tort revision 2

54
Assault Immediate fear of unlawful violence 1. Act by defendant 2. Reasonable fear of immediate unlawful personal violence 3. No need for actual violence Stephens v Myers Parish meeting. Defendant became violent moved towards Thomas v National union of mine workers The claimant was bussed to work during a strike held by the nation union of miners, as the claimant passed the picket line, the strikers made threatening gestures. It was held there was no assault as police protection and the exterior of the bus protected the claimant from immediate fear, no immediate threat of harm. Tuberville v savage If it were not assize time I would not take such language from you – no immediate threat R v Ireland – silent phones calls can amount to assault reasonable expectation of immediate personal violence. Battery Intentional and direct application of unlawful force to another person 1 the least amount of touching can be battery Three elements 1. Intent 2. Direct application 3. Force

Upload: kerimagee

Post on 24-Apr-2015

153 views

Category:

Documents


1 download

TRANSCRIPT

Page 1: Tort Revision 2

Assault

Immediate fear of unlawful violence

1. Act by defendant2. Reasonable fear of immediate unlawful personal violence3. No need for actual violence

Stephens v Myers

Parish meeting. Defendant became violent moved towards

Thomas v National union of mine workers

The claimant was bussed to work during a strike held by the nation union of miners, as the claimant passed the picket line, the strikers made threatening gestures. It was held there was no assault as police protection and the exterior of the bus protected the claimant from immediate fear, no immediate threat of harm.

Tuberville v savage

If it were not assize time I would not take such language from you – no immediate threat

R v Ireland – silent phones calls can amount to assault reasonable expectation of immediate personal violence.

Battery

Intentional and direct application of unlawful force to another person

1 the least amount of touching can be battery

Three elements

1. Intent 2. Direct application 3. Force

Collins v Wilcock

No requirement of harm for a battery

Claimant police officer had cautioned defendant prostitute. When she walked away. The police officer took hold of her arm. The def scratched the officer’s restraining arm. Defendant argues police officer had committed a battery in holding her. The touch of her arm was a trespass.

Gone beyond the scope of duty in detaining the woman police officer had committed a battery. Goff LJ .

Page 2: Tort Revision 2

Wilson v Pringle

Hostile touching

In an act of ordinary horseplay the defendant pulled the claimants school bag off his shoulder.

This caused the claimant to fall and suffer hip injury.

Court of appeal.

Croom-Johnson LJ – the touching must be proved to be hostile touching.

Re F Lord Goff intentional physical contact “not generally accepted in the ordinary conduct of daily life”

Letang v Cooper

The claimant was sunbathing in a hotel car park when the defendant drove in an accidently drove over the claimant’s legs. Claim in negligence time barred. Attempted to take a claim in trespass to the person

Lord Denning Court of Appeal

Lord Denning-

if it is intentional it’s a assault of battery.

If negligent and causing damage, it is tort of negligence and not trespass to the person.

Mutually exclusive- liability for one or the other.

Intentional – battery

Unintentional- negligence

Collins v Wilcock

Wilson v pringle

Leetang v cooper- lord denning

Nash v sheen

An intention to hurt is not necessary

Dependant hair dresser was liable in battery when a tone rinse which caused a rash was given to a claimant who requested a permanent wave.

Re B v NHS

A competent adult may refuse medical treatment even if the likely result will be death

Page 3: Tort Revision 2

Battery

Intentional and direct application of unlawful force

No need to cause harm- Nash v Sheen

The least amount of touching can be a battery- Collins v wilcock

Leetang v cooper lord denning

Hostile- Wilson v pringle croom- Johnston

Defences to Assault and Battery

1. ConsentThose who take part in sports also consent to a reasonable degree of physical contact during the course of play, ie within the rules, even to the risk of being unintentionally injured

The defence that the claimant consented to the injury or (more usually) to the risk of being injured

Simms v Leigh Rugby Football Club The defence that the claimant consented to the injury or the risk of being injured.

R v Billinghurst- there can be no consent to deliberate acts of violence

Off ball incident claimant was deliberately punched in the face

2. Lawful arrest

Albert v Lavin

reasonable force by police officers or security guards to detain you against your will. In order for their action to be lawful they would have to show that you were causing or were about to cause a breach of the peace, or provoking others to cause a breach of the peace by your actions.

Collin v Wilcox- no all actions Lord Goff- not all actions by the police will provide a defence.

3. Self Defence Reasonable use of force to prevent a crime a person may use reasonable force to defend himself, another person, or his property from attack.

R v Williams(Gladstone) – facts he honestly believed them to be

- if a defendant was labouring under a mistake of fact as to the circumstances when he committed an alleged offence he was to be judged

Page 4: Tort Revision 2

according to his mistaken view of the facts regardless of whether his mistake was reasonable or unreasonable.

D saw a man assaulting a youth. The youth was calling for help. The man was in fact affecting a lawful arrest of the youth, albeit falsely claiming to be a police officer. D intervened Held: D was not guilty of assault. He honestly believed that he was preventing an unlawful assault. If the belief was in fact held, its unreasonableness is neither here nor there. It is irrelevant.

4. NecessityIn Re F (above), a case concerning when medical treatment can be justified when given without consent,

Lord Goff "not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person".

5. Provocation Provocation, however, is not a defense available to the civil torts of assault or batteryLane v Holloway

This case involved a dispute between neighbours which became violent.

After a night at the pub, Mr. Lane, a retired gardener, returned home and was talking outside as the disturbance broke out. He called Mrs. Holloway 'a monkey faced tart', so Mr. Holloway felt the need to defend her honour. Mr. Lane threw a light punch at the much younger Mr. Holloway, who punched Mr. Lane in the eye so hard that it caused an injury requiring 19 stitches.

Although there were some precedents, Mr. Lane's provocation was not considered to be relevant and could not be said to be contributory negligence either.

Page 5: Tort Revision 2

False Imprisonment

Complete unlawful restraint of an individual by another

Intentional or unintentional

1. The restraint must be total/complete

Locking someone in a room

Blocking someones way so they have to use an alternative route is not enough.

Bird v Jones

Plaintiff, attempting to pass in a particular direction, was obstructed by the defendant, who prevented him from going in any particular direction but one, not being that in which he had endeavoured to pass. Held, no imprisonment

2. The claimant need not no they were imprisoned

Murray v ministry of defence – House of Lords

The claimant’s house was searched in her presence and she was arrested 30 minutes later. It was unclear whether she was aware that she was not free to leave during the period prior to her arrest.

Nominal damages- not aware and no harm.

3. Negligent conduct is not enough

Sayers v Harlow

Council negligent in maintaining the door handles led to a woman being trapped for a short time . In order to escape she stood on the toilet and put her foot on the toilet role holder which then spun causing her to fall – 25% deduction from damages contributory negligence.

Page 6: Tort Revision 2
Page 7: Tort Revision 2

False Imprisonment

Complete unlawful restraint of an individual by another

Intentional or unintentional

4. The restraint must be total/complete

Locking someone in a room

Blocking someones way so they have to use an alternative route is not enough.

Bird v Jones

Plaintiff, attempting to pass in a particular direction, was obstructed by the defendant, who prevented him from going in any particular direction but one, not being that in which he had endeavoured to pass. Held, no imprisonment.

5. The claimant need not know they are imprisoned Meering v Graham white Aviation

The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned

Meering was held in a room and questioned, because his employer though him to b a thief.

False imprisonment.He got more money because he knew he was being kept there.

False imprisonment:- if they know that they are held they get more money as if they were unaware- they can sue even if they were drunk, unconscious, asleep.

Murray v ministry of defence – House of Lords

The claimant’s house was searched in her presence and she was arrested 30 minutes later. It was unclear whether she was aware that she was not free to leave during the period prior to her arrest.

Nominal damages- not aware and no harm.

1. The restraint must be total/ complete- obstruction is not enough

Page 8: Tort Revision 2

Bird v Jones

2. The claimant need not know they were imprisoned

Murray v minster of defence (damages nominal no harm caused)

3. Negligent conduct is not enough

Sayers v Harlow

Sayers v. Harlow 1958 Urban District Council

D a local authority provided public toilets. When C tried to leave the cubicle, she found the handle was missing. After trying for fifteen minutes to attract attention, she tried to climb out by standing on the toilet roll holder, but the roll rotated and C slipped and fell, injuring herself. No false imprisonment

Intentional harm other than trespass to the person; the rule in Wilkinson v Downton

No contact or physical force used

Facts

The defendant told the claimant her husband had been seriously injured in an accident. This was untrue and had been meant as a practical joke. The claimant suffered a serious shock which lead her to suffer adverse physical symptoms for a period of time

Legal principle

It was held that a person who has “wilfully done an act calculated to cause physical harm to the claimant and has caused physical harm ” has provided a good cause of action. Wright J

at the time this case was decided there was

1. No recovery in negligence for psychiatric harm2. The specific requirements for assault or battery were not present.

Actual physical harm

Intent to cause damage

The existence and nature of cause of action following the principles of Wilkinson v Downton was confirmed in Janvier v Sweeney

Page 9: Tort Revision 2

In cases were no contact or physical force is used, emotional distress is not enough to establish liability for intentionally inflicted bodily harm.

Wainwright v home office- a mother went to see her son who was in prison on remand. Any one who visited had to consent to being stripped searched. Son suffered post traumatic stress as a result of the search.

Wlikinson v downton was not authority for the proposition that damages falling short of psychiatric injury were recoverable. Searches were Not calculated to cause harm.

Negligence

4 things for negligence

1. The claimant owed duty of care2. There was a breach of that duty3. The claimant suffered damage as a result of that breach- causation4. The damage was not too remote

The neighbour principle formulated by lord atkin in “donoghue v Stevenson 1932 was initially used to establish whether duty of care existed

Caparo industries v Dickman

Three part test for The Duty of Care –Lord Bridge

1. Reasonable foresight of harm

Where the consequences of the defendants behaviour reasonably foreseeable ?

2. Sufficient proximity of relationship for a duty to be imposed

Was there a sufficient relationship of proximity between the parties for a duty to be imposed.

3. Fair, just and reasonable

Is it fair just and reasonable in the circumstances to impose a duty.1.

Page 10: Tort Revision 2

1. Where the consequences of the defendants actions reasonable foreseeable.

Topp v London country bus

a bus company left a mini-bus parked in a public place with the keys in the ignition, the bus was stolen, and, in the course of the theft, was

involved in an accident in which a woman cyclist was killed.

Claimant, her husband (and daughter) brought an action against the bus company for negligence. The vehicle was left at a changeover point that normally took 8 minutes, on this occasion it rested there for nine hours.Held: The bus company may have been negligent to leave the bus with the keys in, in an easily accessible place, they could not be held responsible for the accident as the consequences where not reasonably foreseeable

Palsgraf v Long Island Rail Road

D employed a railway worker who carelessly knocked a box to the ground.  Unknown to him it contained fireworks which exploded on impact; the blast knocked a weighing machine onto C standing some distance away.

Held: injury to C was not foreseeable from the mere dropping of a box, and D was not liable for C’s injuries.

Bourhill v Young

D motorcyclist fatally injured.  C pregnant fishwife 15 yards away saw blood but did not see actual accident.  Caused shock and, subsequently, a miscarriage.

Held:  C was not owed a duty of care it was not reasonably foreseeable that accident would cause her to suffer such injuries.

Proximity

Was there a sufficient relationship of proximity between the parties for a duty to be imposed

No proximity between police and individual members of the public

Hill v chief constable of west Yorkshire

The mother of one of the people killed by the Yorkshire ripper sued police for falling to prevent the daughter’s death. The court found no proximity between the police and the daughter, because before the murder took place there was nothing to suggest she was more at risk than any other member of the public.

Watson v British Boxing Board of Control – claimant won

D the British Boxing Board of Control failed to provide sufficient medical care at the ringside.  C a boxer suffered severe brain damage following an injury in the ring, but the evidence suggested his injuries would have been less severe had better medical attention been available at the ringside.

Page 11: Tort Revision 2

Held:  The sport's controlling body owed a duty of care to those who took part. Injury was foreseeable. The licensing system created proximity, and in all the circumstances it was just, fair and reasonable to impose such a duty.The duty alleged was not a duty to take care to avoid causing personal injury, but rather a duty to take reasonable care to ensure that personal injuries already sustained were properly treated;

C won

Mr Watson brought an action against the board. He claimed the board had been under a duty of care to see that all reasonable steps were taken to ensure he received immediate and effective medical attention.

Injury was foreseeable. There was a relationship of proximity and in all circumstances it was fair just and reasonable to impose a duty.

Duty of care test – Fair just and reasonable

In the circumstances was it fair just and reasonable to impose a duty

McFarlane v Tayside Health Board

A father, wishing to limit the size of his family to six children, underwent a vasectomy. Months later his surgeon confirmed the success of the operation and that he need not use contraception. The man subsequently made his wife pregnant and the family sought damages from the Health Board for the costs of raising the child. Held, the vasectomy was intended to stop pregnancy and therefore the mother could claim for costs in that regard only. However, the costs around raising the child could not be recovered as it would not be fair just or reasonable to impose such a burden on a liability for financial loss on a doctor

Proximity – was there a sufficient relationship of proximity between the parties for a duty to be imposed

1. Watson v BBBC (British boxing board of control) 2. Hill v chief constable of west Yorkshire

Duty of Care Acts and Omissions

1. A relationship between C and D which gives rises to the assumption of responsibility.2. A relationship of control between the defendant and third party 3. Creating or permitting a source of danger to be created.

Page 12: Tort Revision 2

1. A relationship between c and d which gives rise to an assumption of responsibility

Smith v Littlewoods organisation

Developers had purchased a cinema with the intention of turning it into a supermarket

They began to do some work but let the premises empty and unattended for months

Vandals started a fire on the property and spread to surrounding buildings.

The house of Lords held the defendants owed no duty to the owner occupiers of the surrounding buildings to prevent this, the fire was not reasonably foreseeable by the cinema’s owners and therefore, there was specific duty to prevent vandals doing what they did. Caparo industries v Dickman Lord Bridge.

Fire was not reasonably foreseeable.

Barrett v Ministry of Defence

Barrett v Ministry of Defence

A naval officer came across a navy pilot who had passed out after drinking too much. The officer arranged for the pilot to be taken to his room, but gave no instructions for anyone to watch him or check on him. During the night he choked on his own vomit and died.

His widow sued for negligence The court found that by taking control of the situation and ordering the pilot to be taken to his room, the officer had assumed responsibility for his safety and had a duty of care towards him

2. A relationship of control between the defendant and third part Home office v dorset yacht

Defendants allowed 7 boys to escape from a training camp while they were asleep. They stole claimants yachts and caused damage.

The court decided that because the officers were in a position of control to the boys and because it was foreseeable that they would be particularly attracted to yachts if they escape the officers owed a duty of care to the yacht owners.

1. Creating or permitting a source of danger to be created.

Capital and counties v Hampshire county council

The fire brigade increased the damage by turning off the sprinkler system. The court held that the fire brigade had a duty to avoid creating risks in this way.

Page 13: Tort Revision 2

Breach of the Duty of care

Standard expected that of a reasonable person

Blyth v Birmingham waterworks – reasonable person test

Alderson B in Blyth v Birmingham waterworks

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinary regulate the conduct of human affairs, would do, or doing something which a reasonable man would not do.

There is no breach is a reasonable person would have seen no danger

In Glasgow corporation v muir,

A tea shop provided an urn of hot tea for a picnic. Two of the men attending the picnic were carrying the urn through the shop when one of them lost his grip. Some of the tea spilled and scalded some children who were standing at the shop counter. The manageress was sues for allowed the men to carry the urn of tea through the shop when children were present

The House of Lords said she was not liable as it was not reasonable to expect her to anticipate the danger.

Unskilled defendant

Nettleship v Weston

Standard expected of that of a reasonable person

Objective test

The plaintiff who was not a professional driving instructor, agreed to give lessons to the defendant who was friend, having confirmed she had insurance. On her third lesson she hit a tree. The claimant suffered a fracture knee.

Court of Appeal the standard of care to be expected of a learner driver

By a 2 to one majority it was held that the standard of care expected of a learner driver was, according to lord denning that of an experienced, skilled and careful driver... morally

Page 14: Tort Revision 2

the learner driver is not a fault, but legally she is liable to be because she is insured and the risk should fall on her. “

The defendant was liable to her instructor on the grounds that she had breached that standard of care.

The damages awarded were reduced by 50% on the basis of contributory negligence.

Factors relevant to establishing reasonableness

Special characteristics of the defendant

Children

By what standards should children be judged

Mullin v Richards – Hutchinson LJ the question for the judge is not whether the actions of the defendant were such as an ordinary prudent and reasonable adult in the defendants situation would have realised gave risk of injury, it is whther the ordinary and prudent an reasonable 15 year old school girl in the defendant situation would have realised such

Such games common and rarely lead to injury. The injury in question was unforeseeable to 15 year old no liability in negligence.

Involved 2 15 year old girls playing with rulers, resulted in a serious eye injury when the ruler snapped and flew into the eye of one of the girls.

The court of appeal applied the approach of mchale in finding that there was not breach of duty, due to the fact that the girls would not have foreseen the likelihood of injury

Reasonable child rather than reasonable man

Illness and disability

Mansfield v weetabix

A lorry driver did not know he was suffering from an illness in which deficiency of glucose in his system deprived his brain of oxygen and lead to him becoming slowly unconscious

This happened while he was driving a large lorry which ploughed into the plaintiff’s shop.

The court of appeal reversed the trail judge’s decision and held that the lorry driver had not been negligent. No evidence he was aware of the condition as he continued to drive.

Page 15: Tort Revision 2

The standard of care expected was that of “a reasonably competent driver unaware that he is or may be suffering from a condition which impairs his ability to drive.”

Higher standards – professionals and special skills

People who hold themselves out as having a special skill are not judged by the standards of a reasonable person.

Instead the standard of the reasonable person who has that skill

Bolam v Friem Barnet hospital management committee

A psychiatric patient sustained a broken jaw when he was given electro-convulsive treatment without being administered a muscle relaxant.

In determining whether the doctor had been in breach of his duty of care MCNAIR J

When you get a situation which involves the use of some special skill or competence ...the test is the standard of an ordinary skilled man exercising and professing to have that special skill.

Suppose not all professionals agree how to behave in the relevant circumstances?

According to Bolam it is enough for the defendant to show that the professional;

Has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art.

In Bolam the claimant was unsuccessful

House of Lords Bolitho v City & hackney established that a court must be satisfied that

“The exponents of the body of medical opinion relied upon can demonstrate that such an opinion has a logical basis.”

Greater willingness of the court to questions professional practices and there is some indication that negligence liability is more likely to be established

Bolam – Reasonable body of experts even a small segment of the professional population

Bolitho v city and Hackney health authority

2 year old child suffered brain damage after two instances of server respiratory distress while in hospital. Doctor did not attend which was itself considered negligent.

Page 16: Tort Revision 2

The parties were in dispute as to whether the doctor would have or should have inserted a breathing tube after the first incident

Bolitho v city and hackney health authority

Lord Browne-Wilkinson

The court is not bound to hold that a defendant escapes liability for negligent treatment just because he leads evidence from a number of medical opinion that the defendant treatment accorded with sound medical practice.

McNair J – practice accepted as proper by a reasonable body of medical men

The judge before accepting a body of opinion as being responsible reasonable or respectable will need to be satisfied that, in forming their views the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible approval on the matter.

Bolitho v city & hackney health authority

The final judgement on breach of duty lies with the court not medical practitioners.

Lord Browne- wilkinson

2 year old suffered brain damages following respiratory failure. He suffered two severe episodes of respiratory difficulties the nurses called for the doctor but the doctor did not attend on either occasion.

The doctor should have intubated following the first two episodes

Doctor even if she had attended she wouldn’t of intubated so her failure to attend had not caused the issue.

It was for the court, not for medical practitioners to decide what was the standard of care required of a professional in the circumstances of each particular case

The doctor can not escape liability just because he leads evidence from a number of medical experts

Bloam -Mcnair- the defendant had to of acted as proper by a “responsible body of medical men later a competent reasonable body of opinion.

Reasonable reasonable respectable all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrated the opinion has a logical basis.

Page 17: Tort Revision 2

The judge before accepting a body of medical opinion as responsible reasonable and respectable, will need to be satisfied that, in forming their view the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible e conclusion of the matter

Logically support

Bolitho restatement of the Bolam test will make any difference will be judicial attitudes.

Bolam- the standard of care is “the standard of the ordinary skilled man exercising and professing to have that skill.”

“A doctor is not guilty of negligence if he is acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular area. “

House of Lords clarified the situation in Bolitho

medical opinion need to be able to withstand logical analysis.

Dejamal v Bexley health authority

Doctor acting in a senior health position acting in a position beyond his experience

Do we judge by standard of qualifications or role he is performing?

Hospital was vicariously liable

Page 18: Tort Revision 2

Bolam – McNair J

“A doctor is not guilty of negligence if he is acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular area. “

House of Lords clarified in Bolitho

Bolitho Lord Browne Wilkinson

The final judgement on breach of duty lies with the court not medical practitioners.

The judge before accepting a body of medical opinion as responsible reasonable and respectable, will need to be satisfied that, in forming their view the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible e conclusion of the matter

The court can decide that a body of medical opinion is not reasonable or responsible if it can be demonstrated that the professional opinion is not capable of withstanding logical analysis.

Professionals; Breach of duty and the duty to explain

Chester v afshar

There is some signs of a greater judicial willingness to question medical practices of opinion

Change in judicial attitude on the subject of medical duties to warn or informed consent

Chester v Afshar- House of Lords

The claimant has undergone surgery on the advice of consultant.

It was accepted that he ought to have warned her of the small risk that the operation could lead to paralysis.

Had he of warned her she probably would have gone ahead and had the same surgery, but not so soon.

Surgery was preformed competently.

In all likelihood she would not of had the same bad luck.

Page 19: Tort Revision 2

House of Lords acknowledged that these circumstances did not satisfy the “but for” test

House of lords keen to protect the patients right to informed consent. Held majority of 3 to 2 that claim should succeed

Reached the conclusion by replacing the but for test with a modified test

Was the risk which lead to the injury one which the doctor had a duty to warn the patient against?

If so, according to the House of Lords in this case the modified test is satisfied.

Lord steyn

Chester is another example of the way in which the courts on occasion have been prepared to extend the principles of causation in order to obtain what is seen as a fair outcome. We know these cases will be limited in their reach but the extent of their reach is as yet unpredictable.

Special characteristics of the claimant

1. Children- mullins v Richards huchinson lj 2. Illness- Mansfield v weetabix3. Skilled professionals- Bolam and Bolitho4. Unskilled- nettleship v Weston – Lord Denning5. Thin skull rule- paris v Stepney Bough council

Thin skull or eggshell rule- take victim as you find them

Paris v Stepney Borough Council –

a reasonable employer with the knowledge would of supplied safety goggles

The claimant was a mechanic. His employers knew that he was blind in one eye. While the claimant was using a hammer to remove a bolt on a vehicle, a chip of metal flew off and entered his good eye, so injuring it that he became totally blind.

The defendants did not provide him with goggles to wear

Held – the defendants owed a higher standard of care to the claimant because they knew the injury to his good eye would cause him much more serious consequences than

Size of the damage/ Magnitude of the risk

A greater risk of damaged increased the standard of care

In Millar v Jackson injury was reasonable foreseeable

Page 20: Tort Revision 2

Bolton v Stone HL Millar v Jackson CA- balls were hit out

Cricket balls hit out of the ground. Eight or nine times a season

Bolton – cricket pitch for 90 years

6 time over 30 years has a ball

hit the highway. No one had been injured

Practicalities of protecting against the risk

Latimer v AEC

The court will also take into account what if any measures the defendant could have taken to avoid the risk of injury.

Latimer v AEC

Factory became flooded with excess of rain. Factory floor slippery

The defendants spread sawdust on the floor to stop slippy not enough to cover

In the course of his duty the claimant slipped on a portion of the floor not covered with sawdust.

HOL – defendant not in breach expensive and disproportionate to the relatively small risk

The greater the risk of injury the more the defendant has to do to reduce or eliminate the risk

Common practice in relevant field.

If the defendants actions are intended to have some benefit to the public, the court is less likely to find that there has been a breach of duty of care.

Watt v Hertfordshire Country Council

Where London Transport had loaned a Jack to the fire brigade. The Jack was extremely heavy and only one of the trucks was equipped to carry it. While that truck was out dealing with an emergency, the fire brigade were called to an accident where a woman was trapped under a heavy vehicle.

There was only one other truck available not fitted with proper restraints

On the way to the scene the driver had to stop suddenly and injured one of the fire fighters

Page 21: Tort Revision 2

The officer in charge had not been negligent

Denning lj

Proving Breach – Res ipsa Loquitur

Scott v London and st Katherine Docks

Six sacks of sugar feel into a workman in a dockyard. The court found that the occupiers were liable for the injury to the workman.

BURDEN OF PROOF IS ON YOU

Page 22: Tort Revision 2

Psychiatric Injury

In order to bring an action in negligence you must show damage –

burden of proof is on you

BUT rules of recover are different when there is no physical injury but the victim has developed a psychological condition

Psychiatric injury

Why is recovery for psychiatric injury without accompanying physical injury treated differently

Policy reasons – floodgates

1. You can only recover damages for a recognised form of psychiatric injury2. Damages for grief sadness will not be recoverable 3. The psychiatric injury must be the result of the impact of a sudden event or its

immediate aftermath4. Must be reasonably foreseeable

Claimant put in danger of physical harm but only suffers psychiatric harm – primary victim

Claimant not put in physical danger but suffers psychiatric injury as a result of witnessing physical injury to others – Secondary victim

Primary victims

In danger of physical danger but only suffers psychiatric harm

Secondary victims – no danger of physical harm but suffer psychiatric illness having witnessed another’s exposure to physical danger

Page v Smith

Claimant was involved in a collision with a car driven by the defendant.

The claimant had suffered from ME three hours after exhausted.

The claimant sued for damages for personal injuries caused by the defendants negligence.

Thin skull rule= take victim as you find them.

Lord Lloyd

Majority House of lord rules claimant could recover damages

Page 23: Tort Revision 2

Lord Lloyd test for foreseeability in secondary victims special test.

Whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so he has a duty of care.

Special proximity rules and stricter test for foreseeablity

Mcloughlin v O’brian – Lord wilerforce Lord Bridge

the claimant was at home two miles away, when her husband and three children were involved in a road accident. When she reached the hospital about two hours later, she heard evidence that her daughter had been killed and seen evident of her sons injuries.

The shock she suffered resulted in psychiatric illness

The house of Lords held that the claimant could recover damages as it was reasonably foreseeable that the claimant would suffer nervous shock as the result of her families injuries.

Secondary special proximity and stricter test for foreseeability

1. Was there a sufficiently close relationship of love and affection between the claimant and the primary victim.

2. Was there proximity to the accident or it’s immediate aftermath3. Was the accident or its immediate aftermath with the claimants own unaided

senses.

Alcock v Chief constable of south Yorkshire

Was there proximity to the accident or it’s immediate aftermath

Disaster at the Hillsborough football ground

Relatives of some of the supporters who were killed through admitted negligence of the police

The claim was for psychiatric harm to the relative themselves

Lord Keith

The south Yorkshire police responsible for crowd control at the match

Lord Ackner

Three elements

Lord Wilberforce in Mcloughin v O’brian

Page 24: Tort Revision 2

1. Class of persons( relationship)2. Proximity to the accident or its immediate aftermath – Lord Wilberforce (time and

space) 3. Means by which shock is caused(sight and hearing)

Lord Wilberforce- mcloughlin v obrain4. Class of person- relationship- no close tries between brothers 5. Proximity in time and space- identification of a body eight hours after not enough 6. Means by which shock is caused (sight and hearing)

Shock must be sight or hearing or an event Or it’s immediate aftermath Television – cannot be equated with sight or hearing of the event or its immediate aftermath. – Lord Ackner Alcock v chief constable south Yorkshire

Robert alcock brother in law no reasonably foreseeable as a potential sufferer Appeals dismissed

Lord ackner

Close relationship of love and affection between the claimants and the primary victimProximity to the accident or its immediate aftermathMeans by which shock is caused- sight and hearing

No duty towards mere bystander- mcfarlance v EE Caledonia

Must be reasonably foreseeable to the defendant that a person might suffer psychiatric illness in claimants position

Proximity in time and space

Seeing or hearing the event or its immediate aftermath.

Reasonably foreseeable

Close relationship of love and affection- parent child married or engaged

The secondary victim with have to prove they had close relationship

In alcock v cheif constable south yorksire police

The brother was unable to recover because he was unable to prove they had been close.

Page 25: Tort Revision 2

2. Proximity to event or immediate aftermathMccoloughin v o brain an hour after seen son screaming – House of Lords this was sufficiently proximate to the immediate aftermath.

Sion v hamstead health authority

The effect of a parent sitting on bed watching his son die was not sufficient

Alcock testLord ackner

7. A sufficient close relationship of love and affection with the primary victim.Husband wife child parent – bothers will have to prove

Shock by a mere bystander will not be foreseeable Bourhill v Young

3. Proximity to the accident or immediate aftermath- seeing bodies in a mortuary 9 hours after no alcock v chief constable south Yorkshire

Suffering nervous shock through what is seen or heard of the accident or its immediate aftermath

Seen or tv or told by someone else is not enough

Page 26: Tort Revision 2

White v chief constable of south Yorkshire police

Police officers who suffered psychiatric illness following their experiences from the tragedy

Never in any physical danger

Failed – close ties and love and affection

White v chief constable south Yorkshire police –

Chadwick v British transport

Night attempting to rescue the victims of a terrible train crash which occurred near his house

McFarlane v Tayside Health Board

A father who already had four children underwent a vasectomy. Months later the surgeon confirmed the success of the operation and said he need no longer use contraception. His wife then fell pregnant

The claimants claimed damages associated with the pregnancy and birth and claimed for the costs of raising the child.

Page 27: Tort Revision 2

On appeal, the majority of the House of Lords Held that the mother would be entitled to damages for the pain, suffering and inconvenience of pregnancy and childbirth and for the immediate expenses and loss of earning associated with birth.

However it was decided unanimously that the cost of raising a healthy child was not recoverable.

LORD SLYNN

Commented on how it was not

fair just or reasonable to impose such a burden of liability on a doctor

Rees v Darlington Memorial Hospital – did not depart from reasoning in mcfarlane

Claimant suffered from a severe visual impairment because she did not want the burden or raising a child she underwent a sterilization operation which was negligently performed at a hospital managed by the defendants. She gave birth to a health child whose father wanted no part in its upbringing

The house of Lords decided that no duty was owed in respect of the upbringing of a healthy baby.

The additional costs of upbringing relating to the mothers visual disability were equally not recoverable.

However the majority decided that a wrong had been committed towards the mother and she should be awarded a conventional sum of “15,000” as a measure of recognition of that wrong

Parkinson v St James and Seacroft University Hospital court of appeal

A mother gave birth to an autistic child following a sterilisation. The autism was not related to the negligence that caused the sterilisation to fail.

The Court of Appeal held that although the mother was not entitled to the basic maintenance costs of bringing up a child she could claim the additional costs of bringing up a child with autism.

Causation

“BUT FOR” test; standard of care used to establish causation

But for the defendants negligence the injury would not have been caused.

Balance of probabilities

Barnett v Chelsea & Kensington Hospital Management

Page 28: Tort Revision 2

The case involved three night watchmen who drank some tea. Soon afterwards all three men started vomiting and went to the casualty department of the defendant’s hospital. The nurse phoned the doctor and explained the men’s condition. The casualty officer did not come to examine the patients, but said they should go home and call in their own doctors. The men left the hospital one of them died some hours later from arsenic poisoning because very few people are poisoned by arsenic there was little or no chance that he could of been saved. However plaintiff sued for damages in negligence.

Nield J

His conclusion was on the balance of probabilities the claimant had failed to establish, that the death of the deceased resulted from the defendants negligence.

Bolitho v City Hackney Health authority

Lord Browne Wilkinson- but in cases where the breach of duty consists of an omission to do an act that ought to be done the factual inquiry is by definition in the realms of hypothesis

Chester v Afshar

Chester v Afshar- House of Lords

The claimant has undergone surgery on the advice of consultant.

It was accepted that he ought to have warned her of the small risk that the operation could lead to paralysis.

The risk was not drawn to the claimants attention.

Had he of warned her she probably would have gone ahead and had the same surgery, but not so soon.

On the balance of probability it was probably much more likely that the surgery been preformed another time it would not have had the same unfortunate result.

But the surgery had not been preformed carelessly

The surgeon had not increased the risk because she would of had the same risk anyway.

On the balance of probability, but for the breach the claimant would have ran the same risk, but with a different outcome.

House of Lords acknowledged that these circumstances did not satisfy the “but for” test

DISSENT lord BINGHAM

Page 29: Tort Revision 2

Seemed to have thought the claimants damage did not satisfy the but for test

Majority judgement Lord Steyn

House of lords keen to protect the patients right to informed consent.

Held majority of 3 to 2 that claim should succeed

Reached the conclusion by replacing the but for test with a modified test

Was the risk which lead to the injury one which the doctor had a duty to warn the patient against?

If so, according to the House of Lords in this case the modified test is satisfied.

Lord steyn

Chester is another example of the way in which the courts on occasion have been prepared to extend the principles of causation in order to obtain what is seen as a fair outcome. We know these cases will be limited in their reach but the extent of their reach is as yet unpredictable.

Problems with the but for test

Multiple Causes – but for test

Wilsher v Essex Area Health Authority – balance of probabilities was not satisfied

The claimant was a child born prematurely and placed in a special unit at the defendants hostpital

He needed extra oxygen and to ensure the correct amount it was necessary to insert a catheter into an umbilical artery so as his oxygen levels could be accurately read on an electronic monitor.

A doctor mistakenly insterted the catheter into a vein instead of an artery, with the result that the monitor gave a lower reading. Other doctors caught the error but it took two more tries to insert the catheter correctly

The claimant developed a condition of the eyes caused by excess oxygen, resulting in blindness.

This condition may have been caused by the defendant’s breach of duty in exposing the baby to too much oxygen. However there are a number of possible other causes which were the natural consequences of premature birth.

Page 30: Tort Revision 2

The house of Lords rejected the argument of the court of appeal that McGhee should apply to assist the claimant in that the defendants materially contributed to the risk of harm

The House of Lords endorsed the opinion of Lord Browne Wilkinson in the Court of appeal

There is no satisfactory evidence to say that excess oxygen is more likely than any other of the four.

The position in LORD BROWNE Wilkinson mind is wholly different from that in McGhee where there was only one candidate brick dust

The House of Lords agreed to these comments and declined to extend Mcghee to the case which there were several possible causes of injury

Authority of McGhee in Single agent cases

McGhee v National Coal Board – Lord Wilberforce

Dermatitis caused by exposure to brick dust

Two sources of exposure

One source result from employer’s negligence

Other source not negligence

Negligent source materially increased the risk of injury

Modification of the but for test in so called single agents cases

Held that in certain instances, a material contribution to the risk of harm would satisfy the requirement of caustions

Bailey v Ministry of Defence 2008

A woman went in to have gallstones removed

There were complications in the operation

She bled extensively but was put in a ward with little supervision

She was not resuscitated properly during the night, and she was very unwell in the morning

She got worse. At the same time (but this was not related to the hospital's lack of care) Miss Bailey developed pancreatitis

Page 31: Tort Revision 2

The tragedy struck when she was drinking some lemonade. She got nauseous and vomited. Because Miss Bailey was so weak, she could not clear her air passages and she choked. By the time she was resuscitated she had gone into cardiac arrest and had hypoxic brain damage.

The question in the Court of Appeal was whether the first Ministry of Defence hospital caused the brain damage

It could not be said with certainty that it was their poor care that led to Miss Bailey's weakness (and choking leading to brain damage), because her weakness was also a result of the pancreatitis that Miss Bailey developed (and that was not the MoD hospital's fault

Weakness from 2 things

1. weakness due to medical negligence2. weakness due to pancreatitis

Court of appeal

strictly, have been caused "but for" the substandard care, the substandard care had materially increased the risk of harm.

Waller LJ (delivering an opinion with which Sedley LJ and Smith LJ concurred) upheld the High Court, and ruled that the material increase in risk to Miss Bailey created by the Ministry of Defence's hospital made for a sufficient causal connection to be liable in negligence. He held that where the "but for" test of causation cannot be satisfied because of some uncertainty, it is relaxed and a claimant will succeed in getting compensation if the defendant materially increased the risk of harm.

Breach of duty material contribution to the injury- bailey v minsitry of defence

Material contribution to the RISK of injury- mcghee

Loss of Chance

Hotson v East Berkshire Area Health Authority – did not satisfy on the balance of probabilities

Claimant fell out of a tree

Medical staff failed to notice the injury

Went home 5 days in severe pain

He was taken back and the injury was correctly identified

The claimant sued the health authority for the initial failure to diagnose.

Page 32: Tort Revision 2

The difficulty in the claimants claim was he could not prove on the balance of probabilities that with prompt treatment, he would not have developed the condition

More likely than not if he was diagnosed the injury would still have developed

75% he would of had the same injury

25 per cent loss of chance

House of LORDs – all or nothing approach

Gregg v Scott LORD NICHOLLS

Claimant lump under arm

Benign no further tests

A year later different doctor referred the patient to a specialist for further tests

Symptom of cancer

25% chance of 10 years survival

42% time he visited scott

3 to 2 majority the house found in favour of the defendant

Couldn’t prove on the balance of probabilities

Causation and Multiple Tortfeasors

Fairchild v Glenhaven Funeral services – House of Lords- single employer

Asbestos compensation claims

Several different employers COA- but for rejected all three claims

House of Lords joint and several liability

LORD NICHolls

Page 33: Tort Revision 2

Employer to assume responsibility for causing or materially contributing to the onset of mesothelioma

If a claimant becomes ill as a result of a series of long term exposures to a harmful substance, they could recover compensation even if they could not prove which exposure caused the illness.

All losses from a single defendant- fairchild v glenhaven funeral services

If they suffer from asbestos which gets worse on a straight line basis then there has to be an apportionment between all the people who exposed the claimant to the risk – Holtby v Brigham & Cowan

The standard test is the but for test

However in single agent cases were prolonged exposure increased the risk

Mcghee Fairchild the courts will allow a material contribution to the risk of injury to satisfy the causation requirement

Where several causes have accumulated to cause injury a material contribution to injury may satisfy the requirement of causation Bailey

Loss of change has not been accepted as actionable in regard to personal injury claims

Hotson v East Berkshire Area Health authority

Gregg v Scott

Breaking the chain of Causation

Novus actus interveniens – a new intervening act may break chain of causation

Wieland v cyril lord carpets ltd

A woman injured her neck and was wearing a neck brace. She felt dizzy and asks her son to help her down the stairs. Due to the neck brace she couldnt wear her bifocals she missed her step and feel.

Page 34: Tort Revision 2

The court held she had taken reasonable care in the circumstances and therefore damage to her ankle was not too remote

Mckew v Holland & hannen & cubitts

As a result of the defendant’s negligence, the claimant suffered a leg injury. This left his leg weakened. He later fell attempting to descend a deep flight of stairs with no handrail without assistance, suffering further serious injuries. He did not seek assistance in climbing the stairs

Legal principle

The claimants act in attempting to descend the staircase without a handrail and without assistance when his leg had previously given way was unreasonable. Lord Reid held that his act was a novus actus interveniens which broke the chain of causation. As a result the defendants were not liable for the second injury.

Causation and acts by third parties

Haynes v Harwood – duty of care to policeman two horses bolted in the street policeman ran after horse feel on him.

Knightley v Johns-

A car driven negligently by the first defendant overturned in a tunnel. The Fourth defendant a police officer attending the scene after the accident forgot to abide by the standing order and close the tunnel to traffic immediately.

He then sent 2 police constables on motorbikes back through the tunnel against the traffic in order to close it.

The claimant one of the police motorcyclists was hit head on by the second defendants car.

Did the carelessness of the police inspector operate to break the chain of causation?

Stephenson LJ

Page 35: Tort Revision 2

Whether the whole sequence of events is a natural and probable consequence of the first defendant’s negligence and a reasonably foreseeable result of it.

Made the injury to remote to be the first defendants duty

The policeman broke chain of causation

Foreseeable consequence of defendants breach

Natural and probable consequence – stephenson LJ

Multiple Consecutive causes

Baker v Willoughby

Defendant knocked the plaintiff down at a pedestrian crossing and injured his leg. Shortly before his tort action was heard he was shot in the same leg during an armed robbery and the leg had to be amputated. THIS WAS A CASE OF CONSECUTIVE TORTS although no prospect of proceeding against the second tortfeasor.

Def should continue to be liable for loss of earnings after the amputation; because the amputation did not cause any further reduction on his earning capacity.

Jobling v Associated Dairies

Back injury at work – reduced earnings by 50% his employees were liable for the injury

Three years later he developed a spinal disease that left him totally unable to work.

The employees argued that they should only be liable for damages for loss of earnings up to the point where the disease developed because after that point he would not have been able to work.

House of Lords agreed

Page 36: Tort Revision 2

Remoteness of Damage

Historical test re polemis -

Overseas Tankship v Morts Dock Engineering The Wagon Mound no 1 – test for remoteness reasonable foreseeabilty Lord Viscount Simonds

Fire which destroyed the plaintiffs wharf

The plaintiffs workmen where carrying out some welding and during the process some molten metal fell from the wharf and set fire to some cotton that was floating in the water.

There was also oil in the water, which had escaped several days before from a ship that has been chartered by the defendant.

The oil caught fire, leading to the destruction of the wharf

The Privy Council found that the defendant could not have foreseen the chain of events leading to the fire and therefore should not be liable for it.

The Privy Council was departing from an earlier Court of Appeal decision Re Polemis

Viscount Simonds LJ

The Wagon Mound No 2

2 ships undergoing repairs

Claimant charterer of another ship The Wagon mound taking oil

Because of the carelessness of the wagon mounds engineers a large quantity of oil overflowed onto the surface of the water

The oil was set alight causing extensive damage to 2 vessels

Page 37: Tort Revision 2

No 1- action brought against welders This action was unsuccessful because the ignition of the oil while it was on the surface of the water was found to have been unforeseeable – viscount simonds

in wagon mound no 2 the owners of the 2 damages ships brought an action against the charterer of the wagon mound. This was successful

Factors to be considered fall in 4 cat

1. type of loss2. accident which caused the loss3. possible extent of the loss4. intervening acts

Type of loss

Page v Smith – once physical damage reasonably foreseeable

The fact that the injury that occurs is psychiatric did not make it too remote

Margereson v Jw roberts

Once some kind of lung damage is foreseeable

It did not matter that the type of damage was unlikely (mesothelioma)

Accident which caused the loss

Doughty v turner manufacturing Co

Defendants factory had cauldrons that were used to hold molten metal.

Each caldron had an asbestos lid.

One of the lids fell off the cauldron which unexpectedly caused the molten metal to erupt, burning the plaintiff

The plaintiff argued that it was foreseeable that if something fell into the cauldron, metal would splash out

Page 38: Tort Revision 2

COA splashing was a different type of damage from the eruption that took place. Such eruption was not foreseeable and therefore the defendant was not liable

Current approach – once the claimant has suffered a foreseeable type of injury it does not matter whether the injuries were more extensive than perhaps foreseeable or that the injury occurred in an unforeseeable way.

Hughes v Lord Advocate

A group of workmen left an open manhole, guarded by par

Jolley v Sutton Borough council

Once the claimant has suffered a foreseeable type of injury it does not matter if the injuries were more extensive than perhaps foreseeable or that the injury occurred in an unforeseeable way.

3. Accident which caused the law- how does the law treat an unlikely accident

Possible extent of the loss – “thin skull rule” must take your victims as you find them.

Smith V Leech Brain & co

The claimant was splashed on the lip by molten metal, due to his employer’s negligence.

The burn he suffered activated a precancerous condition of which he eventually died.

Despite the fact that the death from cancer would not have been foreseeable at the time of injury, the employer was liable for its full extent.

Lagden v O’Connor

Page 39: Tort Revision 2

Vicarious Liability

Generally a person is only liable for their own acts and omissions

However vicarious liability acts as an exception to this rule

Employers are said to be vicariously liable for the torts of their employees which are committed during the course of employment.

Three questions

1. Was the person who committed the tort an employee of the defendant?

2. Has a tort been committed?3. Was the tort committed in the course of that person’s employment?

Earlier cases control test – mersey docks v Coggins and griffiths

A moblie crane and a driver had been hired out to a firm of stevedores under a contract which stipulated that the driver was to be an employee of stevedores.

In spite of this the employee’s original employer the harbor Board paid his wages and retained the rights to dismiss him.

The hirer coggins and griffiths directed the tasks which were to be performed by the driver but not how he was to operate the crane.

In the course of work the driver negligently injured the plaintiff and the question to be determined was whether the firm of stevedores or Harbor Board was vicariously liable.

Page 40: Tort Revision 2

The original employer the Harbour

The house of lords ruled that in these circumstance the board remained employer of the crane operator.

The agreement was not conclusive

Only if clear evidence employment had been transferred

1. Was the person who committed the tort an employee of the defendant?Integration Test Stevenson Jordan & Harrison v Macdonald & EvensThe extent in which they are integrated into the business of the employeeLord Denning- too vague

The economic Reality test Ready mixed concrete v minister of pensions

A concrete manufacturing company introduced a scheme whereby its concrete would be transported by a team of lorry owners described as owner driversThe agreement between the lorry owners and the company provided that they would be paid a fixed mileage rate for the service and employment status self employed Drivers owned the lorries bore the financial risk Independent contractors

1. Owned and maintained Lorries2. Were free to hire other drivers in the vent of holiday sickness 3. Took chance of profit and bore the risk of loss

Mersey docks and harbor Board v Coggins – the permanent employer is liable unless then can prove otherwise

Is Dual Vicarious liability possible?

Viasystems v Thermal Transfer

Page 41: Tort Revision 2

Claimants engaged the first defendants to install air conditioning at their factory. The first defendants subcontracted ducting work to the second defendants who then contracted with the third defendants to provide fitters and fitters mates on a labour only basis. At the time of the accident a fitters mate was negligent and the issue was to be decided was who was vicariously liable

COA – can be apportioned between two defendants.

The inquiry should concentrate on the relevant negligent act and then ask who is responsibility was it to prevent it.

Who was entitled to exercise control over the relevant act

On the facts both the second and the third defendants had been entitled both employer vicariously liable.

Possible for two employees to share blame

However in line with mersey Docks the general employer will face the heavy burden in proving that the other employer should also be liable

Vicarious liability can be apportioned between defendants

Was the tort committed in the course of the persons employment

Century Insurance V Northern Ireland Road Transport

Carelessness of the driver of a petrol tanker who lit a cigarette and carelessly discarded a lighted match which caused an explosion and a fire.

His act of lighting the cigarette and throwing away the lighted match at that

moment was said to be negligent in performing the task of his delivering petrol and he was therefore acting in the course of his employment

Although discarding the lighted match could not in itself be said to be connected with the performance

Employer’s indemnity

Page 42: Tort Revision 2

Civil liability contribution act

Employer may be able to recover some of the cost of paying damages to the claimant from the employee.

Section 2(1) could cover the whole amount of damages paid to the claimant if the court felt that the employer although vicariously liable for the employees tort was entirely blameless