Flashcards
Tort Law: Negligence, Vicarious Liability and Defences
Cards in this deck (61)
- 1Aims of TortCompensation
Deterrence
Vindication
Punishment
Corrective Justice
Loss Distribution
Protection of interests - 2Negligence: Duty of CareCaparo
Proximity (Dorset Yacht)
Foreseeability (Palsgraff)
Fair, Just and Reasonable (McFarlane; Marc Rich)
Assumption of Responsibility - 3Negligence: Breach of DutyForeseeability of Risk
Severity of Risk
Cost of Eliminating
Utility of D's Conduct
Standard of Care - 4Negligence (Breach) ForeseeabilityHigher the probability of occurrence, the higher the chance of the breach
Bolton v Stone
Miller v Jackson - 5Negligence (Breach) Cost of Eliminating RiskLearned Hand:
Breach= cost of eliminating risk < probability of risk x foreseeability of risk
Latimer v AEC
'Reasonably prudent employer' - 6Negligence (Breach) Severity of RiskIncrease in harm can increase the obligations of the defendant
Paris v Stepney BC - 7Negligence (Breach) Utility of D's ConductCourt can take into account social cost/utility in determining a breach
Watt v Hertfordshire - 8Negligence (Breach) Standard of CareObjective: the reasonable man
Adaptations:
Impaired Mental Functioning (Mansfield)
Children (Mullins v Richards)
Special Skills (Wilsher v Essex HA)
Doctors (Bolam, Bolitho, Sidaway, Pearce, Montgomery) - 9Negligence: Factual CausationBut-For Test
(Barnett v Kensington)
Multiple Causation
(Jobling v Assoc; Performance Cars)
Material Contribution
(Fairchild; McGhee v NCB)
Loss of Chance
(Hotson; Gregg) - 10Negligence: Novus Actus InterveniensBy a third party:
High foreseeability= doesn't break the chain
(Dorset Yacht)
Low foreseeability= breaks the chain
(Knightly v Johns)
By the C:
High foreseeability= doesn't break the chain
(Weiland v Cyril Lloyd Carpets)
Low foreseeability= breaks the chain
(McKew v Holland and Hannen)
Dilemma principle= does not break the chain
(Sayers v Harlow) - 11Negligence: Legal CaustionRemoteness of Damage
Type of damage needs to be foreseeable, extent does not
(Doughty v Turner)
Thin Skull Rule:
If C suffers unique loss as a result of D's negligence arising from foreseeable type of damage, liable for full extent
(Smith v Leech Brain)
Impecuniousity:
Liable for extra expenses
(Lagden v O'Connor) - 12Negligence: Contributory NegligencePartial Defence
Reduces damages to an equitable amount
Only need to establish that C failed to take reasonable care for their own safety and this contributed to the cause of the damage
C needn't contribute to the accident, just the damage (Froom v Butcher)
More subjective standard than negligence (Gough v Thorne)
Very difficult to prove in cases of drunk driving (Lumbrich v French and Farely) - 13Negligence: Volenti Non Fit InjuriaComplete Defence
Requires:
Knowledge of the risk
Acceptance of the risk
Voluntary submission to the risk
Doesn't apply to drunk drivers
Except for planes (Morris v Murray)
Can apply in work (Shatwell)
Applies in sport to contact within the rules (Vowles v Evans)
Rescuers will rarely be found to be volenti
Can be excluded (UCTA applies) - 14Negligence: Ex TurpiNo action shall be based on a disreputable cause
Public policy defence
Way of denying a duty
Must be a very close link between the crime and the tort (Pitts v Hunt)
(Hewison v Meridian Shipping)
May not operate in cases of a minor criminal act (Ashton v Turner)
Frequently plead alongside self-defence (Cross v Kirby) - 15Psychiatric Harm: Primary VictimsReasonable fear of physical safety
(Page v Smith)
Ordinary phlegm and fortitude
(Brice v Brown)
Has been extended to property damage
(Attia v British Gas) - 16Psychiatric Harm: Secondary VictimsPre-Hillsborough
McLoughlin v O'Brian
Immediate aftermath, relationship with V, own unaided senses
Post-Hillsbborough
Alcock v CCSY
Close tie of love and affection
Proximity: time, space, perception - 17Psychiatric Harm: RescuersChadwick v British Railways
Could recover due to immediate aftermath and chance of physical injury
White v CCSY
Rescuer treated according to ordinary rules of secondary victims
Employer not liable if they have not breached their duty to protect from physical harm - 18Psychiatric Harm ReformsLaw Comm 1999
Abolition of sudden shock requirement
Abolition of proximity criteria
Abolition of distinction between primary and secondary
Extension of close tie of love and affection
Too policy charged to legislate? - 19Injuries to Unborn ChildDerivative right from the parents (CN applies)
CDA applies to all births post-1976
Harm occurring during: prep of gametes, pregnancy, birth
Injury to the mother must be foreseeable, injury to the baby needn't be
Has been extended to IVF, radiation and negligent driving
Pearson Commission suggests antenatal should be covered - 20Wrongful LifeBut for D's negligence, the child would not have been born
Claim by the child is highly unlikely to succeed
(Rance v Middowns HA) - 21Wrongful BirthBut for D's negligence the child would not have been born
Right of action by parents can succeed
No recovery for the birth of a healthy baby (McFarlane v Tayside)
Can recover the added expense of raising a disabled baby (Parkinson v St James)
Conventional award for injury to C's autonomy of £15,000 in all cases
(Rees v Darlington)
Refusal to have an abortion is not a defence (Emeh v Kensington HA) - 22Defective Products Common LawC must be a consumer who can prove that the manufacturer failed to take reasonable care in the preparation of the product which resulted in a defect which caused damage to C's life or property
Defences:
Alternative Cause
Intermediate Inspection
Problems:
State of knowledge
Cost to manufacturer > risk
Insolvency - 23Defective Products Consumer Protection ActStrict liability on producer (someone who wins, abstracts or adds an essential characteristic to) for a product, which is defective (not up to standard of safety that can be reasonably expected at the time of supply) which has caused damage (to C's property, life or health, of over £275)
Defences:
State of technical knowledge
Proof that defect came about after supply
Compliance with mandatory guidelines - 24Employers LiabilityVicarious liability for the tort of an employee which harms another employee
Breach of statutory duty
Breach of personal duty to employee - 25Employers Liability: ExtensionsPure Economic Loss
(Spring v Guardian Assurance)
Psychiatric Harm
(Hatton v Sutherland)
Employees working abroad
(Cook v Squire) - 26Employers Liability: Personal DutyNon-delegable
Wilson & Clyde Coal v English
Competent staff
Adequate material
(Davie v New Merton; Employers Liability Act)
Proper system
And to operate it effectively
(McDermid v Nash Dredging) - 27Vicarious LiabilityStrict liability for the tort of an employee in the course of employment
Justifications:
Identifiability
Loss distribution
Responsibility
Cost of business - 28Vicarious Liability: EmployeesReady Mixed Concrete:
Skill for a wage, control, contract terms
O'Kelly v Trusthouse
IC's can be VL for tort
Lending an Employee
Degree of control (Mersey Docks v Goggins)
Dual VL (Viasystems Ltd) - 29Vicarious Liability: Course of EmploymentSalmond Test:
Wrongful act authorised by the employer, wrongful mode of an authorised act
Employer can be liable for independent acts if they are negligent in the discharge of their duty (Century Insurance)
Prohibitions may or may not take it out of the course
(Conway v George Limpey; Rose v Plenty)
Test is 'a frolic of their own' (Storey v Ashton)
Close connection test to be used for criminal acts (Lister v Hesley Hall)
Employer can be idemnified if a joint tortfeasor (Lister v Romfold) - 30Intentional Torts: AssaultTo put someone in fear of imminent battery
Can be constituted through, or negated by, words
(Read v Coker; Tuberville v Savage)
Not an assault if D cannot deliver on the threat (Thomas v NUN) - 31Intentional Torts: BatteryIntentional, unconsented to, touching of another
Need not intend the harm (Wilson v Pringle)
General exception for touchings in the course of everyday life (Re F) - 32Intentional Torts: False ImprisonmentRestricting one's freedom of movement to a confined area
C needn't know of the restriction (Murray v MOD)
D must perform a positive act (Igbal)
If the imprisonment is lawful, the mode cannot make it unlawful (Hague) - 33Intentional Torts: LimitationsLimitation period runs from the date of the tort or the date of enough knowledge to warrant an investigation
Six year period is standard
Three year period is extendable (negligence, breach of statutory, nuisance)
A v Hoare
AB v MOD
B v Nugent Care - 34Intentional Torts: DefencesConsent
May be a defence, may be a part of a tort
Needn't be fully informed (Sidaway; KD v CC)
If too young to consent, parent/guardian can consent (Gillick v DHSS)
Fraud may vitiate consent if to the nature- as in criminal, but unclear
Revocation may apply
Volenti
CN (but not to trespass to the person)
Provocation (not usually)
Necessity
Crime: must be reasonable, inc self defence (Austin v UK)
Medical: F v West Berkshire, Re A
Lawful chastisement - 35Intentional Infliction of Emotional DistressWilkinson v Downton
If calculated to produce physical harm and caused severe emotional distress
Wainwright v UK
Doubts this survives - 36HarassmentCommon Law
Unlikely to be an existing tort (Wainwright)
Protection from Harassment
Creates both criminal and civil penalties
'A course of conduct directed at an individual and calculated to produce alarm or distress' (Thomas v NGN) - 37Economic Loss Personal InjuryPersonal Injury
Medical treatment, consequential, only to C
(West Bromwich Football v Albion) - 38Economic Loss Property DamageOnly damage to C's property
Equitable owner can sue if legal owner is joined to the suit (Shell v Total)
If C is liable to X, D may be liable to C even if D is not liable to X (Conarken) - 39Pure Economic LossGenerally not recoverable
(Spartan Steel; Cattle v Stockton)
Very rare cases it can be
(Spring v Guardian Assurance) - 40Economic Loss Defective BuildingsGenerally not recoverable in tort
If C fails to take reasonable steps to rectify/ leave, may not even be able to recover for physical damage (Murphy v Brentwood) - 41Negligent Misstatement: Hedley ByrneHedley Byrne
Special relationship: C relies on D's skill, D ought to have known this, reliance was reasonable
Extended principle:
If D holds himself out as having special skills, if C relies on this and is caused loss for D's failure to use this skill, D may be liable - 42Negligent Misstatement: Extended PrincipleMay not be liable if not in the business of giving that advice (Mutual Life v Evatt)
Information v Advice distinction (Banque Bruxelles v Eagle Star)
Generally not applicable to social relationships (Choudhary v Prabhaker)
D must have known that C would rely on D without further independent advice (Caparo)
If C should've known to get independent advice, D cannot be liable (James McNaughton) - 43Negligent Misstatement: Henderson v Merritt SyndicatesDuty of care not to cause pure economic loss
Hedley applies to provision of services
Existence of contractual relationships didn't negate liability in tort
Caparo is unnecessary once assumption of responsibility has been established - 44Negligent Misstatement: Customs and ExciseAssumption of responsibility may not be completely necessary
When it does apply, it is based on D's conduct not intention - 45Negligent Misstatement: Dubious ExtensionsSmith v Eric S Bush
Spring v Guardian Assurance
White v Jones - 46Liability for OmissionsGenerally no liability (Stovin v Wise)
But can be liable if D has assumed responsibility to C
(Barrett v MOD; Kent v Griffiths; Costello v CC; Mercer v Chatham Ry) - 47Liability for Third PartiesMust be highly foreseeable to be liable
(Dorset Yacht)
C should be at unique risk
(K v Home Sec)
D is only liable if they have assumed responsibility, created the danger or have control over the danger
(Mitchell v Glasgow CC) - 48Liability for Public AuthoritiesIn theory, can be liable just as everyone else can
Distinction between policy/operations
(X v Bedfordshire)
Problem when there are conflicting duties
(D v East Berkshire)
(Trent v Jain)
Military do not owe a duty for negligent decisions in the course of action (Smith v MOD)
Law Comm- serious fault for truly public bodies - 49Liability for Breach of Statutory DutyGenerally not actionable in tort
Can be actionable if the statute provides so or does not provide its own remedy
(Morrison v Scottish Power)
C must be of that particular class
(O'Rourke v Camden)
C must have suffered the type of damage within the statute
(Fytche v Wincanton) - 50Occupiers Liability: 1957Visitors
Permission
Explicit, implicit, without the authorisation, doctrine of allurement, continually not stopping (Lowrey v Walker), confined to certain area (Tomlinson v Congleton)
Common Duty of Care
Must allow C to be reasonably safe for the purposes invited
Can delegate to independent contactor (Haseldine v Daw)
Subject to UCTA, volenti and warnings - 51Occupiers Liability 1984Non-Visitors
C must be injured
D ought to have known of the danger
D should have anticipated C's presence
(Donoghue v Folkstone)
Subject to volenti
(Keown v Coventry NHS)
Only owe a duty to take reasonable steps to allow safety - 52Public NuisanceGenerally a crime, but can be actionable in tort
Key factor is widespread damage
(AG v DYA Quarries)
Don't need an interest in land to sue
(Tate and Lyle Co)
Can sue for bodily injury - 53Private NuisanceNeed a sufficient interest in land to sue
Three types:
Physical injury, encroachment, loss of amenity
Must interfere with ordinary comfort (Walter v Selfe)
Character of neighbourhood can affect loss of amenity (St Helens Smelting)
No need for malice (Hollywood silver fox)
D can be liable for failing to take reasonable steps to rectify (Sedleigh-Denfield v O'Callaghan)
D's utility isn't a defence (Bamford v Turnley)
Authority isn't a defence (Coventry v Lawrence)
Damages or an injunction can be awarded (Coventry v Lawrence) - 54Rylands v FletcherIf D brings something onto his land which is liable to do mischief if it escapes and it does escape, D is strictly liable for any harm caused
Escape is crucial (Read v J Lyons)
Bodily injury is not recoverable
Use must be non-natural
(Transco v Stockport)
Injury must be foreseeable, escape needn't be
(Cambridge water)
Defences include acts of third parties or nature (Richards v Lothian) - 55DefamationStatement must defame, refer to C and be published
Privileges: absolute, qualified (common law: duty to communicate and duty to receive; statutory: various reports and statements; press: reasonable belief in public interest)
Defences: truth, honest opinion, innocent dissemination
Remedies: injunction, damages, offer of amends
Reforms: actual malice - 56PrivacyNo tort of privacy in the UK
May be some protection under the ECHR
(Von Hannover) - 57Breach of ConfidenceReasonable belief in privacy in the information
(Campbell v MGN)
Lost once the information becomes public (AG v Guardian)
If accessed with difficulty, not public
(KGM v NGN)
Public interest may defeat the claim
(Mosely v NGN) - 58Types of DamagesCompensatory
Punitive
Aggravated
Nominal
Contemptuous
Restitutionary
Vindicatory - 59Personal InjuryMedical Expenses
Hospital care (ignore the fact they could've used the NHS)
Adaptation of accomodation/transport
(Povey v Rydal)
Loss of Earnings
Multiplier v Multiplicand - savings from not working
Reduction in life expectancy
Savings for lost years deducted, otherwise same as loss of earnings
(but nothing for children as too speculative) - 60Damages: DeathMost claims proceed for/against the estate
Fatal Accidents Act
if the tort has caused death, surviving can bring a claim for the death
Damages slim if a quick death
(Hicks v CC)
Bereavement
£12980 set class who can recover
Loss of dependency
support provided x years lost - D's expenses
Ignore any gain to the estate due to the death - 61Damages: Collateral AdvantagesDeductible (from all but pain and suffering)
Sick Pay
Benefits paid by D
Some social security
LA provided care (though under no obligation to use this- Peters v East Midlands)
Non-Deductible
Familial care
Pensions
Personal Insurance
Information
- Description
- Flashcards on Untitled, created by Molly Amber on 02/06/2015.
- Created by
- Molly Amber · Jun 2015
- Updated
- Feb 3, 2018
- Views
- 2
- Rating