#19822 - Aqa Tort Law - AQA A-Level Law (with Contract Law)

Tort law overview

Topics:

• Negligence

• Psychiatric injury negligence

• Economic loss negligence

• OLA 1957

• OLA 1984

• Private nuisance

• Rylands v Fletcher

• Vicarious liability

• Standard defences

  • Consent volenti

  • Contributory negligence

• Remedies

Negligence

Introduction - Blyth v Birmingham Waterworks

Duty of care

• Robinson: if a similar duty/case already exists, automatically apply that duty. Examples: road users, medical staff, manufacturers.

• Caparo test (for new situations):

  • reasonably foreseeable harm? (Kent v Griffiths)

  • sufficient proximity? (Bourhill v Young)

  • fair, just and reasonable to impose duty? (Hill v CC WYP – FJR for police omissions) (Robinson – FJR for police acts)

Breach

D needs to achieve a standard of care (Reasonable Person Test - Blyth):

• Adult - reasonable care (Wells v Cooper).

• Child - whether they can appreciate the risk due to their age (Mullin v Richards, Orchard v Lee).

• Learner - standards of professional (Nettleship v Weston).

• Professional - ordinary skill of ordinary professional (Bolam v FHMC).

Considerations:

• Claimant characteristics (Paris v Stepney).

• Magnitude of risk (Bolton v Stone).

• Cost of precautions (Latimer v AEC).

• Knowledge of risk (Roe v Minister of Health).

• Social utility (Miller v Jackson). Emergencies (Day v High Performance Sports).

Causation

Factual - but for (Barnett v Chelsea and Kensington).

Legal – remoteness (type of harm) (The Wagon Mound, Hughes v Lord Advocate). Egg-shell rule.

Defences

• Volenti (Pitts v Hunt)

• Contributory negligence (Pitts v Hunt)

Remedies

• Damages (special - specific monetary costs before and during trial/ general - long term/future monetary and non-monetary costs).

*Res Ipsa Loquitur - shifts burden of proof to defence when D was clearly at fault (Scott v London).

Negligence – psychiatric damage

Initial rule: must be a ‘positive psychiatric illness’ (Lord Bridge); cannot be mere ‘shock’.

Medically recognised conditions that suffice:

• PTSD (Leach v CC Gloucestershire).

• Pathological grief (Vernon v Bosley).

• Personality Disorder (Chadwick v BRB).

• Trauma-Induced Miscarriage (Bourhill v Young).

Normal distress/sadness/grief/anxiety is not enough (Hinz v Berry / Rothwell v CI Co).

As a general rule, if the symptoms suffered are longer term, the more likely it will suffice. Conversely, short term symptoms will generally fall under normal issues.

Second rule: The psychiatric harm must be caused by a sufficiently shocking event. Either was a sudden and unexpected shock (Vernon v Bosley) or as a slow onset (not over a long period of time, perhaps up to 2 or 3 days) (Walters v North Glamorgan NHS Trust).

Third rule: duty, breach and causation.

Duty of care – different tests for the two types of victims.

Primary victims – duty of care exists if:

• Physically injured (Simmons); or

• Not physically injured but at risk of foreseeable physical injury (no need for specific type of harm to be foreseen) (Page v Smith) and has reasonable fear for injury (McFarlane). This can include rescuers (White).

Secondary victims – duty of care exists if satisfies the Alcock tests:

• Foreseeability:

  • Appreciation of the event with their own unaided senses. Whether it was reasonably foreseeable a person of reasonable fortitude in C’s position would suffer psychiatric illness (White)

• Proximity:

  • Close tie of love and affection to a primary victim. There is a proximity relationship with the primary victim consisting of ‘close ties of love and affection’. This automatically includes spouses and parents, but this can be rebutted. This can include those close in care (Alcock), rescuers (White), bystanders (Bourhill), and (sometimes) those who caused the primary victim’s injuries (Hunter v British Coal).

  • Proximity to the event or its immediate aftermath: there is a proximity at the scene or immediate aftermath (McLoughlin and Tan v East London AHA).

Breach of duty – normal negligence test.

Causation – normal negligence test.

Remedies and Defences if applicable.

Other points:

• Secondary victims cannot sue primary victims if the primary victims caused the injury (Greatorex v Greatorex).

• Sometimes seeing damage to property could suffice a claim (Attia v British Gas).

• Sometimes being presented with negligent injurious news can suffice a claim (Allin v CHHA).

Negligence – economic loss

First rule: for economic loss to be claimed in negligence, the Caparo test and standard negligence rules (duty of care, breach of duty, causation) must be first proven.

Second rule: pure economic loss is not recoverable when the loss cannot be directly traced back to the harm. There are three exceptions to this:

Economic loss due to physical damage due to negligence

Must be loss stemming directly from the physical damage; cannot be lost future profit (Spartan Steel and Alloys v Martin). Thus, usually cost of repair/replacement of damaged matter and loss of profit damaged matter was supposed to bring in.

Economic loss due to acquiring defective goods/property due to negligence

Unlikely loss could be recovered from this (Murphy v BDC). This overturned the previous cases suggesting otherwise, which is where this exception stems from (Anns v MLBC / Junior Books v Veitchi).

Economic loss due to negligent misstatement

Purely economic loss can be recovered if four conditions are satisfied (Hedley Byrne v Heller):

• Special relationship must exist – usually where one party acts as an expert advisor (Cornish v Midland Bank). This does not need to be a professional relationship (Chaudry v Prabhakar).

• Expert party must voluntarily assume risk of misadvising – having disclaimers will negate liability (Hedley Byrne v Heller).

• Other party must rely on the advice/statement – if situation involves two expert parties, the party not giving advice can still rely and satisfy this (Esso Petroleum v Mardon).

• Reliance on advice/statement must be reasonable and foreseeable (Law Society v KPMG Peat Marwick).

Specific situations to consider:

• Claimant need not have requested the advice, just have been one of the target audiences (Smith v Eric Bush).

• If advice/statement is used for something other than its original purpose, cannot recover losses (Caparo / MMC v Lloyd’s RS). This is unless defendant deliberately does this knowing a third party will use it for another purpose (Morgan Crucible v Hill Samuel).

• Theoretically silence when otherwise usually advising may lead to recoverable losses, but this has never been upheld in practice (BKU Insurance v Skandia).

• Public authorities can be liable for negligent misstatement, but initially presumed not liable (Welton v NCDC). More likely liable for when the authority makes a situation less safe, rather than more safe (Harris v Evans).

OLA 1957

Introduction

• Define tort (there is a danger due to the state of the premises that causes injury to the claimant, which the occupier should have reasonably protected the visitors against), state tort contained in OLA 1957.

Define occupier

• sufficient control/ownership of premises (Wheat v E Lacon).

Define visitor

• has permission to access the premises, either invited expressly/impliedly or has a statutory/contractual/licensed right of entry.

• trespassing children are treated as visitors when there is an allurement (Jolley v LBS).

Danger

• Must be a danger on the premises (a risk of injury).

• Must be due to the state of premises (S1(1), Martin v Middlesbrough).

• Premises are land, buildings, some structures (S1(3)).

Duty

• Occupier owes 'common duty of care' to all visitors (S2(1)).

Breach

• Occupier must take reasonable care to ensure visitors are safe (S2(2), Laverton v KTS).

• Standards of care:

• Adults - regular standard (Clare v Perry).

• Children (s2(3)(a)) - below approx 8y/o, occupier can rely on parent to keep child safe. Between approx 8-14, debatable. Above approx 14y/o, occupiers owes a slightly higher standard (Phipps v Rochester, Glasgow).

• Tradespeople (s2(3)(b)) - owe less care as they should be responsible for risks relevant to their trade, when consequence occurs during the tradesperson exercising a calling (Roles v Nathan).

Causation

Factual - but for test (Barnett v Chelsea and Kensington).

Legal - remoteness (how reasonably foreseeable) (The Wagon Mound). Egg shell can apply (Smith v Leech Brain).

Defences

• Volenti (S2(5)).

• Contributory negligence (S2(3), Geary v Wetherspoon).

• Exclusion clauses (S2(1)) - excludes duty of care (businesses cannot exclude death/personal injury - S65 Consumer Rights Act 2015).

• Warnings (S2(4)(a)) - occupier must give sufficient warning to achieve reasonable safety. If danger is serious/unusual, warning is not enough (Rae v Mars). If danger is obvious, no need to warn (Bogle v McDonalds).

• Independent contractors (S2(4)(b)) - when danger is caused by faulty contractor work and occupier checks: 1, contractor is competent, and 2, work is completed properly. For 2, if work is simple, always need to check (Woodward v Mayor of Hastings); if work is technical, no need to check (Haseldine v Daw).

Remedies

• Damages (special - specific monetary costs before and during trial/ general - long term/future monetary and non-monetary costs).

• Personal injury and damage to property.

OLA 1984

Introduction

• Define tort (there is a danger due to the state of the premises that causes injury to the claimant, which the occupier should have reasonably protected the trespassers against), state tort contained in OLA 1984.

Define occupier

• Sufficient control/ownership of premises.

Define trespasser

• No permission or beyond permission (Tomlinson v Congleton).

Danger

• Must be a danger on the premises (a risk of...