Tort Notes - Whole tort module for MA Law PDF

Preview

Summary

Tort Unit 1 Created for people living in close proximity to protect individual rights to property and prevent deliberate interference  Now compensates injuries in society  Infringement of legal right  Person who commits a tort = tortfeasor  Compensation = damages  Tort & Criminal o Tor...

Description

Tort Unit 1      



 



 



Created for people living in close proximity to protect individual rights to property and prevent deliberate interference Now compensates injuries in society Infringement of legal right Person who commits a tort = tortfeasor Compensation = damages Tort & Criminal o Tort claims – looking for compensations, criminal acts brought by public not victim o Tort cases – civil courts, criminal cases – criminal courts Tort & Contract o Both civil claims & seek damages o Many differences  Contract- fixed terms of contract  Tort – judge made Different harm – loss or damage Bradford corporation v pickles 1895 – pickles sank drainage holes on his land to diminish Bradford water reservoir – injunction unsuccessful as pickles used own land and didn’t cause harm protected by tort despite malice motive. Human rights – key provision is s 6- unlawful for public authority to act in way that’s incompatible with convention right (s 7 allows victim of such breach to bring proceedings against public authority & s8 gives court power to award remedy Defamation – protect claimants reputation Wainwright v home office 2004 – claimant visiting prison subjected to strip search causing distress and embarrassment. Happened before HRA 1998 so relied on ECHR 8, but house of lord declined extension of tort law to provide remedy as just mere upset Who does what in tort claim?

Civil cases- claimant must prove case – on balance of probabilities Anyone can sue or be sued by anyone Children – anyone under 18 can be sued or can sue through litigation – parent or guardian but parents not legally or financially liable for torts of children – so not financially worth bringing claim against child defendant  A limited company ‘ltd’ has own legal personality so can sue or be sued, whereas partnerships ‘ firms’ are collection of individuals with no legal personality  Limitation – any claim in tort must occur within time limits – found in limitation act 1980 – generally 6 years with exceptions  Vicarious liability – employee commits tort – employee and employer can both be sued Trespass to person – describes 3 separate torts (historic origin)   

      



 

o Assault o Battery o False imprisonment – we don’t look at Intentional conduct required to claim – whether person was injured or not does not matter Battery - intentional direct application of unlawful force to another person. Assault - intentional act by the defendant that causes another person to reasonably apprehend the immediate infliction of a battery upon him. F v West Berkshire 1989 Lord Goff judged – general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life For battery a person doesn’t need to intend the consequences – the actions themselves are intentional Battery also requires direct application of force o Direct force immediately without intervention from defendants actions Words o Are words alone assault? o R v Ireland 1998 – a thing said is also a thing done A case where neither assault or battery fits o If the immediate assault is not on the person directly (hurt a friend etc) o If intention but person did not apprehend the attack and no physical injury o Wilkinson v Downton 1897 – evil joke said her husband was badly injured which was untrue and caused physical stress injuries – not assault or battery but allowed claim- intention to shock Causation – must prove the defendant tort caused the loss and the loss isn’t too remote Defences – once claimant proves defendant committed trespass to the person o Consent – if claimant has expressed or implied consent to the actions the defendant will not be liable o Lawful arrest – if officer arrests someone with warrant battery is not committed if officer only uses reasonable force to arrest. o Defence of the person – commit an assault and/or battery in defending yourself o Defence of property – ejecting trespasser to defend property o Necessity – actions were reasonable in all circumstances o Contributory negligence – claimant provoked defendant (provoking isn’t itself a defence)

Tort Unit 2: Negligence Negligence = carelessness  Claimant needs to prove 3 elements: o Duty of care o Breach of duty o Causing damage 1. Is there a duty of care? o Was there foresight of harm

o Was there sufficient relationship – directly affected by defendant o Is it fair, just & reasonable for court to say defendant owes duty? 2. Breach of that Duty o If actions reached the standard of the reasonable person at that time o Objective test  Reasonable person considers factors – will my action cause harm, how serious would the harm be, does it justify taking risks, could I take precautions o Risk assessment – reasonable person carries out for any activity 3. Did the breach of duty cause damages? o Reasonably foreseeable damages – expected Established Duty Situations 1. Employer to employee 2. Doctor to patient 3. Lawyer to client 4. Manufacturer to consumer Neighbour principle – created from Donoghue V Stevenson case (snail in ginger beer) 1. Reasonable foreseeability of harm to claimant 2. The degree (sufficient) of proximity between claimant and defendant Caparo v Dickman 1990 - Added 3rd test 3. Was it ‘fair, just & reasonable’ to impose a duty? i. Only used for NOVEL duty situations ii. Expanded liability and omissions – looking for someone to claim against even if they had not caused harm Caparo Industries v Dickman 1990  Auditors check companies accounts Terminology:  Striking out – if defendant doesn’t owe claimant a legal duty of care, claim fails – as struck out for disclosing no cause of action  Omission – failure to act  Novel duty situation – there is no existing established duty so it is novel– thus Caparo test must be applied Police Negligence  In general, don’t owe duty to individual members of public when investigating crime  Owe duty of care to informers  When taking positive action, they owe a duty to take action with reasonable care  Owe duty to particular victim of crime, if informed the victim was in danger from specific threat  Some circumstances, have positive duty to rescue Compensation act 2006  Prevent activity or discourage persons getting involved with activity

Negligence case examples: 1. Mullin v Richards 1998 – two 15 yr olds play sword fighting with rulers, one ruler snapped and hit Mullin in eye. Tried suing teacher, school and the girl. No breach as child should act the same as another reasonable child of same age. 2. Latimer v AEC 1953 – factory floor flooded, owners made substantial effort to clear water and laid sawdust, Latimer still slipped. No breach as reasonable actions taken 3. Roe v Minister of Health 1954 – hairline crack in anaesthetic, phenol leaked in, when injected into Roe, left him paralysed. No breach, as hospital couldn’t have known 4. Whitehouse v Jordan 1981 – Jordan pulled too hard for too long with forceps before doing caesarean, leaving Whitehouse’s baby brain-damaged. No breach, but error of judgement 5. Bolton v Stone 1951 – Bolton playing cricket on village green, boundary was 60 yards & balls were rarely hit out of ground. Bolton hit ball over fence, hitting Stone. No breach as it was not very likely someone would be hurt by batsman on playing ground Unit 3: Causation of Damage and Defences Defence  Whoever raises an allegation has the burden of proving it  Standard of proof (what extent must they prove) – is on balance of probabilities  Proves by evidence (examples) o Persons own evidence o Any convictions related to incident o Eye witnesses o Documents – eg proof of loss of earnings o Experts – eg accident reconstruction, medical report  Defences  Complete defences (all or nothing – if succeed they wipe out defendants liability to claimant so no compensation but if the defences don’t succeed the claimant wins outright): o Consent o Illegality o Disclaimers o Trespass  Contributory negligence o only partial defence o show that claimant failed to take reasonable care of their own safety o different for children – can’t be judged against reasonable actions of adult  Summary: 1. Step 1: claimant to prove defendant committed a tort 2. Step 2: Defendant to show valid defence 3. Step 3: Full defence shown = no compensation 4. Step 4: Contributory negligence = reduced compensation

Causation  









Common sense manner o Trying to satisfy the man in the street rather than the philosopher Claimants must satisfy judge on 3 points: 1. They would not have been harmed if the defendant hadn’t been negligent 2. No significant intervening event broke the chain of causation between defendants’ breach and claimants suffering harm 3. The kind of harm suffered was reasonably foreseeable But for test o But for the defendants’ act would the claimant have suffered harm? Sometimes difficult to prove part the defendant had o Does claimants case always fail o If claimant shows the defendants breach probably caused harm, should it succeed Industrial disease o Bonnington Castings v Wardlaw 1956  Exposed to dust from factories negligence – suffered lung disease  Wasn’t possibly to tell if the disease was caused solely by dust  Claimant proved dust made material contribution to disease  House of lords decided this was sufficient o McGhee v National coal board 1973  Exposed to dust and dirt in day – employers’ duty to provide showers but didn’t  Had to cycle home every day covered in dust – developed dermatitis  Couldn’t establish how much difference the journey home made but it increased the risk of suffering dermatitis  House of lords decided this was sufficient o Mesothelioma cases – several thousand die each year of this disease (cancer caused by asbestos)  Many workers had been exposed by more than one employer  Defendants argued it wasn’t possible to show which employers asbestos triggered the individual’s cancer – saying the claimants failed the but for test  Fairchild Medical negligence o Hotson v East Berkshire AHA 1985  Hotson fell from tree – 75% likely to be permanently disabled but 25% chance of recovery  Negligently misdiagnosed by hospital  When correctly diagnosed – had lost chance of avoiding permanent disability  Court of appeal found in Hotson’s favour  But house of lords reversed their decision – the faullt not the misdiagnoses that caused the disability o Wilsher v Essex AHA 1988  Baby born prematurely then negligently treated

Catheter inserted into vein rather than artery – the baby subsequently became blind  Hospital argued there were many possible causes of blindness in premature babies – hospital error was one more added possible cause  House of lords – on balance of probabilities the claimant had not proved the hospitals error caused the blindness o Chester v Afshar 2002  Needed operation on spine, patient asked about risks but surgeon failed to warn her of a very small risk of serious injuries  Series injury occurred  Surgeon owed duty of care to advise of risks and breached it  Patient admitted she would have gone ahead with operation if she would have been warned  Despite the admitting of going ahead the court decided the failure to warn had caused harm Breaking the chain o Ensure nothing came in-between the act of the defendant and the harm o Rules  Won’t break chain:  An instinctive natural response  Negligent act of third party provided that its foreseeable  Deliberate act of third party provided that it was foreseeable that the defendant was responsible for the behaviour of the third party  The claimants own behaviour will only break chain if its unreasonable 







Kind of harm 1. Defendants are liable for the direct consequences of their conduct 2. Defendants are liable for foreseeable kinds of harm but the precise manner in which the harm is caused doesn’t have to be foreseeable o Jolley v Sutton 2000  Boat was left to rot by council  2 boys decided to repair it – jacked it but jack slipped and crushed boy under the boat  Claimant argument – suffered harm – personal injury  Defendant argument – injury was result of jack slipping – unforeseeable harm  Court of appeal found for defendants but house of lords found for the claimants Defendants arguments o Volenti non fit injuria  Claimant knowingly and willingly accepted the risk of being injured o Contributory negligence

Economic Loss and Psychiatric Harm

Pure & Consequential economic loss Physical injury can result in claims for:  Medical expenses  Travel expenses  Loss of earnings  Nursing care Property damaged can result in claims for:  Cost of replacement  Profit that would have been made on damaged product Limited Duty  Pure economic loss and psychiatric harm are potentially limitless  If the law allowed recovery for these the number and extent of claims would be indefinite Economic Loss  Financial loss as a result of negligence which doesn’t involve physical damage to person or property Exclusionary rule  Losses that are purely economic and not consequential of claimants’ personal injury so cannot be claimed for  Rule applies unless there is a special relationship between claimant and defendant  Negligence Rule: o Property damaged by defendant is claimable o Property defective – pure economic loss – claim barred by exclusionary rule  Weller v Foot and Mouth Disease Research Institute (FMDRI) o FMDRI negligently allowed virus to escape o Virus infected cattle which had to be destroyed o Weller ran a cattle-auctioneering business, the lack of cattle to sell collapsed his businesses (Weller was not injured nor was his property damaged – not his own cows destroyed) o Court decided he had suffered purely economic loss and held his claim in negligence failed  Spartan Steel v Martin o Electricity was negligently cut off to Spartan Steel & destroyed one melt o Lord Denning decided  damaged melt was property damage and claimable  lost profit on the destroyed melt was consequential economic loss and claimable  lost profit on four melts that might have been made during time electricity was cut off was pure economic loss and NOT recoverable  Muirhead v Industrial Tank Specialities Ltd 1985 o Tanks were to be supplied to Muirhead (lobster business) from Industrial Tank who had got them from ITT UK o The motor failed and lobsters died

o Industrial tank went into insolvency so Muirhead pursued ITT o Muirhead’s contract was with Industrial Tank not ITT o Donoghue v Stevenson does impose a duty of care on the manufacturer to the consumer. However, the exclusionary rule means that Muirhead can only sue ITT for the dead lobsters and the lost profits on them o Muirhead could not sue in tort for the replacement or repair of the defective pump itself. o This case does indeed apply the rule in Spartan Steel.  If such claims were allowed the floodgates would open Defective Houses  Dutton v Bognor Regis 1972 o Mrs Dutton had house built on defective foundations that local authority should have checked o Allowed claim to repair the house through negligence  Anns v Merton 1978 o Defect in foundations caused subsidence o Allowed claim o Resulted in further claims coming in relying on Anns ruling  Murphy v Brentwood Authority 1991 o Similar case o Overruled Anns – no harm to their bodies or property was purely economic loss The complex structure argument  A defect can cause damage to the rest of the property, consequential damage  Claim is possible to the rest of the property as consequential loss but not for the defective component itself, which is pure economic loss Negligent misstatement: The Exception  Someone causes another pure economic loss through negligent statement  Hedley Byrne v Heller 1964 o Hedley Byrne went into business with Easipower on the basis of Easipowers bank – Heller – providing negligent credit report with disclaimer o Duty of care exists as claimant and defendant were in a special relationship o As Heller had included a disclaimer it was not reasonable for Hedley to rely on Hellers statement  Everyone who suffered pure economic loss through bad advice could bringing in their claim again  23 years later, Caparo Industries v Dickman was reconsidered o Auditors only owe duty to company they’re auditing (not share-holders etc) Implications following Hedley Byrne  Anyone buying a company will carry out a due diligence investigation and pay for advice on the state of the target business o If adviser acts carelessly the investor can sue in contract When does special relationship arise?  House of Lords stated only when: o Defendants knew their advice would be communicated to claimant o In connection with specific transaction

o Claimant likely to rely on advice without taking further steps to check  Example: James McNaughton Paper Group v Hicks Anderson o Claimants ‘relied’ on draft accounts created by defendant accountants o Mistakes in the accounts – they had bought a company less valuable than hoped o Draft accounts weren’t relied, and accountants unaware that advice would be communicated and relied on so no duty of care Negligent Provision of Professional Services  Henderson v Merrett Syndicates Ltd o Lloyds of London – backed by wealth of individuals called Names o Insurance backed by Names is managed by agents and sub-agents o 1990s – disasters occurred and Names had to pay out, some losing substantial sums o Names argued the agents were negligent exposing them to such losses o Contract and tort relevant o Held – duty of care was owed by agents to all Names Solicitors Negligence  Premiums of insurance against risk of being sued is major cost for law firms  Difficulties arise when someone other than client suffers pure economic loss due to lawyer’s negligence  White v Jones 1995 o Facts  Man kept changing his will – putting his daughters in and taking them out  Man instructed to draw up new will reinstating the girls  Solicitor went on holiday and had not drawn up the will, and the man died – the existing will applied where the daughters received no money o Questions and Arguments  House of Lords to consider – does the solicitor owe a duty of care  Judges took into account – imposing duty of care may open floodgates, beneficiaries hadn’t had dealings with solicitor, increases amount left as solicitor pays, if not duty the beneficiary gets nothing o Courts decision  Imposed a duty o Implications of case  Hard to predict how the rules will be applied  ‘assumption of responsibility’ doesn’t mean the defendant intentionally and deliberately decides to be responsible for claimant  Court assess objectively if the defendant is deemed to have assumed such responsibility Psychiatric Harm  No limits on claiming for psychiatric injury, it is treated the same way as physical injury  Setting restrictions has proved difficult  Current state of the law

o When claimants are physically injured, they can also claim for consequential psychiatric injury o Some suffer illnesses resulting from steady build-up of stress, these frequently arise from workplace stress and are important in employer’s liability o Others suffer being involved or witnessing traumatic events – complicated History of Psychiatric Harm  Dulieu v White & Sons 1901 o Pregnant barmaid suffers miscarriage when van crashes into pub she’s working at. o Successful claim for shock without actual impact.  Hambrook v Stokes 1925 o Mother suffers nervous shock when she fears a lorry crashes into her children, as it rolls back and she hears screaming. o Claim allowed – wrong to allow Dulieu for shock for herself but disallow claim for shock from mother for fear of children  Bourhill v Young 1943 o Edinburgh fishwife has miscarriage after she hears a motorbike crash. o Claim rejected – she wasn’t a foreseeable victim of his negligent driving  McLoughlin v O’Brian 1983 o Mother arrives at hospital soon after car crash involving her family in extremely distressing condition. o Successful claim as she had witnessed the immediate aftermath of the accident.  Alcock v CC (Chief Constable) of ...