Tort (FLK 1)

Tort (FLK 1)

1. Negligence

   • Duty of Care
     • Police owe the same established duty of care to pedestrians as all other road users
     • While the police do owe a general duty of care to the public, this duty cannot be relied upon by an individual member of the public in order to bring a civil claim for damages in negligence (Hill v Chief Constable of West Yorkshire [1989]) - in the investigation of crime no duty of care is owed by the police to individual members of the public
     • Caparo test = 3 part test to determine whether a duty of care is owed: 1) Foreseeability, 2) Proximity and 3) Fairness
     • Ds can be liable for their omissions if they have a positive duty to exercise control over third parties
     • Shops and other suppliers will rarely owe a duty of care in negligence to their customers. The exception = where the shop is expected to carry out an immediate examination of the goods.
     • A manufacturer cannot exclude liability for personal injury and they will only be able to exclude liability for other losses if the exclusion clause is deemed fair
     • As long as a skilled defendant’s actions are supported by a reasonable body of professional opinion, they should not be judged negligent
   • Employers' Liability
     • Statutory Duty
       • Breaches of statutory health and safety regulations cannot be relied upon by employees as the basis for a claim for breach of statutory duty (s.47 Health and Safety at Work Act 1974). However, the content of such regulations will be relevant is assessing breach of duty in negligence i.e. a reasonable employer would comply with such regulations
       • Employers owe employees a personal non-delegable duty to ensure reasonable care is taken (Wilsons & Clyde Coal Co Ltd v English [1937])
     • Negligence
       • Under the Employers’ Liability (Defective Equipment) Act 1969, a claim against the Employer for attributable negligence can be brought if a third party contractor was at fault
       • Must prove lack of reasonable care i.e. fault of the employer
       • Courts will consider the cost and practicality of precautions, the magnitude of the risk to be prevented and the obligation imposed
       • Employers owe former employees a duty of care when providing references as they assume responsibility by providing a reference (Spring v Guardian Assurance plc [1994])
       • An employee can recover damages for occupational stress where injury to health was reasonably foreseeable and the employer breaches its duty of care towards the employee
     • Vicarious Liability
       • Competent Staff
         • Will have breached its duty to provide competent staff if it either knew or it ought to have known that the staff member was incompetent (as per Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348)
       • Intentional Acts of Employees
         • The employee must have committed a tort during the course of their employment and there must be a sufficiently close connection between the employee’s job and the tort they committed to make it fair and just for the employer to be held liable for the employee’s actions
       • Most people will not be within the scope of their employment when travelling to work
   • Pure Psychiatric Harm
     • General rule = D does not owe any duty to C not to cause pure psychiatric harm
     • The injury must be caused by a sudden shock AND either a) a medically recognised psychiatric illness or b) a shock-induced physical condition (e.g. miscarriage or heart attack)
     • Primary victim - duty owed if risk of physical injury was foreseeable
     • Secondary victim - 1) the psychiatric illness must be reasonably foreseeable, 2) C must have a close relationship of love and affection, 3) C must be present at the accident or its immediate aftermath and 4) C must see or hear the accident or its immediate aftermath with their own senses (the Alcock Test)
   • Pure Economic Loss
     • Replacement of a defective product is deemed to be pure economic loss and therefore not claimable in negligence (only claimable in contract)
     • General rule = D does not owe any duty to C not to cause pure economic loss
     • A duty of care can be owed in respect of pure economic loss caused by a negligent statement where there is a special relationship between C and D involving an assumption of responsibility by D in making the statement and reasonable reliance on the statement by C (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964])
     • If there's physical damage, then it's not pure economic loss
   • Res Ipsa Loquitur
     • 'The thing speaks for itself'
     • 1) the thing causing damage must be under D's control, 2) the accident must not normally happen without negligence and 3) the cause of the accident must be unknown to C - no direct evidence or failure by D
     • Raises a prima facie inference of negligence - D must provide a reasonable explanation of how the accident could have occurred without negligence

2. Product Liability

   • C need only be a consumer who has suffered harm caused by a defect in the product and does not need to have purchased the product
   • The test for remoteness of damage under the CPA 1987 = the direct consequence test as the CPA involves strict liability
   • Negligence can provide compensation for property damage (even if business property) but does not provide compensation for pure economic loss, i.e. the cost of the product itself
   • For a claim under CPA 1987, C must suffer damage caused by a defect in a product - a CPA claim does not compensate for damage to business property or for damage to the product itself

3. Occupiers' Liability

   • Both the tenant and the landlord can be occupiers under the OLA 1957 if they have the requisite control of the premises (Wheat v Lacon [1966])
   • The CRA 2015 prohibits the exclusion of liability for death and personal injury
   • It is not possible to claim for property damage under the OLA 1984 Act in any event
   • The defence of illegality does not apply to claims under the 1984 Act
   • Warning signs and discouragements may be sufficient to discharge the duty of care owed by the land-owner to see that any unlawful visitor does not suffer injury on the premises by reason of any danger concerned e.g. if the land is fenced off

4. Nuisance

   • Public Nuisance
     • Public nuisance requires the claimant to have suffered over and above a class of “Her Majesty’s subjects”
   • Private Nuisance
     • Only a person with exclusive possession of land can sue in private nuisance
     • Cannot bring a claim for private nuisance when the harm is personal injury or illness
   • The escape of something dangerous in the course of a non-natural use of land (Rylands v Fletcher) - imposes strict liability if 1) D brings onto their land for their own purposes something likely to do mischief, 2) it escapes, 3) which represents a non-natural use of land and 4) it causes foreseeable damage of the relevant type

5. Defences

   • Illegality
     • There must be a very close connection between the illegal activity of the claimant and the injury which they suffered
     • The damage suffered must arise directly from C's illegal activity
     • Will not be available if the injuries were as a result of an inherent part of the joint criminal enterprise (Pitts v Hunt)
   • Contributory Negligence
     • Must be a causal connection between the carelessness and the claimant’s injury e.g. if the claimant failed to wear a motorbike helmet, the injury must be to their head for the defence to succeed
     • Where a claimant suffers injuries which would have been less severe had the claimant been wearing a seat belt, the claimant’s damages are likely to be reduced by 15% in accordance with the tariff established in Froom v Butcher [1975] 3 All ER 520 - likely to be reduced by 25% where the claimant suffers injuries which would have been avoided completely
     • There is no age below which a child cannot be contributorily negligent, but a child will not be tainted by their parent’s contributory negligence
     • Only a partial defence
     • Only a claimant can be contributory negligent - C must be careless
   • Necessity
     • Not available for an action in negligence
     • There must be imminent danger to life or limb AND the defendant's actions must be reasonable in the circumstances
   • Voluntary Assumption of Risk / Consent
     • It is not possible for the driver of a motor vehicle to use the defence of consent against a claimant who was a passenger in their vehicle
     • Claimant must have full knowledge of the nature and extent of the risk and willingly consent to accept the risk of the damage
     • The defence of voluntary assumption of risk will be successful where intoxication is known or evident (Morris v. Murray [1991])
   • Self-induced intoxication cannot be used as an excuse by claimants for failing to take reasonable care of themselves

6. A D who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence

7. Remedies

   • Future Loss of Earnings
     • Award of future loss of earnings = Multiplier x Multiplicand
     • Multiplicand = the net amount of the annual loss (net annual salary)
     • Multiplier = the term of annual loss (Ogden tables may be used)
     • Do not deduct ill-health pension
     • Discount Rate = the rate of interest C is expected to receive when investing their damages - current rate = minus 0.25% - this increases the multiplier
     • Cannot be claimed for any period after death
     • For lost years (where C's life expectancy is shortened as a result of the incident), the figure calculated is reduced by 25% for a married person with dependant children and 33% for those with no dependants
   • Damages for Personal Injury
     • Non-pecuniary = cannot be calculated in money terms (general damages) - includes a) pain and suffering e.g. anguish knowing their life expectancy has been shortened as a result from the accident - cannot claim for period when unconscious and b) loss of amenity (enjoyment of life) whether conscious or not
     • Pecuniary = can be calculated in money terms - includes a) medical expenses (annual cost of treatment x years of treatment), but not if treated or could have been treated by NHS and b) loss of earnings
   • Damages on Death
     • PR's can commence a claim on behalf of the estate
     • Dependants can sue for the death of a person on whom they were dependant if the deceased has not already completed their claim
     • Loss of dependency = multiplicand (deceased's net annual earnings minus their own living expenses (25% or 33%) plus any other contributions) x multiplier (years of dependency)
     • Damages for bereavement = 1 award of £15,120 - split between multiple claimants i.e. 2 parents
     • Funeral expenses = only where paid by dependants