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Chapter 3 - The Law of Torts (Tort of Negligence (Breach of duty of care,…
Chapter 3 - The Law of Torts
Tort
What is tort?
Type of civil wrong
Breach of a legal duty
Infringement of a legal right
Gives rise to claim for damages
Breach of a legal duty
No liability unless law recognises duty exists
Differences between contracts and torts
Contractractual relationship does not have to be established for a claim in tort to be successful
Parties never even met before
With a claim for personal injury as a result of a road accident - parties had no previous relationship
If contract does exist - tort has been committed
Claimant chooses most appropriate remedy
Two options
Under a valid contract - amount of damages awarded is intended to put claimant back in the position they would have been in had the contract been performed properly
In tort - amount of damages awarded is intended to put the claimant in the position they would have been in had tortious act never taken place
Limitation periods
Contract - limitation period is six years from breach
Tort - limitation period - generally six years, 3 for personal injury
The main elements of a tort
For a successful action for tort, the following conditions must be satisfied:
Must be an act or omission by the defendant
Act or omission must have directly caused loss to the claimant
Courts must be able to establish legal liability as a result of the damage
Claim will only be successful if loss suffered is not too remote
Loss must be a direct consequence of something the defendant did or did not do
Tort of Negligence
Negligence - breach of a legal duty to take care, which results in damage to another person
For an action to succeed - claimant must prove:
Defendant breached that duty
Damage or loss has been suffered as a consequence
Duty of care was owed to him by defendant
Duty of Care
Economic or financial loss
Donoghue v Stevenson (1932)
established that action could be taken if physical damage was suffered
However, law still did not recognise liability of 'pure' economic loss
Economic loss is monetary loss which is unconnected to physical injury or damage
Where there is economic loss connected to physical injury or damage then that is 'consequential' economic loss which is recoverable
Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd 1973
Facts
Held
In respect of pure economic loss suffered as a result of professional mistreatment
Hedley Byrne v Heller
modernised the law
House of Lords refined the neighbour principle by acknowledging that a claim for financial loss suffered could be made if a 'special relationship' existed between claimant and defendant
The limits of the duty of care
The Nicholas H (Marc Rich & Co v Bishops Rock Marine) 1995
, four tests were laid down which should be followed in determining if a duty of care exists
Issues to be considered:
Was the damage reasonably foreseeable by the defendant at the time of act or omission?
Is there a neighbourhood principle or sufficient proximity between the parties?
Nicholas H
focused on financial loss, but these tests should be applied when determining the duty of care for physical damage cases
Is there a matter of public policy which exists or requires that no duty of care should exist?
Should the law impose a duty of care between the parties?
Is it fair and reasonable to do so?
The 'neighbour principle'
Donoghue v Stevenson
was the first to establish duty of care may be owed to a person where no contractual relationship exists
Prior to the case, belief was that to allow an action to be taken, where no contractual relationship existed would undermine the principles of contract law
Donoghue v Stevenson
changed this principle so that manufacturers of goods owe a duty of care to the ultimate consumer
Donoghue v Stevenson 1932
Facts
Held
Bourhill v Young 1943
Facts
Held
Court established that duty of care could apply to nervous shock provided there was sufficient proximity
Shock was suffered by someone within reasonable range of harm
White v Chief Constable of South Yorkshire Police 1998
Facts
Held
A duty to take reasonable care not to cause foreseeable harm to another
Causality (loss caused by the breach)
Claimant must demonstrate that he has suffered loss or damage as a direct consequence of the breach
'But For' test - but for the actions of the defendant the claimant would not have suffered the damage
Claimant must establish a casual link between the defendant's conduct and the damage occurred:
If the claimant would have suffered the loss regardless of the defendant's conduct then he has not caused the loss
Barnett v Chelsea and Kensington Hospital Management Committee 1969
Facts
Held
If damage was caused by something or someone else there will be no liability on the defendant's part
If something happened after the defendant's breach that caused or contributed to the damage then the defendant's liability will cease
Where the claimant is able to show the loss was suffered as a result of the defendant's breach - court will not allow recovery of that loss if it is considered to be too remote
must be a type of loss that is reasonably foreseeable
The following losses are normally recoverable:
Damage to property
Financial loss directly connected to personal injury
loss of wages
Loss as a result of personal injury
Pure financial loss is very rarely recoverable
Breach of duty of care
Haley v London Electricity Board 1965
Facts
Held
Roe v Ministry of Health 1954
Facts
Held
Glasgow Corporation v Taylor 1922
Facts
Held
Nettleship v Weston 1971
Facts
Held
The standard of care
Test for establishing breach of duty is objective and was set out in
Blyth v Birmingham Waterworks Co 1856
and stated that a breach of duty occurs if the defendant:
"...fails to do something that a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or does something that a prudent and reasonable man would not do"
The following principles have been established:
Probability of injury/vulnerability of claimant
Degree of care required has to balance against the degree of risk involved in the event of the duty being breached
Greater the risk of injury the more that should be done to prevent the injury
Latimer v AEC Ltd 1952
Facts
Held
The Breach
Establishing if there has indeed been a breach is a question of fact
Each case must be viewed separately on its own facts
2 As a question of law the claimant has to show the defendant has not shown the required standard of care
Paris v Stepney BC 1951
Facts
Held
For a successful claim - claimant must not only prove that a duty of care existed, but also that the duty was breached by the defendant
1 As a question of fact the claimant shows that the defendant was in breach of his duty
Vicarious liability
Vicarious liability occurs when one person is held responsible for the negligence of another
Applies in an employment context, where the employer is responsible for the negligent acts of the employee which occur within the context of the employment relationship
Lister and others v Hesley Hall Ltd 2001
Facts
Held
Defences
Remedies in an in negligence
Defences to a claim in negligence
Negligence by Professionals
Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964
Facts
Held
The effect of Hedley Byrne
The meaning of a special relationship
Tort of Passing Off