SALIENT POINTS ON TORT III

NEGLIGENCE

AN INTRODUCTION TO TORT

Tort law determines who bears the loss which result from defendant action based on the following principles

a) Compensation
b) Fault
c) Retributive justice (punishment)
d) Deterence
e) Economic efficiency (market deterence)
f) Loss distribution (spreading losses in a socially fair way)

Interest Protected by Tort

Tort laws aims to protect individaul from actual or threatened harm to certain specific interests such as

a) Personal harm
b) Harm to property
c) Harm to reputation
d) Harm to financial interests
e) Harm to the due process of law - Martin v Watsone D maliciously made a groundless accusation on indecent exposure against the plaintiff.

The Role of Tort in the law of obligations


Its mixed aims are the inevitable result of common law system where law is develoed on a case-by-case bases. Although compensation is the most common reason for bringing a tort action, claimant may have a number of other reasons including deterence and retribution. In Hill v Chief Constable of West Yorkshire for example, the mother of the last visito of Peter Sutchliffe (a serial killer) sued the police for negligence for their carelessness in apprehending the killer and to point out the need to improve the practice. In Lord Templeman's view the action was misconceived pointing out that "an action for damages for alleges acts of negligence by individual police officers in 1980 could not determine whether and in what respects the West Yorkshore police force can improve in 1988.

INTERESTS PROTECTED BY TORT

Tort law aims to protect the individual from actual or threatened hardm to certain specific interest interest such as:

a) Personal Harm: - Tort law responded to the the threats to the safety of individual brought about by industrial revolution. This supplemented the existing protection provided by trespass to the person, where the torts of assault, battery and false imprisonment serve to protect indvidual fron intentional interference with their personal freedom and bodily intergrity.

b) Harm to property - protection against property remain important. Personal property is protected by the torts of trespass to goods and conversion (civil theft). Real property is protected by a number of torts including trespass to land nuisance and the rule in Rylands v Fletcher,


c) Harm to reputation -
In practice the distinction between contract law and tort is by asking that Have the rule of contract law been complied with? If the answer is no, the obligation or wrong in question cannot be classified as contractual, but may be classified as tortius. There are other compensation system that are often used rather than tort such as the Criminal Injuries Compensation Scheme. These other scheme are use in consideration of the cost, time, risk, difficulty associated with the implementation of tort law. This is also in addition to the absence of litigation consciousness of a greater majority of people.

There are various proposals for reform which include a mixture of tort law and social security, no fault-liability, insurance


TORT OF NEGLIGENCE - DUTY OF CARE

Lord Atkin's 'Neighbour Principle' in Danoghue v Stevenson formulated a general principle for determining the existing of duty of care in the following instances; where the defendant owes a duty to the victim, where the defendend neglected in the performance of that duty and where the negligence resulted in harm or injury to the victim.

Thereafter Lord Wilberfoce set out a 'two stage test' These are

Stage 1: Is there between the claimant and the defendant, a sufficient relationship of 'proximity' or 'neighbourhood' such that the defendant can reasonably foresee that carelessness on his or her part would be likely to cause damage to the claimant? if the answer to this question is affirmative, then a prima facie duty of care arises.

Stage 2: Are there other considerations which should nevertheless lead the court to deny duty of care, or to limit its scope, in these particular circumstance?

The test was later abandoned because on interpretation it did no truly reflect the ways the courts decided the existence of duty of care. This is because of the difficulty for judges to avoid explicit reference to political and economical consideration when answering the 2nd question in the two way test.


The modern approach to duty of care was espoused by the House of Lords in Capara v Dickman and the creteria were:

1) The damage must be forceable

2) There must be a sufficiently proximate relationship between the parties.

3) It must be 'fair, just and reasonable' for the court to impose a duty of care in the light of policy consideration which the court is concerned.

The main feature of Caparo are forceability (what a reasonable person in the circumstance of the defendant ought to have forseen (objective test); foreseeable claimant (someone who is closely and directly affected by defendant's conduct Bourhill v Young); proximity (closeness of relationship between the defendant ant the claimant); fair, just and reasonable (policy concern are relevant to the degree of proximity - this enables to court to determine liability on the basis of policy. In applying thge caparo criteria, it is necessary to determine the type of harm the claimant has suffered i.e.

a) Whether the damage is question is caused by a positive act )misfeasance), or by an omission (non-feasance);

b) the type of defendant being sued.


MISFEASANCE AND NON-FEASANCE

Lord Atkin in Donoghue v Stevenson spoke of a duty of care arising in respect of 'acts or omissions' yet as Lord Goff notes in Smith va Littlewoods Organisation Ltd '.... the common law does not impose liability for what are called pure omissions.' The laws draws a distinction between a positive act which causes harm (misfeasance) and a mere failure to prevent harm from arising (non-feasance. In Curman v Northern Ireland Housing Association Lord Bridge pointed out that duties to prevent harm being caused (as opposed to duties to refrain from causing harm) would normally only arise whre one person, under a contract, had promised to make another person better off and that it may not be appropriate for such duties to be imposed in tort. Similar reasoning was employed by the House of Lords in Sutradhar v Natural Environment Research Council. Misfeasance or non-feasance depends essentially on the nature of the relationship between claimant and defendant. In English law in contrast to civil law jurisdictions, there is no general duty to rescue another (unless there a prior relationship of care has existed between the defendant and person who needs rescuing); and there is no general duty to prevent others people from causing damage. There are four particular situations as mentioned below where liability for the acts of third parties can arise:

a) Special relationship betweeen the defendant and the claimant - Where D assumed responsibility to look after the claimant's property (Stanbie v Troman)contractual relationship when the plaintiff employed a decorator who left the premises unsecured.

b) Special relationship between the defendant and the third party - In (Home Office v Dorset Yacht) the defendant were liable because they have control over the third party who caused the damage.


c) Special relationship betweeen the defendant and the claimant - Where D assumed responsibility to look after the claimant's property (Stanbie v Troman)contractual relationship when the plaintiff employed a decorator who left the premises unsecured.

d) Special relationship between the defendant and the third party - In (Home Office v Dorset Yacht) the defendant were liable because they have control over the third party who caused the


FUNCTIONS OF THE DUTY CONCEPT

1. Duty of care at the abstract level (the notional duty or duty in law) Does a road user owe duty to other road users; is the particular claimant within duty of care (duty in fact or problem of unforeseeable claimant.

2. Hall v Simons: The fact that lawyers in court owe a duty to the court and may sometimes conflict with the duty to their clients (ii) the prospect of being sued in negligence might adversely affect the quality of their argument by e.g. raising every conceivable point in their client's interest (iii) suing the lawyer would to some extent reopen the correctness of the original decision. The HL thought these reasons no longer apply in 2002, because public would not understand why lawyer had an immunity that other professionals did not enjoy.

3. Congenital Diabilities (Civil Liability) Act 1976 - The act imposse liability only where the damage cause the disability from which the baby suffers when it is born. This would not apply where the claim is by the father or mother

4. Negligence is gthe omission to do something which a reasonable man is expected to do (Glasgow Corporation v Munir (1943). The defendant is qualified with reasoble person with the relevant skill or qualities certain groups and specialist - Balan v Frien Hospital Management Committee; Bolinov v City and Hackney Health Authority (1998. English law adopted the principle that information provided by a medical personnel was in accordance with a respectable body of medical opinion. Children are judged by what is expected of a child.

6. Claim for consequence of medial treatments are based on the idea that individual doctor was negligent and the health authority vicariously liable by entrusting a procedure to an inappropriate junior doctor or overstaffing staff who become tired and make mistake.

7. Eliminating harm must be proportionate to the damage Bolton v Store (1995) and the judge will considered the circumstance Roe v Ministry of Health (195..) Decision on breach is a question of fact Qualcast v Haynes (1959)

8. Proving breach res ispa loquitur - the facts speak for itself (Scott v London & St Kathawis Dock. This is used only when there is no explanation for the breach.

CAUSATION AND REMOTENESS

9. Causation is a factual and logical question and remoteness is a legal question based on policy consideration. It is important to link tort and not merely the defendant to the damage.

10. If the damage would not have occured but for D;s breach, then the breach caused the damage :but for" failure to do what should have been done.

11. Damages for loss of charce 1/4 chance of recovery Hotson v East Barkshire Area Health Authority Gregg v Scott (2005) re-affirmed Hutson. Loss of chance can be allowd for breach of contract

11. In Baker v Wiloughby (1970) the HL held that the damage was not subsumed in the new tort, but the negligent motorist continue to be answerable for the damage to the leg (and its continue economic and other consequences). The case is concerned witn continuing liability for the consequences of the original injury and not with liability for the second injury.

13. Where two or more people contributed to tort, the court would likely hold both them responsible for the tort Bonnington Castings Ltd v Wardlaw (1956)

14. Fairchild v Glenhaven Funeral Services (2002) highlighted the problem of uncertainty of fact. The HL held that all the companies were liable for the absestor suffered by the workers.

15. Defendant is liable for damage only if it was foreseeable consequence of the breach of duty - Wagon Mound (No. 1961)

17. The common confusion for student is that in Haley v London Elecicity Board the defendant had behave in a way that pose no danger to most people: only a person with a particular susceptibility would have been in any real danger of injury at all. Defendt's breach - forseeable phsical injury by the defendant + particular susceptibility by the claimant. Robinson v Post Office.


18. Intervening course - Dorset Yacht Co. v Home Office (1970) held that the original tortfeasor could be liable for intervening human conduct, whether that was criminal, negligent or innocent, but only if it was something very likely to happen, a mere foreseeable possibility was not enough.

19. Intervening criminal conduct Smith v Littlewoods Ltd (1987) claim might likely failed. Sometimes intervening criminal conduct, even though surprising, is not too remote if it is closely related to risk posed by the defendant’s conduct: Al-Kandari v Brown (1988)

20. Intervening negligent conduct: In Knightley v Johns (1982) the hospistal is not negligent for the aggracvation of Daphine injury. Robinson v Post Office – the hospital's negligent fails the but for test\


21. Intervening conduct by the claimant - there is need to consider if the defendant owes a duty to protect the claimant against his own stupidity, carelessness McKew v Holland & Hannen & Cubitts (1969); Wieland v Cyril Lord Carpets (1969), deliberate Kirkan v Chief Constable of Greater Manchester Police (1990). In addition, does the defendant action break the chain of causation; are the defences of voluntary assumption of risk, contributory negligence or illegality.

22. Chester v Afshar - duty situation, where information was withheld, causation of original injury . Defendant would continue to be liable for the original consequence of loss (Baker v Willoughby and Jobling). D who was speeding and using phone cannot be liable unless C shows on a balance of probabilities that D would have been able to stop is she had not been speeding and using her phone; to prove that she would not have suffered the head injury if the lifeguard had carried out a careful rescue; whether administering brandy was a breach of duty or whether the brandy was irrelevant and failure to cause an ambulance was the cause of death

22. Liability for pure economic loss and for negligent misstatement. Hedley Byrne & Co. v Heller & Partners Ltd (1964) HL held that the defendant's banker owes a duty to the claimant and would have been responsible for tort (tort of deceit) if not for the disclaimer. What the claimant need to prove is that they knew the statement were untrue or reckless. Consequential Economic loss - damages are recoverable for the economic consequences of personal injuries and economic consequences of property damage. Pure economic loss: where the is no injury to any person or property and where is injury to a person other than the claimant of to property of some other person other than the claimant.

23. Even after Hedley Byrne recovery for purely economic loss under tort follows a restrictive approach. The speaker could be liable if giving advice in a serious, business or professional context or in a business of giving advice (Hedley Byrne v Heller). Duty could also arise between friends in a social context Chaudhry v Probhakar (1988). Liability could also result from assumption of responsility. There is only liability where there is evidence of lack of care. The loss may be suffered by someone other than those to whom the advice or information was address Smith v Eric S Bush (a firm) (1990); Caparo Industries v Dickman (1990) – the relationship is close enough, advice may be r

DAMAGE TO ANOTHER’S PROPERTY

24. Economic loss, defective building. In Amos v Merlon London Bureau Council (1975) there is liability on the part of builders who had constructed buildings inadequately and Inspectors employed by the Council who certified the loss. Features of this loss are (1) loss classified as economic loss (there is a difference between property that is defective thus commanding less value or requiring money for repair and defective property that injure people (2) Exceptionally such claims may be successful in tor (no contract with the claimant). This is not entire settled.

25. Liability for Psychiatric injury – Damages are recoverable only in exceptional circumstance White v Chief Constable of South Yorkshire Police (1999). Control mechanism – damages are available for recognized psychiatric illness not for grief, distress, sorrow, etc. In exam situation a character who was mentioned to suffer psychiatric illness has passed the test). Either primary (directly involves (Page v Smith (1996); Simmon v British Steel Plc (2004); secondary victim (not directly involved (Alcock v Chief Constable of South Yorkshaire Police (1992) – The TV viewers and spectators at a football match where some people crushed to death. To be successful, the claimant must be in close loving relationship with the victim, claimant must have perceived the event with unaided sense, suffered moderate sudden impact and must not have special sensitivity.

25. Rescuers – Rescuers can only succeed if there is danger of physical injury. Employees exposed to work related stress may have claim but the relationship between psychiatric injuries is unclear. Participation in an event could be a source of action depending on the fact of the case. Owen v Liverpool Corporation (1939) rare case of psychiatric injury claim as a result of witness damage to a property. W v Essex County Council (2001) PI for voluntary assumption of responsibility.

27. Liability for Omission - Neighbourhood principle in Donogue v Stevenson. English law imposes liability for an omission where (1) omission is part of ongoing physical activity (motorist who fails to turn the steering or give signal) (2) relationship where positive duty is attached(3) position of duty must be established; breach of duty which caused the damage (Opopogbo). Involuntary action must have made the matter worst that if nothing is done (East Suffork River Catchment Board v Kent (1941)

28. Defendant acting under statutory power – statutory authority has at least a duty properly to consider whether how to exercise its powers. If public authority is acting lawfully in the exercise of its discretion there can be no liability in tort, but if the failure is at the operational level there may be liability Office v Dorset Yacht Co. (1970) compared to Stove v Wise; where it was held that the council was not responsible for the accident despite failing to remove a particular mould of earth near a junction which impedes driver’s view.

29. The liability of inspectors and other regulators - This include responsibilities for inspection and regulation (Anns v Merton London Borough Council); shipping and financial services and police and fire services. The policy issues are – set up for the purpose of protecting the public or a section of it; it is clearly foreseeable that harm may be suffered if the work is carelessly done and imposition of liability in tort help encourage regulator’s independence and prevent too close relationship between the regulator and the regulated. Alternatively, award of damages will come out of public fund, there will always be public law remedy (judicial review) where the regulator has erred; many cases involve omission and not positive action and the law is reluctant to impose liability; a regular has difficult job of balance conflict of interest and imposing a duty of care may lead to over defensive attitude on part of the regulators.

30. Common law tended to impose liability on public bodies where the defendants made the matter worse that if nothing has been done Capital and Counties Plc v Humpshire County Council (1977); defendant had assumed responsibility towards the particular claimant Kent v Griffiths (2000); D has intervened and requested C to behave in a particular way to their disadvantage Welton v North Cornwall District Council (1997); the claimant had suffered personal injury rather than property damage Perrett v Collins (1998).

31. Impact of Human Rights Act 1998. Relevant area are Art. 2 (Right to life) 3 (torture and inhuman degrading treatment ) and 8 (respect for family and private life). The Police hold no duty of care to individual members to identify and arrest serial killers – Hill v Chief Constable of West Yorkshire; CA in Osman v Ferguson (1993)

32. Rescuers – Rescuers can only succeed if there is danger of physical injury. Employees exposed to work related stress may have claim but the relationship between psychiatric injuries is unclear. Participation in an event could be a source of action depending on the fact of the case. Owen v Liverpool Corporation (1939) rare case of psychiatric injury claim as a result of witness damage to a property. W v Essex County Council (2001) PI for voluntary assumption of responsibility.

OCCUPIERS LIABILITY ACT 1957 REPLACED BY OCCUPIERS LIABILITY ACT 1984

33. Lawful visitors are owed duty in 157 Act and non-lawful visitor are owed duty set in 1984 Act. It is left for the claimant to prove that he is a lawful visitor to claim the more favourable duties in earlier act. S.1(1) of both acts provides that the rule have effect in place of common law. Claim could only be brought under common law if it is outside the scope of the act; the acts are concerned with liability to people physically in the premiss.

34. Scope of 1957 Act - Fergoson v Welsh – the act applied to activities on the premises. S.1(3)(a) talk about what can be occupied (houses, offices, schools), etc who is an occupier s.1(2) based on control and not necessarily title; who is a lawful visitor s.1(2) person invited, implied permission, invitation may be estended by someone other than the occupier (son, daughter) but must have authority) police etc

35. Nature of Duty : - common duty of care s.2(2) duty to children s.2(3)(a)) more care; trade visitors s.2(3)(b) gas supplier, electrician, warning s.2(4)(a) enough warning; independent contract s.2(4)(b) need to check that they belong to professional association and are competent to do the job;

36. Defences – contributory negligence; volenti non fit inturia; exclusion of liability. The occupier is exclude to exclude liability by ensuring notice must be clear; notice cannot exclude liability for those required by law; cannot reduce below the level of that required by a trespasser.


34. Scope of 1984 Act - Fergoson v Welsh – the act applied to activities on the premises. S.1(3)(a) talk about what can be occupied (houses, offices, schools), etc who is an occupier s.1(2) based on control and not necessarily title; who is a lawful visitor s.1(2) person invited, implied permission, invitation may be estended by someone other than the occupier (son, daughter) but must have authority) police etc

35. Nature of Duty : - common duty of care s.2(2) duty to children s.2(3)(a)) more care; trade visitors s.2(3)(b) gas supplier, electrician, warning s.2(4)(a) enough warning; independent contract s.2(4)(b) need to check that they belong to professional association and are competent to do the job;

36. Defences – contributory negligence; volenti non fit inturia; exclusion of liability. The occupier is exclude to exclude liability by ensuring notice must be clear; notice cannot exclude liability for those required by law; cannot reduce below the level of that required by a trespasser. Important cases are
Ratchclife v McConnel (1999); Donogue v Folkestone Properties Ltd

38. Liabilities of Manufactures - Donogue v Stevensons (1932)

39. Liabilities of Employers; Injured employee has three possible action against employer – negligence; breach of statutory duty imposed by parliament and vicarious liability. The Nature of common law action clearly explained in Mcdermid v Nash Dredging (1987); White v Chief Constable of Yorkshire Work related stress.

BREACH OF STATUTORY DUTY

40. A statute will expressly provide for civil liability, provide the machinery for civil liability, say there is no civl liability or says nothing (in this case the court will decide based on matter of policy.

41. Court may impose liability for breach of statutory duties based on the following conditions:

a) Where the statute is for the protection of a particular class
b) where Statutory duty is quite precise (e.g. helmet of particular size)
c) where a private right of action for damages will not be appropriate and where
a public action would be more effective

42. Lonrho Ltd v Shell Petroleum Co. (1992): Compensation for damages to business as a result of D's breach of embargo imposed Southern Rodesia government failed because the embargo was to bring down the regime and not to protect business.

Hague v Deputy Governor of Parkhurst Prison (1992): A claim for damages by segregated prisoner against prison rules failed because the purpose of the rule was to secure administration and not create individual rights.

X v Bedforshire Countu Council (1995) HL rejected the argument that the breach of various welfare and educational standard provisions could be the basis of an action in breach of statutory duty.

O'Rourke v Camdem London Borough Council (1995): Breach of provisions of house is not the basis for an action in tort.


SCOPE OF THE ACTION

43. Some of the important elements required to establish that the claim is within the scope of the action are as follows:

a) The statute must have been broken (consideration of the mental elements – strict liability, things should be done as far as possible or duty to take care)_
b) The claimant must belong to class of people (Hartley v Mayo & Co. (1954)
c) The damage must be of a kind the statute intended to protect - concept of remoteness (Gorris v Scott (1874)
d) The damage must have been caused by the breach of duty McWilliams v Sir William Arroll & Co. Ltd (1962)

THE HUMAN RIGHTS ACTS 1998

44. s.6 makes it unlawful for a public authority to act in a way which is incompatible with a convention. S.7 enables a person to bring proceeding against the public authority. S.8 envisages that damages may be awarded. S.8 (3) no award of damage unless the court is satisfied that award is necessary to avoid just satisfaction. Award may be fitted into law of tort in the following way:

a) A breach may fit into an established tort without reference to convention– torture police (tort of battery)
b) An existing tort, may if necessary, be adapted to accommodate requirement of convention (nuisance, defamation)
c) Courts may award damages for breach of convention. Damages are not of right for claims brought under the act, whereas the reverse is the case in damages caused by tort.
d) Damages could be awarded where there is administrative failure depriving a claim of welfare benefit (alleged breach of Art. 3 or Art. 8) (R (Bernard v Enfield London Borough Council (2002);
e) Anufrijeva v Southwark London Borough Council (2004) - when maladministration amounts to an infringement on convention right; when such infringement merit award of damage.

The approach to be followed in breach of convention rights is still developing.

45. Question on courts treatment of welfare legislation - Refer to Lord Hoffmann on O’Rourke and say whether you are attracted to this reasoning on not. You might conclude that the tort of breach of statutory duty should be abolished or that an approach such as that developing under the Human Rights Act 1998 should be adopted.

46. Question 2. Can Martha who was injured by a luggage sue for breach of regulations? Is the regulation is intend to give rise to civil liability? Is the regulation aim at safety of employees? If there is an action they seem to apply an approach of strict liability. It is enough for the passage to be obstruction (the question is whether the package is an obstruction). There is nothing to point that Lex and his employees were responsible (vicarious liability, alternatively it could be argued that Lex ought to ensure that the passage is not obstructed at any time no matter the source). The purpose of the regulation was to ensure that either fire does not spread or employees are able to escape. Martha injury is quite different (Compare Goris v Scott). If this fail there might be a possible negligence claim against John and if John is in the course of employment against Karry. For Nick as a general rule, traffic regulations such as speed limits, parking regulations do not give rise to civil liability. Even if they do it is doubtful if the purpose of the regulations is to prevent crashes. Nick must try negligence or public nuisance.