Law of Tort Summary (Pt 1)

Primary Victims:Someone who fears for their own safety, as a result of being directly affected by the negligent act 'Reasonable fear of immediate personal injury to oneself' - Dulieu v White Primary victim doesn't need to prove that the psychiatric injury was foreseeable, just that some form of personal injury was foreseeable.  Combined physical harm is irrelevant The thin skull personality rule applies to primary victims; D must take primary victims as they find them - Page v Smith

Claimants must show that they are suffering form a recognised psychiatric illness, capable of resulting from the incident and recognised as having long-term effects. Mere distress, fright, grief and sorrow are insufficient. -    Reilly v Merseyside Regional health authority,      White & others v chief constable of south yorkshire

Secondary Victims:Someone who suffers a psychiatric injury as a result of fearing for the safety of a primary victim. More specific criteria apply for SV due to the potentially endless liability that could 'open the floodgates'. A 'control mechanisms' test was established in the case of Alcock v Chief constable of South Yorkshire: SV  must have close ties of love and affection with with the PV.  Injury must have been caused due through victims' own unaided sight and hearing of an event or its immediate aftermath. (Not through a third party)  Injury can be caused by witnessing the immediate aftermath - McLoughlin v O'Brian Injury must be induced by shock; Injury sustained gradually over a period of time is not recoverable - Sion v Hampstead health authority. This was widened to include 'Shocking events' in  North glamorgan NHS trust v Walters Must prove that the psychiatric injury was foreseeable. Claims by SV's will only be successful if the secondary victim is a person of normal fortitude - In other words, the thin skull personality rule does not apply - Page v Smith 

Rescuers:Defendants are expected to be liable to those who try to save their victims.  To recover compensation for psychiatric injury, rescuers must objectively have placed themselves in danger, or reasonably have perceived themselves to be doing so. - White v Chief constable of South Yorkshire police In Chadwick v British transport commission, the claim was successful because danger and injury to passengers was foreseeable, as were danger and injury to someone who tried to rescue them. Bystanders:Bystanders cannot be compensated for psychiatric injury; 'Defendants cannot be expected to compensate the world at large' -  McFarlane v E. E. CaledoniaIt was held that duty should not extend to those who are mere bystanders unless there is sufficient proximity in time, place and relationship (close ties of love and affection).

Claims under product liability can be brought in one of two ways; Through an act of negligence or through the statute of the Consumer protection Act 1987. 

Negligence claims:Subject to the ordinary rules of negligence- first established in Donoghue v Stevenson where it was established that a Manufacturer always owes a duty of care to the consumer. 'Manufacturer' was widened to include retailers in Kubach v Hollands and 'Consumer' was widened to include any person in contact with the product in Grant v Australian knitting millsBreach of duty must be established using risk factors which may lower or raise the standard of care. Risk factors include Special characteristics of the claimant- Wells v Cooper, Nettleship v Weston Professionals - Bolam v Friern Special characteristics of the defendant - Paris v Stepney borough council Size of the risk - Haley v London electricity board Practical precautions - Latimer v AEC Benefits of the risk - Watt v Hertfordshire county council Once Breach is proven, It must be proven that he damage was caused by the breach and that the damage was not too remote. Causation is determined by the 'but for' test, established in Barnett v Chelsea & Kensington hospital. Remoteness of damage id determined by using the following factors: Foreseeability of damage - Wagon Mound case Type of damage - Bradford v Robinson rentals, Hughes v Lord Advocate Thin skull rule - Smith v Leech brain One possible defence is Contributory negligence- Shown in Brannon v Airtours, Froom v Butcher, Sayers v Harlow and O'Connel v Jackson

CPA 1987:Under this act, there is no need to prove liability, just proof that the product was defective and caused damage. (1) 'Producer' can be the manufacturer of the goods, the manufacturer of a component within the product, the person who won or abstracted it, or theperson who carried out the industrial process- Bogle v McDonalds (2) The 'Product' means any goods or electricity and includes a product that is comprised within another product, whether by virtue of being a component part or raw material. A v National Blood Authority shows that contaminated blood classes as a 'product'.  (1) A claimant may sue if he suffers harm which is wholly or partly caused by the defective product. (2) The 'Defendant' can be the producer of the product(see section 1.2), any person who brand-names the product as their own, or the person who imported the product into the EU. (3) Any supplier of a product is liable unless he or she complies with a request to name, within a reasonable time, the person supplying him or her with the product.  (1) 'Defective products' are those where the safety of the product are not such as the reasonable person should be entitled to expect. This is affected by the following factors: (2)(a) Its marketing - the use of warnings or instructions on packaging Worsley v Tambrands, (2)(b) What might reasonably be expected to be done with the product (Richardson v LRC products) or (2)(c) The time when a product was supplied to another - Abouzaid v Mothercare Defences include: When the product is in compliance with legal requirements, If the defendants did not supply the product to another, If the supply was not in the course of business and not supplied in order to make a profit, and if scienctific and technological knowledge at the time was not enough to enable the discovery of the defect.  (1) 'Damage' means death or personal injury or any loss of or damage to property/land. (3) Defendant is not liable if at the time, the product wasn' intended for use or consumption. (4) The claimant can only claim uder this act if the damage caused amounts to £275 or more.  Contributory negligence - See Cases above for contributory negligence in general negligence claims

Consequential Loss is always recoverable, however, pure economic loss is very rarely recoverable - Spartan Steel Alloys v Martin,    Heller v Foot and Mouth disease research institute. Pure Economic loss can only be claimed for in the case of a negligent misstatement, or where it arises from the circumstanced laid out by the courts in the Hedley Bryne principle. Negligent Misstatement:The law as it stands today, developed by the dissenting judgement made by Lord Denning in Candler Crane v Christmas. It was held that in addition to the requirements of foreseeability, proximity and whether it is fair,just and reasonable, there must also be a 'Special relationship' between the parties in order for there to be a duty of care owed - this was established in hedley bryne v heller. A Special relationship requires the following 5 key elements: Defendant must posses a special skill - Lennon v MPC, Chaudhry v Prabhaker There must be voluntary assumed responsibility - Hedley Bryne v Heller (disclaimers) There must be a known user - Caparo v Dickman, Morgan v Cruciple There must be a known purpose - Caparo v Dickman, Law Society v KPMG Must prove reasonable reliance - Caparo v Dickman, James McNaughton Paper group v Hicks Anderson

Exceptions in economic loss:This case gives exceptions where pure economic loss is able to be claimed for even where there is a dispute over the reliance on the part of the claimant. The two exceptions are: Beneficiaries of a Will - White v Jones Providing services - Henderson v MErret Syndicates Job references - Spring v Guardian Assurance

Occupiers liability Act 1957

The OLA '57 covers lawful visitors. S1.2 states that the occupiers is the persons who would be treated as an occupier in common law. In common law, the 'Occupier' is decided using the 'Control test' established by Lord Denning in Wheat v Leacon The Occupier doesn't have to be in occupation of the premises - Harris v Birkenhead S1.3(a) What is the 'premises'? - Includes land and any buildings on that land ,'any fixed or movable structure on the occupiers land, including buildings, vehicles, vessels and aircraft'. - Wheeler v Copas To establish liability under this Act, Duty of care, breach of duty and damage must be proven. S2.1 An Occupier owes a duty of care to all lawful visitors. S2.2 the duty of care is 'a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there'.  The duty is to keep visitors NOT premises safe. Duty of care is judged against the standard of care in normal negligence - how would the reasonable occupier have acted? - Latimer v AEC. The Duty only applies if the visitor is carrying out lawful activities - Tomlinson v Congleton. Reasonable Care requires no more than reasonable precautions - Laverton v Kiapasha.   Exceptional circumstances include: S2.3(a) An occupier must be prepared for children to be less careful than adults. It is not a defence to say that the precautions taken were adequate to protect an adult if the reasonable occupier would have taken further precautions to protect a child. Seen in Maloney v Lambeth. It is expected of parents also, to take reasonable care to control their childs actions - this is decided using the 'Prudent Parent test' shown in Phipps v Rochester Corp.  S2.3(b) An occupier may expect that a specialist visitor will be aware of and will protect himself against risks within his own specialism. - Roles v Nathan S2.4(b) Independant contractors- The occupier is not liable is the visitor was injured by a danger created by faulty workmanship on the part of an independent contractor, provided that the occupier took reasonable care to ensure the contractor was competent and the work was done properly. - Woodward v Mayor of Hastings, Haseldine v Daw Duty may be discharged when: S2.4(a) Occupier carried out his duty by providing reasonable warnings. These can be implied (such as fences and locked doors) or express (such as notices and signs). - Woolins v British Celanese  Causation and Remoteness - Same as in standard negligence cases: Caustation is determined by the 'but for' test and Remoteness of damage must be considered in terms of the type of damage, the sequence of events leading to the damage, and the foreseeability. Defences: S2.3 Contributory negligence - this sections states that courts should consider the care and lack of care that would ordinarily be looked for in a visitor. Contributory negligence was introduced by the Law Reform Act 1945, and is defined as when the claimant's own action was below the standard reasonably expected and caused or contributed to their own losses.  S2.5 Cosent/ Volenti is when the claimant knows that the defendant may act negligently and still consents to it. - Morris v Murray, Haynes v Harwood S2.1 Occupiers may restrict or exclude the duty owed to visitor if they put up an appropriate sign saying that they don't accept liability which is clearly worded and visible. - Ashdown v Samuel Williams,   In the case of business premises, the rule allowing exclusion of liability was modified by the provisions of the Unfair Contract Terms Act 1977. By S2.1 of the UCTA, liability cannot be excluded for death or personal injury of a visitor where that loss is caused by negligence; and by S2.2, Liability for other losses can only be excluded where it is reasonable for the occupier to do so. Remedies: S1.3  Damages can be claimed for Death, personal injury, damage to property (including that which belongs to another) and any consequential economic loss resulting from the damage to property. 

In order to establish if the claimant can bring an action under occupiers liability, it must first be seen whether they are a lawful visitor or a trespasser. A lawful visitor is one who has permission to enter and this can either be express or implied. Express is usually given verbally or by other forms of invitation and so is  easy to establish. There are four examples of implied permissions: Repeated visits - if occupier knows people frequently visit his land and does nothing about it then permission may be implied.  - Lowery v Walker Doctrine of Allurement - children will not be trespassers if he wanders onto the land to investigate something both attractive and dangerous to children - Jolley v Sutton, Glasgow Corp v Taylor Entry to communicate - there is implied permission to walk up to the front door for the purpose of communication - e.g. door-to-door salesmen. The visitor will become a trespasser if he refuses to leave. Statutory entry - People such as policemen and meter readers have statutory permission to enter houses even if the occupier objects. 

Trespassers are those who enter without permission and who's presence is unknown or objected to by the occupier in some form of warning - e.g. signs, fences, locked doors, etc.Trespass is a strict liability tort - motive and intention are irrelevant. Someone who begins as a lawful visitor can become unlawful by overstepping certain limits: Limits on areas - if a visitor enters a room or area he is not permitted to enter he will become a trespasser - If limits are unclear, the person will be given the benefit of the doubt - Pearson v Coleman Bros. Limits on Time - A visitor who stays longer than they are permitted to are trespassers. Limits on purpose - Someone invited for one activity but chooses to undertake a different activity will be a trespasser - Tomlinson v Congleton CBC

Occupiers Liability Act 1984

The OLA '84 covers unlawful trespassers. Very little protection was offered to Trespassers until the law was modified in the case of British Railways Board v Herrington. Two hurdles must be overcome before a duty of care can be proven: The claim must arise from the dangerous state of the property, rather than the dangerous activities of the claimant himself. If the premises are safe then the accident was caused by the claimant acting unwisely, then the duty under the OLA '84 won't arise. - Keown v Coventry NHS The provisions of S1.3 must also be met - (a) Claimant must be aware of the danger or has reasonable grounds to believe it exists. (b) The claimant must know or have reasonable grounds to believe that someone else is in the vicinity of the danger or may come into the vicinity of the danger. (Donoghue v Folkstone)  (c) The danger must also be one for which the claimant is reasonably expected to offer some protection. (Scott v Associated British Ports) The Duty: S1.4 - The duty of care owed by an occupier to a trespasser is to take such care as is reasonable in all circumstance to see that the trespasser does not suffer any injury on the premises because of the danger. Factors taken into account include likelihood of trespass, seriousness of injury, the cost and practicality of taking precautions, the likely age of any trespasser, common sense and the fact that an occupier should not have to guard against an irresponsible minority. - Platt v Liverpool City Council  S1.2 - The terms 'Occupier' and 'Trespasser' have the same meaning as they do in the OLA '57  Discharge of the duty: Occupiers may be able to discharge the duty if they take such care as is reasonable in all the circumstances of the case to provide warnings of the dangers concerned. - Tomlinson v Congleton Defences: OLA '84 does not mention Contributory negligence but judges will accept it as a defence. S1.6 states that the defendant owes no duty in respect of risks willingly accepted by the claimant. - Ratcliff v McConnel Excluding Liability:Law is not clear on whether or not Occupiers can exclude liability owed to trespassersRemedies:A successful claimant can claim damages for death and personal injuries, however S1.8 says that damage to property cannot be claimed for under this act.

To win a claim for negligence, the claimant must establish 3 things: Defendant owed a duty of care to the claimant The defendant breached the duty owed The Damage was caused by the Defendants breach of duty and was not too remote.

Duty of Care:Duty of care is a phrase meaning when a person has a responsibility to take proper care not to injure another. The original neighbor principle for deciding Duty of care was brought about in Donoghue v Stevenson (a very important case in product liability). A 3 part test was later established in Caparo v Dickman ( a very important case in economic loss). This said that to have a duty of care, one must satisfy the following: Foreseeability - Kent v Griffiths Proximity - McLoughlin v O'Brian Fair, Just and reasonableness (policy reasons considered to prevent opening the 'floodgates of liability') - Hill v Chief constable of West Yorkshire Duty of care can also arise from an omission (the lack of an action to prevent injury), such as the duty of care to protect those in your care or the duty to protect people when it is written into your employment contract.

Breach of Duty:Whether or not the duty has been breached depends on the 'reasonable man test'- defined in Blyth v Birmingham water works.  Reasonableness depends on the standard of care expected. This can be varied, depending on certain risk factors: Special characteristics of the defendant - nettleship v weston, wells v cooper Professionals - Bolam v Friern Special characteristics of the claimant - Paris v Stepney borough council Size of the risk - Haley v London borough council Practical precautions - Latimer v AEC Benefits of the risk - Watt v Hertfordhire county council

Damage:Causation is determined by the 'but for' test, and can be seen in Barnett v ChelseaRemoteness of Damage is determined by reasonable foreseeability of damage (Wagon mound), Type of damage (Bradford v Robinson Rentals), the series of events leading to the damage (Hughes v Lord advocate) and the thin skull rule (Smith v Leech brain).

Medical Negligence:The duty of care from a doctor to a patient begins the moment they enter casualty - Barnett v Chelsea and kensington hospital management. By agreeing to take a patient, a doctor assumes a duty of care for both what he does and doesn't do - Bolam v Friern hospital management. The Bolam test says that professionals have breached their duty of care if they fall below the standard of care expected of a reasonably competent professional, and where there is a professional body of opinion in agreement. The standard of care is not reduced if the professional lacks experience - Wilshire v Essex Health authorityThe case of Bolitho v City and Hackney health authority states that the bolam test should only apply where it is reasonable to do so.When judging the standard of care of a doctor, the courts must consider the state of medical knowledge at the time of the negligence  - Row v Ministry of health 

Product Liability

Psyciatric Injury

Economic Loss

Occupiers Liability

Negligence