Summary 'ALL-YOU-NEED' - Tort Law notes and cases, Exams of Law

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Summary 'ALL-YOU-NEED' - Tort Law notes and cases Duty of care - Donoghue v Stevenson - Correct answer-- Lord Atkin's 'Neighbour Principle' - "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injury your neighbour" - foreseeability and proximity - Neighbour = "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected" - No contract between Donoghue herself and Stevenson, as friend bought the drink for Mrs. Donoghue - Newly established that manufacturer owes duty of care to ultimate consumer; extends liability to anyone affected by the product Duty of care - Anns v Merton - Correct answer-- Lord Wilberforce's 2-stage test in his judgment has been overruled, because of his failure to distinguish between foreseeability and proximity - Would open floodgates of liability, as everything in life is logically foreseeable Duty of care - Caparo v Dickman - Correct answer-- Lord Bridge's 3-stage test to determine the existence of a duty of care: Foreseeability, Proximity, and Fair, Just and Reasonable - Foreseeability: damage to the claimant was foreseeable - Proximity: there is a relationship of proximity between the claimant and the defendant - Fair, Just and Reasonable: it is fair, just and reasonable that the court should impose a duty - All these criteria must be met in order to establish a duty of care - Purpose of this test is to limit the floodgate of liability - Only apply the Caparo test when it is unclear whether there is an existing duty of care. In relationships such as doctor and patient, there is already a pre-existing duty of care and thus there is no need to apply the Caparo test Foreseeability - Palsgraf v Long Island Railroad - Correct answer-- Man brought fireworks to train. Guard helped carry the package, causing explosion to strike the plaintiff - Majority view was that "a man ought not to be responsible for unforeseeable consequences" Foreseeability - Bourhill v Young - Correct answer-- Claimant alleged that violent collision caused her to have a miscarriage - No breach of duty as it was not foreseeable that action would cause injury - Claimant was not within foreseeable area of shock (remoteness of damage) Floodgates - Hill v Chief Constable of West Yorkshire Police - Correct answer-- Police did not withhold murderer, leading him to commit more murders - No duty of care owed by police to all persons - because of proximity and floodgate reasons - Lord Keith "there is no general duty of care owed to individual members of the public by the responsible authorities" - Policy reasons as well - police may exercise a defensive frame of mind - Police would be distracted in court from their primary function, which is the suppression of crime Floodgates - Swinney v Chief Constable of Northumbria Police - Correct answer-- Police record of claimant's identity stolen from police car by the criminals, leading to the criminals threatening him - Established proximity between parties, as police had an assumption of responsibility to the claimant and therefore owed a duty of care - Fair, just and reasonable to establish liability as public should be encouraged to serve as witnesses to police - Still no liability for policy reasons Causation - Barnett v Chelsea & Kensington Hospital Management Committee - Correct answer-- Claimant visited doctor complaining of stomach pains, who just told him to rest it through, when he was actually suffering from arsenic poisoning - Doctor breached his duty to claimant through negligent examination, falling below the required standard of care of a doctor - But no liability as patient would have died even if treated properly; lack of causation Causation - Gregg v Scott - Correct answer-- Defendant negligently misdiagnosed claimant's arm as non- cancerous, resulting in reduced chance of survival from 42% to 25% - Claimant claimed loss of chance of a greater chance of recovery - No liability as claimant's prospects of recovery were always below 50%, following the 'all or nothing' approach - Baroness Hale: loss of chance compensation could lead to liability in almost every case - floodgate Cost of eliminating risk - McGhee v National Coal Board - Correct answer-- Defendant did not provide showers in brick-kiln, increasing risk of dermatitis, although risk was inherent to the job - Defendant liable, because it was a material contribution to the causal process which led to the claimant's injury Causation - Fairchild v Glenhaven Funeral Services Ltd (2003) - Correct answer-- Claimant worked for several employers, and each had materially increased his risk of contracting mesothelioma from exposure to asbestos - Difficulty with establishing causation, as once the disease is contracted it cannot worsen from more exposure - All employers found jointly liable - But this judgment would be limited to mesothelioma cases Causation - Barker v Corus (2006) - Correct answer-- Similar to Fairchild; claimant contracted mesothelioma after working for more than one employer - No joint liability, because court decided claimant must prove which particular employer was liable - This decision was reversed by Compensation Act 2006 Causation - Sienkiewicz v Greif - Correct answer-- Liability for mesothelioma fell on anyone who had materially increased risk of the victim contracting the disease Foreseeability - Lamb v Camden London Borough Council - Correct answer-- Defendant negligently broke water main, flooding claimant's house, forcing claimant to vacate house for repairs, leading to squatters to break in and cause damage - Defendant not liable, because squatters were not foreseeable (remoteness of damage) Foreseeability - Knightley v Johns - Correct answer-- Defendant caused accident in one way tunnel, and police inspector failed to close entrance to tunnel, leading to claimant (police officer) riding on motor bike to close entrance after orders from the inspector, and was hit by a car - Defendant not found liable because inspector's negligence had broken the chain of causation - novus actus interveniens - Claimant's injury was not foreseeable from defendant's negligence Contributory Negligence - Sayers v Harlow Urban District Council - Correct answer-- Claimant injured trying to escape from locked public lavatory cubicle, because of poor lubrication - Since put into dilemma by the defendant, actions not unreasonable - Chain of causation not broken, but damages reduced for contributory negligence Chain of causation - Weiland v Cyril Lord Carpets Ltd - Correct answer-- Defendant negligently injured claimant's neck, and had to wear a surgical collar, which didn't allow him to see properly through bifocal spectacles - Defendant found liable when claimant fell down the stairs (intervening act of claimant) - claimant wasn't at fault as he had acted reasonably Chain of causation - McKew v Holland - Correct answer-- Defendant negligently injured claimant's leg, and when the claimant fell attempting to descend staircase with no handrail whilst carrying a child, claimant broke ankle (intervening act of claimant) - Defendant not liable because claimant's unreasonable conduct broke chain of causation Foreseeability - Re Polemis - Correct answer-- Stevedore negligently dropped plank into hold, which contained Benzine that had leaked into it, causing an ignition which destroyed the ship - Back then, the claimant was found liable because damage was direct consequence of negligence, although destruction of the ship was unforeseeable Foreseeability - Wagon Mound (No. 1) 1961 - Correct answer-- Defendant negligently discharged oil into harbour, which drifted to wharf owned by claimant - Manager of wharf was told it was safe to continue welding, causing fire which damaged wharf - Defendant not liable for fire as damage was not foreseeable (remoteness of damage) Foreseeability - Wagon Mound (No. 2) 1967 - Correct answer-- Same events as No.1, but this time defendant was found contributory negligent and therefore liable - Between both Wagon Mound cases, the law on contributory negligence changed, from no compensation being allowed at all to damages being apportioned between both parties Foreseeability - Hughes v Lord Advocate - Correct answer-- 2 boys playing in hole dug by Post Office employees, unattended but surrounded by paraffin lamps. Boy took and dropped lamp into hole causing explosion and burns - Explosion unforeseeable but damage caused by fire was foreseeable (remoteness of damage), however damage caused by fire indistinguishable from damage caused by explosion - Defendant found liable - courts stricter when children are involved Foreseeability - Doughty v Turner Manufacturing Co Ltd - Correct answer-- Claimant, employee of defendant, injured when asbestos lid slipped into vat of boiling sodium cyanide, causing unforeseeable eruption caused by chemical reaction - Although splash was foreseeable, eruption was not. Defendant not liable Eggshell skull rule - Smith v Leech Brain & Co Ltd - Correct answer-- Plaintiff suffered a burn to his lip as a result of the defendant's negligence, and developed cancer because of a pre-malignant condition, ultimately passing away - Defendant liable even though only foreseeable injury was splash and burn (egg-shell skull rule) - "a tortfeasor takes his victim as he finds him", per Lord Parker CJ - Chance of avoiding hip deformity was 25% before diagnosis - No liability; failure to prove that defendant's negligence was material contributory cause (causation) Novus actus - Baker v Willoughby 1970 - Correct answer-- Defendant negligently injured claimant's leg, disabling him. Later, he was shot in the same leg during a robbery and leg was amputated - One act of negligence should not replace or lessen the effect of another - "it would clearly be unjust to reduce the damages awarded for the first tort because of the occurrence of the second tort", Lord Keith of Kinkel - Robber could not be found so therefore he could not be sued - Defendant found liable for full extent, including the intervening act (remoteness of damage) (novus actus interveniens) Causation - Cook v Lewis - Correct answer-- Claimant accidentally shot by either defendant or his companion. Both shot at the same time, in the same direction, but the claimant was only hit by one bullet. Both also have identical guns and ammunition - Injustice outweighed by possibility that claimant should receive no recompense even though one of the hunters injured him - so both were found liable - joint liability Foreseeability - Jolley v Sutton LBC - Correct answer-- Defendant negligently left wrecked boat on land, knowing it was dangerous and alluring to children. Claimant and friend, both children, repaired boat, raising it on car jack (not foreseeable) - Claimant suffered severe spinal injuries when it fell on him while he was underneath it - House of Lords allowed claimant's appeal (reversing decision): appropriate risk was that of children meddling with the boat and risk had materialised. Once again, judges are harsher when children are involved Contributory negligence - Jones v Livox Quarries - Correct answer-- Claimant worked in quarry, injured while standing on back of moving 'traxcavator' and dumper truck crashed into it - Found contributory negligent because harm to himself was foreseeable; he should have foreseen carelessness of others Volenti - Smith v Baker & Sons - Correct answer-- Claimant worked in quarry. Crane swung large rocks over his head without warning - Claimant complained several times (after seeing rocks falling many times - explicit that he did not accept the risk, but employer did nothing. Rock fell and injured claimant: not volenti - Merely because claimant knows of risk does not necessarily mean he accepts consequences of risk Volenti - Morris v Murray - Correct answer-- Claimant was volenti when he went on drunken joyride with defendant in stolen aircraft - Claimant knew defendant was not in fit state to pilot it..."flying is intrinsically dangerous and flying with a drunken pilot is a great folly", per Fox LJ Revill v Newbery - Correct answer-- Claimant, habitual criminal, shot by defendant while claimant was breaking into his shed; force used was disproportionate - Defendant liable, but claimant's damages reduced for contributory negligence - Ex turpi defence rejected on grounds that if applied, claimant (although a criminal and a trespasser) would be left without any remedy for his injuries Ex turpi - Cross v Kirby - Correct answer-- Claimant threatened the defendant with a baseball bat. Defendant snatched bat and hit the claimant on the head with it, fracturing his skull - Claimant held that this was not disproportionate force; furthermore ex turpi defence could be used, as the defendant had been under attack from the same weapon Volenti - Imperial Chemical Industries v Shatwell - Correct answer-- Claimant shot-firer employed by defendant. Claimant ignored defendant's orders and safety regulations by testing detonators without taking shelter. Claimant injured in explosion - Defendant warned him of risk of injury - claimant volenti Psychiatric damage - Chadwick v British Railways Boards - Correct answer-- Train collision, huge casualties. One train on top of other, crushing one below. Firemen get Chadwick, a small man who lives nearby, to crawl inside to administer first aid - even though he's not trained - Reasonable for Chadwick to fear for collapse of train - valid argument (primary victim) - He witnessed carnage, later suffering from depression - "Danger invites rescue". Judges want to compensate rescuers Psychiatric damage - McLoughlin v O'Brian - Correct answer-- Claimant saw her family after they had been removed from the scene of the car accident and taken to hospital. Saw 2 injured children and husband at hospital. Other daughter had died immediately - Secondary victim - not in fear of her own physical safety, and didn't actually witness the accident either - By witnessing the "immediate aftermath", she could get compensation from the defendant driver - extended liability Psychiatric damage - Hambrook v Stokes - Correct answer-- Damages awarded where mother, fearing for the safety of her children at the sight of a lorry careering towards them, suffered nervous shock and died as a result - Reasonable for her to believe that it was her own daughter, even though it wasn't. She was told that a girl wearing glasses had been injured, and took this to be her daughter - Secondary victim - not in reasonable fear for her own physical safety Psychiatric damage - Hunter v British Coal Board - Correct answer-- Claimant accidentally knocked badly sited water hydrant in coal mine. When 30 metres away, hydrant exploded, and 10 minutes later claimant was told co-worker was dead. Claimant blamed himself and developed psychiatric illness as result - Defendant not liable, as claimant not present at time of injury - secondary victim Psychiatric damage - Alcock v Chief Constable of South Yorkshire - Correct answer-- Claims for nervous shock by relatives and friends of victims of Hillsborough stadium disaster failed. Spelt out limits of scope of duty of care in nervous shock cases. Must be proximity in: - a) time - b) space - physical, geographical proximity - c) perception - perceiving through own eyes? or TV? - All 3 must be established for a secondary victim to be successful in his claim. People at the grounds who suffered psychiatric injury were secondary victims, but weren't actually under any danger themselves - Relationship between accident victim and sufferer: none of the claimants in Alcock proved a "close tie of love and affection" - Hedley-Byrne Principle: If the defendant holds himself out as having special skills may be liable for failure to exercise those skills. Prime example is medical negligence - negligently performing service - not medical negligence if medic didn't make the situation worse - general assumption of responsibility and skill to perform that duty/exercise Assumption of Responsibility - Smith v Eric S.Bush Co - Correct answer-- Claimant who purchased house could recover from surveyor who inspected property for bank, at least where claimant paid for survey - survey explicitly said that there is no responsibility to the purchaser - Claimant made a claim anyways for assumed responsibility - relied on defendant - court believed that claimant reasonably relied on survey Assumption of Responsibility - White v Jones - Correct answer-- Will made by father; cut daughters out of will after quarrel; later reconciled and father instructed solicitors to change will and give them £9000 each. Solicitors did nothing and father died - Daughters succeeded in claim for economic loss against solicitors, despite fact that they hadn't relied directly on solicitors Assumption of Responsibility - Stovin v Wise - Correct answer-- Defendant (the local authority) failed to order the removal a railway bank on railway land adjacent to the road. It had the power order the removal to improve road safety; it restricted visibility at the junction. Claimant, a motorcyclist was injured by a car that emerged from a side road - A statutory duty does not automatically give a private right of action. A statutory power does not create a common law duty to be exercised. Unless it would be irrational not to exercise that power - Defendant had no duty of care to claimant in respect of this hazard Gorringe v Calderdale Metropolitan Borough Council - Correct answer-- Defendant, local authority, responsible under Highways Act 1980 for the maintenance of a country road. Claimant drove too fast and collided with a bus suffering injuries. Claimant argued that defendant's failure to paint the word 'SLOW' on the road surface constituted a breach of its duty under the Highways Act and the Road Traffic Act 1988 - It was not possible to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty - Public authority cannot be liable for failure to provide a benefit just because has a statutory power to do so - Where the complaint was that the authority had done nothing, the action had to fail - Different if public authority assumes responsibility, misleads claimant, or if state of highway itself is hazardous Assumption of Responsibility - Kent v Griffiths - Correct answer-- Liability for delayed ambulance arrival causing brain damage, once defendant accepted call - assumption of responsibility - Distinguished Capital & Counties because fire brigade owes no duty to property owners but to the general public, while ambulances are like doctors and assume responsibility to individuals - Could also distinguish based on possible reliance (if doctor knew ambulance would be delayed, would have arranged other transport), and bodily injury vs property damage Floodgate - Tomlinson v Congleton BC - Correct answer-- Defendants displayed notices which said: 'dangerous water: no swimming', distributed warning leaflets, and employed rangers to enforce the no- swimming policy - Despite these efforts, many visitors continued to swim in the lake and the council concluded that the only way of dealing with the problem was to make the water less accessible and less inviting - Lord Hoffman - it is unjust that the harmless recreation of responsible parents and children on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious - The deprivation of liberty and undermining of personal responsibility that would result from "a grey and dull safety regime" - Lord Scott Nuisance - Hunter v Canary Wharf Ltd - Correct answer-- Private Nuisance is substantial and unreasonable interference with use and enjoyment of land. Types of nuisance: - Encroachment on land (e.g. tree roots) - Physical injury to land - Interference with quiet enjoyment of land - not absolute - No liability for defendants who constructed building which claimants claimed to have interfered with their television reception, denying them of their right of enjoyment in their own property - Lord Hoffman and Hope - right to television reception is not obtained, interference with it could not amount to a nuisance Nuisance - Fletcher v Rylands - Correct answer-- Defendant's reservoir flooded claimant's land - On appeal, Lord Cairns suggested only liable if use was non-natural - Bramwell B, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that as a result the defendant was guilty of trespass and the commissioning of a nuisance - If defendant brings something onto his property anything liable to do mischief if it escapes, strictly liable for consequences if it does Nuisance - Cambridge Water - Correct answer-- No liability for unforeseeable consequences of escape of chemicals. Escape need not be foreseeable but injury must be - Non-natural use required, but mere fact that use is beneficial to community does not make it natural Defamation - New York Times v Sullivan - Correct answer-- Ruling was that public officials cannot successfully recover damages for a defamatory falsehood unless he proves that statement was made with actual malice - knowledge that it was false or with reckless disregard of whether it was false or not - Basically means that the press can get away with publishing false defamatory information, even though it believed it to be true - unfair for the claimant Defamation - Reynolds v Times Newspapers Ltd - Correct answer-- Protects newspapers articles on matters of public concern or interest if defendant acted as responsible journalist in publishing it Defamation - Campbell v MGN - Correct answer-- Found liability for breach of confidence where newspaper disclosed details and photos of claimant's drug treatment - No liability for disclosing fact that claimant was addicted to heroin and in rehab, because of public interest, based on claimant's false denials - Now applies to information that defendant knows or ought to know is confidential, however acquired - Very difficult issues of balancing claimant's privacy interests against public right to know, and about photos taken on the street. Test is reasonable expectation of privacy Defamation - Von Hannover v Germany - Correct answer-- ECHR may require protection against both private and government invasions of privacy (horizontal effect), and that protection may extend to photos taken in public places, at least where press harassment Defamation - McKennit v Ash - Correct answer-- Found liability for book about singer that revealed details of her private life disclosed to friend in confidence - However, issue is normally whether it owes a duty of care Appellant - Correct answer-- A person who, dissatisfied with the judgment rendered in a lawsuit decided in a lower court or the findings from a proceeding before an Administrative Agency, asks a superior court to review the decision Public Bills - Correct answer-- A bill dealing with public policy that usually applies to the whole country Private Bills - Correct answer-- A bill presented to Parliament or Congress on behalf of a private individual, corporation, etc Hybrid Bills - Correct answer-- A public bill to which the standing orders for private business apply; a bill having a general application as well as affecting certain private interests Civil - Correct answer-- Of or relating to citizens and their interrelations with one another or with the state Civil Law - Correct answer-- A body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and Family Law;distinct from criminal or public law Common Law - Correct answer-- Also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals Divine Law - Correct answer-- Any law that, according to religious and non religious beliefs, comes directly from the will of God, in contrast to man-made law Egg-shell skull rule - Correct answer-- Doctrine that makes a defendant liable for the plaintiff's unforeseeable and uncommon reactions to the defendant's negligent or intentional tort - The defendant becomes liable for any injury that is magnified by the plaintiff's peculiar characteristics - If a tortfeasor inflicts a graver loss on his victim than one would have expected because the victim had some pre-existing vulnerability - You take your victim as you find him Foreseeability - Correct answer-- The facility to perceive, know in advance, or reasonably anticipate that damage or injury will probably ensue from acts or omissions Injunction - Correct answer-- A court order by which an individual is required to perform, or is restrained from performing, a particular act Jurisdiction - Correct answer-- Any authority over a certain area or certain persons. In the law, jurisdiction sometimes refers to a particular geographic area containing a defined legal authority Jurisprudence - Correct answer-- From the Latin term juris prudentia, which means "the study, knowledge, or science of law"; in the United States, more broadly associated with the philosophy of law Legal aid - Correct answer-- (Free) legal assistance provided, as by a specially established organization, for those unable to afford an attorney Litigation - Correct answer-- An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute Material fact - Correct answer-- A fact that influences the decision of the court Natural Law - Correct answer-- A law or body of laws that derives from nature and is believed to be binding upon human actions apart from or in conjunction with laws established by human authority Negligence - Correct answer-- Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party Obiter dictum - Correct answer-- Words of an opinion entirely unnecessary for the decision of the case. A remark made or opinion expressed by a judge in a decision Omission - Correct answer-- Failure to perform an act agreed to, where there is a duty to an individual or the public to perform/fulfill the act Precedent - Correct answer-- A judicial decision that may be used as a standard in subsequent similar cases Prima facie - Correct answer-- A fact presumed to be true unless it is disproved Proximity - Correct answer-- The existence of a pre-trot relationship between a claimant and a defendant, prior to the infliction of damage Ratio decidendi - Correct answer-- The ground or reason of decision Reasonable man - Correct answer-- A phrase frequently used in Tort and Criminal law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability Remoteness of damage - Correct answer-- Relates to the requirement that the damage must be of a foreseeable type. Claimants must also demonstrate that the damage was not too remote Stare decisis - Correct answer-- Precedents are binding and must be followed Statute - Correct answer-- A law enacted by a legislature Tort - Correct answer-- Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought Trespass - Correct answer-- To commit an unlawful injury to the person, property, or rights of another, with actual or implied force or violence, especially to enter onto another's land wrongfully Vicarious liability - Correct answer-- The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as parent and child, employer and employee, or owner of vehicle and driver), to exercise such care as a reasonably prudent person would use under similar circumstances Defamation - Slipper BBC, McManus v Beckham - Correct answer-- each new statement that is repeated is a new publication. Original defendant liable if foreseeable, and repeater may also be liable Defamation - Bookbinder v Tebbit - Correct answer-- charge that defendant wasted money on specific occasion not justified by proof he did so on other occasions Defamation - London Artists v Littler - Correct answer-- must be matter of public interest, and must be opinion, not fact Defamation - Reynolds v Times Newspapers - Correct answer-- protects newspaper articles on matters of public concern or interest if defendant acted as responsible journalist in publishing it Evans v Triplex Safety Glass - Correct answer-- claimants sued for windscreen which had broken, showering them with glass - failure to prove that defendant's negligence caused the windscreen's disintegration - damage could have occurred even if defendants had taken all reasonable care Sidaway - Correct answer-- less than 1% risk of damage to spine, but doctor failed to warn patient of risk which actually materialised - no liability because disclosure of risk was not really necessary Rouse v Squires - Correct answer-- where there is an obstruction in the road, there is a break in the chain of causation between the prior negligent act which caused the obstruction and the immediate consequences of the latter negligent act of a driver on the highway who causes an accident Pitts v Hunt - Correct answer-- claimant, passenger on motorcycle, and defendant engaged in drunk and reckless driving - claimant was encouraging to drive more negligently - ex turpi applied, but volenti not available Chaudhary v Prabhakar - Correct answer-- defendant gave poor advice to friend, telling claimant not to get car inspected by a mechanic - held liable Griffiths v Arch Engineering - Correct answer-- nowadays it is reasonable to expect an examination of the goods by manufacturers Muirhead v Industrial Tank - Correct answer-- no compensation for hypothetical, possible profit gained - can recover consequential losses but not speculative losses Wright v Lodge - Correct answer-- first defendant's car broke down in road. Second defendant recklessly drove too fast, crashing into first defendant's car and injuring claimant in another car - first defendant not liable because second defendant was reckless, breaking the chain of causation - contributory negligent Froom v Butcher and Owens v Brimmell - Correct answer-- contributory negligence for not wearing seatbelt, injury being worse than could have been wearing seatbelt Wilsons & Clyde Coal - Correct answer-- employer must provide competent staff, adequate material, proper system and effective supervision Airedale NHS Trust v Bland - Correct answer-- no consent to a medical procedure is battery