CONTENTS:
1. Parties: Torts and Death, and Vicarious Liability
2. Negligence
(a) Duty of Care
3. Negligently Inflicted Pure Psychiatric Injury
4. Negligently Inflicted Pure Economic Loss
(b) Proving Breach
(c) Proving Causation
(d) Remoteness of Damage
5. Defences to Negligence
6. Occupiers Liability
7. Vicarious Liability
8. Non – Delegable Duties of Care
9. Employers Liability
10.Public Authority Liability
11. Private Nuisance
,Parties: Torts and Death, and Vicarious Liability
When a person dies as a result of D’s tort, two potential actions are available: (1) an action by
the person’s estate, under the Law Reform (Miscellaneous Provisions) Act 1934; and (2) an
action by the person’s dependants, under the Fatal Accidents Act 1976.
(1) An action pursuant to the 1934 Act:
(a) A ‘cause of action’ had arisen, which the deceased could either pursue or to which
he was subject.
(b) That cause of action was ‘vested’ in or against the deceased, at the time of death.
Damages =
S 1 of the Administration of Justice Act 1982 – took effect on 1 Jan 1983 – limited
damages that are recoverable in a survival action.
(2) The FAA action:
(a) The deceased would have had a claim against D.
(b) The dependant is an appropriate claimant under the Act.
= dependant defined in s 1(3)
(a) Spouse of the deceased
(b) Cohabitant
(c) Parent or other ascendant (e.g. grandparent)
(d) Any person who was treated by the deceased as his parent
(e) Child or other descendent of the deceased
(f) Any child of any marriage to which the deceased was a party
(g) Brother, sister, uncle, or aunt of the deceased
(c) The dependant has suffered loss of dependency.
(d) The action is not barred or excluded.
Damages =
Principally awarded for the defendants financial or pecuniary loss – certain non –
pecuniary heads of damage are also recoverable.
Negligence
Step 1: Identify the parties:
Who is suing who? C’s v D’s
What if C died, allegedly as a result of the D’s negligence?
Who is potentially liable directly, or vicariously?
Statute of limitations
Step 2: Analyse the elements of the tort:
Does D owe a duty of care to C?
Is there a breach of the duty of care by D?
Did that breach cause the damage complained of by C?
Which damage is not too remote at law?
If C has proven each element, the action is prima facie proven … but …
,Step 3: Analyse whether any defences are available to D:
Contributory negligence?
Volenti?
Therapeutic privilege?
Step 4: Finally, if C is successful what remedies are available to C?
Damages? (if so what heads? Compensatory, aggravated, punitive/exemplary,
restitutionary?)
Injunction?
Declaration of liability?
Duty of Care
D owed C a duty of care to avoid causing C the type of injury of which he complains.
Relationship arising between C and D falls within a well – established category – existence
of duty of care assumed (per Robinson v Chief Constable of West Yorkshire Police).
Employer – employee Mitchell v Glasgow CC
Doctor – patient Sidaway v Bethlem Royal Hosp Governors
Teacher – pupil (especially young pupils) Carmarthenshire CC v Lewis
Road users – other road users/pedestrians/passengers Nettleship v Weston
Transport operators – passengers Silverlink Trains Ltd v Collins – Williamson
Custodian – prisoner Ellis v Home Office
Occupiers – lawful visitors
The three general approaches (in novel scenarios):
(1) The Caparo test
(a) Harm to C was reasonably foreseeable by D (a reasonable person in D’s
position would have anticipated the risk that his failure to exercise reasonable care
and skill might cause harm of some type to C)
Where unknown to D, C was particularly susceptible to the risk of the
injury, that harm to C may nevertheless be reasonably foreseeable –
applies even where: (a) duty not owed to person of ordinary physical
robustness (b) harm to C was statistically very small (c) D was not aware
of C’s vulnerability. Haley v London Electricity Board
Unborn claimants - section 1(1) of the Congenital Disabilities (Civil
Liability) Act 1976 – four triggers for act to apply: (1) C must be born
alive (2) C must be born disabled with disabilities which would not have
been present but for D’s acts or omissions (3) occurrence attributable to D
(4) C’s claim is derivative upon a claim against C’s parent/s – the Act does
not assist at all to prove whether D committed any breach of duty towards
C, whether that breach caused C’s harm or whether C’s harm was too
remote at law to be compensable.
(b) Proximity (describes the degree of closeness or neighbourhood between C and D
which must be proven to justify imposing a duty of care on D)
Geographical
Temporal
Relational
Causal
, (c) Policy factors (whether it is fair, just, and reasonable to impose a duty of care on
D)
The assessment of policy factors is a balancing exercise in novel fact
scenarios, whereby some factors will support a duty of care and others will
disfavour it.
Children (young) – do not owe a duty of care to those injured or killed by
their acts or omissions Carmarthenshire CC v Lewis
Police involved in criminal investigations - Michael v CC of South Wales
Police (999 call not relayed – claimant was killed – supreme court held no
duty of care could be owed because of Hill principle – no duty of care is
owed provided that the act or omission happened in the course of
investigation of crime) - Robinson v CC of West Yorkshire Police
(exception to Hill principle is where police commit a positive act creating
the danger they can be sued under negligence – positive act in this case
was arrest in street)
Bad Samaritan – mere omission – one who does not help others in danger
or distress (Home Office v Dorset Yacht Co Ltd) – no duty of care is
imposed upon D, a bystander, to intervene and to offer assistance to a
stranger, C, who is endangered, imperilled, or injured – policy reasons? (1)
individual liberty: to compel D to rescue would sit uncomfortably with the
individual liberty of doing as one chooses Stovin v Wise (2) indeterminate
liability: many people may have failed to intervene meaning a duty to
rescue may apply to a large and indeterminate class of people who happen
to be able to do something (3) ‘why pick on me?’ argument: if C sues D
out of a large group of bystanders who did nothing to help (at random,
deep pockets or is on unfriendly terms with C) then this gives rise to a
moral dilemma.
Good Samaritan – the minute the good Samaritan seeks to give assistance
they owe a duty of care Cattley v St John Ambulance Brigade.
(2) Hedley Byrne ‘voluntary assumption of responsibility’ test
!Look at this test in emergency services context!
D assumed responsibility to C in respect of his conduct towards C and, in turn, C relied
on D to exercise due skill and care in that conduct.
(a) Proving an assumption of responsibility – request for emergency services: a duty of
care will arise on D’s part towards C where C specifically requests medical assistance
from D and there is a reciprocal and affirmative undertaking given by D to provide
that assistance to that C Kent v Griffiths (acceptance of 999 call crystallised a duty of
care)
(b) The reciprocal reliance - D has placed himself in a relationship with C whereby C’s
‘physical safety becomes dependent upon the acts or omissions’ of D (per Watson v
British Boxing Board of Control Ltd) – reliance is where C can show that he adjusted
his position in reliance on D’s exercising care, skill, or expertise – such that C would
have acted differently, if he had not relied upon D Kent v Griffiths (but for operator
D's acceptance of the 999 call, C’s husband would have driven C to hospital, C had a
choice open to her, which she forewent when D promised that an ambulance was
coming)
