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Lecture notes for Law of Tort
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Lecture notes of 27 pages for the course Tort Law at LE
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Voorbeeld 3 van de 27 pagina's
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Voorbeeld van de inhoud
Law of TortIntroduction
– Negligence Claim (Bringing the claim against another person who has injured you or has caused
you harm)
Need to show damage – show that you have suffered damage that is recognised by the law i.e.
physical (personal) or psychological injury.
– What would I get if I bring a negligence claim?
Compensatory damages
Pecuniary (financial losses)- loss of earning/earning capacity; expenses (other circumstances –
expenses made because of injury)
Non Pecuniary – (non-financial claim) compensation for the injury itself – the law puts a price on
this (Guidelines for the assessment of general damages in personal injury cases book), pain and
suffering, loss of amenity (stop doing things that you enjoy)
Aim of compensatory damages is to put the victim in the position before the negligence occurred
(incident).
Functions of negligence liability:
1. Compensation – what you get from your claim (outcome); compensate people for their injuries
BUT is not doing this properly as it is compensating those have injuries as they can blame
somebody else but everyone else is left with what they can get from the state (not much). Also,
you can’t always put things right with money
2. Deterrence = encourages people to behave in a safer manner –to take care, encourages doctors
to take reasonable care. Encourage safe practices. Always a concern that it could lead to over-
deterrence effect” health and safety gone mad” – don’t want your doctors to be scared where they
take 20 tests which they didn’t need just to cover their backs. We want to deter dangerous
conduct but we don’t want tort law to go far that it puts everyone off in engaging in beneficial
activates – need of balance.
Compensation Act 2006 – reason this was introduced to address the concern on this
“compensation culture” – before it was introduced research shows that we don’t have a
compensation culture where people are not suing 100x more than what they used to 20 years
ago. We have a public perception that we have one which is fed by the media – still put off in
engaging in activities in case they get sued.
Purpose of the act =address the public concern. Courts now have to take into account whether
liability would be contrary to the public interest by preventing desirable activities. When the
courts look at a negligence claim they have to think about – whether holding D liable would put
either put people off in engaging in beneficial activities = courts have always done. Aim =
address compensation culture.
3. Vindication = for the loss of claimant’s – purpose of bringing a claim = what went wrong and hold
someone accountable – want that person to own up “I was at fault”. No about the money but
holding someone to account = what some individuals want to get out of the tort system.
4. Corrective Justice = (Aristotle) –Individual justice = looking at you – what is just in the situation.
When one person harms another person by their wrong doing that they have moral responsibility
to repair that harm – negligence liability corrects the injustice by requiring them to pay
compensation. Negligence law looks at what is fair between the victim and wrongdoer – moral
responsibility.
– The place of Insurance –
Injury = defendant doesn’t pay but their insurance does (e.g. car accident, employer injures
employee = employer liability insurance). If we didn’t have insurance, then the defendant maybe
wouldn’t have been able to pay the compensation. Therefore, insurance backs up the negligence
system. It allows the defendant to spread the cost of injuries and accident so one person doesn’t
bare to much of a burden.
, Courts have taken insurance into account to develop the law, to make the decision so that they
are able to hold someone liable.
Nettleship v Weston (1971) Lord Denning Defendant was a learner driver (2nd/3rd driving lesson
– wasn’t expected to be good at driving) Caused an injury. In holding her liable, the courts said
that you are expected to drive as a reasonably competent driver – you need to meet that
standard. Unfair to her – not morally to blame. But the courts held her accountable as a
competent driver because of insurance (in part) – “a person injured by a motor car shouldn’t be
left to bear the loss on his own, but should be compensated out of the insurance fun. The fund
is better able to bear it than he can. But the injured person is only able to recover if the driver is
liable in law. So the judges see to it that he is liable unless he can prove care and skill of a high
standard. Thus we are, in this branch of the law, moving away from the concept “no liability
without fault” – beginning to apply the test “on whom should the risk fall”. Who should bare the
loss?
Gilliam v West Hertfordshire Hospitals NHS Trust [2003] – D was a hospital holding a
fundraising activity day for the public day – contracted people to run the activities and one of
their contractors ran a splat wall – victim was injured on the splat wall. Obvious person to hold
to account is the one running the splat wall but they didn’t have insurance – sued the hospital
who organised the day and contracted with the splat wall. The hospital didn’t take enough care
to ensure that the contractor had insurance – had a duty to check every contractor had
insurance. Putting insurance in the centre – moving it away from have a got a responsibility not
to injure you – I’ve got a responsibility to make sure that this person has got funds just in case
they injure you. Making it all about the compensation
The Elements of a Negligence Claim -
Aim of Tort = Remedy –
1. Damage – that is recognised by the law
2. Duty of Care – Defendant owed a duty of care
Should the defendant be taking care? Not asking if they did take enough care. Everyone you
physically interact with you owe a duty of care to them.
Vicarious liability = liability we put on an employer for the tort committed by their employee in
the course of their employment. Employer not at fault.
Lister v Hesley Hall Ltd [2002] the employer ran a residential school for children who had
emotional and behavioural difficulties, one of their employees was a housemaster in the
residential facility – in the course of employment he sexually abused a number of the children.
In criminal law he would be punished for that but the victims are seeking compensation – did
he do this in the course of his employment = his job is to take care of them not abuse them.
But the court held the employer liable as it was so closely connected to his job that it was fair
to hold the employer liable.
Morrison’s – case where customer went to petrol station checked his tyre pressure, went up
to the kiosk, same time as paying – can I do some printing? Person behind the kissed took an
offense from him and in a racially motivated attack – attacked and assaulted him and sadden
come back. Compensation = from their employer as it was done in the course of employment
as he was responding to the customer.
“All forms of economic activity carry a risk of harm to others, and fairness requires that those
responsible for such activities should be liable to persons suffering loss from wrongs
committed in the conduct of the enterprise” = employer running the business makes profit so
should bare the risk – ones that should pay.
This is fair because it means injured persons can look for recompense to source better placed
financially that individual wrongdoing employees. It means also that the financial loss...can be
spread more widely, by liability insurance and higher prices. It also encourages [employers] to
maintain standards of “good practice” by their employees”. (Majrowsky v Guy’s and ST
Thomas’s NGS Trust [2007] Lord Nicholls). = Pick employees more carefully, offer more
training.
3. Breach of duty
, Did they take enough care? 2 stages = what is the standard of care? And did they fall below that
standard? Only need to take reasonable care.
4. Causation
Factual Causation = But for their negligence would I have suffered this injury?
Legal Causation = Damage to remote? Was this kind of damage reasonably foreseeable.
Break in the case of causation
5. Defences
Contributory negligence
Illegality
Voluntary assumption of risk
– Alternatives to the tort system –
1. Pearson Committee 1978 – Set up in 1972 – purpose to undertake a survey on accident
compensation in England and wales = result of survey showed that 6 and half percent of people
physically injured in accident = get compensation from the tort system. Tort system = expensive
and inefficient - every pound that gets paid out in compensation it costs 85p to bring the claim
(85% is running the cost of the system).
Reforms: more emphasised on social security - more provision from the state and have tort law to
back that up. No fault compensation scheme for people injured in road accident = not happened (if
you are injured = still have to establish whether the driver was negligence and then go through a claim
and insurance).
2. No fault liability
New Zealand – Since 1974 they have a no fault compensation scheme – (no matter what you
are doing or where you are when you’re injured; no matter how the injury happened; no matter
what age)
But instead of getting full loss of earnings you only get 80% of the loss of earnings. The money comes
from the people who create the risk e.g. insures, employers and general taxation. But doesn’t cover
people who are born with disabilities or suffer disease that just occurs in their life = low level of social
security = inequality.
Motor Insurers’ Bureau – no fault liability – scheme where car insures contribute to a general
fund so that if you are injured by an uninsured driver or untraceable driver = get compensation
from that fund.
Criminal Injuries compensation – injuries for violent crimes compensation. Claim has to be to
between 1,000 and 500,000 and have to be out of work for 28 weeks = eligible for a claim.
3. First party insurance – everyone takes out their own insurance for own loss of earnings and
injuries. Criticism = you would need to have the money to afford insurance. Those who are most
exposed to physical risks at work = those who are least able to afford the insurance.
– Future directions of the Tort law
1. Human Rights Act 1998 = how the government responsible to protect human rights has shaped
tort law.
2. Social Action, Responsibility and Heroism Act 2015 ( ”SARAH” Act)
Idea = public perception of a compensation culture – put off from doing things such as street
fairs because they are worried they will get sued. Act introduced to say that when a court is
deciding whether a person is negligence they should think about whether the person was
acting in the benefit of society or any of its members, or think if the person was acting in a
responsible way and whether the person was acting heroically by intervening in an
emergency to assist an individual in danger.
Criticism = reasonable care shouldn’t be lowered due to the fact they are doing something
good i.e. benefitting society.
Damage
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