Tort Law Lectures (2024-2025) - PDF

TORT LAW Lectures – 10 hours Licence 2 – Semestre 3 – University Year 2024-2025 Eoin P. Campbell LLB Solicitor FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté d...

TORT LAW Lectures – 10 hours Licence 2 – Semestre 3 – University Year 2024-2025 Eoin P. Campbell LLB Solicitor FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté de Droit et de Science Politique de l’Université Lumière – Lyon 2  TORT LAW Seminar II The Law of Negligence FACULTÉ DE DROIT 10 place des Archives – 69288 LYON CEDEX 02 en convention avec la Faculté de Droit et de Science Politique de l’Université Lumière – Lyon 2  Left over from last week….. Is tort law really all about ambulance chasing? Liebeck v. McDonald's Restaurants (1994) Things to remember… American style coffee is not espresso! There is MUCH more hot liquid involved that with a French coffee. Most American people drink their coffee with milk/cream which cools the drink down considerably - McDonald's prepared their coffee with this in mind. Most McDrive customers were known to drink their coffee 3-4 minutes after receiving it - again, McDonald's prepared their coffee with this in mind. Mrs Liebeck's injuries were very real and very serious  Liebeck v. McDonald's Restaurants (1994) While many believed that Mrs Liebeck’s case was an example of a frivolous claim , this was not in fact the case. Tort law, particularly the ‘Tort of Negligence’ in the form of personal injury law, is therefore often misunderstood and can have some very practical benefits for society as a whole. Grimshaw v. Ford Motor Co (1981)  Grimshaw v. Ford Motor Co (1981) More details here. N.B. Ford were forced to recall the pinto, pay damages to victims and, of course, the brand image suffered. Therefore ; The threat of litigation creates incentives for manufacturers to make their products safer. Tort litigation can also promote injury prevention by serving as the impetus for future legislation.  Pearson v Chung (2005) The “lost pants” case….  Bear in mind….. As ridiculous as Pearson’s case was, the fact that he lost the case and destroyed his own career shows that the system (to an extent) works! So… now that we have confirmed that the law of Negligence is not all ambulance chasing, how is the ‘Tort of Negligence’ properly defined?  What is the ‘Tort of Negligence’? Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness , not intentional harm.  What is the ‘Tort of Negligence’? “Those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision.” per Lord Blackburn in The Dublin, Wicklow, and  What are the elements of the ‘Tort of Negligence’? The modern law of negligence was established in Donoghue v Stevenson AC 562  What are the elements of the ‘Tort of Negligence’? Donoghue v Stevenson AC 562 Mrs Donoghue went to a cafe with a friend. The friend bought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer.  What are the elements of the ‘Tort of Negligence’? Donoghue v Stevenson AC 562 Held: Her claim was successful. This case established the modern law of negligence and established the neighbour test.  What are the elements of the ‘Tort of Negligence’? Lord Atkin’s “Neighbour Test” : “The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question “Who is my neighbour?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour ? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when Donoghue v Stevenson UKHL 100 Lord Atkin argued that the law should recognise a unifying principle that we owe a duty of reasonable care to our neighbour. He quoted the Bible in support of his argument, specifically the general, biblical principle that "love thy neighbour."  Donoghue v Stevenson UKHL 100 "The liability for negligence… is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay… The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." Lord Atkin  Donoghue v Stevenson UKHL 100 The Neighbour Principle Thus, in the world of law, Lord Atkin created the doctrine that we should not harm our neighbours. Examples of a duty of care: Duty to drive the speed limit Motorists/ pedestrians Doctors/ patients Teachers/ students Home owners/ visitors Construction company/ tenants  Definition of “duty of care” Duty to abide by a reasonable standard of conduct To protect someone from certain types of harm or not to not expose someone to certain types of harm.  Caparo v Dickman Caparo Industries PLC v Dickman UKHL 2 is a landmark case in UK tort law concerning the scope of the duty of care owed by a professional to a third party. The case involved a company, Caparo Industries, which purchased shares in another company on the basis of financial statements prepared by the defendant, an accounting firm. When the shares decreased in value, Caparo sued the accounting firm for negligent misstatement. 1. Caparo Industries V Dickman 1990  Caparo v Dickman The issue before the court was whether the accounting firm owed a duty of care to Caparo, a third party. The House of Lords held that a duty of care exists in the tort of negligence only where: harm is reasonably foreseeable as a potential result of the defendant's conduct (as established in Donoghue v Stevenson); the parties must be in a relationship of proximity; and it must be fair, just and reasonable to impose liability.  Caparo v Dickman The court held that the accounting firm did not owe a duty of care to Caparo in this case, as there was no proximity between the parties. This case established the three-part test for establishing the existence of a duty of care in the tort of negligence.  The Elements of Negligence 1.) A duty of care (see Donoghue v Stevenson) 2.) Breach of that duty (see Nettleship v Weston) 3.) Breach causing harm in fact (see Smith v Leech Brain & Co.) 4.) The harm must be not too remote a consequence of the breach (see The Wagon Mound (No. 2)) What is the “Reasonable man” standard? Hall v. Brooklands Auto-Racing Club (See Pathe News 1938 (1938) at 3 minutes 34 seconds for an example of the style of racing involved.) Or Downton Abbey Season 6 episode 7 The Cars of Downton || Downton Abbey Special Features Season 6 Facts of the case.. Mr. Hall, spectator of a motor-car race. The track was owned by the defendant There was a collision between cars which crashed into the barrier. Mr. Hall was severely injured  Decision Defendants had taken all reasonable precautions to ensure the safety of the track. Any reasonable spectator could foresee the risks inherent to the race  The ‘Reasonable Man’ Who / what is a Reasonable Person Test reasonable man?  Lord Justice Greer “the man on the Clapham omnibus [...] the man on the street [...] the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves” Up-to-date version : 'commuters on the London Underground' in McFarlane v Tayside Health Board (1999).  In other words... A hypothetical person against whom a defendant's conduct might be judged. Objective standard of care based on the perceptions and sensibilities of the average person Sometimes higher standard..... Professionals Reasonable Man: Professional Standard  Bolam v Friern Hospital Management Committee (1957) 2 All ER 118. The claimant was undergoing electroconvulsive therapy as treatment for his mental illness.  Bolam v Friern Hospital Management Committee (1957) 2 All ER 118. The doctor did not give any relaxant drugs and the claimant suffered a serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. The claimant argued that the doctor was in breach of duty by not using the relaxant drug. The House of Lords ruled that the doctor was not in breach of duty.  Bolam v Friern Hospital Management Committee (1957) 2 All ER 118. The Lords formulated a new test: "…a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view." Bolam v Friern Hospital Management Committee (1957) 2 All ER 118. The Bolam Test If the defendant is a professional, he will be judged by the standard of the ordinary skilled man exercising and professing to have that special skill Physicians, race car drivers...  Elements of negligent torts a breach of duty to a known standard of care and that the breach of that duty was the actual cause and the proximate cause of the harm to the plaintiff (claimant) and in fact the plaintiff was harmed, to which the law applies a remedy.  Defences to Tortious Liability There are three main defences to tortious liability: 1.) The claimant voluntarily undertook the risk of his harm. 2.) The claimant contributed to the harm. 3.) The claimant engaged in illegal activity.  Defences to Tortious Liability (1) Volenti non fit injuria is Latin for "to the willing, no injury is done". It operates when the claimant either expressly or implicitly consents to the risk of loss or damage. For example, if a regular spectator at an ice hockey match is injured when a player strikes the puck in the ordinary course of play, causing it to fly out of the rink and hit him or her, this is a foreseeable event and regular spectators are assumed to accept that risk of injury when buying a ticket. PUCK HITS NT FAN: New Trier Hockey at State Championship 2011  Defences to Tortious Liability (2) Contributory Negligence Contributory negligence is the legal principle that an injured party i.e. the plaintiff may possibly have contributed to his or her own injury by acting in a negligent manner when faced with the obvious and known conditions. When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the plaintiff's case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded. e.g. Liebeck v McDonald’s  Defences to Tortious Liability (2) Contributory Negligence (continued).... Example: Failure to wear a seatbelt Perhaps the most obvious example of contributory negligence and that which is best recognised by the public is the failure to wear a seatbelt in a road traffic accident.  Defences to Tortious Liability (2) Contributory Negligence (continued).... Example: Failure to wear a seatbelt If you make a personal injury claim and the other driver can prove that you were not wearing a seatbelt when the accident took place, your total claim for compensation will normally be reduced by 25%. The reasons behind this principle are rather straightforward. First of all, we are required by law (with very few exceptions) to wear a seatbelt whether we are driving or travelling as a passenger in a motor vehicle, and secondly, it is assumed that in all likelihood the injuries sustained by the plaintiff would have been less serious had he or she been wearing a seatbelt at the time of the accident.  Defences to Tortious Liability (3) Ex turpi causa non oritur actio is the illegality defence, the Latin for "no right of action arises from a despicable cause". If the claimant is involved in wrongdoing at the time the alleged negligence occurred, this may extinguish or reduce the defendant's liability. Thus, if a burglar is verbally challenged by the property owner and sustains injury when jumping from a second story window to escape apprehension, there is no cause of action against the property owner even though that injury would not have been sustained "but for" the property owner's intervention. However, a trespasser may be able to recover damages due to the unsafe state of the premises What are the elements of the ‘Tort of Negligence’? In order to be successful in a negligence claim, the claimant must prove: 1. the defendant owed them a duty of care ; 2. the defendant was in breach of that duty ; 3. the breach of duty caused damage and;  Tort Law Exam XXXXday, Xth December 2024, XX:XXxm Time: 1 hour Section A: Answer all questions (10 points) 3 - 4 short questions Section B: General Discussion: (10 points) e.g. Summarise the facts of, and legal questions raised by, the case of XXXXXXXXXXXX. Explain the court's judgement. (300 – 350 words)