffering, loss of amenity

·       Future general damages = loss of earnings, cost of future medical care, future loss of pension

Law Reform (Miscellaneous Provisions) Act 1934

• Allows deceased’s estate to continue the claim

• Entitled to what D was before they died

• Pain, suffering and loss of amenity up to death, lost earnings up to death, damages to property, funeral expenses

Fatal Accidents Act 1976

• Allows a separate claim for D’s dependants

• Must be a dependant e.g. spouse, any person living with them immediately before death and for 2 years prior as a partner, child, treated as a parent, treated as a child, blood relatives

• Bereavement award, financial loss of dependents, funeral expenses

What is pure economic loss vs consequential loss?

Pure economic loss = loss that doesn’t flow from the damage and is non recoverable e.g. oven breaks and cakes are in oven can claim property damage for cakes in oven but not for cakes you couldn’t cook after

e.g. defective items, loss from damage to property of another, loss not flowing from damage to person or property

Consequential economic loss = loss as a result of damage e.g. lost earnings due to physical injury

Claims for PEL

1. Wills - owe a duty to beneficiaries

2. Negligent misstatement

3. References = duty to provide accurate reference

What is a negligent misstatement?

Can claim for PEL if:

a)     Special relationship of trust and confidence between parties

b)     Party preparing the statement voluntarily assumed risk express or implied

c)     Reliance on the statement

d)     Reliance was reasonable in the circumstances

Requirements for a third party to rely on negligent misstatement

1.     D must communicate advice to 3rd party

2.     D must know the purpose for which C will use advice

3.     D must know, or reasonably believe, that C will rely on advice

4.     C acted on advice to their detriment

Psychiatric harm claims - actual victim, primary and secondary

Actual victim = the person who suffers actual harm.

Primary victim = suffers psychiatric harm as a result of reasonably fearing for their own safety

Secondary victim = suffers psychiatric harm as a result of reasonably fearing for safety of another

a)     Was psychiatric harm reasonably foreseeable

b)     Relationship of proximity and closeness

c)     Proximity in time and space

Occupational stress claims

·       Was psychiatric harm reasonably foreseeable for claimant

·       Nature and extent of work

·       Signs of stress

·       Size and scope of business and resources

Employers primary liability

Employers owe a duty to:

a)     Provide safe and competent employees

b)     Provide safe and proper plant and equipment

c)     Safe place of work/premises

d)     Safe systems of work with adequate supervision and instruction

Vicarious liability

1.     Has a tort been committed?

2.     Is the tortfeaser an employee or in a relationship akin to employment?

3.     Was the tort committed in the course of the employment? Close connection between act and employment

Volenti non fit injuria

·       D had capacity to give valid consent to the risk

·       Had full knowledge of nature and extent of risks

·       Agreed to the risk of the injury

·       Agreement was voluntary

May be negated by statute e.g. unable to exclude liability for death or PI, unable to rely on Volenti for defence against passengers (s149 Road Traffic Act)

Contributory negligence

·       Reduces D’s liability by a just and equitable percentage

1.  Did D fail to take care for their own safety?

2.   Did that failure to take care contribute towards the loss/injury

Illegality

1. Has C committed an illegal or grossly immoral act at the time they suffered the loss?

2. What is the underlying purpose of the prohibition, relevant public policy, would denial of a claim be a proportionate response

Product liability in negligence

·       Defendant must be the manufacturer – anyone who has worked on the product before it reaches consumer e.g. suppliers, retailers, installers, repairers

·       Product must have caused damage

·       Ultimate consumer is anyone foreseeably affected by the product

·       Chain of causation will be broken if prior to being the consumer an intermediate is reasonably expected to examine the product and the intermediate could be liable if failed to examine and spot defect

Defences – consent, contributory negligence, exclusion of liability