Tort Law - Notes for the year PDF

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Summary

Tort law is a branch of private law. It is the obligations we have to one another. Torts such as negligence require proof of damage whilst others such as trespass and libel are actionable without proof of damage.Negligence claim:  Damage: Physical injury  Compensatory damages: how to repair o Pecu...

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Tort law is a branch of private law. It is the obligations we have to one another. Torts such as negligence require proof of damage whilst others such as trespass and libel are actionable without proof of damage. Negligence claim:  Damage: Physical injury  Compensatory damages: how to repair o Pecuniary damages: loss of earnings, limited capacity, expenses o Non-pecuniary: injury, pain and suffering, loss of amenity  Compensatory damages depend on the severity of the injury Functions of negligence liability:  Compensation – to partially resolve the situation such as financial loss or medical bills  Deterrence – prevention of reoccurrence o Compensation Act 2006  Vindication – Holding those at fault accountable  Corrective justice – Morally responsible to repair damages  The role of insurance Compensation Lord Blackburn in Livingstone v Rawyards Coal Co explained the meaning of “restitution in integrum” when he said compensation should take the form of the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. When one person harms another by their wrongdoing they have a moral responsibility to repair the harm: negligence liability corrects the injustice by requiring them to pay compensation. The elements of a negligence claim:  Damage  Duty of care  Breach of duty  Causation  Defences Claimant has to prove 1-4. Causation Factual causation – if It weren’t for the people involved would this have happened Legal causation Defences Contributory negligence Illegality Voluntary assumption of risk

Alternatives to negligence liability Pearson Commission (1978) No-fault liability New Zealand system Motor Insurers’ Bureau Criminal injuries compensation First party insurance Human Rights Act 1998 Social Action, Responsibility, And Heroism Act 2015 (SARAH Act)

Damage and Duty of Care Negligence is usually defined as a breach of a legal duty to take care which results in damage to the claimant. The claimant must prove 3 things to establish a tort of negligence:  The defendant owes the claimant a duty of care  The defendant has acted in breach of that duty  As a result, the claimant has suffered damage which is not too remote as a consequence of the defendants breach Establishing the existence of a duty of care is the first hurdle to overcome. Step 1: Actionable damage Hinz v Berry [1970] Damages have to be medically recognised to be repayable not grief or sorrow. Rothwell v Chemical & Insulating Ltd [2007] You have to be worse off, physically or economically so compensation is appropriate but you cant simply have just a change in physical condition. Have they suffered actionable damage? Claim Law Evaluation Outcome Duty of care: Legal duty to take reasonable care not to cause harm to another person through your acts or omissions. In most cases whether a duty of care is owed is now dealt with by precedent. Case law and precedent: The ratio decidendi and obiter dicta The decision: is the defendant liable The ratio: the reason for the decision – the reasoning necessary to get from the material facts to the decision – this is the legal principle underlying the decision. Obiter dicta: things said in passing Proximity Donoghue v Stevenson [1932] The ‘neighbourhood principle’: Persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions. Anns v Merton London Borough Council [1978] Lord Wilberforce’s 2 stage test for duty: 1) The person who suffered damage has a sufficient relationship of proximity or neighbourhood and carelessness on the formers behalf may be likely to cause damage has a duty of care. 2) If the first question is yes, are there any considerations which reduce or limit the scope of duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise.

The caparo test 1 The claimant should point to a direct precedent or closely analogous precedent 2 Where no relevant precedent exists, the court should apply a tripartite test for duty: a. Some damage was foreseeable to a foreseeable claimant b. There is a sufficiently close relationship between the parties to establish a duty in that class of case (proximity) c. That it is fair, just and reasonable to impose a duty. Don’t use the Caparo test when it is clear a duty of care is owed. The essential point of Caparo is that all cases of negligence need the requisite level of proximity between parties: that is, a sufficient level of relationship. In cases of personal injury or damage to property, proximity is established if the defendant ought to have foreseen the damage to the claimant. In other cases, those involving psychiatric injury or pure economic loss, a closer relationship than mere foresight will be required. Reasonable foreseeability The claimant must fall within a class of individuals put at foreseeable risk by the defendants action – the defendant does not owe a duty of care to the world at large. It is clear where a defendants negligence creates a situation where another needs to be rescued, the rescuer will not be an unforeseeable victim. It is foreseeable that when a person puts another or himself in a position of peril, someone will attempt a rescue. Darnley v Croydon Health Services NHS Trust: Duty of care: Should D be taking reasonable care of C? Her duty of care was limited to her work duties which was simply booking in the patient and registering any updates on the patient’s health if recognised or informed of. Breach of duty: Did D take reasonable care in the circumstances? Reasonable foreseeability: judgment of case It was reasonably foreseeable that some patients do leave A&E Videan v British Transport Commission [1963] A child of two years trespassed onto a railway line and was in danger of being knocked down by a carelessly driven trolley. The child’s father was killed while attempting to rescue the child. The court held D liable. The trolley driver was undoubtedly negligent in that he was travelling too fast in the wet condition and failed to keep a proper lookout. There was no duty owed to the boy as he was a trespasser. Negligence:  Damage as the gist of the action  Duty of care – the defendant must owe the claimant a legal duty not to cause them harm complained of  Breach of duty – the defendant has failed to meet his duty  Causation – this breach of duty must have resulted in the harm complained of

Omissions The common law has long taken the view that it would be too great a burden to impose liability upon people for mere omissions. The law cannot require a person to love his neighbour but it can only ask that they should avoid injuring them so there is, for example, no liability for failing to prevent someone walking over a cliff. Even though it is the courts’ general position that mere inaction does not give rise to liability, duties in this respect can in fact be imposed in two ways. The first is terminological, that is, interpreting an omission as a negligent act. The second way of imposing a duty is by considering the pre-tort relationship of the claimant with the defendant. A duty of care in respect of omissions can come about either due to the previous conduct of the defendant, which induces reliance by the claimant that the defendant will continue to act in that way, or by reliance which comes out of a relationship of dependence between the parties or a relationship of proximity. An exception to the rule such as police exists. Lord Goff suggests that a duty in respect of the third parties’ actions can arise in four circumstances: a special relationship either between claimant and defendant or between the defendant and the third party; creation of a source of danger, or failure to take steps to abate danger. Michael v Chief Constable of South Wales [2015] She made a report her ex-boyfriend was aggressive and he turned up in the night to find her with another man. He took her car and drove the man home and was going to come back any minute. Her call wasn’t picked up by South Wales police but instead another force. Her ex-boyfriend hit her and bit her ear. The call handler asked her if she could lock the doors but didn’t tell her to, Michaels said she didn’t know if he had a key but said she would try. The call handler doesn’t recall hearing a threat so when the details were passed on she didn’t mention there was a threat to kill. The immediate threat was the man driven home by Michael’s ex boyfriend. It was initially a grade 1 call but was then downgraded to a grade 2 as no threat to kill was mentioned. A history of abuse on 4 occasions had been reported in 2 years. An independent police complaints commission found there had been serious organisational mistakes. Lord Toulson (majority judgment) said: “English law does not as a general rule impose liability on a defendant for injury or damage to the person or property of a claimant cause by the conduct of a third party. This was established in Smith v Littlewoods Organisation Ltd (1987)”. The law does not generally impose liability for pure omissions. An “immunity” is generally understood to be an exemption based on a defendants status from a liability imposed by the law on others, as in the case of sovereign immunity. Smith v Littlewoods Organisation Ltd (1987) The defendant owned a disused cinema which they purchased with the intention of demolishing it and replacing it with a supermarket. The cinema was last used on 29th May 1976. Littlewoods acquired the building on 31st May 1976. Contractors were present at the cinema until 21st June and thereafter the cinema was empty until the incident on 5th July 1976. The contractors had left the building secure, however, vandals had broke into the building. Littlewoods had not been informed of this and so the building remained unsecured. There were also two small incidents involving fire. None of this was reported to the police or Littlewoods. On July 5th the vandals broke into the cinema and set fire to it. The fire spread

and caused damage to neighbouring properties. The owners of the properties brought an action in negligence claiming that Littlewoods owed them a duty of care to prevent the actions of the vandals. Littlewoods were not liable. Whilst they did owe a duty of care they were not in breach of duty. They were not required to provide 24 hour surveillance and were unaware of the previous incidents. Exceptions: Control: Reeves v Commissioner of police for the Metropolis [2000] The victim committed suicide in police custody and it was argued the police owed him a duty to prevent him from taking his own life. They owed this duty as they exercised control over him because he was in police custody and they had control over his activities. Assumption of responsibility: Barrett v MOD [1995] One night he was celebrating his 30th birthday and a recent promotion by drinking with his friends in the bar provided at the Naval base. The claimant’s husband was drinking heavily and was involved in a drinking competition and became extremely drunk to the point where he passed out. He was carried to a chair in the lobby. A senior officer saw him and told Petty Officer Wells to take him back to his cabin and look after him. He was taken back and placed in his bunk and left in the recovery position. He was in a coma but tossing and turning. The Petty Officer checked on him on two occasions but he was then found dead at 2.30am. At trial the judge held that the MOD were liable for his death because of the relaxed attitude towards excessive drinking at the base, in that it was common for officers to drink heavily and rules and penalties relating to alcohol consumption were not being enforced. The damages were reduced by 25% under the Law Reform (Contributory Negligence Act) 1945. The MOD appealed on the grounds that no duty of care should arise to prevent a person becoming intoxicated. The impact on earlier case law: Hill v Chief Constable of West Yorkshire [1989] Hill was the final victim of the Yorkshire Ripper (Peter Sutcliffe). Hills death was reasonably foreseeable as the Yorkshire Ripper was killing young women however there was no relationship of proximity as there was nothing to singling her out of being high risk as he was after any young woman not specifically her but the police also did not know who the attacker was. There was weak proximity between the victim and police, and third party and police. The Hill exception is now (primarily at least) based on the principle that the general duty of the police to enforce the law did not create a specific and individual duty of care to each and every member of the public. Smith v Chief Constable of Sussex Police [2009] Facts  Joint appeal with Van Colle  Smith reported continual threats to the police  He was later severely injured by the person who was threatening him Issue  Were the police responsible for not protecting Smith? Decision  No duty

Reasoning  Public policy  Overruled decision in Osman v UK Lord Bingham thought there should be a duty but he was the minority so he didn’t win. Lord Bingham presented the ‘limited liability principle’ in his dissent which stated that: “I would hold that if a member of the public A furnishes a police officer B with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed.” Lady Hale’s dissent: “It is difficult indeed to see how recognising the possibility of such claims could make the task of policing any more difficult than it already is. It might conceivably, however, lead to some much-needed improvements in their response to threats of serious domestic abuse. I very much regret to say that some of the attitudes which have led to the inadequacies revealed in that report may also have crept into the policy considerations discussed in Smith…If the imposition of liability in negligence can help to counter such attitudes, so much the better.” Existing police duties: Creation of danger Rigby v Chief Constable of Northamptonshire [1985] The police were found liable to pay damages for negligence having fired a gas canister into the plaintiffs’ premises in order to flush out a dangerous psychopath. There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was fire fighting equipment available to put the fire out at an early stage. No equipment had been present at the time and the fire had broken out and spread very quickly. Held: The defence of necessity might be available to police officers when looking at a claim for damage to property. Existing police duties: Witnesses and informants Swinney v Chief Constable of Northumbria Police [1997] Mr & Mrs Swinney were managers of a pub. They came across information relating to the identity of a person responsible for the unlawful killing of a police officer. They passed this information on to DC Dew who recorded the information. The document containing this information was later stolen from an unattended police car. Subsequently, Mr & Mrs Swinney received violent threats and suffered psychiatric injury as a consequence. They brought a negligence claim against the police for the psychiatric injury suffered. The claim was struck out by the district judge. The Swinneys’ appeal was allowed by Laws J. The police appealed to the Court of Appeal contending the facts did not give rise to a duty of care. Held: The appeal was dismissed the case should continue to trial. By accepting the information, knowing of its confidential and sensitive nature, the police had assumed a responsibility to deal with the information in an appropriate manner. There were no policy reasons for denying the existence of a duty of care. Policy factors dictate that a duty should be owed to preserve the springs of information, to protect informers, and to encourage them to come

forward without an undue fear of the risk that their identity will subsequently become known to the suspect or to his associates An informer v a Chief Constable [2012] He had provided them with information, but he said that they had acted negligently and in breach of contract causing him financial loss. The officer handling his case had failed to notify a judge of his involvement and had allowed a case for money laundering to proceed against him. The judge found no contract to that effect, nor any duty to avoid all economic losses. Held: The claimant’s appeal failed. They recognised a need to care for the informers welfare, which would include his financial well being, but only so far as his condition was affected by his acting as an informer. There was a duty to the claimant arising out of the proximity of the relationship, which extended beyond his physical welfare, possibly covering his financial welfare and the claim was based on financial loss. However, when considering the scope and extent of the duty, and the standard of care required, the complexity of the situation was to be borne in mind. Existing police duties: employees Costello v Chief Constable of Northumbria [1999] A woman police officer was attacked by a prisoner in a cell. She sought damages for the failure of a senior officer nearby not to come to her aid, and from the chief constable under his vicarious liability. Held: The chief constable’s appeal was dismissed. One police officer has a duty of care to come to the rescue of another. This special duty between police officers was not just a matter of police discipline, and exists despite the absence of a general duty of officers to aid particular members of the public. “Neither the police nor other public rescue services are under any general obligation, giving rise to a duty of care, to respond to emergency calls . . nor, if they do respond, are they to be held liable for want of care in any attempt to prevent crime or effect a rescue. But if their own positive negligent intervention directly causes injury which would not otherwise have occurred or if it exacerbates injury or damage, there may be liability.” Mullaney v Chief Constable of the West Midlands [2001] The claimant police officer was severely injured making an arrest. He claimed damages from the respondent for contributory negligence of other officers in failing to come to his assistance. Held: If a police officer owes a duty of care to another police officer and if he is in breach of that duty the relevant chief police officer is liable provided that the breach is committed in the course of his `employment’ The chief constable should be treated as owing to his officers the same duties as an employer owes to his employees, subject to such considerations of public policy as arise on the facts of a particular case. The chief constable was in breach of his non-delegable or personal duty owed to the claimant as his quasi-employer because, although a safe system was devised, it was not safely operated.

Cases of no duty Brooks v Commissioner of Police of the Metropolis [2005] Duwaine Brooks was present at the notorious racist killing of his friend Stephen Lawrence. Duwaine had also been subjected to abuse and attacks. He brought a claim against the Commissioner for the failure to provide him adequate protection, support and assistance which was generally afforded to victims of serious crimes. He suffered post traumatic stress disorder which he claimed was exacerbated by the treatment he received from the police. The Commissioner applied to have the case struck out on the grounds that there was no reasonable cause of action. The High Court granted the application holding that no duty of care arose. Brooks appealed to the Court of Appeal who allowed the appeal holding that a there was a sufficiently proximate relationship to impose a duty of care. The Commissioner appealed. Held: The appeal was allowed. The case of Hill v CC Yorkshire precluded the imposition of a duty of care. Desmond v Chief Constable of Nottinghamshire Polic...