Documente Academic
Documente Profesional
Documente Cultură
Intro
September-22-14 8:09 AM
What is it?
- Civil wrong
Civil: against private persons (as opposed to public, which is taken care of by criminal
law)
Legal wrong against another legal person (companies)
- Tort v Criminal Law
Looks similar because certain actions that are crimes are also torts
Driving+texting+running someone over
Theft, battery, trespass/breaking and entering, etc
Criminal law doesnt grant individuals rights (state prosecutes, not individuals)-in tort
the individuals affected can actually sue
- Wrongdoing:
Rights and Breach of Duty 2 sides of the same coin
Duty not to hit you
Right not to be hit
Must coexist for jurisdiction inside tort law
Sometimes the law imposes a duty where there is no right, this is not
tort law
- Only holder of right can sue
Defaming lady gaga, and company that holds right to use lady gaga's name in shoes loses
money
Lady gaga can sue but company can't because the company cannot say that it has
a right for Lady gaga not to be defamed
Contract vs Tort
- Contractual rights are entered into voluntarily outside of tort
- Tort laws are given to everyone (intrinsic rights)
Morals
- Strong moral language in discussion of torts
Separate moral rights/legal rights
Woman used to be husband's property, adultery used to be tort of trespass
Some examples of protected interests (Torts protects interests, usually begin discussion about why
this tort exists by first discussion the interest it tries to protects)
Physical integrity (battery, assault)
Personal property (conversion)
Liberty (false imprisonment)
Compensation
- Partly true-but many losses we suffer aren't covered
- Tort only covers wrongs that are prescribed under tort law
Damages-> compensation
Injunctions: not compensation
Negligence
- Seems now the prevailing law
Harassment
- Protection from Harassment Act 1997
Civil/criminal sanctions
Serious enough to constitute a crime
Claimant: individual victim
Sec. 1 (1)
Elements
Alarming or causing distress
Oppressive and unacceptable
Majorowski v Guys & Thomas
Oppressive or unacceptable: constant abuse sufficient
Unattractive/unreasonable not enough
Thomas v News Group
Newspaper wrote articles about person who complained
to police HQ and got two police officers fired
Lots of complaints and threats against that person
Court decided articles individually do not amount to
harassment
Fairly high threshold
Ferguson v British Gas
B Gas sends F letters telling her she hasn't paid, but she
has and is no longer with the company
Judge said a reasonable jury could convictn
Course of conduct
Closer time between actions=more likely to be tort
Objective standard of knowledge S.1(2)
Threshold reasonable person
No thin-skull rule
Exceptions
S.1 (3)1
If actions are pursued for preventing/detecting crime
Pursued under any enactment or rule of law
That in the particular circumstances the4 conduct was reasonable
Historical Foundations
-
Historical Foundations
September-28-14 2:29 PM
So two types of-when does one sue for trespass and when does one sue for case?
- Reynolds v Clarke
- If one throws a log and hits someone on the face, it's trespass
- If one throws a log on the road and someone trips it over after a while, it's case
- Main difference is no direct application of force
- Judicature Acts 1873-5
- Direct/indirect causation abolished
Shifts focus on distinction between intention and negligence
Intention
- Intention to perform acts that constitute a tort or to bring about consequences that constitute
a tort
- Need not intention for consequences for tort, e.g. harm/injury
- Includes knowledge of substantial certainty
Causal consequence/action must not be crazy
3 taps to bring down the roof
Objective certainty/probability of consequence is enough
- Don't confuse motives with intentions
Battery
September-28-14 2:39 PM
Requirements
- Intentional (positive act)-not omissions
R v Santa Bermudez
Positive act
- Directly resulting in
- Unlawful
- Contact/touching/application of force
Every part of a person's body is inviolate, including clothes
Can apply force with tools
Scott v Shepherd [1773]
Firecracker thrown, hits person, sued
DDD v K1 WLR 1067
A put acid in hand sanitizer, person got burned
Although force was not immediate, it was directly applied to victim's body
(no requirement for instantaneous application of force)
- With another
Unlawfulness
- Touching in "anger"
Cole v Turner
- Absence of consent
- Re F: F v West Berkshire Health Authority (1990)
Not generally acceptable in the ordinary conduct of daily life
Assault
October-01-14 12:19 PM
Elements
- To intentionally
- Cause by a direct act
- Reasonable apprehension of
No need to intend for apprehension by victim
- Imminent infliction of
- Unlawful force
No actual infliction need occur
Apprehension
- Objective standard for reasonableness
1. Must prove apprehension-not fear (afraid)
2. No thin-skull rule here: objective!
i. However, If D was aware of frailty, then it is a tort
Assault Battery
Throw Water at someone If any drops land on them
Riding horse at person Riding a horse against person
False imprisonment
October-01-14 12:35 PM
Elements
- Unlawful
- Intentional detention of another
- Directly resulting from
- A positive act
Interests protected
- Liberty, freedom, personal autonomy
Intention
- Intention to perform action that causes the imprisonment
Need not intend for the person to be imprisoned
- Iqbal v POA
Police officers go on strike and do not let prisoners out of their cells as per routine
Prison guards win appeal
One reason used was that the prison guards didn't intend for the prisoner's
perpetual imprisonment
Another reason was that there was no positive act
Prolonged action?
- Assuming Iqbal's reasoning stands, there would now be a requirement for intention
Can still sue for negligence if you stayed in a museum and got accidentally locked in
Directness
- Davidson v CC of North Wales
Students in store, thought to be stealing but weren't
Store detective told police who came to take them away
Students sue store detective for causing them to be falsely imprisoned
Court held not liable
Claimant said police was a tool used by the detective, and detective was
main actor
Defendant said police held agency and that it was their call
Scott v Shepard
Agency is a big factor in determining directness
Defences
October-01-14 2:10 PM
Consent
- Capacity
Ability to understand circfumstances and implications of proposed interference
When consent is vitiated
No full knowledge of material facts
Chatterton v Gerson 1981
Claimant must know broad terms of nature/risk
Focus on knowledge of claimant, not on what knowledge was
conveyed
What was known not what was given
Consent to what?
Blake v Galloway 2004
No need to consent to specific injury but risk of injury
Fooling around and get hit in the eye
Risk of that happening, consent!
Material facts
Motives
KD v Chief Constable of Hampshire
Rape victim consoled by police who didn't have to under
regulations, but did so to get closer to the victim
Police says she consented
Court rules she did not consent to the police's
motivations, so police did commit tort
Identity
R v Richardson 1999
Fake dentist does operation
What about HIV/im rich, have sex with me cases etc?
Duress
- Latter v Braddell 1880
Must be threat of physical force
Pressure for maid to undertake physical examination
Economic/authoritative duress not sufficient
Fraud
- Information withheld
If info is withheld in bad faith, it is automatically material
Chatterton v Gerson
Withdrawal of Consent
- Must give reasonable time to stop
Hard v Weardal Steel Cole 1915
Self-Defence
- Response must be proportionate
Cross v Kirby 2000
Private necessity
- Not like in criminal
- To perform unlawful act to prevent greater harm
Party t4respassed may not be source of threat
I destroy your burning house to save my own, though fire may have originated
I destroy your burning house to save my own, though fire may have originated
elsewhere
- Rarely allow personal harm
Re S 1993 Fam 123
St. George Health Care v S 1999 Fam 26
Mother/fetus and conjoined twins cases are exceptions
Can kill one to save the other without consent, etc
Why are these cases special?
Trespass to Land
October-08-14 11:29 AM
Elements
- Corsses boundary onto land
- Possessed by b
- When he has no lawful justification for doing so
- Or if eh causes some object or matter to move directly onto land possessed by B
When he has no lawful justification for doing so
- Must prove trespass was direct result of A's actions
Not if this was an indirect consequence
Not a consequence
Or he had lawful justification
Conduct requirements
A. Physical movement
a. Smith v Stone
i. Being carried onto land forcefully not trespass
ii. Would be trespass if done so under duress
b. Braithwaith v South Durham Steel Co.
i. If it was a leap of instinctive panic, then no trespass
B. Inanimate Objects
a. Direct vs indirect result of D's actions
i. Degree of D's control over the movement of the thing
1) If D throws a rock over the boundary it is direct
2) If D releases toxic fumes somewhere else that float to the land it is indirect
a) Also indirect if person loses control of car and it crashes onto land
b. Direct/indirect not intentional/unintentional
i. D hits ball intending it to stop just before land of C, but it goes beyond
1) Unintentional, but still direct
ii. Conarkent Group v Network Rail Infrastructure
1) If a driver attempts to drive his truck under a bridge thinking that its height
was adequate but it wasn't and he crashes into bridge, he is liable for
trespass
a) Not intentional, but direct
c. Animals
i. Hard to determine because animals harder to control
1) Not necessary to determine sometimes
a) Strict liability for damage caused by livestock on another's property
b) Therefore mostly regards to animals that are neither livestock or
dangerous animals
ii. Buckle v Holmes
1) Cat killed chicken on another's land
2) Held that cat belonged to class of animals not generally confined and
unlikely to cause substantial damage on straying
a) Not a tort if cat strayed onto someone elses land and causes damage
b) Would be tort if owner sent cat
iii. League against Cruel Sports v Scott
Park J: master of hunt would be liable for tort of trespass if he is negligent in
preventing them to do so
Hard to reconcile with Buckle v Holmes
Intention and Fault
- C does NOT have to prove that D
Intended to trespass on land possessed by B when crossing the boundary
When D crossed the boundary he knew or ought to have known that there was a risk he
When D crossed the boundary he knew or ought to have known that there was a risk he
would be trespassing on C's land
- Honest mistake is no defence.
Defences
-
Defences
October-08-14 12:48 PM
License (consent)
- No trespass if C gives D a license
Trespass if he stays beyond term of license or
Fails to leave when license withdrawn
Some licenses are under contract
Distinguish between cases where withdrawal of license is breach but still
effective and others when it is ineffective
Necessity
- Esso Petroleum v Southport Corporation
D dumped oil that ran onto C's land because they were about to capsize
However, defendants would not be permitte4d to rely on defence if predicament
was result of their own negligence
Only available during immediate danger/emergency
- Southwark LBC v Williams
Did not stretch to cover homeless people who made orderly entry into empty property
Title to Sue
October-08-14 1:07 PM
The sky?
- Anchor Brewhouse Developments v Berkley House
Overhanging cranes, etc
Deprivation of enjoyment of land required
The land?
- As deep as humanly possible-not required for deprivation of enjoyment of land
Bocardo SA v Star Energy UK
Remedies
October-08-14 1:16 PM
Nuisance
October-08-14 5:33 PM
Public nuisance
- Primarily a common law crime
Nuisance that materially affects the reasonable comfort and
convenience of life of a class of the public within sphere of
its operation
Obstructing highways, selling food unfit for human
consumption, etc.
Actionable in civil cases only when one can demonstrate
losses suffered above normal people's suffering
Private nuisance
- Coventry v Lawrence
Interference is indirect
- Hunter v Canary Wharf
3 types of private nuisance
Encroachment on a neighbour's land
Direct physical injury to neighbour's land
Interference with a neighbour's quiet enjoyment of his
land
Reasonable user principle
- Cambridge water v Eastern Countries Leather
Objective interpretation of "reasonable" in facts
What level of interference can C be reasonably expected to
put up with?
Irrelevant that D is acting in good faith (all steps taken
to reduce interference)
to reduce interference)
Sometimes looks like strict liability
Irrelevant C's subjective perception of his own
endurance of interference
Objective standard!
Emanation Cases
October-12-14 12:36 PM
Personal injury
- Suffering personal injury does not affect land, no nuisance
Acid smoke goes onto C's land and blinds her, no action because land unaltered
Reasonableness
October-09-14 11:12 AM
Intensity
- How loud is the noise? How intense of the fumes?
Kennaway
Boatclub that used lake for watersports, boat engines improved over years and
became noisier
Duration
- Time of day that interference occurs
Halsey v Esso Petroleum
2pm OK, 2am not OK
- Frequency
Barr v Biffa Waste
- One-off event amount to nuisance?
In some appropriate circumstances, yes
Crown river cruises v Kimbolton Fireworks
Fireworks debris falls on boat just once, considered nuisance
Temporary events usually reasonable
Harrison v Southwark and Vauxhall water
- Need for a link to "continuing dangerous state of affairs"
British celanese v Hunt
Geese flies into generator and causes nuisance
Could have done so before, this was always a possibility, dang. situation
Character of Neighbourhood
- Sturges v Bridgeman
What an nuisance in Belgrave is not the same in Bermundsey
- Exception
St. Helens Smelting v Tipping
Alkali factories bult near estate
Damage to crops, trees, cattle on estate
D says alkali fumes character of neighbourhood
Court
If material injury to property suffered, then character of neighbourhood
discounted
- Should defendant's own activities contribute to character of neighbourhood?
Coventry v Lawrence
What if the environment was a little less noxious?
Special sensitivity of C
- In principle is irrelevant
Robinson v Kilvert
C and D rent property in same building
D made boxes in basement and needed heat
C was paper merchant whose paper got destroyed because of heat
Court ruled that the heat was not unreasonable objectively, so no claim
McKinnonn Industries v Walker
C suffered loss due to D's fumes
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Malice
- If D seeks to interfere, is this in itself enough?
Where reasonableness is unclear, this can be a factor
- Christie v Davey
C played piano loudly, D wants to get back at him and starts banging pots and pans in his
house
Court
The nuisance was borderline, but since he did it deliberately it was actionable
- Hollywood Silver Fox Farm v Emmette
D didn't want silver fox farm where he lived
Silver foxes very sensitive
D and his son starts shooting into the air at the border between the two
properties
Wanted to disrupt fox business
Court states this is nuisance
If activities were not malicious it would have been ok
- Bradford v Pickles
D owned a reservoir of water that flows into a town, C
D stopped providing the water to C to force the town to buy his property
Malice intend irrelevant, because C had no rights to the water anyways
Not nuisance
Irrelevant Factors
- Planning permission not license to commit nuisance
Doesn't affect nuisance, but does authorise a change in neighbourhood
Gillingham BC v Medway Dock
Residential area becomes commercial
Court says it's OK, can't assess level of traffic now that it's a
commercial sport area
If planning permission changes character of neighbourhood,
disturbance OK
Allows administrators to change private law?
Bar v Biffa Waste
General planning permission vs detailed environmental permit
If permit was detailed enough, then cannot be sued for nuisance (latter OK)
Wheeler v Saunders
Well-run pig farm not OK
Planning didn't change area to industrial area, so odor not OK
Conventry v Lawrence
Facility with planning permission not relevant
Confirms good law
However, greater relevance in realm of remedies
Coventry
Contrast of opinions between judges on remedial effect
- Utility of D's conduct
No matter the beneficialness of D's actions
Miller v Jackson
Dennis v Mod
Only may be relevant in remedies (E.G no injunction, only damages)
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Obstruction Cases
October-12-14 4:14 PM
- Complaint that something has been obstructed from coming onto his land
- When does a claimant have a right to have something cross his neighbour's land without
obstruction?
Light, Air, Water, Earth
Light
- Colls v Home and Colonial
Landowner may acquire right through grant/prescription
If enjoyed for a certain period of time, will gain right to it
- Does not apply to a beautiful view
No right to beautiful view/right to not see an ugly view
Air
- No general right to receive air or wind that would otherwise come onto your land
Unless air flows to a defined aperture in C's land, such as a ventilator
Water
- Right to water subject to ordinary use by those upstream
- Bradford v Pickles
No right to water that flows in undefined channels under neighbour's land
Earth
- Claimant must establish a right to that withdrawn benefit
- If B digs under A's land and A's buildings lose support
A must prove he has right to support
Not exist in common law-only restrictive covenant
Passive Nuisance
October-14-14 8:55 PM
Defences
- Prescription
20 years use of right (granted easement)
Do in the light (able to be seen by C)
Do as if you have right
Do without violence
C should know he could have brought claim during those 20 years
Coventry v Lawrence
- Statutory authority
Nuclear power plants immune to nuisance suits
Usually phrase dot impliedely exclude nuisance claims
Barr v Biffa waste
If nuisance is a certainty in following with the statutory authority then it is OK. On
Remedies
- Abatement (self help), court doesn't really like this
- Damages
One-off, or if nuisance has finished
Cost of repairs reflect diminution of property
- Injunction
Ongoing nuisance
Best remedy sought
Shelfer Crieteria for refusal of injunction
Shwo legal rights of D small
Can be estimated by money
Adequately compensated by money
Oppressive to D if injunction
Harrier jets
Where nuisance is a public interest
Coventry v Lawrence
Reinstates injunction as prima facie remedy
Damages are in discretion of judge
Shelfer criteria useful, but not absolute
Much more flexibility for judges to choose remedy
Where planning permission has been granted, very likely damages in lieu of
injunction
Rylands v Fletcher
October-14-14 9:26 PM
Rylands v Fletcher
- Facts
D built reservoir on land built by 3rd party
Water poured into C's land and caused damage
Can't find 3rd party
D was not negligent in selecting 3rd parties
- Not classical nuisance
L Blackburn
If one creates a dangerous situation on your land, you should be strictly liable for
any harm done that occurs
But for his act, no mischief would have occurred, basically by creating the risk he
takes on liability
Ross v Fedden
Rule has been present for 300 years, but not quite true
Why retain R v F
- R v F not end of story: usually supplemented with other suits of negligence, etc.
- R v F merged in other jurisdictions such as australia
Transco
Standard of care varies with situation
Bingham gave 4 reasons for etaining R v F
Just to impose consequences in absence of fault
Existing rules presupposed R v F stays, so some unexpected consequences
R v F only reaffirmed decade earlier
Other legal systems have similar rules, so R v F has role in modern law
Elements
October-15-14 12:54 AM
Defences
Defences
October-15-14 7:18 PM
Act of God
- Freak weather event
- Courts increasingly conservative
Nichols v Morseland 19th century
Lack overflowed due to heavy rain
Considered act of god
Greenock Corp v Caledonian
If harm reasonably foreseeable, negligent for not foreseeing
Common benefit
- If C claims common benefit, no R v F claim
- If D has reservoir, C gets water as well
Statutory authority
Occupier's Liability
October-30-14 12:12 PM
The Acts
1957-automatica assumption of duty
- Liable for person/property damage
1984-tests to establish duty, only liable for property damage
- Statute exists in place of common law
S.1
Don't apply common law negligence
If standards in the statute are met, no need for case law
- Acts essentially replaces common law
Common Law
- 3 types of lawful visitors
Contractors
Hotel/guest
Duty is an implied term that the place is fit for purpose of stay
Invitee
Permission of occupier and mutuality of business interest
Duty is occupier must take reasonable care against unusual dangers
Licensee
Friend who is invited
Duty is to inform of concealed traps to licensee
- Trespassers have no duty of care at all
- Seen as inadequate
Too complex
Unnecessary distinctions
Donohue v stevenson: universal duty?
Activit7y duty
Artificial constructs of tort
- Changed in 1954
OLA 1957
October-30-14 1:23 PM
S.1(1)
- Dangers due to state of premises or to things done or omitted to be done on them
Activity duty?
Revill v Newbury
D: action had nothing to do wiuth D's actual activity on premise
- To whom does the act apply?
Occupiers: Common law
Occupation=control
Occupier has sufficient control over premises
Weat v E Lacon
- Owened bar, manager was lacon
To access staircase in pub
External+internal access to guest rooms
Person slips on stairs and dies
- Was brewery occupier?
Service agreement doesn't diverst control over to management
Court said brewery can be occupier
No need for exclusive occupation
Can have 2 occupiers of a single premise
Alexander v Freshwater
- Landlord and manager both liable
Common duty of care
S.2.1.
Owe to all visitors, regardless of former 3 distinctions
S.2.2.
Duty=take care that occupier
Reasonable to see that the visitor will be reasonably safe
- Very fact specific
- Weather, conversation, purpose of visit, etc.
S.2.3
Circumstances relevant include degree of care, want of care,
Visitors
S2: Common law principles
People who enter premises under right conveyed by law
Police, ambulance
S.5-contractors
- S.1.4 excludes persons exercising public right of way
Premises
- Not defined by act
Obviously covers land, dwellings, commercial/industrial property
Donohue v Follestone
- S.1.3.a
Extends definition to any fixed/moveable structure
Vehicles
Reasonableness
Purpose of claimant's visit
- Geary v J.D Weatherspoon
When you invite someone to use stairs, you do not invite them to slide down the
bannisters
bannisters
- Tomlinson v Congleton
Person breaks neck before junping into lake
Would have been trespass
Responsibilities of visitor
- Be aware of curiosities of children
- Jolley v Sutton
Occuperis must be aware of curiosities of children
Children ingenuity
- Philipps v Rechoester
Child with automatic license falls into ditch, can he recover?
Court
- Person who opens land to public must be aware of children on their
land
- Butduty given to guardian who will protect child
- Simkiss v Rhonda
Child goes for picnic on mountainspot, gets hurt
Natural hazard, borough council not responsible
Parents negligent to danger
More obvious, less occupir liability
- Glasgow
Lures are not good!
Candy shop, etc.
Professionals S.2.3.
- Occupier assume that professional aware of any dangers associated with profession
- Role v Nathan
Chimney sweeps died from CO poisoning
Occupiers not liable
If general risk, maybe was breach
In this case occupier entitled to believe that chimney sweeps knew what
they were doing as CO is common occupational hazard
UCTA 1971
Impossible to exclude personal injury/death due to negligence
Can exclude damage to property as long as it satisfies reasonableness test
S.1.3
- Only applies to business liability
- Done to people on course of business
- Occupation of premises used for business purposes of occupier
Person liability : UTCCR
- Defences
- S.2.5
No liability for risks voluntarily assumed
Contributory negligence
- Recoverable types of damage
- Person injury/property damage
Can claim for property legally belonging to someone else but in possession of me
- Duties to tresspass at common law
- Not covered by OLA
Addie v Dumbreck
No duty of care owed to trespassers
Even against known hazards
Harsh, so courts try to develop exceptions
- Implied license
- Allurement doctrine (something that attracts children to your
premises, then duty arises)
OLA 1984
November-01-14 2:38 PM
Tomlinson v Congleton
- Main difference between 1984 and 1957 acts
Duty now doesn't always arise, used to be presumed
Scope is the same
Definition of occupier, visitor, premises the same
- Trespasser def
Anyone not a visitor, some exclusions (police)
Duty of care
- S.1.3-depends on whether occupier is aware or has reasonable grounds to believe that it
exists
No longer the status of visitor, but awareness of owner
Certain circumstances
Risk posed by state of premises
Does duty of care arise?
Keown
10 year old climbed on fire escape in NHS, fell and was injured
Nothing to do with actual nature of premises
Failed 1st hurdle (state of premises)
3 cumulative criterial to satisfy duty of care requirement
Occupier of premises aware/has reasonable grounds to believe danger
O has reasonable grounds to believe C would come to danger
Awareness of danger
Awareness of the potential presence of trespasser
Donoghue v Folkstone properties
Risk is one the occupier should have "reasonably expected"
D reasonably expected to offer some protection
Tomlinson
Lord Hoffman
Talks about non-financial considerations
Law not there to save C from himself
Bad for society if making occupiers take drastic preventative
actions
If risks perfectly obvious, then no need for signs
- S.1.4
Occupier owes duty to another to not suffer injury on premises by the danger
- S.1.5
Can discharge duty by warning
Make aware/discourage from taking further action
Lower threshold than previous act
Exclusion of liability
Matters of dispute under new act
Duty itself is evolved from common humanity-minimal and intrinsically
undeniable
Undesireable asymmetry with 1957
If exclusable, maybe only in business context
Defences
- S.1.6
Volenti (voluntarily assume risk)
Intro
- Negligence=loose synonym for carelessness
Failure to take reasonable precautions against risks that one ought to have foreseen
Liability for foreseeable accidents A
- Not strict liability
Low threshold for fault however
- Huge range
Car accidents, injuries at work, negligent professionals
Many possible scenarios
Bhamra v Dubb
Guests ate egg, had allergies
Caterer liable
Scout Association v Barnes
Yearwood v Bristol
Sperm donations not taken care of, storer negligent
However
D v East Berkshire Community Health
Negligence doesn't cover everything
e.g. cheating husband
Where do we draw the line?
- Influence of insurance
Mandatory in law to have motor insurance these days
Present for negligent accidents
Is it moral?
Responsibility jumps to non-liable company
Impose liability based on D's ability to pay
Nettleship v Weston
Learning driver negligent standard = all drivers because all drivers are insured
Is this right?
- Compensation culture
Many many successful claims on very minor sufferings
790,000 road accidents
81,000 workplace (but small proportion of total accidents
Is this good?
People getting compensated
Owt of control, people need to take responsibility for own actions
Most cases are settled anyways
Litigotiation
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Elements
November-12-14 3:02 PM
Duty of Care
November-12-14 3:14 PM
Caparo test
-
Establishing a Legal Duty of Care
- Concerned with whether tort of negligence applyt o Ds and Cs relationship between them and
the harm it caused
- Just demarcates a range of people/interests
- Duty specific to common law jurisdictions
French=strict liability: no need of duty fo care, negligent conduct=damage
Not inevitable under negligence claims
Unnecessary 5th wheel on coahch?
D v East Berkshire Community NHS Trust
Use in strike-out actions
Procedural economy, if no duty of care we can all go home
Hill v CC of West Yorkshire
Academic views
- Idealist: many duties of care--> Mcbride
Created by bilateral relations between D and C
D has proactive duty to cause particular harms to C
Positive duty not to infringe rights
- Ultra-idealist
1 overrarching duty everyone owes to everyone else
D Howarth
Not duties doesn't exist in some cases-only that D is allowed to be negligent
due to policy reasons
- Cynic
No positive duties, merely an obligation to compensate if one carelessly causes them
harm D. Pritt
- D Noal: abandon "duty" approach and focus on other aspects
L Bingham
D v East Berkshire
Too much focus on duty, not enough on breach
Caparo test
- Proximity
L Oliver and Jauncy in Caparo
Sufficient/direct relationship
Not very defined rules, reflects a court's discretion based on facts
- Fair/Just/Reasonable
Distinction between acts/omissions
Courts much more willing to impose duties on D to not harm, no duty to positively
act to protect
Seriousness of harm
Greater ham=greater duty
But..Hill v CC of West Yorkshire
Opening floodgates
Fear of unlimited future suits
Fear of liability resulting in defensive practices
Hill-police fail to catch murderer, mother of victim sued
Court said no liabnility, don't want police to focus on avoiding a lawsuit
Avoiding conflicts of interest
D v East Berkshire NHS
Doctors thought parents abusing children, children instead just sick
Parents suffered, but court said doctors have primary interest towards
children
Imposing duty of care towards parents=conflicting pressures
Distributive Justice
- White v CC of South Yorkshire Police
- Police who served at Hillsborough disaster sued for psychiatric harm
No duty of care to protect relatives, could not retrieve psych harm
If relatives don't get duty of care, police don't either of course
Caparo only for novel duty situations
- Previous case precedent duties apply first
Harm to property
- Reasonably foreseeable that the class fo property will be damaged
Yearwood v Bristol
Semen samples held I D's lab
Merc Rich (the Nicholas H)
Foreseeable and proximity satisfied
Court says no duty due to policy reasons
Damage didn't happen directly
Classification society says ship OK, ship not OK and property damage
Foreseeability, proximate, real property damage
No -duty of care-policy reason for securing non-profit organizations from
suits
Mitchell
- Lord Scott
Law does not impose duty to prevent a person from being harmed by criminal act of a
3rd party based simply on foreseeability
Exceptional circumstances
- Home Office v Dorset Yacht
Delinquent boys put onto island to work, they try to escape and damages boat
Is home office liable? Officers taking care of kids had a duty of care?
Court
Generally no duty of care for acts of 3rd parties unless there were special
relationship between either
Ds with Cs
Or Ds with 3rd parties
On facts the officers had special relationship with 3rd parties (boys)
Foreseeable that they may try to escape (have tried before), and that there
would be property damage (needed boat to escape)
Not duty to prevent them from escaping
Duty owed to property owners who might foreseeably have their property
damaged if the boys escaped
Duty to control action of 3rd parties-prisoners special relationship
- Carmarthenshire v Lewis
School allowed 4 year old to leave premises during school hours
Like barns, but child isn't endangered, but driver swerved, hits lampost and dies
Does school authority owe duty to prevent 3rd party from running across road and
creating danger?
HL said yes
School had responsibility for the child
Was obliged to keep child/maintain him during school hours
Duty extended to foreseeable dangers should child "escape"
Breach of Duty
Monday, 12 January 2015 10:07
Application
- Nettleship v Weston
Woman wanted to drive and asked friend to instruct her
Friend first insured she had insurance
She crashed, he was injured
He sued her
She said she tried as hard as she could, she was just not good at driving
Denning
If we accept her argument, it would be subjective standard
Requires standard of care is same standard of care of any other driver
- Context relevant
Philips v William Whiteley
Woman goes to jeweler to get ears pierced
Woman suffered an infection despite attempt to sterilization
Here it was held that he took reasonable care
Age is relevant: reasonable person of this age
Mullin v Richards
Ruler fight between teenage girls, girl got hurt
What would ordinary teenage girl OF THIS AGE would have done?
Orchard v Lee
Boys fighting, one collided into a teaching assistant who suffered injury
Breach:
What would the reasonable 13 year old boy do?
Could he have anticipated that some significant injury could
have resulted from playing tag
Disability is sometimes relevant
Manfield v Weetabix
Weetabix truck crashed into Manfield shop-driver had a hypogycemic attack
and passed out at the wheel
Is this failure to take reasonable care?
Driver didn't know he was hypoglycemic-not at fault in this
aspect
Standard here not ordinary driver-take into account context
Standard of care: driver unaware of his condition that may
affect his driving
Tort and Crime not the same standard
Roberts v Ramsbottom
Driver in this case did feel a little ill before driving
- Other relevant factors
Timing
Utility of conduct
Utility of conduct
Probability of harm
Gravity of harm
Cost of precautions
Context
Timing
- Roe v Minister of Health
Must remember the benefit of hindsight
Cases appear before court at times different from when the facts occurred
Facts
Method used to anesthetize had a small risk but was best choice at time, C
suffered
Court of 1st instance say they wouldn't do it this way now and prevent suffering
Denning said they must not look at 1947 facts with 1954 spectacles
Probability of Harm
- Bolton v Stone
Woman hit on a head by cricket ball when she's walking across the road
Furthest the ball has ever gone
Woman sued cricket club
Should have taken precautions to prevent this
HL:
Cricket club was not liable because risk was unforeseeable
Mere possibility of result not enough
Actual event must be reasonably foreseeable, not the events that led up to the
event
- Wagon Mound
Facts
Ship was being repaired at dockyard
Due to negligence of D's engineers, oil spilled out onto harbour
Massive blaze and damage to dockyard
Defendants said this was very unlikely
PC
Test is not that if it was very unlikely, then not liable
Must also take into account the degree of potential harm
Lord Reid
Not that it's always to neglect the risk
- Blair Ford v CRS Adventures Ltd
School trip to adventure park
C was teacher who was injured in Welly Wanging champions
Gravity of Harm
- Depend on particular claimant and defendant relationship
Paris v Stepney
C worked in garage and only had one eye, and no goggles. Shard fell off and hit his
one good eye
Does the fact that it would have been worse to lose the one good eye than one of
two good eyes?
HL
That he will suffer a graver injury than others must be taken into
consideration
Even if company didn't need to make everyone wear goggles, C's special
circumstance is an exception
Cost of Precautions
- Latimer
Lord Tucker
Flooding at factory, employees did their best to mop everything up
Worker still slips and injures himself, should they have kept the factory closed
until absolutely dry?
HL: No
As long as they did their best
Only thing they could have done was to not open factory at all and all
the costs that would have led
Test:
Did you take reasonable steps as a prudent employer would do
NOT prevent everything
Context
- Sport and games
Wooldridge v Sumner
Horse veered towards the crowd in race, C jumped out of the way and injured
himself
Court:
Must take into context
Spectator of a somewhat dangerous sport takes on risk of injury associated
with this event
Blake v Galloway
Bark-throwing game and claimant was hit
CoA
In sport, as the rules that are understood among the participants, is what
happened reasonable within this?
If so, accident
If not, then breach
Everett v Comojo
One customer attacked another and the injured customer said waitress should
have intervened
HL: no
Take into account context of young female waitress vs 2 burly men
Scout Association v Barns
Playing musical chair in the dark
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Professionals
- Different standard of care, but still objective standard of specific profession
Bolam Test
C suffered fracture to pelvis during electroshock therapy at mental institution
Wasn't given muscle relaxant that would have reduced risk
Said doctor was negligent in not administrating
Court
Not negligent if doctor acted in accordance with a practice accepted as
proper by a responsible body of medical men
As long as it's in line with responsible line of medical opinion, it's OK
Some criticism
Doesn't give judges enough work to do
Reasonableness can be assessed in court as well
Bolitho
HL endorsed Bolam test as general principle
C suffered injuries from respiratory arrest
Doctor argued that even if he had arrived earlier, he still wouldn't have used
the incubator
Court
Not negligent in failing to incubate claimant (was supported by respected
medical line of reasoning)
Might be modification to Bolam test
If in rare case it can be demonstrated that the medical opinion is not
logical, the judge is not required to consider that body of opinion as
reasonable
Body of opinion not 100% good
Very rare
Baker
Doctors at the time thought that the noise level given to patients was OK
Over time it was realized that the threshold was actually lower
Lord Dyson
Code of practice will often relevant to establishing general opinion of
professional body
Not always however
On facts, employers not negligent because they complied with Code of
practice
Emerging evidence did not change Code of practice
Causation
Tuesday, 13 January 2015 15:21
Fairchild exception did apply even though some exposure was self-induced
Damages
Assessed to share of risk attributed to each D's breach of duty
Increase in risk 33%, then liable for 33%
Smooth the roughness of justice in giving a special way to establish
causation for claimant
L Hoffman
Not that we establish causation: justifiable in may be contributed to
the harm
L Roger
Thought the other HL were misinterpreting Fairchild
Fairchild the D was found to actually causing mesothelioma, not
that he increased risk b/c damage is mesothelioma, not the risk
of it
C will only end up with a small percentage of damages where
Fairchild the C got 100%
Compensation Act 2006 (new statutory damages)
S.3.1
Reversed Barker's damages approach on cases of asbestos related
mesothelioma
Where victim contracted mesothelioma as a result of exposure to asbestos
D can get full damages, jointly and severally with other responsible
person
Sienkiewicz
C's mother died after contracting mesothelioma
Exposed to asbestos during employment and in environment
SC confirmed S.3
L Phillips
Fairchild rule applies to more than just a Barker situation
S.3 does not preclude courts from using conventional approach to
causation if ending evidentiary gap is medically possible
L Roger
Trigger Litigation: Insurance
Lord Mance
Don't deem the C suffered until actual disease
Exposure during relevant period can trigger employer insurance
Otherwise if it begins at time of actual disease, D may not be insured
anymore.
Limits to Fairchild
Wilsher
Baby that developed a degenerative eye condition
Hospital argued to be negligent when undergoing surgery, but at least
4 other things that could have caused this condition that was not
negligent
HL held no liability
Can't say but for D's negligence
Fairchild only available where the agent for injury is the same
In fairchild, it was all asbesthos
Here, however, ways of causing condition very different-oxygen,
light, etc.
Grieves v FT Everard
D exposed to asbestos and got plural plaques
Plural plaque indicates exposure to asbestos, but not linked to
mesothelioma
Argued that this should be actionable harm
HL
Asymptomatic things, risk of developing something in the future, and
anxienty not actionable in tort
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Exception 3?
- Loss of chance of more favourable outcome actionable?
Balance of probabilities test
Hotson v East Berkshire (balance of probabilities test)
C climbs a tree, falls and severely damaged his leg
Negligently diagnosed and was not treated properly, went on to develop a worse
disease (necrosis)
J f 1st instance
There was already a 75% chance he would've gotten necrosis anyways
HL
Could not recover for chance-necrosis caused by his own falling, not the loss
of chance
If more than 50% probable that he would still get necrosis, then D not liable
If less than 50% probable, then D liable
Gregg v Scott
Doctor failed to diagnose A with cancer, and was only diagnosed later
If initially diagnosed he would have 40% chance, but later he only had 20%
at the 2nd correct diagnosis
Did not die, but sued the first doctor for chance of survival in future
HL
Cannot sue for mere loss of chance in personal injury cases
Fairchild
Adjusting rules of causation to correct injustice to C
L Hoffman: this would be anarchy in causation
L nichols: disagreed
Above 50% chance then liable
McBride and Bagshaw
Balance of probability issues: once dice is rolled the outcome is certain, balance of
probabilities no longer relevant to damages and so decision not right: should be all
or nothing, not percentage
Pure Economic Loss
Allied Maples v Simmons and Simmons
Lawyers messed up and C didn't get amenities they may have gotten
Court said can be claim
Stuart Smith LJ
C must prove a substantial chance of avoiding PEL
Assess damages based on chance lost
Legal causation
- Supervening causes
Baker v Willoughby
C suffered as D's breach of duty -leg hurt
Subsequently had another accident to the same leg, now no leg
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Reversed CFI because the duty of HSBC was to prevent this very thing that
Rubenstein wanted to be protected against
Rix LJ
Bank not liable for financial crisis, but the duty covered this and so
bank was liable
- Intervention of 3rd party
Lamb v Camden
Waterpipe exploded, caused damage, negligently maintained
Squatters moved in that cause even more damage
L Denning
Council not liable for squatters-intervention of 3rd party enough to remove
causation
Oliver LJ
People are stupid, but this case it was too outrageous to be foreseeable
Knightly v Johns
Accident in tunnel, tunnel had to be closed
Police inspector asked an officer to drive into face of oncoming traffic to close
other end of tunnel and is severly injured.
CoA
Stephenson LJ
Inspector's decision was too great a negligent decision to allow claim
to succeed against original defendant. New cause, intervening act.
Usually we have to account for human capriciousness, but on facts it
was too great an intervention.
Wright v Cambridge Medical Group
- Intervention of Claimant
McKew v Holland
C was injured and had a very weak leg from an original tort.
Walked down the stairs, when felt his leg from giving away jumped and broke his
ankle.
HL: C acted unreasonably in choosing to descend only holding his daughter's
hand knowing his legs might give away. Broke the chain of causation
Wieland v Cyril Lord Carpets
C suffered injury on bus and had to wear a neck collar, limited field of vision and
suffered accident falling down stairs because unable to wear her glasses.
She descended stairs with adult son for support
However, this did not break chain of causation
C acted reasonably here on the facts, original D was still liable
Eveleigh j
Distinguishes from McKew b/c didn't act unreasonably
Reeves v Commissioner of Police
Police knew victim was suicide risk b/c tried before
Police failed to take sufficient measures to prevent his suicide
D said claimant's own act broke causation
HL Jauncey
Very duty was to prevent suicide of D
Intervening act must be out the scope of the contemplated scope of events
to which duty was directed
Corr v IBC Vehicles
C suffered accident that made him disfigured and clinically depressed. Killed
himself.
Estate sued for original company that caused the tort
D argued C's decision to kill himself broke chain of causation
Unlike Reeves, no duty to prevent his suicide. However!
HL
Held it was possible to establish causation because depression that led to
suicide was caused by the original accident
Spencer v Wincanton Holdings
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Remoteness
- Too far removed from original injury
- Test of reasonable foreseeability
Wagon Mound
Was the subsequent damage reasonably foreseeable?
Viscount Simonds
Natural/necessary/probably consequence
Would the reasonable man have foreseen the damage here?
Rejected early CoA where it was suggested that the test was directness
Hughs v Lord Advocate
D held liable
Foreseeable consequence-can only escape liability if damage was different
in kind
On facts foreseeable that child would suffer. Difference in belief of degree of
harm and actual degree of harm doesnt matter, unless type of harm
different D liable
Jolley v Sutton
Look in facts of case to apply reasonable foreseeability harm
Thin Skull Rule
- Same as in criminal law
Smith v Leech Brain
Negligence caused cancer, activated a propensity for cancer in C
D must find C as he is. Liability is established, even if C was more susceptible.
If injury occurred at all only because of his propensity, then perhaps D is not liable,
but as long as maybe liable
Policy Limitations
- SAAMCO
Lord Hoffman
Negligent valuation of properties on behalf of companies
Dramatic fall in property prices, breach of duty
Negligent surveyors liable for all losses suffered by companies?
Scope of duty in question not liable for all consequences of wrongful
conduct
On facts
Responsible only for consequences for wrong information: house was
worth less, they were liable for difference between actual value and
negligent value
Not liable for all decisions that entered into housing market
Contrast between Rubenstein and Reeves-no duty to prevent this loss
- Clavert v William Hill
A wanted gambling company to ban him, they didn't. court said he would have gone to
other gambling companies.
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Defenses
Monday, 23 February 2015 10:06
Assumption of risk
- Express/Implied
- Came forward during industrial revolution for workplace
- Complete defense
Elements
- Knowledge of risk
C must have actually known of risk-not reasonable person
Must have known general nature of risk, AS WELL AS
Must have known of a possible negligent conduct of defendant
Manner in which injury came about
Certain causal story of injury brought by particular negligence of D
- Voluntariness
- Assumption
Something in actions that demonstrates you waive your cause of action
Prior agreement between the parties-element of duty of care needed
D must show that claimaint acted in a way that was reckless in relation to their own
safety
Negligence in your own safety not enough
Morris v mUrray
Murray has a lot to drink and crashes his airplane with Morris after they both
drink. Airplane crashes, Morris injured and sues
Clearly Murray was negligent
Court said morris accepted risk
Capacity?
Too much to drink may have rendered capacity impossible, but
on facts defense unavailable
Knowledge of risk
Could have know that murray's negligence could have caused
the plane to crash
Specific to murray crashing plane due to drunkeness
Voluntariy
Got into plane voluntarily, was not forced, not an issue
Assume risk?
Acting in a way that was grossly irresponsible to his own safety
Aware of how drunk murray is, fuel the airplane
Court said yes
Extent of danger?
Sometimes happens
Danger assumed must be severe
Assumption of risk not available for drunk drivers etc.
Now replaced by statute that says no voluntary
assumption of risk for drunk driving
- Extent of danger
Contributory Negligence
C's own negligence caused his own injury
- 2 wrongdoer parties
- Historically a complete defence
But this comes under criticism
Defendant also wrongdoer-why are they let off completely?
Deterrence not fully effective
Inefficient: may make people more defensive cause they know they'll be held
100% liable
- Law Reform Act 1945
Where any person suffers damage as a the result partly of his own fault and partly at
fault of other persons, claim will not be defeated
D will still be liable in regard to their share in damage
Illegality
- C guilty of some kind of illegality related to damages they suffer
No cause of action can be founded on an unlawful act (maxim)
Ashton v turner
C running away from scene of crime gets hit by negligent driver
C's illegality in running away should not allow them to recover
- Illegality
Define: crimes/quasi crimes
Not tort-has to be criminall
Les Laboratories
Defense designed for public interest
Because of this, only turns on public wrongs (crimes), not private wrongs
(tort)
Dissapointing: formalistic distinction
Pubic interest is implicated by tort law at may times (public authorities
etc)
Seriousness
Crime must be serious
Tax law/planning law/rules of road doesn't count
- Modern statement of doctrine
Gray
PTSD triggered by train event
PTSD person kills another after argument (manslaughter due to diminished
capacity)
Goes to prison
Sues train company negligent to cause his PTSD
Does train company have illegality defense? C murdered someone!
Illegality defense available
2 versions of defense
Narrow rule
Applied to this case
Cannot recover for damage that is the consequence of a criminal
sentence
Tort law can't give back what criminal law takes away: can't sue for
money because you were put into prison so you specifically can't
make money!
If it does apply, complete defense
Wider Rule
Cannot recover for damages which is a consequence of your own
Exclusion of liability
- Contract, notice
It's ok
- UCTA must comply
- White v Blackmore 1972
Junk car races
"warning to public, liability of personal injury not available etc"
C dies because of negligence on D, D argues exclusion of liability
Argued defenses
Assumption of risk
Knowledge was not specific that he assumed nature of this particular risk
Exclusion of liability
Applied-no recovery, C loses
Would it have satisfied UCTA?
Reasonable?
Personal injury/death cannot be excluded-so if this happened 5 years
later, court would not applied defense
Contributory negligence
C stood at place where he wasn't supposed to stand
Available-only get 2/3rd of injury
Psychiatric Harm
November-12-14 5:43 PM
Nervous Shock
- Page v Smith
Reaction to immediate horrifying impact
Recognisable psychiatric illness
Serious mental disturbance beyond normal grief, fear, anxiety
- Recognizable illness
White v CC of South Yorkshire
WHO guidelines
E.g. depression, PTSD, pathological grief disorder
- Baroness Hale
Diagnostic uncertainty
Is harm due to act of D, or his own previous dispositions, hard to assess actual causation
Compensation difficult because treatment not straightforward
Primary Victims
November-12-14 6:40 PM
Foreseeability
- Page v Smith
Whether D could foresee risk of personal injury
Can foresee physical harm but also liable for psychiatric harm
Car accident very minor, but caused resurface of M.E (psych harm) by D on C
C compensated with income for rest of life
Court sayd this is fine as long as some harm to person was forseeable
- Grieves v FT
Asbestos causes depression in fear of getting physical harm
Court says no harm
Roswell: Psychiatric harm can't compensated if physical harm doesn't get
compensation
Contrasted with Page v Smith
Directness: in PS direct result of crash
G v FT directness: damage caused not by asbestos, because of own thinking
afterwards
Eggshell personalities
- Assume people to be able to withstand ordinary pressures
Not a requirement for primary victims
Page v Smith
Thin skull rule applies in primary victims
L. Goff and L. Hoffman skeptical about this in White and Grieves, respectively
a. Part of inquiry as to foreseeability?
Secondary Victims
November-12-14 7:44 PM
The 4 criteria
- Customary phlegm (average fortitude and robustness of mind)
- Sufficiently close ties of affection between C and primary victim
Child, spouse, fiance
All others e.g. brotherly love not presumed
ON facts, only 2 were parent/spouse relationships
Maybe if degree of intensity of event was stronger, the relationship requirement could
be less stringent
Caledonia v McFarlane
100s of people burn to death due to petrol explosion
Court still said no
Remains possibility, but threshold very high
- Proximity in time and space of accident
Witness accident or immediate aftermath
Few Cs at stadium (different part)
Court said very far away, skeptical if proximity requirement was met
Family members who travelled to see bodies after 5 hours were too far removed
- Means by which shock is caused
Witnesses by unencumbered sight/sound
Attia
- Witnessing property damage less strict?
Watch house burn down 4 hours, allowed claim
Was decided before Alcock, maybe changed
Rescuers
- Forseeable rescuers very generous (foreseeable that there will be rescuers, therefore duty of
care from negligent party to Rescuer)
Haynes v Harwood
Police prevented rash, rescued but hurt, could recover
Chadwic v BRB
Status as rescuer gives him damages
Are always primary victimes
- Problems
White v Frost
Police who suffered PTSD at hillsborough disaster
Helped to remove people from grounds as rescuers
Relied on Chadwick as primary victims
HL said no
Public policy
Rescuers can only recover if they themselves were in physical danger
Reasonably believed themselves to be in danger-ruled out, now must
be actually in danger
Not there in white
Occupational Stress
- Primary and secondary victim categories not relevant here
- Recent development
Stress at work
Slow psychiatric injury at work, early retirement due to inability to work, employee sues
employer
Covered by general employer liability to make sure work is safer
Origin not primary/secondary victim
- Different context from primary/secondary psychiatric injury
Definition
- C becomes poorer/fails to be richer as a result of D's actions
No link to physical injury/property damage
Generally no duty fo care to protect C from PEL
- Hard to understand difference between damages and this
Not quite the same-direct loss of money rather than money as substitute for some other
loss
White v Jones
- Failing to realize a benefit that wouled have accrued to C had testator's will been changed
before death
- PEL
Principles
- Hedley Byrne
- Caparo
- Customes & Excise v Barclays Bank
Can use either Hedley Byrne or Caparo test to determine whether PEL
Omissions
Monday, November 24, 2014 10:07 AM
Law more generous for good samaritans, but not good for bad samaritans
Haynes v Harwood
Carriage rescued by police, police got hurt, court said forseeable rescuers
and owed duty to potential rescuers
Ogwo v Taylor
Forseeable need for intervention by firefighters
Fireman's rule doesn't apply in English law
Harrison v British Railways Board
D creates a forseeable risk, owed duty of care even if foreseeable risk was to
himself
Contrast between Greatorex (harrison principle doesn't apply to psych
harm"
Occupation of Land
- Goldman v Hargrave 1967
Measured duty of care by occupiers to remove reduce hazards to neighbours
L Nichols in Stovin v Wise
Resources of D is very important because it's a lot more burdensome
- Leakey v national trust
- Holbek Hotel case
Reasonable threshold for positive acts to remove hazards depends on circumstances and
occupier's resources
- Negligent standard
-
Public Authorities
Monday, December 1, 2014 10:02 AM
protection the statute was enacted, suffers relevant loss, establish causation
- X v Bedfordshire
Formula
1st.
- Is subject matter justiciable?
- Should the matter be adjucated by trial judge in civil action?
- Or is it so closely related to public policy issues that it shouldnt be?
- 2 questions
Did D act within their discretion
Dichotomy between operational./policy issues
- Discretion
Dorset Yacht
Statute may grant public authority a discretion within which the public
authority can make choices compatible with nature of discretion
Choices not under scrutiny of tort of negligence-errors may be made
However, if public authorities act outside discretion then actions may be
opened up to scrutiny under tort law
On facts no discretion to begin with
Basically must show that actions of public authorities fell outside their discretion
- Operational v policy decisions
Anns v Merton
Certain activities of public bodies involve strong policy reasons, and often
linked to discretion
Operational decisions involve less policy choices
Implementing policy choices that have already been made
The clearer it is, the more amenable the power-more likely a duty of
care
X v Bedfordshire
Education
Policy issues: where to open a school, and what sort of school it
would be
Operational issues: day-to-day decisions to run the school.
Timetable, menu in canteen, etc. much less political and so
much more liable in tort
However, Hoffman in Stovin v Wise
This is not very good distinction-operational and policy decisions often not
always distinct
2nd
- Does duty of care arise?
- If 1st limb met, then normal test for duty of care-Caparo
Forseeable
Fair, just reasonable
Proximity
- X v Bedfordshire
- Should local authorities should have taken children into care faster
- Policy reasons why DoC wouldn't apply here
Lots of public law considerations
Weighing parents and childrens and society's rights
Fear of excess caution on public bodies
- Abuse cases=not fair, just and reasonable
- High watermark of very deferential to public authorities
- Stovin v Wise
- Highways Act 1980
- Highway authority alleged to be negligent in not removing highway obstruction
Court
Distinction between failure to exercise and negligent exercise
Usually only second category DoC arises
- Gorringe v Calderdale
- Failure to paint slow-down sign
- HL follows stovin v wise, omission no DoC, only negligent exercise
- Yetkin v London Borough of Newham
- Negligent exercise of power
- DoC exists
Human rights
- Osman v UK
- Schoolboy stalked by teacher who becomes infatuated
- Teacher begins to attack child's house, and shoots child's father and child
- Teacher begins to attack child's house, and shoots child's father and child
- Negligence action to CA
No DoC owed by police despite numerous phone calls
- EUHR court says must assess more facts, no de facto immunity
Breach of right to fair trial
- Z v UK
- Strasbourg rolls back in emphatic approach in Osman
- Finds no breach or Art. 6- right to fair trial
- Strike out actions arent de-facto, assessment still reasonable in light of domestic tort law
- However said no effective remedy, strasbourg court says no
- Basically overturns Osman, agrees that UK court got it right in Hill
- AD v UK
Product Liability
Monday, 26 January 2015 10:07
European commission v UK
- EC said the CPA didn't protect consumer sufficiently
- CJEU confirmed that he CPA was sufficient to protect persons harmed by products
However, confirmed that if there is any doubt about national legislation, need CJEU to
rule
Defect
- S.3
- Defect in a product if safety of product is not such as persons generally entitled to expect
- Draw upon
How product is marketed
How it's used
What it's used for
- Objective inquiry: "entitled" to expect
- Cases
A v National Blood authority 1988
Transfused blood was infected with Hepatitis C
No suggestion as to fault on part of hospitals
At this time, they couldn't even detect Hep. C
How is the public "entitled" to expect something they don't even
know about?
Entitled to believe that the blood was safe-not that it wasn't
infected by some specific disease
Regardless of no fault on NBA, Cs won
Burton J
Blood was non-standard product, and were unsafe by virtue of its harmful
characteristics
Standard v non-standard products (1st step of PQ) (nature of defect-not nature of
product)
Standard product=the way producer expect it to behave
Policy/economic considerations (cost of mcdonalds to make it cooler,
etc.)
Utility of product are considerations
Defenses
- Burden of proof on defendant to prove defenses
- S.4 CPA 1987
1.e.
Scientific knowledge at the time was not available for manufacturer to find the
defect on time
EC v UK
Burden of proof on defendant
Abouzaid v Mothercare
Chadwick
These considerations aren't relevant to whether product is defective
Only comes into play during defenses
S.6(4)
Contributory negligence may be partial defense
Academics
- Fletcher
Reciprocity of harm: customer takes risk of harm, then manufacturer should take risk ask
well
- Keating
They make profit off you, so they should be liable for risk
Flawed argument
Acts v activities
- Epstein
- Mcbride and Bagshaw
Moving away from tort law in this area-not focusing on legal wrongs
Defamation
Tuesday, 27 January 2015 15:03
Protecting reputation
- Freedom of expression vs reputation
Public Authorities?
- Derbyshire v Times Newspapers
Lord Keith
Public authorities themselves may not sue for defamation
Contrary to public interest
It would be designing a fetter on free speech
Shouldn't be able to stop journalists from suing in context of defamation
Does not include corporations
Patfield and Howarth
Defamatory statements have different impacts for private companies rather than
public bodies
public bodies
Malice
- Malice not relevant to liability
- Motive of D not relevant
- May be relevant in defeating certain defenses
Elements
- Defamatory statement
- Reference to the claimant
- Publication
- No defences
Defamatory Statement
- No need to prove what D said was false
Law presumes that the statement was false
- S.1 da 13 "serious harm"
Statement not defamatory unless its publication has caused/likely to cause serious harm
to reputation of claimant (Statutory)
Harm to reputation of body that trades for profit is not serious harm unless likely to
cause the body serious financial harm
- Cooke v MGN
MGN made documentary about people living on this street
Referred to dodgy landlords who were claimed to be charging very
extortionate prices
C claimed that the story who placed her with those dodgy people
suggested she was also extorting her customers
Newspaper published a newspaper
Where this article would cost serious harm
Bean J
Said this did not cause serious harm
Fact that newspaper apologized reduced harm
Sometimes there needs to be evidence, but other times there
isn't
Party magnitude of allegation: worse allegation, probably
worse harm
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worse harm
- Sin v Stretch
Maid resumed service with former employer
Temporary employer took offense at note
L Atkin
Would words lower the plaintiff in the estimation of right-thinking
members of society generally?
- Gillick v BBC
C challenged earlier when can doctors help teenage girls plan families
without consent of parents
Participants on BBC accused C of causing the death of these 2
pregnant teenage girls
In morally controversial issues, right-thinking members may be both
ways?
Nieil LJ
Hypothetical reader should not select one bad meaning where other
non-defamatory meanings are available
- Byrne v Dean
Golf club-illegal gambling machine on premises and someone tipped off
police that took them away
Someone wrote a piece suggesting C tipped the police off
C took offense at being accused of being a snitch
Slesser LJ
Not defamatory to suggest that he was the one to reported it
"saying someone has legally talked to police would not be defamed in
right minded public mind."
- Innuendo
"read between the lines"
"false" innuendo - implication of the words
"true " innuendo - meaning if you know additional facts
Lewis v Dailuy Telegraph
- "Inquiry on firm by city police"
- "Fraud squad probe firm"
- Firm sued that the innuendo is that they actually did it
L Reid: ordinary man not inhibited by rules of construction-can read
between the lines
Tolley v Fry
- D used an amateurish golfer's likeness on an advert without his permission
- Implication that he endorsed them
Suggested that he was sponsored-which bad for his amateur status
Inference is that his consent was given
- On facts the poem/facts was that the use was enough to be defamatory
Part of the whole?
- C has to show that if the rest of the article counters the disreputable thing
- Chalmers v Payne
Alderson B
Look around the defamatory article
- Charleston v News Group Newspapers
Headline in newspaper-someone put faces of Cs onto porn
However, NGN wrote article that explained the headline. D would be liable if
headline was isolated
- Lord McAlpine v Bercow
L McAlpine was wrongly implicated in newsline about child
Wrongly accused but not specifically named
"why is lord Mcalpine trending"-tweeted by other woman
Judge
Readers would reasonably infer that the D was calling out C as the
unnamed person
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unnamed person
Bercow lost
Ridicule?
- Bercoff v Burchill
Journalist wrote several articles on film directors
Called Berkoff "hideous"
Said Frankenstein looks a little better than Berkoff
Berkoff sued this
Court held in favour of Berkoff
LJ Neil
Burchill gave indication that he's not just unattractive, but
repulsive
As an actor his image is important
Words may be defamatory even if they don't impute disgraceful
conduct or lack of efficiency
Holding him up to contempt scorn or ridicule that tend to
excuse him from society
Exact border hard to define
Millet LJ
Dissents
One thing to ridicule a man, another to expose him to
ridicule
- Elton John v Guardian News & Media
Elton john holds a ball every year
Journalist made fun of him by pretending to be him and writing a diary
Elton John sued
Judge
Statements in this case not defamatory
Article was clearly ironic-irony is clearly not defamantory
This is false: but no reasonable reader would ever think it was actually
written by Elton John
- Fine line between Elton John and Berkoff
Is it merely poking fun or is it more dangerous?
Tamiz v Google
- Blog/links hosted by google make statement, would google be liable?
- Comments were very rude towards C
- Google didn't published it
Were not held to secondarily liable unless they had "adopted" to keep it
when they were notified and decided not to take it down
- S.10 DA
Court has no jurisidiction to hear action for defamation against person who
was not author of statement unless
The Act
- S.1
Serious harm=defamatory statement
- S.2 Defense of Truth
Truth
- S.3 Defence of honest opinion
Must be grounded in some element of fact
- Kensley v Foot
- S.3.4.a
Malice defeats the defense
- S.4 Defense of public interest
Removed reynolds defense
- 10 principles to satisfy defense
- Jamille
Need to move from reynolds defense to public interest defense
Joseph v Miller
- General nature of facts must lead Ds to reach conclusion that they had
- Has to have basis for statement
Defense must relate to "the sting"
- Turcu v Newsgroup
- The crux of the harming statement
- S.8 (single publication rule)
Decreases number of claims-can only claim once
- Except Flood cases
Critiqued by Butkin
- S.5
Specific defense for hosting a site for hosting blogsite
- Will only be liable if they adopt opinions of others
Problems
- Doesn't say how host should deal with complaint
- Doesn't give time limitations
- S.11
Abolishes jury
Where does the balance now lie in relation to freedom of expression?
- Harder for claimant
Easier defences and more limitations for claimant
- Stronger approach to s.5-websites
- Costs/remedies
Bringing a claim is complex/expensive, quite archaic
- Corporations could have gone one step further
4. Defences
A. Truth
Formerly known as Justification
s.2, DA13:
(1) It is a defence to an action for defamation for the defendant to show that the
imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of
conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the
defence under this section does not fail if, having regard to the imputations which are
shown to be substantially true, the imputations which are not shown to be
substantially true do not seriously harm the claimant's reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5
of the Defamation Act 1952 (justification) is repealed.
B. Honest Opinion
Formerly known as Fair/Honest Comment
[117] There is only one reform that I would seek to make by this judgmentit is one
that has already received judicial approval The defence of fair comment should be
renamed honest comment.
circumstances may include the fact that the police are investigating the conduct
of an individual, or that he has been arrested, or that he has been charged with
an offence.
Lord Mance:
[137] The courts therefore give weight to the judgment of journalists and
editors not merely as to the nature and degree of the steps to be taken before
publishing material, but also as to the content of the material to be published in
the public interest. The courts must have the last word in setting the boundaries
of what can properly be regarded as acceptable journalism, but within those
boundaries the judgment of responsible journalists and editors merits respect.
This is, in my view, of importance in the present case.
D. Privilege
Reynolds, Lord Nicholls at 194:
Sometimes the need for uninhibited expression is of such a high order that the
occasion attracts absolute privilege, as with statements made by judges or
advocates or witnesses in the course of judicial proceedings. More usually, the
privilege is qualified in that it can be defeated if the plaintiff proves the
defendant was actuated by malice.
Statements in Parliament
Statements in Judicial Proceedings
Extensions in s 7, DA13
A v UK (2003) 36 EHRR 51
E. Operators of websites
S 5, DA13
(1) This section applies where an action for defamation is brought against the
operator of a website in respect of a statement posted on the website.
(2) It is a defence for the operator to show that it was not the operator who posted
the statement on the website.
(3) The defence is defeated if the claimant shows that(a) it was not possible for the
claimant to identify the person who posted the statement,
(b) the claimant gave the operator a notice of complaint in relation to the statement,
and
(c) the operator failed to respond to the notice of complaint in accordance with any
provision contained in regulations.
5. Remedies
Until it is clear that an alleged libel is untrue, it is not clear that any right at all
has been infringed; and the importance of leaving free speech unfettered is a
strong reason in cases of libel for dealing most cautiously and warily with the
granting of interim injunctions.
A. Remoteness?
Slipper v BBC [1991] 1 QB 283, Stocker LJ at 296:
the law relating to republication in defamation cases is but an example of the rules of
novus actus in all cases of tort In a defamation case where there has been
republication the question whether or not there has been a breach in the chain of
causation inevitably arises but such cases are not in a special category related to
defamation actions but are examples of the problem and will fall to be decided on
general principles and in the light of their own facts as established. They are not
specific or special rules peculiar to defamation actions.
B. Size of Awards?
Rantzen v Mirror Group Newspapers [1994] QB 670, 692:
The question becomes: "Could a reasonable jury have thought that this award was
necessary to compensate the plaintiff and to re-establish his reputation?
Privacy
Monday, 9 February 2015 10:06
Protected Interest
- Warren and Brandis
World has changed: right to be left alone
People have more need to become private/retreat from the world if they wish
Simultaneously the world has provided more ways to invade one's privacy
So US has protection
English Law
- Protection for privacy
No specific tort for privacy, but can sue under other arms
Kay v Robertson
Well know that in English law there is no right to privacy
No specific privacy protection, but there are other torts that could cover privacy
interests
Courts unhappy that there is no common law for tort
Human Rights Act 1998
Art. 8
Right to respect for private and family life
Art.10
Freedom of expression
Conflicts with privacy right
Implication of these new rights?
Wainwright v Home Office 2004
No need for specific tort for privacy in order to give effect to human
right convention
- Tort of Wrongful Disclosure
Campbell v MGN 2005
Extension/evolution of breach of confidence
Where a confidant has released information
Requirement that there is a relationship of confidence
L Hoffman
Duty moves from duty of good faith applicable to confidential personal
information
To focus on protection of human autonomy
Cause of action now exists even if no relationship of confidence exists
Different from other torts: must be balance of two rights (expression v privacy)
Facts:
Newspaper and celebrity
Newspaper reveals naomi campbell's drug problems, etc.
There was a picture that came out of a clinic and treatment she was
undertaking
Her drug problem not considered private: she had talked about
it before in public
House agreed that there is now a tort of wrongful disclosure
Disagreed on whether on facts tort was allowed
Established the new tort
Elements
Disclosure of
Disclosure of
Private information
Reasonable expectation of privacy test (Campbell)
Objective standard
Aspirational standard
Public domain (KGM v News Group)
Must be in public domain
KGM v News Group
C had a 2nd family, 1st family does not know about
2nd family
Newspaper was interested in this
Father-in-law of Gordon Ramsey
D argued this is not private-it's public knowledge.
Public record, anyone can see this
Court held this was not
Just because some information is available to
public does not make it automatically public
Real question: has it really made an act to
public domain?
Not whether if it was available
Depends on a lot of circumstances
HRH v AN
Nature of info, form in which information was
kept/conveyed, if person disclosing was in a confidential
relationship, likely outcome of disclosure
Experience of people whose information was released
Knows/ought to know (private information)
Balancing b/w privacy interests and free speech interests
Types of information deemed private
Intimate information acquired through close friendship: McKennit v Ash
Travel diaries
Sexual conduct
Privacy in pubic places
Photographed in public Campbell
Hale in Campbell
Activity must be private
Hoffmann in Campbell
Photo must be humiliating to protect privacy in public places
Pec (pre-campbell)
Guy tries to kill himself and does it publicly
Media picks it up and broadcasts it
Would satisfy campbell test for privacy in public
Had private element
Was humiliating
Hannover v Germany (2005 ECtHR)
People took photo of princess of Monaco doing everyday things, usually this
is fine
However it's difficult for Princess Caroline
For famous people who are constantly harassed by pubic have rights
not to be photographed
Not about information that was made public
Fact that she is being filmed in public
Destroys her anonymity
Allow celebrity to lead relatively normal lives
OBG v Allen
No complaint over simply being photographed
Must be something more
E.g be celebrity
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E.g be celebrity
Murray v Express Newspapers
People takes a photo of JK rowling's baby
JK rowling sues-court says it's fine
Depends on circumstances whether routine public acts could
attract reasonable expectation of privacy
Nature of activity-jk rowing takes a casual stroll, kim takes
twitter pics of child
Hannover v Germany No. 2
Princess of caroline sued for another photo taken during ski vacation
Court
No protection of privacy in this case
Ski vacation different from riding a bike?
This case: photo was attached to article and talks about how
family is dealing with sickness,
Court says there is a privacy interest that people do not have
their pictures constantly taken
However, there is public interest in the current case in
that information
Freedom of speech outweighed privacy interest
OPO v MLA (CoA)
Father wants to publish life story, mother files for injunction against this
because kid as asbergers and may be effected
Case where injunction was granted (unusual)
Reasoned upon wilkinson v downton, which is not very relied upon
Court did not go into detail about other perhaps more pressing issues
Hughs: social theories of privacy
Remedies
Tuesday, 3 March 2015 15:06
Personal remedies
- Pain and Suffering/Loss of immunity
Exemplary damages
- Punitive damages-not corresponds to loss suffered
Can be awarded on top of actual loss because of very bad nature
- Brooks v Barnard
Can be provided in 3 situations L Devlin
Statutory
Unconscitutional action by action of governemnt
D acted to get profit to himself that may outweigh harm suffered
- Cassell v Broome
Could only get exemplary damages if tort in which you were suing was one which could
sue for exemplary damages before 1964
- However, Kuddus v CC of Leicestershire
Was robbery-police who took the report decided not to do anything about it, and filled
out form withdrawing complaint
Forged C's signature on the form
C sued for misfeasance in public office
Lord Slynn
Fell into 2nd category for exemplary damages (L Devlin)
But prior to 1964 there were no exemplary damages (Cassell)
Argues that Cassell test uncessary: as long as action falls into the categories
described by Devlin, Cassell's test uncessary
Irrational/unnecessary extra limitation on exemplary
- AT v Dulghieru
C were victims of D's sex trafficing conduct were forced to pay rent with sex
C's harm was only rent was calculated
More exemplary damages
Nominal/Contemptuous damages
- Very little loss suffered, distinguished from exemplary
- Nominal
Small amount of money
Nominal: token amount of damages awarded where C succeeded in establishing a
tort but may not have actually suffered any loss
Interest may have been infringed without loss
False imprisonment
Lumba
C was convicted on series of assault-was going to be deported at end of
sentence
Home secretary had policy that said prisoners were going to be detained
until deportation after sentence ended
However, HS had made a secret policy to always detain these people-
unlawful to apply secret policy
If they had applied policy, he would have been detained anyways by the
publicly stated policy
Majority: there was a case of false imprisonment
But because he would have been imprisoned anyways, not entitled to
substantial compensation-nominal damages
Injunctions
- Equitable remedy
- Stop D from doing something before/after trial
- Discretionary remedy
Jaggard v Sawyer
Discretionary
Private road cul-de-sac
D bought house and bit of adjoining land subject to restrictive covenant
D built expansion of driveway
C objected because this would interfere with their enjoyment, sought
injunction
Only very small interference
Court
Bingham
C must overcome all other equitable remedies (leches) first
But court still could withold grant
On facts, because it was trivial interference, gave them damages
rather than injunction
Spycatcher
Equity will not act in vain
AG sought damages for leacking confidential information: wanted injunction to
stop everyone from publishing it in UK
Although it was already published against the world
Court
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Court
Said no injunction despite spycatcher supplied worldwide publication and
available to everyone in UK who wants to read it
AG still wants to repress media even though people can read it anyway
If such was the law, then it would be stupid
Measures Bros v Measures
Clean Hands
C agreed to work for 7 years, and not work for anyone else if terminated for 7
years after termination by D
D went bankrupt after 2 years, but still wanted injunction to prevent him
from working for anyone else
But since was not for 7 years, unconscionable to enforce 2nd clause
Public interest
Miller v Jackson
Cricket field may have hurt family
Damages rather than injunction to stop cricket
Kenneway v Thompson
People living new motorboat ground lake
C sought injunction, was granted-some noise was unjustified
Dennis v Ministry of Defense
Countryside where RAF trained figherjets-lots of disruption to house
No injunction, RAF must fly somewhere, so damages
- Interim injunctions
Inbetween trial-continue to suffer harm if no
Test for interim injunction
American Cyanmid
Balance of convenience
Bonnard v Perryman
L Colridge
In defamation this must be cautions
Presumption against balance of convenience in interim injunctions
S.12 Human Rights Act
If relief may interfere with freedom of expression, court must pay particular
attention to impact
Vicarious Liability
Monday, 9 March 2015 10:15
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Approach
- Tort by D1
- Relationship between D1/D2
Generally employment-or akin to employment
- Tort committed in course of employment
Masterclass
- Non-delegable duty vs vicarious liability
VC: arises b/c relationship between employer/employee
No prior relationship between D and C
JD east berkshire
NDD
Arises from pre-existing relationship between C/D
Because of this pre-relationship, D owes C a duty, duty cannot be delegated
Performance can be delegated, but not liability
- VC before negligen
Masters/servants relationship
50 years ago when phillips first started
D1 is employer of D2
Chauffer vs taxi driver or independent contractor
Difference: where employer has control over the MANNER in which employee
exercised his duties (diff. between taxi and chauffer)
Entitled to direct=greater responsibility for actions
D2 committed tort
Tort committed in course of employment
Wrongful act authorized by master vs frolic of his own
Coachman
Drives master to races, runs over someone
Coachman drives coach in
- Moving on
Employer/employee relationship relaxed
Exeption: employer lends employee to 3rd party
If 3rd party has necessary control as original owner, he will be VC
Where crane and operator are both hired out to 3rd party common example
Griffiths
Original employer was liable, even though he had no control due to contractual
provision
Emphasis was on control
But this is out of date
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Non-delegative duty?
- Origin from nuisance
Non-delegatable duty (Rylands v Fletcher)
To exercise reasonable care
L Blackburn
Duty should not go so far as to make him ensure that no damage came to his neighbour's
land
Only should be to take reasonable care
- Andrew william/Fleming
Disguised form of VC
Wilson v English
Agent must perform it on owner's behalf
Owner remains vicariously responsible for the damage the agent caused, cannot escape
liability by proving he appointed incompetent agent
- Skills professionals could not be treated as employee of hospital b/c
No control in manner
Gold v Essex
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Gold v Essex
Hospital was liable however
Used VC principles
MR used language of NDD, however
Cassidy v MoH
Was ministry liable for negligence of doctor?
Court
Found VC
Doctor was employee of hospital
LJ Denning
Where a person is himself under care, he can't delegate this to anyone else, whether
that be a servant or independent director
Seems to indicate NDD
Lister: non-delegablerer4erer4 duty?
Employer has assumed relationship to plaintiff, which gives specific duties on employer, and
cannot be delegated to servants
Employer assuming relationship to plaintiff would not discharge duty by giving it to
employee
Very large expansion in this area
- Woodland v Essex CC
L Sumption
Young girl fell into water and suffered serious brain damage, lifeguard negligent
Lifeguard was independent contractor, so no VC
Cs wanted to go non-delegated duty
Requirements for DCC
C is especially vulnerable, dependent on care of D to not suffer
There is an antecedent relationship between C and D
C in care of D
Where it is possible to impute a positive duty on D to prevent harm on C
D has element of control over C
C has no control over how D performs his obligations (through employees/3rd
parties)
D delegated to 3rd party an integral part of his duty towards C
3rd party is negligent in the performance of the very duty that was delegated to
him by D
Significant expansion of VC will be imposed
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Comparative Law
Monday, 16 March 2015 10:10
Comparative law
Old aims
- Acquiring knowledge
- Mapping/classifying the laws of the world
- Learning from other systems
- World peace
Modern aims
- Legislators (national and EU)-make laws attractive for businesses
- Courts
- Practitioners-family law, advise clients for best jurisdiction to divide assets
- Lobbyists (level playing field)
- Harmonisation?
Not so much now
Complicating factors
- Languages
Common law=common language (British Empire)
Translation: negligence, faute, Fahrlasigkeit
Things get loss in translations, creates misunderstanding
- Legal systems
Codification vs case law
Precedents vs statuts
Courts vs civil code
Judiciary and procedure
Continental courts give one decision, no different opinions
Need to know context to have full understanding
Influences
French influences
Western/southern Europe, south America, Africa
Germany/Austria
Central, eastern, northern Europe, Japan, South Korea, Greece
England
India, US, Canada, Hong Kong, Singapore
Legal culture
- Link between legal system/legal culture
Culture differences influence legal systems
- Fault liability/Strict liability
Strict liability much more common in civil jurisdictions: rule in France, not exception
Fair just and reasonable: very embedded in culture
Features
- Code Civil 1804
Napoleon
- Principle-based
Unlike english law, where statutes are very specific for parliamentary sovereighnty
- Liberte egalite fraternnite
- Strict liability dominant
- Cour de cassation
Brief apodictic style of judgements - sometimes only 1 page
- Overview
England Germany France
Legal basis Tort of negligence S.7road traffic act Loi badinter
Liability type Fault Strict Absolute
Protected road N/A Pedestrians, cyclists, Pedestrians, cyclists,
users passengers, drivers passengers
Burden of Victim must prove Liability unless D Liability unless defendant
proof negligent conduct proves external cause proves inexcusable fault
Contributory No exceptions- Not against child <10 No defense
negligence contributory negligence yo
allowed
- General remarks
Motor vehicles compulsorily insured against liability
EU only regulates compulsory liability insurance, not substantive law
No harmonisation expected
Road traffic accident rules reflect most fundamental thoughts about liability in legal
systems
- France
Art.1384(1) will be engaged
Victim only needs to prove the event happened (thing-car caused you damage,
and the keeper of the thing (custodian) caused it to do so)
Liability in principle, unless defences
External cause
Acts of 3rd parties/victim himself that were unforseeable
Very rarely accepted
contributory negligence
More easily accepted
Reforming liability in France, but legislators too slow
Desmares case 1982
Court de Cecassion stepped in
Abolished defence of contributory negligence
External force is the only defense left
Loi Badinter 1985
All or nothing system
C gets 100% or nothing, most of time get 100%
1987: end of Desmares case law
New requirements
Implication
Motor vehicle must be implicated in accident
Defences
Inexcusable fault
Inexcusable fault of victim
If pedestrain crosses a highway without taking
pedestrians-still not inexcusable fault
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Conclusions
- Victim protection is key
But different jurisdictions mean different things
- Compulsory liability insurance
England: thinks that making strict liability would be bad because people can't pay
But in france-compulsory liability, works!
- Differences
Strict liability: France and germany v England
Burden of proof in strict liability beneficial for victim
Constitutional difference:
Supreme court can overule parliament