Tort Law - Unit 1 Prep Notes PDF

**[Tort Law -- Unit 1 Prep notes ]** **Activity -- Advising on a Road Traffic Incident** - **What information do you need to advise Claire?** - As much information about the accident as possible - Time of the accident, location, exact events that occurred - Any injuries...

**[Tort Law -- Unit 1 Prep notes ]** **Activity -- Advising on a Road Traffic Incident** - **What information do you need to advise Claire?** - As much information about the accident as possible - Time of the accident, location, exact events that occurred - Any injuries and any damage that the accident caused - **Claires description of the accident** - 18^th^ September - On the way to work - Slightly late -- on side street - Red car coming from the opposite direction -- but it was all okay until a van pulled out to overtake the red car - not enough time or space for this to occur and hit Claire head on -- she slammed on her breaks - everything is a blur after that -- whiplash suffered, was not wearing seatbelt \*\* and hit her head against the windscreen -- suffered a concussion and a cut to the head - car was really badly damaged -- now repaired - laptop broke - off work for 4 weeks because of her neck - police told her that the van driver is Patrick and is a carpet fitter - driving company van to a job -- employed by Carpets r Us - Patrick suffered a neck injury - Can I claim compensation - **What type of harm has Claire suffered** - Personal injury, property damage, and claim for earnings lost because she was off work injured - Negligence - **Liability -- Who do you think is liable for the accident -- who does Claire make the claim against?** - Patrick and his employers - Reason -- Patrick is the van driver and was overtook the car when it was not safe to do so and Patrick was driving the company van to a carpet fitting job and therefore, employers can be liable because Patrick drove dangerously while on company business hours **What is negligence?** - Negligence can be said to amount to carelessness **Compensation** - Aim of tort is to compensate a claimant - A wrong for which an individual can claim - Example from above -- Claire (as the claimant) has a possible claim against either Patrick or his employers or both -- the employers should be insured for the accident so ultimately it will be their insurance that pays - Claire has the claim of the tort of negligence against Patrick, his employers or both as defendants -- **but there are rules on the application of the tort of negligence -- need to check these before you advise someone that she has a successful claim** **Rules of Negligence** - Rules that are relevant to all negligence claims and the courts would be applying these rules if you went to trial - Duty - Breach - Causing damage **Duty of Care** - Who owes duties of care to whom? - If a claimant can show a certain type of relationship then the claimant has established that a duty exists - Solicitor to client - Doctor to patient - Driver to another driver - Employer to employee - Other Duty Situations: - If there is a new situation where the courts have not yet recognised a duty -- does that mean there's no duty? No because Tort law develops over time in response to various pressures of a changing social and political environment - Factors court will consider - Was there a reasonable foresight of harm - Was the harm reasonably likely to occur to the claimant if the defendant was careless - Is there sufficient proximity of relationship - Was the claimant closely and directly affected by what the defendant did - Looking for a close relationship between claimant and defendant - Is it fair, just and reasonable for court to say the defendant owes the claimant a duty - Allows the court scope to exercise their discretion and either recognise or deny a duty as they see if - Even if there's no existing recognised duty situation in law, the courts can find a new duty situation by applying this test **Breach of duty** - Test to see if there has been a breach of duty - **Test of the reasonable person** - Standard of the reasonable person doing what one is doing - Ex. driving. -- did her driving reach the standard of the reasonably competent driver - Same standard is applied to all **Liability** - One is only liable for the damage that they have caused -- he is liable for the types of damage you'd reasonably expect **Duty of Care -- Foreseeability and Proximity** - First element of the tort of negligence -- the need to establish a duty of care - but there are two important preliminary points - Striking Out - Most of the leading cases on duty reach the Court of Appeal or House of Lords (Supreme Court) because the defendant is arguing that the claimant's case should be struck out as disclosing no cause of action - If the defendant does not owe the claimant a legal duty of care, the claimants actions must fail - In these cases, the issues of breach, causation and defence aren't even considered **[BUT]** the doctrine of precedent applies - This means that the ratio of a decision on whether one class of person owes a duty of care to another class has an immediate impact on the legal relationship between all members of those classes - If the ratio is carefully expressed, it ensures that the law sets a clear precedent for all subsequent cases - Carefully expressed or not -- once the precedent is set, lawyers in future cases will try to argue either that the ratio should be applied or not - Reading Judgements - It is important to know how judgements on the duty of care should be read because the reasons behind these decisions are often complex - Judges have to make practical decisions and the law has developed a battery of arguments to help the judges come to a decisions - **Leading case on duty -- Donoghue v Stevenson 1932** - Judges are confronted with a claimant who's a consumer and a defendant who's a manufacturer - everyone on earth is a consumer of manufactured products -- **[IF YOU impose a duty of care in tort between these parties, you affect this most fundamental social and economic relationship]** - Narrow-ratio - A manufacturer of products which he sells in such a form as to show that intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate inspection and with the knowledge that the lack of reasonable care in the preparation or putting up of the product will result in harm to the consumers life or property owes a duty to the consumer to take reasonable care - **The Neighbour Principle** - You must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be -- persons who are so closely and directly affect by my act that I ought reasonably to have them in contemplation when I am directing my mind to the acts or omissions that are called in question - Accurate account of when a new duty should be imposed, Neighbour principle - **Key concepts of the neighbour principle** - Foreseeability of harm to the claimant - The degree of proximity between the claimant and the defendant **The Era of Expansion Liability for Omissions** - General basis for imposing a duty of care in the tort of negligence meant that lawyers no longer needed to confine themselves to pre-existing categories where a duty had already been established - **Novel Duties** - Any relationship that could be characterised as within the neighbour principle could be actionable - Often several possible defendants, who's actions or omissions played some part in the events leading up to the clients loss - Vandals damage an empty building. Vagrants set fire to an empty property and the fire spreads to a neighbouring property. Borstal boys destroy a yacht.  - Obvious defendants create a problem for the claimants as they aren't worth suing - Instead the victim looks around for someone with sufficient funds -- who might have prevented the harm being done -- usually wont have done the harm themselves by positive action - **Omission** - People have failed to prevent the harm by omissions - Sometimes no liability for pure omission (no general duty to save the drowning child) - One HUGE exception - Where the law considers that the defendants put themselves in the position where they should have acted positively, a duty will be imposed - Neighbour Principle expressly included the possibility of **liability for either 'acts or omissions'** - The key difficulty is to identify that point at which the law will consider that the defendant has **assumed responsibility** for the claimant and is required to take careful actions - LEADING CASES -- Home Office v Dorset Yacht and Smith v Littlewoods - **Barret v Ministry of Defence 1994** - Barrett (naval airman on a remote base in Norway) celebrated his birthday - Many friends bought him drinks in the mess he became very drunk -- went outside and collapsed unconscious -- friends found him and put him to bed -- checked on him a few time and when they came back to check on him they found he had choked on his own vomit and died. His widow sued the Ministry of Defence as vicariously liable for the negligence of those who looked after him - Court of Appeal decided that until Barrett became drunk he was responsible for his own actions. As soon as his friends found him unconscious, they assumed responsibility for him - Barrett wasn't solely responsible for his own death, although the damagers were substantially reduced because of his contributory negligence **Caparo -- An Attempt to Stem the Flow** - Cases on omission have varied results but in general the decision in Donoghue and Stevenson led to a steady expansion in the use of the tort of negligence - Most claims in negligence are for - Personal injury - Damage to the claimants property - **But in the 1967 case of Hedley Byrne v Heller**, the House of Lords confirmed that in certain circumstances, claimants could sue in negligence not only for physical injury and for property damage but also for pure economic loss - **In another line of cases** the course also started to impose a duty of care not to cause psychiatric harm - **Now the courts were imposing liability for**: - Personal injury - Damage to the claimants property - Omissions - Pure economic loss - Psychiatric harm - Imposing liability for pure economic loss means that the defendant could be liable for enormous sums of money - Imposing liability for psychiatric harm as well as opening the floodgates to huge numbers of claims raises complex questions such as: - How do you prove that the claimant is genuinely suffering - Did the defendants breach cause the claimants harm? - So rather than deny liability altogether, the courts chose to allow claims subject to restrictive rules **Introduction of Third Test** - Early 1990s belief that the law of negligence was expanding too rapidly -- key issue remained - When should the court impose a duty in a new situation? - Case of Caparo in 1990, the House of Lords took the opportunity to re-examine this question. As in Donoghue and Stevenson, the issues raised by the fact were of enormous economic significant and again the House of Lords came up with a wide and a narrow ratio - Facts - The basic facts were that investors lost money when they bought a company; they had relied on the company's accounts which had been audited by Touche Ross. - Questions for Court - The court had to decide whether to impose a duty of care on an auditor. This case had implications for all financial advisers and their clients.  - Not surprisingly, the City of London followed the progress of the case closely, as it slowly made its way to the House of Lords. It was this case that decided the law which today underlies all professional negligence actions against all those who give clients advice - including lawyers.  - Decision by Court - **Foreseeable and proximity test** - In Caparo the potential loss to the claimants was clearly foreseeable. The court considered whether the claimant and defendant were in a sufficiently close relationship. - Restrictive rules were established about proximity in this context, and the Caparo case could have been decided on the lack of the requisite proximity between the parties.  - However, the House of Lords took the opportunity once more to develop the underlying principles of Lord Atkin. - **Third test** - As well as establishing foreseeability and proximity, the judges added a third test. - They decided that a duty would only be imposed in novel situations where it was **\'fair just and reasonable**\' to do so.  - Furthermore, liability was only to be imposed where it meant a small incremental increase in the scope of liability, rather than a sweeping new development. - This third criterion of whether it was \'fair, just and reasonable\' to impose liability is extremely flexible. It enabled the House of Lords to deny a duty even where the first two criteria were satisfied. - Inevitably, policy decisions lay behind the application of the test. In many cases, arguments about the proximity between the parties become intertwined with whether or not it was fair just and reasonable to impose a duty. - Should soldiers in combat be able to sue their colleagues for negligence? - Yes - No Soldiers fighting in a war cannot be sued in negligence. Decided in Mulcahy v the Ministry of Defence. Pure policy decisions as it was thought to be wrong that a fighting solider should have to make decisions knowing that they might be sued in negligence - Should the fire service owe a duty to anyone who has called for their help? - Yes - No - Should the ambulance service owe a duty to anyone who has called for their help? - Yes - No **CPS and Referees** - Developing a feel for how these policy questions will be decided is vital for understanding this area of law -- look at how policy reasons might affect two of the following decisions - Decision 1 - In the case of *Eligozouli Daf* the court had to decide whether a duty of care should be imposed on the Crown Prosecution Service when dealing with defendants in criminal trials. - Which policy points do you think were important when thinking about the CPS in this case? - Select 'YES' if you consider that the policy argument should have been considered as a major relevant factor in each case and 'NO' if the factor was of limited relevance. A. Imposing a duty will open the floodgates to an enormous number of claims. - Yes - No B. Imposing a duty will cause the defendants to behave in an unduly defensive manner. The defendants should be free to make decisions without fear of being sued in negligence. - Yes - No C. Imposing a duty generate litigation that will be a waste of scarce resources especially as there are other sources of compensation available to the victim. - Yes - No C. Imposing a duty would mean that the court would have to consider how the public body allocated its resources. This is a political decision that would not be an appropriate matter for a judge to decide. - Yes - No D. Imposing a duty will deter people from carrying out desirable activities for fear of being sued in negligence. - Yes - No E. Not imposing a duty allows the defendant to get away with careless behaviour - Yes - No F. Not imposing a duty confers immunity and means that claimants cannot have the merits of their case considered in detail - Yes - No - In cases against CPS, no duty was imposed -- primarily because the court didn't want to make the CPS behave in an overly defensive manner Decision 2