Tort Essays

Page 1

Duty of Care

THE SCOPE OF THE DUTY OF CARE IN NEGLIGENCE DEPENDS ULTIMATELY ON THE COURTS' ASSESSMENT OF THE NEED TO PROTECT SOCIETY FORM THE CARELESSNESS OF OTHERS. Discuss.

Plan: broad question which requires you to think about policy considerations behind the case law that has defined the scope of duty of care in negligence. What the duty of care is in a range of situations and why it's been developed that way.

It does - since LA's neighbour principle based on the Christian principle of 'love thy neighbour' = reasonable to impose a doc from manufacturer to consumer etc... The scope is also refined by fairness: policy considerations: Lord Goff on omissions and Lord Hoffman on imposing duty of care on the whole world.

Duty of care has been developed and refined since D v S 1932, with policy considerations behind the case law that has defined the scope of the duty of care in negligence. This sets the basis for establish a duty of care however, the courts role lies in determining a doc on the basis of individual circumstances when a case falls outside of established duty situations.

basic idea of the doc: concerns relationships which must be such that there is an obligation upon the d to take care

the general duty of a doc from Donoghue v Stevenson 1932, refined by Caparo v Dickman 1990

the established duty situations e.g employers/employees, doctor to patient + how outside of these categories of established duty, a doc will be determined on the basis of individual circumstances

a discussion on the doc of failing to act; Lord Goff and Hoffman on omissions, Good Samaritan Law in Aus and Canada, not in UK legal system

the evolution of the duty of care in negligent misstatement, Caparo applied in Hedley Byrne v Heller

the operation of the duty rules relating to pure economic loss

the existence of the doc in relation to psychiatric injury

For each case used, "this case reflects the court's assessing the need to protect society from loss or harm caused by the carelessness of others"

Page 2

Breach of Duty

'THE STANDARD OF CARE IN NEGLIGENCE IS THAT OF THE REASONABLE PERSON'. Discuss, using examples

start with how general standard of care was defined in Blyth v Birmingham Waterworks 1856 "doing something which a prudent and reasonable man would not do" or "the omission to do something which a reasonable man ... would do"

the conduct to be measured against reasonable person, "man in street, Clapham junction" - Greer LJ

reasonable person is average not perfect

objective test applied by court "what would the reasonable person have foreseen in this situation?" rather than "what did this particular d foresee?"

the exceptions of these principles as established in Blyth v Birmingham Waterworks 1856: when the standard of care is not that of a reasonable person:

​​​​​​​explain why the application of the general standard of care isn't suitable and then say what the soc is:

​​​​​​​where d has particular skill

where d has lack of skill

where d is child

where d is involved in sporting event

talk about the other relevant factors a court might take into account in deciding whether to apply a different standard of care to that of the reasonable person, the consideration of:

magnitude of the risk

cost and practicability of precautions

social utility of the d's activities

what the relevant person would have foreseen

conclusion: summarise main points raised and relate them back to the question: as aforementioned, there are a range of alternative standards of care applicable to various situations.

Page 3

Causation and Remoteness of Damage

'CAUSATION AND REMOTENESS OF DAMAGE PROVIDE THE LINK BETWEEN THE DEFENDANT'S NEGLIGENT CONDUCT AND THE HARM SUFFERED BY THE DEFENDANT' Discuss.

https://www.lawteacher.net/modules/tort-law/causation-and-remoteness/causation/lecture.php

the purpose of them both as a means of apportioning and limiting liability:

define causation: the link between conduct and damage

define remoteness: making sure the link is strong enough as to eliminate other causes of damage which are too far from the original negligence as being recoverable

causation:

but for test in factual, Barnett v Chelsea and Kensington HMC 1969; then why factual causation proves difficult in practice, but for limited by scope of doc (SAAMCo 1997)+Lord Hoffman's mountaineering example, reaffirmed by BPE Solicitors v HH 2017; main problem with but for test is when multiple causes are identified: leading on to a discussion of situations of concurrent/consecutive causes

discuss the concept of novus actus interveniens in breaking the chain of causation: by 3rd parties, by the claimant + by acts of nature

end of para: "this point is relevant as it ..."

remoteness:

tests from Re Polemis and The Wagon Mound (No 1) with explanation of why they cannot be reconciled and why they remain good law

explain that TWM (No 1) is followed in practice

how remoteness is affected by the thin skull rule

end of para: "this point demonstrates..."

PQ:

if 1 cause: apply but for causation

Page 4

Defences

PROBLEM QUESTION:

ALISON IS DRIVING VERY SLOWLY AS SHE IS TOWING A HORSEBOX CONTAINING 2 HORSES.

BASIS, DRIVING BEHIND IN A STOLEN CAR, GETS IMPATIENT AND OVERTAKES ALISON ON A BEND, CRASHING INTO CAROLINE WHO WAS DRIVING IN THE OPPOSITE DIRECTION.

CAROLINE WAS NOT WEARING A SEATBELT. SHE SUSTAINS SERIOUS HEAD INJURIES AS A RESLUT OF THE ACCIDENT. HER PASSENGER, DEREK, WHO KNEW THAT THE CAR HAD JUST FAILED ITS MOT DUE TO FAULTY BRAKES, WAS ALSO BADLY INJURED.

BASIL'S PASSENGER, ERIC, WHO HELPED BASIL STEAL THE CAR, SUFFERED A BROKEN LEG.

FREDDIE (8 YRS OLD) HEARD THE SOUND OF THE COLLISION AND RAN INTO THE ROAD TO SEE WHAT WAS HAPPENING AND WAS STRUCK BY ALISON'S CAR.

FREDDIE SUFFERED A BROKEN PELVIS. ALISON WAS PAYING INSUFFICIENT ATTENTION TO THE ROAD WHEN FREDDIE RAN OUT BCAUSE SHE WAS SENDING A TEXT TO HER HUSBAND TO TELL HIIM ABOUT THE ACCIDENT.

identify potential defendants, consider their liability and advise them on defences.

PLANNING

3 main defences:

Complete defences:

Consent: prove 2 things

employees: Smith v Charles Baker and Sons 1891

passengers: s149(3) RTA 1998: willing acceptance of risk of negligence does not absolve driver of liability

sporting events: general principles from Smoldon v Whitworth and Nolan 1997.

Illegality: "No action arises from a disgraceful claim"

Partial defence:

Contributory negligence

Consent: must show defendant has committed a tort and then prove (1) knowledge of the specific risk (2) willing consent to the risk.

- The claimant had knowledge of the risk involved (nature and extent of risk): Morris v Murray 1991

This requires more than a vague awareness of danger; specific knowledge of the type of risk.

*essay:Subjective test so have to find evidence of what the claimant knew/was thinking; analyse facts of a PQ. Focus on claimant's knowledge of the risk, not obvious risks.

Claimant went drinking with a friend for some hours, claimant's friend then suggested to go on a joyride in light aircraft. Aircraft, piloted by claimant's friend, took off in poor visibility, low cloud, drizzle. Aircraft crashed. Pilot was killed and claimant seriously injured in the crash. Autopsy on pilot showed more than 3x legal alcohol limit for driving. Claimant brought action against deceased's estate claiming damages for PI. Judge warded £130,00 damages. Estate appealed.

Court applied subjective test and held that the claimant was aware of the risk he was taking and therefore his claim against the deceased's estate was barred by the defence of consent.

- Voluntary consent of the claimant

Defendant must prove that the claimant freely consented to run the risk of injury. Knowledge doesn't = consent. Free consent implies the claimant must have had a choice as to whether or not to accept the particular risk. The defence will not succeed where the claimant had no choice but to accept the risk (Smith v Charles Baker & Sons 1891), or where they lack the mental competence to agree (Gillick v West Norfolk and Wisbech AHA 1986).

3 categories who have had specific attention from courts:

passengers in a car (Derek + Eric): courts reluctant to find that an injured passenger has consented even by a driver who is intoxicated, Section 149(3) RTA 1998: the willing acceptance of the risk of negligence by a passenger does not absolve the driver of liability.

employees: consent rarely a defence for employees injured in their workplace; don't have the financial means to leave the job (Smith v Charles Baker+ Sons 1891)

ppts and spectators at sporting events: General principle: participation implies consent to injuries sustained during the course of normal play but not unsporting behaviour that is in breach of the rules of the game: Smoldon v Whitworth and Nolan 1997. Voluntary participation = individuals deemed to have consented to the risks inherent in that sports; risks will obviously vary from sport to sport.

Illegality: "No action arises from a disgraceful claim" if the claimant was knowingly involved in unlawful enterprise at the time he was injured, it would be contrary to public policy to allow him to succeed. Must be a close link between the damage caused to the claimant and the criminal enterprise e.g.

Fair degree of dissent amongst case law as to application of illegality. Some cases taken a strong line and held that the claimant's participation in unlawful activity deprives him of any claim for injury sustained during the criminal enterprise:

- Murphy v Culhane 1977 (claimant who started fight but severely injured by his opponent was prevented from claiming for the injuries sustained due to illegality): wasn't allowed to claim

- Velino v Chief Constable of Greater Manchester Police 2002 (a claim for neg against police for injuries to a prisoner who they failed to prevent from jumping out a window was rejected on the basis of illegality): police weren't allowed to claim

- Revill v Newbury 1996 - claimant went to steal property from a shed but the owner was waiting for him and shot him with a shotgun, he sustained serious injuries and the court held it was too far reaching to deprive the claimant of compensation for injury which he is otherwise entitled to recover at law; it was too far reaching to deprive the claimant of a claim on the basis of illegality. was allowed to claim.

*essay: part of the court's reluctance to defeat a claim on basis of illegality is that they are defeating a claim that otherwise satisfies the requirements of the tort in question, in comparison, CN will allow the claim to succeed but will adjust the amount of damages awarded to reflect the contribution of the claimant to the injury

-Hounga v Allen 2014 - SC said illegality did not defeat a claim for statutory discrimination

*essay: Lord N in Jetivia SA v Bilta Ltd 2015 - on different approaches and difficult topic:

"first, then, there is the proper approach which should be adopted to a defence of illegality. This is a difficult and important topic on which...there can be strongly held differing views and it is probably accurate to describe the debate as involving a spectrum of views. The debate can be seen as epitomising the familiar tension between the need for principle, clarity and certainty in the law with the equally important desire to achieve a fair and appropriate result in each case.

in my view, while the proper approach to the defence of illegality needs to be addressed (certainly with a panel of seven; conceivably with a panel of nine) as soon as possible ... it would, in my view, be unwise to seek to decide such a difficult and controversial question in a case where ... there has been little argument on the subject"

Thus, courts recognise that the defence of illegality requires clarification*

CN:

Key statute: Law Reform (Contributory Negligence Act 1945, s1(1): basically: claim involving partly the claimant's fault, claim will not be defeated, just the damages will be reduced and will reflect their contribution to the damage.

applies when claimant's careless has contributed to the injury and this is reflected in reduced damaged

applies to others areas of tort, in s45 of CNA 1945.

establish (1) claimant's damage, includes death and PI but isn't limited (s45). the injury suffered by the claimant but be a foreseeable consequence of his own behaviour even though it came from the d. and (2) claimant's fault: must be shown claimant failed to take care of his himself. CN claim will succeed if you can prove claimant failed to recognise he would be jeopardising his own safety and this would have been obvious to the ordinary person: Jones v Livox Quarries 52 + Badger v MoD 2006. also damage can't be too remote: vs St George v Home Office 2009: claimant held not to be contributory negligence for injuries sustained as his addiction which caused seizures was too remote from the damage suffered, caused by the defendant.

*Essay*:

Jones v Livox Quarries 1952 - claimant injured at work when 2 quarrying vehicles collided. Claimant was sat on the back of one of the vehicles when collision happened without driver's knowledge and against the rules of doing so. Held that this did amount to CN as the claimant 'ought to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself'. Thus, injury claimant suffered must have been a foreseeable consequence of his own behaviour even though the damage was caused by the defendant:

Badger v MoD 2006 - damages recoverable by the widow of a man who died after contracting lung cancer from asbestos exposure by the defendant were reduced by 20% as her late husband had continued to smoke knowing/or should have known that his doing so was liable to damage his health and he had been told to stop: a prudent man would've known the risk.

vs:

St George v Home Office 2009 - claimant not held to be CN in respect of injuries he sustained due to negligence of prison staff, claimant was a drug. and alcohol addict and told the staff he suffered from seizures from withdrawal, he was allocated a top bunk which he fell off during a seizure, leaving him permanently, severely disabled. Although the claimant wouldn't have suffered withdrawals and seizures but for his addition, the claimant's act in becoming addicted was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff to be properly regarded as a potent cause of the injury.

SoC for CN: that of the reasonably prudent person: CN will succeed if it can be proved that the claimant failed to recognise he would be jeopardising his own safety which would have been obvious to the ordinary person.

contributory negligence for:

children. Gough v Thomas 1966. struck by car but signalled to go, court held all had been done of a child that age, 13 yrs old. Lord Denning: CN cannot apply to very young child, older child maybe in circumstances. child should only be found blameworthy if they are of an age to reasonably be expected to take precautions.whether their behaviour showed a level of care for their own safety that was appropriate for their age. compared to Yachuk v Oliver Blais Co Ltd 1949 - nine year old claimant suffered serious burns after setting fire to petrol supplied by the ds. Not CN as he was not of an age where he would appreciate the danger of playing with petrol.

rescuers: obj soc modified to that of the reasonable rescuer. higher threshold: CN only found if rescuer has shown wholly disregard for his own safety. Baker v TE Hopkins & Son Ltd 1959.

emergency situations: court recognise 'sudden peril' and acting in the heat of the moment = not going to weigh up actions. about if the c's actions were reasonable in the context.

Passengers: Froom v Butcher 1976: Froom guidelines for apportioning liability:

Froom v Butcher 1976 for contribution to injury = reduction in damages. C was a passenger, injured when car was struck by oncoming vehicle, driven dangerously by the d. Could not wearing a seatbelt = CN? Yes because CN was concerned with the cause of claimant's injuries, not the cause of the accident. She had contributed to her injury by not wearing a seatbelt, as had the accident.

CoA went on to establish a scale of reductions based upon failure to wear a seatbelt:

- injuries would have been avoided altogether if a seatbelt had been worn: 25% reduction

- injuries would have been less severe if a seatbelt had been worn: 15% reduction

- injuries would have been the same even if a seatbelt had been worn: no reduction.

As F v B 1976 makes clear, the focus of attention must be on how the claimant's behaviour has contributed to his injuries, not considering it in isolation. If bad behaviour made no difference to the injury e.g. if c acted impeccably, there will be no impact on damages.

Froom guidelines also been applied to:

motorcycles

bikes

*essay*:

In Jackson v Murray 2015 - SC considered ways in which responsibility should be attributed and the principles that should govern appeals against calculations, concluding that appellate courts should rarely amend apportionment, even if their conclusion would have been different.

Page 5

Occupier's Liability

Page 6

Liability for Psychiatric Injury

Page 7

Liability for Economic Loss

Page 8

Product Liability

Page 9

Vicarious Liability

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Damages

Page 11

Trespass to the Person