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(N11120)
Lecture 8 Law of Tort
Agenda, Reading
The Law of Tort Introduction to the General Principles
Proof of damage, causation, defences, remedies
Reading
MacIntyre (2nd Ed) Ch. 8; Ch. 9 Relevant sections in MacIntyre eBook (3rd Ed) on The Tort of Negligence, and Nuisance, Trespass, Defamation and Vicarious Liability Riches & Allen, pp. 330-355, 429-431, 493-500
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Tort An Introduction
Note on Civil (i.e. non-criminal) Liability Liability arising in contract
Liability is voluntarily undertaken, because something is given in return (consideration) both sides have made a bargain liabilities & rights are exchanged
Tort An Introduction
(2)
Tort An Introduction
(3)
Note: Liability in tort is normally fault-based, but there are situations where tortious liability may be imposed despite the defendant not being at fault:
Vicarious liability
One person being held liable for torts of another e.g. Employer Employee
Note:
Defences
Remedies
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NEGLIGENCE
We now apply the basic principles of tortious liability to the tort of negligence, one of the most important torts in modern law
Negligence
Careless conduct causing damage or loss to others A breach of a duty to take care, with the result that damage is caused to the defendant
Elements of the tort of negligence: Donoghue v. Stevenson (1932) - Claimant needs to prove 3 things:
Negligence
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Duty of Care
-
Duty of care
The neighbour principle
Lord Atkin: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour Neighbour? - Persons who are so closely & directly affected by ones act that one ought reasonably have them in contemplation as being so affected when one is directing his mind to the acts/omissions in question
Using the famous neighbour speech of Lord Atkin in Donoghue, courts have subsequently recognised duty situations, e.g.
Customers
Clients Other road users & pedestrians
Negligence
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Breach of Duty
Merely owing a duty of care is not enough to give rise to liability. Need to show that the duty of care has been broken by the defendant (D) Duty of care would be breached if the D does not take the care which a reasonable person would take in all the circumstances. An objective standard; its no defence that the D was doing his incompetent best!
e.g. The standard of care required of a driver is that of a reasonable driver (regardless of whether person has been driving for 20 years or 20 minutes or is a learner driver) Nettleship v. Weston (1971)
A higher standard is expected of professionals & persons claiming special competence standard of a reasonably competent person in that profession Bolam v. Friern Hospital Management Committee (1957)
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Negligence
3
Proof of Damage
Claimant must show that Ds breach of duty has caused him to suffer loss for which damages are being claimed
Causation
But for test: Would the damage have occurred but for the defendants conduct? If it was caused by some other factor, D will escape liability Barnett v. Chelsea & Kensington Hospital Management Committee (1968)
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Negligence
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(2)
Even if a causal connection is established, damage must not be too remote (indirect) Claimant must also show that the loss was a type of loss which would foreseeably follow from Ds breach The Wagon Mound As long as a certain type of damage was foreseeable, D will be liable for all damage of that type (no need to show that the extent of the injury was foreseeable): Smith v. Leech Brain & Co (1962) (personal injury), Vacwell Engineering v. BDH Chemicals (property) Damages may be awarded for e.g. death, personal injury, psychiatric injury, damage to property (cost of repair/replacing goods; which may incl. loss of profit for not being able to use the goods until repaired)
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Negligence
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(3)
As a matter of policy, courts are reluctant to compensate for pure economic loss Loss which is not an injury to the person or damage to property e.g. loss of profits see Weller v. Foot & Mouth Research Institute (1966) However: Hedley Byrne v. Heller (1963)
Liability for negligent mis-statement can arise, even if it results in pure economic loss
In the 1990s, courts have applied the principle in Hedley Byrne to allow recovery for pure economic loss where it is caused by negligent advice/information; or negligent provision of services
[Read more about it in Elliott & Quinn on Tort (see Library) under Negligence Pure Economic Loss]
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Negligence
Defences
Consent/Voluntary Assumption of risk (volenti non fit
injuria) Claimant had full knowledge of the risk, & the risk was accepted voluntarily, e.g. ICI Ltd v. Shatwell (1965) Note: Pitts v. Hunt (1981) Motorists cannot rely on volenti defence to avoid liability to passengers Haynes v Harwood (1935) Volenti defence will not apply if claimant was injured while reasonably trying to carry out a rescue
Contributory Negligence
Where damage suffered is the result of partly the claimants own fault
e.g. Failure to wear seatbelt Froom v. Butcher (1975) Apportionment of blame between claimant and defendant Law Reform (Contributory Negligence) Act 1945, s.1
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Duty of care
Neighbour principle (Donoghue v. Stevenson) e.g. - Duty of care of drivers twds passengers & road users Nettleship v. Weston
Proof of damage (injury/ property) Causation (Barnett v. Chelsea) Not too remote (The Wagon Mound)
Defences to a claim in negligence? Contributory Negligence - Froom v. Butcher, Eagle v. Chambers Consent (Volenti) Driver cannot use volenti against passenger - Pitts v. Hunt Cannot use against injured rescuers - Haynes v. Harwood
OCCUPIER'S LIABILITY
towards lawful visitors, and trespassers
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Occupier's Liability
Occupiers of premises (i.e. person with control of premises/ movable structures e.g. ladders, vehicles) owe a duty of care to: Lawful visitors
Definition of lawful? Occupiers Liability Act 1957 Occupier of premises must take reasonable care to see that a visitor to his premises will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. Std. of care varies with circumstances e.g. Higher duty owed to children, Lower duty owed to contractors Subject to defences e.g. volenti, contributory negligence. Notices/signs can be a defence if they enable a lawful visitor to be reasonably safe; but subject to UCTA 1977.
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Liability in Negligence
(2)
Breach of contract of sale of goods between consumer & retailer (see implied terms.. Sale of Goods Act) However, take note of the Contract (Rights of Third Parties) Act 1999 A
Contract
Third party
o o o
Q: What if C is the one who was injured from consuming a defective product? General rule: A contract is private between the parties who made it. Contract (Rights of Third Parties) Act 1999 C can sue on a contract which he did not make, if:
(i) (ii) the contract expressly provides C may do so, or the contract purports to confer a benefit on C (unless A & B can show that they did not intend that to be enforceable by C)
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(3)
Manufacturers owe duty of care to customers; may be liable to consumer for loss & damage caused by defective product Need to show (Donoghue v. Stevenson):
(Manufacturer Consumers) (Did the mfr fail to take the care a reas. person would have?) (Causation, remoteness..)
(4)
A claimant injured by an unsafe product will be able to sue the manufacturer (and possibly others) without having to prove the tort of negligence.
Who can sue? Any person injured by a (unsafe/defective) product, the safety of which was not such as persons generally are entitled to expect
Who is liable? Any one or more of the following producers: Manufacturer, Extractor of raw materials, Industrial processors of agri produce, own branders who add their label to products they dont produce, anyone who imports product into EU (NB. Retailers who are not own-branders would be liable under SGA 1979) Products Incl. components & raw materials
Damage suffered Death or personal injury; Property (only if >275); Not recoverable: Damage to product itself, Damage to business property
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(5)
Product not supplied/manufactured in the course of a business (e.g. if produced as a hobby but will be liable under negligence) Defect did not exist when product was put onto the market Supplier of a component has a defence if the unsafety arose because the manufacturer misused the product Development risks defence Producer has a defence if can show that when he produced it, the state of scientific & technical knowledge was not such that a producer of the same description of the product in question might be expected to have discovered it
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Who is liable?
Defences
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Nuisance
Public, private
Defamation
Publication of a false statement that damages someones reputation
VICARIOUS LIABILITY
When would employers be liable for torts committed by their employees?
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Vicarious Liability
The courts have devised various tests to determine whether someone was acting within the course of his/her employment when the tort was committed
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N (Negligence
Apply Donoghue v. Stevenson principles not established)
Y (Liability in
negligence established)
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Vicarious Liability
Just because an employer has told an employee not to do a particular act doesnt always excuse the employer from vicarious liability if the employee causes damage when doing the forbidden act - Joseph Rand v. Craig (1919), Limpus v. London General Omnibus (1862)
If an employee does something entirely for his own benefit, he is said to be on a frolic of his own (employer not vicariously liable) Hilton v. Thomas Burton (Rhodes) Ltd (1961)
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Vicarious Liability
Employers Defences
1. Consent of the victim / voluntary assumption of risk
2. Contributory negligence
Note:
The Civil Liability (Contribution) Act 1978 allows an employer who has been found liable to get a contribution from the employee who caused the accident (however, this is rarely used as employers will generally carry insurance)
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