TORT Lecture 2 PDF

Preview

Summary

Download TORT Lecture 2 PDF

Description

TORT LAW: Lecture 2 Civil Actions VS Criminal Actions Brought by private citizens Brought by the government Person bringing action is known as the Government is known as the prosecution plaintif Plaintif has the burden of proof Prosecution has the burden of proof – beyond a reasonable doubt Defendant loses if found liable Defendant loses if found guilty Usual penalty is money damages Usual penalty is a prison sentence Tort is… …acts or omissions recognised by law as civil wrongs causing injury to others or their property “A wrongful act against an individual or a body corporate and his, her or its property” Civil wrong become a criminal wrong – fraud within corporate law (Caparo); medical law Objectives?  Deterrence  Compensation: compensate for loss with damages in monetary terms The generic model can be represented:  Act (or omission) + causation + fault + protected interest + damage = LIABILITY o Robinson judgement – omission of duty of care, act of falling on elderly lady o Sometimes not all components are present, liability can still be found (next week’s lecture) Fault principle in Tort  Usually insufficient for C to claim that D’s act/omission caused them damage to succeed in a claim (except torts of strict liability) o STRICT LIABILITY: no need for intention, as long as the act as happened e.g. speeding; medical law – don’t intend to perform surgery wrong etc. 

Must also show, either: o Intention – usually means acting knowingly or deliberately (i.e. trespass/interference with goods) o Negligence – usually means carelessness (i.e. the negligent driver or doctor (skilled professional))

o Malice – may be doing a wrongful act intentionally without proper excuse. Or to act lawfully, but with some collateral or intended motive (i.e. malicious prosecution, defamation) Intention necessary? Unintentional torts – commit the acts without intent, usually by accident or carelessness o Negligence o Occupiers’ liability o Vicarious liability o Strict liability o Commercial negligence

Intentional torts – decision to commit the acts, not always intention to harm o Assault and battery o False imprisonment o Defamation o Trespass o Nuisance

What is negligence?  The negligence concept is centred on the principle that every individual should exercise a minimum degree of ordinary care so as not to cause harm to others o No intention for the consequences by D  The negligence claim properly connotes the complex concepts of duty, breach and damage  The elements of the tort of negligence: o The existence of a duty of care; o A breach of that duty; o Resultant damage  Primary purpose is to compensate the injured party REASONABLE PERSON: someone of sound mind, what would be a ‘reasonable’ choice to make in that scenario. General standard for a ‘normal’ member of the public. Background to the law of negligence  Heaven v Pender (1883) – the first attempt to formulate a general principle  Donoghue v Stevenson (1932) – manufacturer sold ginger beer in opaque bottle to retailer. R sold ginger beer to A, A treated C to the beer which unbeknown to C, contained the remains of a decomposing snail (it had got into the bottle at the factory). C became ill and sued M for negligence o HELD: M was liable, they owed a DOC to avoid dangerous material getting into their bottles of ginger beer o RATIO: at least four possible interpretations:  

Manufacturer owed a duty of care to claimant Manufacturers generally owe a duty of care to consumers of their products

 

A negligence claim can be brought irrespective of the absence of a contract The neighbour principle should be used to determine the existence of a duty of care

“Neighbour Principle”  “who then in law is my neighbour? Persons so closely and directly afected by my acts or omissions that I ought reasonably to have them in contemplation as being so afected when directing my mind to the acts or omissions that are called in question” – Lord Atkins  Donoghue clarified the law (certainly between manufacturers and consumers), but there was still a reluctance to accept that the ‘NP’ has much relevance to other areas  Policy has been responsible for development of negligence – courts originally considered that DoC should not extend too widely DoC: DUTY OF CARE – responsibility to behave in a certain way that protects those surrounding you from harm - Must take diligent care to protect people Legal framework  Claimant must prove: o Duty of care owed to him or her by the defendant o Breach of that duty by the defendant o Damage caused by the breach of duty o Causation (cause in fact) o Remoteness of damage Duty categories: to whom is duty owed?  One owes a duty to those so closely and directly afected by his/her conduct that they ought reasonably to have them in contemplation as being so afected when undertaking the conduct in question o E.g. employer/worker, driver/other road users, doctor/patient, consumers/users of products and structures Duty of care: example  Would a reasonable person drive down the street with a paper grocery bag over her head? o Reasonable person would not do this o Thus, part of the duty of care when driving is to not obstruct your vision o E.g. Prince Phillip – should he still be driving at his age?

Development of negligence through policy reasons  Courts considered that DoC would arise if society would benefit from the existence of a duty – but only as long as it fitted within the legal framework “the use of the word “policy” indicates that the court must decide not simply whether there is or is not a duty, but whether there should or should not be one, taking into account both the established framework of the law and also the implications that a decision one way or the other may have for the operation of the law in our society” – Winfield 

Judicial policy considerations: o Economic considerations o Justice – moral and ethical issues o Practical implications o Insurance o Loss allocation o “floodgates” fear of too rapid expansion o Protection of classes of individuals

   

Human rights – clash with ECHR article 6 Advocate’s immunity – Rondel v Worsley (1969), Hall v Simons (2000) – no longer immunity for civil proceedings Police – Hill v Chief Const. West Yorkshire (1982) , Brooks v Met Police Commissioner (2005) Other emergence services – Duty imposed in Capital Countries v Hants CC (1997), but see other cases such as Kent v Griffiths (2000)

Anns v Merton LBC (1989) – Two Stage Test  Concerned building damage due to a building having been built on inadequate foundations. C’s claimed damages in negligence against the council for approving the foundations and/or in failing to inspect the foundations o HELD: for the C’s despite there being limitation problems; date when defects were discovered was sufficient o Lord Wilberforce – the matter should be approached in 2 stages 1. One must ask whether there was a significant relationship of “proximity or neighbourhood” between the C & D such that in D’s reasonable contemplation carelessness on his part might cause damage to C – if so a prima facie DoC arose 2. It was necessary to consider whether there were ant considerations which out to ‘negate’; or reduce or limit that duty

Expansion of the Tort of Negligence  Ross v Caunters (1980) established the principle that a disappointed beneficiary can recover damages in negligence for failing to check the execution of a Will or for delay in preparation of a Will. This is an exception to the general rule that the solicitor’s sole duty is to his client the deceased  High point for development of this area of the law – Junior Books v Veitchi (1983) o HoL went a step further: suggesting that what were previously good policy reasons for limiting liability should now not prevent an extension to the “NP” justified recovery o HoL allowed recovery for pure economic loss (PEL) when previously this had not been permitted  Problems – insurers were being asked to insure against risks of new types of liability and was seemingly encroaching on areas traditionally governed by contract law  McLoughlin v O’Brian (1983) – Lord Wilberforce; “at the margins, the boundaries of a man’s responsibilities for acts of negligence have to be fixed as a matter of policy” The Retreat from Anns  Judicial caution led to a retreat from the position taken by the HoL in relation to negligence and since then there has been a determination to restrict the unchecked expansion of the tort 1. Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd (1985): HoL denied a remedy to a company suing a local authority for financial loss caused by a defective drainage system 2. Murphy v Brentwood DC (1991) – HoL overruled their previous decision in Anns (using 1966 practice statement allowing them to overrule their own decisions)  RESULT: the Anns two stage test was abolished  IMPLICATION: courts could now impose duties of care only when they could find a precedent in comparable factual circumstances Duty of Care Today – the Caparo Test  Where court faced with a new factual situation in which it is required to determine whether a DoC exists the test now adopted is the one decided under Caparo Industries v Dickman (1990)  The Tripartite Test – DoC may be imposed if 3 requirements are satisfied. Court therefore asks 3 questions especially in cases involving physical injury and/or damage to property: 1. Was the damage reasonably foreseeable? 2. Was there a relationship of proximity between D and C? 3. Is it just, fair and reasonable in the circumstances to impose a DoC?

The Caparo Test – Foreseeability  Reasonable foreseeability – D will be liable subject to a DoC if they should have: o Foreseen the C as an individual (or member of a class) o Foreseen the injury of the kind which occurred 



Foreseeability and the claimant o Haley v LEB (1965): blind C pedestrian – sufered injury falling into hole dug by D  HELD: incumbent on D to take reasonable care for the safety of all persons using the highway, including blind and infirm  Palsgraf v Long Island Railroad (1928) Foreseeability and risking the type of injury/damage/harm o Roe v Ministry of Health (1954) – medical negligence o Bourhill v Young (1943) – outside the area of foreseeable danger o Langley v Dray (1998) – police chase

The Caparo Test – Proximity  Proximity – “legal nexus” – the relationship between C & D o Muirhead v Industrial Tank Specialists (1985) – D & C do not need to know each other, but due to the situation they were both in meant that D could reasonably by expected to foresee that his or her actions could cause damage to C – per Lord Gof  Proximity can include the relationship between D and activity which caused harm to C o Sultradhar v NERC (2006) – insufficient proximity o Watson v British Boxing Board (2000) – sufficient proximity (ringside medical care) The Caparo Test – Omissions  Generally speaking D is liable for acts not omissions – Good Samaritan analogy: see Lord Diplock in Home Office v Dorset Yacht Co Ltd (1970) i.e. there will be no civil liability if D fails to act  Some arguments against: o Political: imposition of an obligation to rescue/protect = invasion of privacy o Moral: why pick on me? The duty may apply to a large and indeterminate class of people. So why should one be held liable rather than another? o Economic: liability to pay compensation for negligence acts = a deterrent. No justification for requiring a person who fails to act to compensate the other  Stovin v Wise (1996) – C seriously injured when D pulled out of a side road and knocked him of his m’cycle. D joined local authority into action arguing that the junction was dangerous due visibility impairment by a large bank on adjoining land. At first instance the

Council was judged 30% negligent for failing to take no action regarding the land owner. CoA dismissed the Council’s appeal  HELD: council owed no duty to take positive steps to remove the bank The Caparo Test – Negative/Positive Usage  Fair, just and reasonable – these considerations can be invoked to restrict imposition of a DoC but also to give a reason why DoC should be imposed  Negative usage – similar to policy arguments used in Anns to deny the existence of DoC: arguments of fairness, justice and reasonableness are used to limit circumstances in which DoC will be imposed o Marc Rick & Co AG v Bishop Rock Marine Co Ltd (1996)



o X v Bedfordshire CC (1995) – failure by LEA to support pupil with special needs Positive usage – policy reasons often used for not imposing a DoC. F,J&R can now be used to impose a DoC post-Caparo. Usually where: o No DoC previously existed or in circs where DoC previously denied o Stovin v Wise (1996) – recognising the retreat from the position in Anns, Lord Hofman “subsequent decisions in this House… have preferred to approach the question the other way round… asking whether there are considerations of analogy, policy, fairness and justice for extending the DoC to cover the new situation

Novel situations  It has been established by precedent that a duty of care exists in many situations  If there is no precedent to that efect the court must decide to cover the novel occurrence  Court must consider: o Foresight o Proximity o Whether it would be “fair, just and reasonable” to impose a duty – the test in Caparo v Dickman (1980)

Is there a Common Law Duty of Care?

Summary diagram showing the elements of negligence

So far… DoC  Often argued as a preliminary point of law  Subject to policy fluctuations o Note: there will usually be underlying and explicit policy decisions  The Caparo test provides scope for development of the law without the restrictions imposed by foresight and proximity  Useful illustration of judicial reasoning]human rights considerations o HRA implications

TORT LAW: Seminar 2 SEMINAR 2 – Duty of Care For the seminar you need to do some research and try to answer the questions below; when answering try to use the relevant legislation/case law. The suggested reading and the articles uploaded on CLIC will give you a good starting point and opportunity to research in depth. Consider the following: The tort imposes liability on some of those who cause damage through their careless behaviour. Those people who will be liable for damage caused by their carelessness are said to be under "a duty of care". This week we will focus on one of the most important questions in negligence law: How does the law decide whether somebody owes a duty of care to someone else? 1. Read the case of Donoghue v Stevenson [1932] AC 562 which was decided by majority. From your reading of the case what are you able to establish about the concerns of the dissenting judges? Try to read the uploaded documents on CLIC with Lord Atkin’s and Lord MacMillan’s speeches. 2. According to Lord Atkin, what standard of care do I owe to my neighbour? Do you think the principle of “neighbour” is a functional one? 3. a) Compare the decision in Van Oppen v Bedford Trustees [1990] 1 WLR 235, at 250-251C, 259H268 with that of Phelps v Hillingdon LBC [2001] 2 AC 619 b) Compare the decision in Capital & Counties v Hants CC [1997] QB 1004 with Kent v Griffiths [2000] 2 All ER 474 4. Define the tripartite test now applied under Caparo Industries v Dickman [1990] 1All ER 568; Do you see it as a significant improvement to the previous test of Anns or does it carry the same weaknesses as the previous tests for Duty of Care? 5. To what extent do you think policy has afected the law relating to negligence and the aspect of Duty of Care?...