Pearson BTEC Applied Law Unit 7 Outcome A
Unit 7 - Aspects of Tort
Outcome A - Examine the principles of tort and liability in negligence for psychiatric harm
Outcome A: The Principles of Tort and Liability in Negligence and Psychiatric
Harm
Factual Causation
- Causation in fact
- Link between defendants act or omission and the injury or loss caused.
- Not all factual causation involves legal causation.
Legal Causation
- Causation in law
- Defendant is legally responsible for the injury or loss e.g defendant to be liable for an injury it must be
shown that the reasonable person could foresee the injury occurring.
Factual Causation: The test
- Claimant must show a causal link between defendants act or omission and the damage caused
- The test used to establish the causation is but for
- Must be shown that but for the defendants act or omission the claimant would not have suffered damage
or loss.
- Barnett v Chelsea & Kensington Hospital 1969 - Failure of treatment was not cause of death.
- Bonnington Castings Ltd v Wardlaw 1965 - Both defendants liable even though there were two possible
causes of death.
- McGhee v National Coal Board 1973 - Liable for negligence as employer increased the risk of injury by
not providing wash facilities.
- Fairchild v Glenhaven Funeral Services Ltd 2003 - Each of the employers who exposed him to asbestos
were liable.
Loss of Chance
- Defendants' negligence deprived the claimant of the opportunity to avoid a loss, usually involving medical
negligence.
- Hotson v East Berkshire Area Health Authority 1988 - School boy fell out a tree and fractured his hip and
was taken to hospital. Hospital failed to diagnose his fracture and sent him home. Was in severe pain and
taken back to hospital where an X ray revealed his injury. Was treated and suffered an avascular necrosis
which resulted in him having a permanent disability and a virtual certainty that he would develop
osteoarthritis. Medical evidence suggested that if he had been correctly diagnosed initially there would be
a 75% chance that he would have still developed this condition but a 25% chance he would have made a
full recovery. Claimant did not receive anything.
- Gregg v Scott 2005 - Claimant found lump under his arm. Consulted a doctor who negligently diagnosed it
as innocuous when in fact it was cancerous. Led to a 9 month delta in the claimant receiving the treatment
which during this time the cancer had spread. Reduced prospect of disease free survival from 42% to
25%. Delay caused the claimant to undergo immediate high dose chemotherapy. He can only recover
damages if it was over 50% but because they were less he can recover nothing.
Novus Actus Interveniens
- A new intervening act
- Chain of causation is the link between a defendant's act or omission and the injury or loss suffered.
- Intervening act may break the chain of causation meaning that the defendant is not liable for the injury or
loss suffered by the claimant.
- Knightley v Johns 1982 - New act intervening breaks the chain of causation - Tunnel crash
- Baker v Willoughby 1969 - Second incident does not break the chain of causation as it does not change
the initial problem.
- Jobling v Associated Dairies 1982 - Liability stopped when the disease occurs.
- McKew v Holland & Hannen & Cubitts Ltd 1969 - Claimant decided to go down the stairs.
, Fault
- Legal blame for causing an accident.
- Fault will have to be proved on the balance of probabilities and evidence will have to be produced to show
the fault.
- Proving fault may be difficult or costly for the victim.
- Evidence is required to show how the injuries occurred for example eye witnesses or paid experts.
- Medical evidence may be required to show the extent of the injuries and the effect on the victim in the
future.
- If property has been lost or damaged, valuation will be obtained.
- In many cases a person or company will be covered by insurance which is sometimes compulsory such
as for driving a motor vehicle.
- In the event of an accident where injury or damage is caused a report will be passed to the insurance
cover so that the victim can be reassured that if they can prove their case, that they will receive
compensation.
- Need to prove fault can cause problems and only a small number of victims of accidents actually receive
full compensation for their injuries. Reasons include:
- The person who caused the injuries or damage cannot be traced such as in motor vehicle claims
the Motor Insurers Bureau funds claims against uninsured drivers or drivers who cannot be traced.
They are funded by a charge on all insurance companies who provide motor insurance cover.
- The fault cannot be proved, even though injury or damage is suffered
- Bolton v Stone 1951, Bolam v Friern Hospital Management Committee 1957,
Roe v Minister of Health 1954.
- There is no fault meaning that the injuries or damage were completely accidental or not covered by
any insurance policy risk.
- The victim is prevented from claiming for public policy reasons - Hill v Chief Constable of West
Yorkshire 1988
- Expert evidence and specialist lawyers are required to deal with cases where severe injuries have
been caused. These experts and lawyers will be expensive and will have to be paid in order to
obtain the evidence to assess whether there is a valid claim and later to prove the claim in court.
Strict liability
- Claimants will not have to prove any fault on the part of the defendant in order to win their claim.
- These torts are easier and cheaper to prove and include:
- Private nuisance which is where the defendant is causing an unreasonable interference to the
claimant’s enjoyment of their property. The judge will decide whether the defendant is acting
unreasonably and wil take various factors into account. The defendant will only be at fault if they
are found to have acted maliciously.
- Rylands v Fletcher liability which is an alternative to a claim in negligence. If the claimant can show
that there was: A storage of a non-naturally occurring material on property that has escaped and
that it caused the reasonably foreseeable damage to the adjoining property; then the damage is
awarded. The claimant does not have to show any fault on the part of the defendant for the
storage or escape.
- Vicarious liability which is where the claimant has been injured by an employee. If it can be shown
that the person causing the injury, loss or damage was employed (as opposed to being
self-employed) and they were acting in the course of employment, the employer will be liable to
pay compensation.
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