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Summary SQE1 | TORTS
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TORTTo establish liability in tort :
• The law must recognise that the claimant's interest deserves protections
• It needs to establish that the defendant has acted in some manner that he ought to
be responsible for his consequences ( intentionally, recklessly or negligently)
• The defendants behaviour must be a cause of the loss and the loss must not be too
remote
Differing interests => damages in contract put the claimant in the position he would have
been had the contract been performed. Damages in tort are meant to put the victim of
the tort in the position he would have been had the tort not been committed.
The claimant must prove three elements:
▪ That the defendant owed the claimant a duty of care
▪ That the defendant has breached this duty of care
▪ That the claimant has suffered damage as a result of the defendant's breach of his
duty of care. In this case, the claimant needs to prove:
o That the defendant's negligence cause the damage
o The damage is not too remote of a consequence
NEGLIGENCE AND ESTABLISHMENT OF DUTY OF CARE
DONOGHUE V STEVENSON -> the defendants being the manufacturers owed a duty of care to
the claimant as the ultimate consumer, to take reasonable care to ensure that the bottle
did not contain substances that were likely to cause injury to health. This duty applies
even though there is no privity of contract.
CASE FACTS RATIO
HOME OFFICE V Staff failed to properly guard The court held that it owed a
DORSET YACHT boys incarcerated in an duty of care to persons whose
institution ; they escaped and property it could be foreseen
caused damage to the might be damaged if the boys
respondent's property escaped.
Where there is no existing precedent to guide the court, the courts employ a three-stage
test for determining whether or not a duty of care exists
THE LOSS MUST BE • Necessary requirement
REASONABLY FORESEEABLE • The foresight of the reasonable man standing in
the shoes of the defendant (objective criteria)
• The claimant must show that it was reasonably
foreseeable that he would suffer loss as a result
,PROXIMITY BETWEEN • Relationship of proximity
CLAIMANT AND DEFENDANT
FAIR AND JUST TO IMPOSE • It should be fair and just to impose a duty of care
DUTY OF CARE • duty is not to the world at large
CASE RATIO
FIREMEN CASE No relationship of proximity because:
a) the firemen do not owe a duty to individual members of the
public
b) the firemen did no eneter into a relationship of sufficient
proximity
c) but where the fire creates a danger, than it has a positive duty
to take reasonable steps to avert the danger
AMBULANCE They owe a duty of care to individuals for prompt service and
SERVICES appropriate treatment. The reason for the distinction is that
unlike fire services where there is merely a general reliance by
property owners, the ambulance service is serving named
individuals who rely on the service which invokes a duty of care.
PSYCHIATRIC INJURY
• exposure to psychiatric injury as a result of exposure to physical injury (primary
victims)
• Claimants who were never at risk of physical injury but suffered psychiatric injury
by virtue of witnessing injury to another or believing that another was at risk of
injury (secondary victims)
• Rescuers and those who are thought that they were responsible for an accident
which resulted or might have resulted in injury to another
PRIMARY VICTIM SECONDARY VICTIM
Personally experiences the risk of The Alcock case test:
physical injury, whether such injury • psychiatric injury must be induced by the
occurs or not shock
• it was reasonably foreseeable that the
- a reasonable fear for her own claimant would suffer psychiatric injury
physical safety • close proximity in time and space
- Directlu involved in the accident • C suffered psychiatric injury through seeing
or hearing the accident or its immediate
aftermath
There is no requirements for a primary Being told about the accident by a third party
victim to prove foreseeability of the does not suffice
psychiatric injury
,Psychiatric injury must be induced by Courts are reluctant to award damages
shock ( a sudden appreciation of sight
or sound of a horrifying event)
In all cases, claimants must have sustained a recognised psychiatric injury rather than
mere grief, anger or anxiety.
No recognised psychiatric injury is necessary where a primary victim sustains physical
damage – it follows that the victim may recover additional general damages for distress
and anxiety cause by an accident.
A recognised psychiatric illness is one which has been recognised by the psychiatric
profession
- anxiety disorders
- depressive disorders
- adjustment disorders
• Mother seeing lorry hit her children -> claim succeded
• Pregnant woman seeing blood not the accident itself -> a mere bystander cannot be
owed duty of care as injury is not reasonably foreseeable
•Mother told on the phone of ter
family’s involvement in a car
- Time accident => damage is foreseeable
owing to her relationship and the
- Space and geography proximity as she was witness to its
immediate aftermath
- Causation
FORESEEABILITY OF SECONDARY
- Relationship to primary VICTIMS
victim
ALCOCK CASE
a) Sufficiently close relationship of love and affection with the primary victim
b) Proximity to the accident or its immediate aftermath which was sufficiently close in
time and space
c) Suffering nervous-shock through what was seen or heard of the accident or its
immediate aftermath (what is seen on TV is not immediate enough)
RESCUERS -> primary victims
, NEGLIGENT ACTS
CASE FACTS RATIO
SPARTAN STEEL D cut through the power cables Damages would be awarded in
AND ALLOYS leading to the C's factory, cutting respect of the damage to the
the power off for 14 hours. The C molten metal plus the truly
suffered damage as well as loss of consequential loss of profits
profit to the claimant. thereon.
However, no damages were
awarded for pure economic loss
as irrecoverable.
CASE FACTS RATIO
MURPHY V Walls of a house built on Original builder could not be
BRENTWOOD defective foundations started to liable to the claimant for the
show rack some years after cost of repairs because it has
DISTRICT COUNCIL construction. C sold it and then simply deteriorated through
brought an action against the internal defects. The c had
authority alleging they had been suffered pure economic loss in
negligent in passing plans. paying too much for a defective
building.
NEGLIGENT MISSTATEMENTS
CASE FACTS RATIO
HEDLEY BYRNE V C were advertising agents and There can be liability in for a
HELLER under a contract they were careless yet honest statement
personally liable if their clients causing economic loss.
failed to pay bills. They therefore
sought a reference stating that The D owed a duty of care to
their clients were good for the C to avoid causing financial
business when they were in bag loss by negligent misstatement,
financial shape. by virtue of the special
relationship between them.
Special relationship:
• C relied on the d's skill and judgement or his ability to make careful enquiry
• D knew/ought to have known that the C was relying on him
• It was reasonable for the C to rely on the D
The Hedley Byrne precedent only applies where the D were:
• Fully aware of the nature of the transaction
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