Tort Lawcards 2012-2013

Routledge

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136595684
• Edition: 8
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Routledge Lawcards are your complete, pocket-sized guides to key examinable areas of the undergraduate law curriculum and the CPE/GDL. Their concise text, user-friendly layout and compact format make them an ideal revision aid. Helping you to identify, understand and commit to memory the salient points of each area of the law, shouldn't you make Routledge Lawcards your essential revision companions?

Fully updated and revised with all the most important recent legal developments, Routledge Lawcards are packed with features:

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Titles in the Series: Commercial Law; Company Law; Constitutional Law; Contract Law; Criminal Law; Employment Law; English Legal System; European Union Law; Evidence; Equity and Trusts; Family Law; Human Rights; Intellectual Property Law; Jurisprudence; Land Law; Tort Law

Negligence

What are the key elements of negligence?
Under what circumstances does a duty of care exist?
What are the rules on nervous shock/psychiatric injury?
When can you recover for economic loss?
When is there liability for making negligent statements?
How is the duty of care breached?
What is the standard of care?
Do the same rules apply for trainees and experts?
How do you prove a breach of duty?
How does the ‘but for’ test apply? Is it ever modified?
What is the significance of a novus actus interveniens?
When is damage too remote?
When is an employer vicariously liable for torts committed by an employee?

NEGLIGENCE

Negligence forms the largest area of tort. In essence, negligence is a breach of a legal duty to take care of another which then results in loss or damage to the claimant. This breaks down into four components which must be proven by the claimant in order to establish negligence:

The claimant must be owed a duty of care

There must have been a breach of duty

The breach of duty must have caused damage to the claimant

The damage suffered by the claimant must not have been too remote.

Negligence is concerned with duty, breach, causation and remoteness. Each of these components will now be covered in turn.

DUTY OF CARE

DUTY SITUATIONS

The tests for determining the existence of a duty of care have changed. Prior to 1932, there were numerous incidents of liability for negligence but there was no connecting principle formulated which could be regarded as the basis of all of them. These were referred to as ‘duty situations’.

THE NEIGHBOUR PRINCIPLE

The first attempt to create a rationale for all the discrete duty situations was made by Brett MR in Heaven v Pender [1883], but the most important formulation of a general principle is that of Lord Atkin in Donoghue v Stevenson [1932]. This is known as the ‘neighbour principle’:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.

THE ‘TWO STAGE’ TEST

The ‘neighbour principle’ is a test based on reasonable foresight of harm and is a very wide concept. It needed further refining.

In the 1970s, there were attempts to extend it by defining it as a general principle. In Home Office v Dorset Yacht Co Ltd [1970], Lord Reid said, ‘[the neighbour principle] ought to apply unless there is some justification or valid explanation for its exclusion. This led to Lord Wilberforces's ‘two stage’ test in the case of Anns v Merton LBC [1977]:

First, one has to ask whether … there is a sufficient relationship of proximity … in which case a prima facie duty arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any policy considerations which ought to negative, or to reduce or limit the scope of the duty.

THE ‘THREE STAGE’ TEST

Lord Wilberforces’ general principle in Anns soon came in for heavy criticism. This began with Lord Keith in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1984] when he said that, in addition to proximity, the court must decide whether it is ‘fair, just and reasonable’ to impose a duty of care.

The case of Murphy v Brentwood District Council [1990] marked the death knell for the ‘two stage’ test by overruling Anns. Murphy talked of adopting an ‘incremental’ approach to determining the existence of a duty of care. The most recent formulation of the principle comes from Caparo Industries plc v Dickman [1990].

CAPARO INDUSTRIES PLC v DICKMAN [1990]

Basic facts

The appellants had undertaken the annual audit of a public company following the regulations laid out in the Companies Act 1985. The respondents were members of the company and had relied on the accounts to make a successful bid to take over the company. The respondents alleged that the accounts had been prepared negligently and their reliance on them had caused them a loss as a result. The House of Lords had to decide whether the appellants owed the respondents a duty of care in the preparation of the accounts.

Relevance

When assessing whether a duty of care was owed the courts will take into account the following criteria (the ‘three stage test’): i) reasonable foreseeability of harm; ii) proximity of relationship; iii) whether it would be fair, just and reasonable to impose a duty.

The reaction against the ‘two stage’ test was primarily focused on the fact that it created a massive extension to the tort of negligence. The ‘incremental’ approach avoids such an increase; instead, the tort of negligence is developed by analogy with existing cases. Any novel type of situation would have to show that it is analogous to an existing situation where a duty is owed and that it would be just, fair and reasonable to impose a duty of care in the circumstances.

POLICY CONSIDERATIONS

Policy plays a vital role in determining the existence of a duty of care. It can be defined as the departure from established legal principle for pragmatic purposes. Cases such as Donoghue v Stevenson and Anns consider policy expressly, whereas the approach followed in Caparo and Murphy is to consider policy impliedly and merge it in to other considerations such as ‘proximity’ and whether it is ‘fair, just and reasonable’ to impose a duty.

WHAT ISSUES OF POLICY ARE COMMONLY RAISED?

1 To allow a claim would open the ‘floodgates’ and expose the defendant to an indeterminate liability.

The courts are always keen to limit liability to a determinate amount and to a determinate class of persons. For example, in Weller & Co v Foot and Mouth Disease Research Institute [1965], the claimants were auctioneers who lost money on account of being unable to hold their auctions as a result of the defendants’ negligence in allowing the foot and mouth virus to escape, which led to restrictions on the movement of cattle. It was said by the court that their damage was ‘foreseeable’, but so was the damage to ‘countless other enterprises’. It would have been equally foreseeable that cafés or newsagents in the market town would also lose money. The burden on one defendant would be insupportable and policy had to act to limit liability.

2 The imposition of a duty would prevent the defendant from doing his job properly.

This leads to a class of what have been termed ‘protected parties’ – persons who enjoy immunity from suit:

judges and witnesses in judicial proceedings enjoy immunity on grounds of ‘public policy’;

barristers and solicitor-advocates. Lawyers used to enjoy immunity from suit concerning their conduct of cases in court: Rondel v Worsley [1967]. However, this case was overruled by the House of Lords in Hall v Simons [2000], Lord Steyn commented that public policy was not immutable, and had changed since 1969. The court emphasised that an advocates’ primary duty is to the court, and that performing this duty could never amount to negligence in the conduct of the clients’ case.

There is a public policy immunity for the carrying out of public duties by public bodies, unless that public body has assumed a responsibility to the individual. It is thought that to impose a duty in this situation would interfere with the way in which public bodies carry out their tasks. The immunity originates with the case of Hill v Chief Constable of West Yorkshire [1988]. The mother of the last victim of the Yorkshire Ri...