Tort Law Revision Guide 2 2 PDF

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Tort Law Revision GuideTopics Duty of Care Breach of Duty Causation Remoteness Defences Occupier’s Liability Employer’s Liability/ Vicarious Liability Pure Psychiatric Injury Pure Economic Loss Public Authority Liability Product Liability Duty of Care Dead Claimant:  When the claimant dies the comm...

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Tort Law Revision Guide Topics 1. Duty of Care 2. Breach of Duty 3. Causation 4. Remoteness 5. Defences 6. Occupier’s Liability 7. Employer’s Liability/ Vicarious Liability 8. Pure Psychiatric Injury 9. Pure Economic Loss 10. Public Authority Liability 11. Product Liability 1. Duty of Care Dead Claimant:  When the claimant dies the common law cause of action dies with him. As a result, the Law Reform (Miscellaneous Provisions) Act 1934 allows the estate to sue for the loss from the moment of the negligence to death  The Fatal Accidents Act allows dependents to sue for the loss of income of the deceased Established duty situations: - One road user to another (Nettleship v Weston) - Employer-employee - only for physical injury, psychiatric injury needs to go to the DOC requirements (Fairchild, McGee) - Manufacturer to consumer - Doctor-patient (Bolam) - Solicitor-client -Teacher-pupil Winterbottom v Wright – C could not rely on an obligation arising under a contract to which C is not a party (privity of contract) Neighbour principle Donoghue v Stevenson  You must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour.  Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected

Caparo v Dickman – effectively redefined the neighbour principle (3 stage test)  The harm must be reasonably foreseeable

 There must be sufficient proximity of relationship  It must be fair, just and reasonable to impose a duty Policy factors (third limb) Hill v South Yorkshire – C’s daughter is the victim of a serial killer (Yorkshire Ripper). C argued that if the police had conducted the investigation properly her daughter would have been alive. Held: the police owe no DOC to individuals affected. -Imposition of liability may lead to the exercise of a function being carried out in a detrimentally defensive frame of mind (fear of being sued) -A great deal of police time, trouble and expense is likely to be exhausted defending litigants. The result would be a significant diversion of police manpower and attention from the suppression of crime Smith v Sussex Police – C, victim of a violent assault, suffered serious physical injuries. C had been in contact with the police about death threats but the police failed to look at the messages and took no steps other than tracing the source of the messages. Held: the Hill immunity is that the discharge of the function the police owes no legal duty of care to individuals affected. Osman v UK – the teacher had stalked and killed the child’s father and injured the child. The child (C) brought a personal injury claim he suffered as a result of the police’s failure to apprehend the teacher earlier and provide adequate protection. Held: the court was satisfied that it was reasonably foreseeable that harm would result and that there was sufficient proximity. However the Hill case had laid down, as a matter of public policy, blanket immunity on the police for such actions. ECHR held: the court found that there had been a violation of article 6 (right to a fair trial). The blanket immunity provided by Hill constituted a disproportionate restriction on the applicant’s right of access to a court.

Omission Claims for pure omission will fail – Stovin v Wise Exceptions: 1. D creates a source of danger in or near a road and then allows it to be interfered with by TPs and the source of danger then harms the claimant (road user) Haynes v Harwood – horse left untethered in busy street near school, school kids threw stones at horse, horse took off towards mother and children, C threw himself at horse to rescue mother. Held: DOC owed to C, as it was reasonably foreseeable to D that horse could easily bolt and it was known to D that there were schools in the area therefore risk of accident occurring

Topp v London County Bus – buses parked on layby next to busy road for 15 mins during a change of shift, keys left in ignition and buses left unlocked. One driver called in sick therefore a bus was left unattended for 12 hours. During the night, someone stole the bus driving it at very high speed. Driver collided with C and she was killed but the driver never identified. Held: no DOC – source of danger was not inherent or predictable but it required human intervention to make it dangerous (different from Haynes v Harwood). 2. D knew or should have known that a TP was creating danger on his property, especially by means of fire and failed to take reasonable steps to abate it himself before the danger spread to neighbouring properties Goldman v Hargrave – tree struck by lightening and caught fire, landowner instructed D (contractor) to cut it down but there was a weather change, which caused the fire to become uncontrollable causing damage. Held: DOC owed by landowner because of foreseeability – landowner aware of the tree and could have taken reasonable, cheap and easy steps to minimise risk such as watering down the tree Smith v Littlewoods – D bought a disused cinema to convert to supermarket; building left empty and vacant. During this period, vandals went in and started small fires. One day a fire got out of hand and burned the cinema, spreading to neighbouring properties. C (neighbouring café) sued D. Held: no DOC owed as this was a pure omission. D had no knowledge of vandals entering the premises and lighting fires. Unlike the landowner in the previous case, who was indeed aware of the risk. 3. D created the opportunity for TPs to harm C e.g. failure to supervise Home Office v Dorset Yacht – Borstal boys were taken to a camp. One night they were not properly supervised, resulting in 7 boys escaping and damaging the C’s yacht nearby. C sued Home Office (employer of prison officers – vicarious liability). Held: DOC owed – Caparo test satisfied Carmarthenshire v Lewis – David was at kinder garden, run by LA. During a supervised nap, David was left unaccompanied as another child cut their knee. In the absence of supervision, David got out of the building, which should have been unlocked and walked on to the main road. A lorry driver, in an attempt to avoid hitting David, braked sharply and was instantly killed. His wife bought an action against the kinder garden. Held: DOC owed – security failure (systematic negligence) but not held vicariously liable for the negligence of the teacher since the teacher acted in an emergency.

Palmer v Trees HA – X held in institution diagnosed with psychiatric illnesses. In an interview with a psychiatrist before release to community care, he admitted having sexual feelings towards children. CC was nonetheless granted and within a few months X started missing appointments with supervision over him decreasing. P was a 4-year-old child who lived near X and was raped and murdered by him. Mrs Palmer sued on behalf of her dead daughter and on her own behalf for psychiatric injury after these events. Held: no DOC to child. Only element of the Caparo test that could be satisfied was foreseeability, no public policy or proximity. Analysis of the three-part test 1. Reasonable foreseeability – D must have foreseen harm to the particular claimant or to a class of whom the claimant is one (objective test) Claimants that are particularly susceptible Hayley v London Electricity Board – C blinded in an accident. Near his home, the London EB dug a deep trench as part of their work. They alerted passersby by putting canons around trench. C walked along footpath and fell over a canon, suffering serious head injury. Held: the injury was reasonably foreseeable due to statistical evidence – 1 in 500 people in that area were blind therefore would potentially be walking around unaccompanied. Unborn Claimants Burton v Islington – mother attended hospital for a procedure in which the foetus was badly damaged as the hospital were unaware of the pregnancy. As a result, the baby was born severely disabled. Held: DOC owed to unborn – she was born alive therefore had an independent legal personality  Congenital Disabilities Act 1976, s 1(1) creates preconditions to bring an action. It provides the mother with immunity for negligently inflicted injuries on the C while in utero. However the immunity does not extend to fathers. Mother loses the immunity when driving negligently as she is compulsorily insured. 2. Proximity -Geographical proximity -Temporal proximity between when damage suffered by C and when breach occurred by D -Pre-existing relationship in which C obviously relied upon D to exercise reasonable care, or where D plainly assumed responsibility to exercise care towards C -Casual responsibility – where a TP is involved, what knowledge of and control over the TP did D have? Dorset

-Degree of control the prison officers exercised was high as the boys were imprisoned -Geographically close, the boats were near by -Temporal proximity, all happened very quickly from when they escaped the accommodation and got to the boat Lewis -High degree of control as it was a secure kinder garden -Main road was geographically very close to kinder garden -Temporal- within a few minutes of leaving the kinder garden Mr Lewis was killed -Clear knowledge of the propensity of TPs to do harm Hill -No degree of control as killer was not in custody -Victim was one of a vast number of females in the general public who was at risk of YR’s activities, not at special risk -Police were unaware of YRs propensity to cause harm as they did not have him in custody Palmer -Released from mental institute therefore degree of control decreased -Child was one of the few ‘small children’ living close to the patient, but was still one of the general public -Clear knowledge of propensity of X to cause harm due to the interview prior to his release -Lack of temporal proximity, as the incident occurred 12 months after release 3. Fair, just and reasonable to impose a duty (public policy reasons) Leading case - Hill  If public unhappy about level of detection– it is a matter for the government to invest more money in police officers  General public duty that the police have conferred on them would not be elevated  Floodgates concern

‘Wrongful Conception’ Claims Damages available to parents (purpose of tort is to put C in a position as though the tort had not occurred): general damages for pregnancy/birth e.g. pain and suffering,

special damages e.g. out of pockets, medical expenses, time of work, costs of raising the child McFarlane v Tayside Health Board – parents already had 4 children and wanted to limit their family, vasectomy negligently performed and child conceived as a result. Parents sued surgeon. Doctor-patient is a recognised DOC category, but to what extent might public policy exclude a duty. Held: general damages recoverable, special damages also allowed, costs of raising the child to the age of independence was unanimously disallowed Policy reasons  Assumption of responsibility not taken for economic loss of parents, only physical well-being of the patient  Birth of a healthy child brings benefit to a family that cannot be calculated and offset against burdens  To impose the costs of raising a child on the doctor would be disproportionate to the wrong  Birth of a child is always a blessing  On the grounds of distributive justice, such costs, if awarded, will not satisfy the requirement of being fair, just and reasonable. Limited insurance pot needs to be distributed to the most deserving

Parkinson v St James(child born disabled) Held: the costs of raising the child attributable to the child’s disability would be recoverable Caparo test satisfied – reasonably foreseeable that if operation performed negligently it could cause disabilities to the foetus, proximity – limited number of parents in this circumstance, public policy reasons favoured DOC (distributive justice) Rees v Darlington (mother disabled before birth)– Mrs R was blind therefore decided to have operation as she felt she could not cope with demands of raising a child with her disability. Operation performed negligently – child born but R struggled to cope with bringing up the child. Held: McFarlane still good law and policy reasons should not be overturned. Damages awarded for infringement of her personal autonomy in deciding not to have a child. However C could not recover costs relating to the upbringing of the child, or additional costs arising from C’s blindness. Disabled parent entitled to the same as an ordinary parent plus a small sum of a conventional award as a measure of recognition of the wrong.

‘Wrongful Birth’ Claims Child in these claims always disabled – parents claim had the disability been identified by the doctor they would aborted the baby

Rance v Mid Down – two conditions to be satisfied -Abortion needs to have been lawfully available at the time -The mother would have agreed to undergo an abortion Damages: general damages (pain and suffering associated with pregnancy and birth, special damages, and costs of raising the child up to the age the child is expected to live Lee v Taunton- parents had a higher than normal risk of fetal abnormalities therefore arranged a high-resolution scan to ensure no disabilities. Doctor failed to identify naturally occurring disability. Held: costs for raising child incurred due to disability recoverable. But not for general costs as C would have continued to try and have a healthy child, had disabled child not been born. ‘Wrongful Life’ Claims Brought by disabled child against the doctor for not noticing a disability – baby essentially argues he shouldn’t have been allowed to be born Wrongful life claim prohibited in English Law due to public policy reasons. McKay v Essex –Child was born severely disabled, had the mother been correctly informed child would have been aborted. Held: wrongful life claims of this sort should be prohibited because no duty could be owed where the central aim is destroying life, to allow the claim at all would be a violation of the sanctity of human life, finally the assessment of damages would be impossible to calculate. Wrongful birth claims are allowed as the mother is able to abort – wrongful life claims by the child are not. Doctor’s duty to warn Two types of risk:  Inherent risk (unlikely to happen, cannot be helped by being careful) – doctors don’t need to disclose inherent risks  Significant risk (more likely to happen, doctors must warn patients about them) – significant risks must be disclosed Sidaway v Bethlehem – 2% risk of spinal damage considered to be significant  Once you have established the risk is significant, it can be objectively significant Bolam test – would a significant body of medical opinion have warned of the risk? Bolitho test – Bolam test, but subject to the court’s definition of what is reasonable Reasonable patient test – would a reasonable patient have expected the information to be disclosed?

 If this risk is not objectively significant, it must be subjectively significant Risks that are important for the patient alone because of their history Jones v North West Strategic – baby was born damaged, as had happened with her past child Jones factors: - Should the risk be disclosed for employment reasons? - History of bad surgery - Physical precondition makes it more necessary to warn them (Rogers v Whitaker – patient with only one eye)

2. Breach of duty Standard of Care  Blythe v Birmingham Waterworks – the conduct of the defendant will be measured against the standard of a prudent and reasonable man. Elevated standards of care – there are certain situations in which the courts apply a different standard of care from that of the reasonable person  Skilled or professional defendants – standard applied is that of a reasonable person with the same skill or expertise. Bolam v Friern Hospital – C underwent a therapy that involves the application of electrical current to the patient’s head with the aim of causing seizures. The doctor failed to provide C with any muscle relaxants or physical restraint. C suffered dislocation of both hip joints with fractures to the pelvis on each side. Held: there were conflicting views from practitioners on the use of relaxants and restraints. Thus, as there were doctors who would have acted in the same way, the D had acted in accordance with a competent body of medical opinion and was not negligent. The House of Lords in Sidaway v Bethlem approved this decision The Bolam test has also been applied outside the medical context to other professionals: Adams v Rhymney – key operated window locks installed in all housing rather than push button locks. Fire started at the bottom of house, Mrs A and three children were at the top of the house but couldn’t unlock the windows, as she couldn’t find key. Three children died in fire. Parents sued – windows should have been push button operated. Held: no breach on part of council for two key reasons – responsible body of building construction opinion that key operated windows were safer in council blocks to stop children falling out of windows.

Secondly, this was a correct application of Bolam beyond the context of the professional defendant. Where proving breach: Professional context – always use the Bolam test Non-professional context – quadrant of factors and then Bolam test due to Adams case Bolitho v City and Hackney – C suffered brain damage as a result of a doctor’s failure to attend to clear a child’s blocked airways by intubation. There was a difference of medical opinion as to whether intubation was necessary in the particular circumstances. Held: although there was a recognised body of medical opinion in accordance with the doctor’s practice, the doctor could still be liable. The court can decide that a body of opinion is not reasonable or responsible if it can be demonstrated that the professional opinion is not capable of withstanding logical analysis. Despite Bolitho, it remains the case that it is very difficult to prove professional negligence where there is a body of opinion, which agrees that the D has followed an accepted practice.  Unskilled defendants – the general standard of care in negligence is an objective test, judged against the standards of the reasonable person. This means that no allowance is made for the inexperience or lack of skill of the D. Nettleship v Weston – a learner driver crashed into a lamp post and injured his instructor. Held: the driver was liable despite her inexperience. The standard of care required by all motorists is the same: that of a reasonably competent driver. Wisher v Essex HA – the same principle has been applied in relation to junior doctors such that they are required to reach the standard of the reasonably competent doctor of the same rank. Shakoor v Situ - a practitioner of traditional Chinese herbal medicine did not have to meet the standard of skill and care of a reasonably competent practitioner of orthodox medicine, but he did have to take account of relevant reports in orthodox medical journals.  Children – child defendants are expected to reach the same standard of care reasonably expected of ordinary children of the same age Mullin v Richards - Two 15 year old school girls were fighting with plastic rulers. A ruler snapped and a splinter went into one of the girl’s eyes causing blindness. The girl brought an action against the other girl for her negligent action.

Held: The girl was only expected to meet the standard of a reasonable 15-year-old schoolgirl not that of a reasonable man Very young children are, of course, less likely to foresee that their acts might cause harm to others (less likely to owe a DOC).  Sporting event – spectators and competitors in sporting events may be owed a lower standard of care than the general standard Wooldridge v Summer – photographer injured at horse racing event Held: (COA) the duty of care would only be breached where the competitor demonstrated a ‘reckless disregard’ for the safety of the spectator. Policy reasons: the game carries with it inherent risks that cannot be removed, D’s acts were made in the agony of the moment, spectator accepts the risks when they decide to go watch such sports This test of ‘reckl...