Tort Exam Revision

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Negligence: Psychiatric Injury (Nervous Shock)

Mere Distress

No compensation can be given in tort, for grief, disappointment and distress

People of normal disposition are expected to cope with these emotions

Spouse of decreased or parents of unmarried minor entitled to damages for bereavement (Fatal Accidents Acts 1976 s 1A)

Similarly in contract law - no damage to injury to feelings

Nervous Shock

Nervous shock made up by the courts - not a medical term (psychiatric injury)

Claimant must show a person of normal fortitude would have suffered nervous shock in the circumstances.

Must show recognised psychiatric illness; (clinical depression, post traumatic stress disorder, pathological grief disorder)

History

Courts cautious about allowing claims - slow to accept such harm could be suffered (flood of fraudulent claim)

First development - accepted claim for nervous shock, related to a physical injury

Second development - allowed claim if C was put in fear of physical injury - resulting in nervous shock

Dulieu v White (1901) 2 KB 669

Hambrook v Stokes (1925) 1 KB 141 (CA)

Originally defendant had to foresee harm by shock

Primary victim

(directly involved in range of physical injury)

C needs show D could have foreseen 'personal injury

Injury 'by shock' need not be foreseeable

Page v Smith (1995) (HL)

Secondary victim

(not directly involved but suffers from what is seen or heard)

Law imposed controls to limit number of claims - Alcock

Mc Loughlin v O'Brian (1983) 1 AC 410

Alcock v Chief Constable of South Yorkshire (1992) 2 AC 310

Nervous Shock - four factors to take into account:

Relationship of love and affection between claimant and victim

Proximity of C to accident or aftermath

C saw or experienced event with own senses

Must be a sudden shock

Relationship between C and the victim

Main factor was 'love and affection' between c and the victim (not relationships such as parent-child)

Had to be foreseeable that such victims would suffer shock

Rebuttable presumption such a close relationship existed between spouses, parents, children. Other relationships had to be proved.

Bystander accepted - if particularly horrific

Proximity of the C to the accident or aftermath

C must be at the accident or arrive soon after.

Alcock - c identified bodies at mortuary 8 hours after - (did not meet criteria)

W v Essex CC (2000) (HL)

Taylor v A Novo Ltd (2013) EWCA Civ 194

The means by which C saw the events

C must see or hear the event or aftermath. (Not enough to be told by 3rd party)

Seeing events on TV is not sufficient.

The broadcasting code of ethics - prevented showing recognisable individuals so D could not foresee C would suffer shock.

Duty of care to tv viewers not ruled out - if it was a simultaneous broadcast.

Nolan LJ / Hot air balloon

Sudden Shock

Must be sudden shock, something on tv cannot be regarded as causing sudden shock

Sion v Hampstead HA (1994) CA

Walters v North Glamorgan NHS Trust (2002)

Alcock - distinguished in later case involving Hillsborough disaster

White v Chief Constable of South Yorkshire pOLICE (1998) HL

Employers - employee did not make employees primary victims

Rescuers - a rescuer does not make automatically become a primary victim

Property

What is the legal position if there is a danger to property rather than to a person

Attia v British Gas (1987) 3 All ER 455 CA

Rescuers

Do rescuers have any special status in regards to nervous shock?

Chadwick v British Railways Board (1967)

Greatorex v Greatorex (2000)

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Negligence: Economic Loss

The tort of negligence provides compensation for different types of loss:

Physical damage to property (damage in car crash)

Physical harm to the person (broken leg)

Death (of a wage owner or child)

Economic loss (money)

'Pure' economic loss, is loss not related to physical harm

If someone does a negligent act and causes economic loss are they liable in negligence ?

Aim of negligence is to compensate for injury and damage to property - if there is a breach of duty of care.

Physical Damage

If someone suffers damage which causes economic loss, they can claim

This loss is called consequential economic loss - loss that follows from an injury or damage

Spartan Steel v Martin (1973) CA

Canadian National Railway v Norsk Pacific Steamship Co (1992) Sup Ct

Proximity - the claimants property (railway lines) - is C's property in close proximity to damage

- C inspected bridge and provided materials to repair it

Practical Matters - allowing the claim would not open floodgates to casual users, D was liable

Development of the Law

Court allowed a claim for economic loss in following case;

Annes v London Borough of Merton (1978) HL

Difficulties distinguishing between;

a negligent act of inspection

a negligent statement that the foundations are sound when they are not

Difficulties to distinguish what it;

damage to property

financial loss

Anns applied in the following case:

Junior Books v Veitchi (1983) HL

D & F Estates v Church Commissioners (1988) HL

Anns overruled in next case:

Murphy v Brentwood DC (1990) HL

Defective Property

Can a claim be made in tort for defective property ?

(You buy something and it doesn't work or there is something wrong with it)

E.g. Flat ginger beer

Muirhead v Industrial Tank Specialities (1985)

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Negligence: Negligent Mis-statement

A person may suffer economic loss as a result of a negligent statement.

The term 'statement' covers:

Advice (from an accountant)

Reference (by an employer)

Information (about a pension)

Services solicitor drawing up a will)

Negligent advice leading to physical injury

If D gives negligent advice which leads to physical injury may result in a claim

Sharp v Avery & Kerwood (1938)

Negligent advice leading to economic loss

To establish a misrepresentation, statement must be made by one party to the contract and induce the other party to enter the contract.

In some situations there is no contract.

Hedley Byrne v Heller (1964) AC 465 HL

When D is making a statement, what are the requirements for a duty to arise?

Special relationship

Assumption of responsibility by D

Reasonable reliance by C

Special relationship

To establish a special relationship the person giving the information must know that the other party will rely on it.

Smith v Bush (1989) 2 All ER 514

Patchett v Swimming Pool Assoc (2009) CA

Social Occasions

As a general rule it will not be 'reasonable' to rely on advice given on a social occasion

(note of following case)

Chaudry v Prabhakar (1989) 1 WLR 29 CA

There is an assumption of responsibility

Not enough that D can foresee C and that C will get the information. (Closer proximity is needed)

An auditor of accounts can foresee that the public may see the accounts but does the auditor owe a duty to members of the public ?

Caparo v Dickman (1990) 1 All ER 568 HL

What if the statement is made to one person but a third party relies on it ?

Goodwill v British Pregnancy Advisory Service (1996) 2 All ER 161

Reasonable reliance

If advice is given in the course of a business or in a professional relationship, which the claimant relies on, this will give rise to a duty of care.

Not sufficient that D knows C might rely on it.

Caparo v Dickman (1990) - not reasonable for C to rely on accounts which were prepared for the shareholders as a group.

Advice given on a social occasion would not lead to a duty.

Breach and Causation

Once a duty has been established it is also necessary to prove breach of duty by D, and that the breach caused the loss.

HB v Heller - requirements are met

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Defences: Contributory Negligence, Consent, Illegality

Original common law rule - if D could show C was partly to blame for the accident, this was a complete defence, D was not liable in negligence.

Butterfield v Forrester (1809)

Two things were required:

Fault by D

No lack of ordinary care by C

Courts developed a new rule known as the 'last opportunity rule' as common law rule was too harsh

This provided that the person who had the last opportunity to avoid harm would be responsible if they did not avoid it.

If D had the last opportunity to avoid the harm then it would be deemed to be his fault even if C had committed some previous contributory negligence.

Davies v Mann (1842)

The Law Reform (Contributory Negligence) Act 1945

In 1939 the Law Revision Committee recommended the rule should apply the admiralty rule of apportioning damages dependant on blame.

If both parties were negligent the loss was apportioned between them in proportion to fault.

The LR(CN)Act 1945 provides that the court could apportion damages between C and D.

S1(1) - 'Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable...'

The court has a discretion under s1(1 to reduce C's damage to the extent that the court thinks is 'just and equitable' taking into account C's share in responsibility for the damage.

'Damage' covers injury, death, property damage and economic loss.

The LR(CN)Act 1945 applies to negligence, nuisance, occupiers' liability and Rylands v Fletcher but not to intentional torts.

Act does not apply to intentional torts e.g. battery.

How to establish Contributory Negligence

D must prove that:

C acted negligently

C's act caused some of the damage

The claimant acted negligently

It does not have to be shown that C owes a duty of care in negligence to D, but simply that C acted carelessly.

(E.g. A motor cyclist does not owe a duty of care to other road users to wear a crash helmet, but if the motor cyclist is in an accident and is injured she will be contributory negligence)

Jones v Livox Quarries (1952) 2 QB 608 CA

There are some exceptions to this standard:

Children

Infirm People

Employees

Emergencies

Children

The law does not apply the same standard to children as to adults. The standard is whether an ordinary child of C's age could have realised the danger.

In theory a child of any age could be contributory negligent but it is unlikely that the courts would find young children contributory negligent.

Yachuk v Oliver Blais Ltd (1949) 2 All ER (PC)

Gough v Thorne (1966) 3 All ER 398 (CA)

Jackson v Murray (2015) (UKSC)

The Pearson Report 1978 recommended that in the case of motor accidents C's under the age of 12 should not be liable for contributory negligence.

Infirm People

C must exercise reasonable care. The law takes into account C's age and physical condition; but C's mental condition is judges objectively.

If D knows C has a disability, D must take additional precautions.

Haley v London Electtricity Board (1964) (HL)

Employees

Under the doctrine of 'common employment' the employer was not liable for harm to employees caused by other employees.

Under various legislation the employer is now under a statutory duty to ensure that employees are safe in carrying out their jobs. (The aim is to protect the employees)

If an employee was injured at work and sued for negligence, the employer could use contributory negligence, the employer would be able to avoid liability.

The courts therefore take a more lenient approach to acts of contributory negligence by employees.

The employer must make allowance for the employee being careless, bored, tired and even disobeying instructions.

It is possible for an employee to be contributory negligent.

Emergencies

If an emergency arises the courts will take this fact into account in judging the conduct of C. If C has acted 'reasonably' they will not be treated as contributory negligent.

Jones v Boyce (1816)

Sayers v Harlow UDC (1958)(CA)

The claimant's act caused some damage

To establish contributory negligence by C has shown that C's act caused some damage.

The harm to the C must be the kind which is likely.

In Froom v Butcher Lord Denning made an important distinction between the cause of the accident and the cause of the damage.

Froom v Butcher(1976)(CA)

Lord Denning set out guidelines for apportioning damages:

If failure to wear a seatbelt made no difference to the injuries, then damages would not be reduced.

If injuries would have been prevented altogether by wearing a seatbelt, then damages will be reduced by 25%.

If wearing a seatbelt would have reduced the injuries, then there will be a 15% reduction in damages.

Capps v Miller (1989)(CA)

Smith v Finch (2009) EWHC 53

Can someone be 100% contributory negligent ?

Pitts v Hunt (1990)(CA)

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Defences: Consent

Defence of consent is also known as 'volenti non fit injuria', which means no wrong is done to someone who consents.

If someone consents to the risk of injury they cannot claim compensation.

Consent provides a complete defence to a claim.

Compare this to the effect of contributory negligence, which only provides a partial defence.

A voluntary assumption of risk may be express or implied.

An implied assumption of risk is usually based in C's conduct to show that C accepts the risk.

The law makes a distinction between intentional and negligent acts:

Intentional Acts

Someone consents to another person carrying out a deliberate and intentional act.

(The at would be a tort without the consent)

Example - dentist filling your tooth or playing rugby (consent to intentional tackling)

Negligent Acts

If C had not accepted the risk, D would be liable in negligence.

Example - a person consents to risk of harm from D's actions or playing football (consent to accidental contact)

Requirements for consent

To establish the defence of consent two requirements must be met:

must be knowledge of the risk

must be voluntary consent to the risk