Tort Law TCA Revision

Seite 1

Introduction To Tort Law

What is Tort ?

The French word for wrong

Branch of civil law

Provide remedy to someone who suffered harm as result of someone else

Criminal and Civil Wrongs

Some acts civil, some criminal, some both

Law of Obligations

Contract - based on a binding agreement

Tort - duty imposed by the law of tort

Restitution - the principle of unjust enrichment

Type of Law Tort Covers

Personal Security of The Individual

a) a body and mind (i.e. assault, battery, negligence)

b) person's interest in their reputation (i.e defamation - an untrue statement about someone which lowers them in the eyes of other people; liberal/slander)

Protection of Property

Someone's interest in their goods and land (i.e. nuisance, trespass t goods, negligence

Economic Interests

Negligent Misstatement - someone has to have an interest which the law of tort recognises, some interests are not protected by tort i.e. you own a small shop and lose business due to Tesco nearby.

Some of the interest protected are competing/conflicting and it needs to be decided which takes priority. i.e. nuisance - a right to enjoyment v defamation - a right to freedom of expression.

Seite 2

Negligence (Duty of Care, Acts & Omissions)

Duty of Care; three issues:

Foreseeability

Proximity

Fair, Just, Reasonable

Foreseeability

could a 'reasonable man or person' in D's position had reasonably foreseen C might be injured in particular circumstances

Bourhill v Young 1942

Pearson v Lightning 1998

Proximity

Must be 'proximity of relationship between C and D

foreseeability alone is too wide

Physical Proximity: relevant in deciding if a duty exists. (Actual relationship)

Closer relationship - more likely there is a duty

Yuen Kun Yeu v Attorney General of Hong Kong 1987

Osman v Ferguson 1993 / Osman v UK 1998

Hill v Chief 1988

Capital v Hampshire 1997

Kent v Griffiths 2000

Robinson v Chief 2014

Micheal v Chief 2015

Was there proximity between the claimant and the defendant (Palmer v Tees HA 1999)

First requirement: the victim had to be identified

Second requirement: what precautions could the defendant take

Fair, Just, Reasonable

Even if there is foreseeability and proximity, court may decide it is not 'fair, just and reasonable' to impose a duty

Mulcahy v Ministry 1996

Smith & others 2013

Two stage test for establishing liability in negligence

Stage 1 - Relationship of proximity between C and D (D ought to foresee harm)

Stage 2 - Any reason would limit duty? (if no, duty should exist)

Anns v London Borough of Merton 1978

Murphy v Brentwood District Council 1990

Claim must prove three things:

a) D owed C a duty of care

b) D was in breach of duty

c)Breach caused damage to C

Donoghue v Stevenson 1932

Acts and Omissions

Distinction between acts and omissions can produce strange results

a) a positive act (misfeasance)

b) an omission (non feasance)

not liable for omissions, in Donoghue v Stevenson, omissions was meant in the 'course of conduct'

Argument imposing liability for omissions:

Imposes a burden

Problem of causation

Statutory Powers

A Public authority ( i.e Government, local)

May be given powers by an Act of Parliament

What if the Government fails to do the task or carries it out negligently ?

Distinction must be made between;

a duty to act

a power to act

could be argued that public authority could not be liable in negligence, as they did not have to act in the first place

Home Office v Dorset 1970

Voluntary Conduct

Someone voluntarily assumes a duty

In the 19th century, duty to act was seen as being connected to contract not tort.

There may be a duty outside of contract in certain circumstances

For example: if a doctor stops to help an injured person in the streets, there is an assumed duty by starting to help

Third Party

The general rule is that the law does not impose liability for harm caused by another third party.

Palmer v Tees 1999

Mitchell v Glasgow City Council 2009

Haynes v Harwood 1935

Special Relationships

Liability for omissions, may be imposed because of their status, may be imposed where one person has a responsibility for another

For example: doctor - patient

Liability may apply where;

special relationship between the claimant and the defendant

special relationship between defendant and third party

defendant creates the danger

Opopogo 1971

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Negligence (Breach of Duty)

Has D broken their duty?

The standard of the reasonable man (person) - determine whether someone has broken their duty of care

Seen as an Objective Standard

Law sets minimum standard of conduct someone has to reach - the time this is judged is at the time of breach

Nettleship v Weston 1971

Subjective factors not taken into account

But there are exceptions:

Skills

Vulnerable claimants /defendants

Children

Emergencies

Skills

If D says they have a particular skill, they must show that skill to that of an experienced person (The Bolam Test applies)

Bolam v Frien 1957

Vulnerable parties

Claimants: If D knows, or ought to know C has mental or physical disabilities, these must be taken into account.

Defendants: If D has a disability, but does not realise , this must be considered deciding a breach of duty.

Morrell v Owen 1993

Roberts v Ramsbottom 2015

Dunnage v Randall 2015

Children

Test: What degree of care can a child of that age be expected to take?

Mc Hale v Watson 1966

Mullin v Richards 1998

Emergencies

If someone is acting in an emergency, this should be taken into account.

Marshall v Osmond 1983

Determining the standard of care

Four factors must be considered, individually and in relation to each other in deciding if there is a breach of duty.

Likelihood of harm: More likely that D's act will cause harm - more caution needed Bolton v Stone 1951

Risk of serious injury: More serious the harm (if materialises) - more likely D will be regarded as negligent Paris v Stepney Borough 1951

Social value of D's act: If D is doing something socially useful - may justify taking a risk (effect of Compensation Act 2006 to be taken into account - is D doing something which is desirable social activity) Watts v Herts 1954

Cost of avoiding the harm: What would the reasonable man do to avoid harm Latimer v AEC 1953

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Negligence ( New Intervening Acts, Omissions, Other)

A new intervening act

Novus Actus Interveniens

D's negligent act may be a part of chain of events (casuation)

If a new act happens after D's, this overrides D's negligent act

Effect - D will not be liable

Court - is new act serious enough to be the cause of the damage, rather than D's.

Later act may be act of claimant, third party or act of nature

Hogan v Bentinck 1949

Act of Claimant

must be unreasonable to override D's action

Wieland v Cyril 1969

Spencer v Wincanton 2009

Act of third party

Was is foreseeable

Was it reasonable

Should D owe a duty to C

Third party act must be enough to break chain of causation

Scott v Shepard 1773

Knightley v Johns and others 1982

Act of Nature

Although act would not occur without D's breach, D not liable

Example - D causes damage made worse by a struck of lightning, D cannot be liable for damage of lightning

Omissions

The law makes distinction between positive acts and omissions

General Rule: not liable for omissions

Imposes a duty when;

D earlier action creates a duty of care, liable for omission

Existing relationship between parties

Carmarthenshire v Lewis 1955

Barrett v Ministry of Defence 1995

Rescuers

If D negligently puts C in danger and someone tries to rescue C and is injured

Does D owe a duty Haynes v Harwood 1935

Does rescuer accept risk by acting Cutler v United Dairies 1933

Is rescuer's act a new intervening act #

If D puts himself in danger, someone tries to rescue him and is injured Baker v Hopkins 1959

Is there a duty

Is it foreseeable

A duty is owed to rescuers whether they are members of the public or the emergency service. Chadwick v British Railway Board 1967

RES IPSA LOQUITUR

'The thing speaks for itself'

Three conditions must be met; Scott v London and St Katherine Docks 1865

No explanation for activity Barkway v South Wales Transport 1950

Harm does not normally happen if care is taken

Instrument causing accident is in D's control Gee v Metroploitan Rly co 1873

If there is evidence res ipsa loquitur does not apply.

C must prove negligence in normal way

The Effect

Argued tat RIL raises prima facie evidence of negligence

Up to D to explain ho accident could have happened without negligence

If so, then up to C to prove negligence in normal way

Effect of RIL is to reverse the burden of proof

Ward v Tesco 1976

Ng Chun Pui v Lee Chuen Tat 1988

Seite 5

Negligence (Causation and Remoteness of Damage)

Claim must show;

D owed C a duty of care

D in breach of that duty

breach caused damage to C

Law makes distinction between

Causation in fact

Causation in law

Causation in Fact

Did D's negligence cause C's loss ?

'BUT FOR' test - would C have suffered the loss 'but for' the defendant's negligence?

If No - D is liable

Barnett v Chelsea Hospital 1969

Wilsher v Essex 1988

Proving causation often causes problems - if 'but for' test does not solve problem, court may take another approach

Multiple Causes

Test - 'material contribution'

If there are two or more causes, C does not have show D's negligence was main cause, as long as it made a 'material contribution'

Causes do not have to be concurrent but can be consecutive

In civil cases - burden of proof on C to prove their case balance of probabilities

The duty of care in negligence includes a duty to explain the risks

Williams v Bermuda 2016

Hotson V East Berks 1987

Fairchild v Glenhaven 2002

Barker v Corus 2006

Consecutive causes

What if one negligent act is followed by another ?

What is the position if C develops a disease after the tort ?

Baker v Willoughby 1970

Jobling v Associated Dairies 1982

Causation in Law

If the Court decides that D is liable under the 'but for' test, next question is should D be liable as a matter of law.

Principle of remoteness of damage is applied

Remoteness of Damage

Even if it is shown that D's act caused damage, D will not be liable if the damage is too remote

Test - if consequences are too remote - was it 'reasonable foreseeability'

Does D have to foresee exact chain of events or the full extent of the damage ?

D only needs to foresee personal injury rather than injury of a specific kind

The Wagon Mound 1961

Hughes v Lord Advocate 1963

Doughty v Turner 1964

The Eggshell Skull Rule

'You must take your victim as you find them' - aim to protect C

If some harm is foreseeable. ESR says if C has special sensitivity and suffers more than normal person, D is fully liable

C can claim for both foreseeable and unforeseeable

D can't avoid liability saying C has some weakness

Smith v Leech Brain 1961

Robinson v Post Office 1974