BEA1003 - Tort

What is a tort?

A civil wrong other than a breach of contract.

What ways can general civil liability arise?

• Breach of contract

• Tort being commited

Is contractual liability voluntarily assumed?

Is liability in tort undertaken voluntarily ?

No, it is imposed by the courts

Why do courts impose liability in tort?

Certain types of behaviour warrant the imposition of tortious liability.

Tort law exists to hold people accountable when their actions (or failures to act) cause harm, even if there is no contract.

What type of liability is strict?

Liability in contract

What type of liability is based on fault?

Liability in tort

When does tortious liability occur?

Tortious liability occurs when a person commits a tort—a civil wrong recognised by law—and this causes harm or loss to another person.

What is the purpose of contractual damages?

To put the affected party in the position they have been in if the contract had been performed properly

What is the purpose of tort damages?

To put the injured party in the position they would have been in if the tort had never been commited.

What does the Hadley v Baxendale case show?

A loss is reasonably foreseeable if it arises naturally from the breach or was within the parties’ contemplation because of known special circumstances.

Are tort damages recoverable?

Yes, because if the tort had not been committed, none of the losses would have arisen.

What does a person affected by an ongoing tort often seek?

Injunction, rather than damages.

What happens when an injunction is granted?

The person committing the tort must stop the wrongful act, or they may face a fine or imprisonment.

Are parties with contractual relationships able to sue each other for tort?

Yes, if it is the best remedy

what does the Henderson and others v Merrett Syndicates Ltd demonstrate?

A person can be liable in tort for negligent performance of a service, even where the relationship is based on a contract, and even if the claimant is not a direct party to that contract.

What does the Commissioners of Customs and Excise v Barclays Bank plc demonstrate?

That the bank is not legally responsible for someone else’s loss just because it was involved or knew a loss might happen

What fills the gaps left by the more strictly defined torts?

Negligence

What does the claimant have to do in order to establish the tort of negligence?

Must prove 3 things:

1. That the defendant owned him a duty of care

2. That the defendant breached this duty

3. That a reasonably foreseeable type of damage was caused by the breach

Do the 3 matters of tort of negligence ever overlap?

Yes, they often overlap.

What case involves the defendant who owes a claimant a duty of care?

Donoghue v Stevenson

What does the Michael v Chief Constable of South Wales case state?

The police are not usually legally responsible if they fail to stop someone else from harming you, unless they have taken responsibility for your safety or caused the danger themselves.

When can a claimant who suffers psychiatric injuries claim damages?

When they suffer psychiatric injury as a result of negligence.

When can a claimant who suffers psychiatric injuries not claim damages?

In respect of sorrow, grief, or anxiety.

Why have courts restricted the circumstances in which there is a duty not to cause psychiatric injury?

Because psychiatric injuries are much easier to feign than physical injuries.

What do older cases classify psychiatric injuries caused by tort as?

Nervous Shock

What are ‘primary victims’ in psychiatric injury cases?

People who suffer nervous shock as a result of themselves being physically endangered.

What are ‘secondary victims’ in psychiatric injury cases?

People who suffer nervous shock as a result of witnessing the death or injury of another person

What does the Page v Smith case demonstrate?

Page v Smith shows that for primary victims, psychiatric injury can be claimed if some physical harm was foreseeable.

What does the Corr v IBC Vehicle Ltd case demonstrate?

If someone is harmed and later chooses to hurt themselves, the person who caused the original harm is generally not responsible for that later act.

What does the Rothwell v Chemical Insulating Co Ltd case demonstrate?

Being worried about getting sick from exposure to something dangerous is not enough to get compensation; there must be an actual injury or illness.

What does the McFarlane v Caledonia Ltd case demonstrate?

You generally cannot claim money lost because someone was careless unless they also caused physical damage or injury.

What does the Alcock v Chief Constable of South Yorkshire Police case demonstrate?

Only certain people who see or experience the accident closely and have a close relationship with the victim can claim for psychiatric injury

What type of event must occur to be able to claim nervous shock?

Witnessing a sudden horrific event, not by witnessing a gradual process, like death from a disease.

What does the French v Chief Constable of Sussex Police case demonstrate?

The police are not legally responsible if they make mistakes in handling a case, unless they have specifically assumed responsibility for protecting the person.

What are the laws on psychiatric injury?

• Tort liability arises from wrongful acts causing harm.

• It is fault-based and imposed by courts.

• Contract liability arises from voluntarily accepted promises.

• Damages in tort and contract aim to compensate but have different bases and goals.

What is expected from employees regarding stress?

They will be capable of withstanding the stresses inherent in their employment.

What is expected from employers regarding stress?

The employer knows that the stresses are putting employees at risk of psychiatric injury, they must fulfil certain steps to protect the employee.

What does the Hatton v Sutherland; Barber v Somerset County Council cases demonstrate?

Employers are not responsible for ordinary work stress.
They become responsible only when they are clearly warned that an employee is struggling and fail to act.

What are points 1- 4 regarding the process taken when considering psychiatric injury caused by stress at work?

1. Normal employer negligence rules apply.

2. The key question is whether this employee’s mental injury was foreseeable.

3. Foreseeability depends on what the employer knew or should have known about the employee.

4. Employers can assume employees can cope with normal work stress unless told otherwise.

What are points 5 - 8 regarding the process taken when considering psychiatric injury caused by stress at work?

5. No job is automatically dangerous to mental health.

6. Warning signs like complaints or health decline are important.

7. Employers can usually take what employees say at face value.

8. A duty to act arises only when the risk is clear and obvious.

What are points 9 - 12 regarding the process taken when considering psychiatric injury caused by stress at work?

9. Employers must take reasonable steps, not extreme ones.

10. What is reasonable depends on the employer’s size and resources.

11. Offering support or counselling usually avoids liability.

12. Employers are not required to dismiss or demote employees.

What are points 13 - 16 regarding the process taken when considering psychiatric injury caused by stress at work?

13. The employee must show the employer failed to take reasonable steps.

14. The employer’s failure must have caused or contributed to the illness.

15. If there are multiple causes, the employer is only liable for their part.

16. Compensation is reduced if the employee had a pre-existing vulnerability.

What is economic loss often a basis for a claim for?

Damages for breach of contract

Damages from economic loss is a direct consequence of?

Physical injury or damage to the claimants own property.

What happens if the defendants negligence destroys or damages the claimants property of goods?

The measure of damages will be the cost of restoration of the goods.

What will the damages from the defendants negligence be assessed to?

Assessed by reference to the market value

When can a claim for the loss of the use of goods be made?

If replacement goods could not easily be obtained.

When are claims in respect of damages for personal injuries made?

In respect of pecuniary losses or non-pecuniary losses

What does the Cairns v Modi case demonstrate?

If someone makes a serious false accusation about you, the court can assume your reputation was harmed — even if you can’t show you lost money.

What is recoverable in claims in damage cases?

• Personal injury: ~£275,000

• Loss of earnings

• Cost of healthcare

• damages

Are damages subjective to tax?

No, so taxes are deducted.

Does the claimant having insurance taken out affect the damages that they are owed?

No

What is claimable when the claimant is killed?

• Funeral expenses

• Loss of earnings (if supporting someone)

• Statutory claim ~£12,980 (close grievers)

What is not claimable when the claimant is killed?

• Personal injuries

What are claimants expected to do regarding their losses?

Take reasonable steps to mitigate their losses.

What is contributory negligence?

The claimant is partly at fault for their own loss or injury, so the damages they receive are reduced proportionally.

When can a claimant who is partially responsible for their own injuries make a claim?

It is possible for a claimant who is more than 50% to blame for their own injuries to succeed in making a claim.

What are the 2 elements to Volenti?

1. The claimant knows of the risk

2. The claimant consents to accept the risk

Is volenti available for a passenger in a car?

No, as the passenger has willingly accepted the risk of negligence on the drivers part.

What does the Patel v Mirza case demonstrate?

If someone paid money for an illegal deal, they usually cannot get it back, but courts will consider what is fair and just before refusing the claim.

What is negligent misstatement?

If you give advice or information carelessly and someone loses money because they relied on it, you can be legally responsible.

What conditions need to be satisfied in order to claim for pure economic loss caused by a negligent misstatement?

• Special relationship of trust between parties

• Party preparing information must have voluntarily assumed risk

• Claimant must rely on information

• Reliance must be reasonable in all circumstances