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English Law Torts - Coggle Diagram

- - - - HL,1969 , Barnett
        
        Night watchman, arsenic poisoning, hospital, no examination, dies.
        
        Breach of duty but no causation
        
        If causation satisfied, claimant can proceed with the claim
    - - All or nothing approach
        
        HL, 1987, Hotson
        
        Claimant injured in a fall, then treated negligently.
        
        Was the disability caused by the doctor or the fall?
        
        No causation.
        
        75% chance injury would have occurred anyway
        
        Defendant’s negligence not the probable cause (balance of probabilities)
        
        HL, 1988, Wilsher
        
        Premature baby became blind; 5 possible causes, only one linked to negligence.
        
        No causation.
        
        Claimant must prove the negligent cause was more likely than the others
        
        Increasing the risk is not enough
      - Material contribution approach
        
        HL, Bonnington
        
        Claimant worked in foundry, developed lung disease from inhaling dust:
        
        Guilty dust → from poorly maintained machinery (negligence)
        
        Innocent dust → from properly maintained machinery
        
        Could the claimant prove causation when multiple causes exist and the “but for” test fails?
        
        Causation established,
        
        No need to prove that the defendant’s breach was the only/main cause,
        
        It is enough to show it made a more than trivial contribution to the damage.
    - - HL,1963, Abraham
        
        Damage to car already damaged needing respray
        
        Should second defendant be liable for the whole damage or only for additional harm caused ?
        
        Not liable for the respray: needed respray anyways
  - - - Claimant developed asbestosis after working for 7 employers.
      - Each employer is liable proportionally (based on duration of exposure)
      - if the injury can be separated, damages are apportioned.
    - - Each defendant liable for 100% of the damage
      - Claimant can recover full compensation from any one of them
      - But cannot recover twice
  - - - 2 or more defendants responsible for same indivisible damage:
        
        Each is fully liable to the claimant
        
        Claimant can recover 100% of damages from any one defendant
      - Defendant who pays full compensation (the “solvens”) can claim contribution from the others
      - Court apportions liability based on each defendant’s share of responsibility
  - - - The negligent intervention of a 3rd party
        
        General rule:
        
        A third party’s negligence does NOT break the chain if it is foreseeable.
        
        HL,1973, Rouse
        
        No break, both defendants liable
        
        Lorry driver blocking highway, lorry driver making accident
        
        HL,1982, Knightley,
        
        Unforeseeable negligent order → breaks the chain
        
        Polince inspector prder to police officer, drive back in tunel, accident
        
        Intentional / reckless acts
        
        More likely to break the chain, but depends on foreseeability:
        
        HL, 1981, Lamb
        
        House being repaired, squatters
        
        intentional acts → break the chain
        
        HL, 1948, Stansbie
        
        Craftsman decorating house leftn didn't lock, was told to, thieves
        
        Theft foreseeable → no break, defendant liable
      - The instinctive intervention
        
        HL,1773, Scott
        
        Firework, crowd, throwed awaiy
        
        No break
    - - HL, 1969, McKew
        
        Injured claimant, steep staircase no handrail, further injury
        
        Unreasonable action → breaks the chain
      - HL, 1969, Wieland
        
        Neck collar, can't use spectacles, falls down the stairs
        
        Reasonable reaction → no break
      - The claimant’s act breaks the chain only if it is unreasonable.
  - - - HL, 1961, Wagon mound
        
        Oil spill in harbour, welding machine, fire
        
        Dot foreseeable, damage too remote → no liability
      - Exceptions:
        
        Similar in type rule
        
        HL, Hughes
        
        Cable repair, manhole with canvas tent, as paraffin lamps open lit, children go in, explosion and burns
        
        Liability
        
        HL, Tremain
        
        Rats in farm w rare disease, bite
        
        No liability
        
        If type of damage foreseeable, no matter that exact manner of occurrence was unforeseeable
        
        Egshell skull rule
        
        Defendant liable for full extent of injury, even if unusually severe
        
        Robinson
        
        Injury to leg, anti-tetanus injection, allergic reaction
        
        Even unforeseeable severity → still recoverable
- - - - The Neighbour test of Donoghue v. Stevenson, 1932
        
        Solution: a duty of care was owed
        
        Principle: must take reasonable care to avoid foreseeable harm to those closely and directly affected by your actions.
        
        Problem:Did the manufacturer owe a duty of care to a consumer with whom there was no contract ?
        
        Facts: ginger beer bought by a friend, decomposed snail, illness. Manufacturer sued, although no contract between them.
      - The Caparo test of Caparo Industries plc v .Dickman
        
        Facts: Auditors prepared statutory accounts, overvalued company. Claimant relied on accounts to buy additional shares, suffered financial loss.
        
        Problem: Did the auditors owed a duty of care to the claimant ?
        
        Solution: no duty of care was owed.
        
        Principle:
        
        Foreseeability of harm
        
        Proximity between claimant and defendant
        
        Fairness (just and reasonable) to impose a duty
    - - No liability for omissions
        
        Omission = someone fails to act to prevent harm to the claimant.
        
        HL,1996, Stovin: highway authority knew a road junction was dangerous but did nothing to fix it. An accident occurred. No duty to act
      - Exceptions
        
        The duty not to make a situation worse in case of acting
        
        Kent 1940, HL: defendant had no duty to repair a broken seawall but chose to do so. The repairs were slow, prolonging flooding.
        
        The duty to act positively on case of special relationship of power
        
        Duty to take positive action to safeguard the other
        
        Duty to take positive action to prevent harm, damage being caused to a third party.
        
        HL, 1970, Dorset yacht v home office: Facts: Officers left young offenders unsupervised; they escaped and damaged the claimant’s yacht. Duty of care existed.
  - - - Assessing observance of the standard
        
        Magnitude of the risk
        
        The risk of greater injury
        
        HL, 1951, Paris
        
        The more serious the potential injury, the greater the care required.
        
        Blind in one eyen no safety googles, got injured in good eye, got blind.
        
        The probability of an injury of occurring
        
        HL, 1951, Bolton
        
        The more likely the risk, the more precautions required.
        
        Rare risk (cricket ball leaving ground) → no breach.
        
        HL, 1932, Fardon
        
        Fantastic risk (extremely unlikely) → no liability
        
        Defendant left dog in car, broke window, passerby blinded by a splint of glass.
        
        Cost and practicability of precaution
        
        HL, 1953, Latimer
        
        Courts weigh risk vs cost of prevention.
        
        High cost (closing factory) vs low risk (slipping on sawdust)→ no breach.
        
        Dependence purpose
        
        HL, 1954, Watt
        
        If the activity benefits society, more risk may be justified.
        
        Fireman, woman stuck, heavy lifting truck, normal truck. Risk taken to save a life → no breach.
        
        Common practice
        
        HL, 1987, Re Herald of Free Enterprise
        
        Following common practice is strong evidence of no breach, but not decisive.
        
        Ferry sank becase of habit to not check if doors are closed
        
        Current state of knowledge
        
        Roe 1954
        
        Defendant judged based on knowledge at the time.
        
        Minor surgery, permanently paralyzed from the waist down, anesthetic contaminated with seepage, no knowledge about it at the time
      - Identifying the standard of care
        
        Special standarts
        
        Skilled defendant
        
        Bolam, 1957, HL
        
        Special skills will = judged according to level of skill/competence expected
        
        Acting according responsible body of professional opinion = no negligence
        
        HL, 1997, Bolitho
        
        Professional standard not logical / contradictory = possible to depart from it
        
        Underskilled defendant
        
        HL, 1971, Weston
        
        Lack of experience is irrelevant.
        
        A learner driver is held to the same standard as a competent driver.
        
        Wilsher, HL, 1987, (confirmation)
        
        Judged by the standard of the role you take on
        
        A junior doctor must meet the standard of a reasonable doctor.
        
        HL, 1958, Wells (non-pro)
        
        Underskilled non-pro behaviour assessed in light of what is expected from a non pro person.
        
        The defendant underskills not to be taken into account.
        
        Children
        
        HL, 1998, Mullin
        
        Standard of a reasonable child of the same age.
        The younger the child, the less likely they can foresee harm.
        
        15yp Schoolgirls, plastic rulers sword fight, lost an eye.
        
        The general standart of care
        
        HL, 1856, Blyth v Birmingham Waterworks Co
        
        The defendant must meet the objective standard of the “reasonable person”.
        
        The test is:
        
        Objective: personal characteristics are ignored
        
        Impersonal: focus on what a reasonable person would have foreseen
    - - Burden of proof
        
        Claimant must prove their case in a balance of probabilities, more likely than not that the defendant breached their duty
      - How to prove
        
        Civil litigation context
        
        Evidence
        
        Witnesses of facts : people who saw what happened.
        
        Expert witnesses : people of the art , conduct complied w. standard of care of the profession ?
        
        Res Ipsa Loquitur (“the thing speaks for itself”) (no witness)
        
        HL, 1865, Scott
        
        burden of proof shifts to the defendant to show no negligence.
        
        The thing causing damage was under the defendant’s control
        
        The accident would not normally happen without negligence
        
        The cause is unknown to the claimant
        
        Loading bags of sugar with a hoist, fell, injury
        
        Civil criminal litigation context
        
        Facts of civil negligence litigation may be characterized to a criminal offense.
        
        section 11 of civil evidence act
        
        Def convicted criminal offense, presumed civil offense subsequent civil proceedings
- - - - Cl needs to have contributed to the damage they suffered (not the accident)
      - HL,1975, Froom
        
        Injury reduced if seatbelt on, -15%
        
        No difference if seatbelt on, -0%
        
        Injury avoided if seatbelt on, -25%
      - HL, 1989, Capps
        
        Motorcyclist who suffered head injuries when not wearing helmet
    - - The case of children.
        
        Test
        
        The child is compared to a reasonable child of the same age.
        
        HL, 1966, Gough
        
        Lorry driver waved to let a 13yo cross, hit by a car
        
        Practice
        
        The younger the child, the less likely contributory negligence will be found.
        
        The older the child, the more likely it is.
        
        Principle
        
        Age does not automatically exclude contributory negligence
      - The case of rescuers.
        
        HL,1959, Baker
        
        Company cleans well, smoke, 2 employees go in + doctor, 3 died
        
        No CN for the doctor, rescuer = standard of the reasonable rescuer
      - The case of employees
        
        The court must consider all the relevant circumstances (working conditions)
        
        HL,1940, Caswell
        Lord Atkin
        
        Standard of care expected from claimant varies according to circumstances (mine vs office worker)
      - Dilemma cases
        
        HL, 1814-1833, Johns
        
        coach owner, negligently drove it, claimant juped, broken leg
        
        No CN
        
        HL, 1958, Sayers
        
        CL trapped in toilt, climbed, injured
        
        CN
    - - Claimant careless
      - Carelessness contributed to the cl’s damage
      - 1945 Act, Section 1
        
        First calculate the full damages
        
        Then apply a reduction for contributory negligence
        
        HL,1999, Reeves
        
        Pers died bc killed itself while being in police custody, 50% to blame, 50% damages
  - - - CL and def escaped from burglary, crash, injury
      - Illegality applied
    - - 2 drunk person, 1 motorcycle, crash, reckless drinving encouraged by def, driver no insurance and licence
  - - - Full knowledge of nature and extent of the risk
      - Freely consent (mere knowledge is not consent)
        
        Dann 1939
        
        Driver, alcool, cl injured, driver died
        
        Knew the risk, didn't consent
        
        Morris 1990
        
        Drunk, aircraft, bad weather, planne crash, Negligence against the estate of the deceased
        
        Implicitly gave up his right to damages
    - - Consent and employees
        
        HL 1891, Smith
        
        Stonle lifting, one fell on the employee, injured, continued working
        
        Defendence failed, continuing to work is not consent
      - Consent and rescuers
        
        No consent if
        
        Rescue persons or property endangered by the defendant’s negligence
        
        Acts under a compelling legal, social, or moral duty
        
        Conduct is reasonable and a natural consequence of the defendant’s negligence
        
        HL, 1935, Haynes
        
        Police officer, out of control horses, stoped them, injury
        
        Acted under compulsion, did not voluntarily accept the risk
- - - - Claimant can only bring one claim based on one set of facts.
      - Court must award a single sum to cover all losses
      - Exception ( provisional damages a periodic payments)
        
        Special damages
        
        Can be calculated (losses before trial)
        
        General damages
        
        Can't be calculated precisely must be stated, (after trial)
    - - Avoid losses by takink reasonable steps
        
        Duty to mitigate
      - The claimant must take all reasonable stakes to keep tho losses he is claiming to a minimum.
      - Claimant should not profit from the incident
    - - To what extent ?
      - Put the claimant in the same position they would have been if no tort
  - - - Loss of amenity
        
        Compensate loss of enjoyment of life
        
        Soss of freedom, of movement, of sight, loss of marriage prospects
        
        Cl active recieves more than inactive
        
        West 1964
      - Computation (calculation)
        
        Judges consider individual facts of each case.
        
        Unofficial guidelines
        
        Kamp & Kamp on damages, text, handbook.
      - Pain and suffering
        
        Head of damage covers past present and future pain, physical and mental angoisse, the fear of future surgery…
        
        Wise 1962
        
        Claimant must be aware of the injuries
    - - Loss of earnings
        
        Pre trial
        
        Net earnings
        
        Add everything
        
        Post trial
        
        Assess at the date of the ruling all the losses the claimant is to incur
      - Other kinds of pecuniary damages
        
        Everything can be recovered
      - Medical expenses
        
        Pre trial, any expenses
        
        Post trial, annual cost of treatment and the number of years the treatment is likely to continue
        
        Act 1948: claimant can recover on the costs of private medical treatment
      - Deductions from damages and exceptions
        
        Insurance payments, ill-health pensions, charitable payments can be kept
      - Provisional damages and periodic payments
        
        Exception to one action rule
        
        Cl might be under compensated
        
        Def might be overpaying
        
        section 32a of the senior courts act of 1981
        
        Prisional damages, if cl not suceed, payback
        
        2nd section of the damages act of 1996
        
        Court awards periodic payments instead of 1 sum
  - - - law reform miscellaneous provision act of 1934
        
        Defendant causes injuries that lead to claimant’s death before compensation is awarded.
        
        Def causes injuries, but cl dies later from another cause before receiving compensation.
        
        No proceedings started before death→ estate can initiate the claim.
        
        Proceedings were already started→ estate can continue the action.
        
        The claimant had already settled with the defendant→ estate cannot bring a new claim afterward.
    - - Damages for bereavement
        
        Spouse or civil partner of the deceased
        
        Parents of the deceased if was a minor, never been married or in a civil partnership
        
        Amount of damages is fixed by the law.
      - Funeral expenses
        
        Paid by dependence
        
        Paid bythe estate
        
        Estate representative to ask for the reinforcement to the defendant under the 1934 act and not the 1976 act.
      - Loss of independency
        
        Must fall within the class of dependence as listed in the 1976 act
        
        Current and former farried spouses
        
        Civil partners
        
        Cohabitees (2 years)
        
        Parents
        
        Childrens
        
        Siblings
        
        Cl financial dependency or a reasonable expectation of pecuniary benefit
      - Fatal Accidents Act 1976
        
        if the deceased had survived, they would have had a valid claim in tort against the defendant
        
        tort against the deceased.
        
        Parasitic claim (one action rule)
- - - - The field of application of each act
        
        Unfair Contract Terms Act 1977
        
        Applies to negligence liability
        
        Defendant must act in the course of business
        
        Generally non-consumer context
        
        Consumer Rights Act 2015
        
        Defendant = trader (professional)
        
        Claimant = consumer (non-professional purpose)
      - The rules embodied in each act
        
        Liability for death or personal injury cannot be excluded
        
        For other loss (including PEL), exclusion valid only if:
        
        Under 1977 Act → reasonableness
        
        Valid in all circumstances
        
        Under 2015 Act → fairness + good faith
        
        Balance between parties
        
        Smith + Harry's, 1989
        
        house purchaser vs valuor/surveilor
      - Claimant must prove breach of duty and causation
        
        No effect on PEL
        
        Effect on defences, use of exclusion clause
        
        Def may rely on exclusion notice if:
        
        Reasonable steps taken to bring it to the claimant’s attention before damage
        
        Wording covers type of loss suffered
    - - Economic loss unconnected to personal injury
        
        Economic loss caused by damage to the property of a 3rd party
        
        HL, 1973, Spartan steel
        
        Employees damaged cable while drilling in a road, power cut. loss of profit of metal in furnace, and loss of other cant be melted
        
        Physical damage + direct consequential loss → recoverable
        
        Pure economic loss → NOT recoverable
        
        Economic loss caused without physical injury
        
        Pure economic loss caused by negligent action
        
        HL, 1966, Weller.
        
        Virus escaped from defendant’s lab, Cattle infected → markets closed, Claimants (auctioneers) lost business
        
        PEL caused by negligent acts without physical damage is not recoverable.
        
        Pure economic loss caused by negligent statements
        
        General considerations
        
        Principle
        
        PEL caused without physical injury, by a negligent statement, no recovery
        
        Exceptions
        
        Special relationships
        
        1 more item...
        
        Extensions
        
        Spring and guardian, 1994
        
        DC owed even if statement made to a third party
        
        1 more item...
        
        White and John 1995
        
        DC owed to non-contracting third party
        
        2 more items...
        
        Henderson, 1994
        
        Claimant can sue in tort AND contract
        
        1 more item...
      - Economic loss caused by acquiring a defective item of property
        
        Not recoverable in negligence, only in contract
        
        HL, Murphy, 1990
        
        If defect affects only product itself (no injury, no other damage) → pure economic loss → no duty of care
        
        New house, cracked foundation 11 years, discct council authorisation, sold for 35k less
  - - - Rescuers
        
        HL White 1999
        
        Police officers claimed damages for PPH after Hillsborough disaster, involved in rescue operations but not in the area of danger,
        
        They argued for a special status:
        
        As rescuers, or
        
        Because they were acting in the course of employment
        
        No special status,
        
        HL, Chadwick 1967
        
        Train crash, Claimant helped rescue victims for hours, Crawled into wreckage → very close to danger, No physical injury, but suffered PPH
        
        DC owed, treated as primary victim
      - Secondary victims
        
        Suffers PPH while not involved in area of danger, could not reasonably belive they were in danger.
        
        Suffered medically recognised psychiatric illness or shock induced physical injury.
        
        HL, Alcock,1991 (Hillsborough disaster)
        
        Foreseeability of psychiatric harm.
        
        Reasonably foreseeable, a person in a claimant’s position would suffer a psychiatric illness.
        
        Proximity of relationship.
        
        Close relationship of love and affection w. person who is endangered by the def’s behaviour
        
        Proximity in space and time and proximity of perception.
        
        Cl must see or hear or be present at the accident or its immediate aftermath.
        
        HL, 1982, McLoughlin
        
        Father and son accident, hospital mothers sees 1h after, same position
        
        Can recover
      - Primary victims
        
        Victim who suffered PPH while involved in area of danger
        
        HL,1995, Page
        
        Car crash, no physical injury, PPH
        
        DC owed, physical injury forseeable, enven if PPH not
    - - Damage is too remote if not reasonably foreseeable consequence of the defendant's negligence.
      - Exception: egg shell skull rule:
        
        Some damage of the same kind was reasonably foreseeable = can recover for full extent of damage, even if greater than expected