A tort where D must have a Duty of care, Breach of that duty, and Damage caused by the breach
Duty of care
First established in Donoghue vStevenson and further developed in Caparo v Dickman
Current test used is Robinson v CC west Yorkshire police
Criteria for establishing duty of care
Is it reasonably foreseeable that D's act would cause damage/loss - Kent v Griffiths
Is there a previous existing precedent with the same or similar facts that establish a duty of care
Existing cases establishing duty of care
Doctor to Patient- Sidaway v Bethlem royal hospital
Nurses to Patient- Barnett v Chelsea & kensington
Teacher to Pupil- X vBedfordshire
Road users- Nettleship v Weston
Manufacturer to consumer- Donoghue v Stevenson
Employer to Employee- Bradford v Robinson Rental
Breach
First established the reasonable man test in Blyth v Birmingham waterworks co and developed in wells v cooper adding that they must be performing the same task
Existing cases establishing breach
Bolam v Friern- Profession accepts more than one way of doing a task, any accepted way is reasonable
Nettleship v Weston- Learners and incompetent drivers will be held to the same standards of a reasonable competent driver
Mullin v Richards- A child will be judged by the standard of reasonable competent child of the same age
Factors courts will consider in determining the standard of care
Likelihood/Size/Magnitude of risk: Haley v LEB
Have all practical precautions been taken: Latimer v AEC
Characteristics of C: Paris v Stepney council
Social importance of D's activity: Watt v Hertfordshire
Damage
Factual Causation - Barnett v Chelsea & Kensington established BUT FOR test
Remoteness of damage - WagonMoundNo11961 states if damage is foreseeable C can claim, if the damage isn't foreseeable C cannot claim as it is too remote
Existing cases on damage
Bradford v Robinson Rentals- if type of damage is foreseeable it does not matter if damager suffered is rare or extreme
Hughes v LordAdovocate - If damage is foreseeable, it does not matter if it happens in unforeseeable way
Smith v LeechBrain- D must take his victim as he finds them
Psychiatric Injury
Must be a recognised psychiatric condition resulting from the shock of the incident and capable of having long term effects
D must have caused C's psychiatric injury using ordinary rules of causation and remoteness
Types of victims in psychiatric injury
Primary victims - at the zone of danger
Secondary victims - not at the zone but witness the incident or its immediate aftermath
Alcock criteria for secondary victims
Close ties of love and affection
Suffered mental injuries at the scene or in its immediate aftermath
C must see or hear of the incident through their unaided senses
A person of ordinary fortitude and customary phlegm would have reasonably suffered psychiatric injury
The psychiatric injury was induced by shock
Economic Loss
Any loss which leaves C financially well off
Consequential economic loss is always recoverable if C can satisfy the rules on causation and remoteness
Pure economic loss caused by a negligent act cannot be claimed for as stated in SpartanSteel
Duty of care for pure economic loss
C can claim for pure economic loss caused by a negligent misstatement if they are able to establish a duty of care was owed, as stated in Hedley Byrne v Heller
Criteria for establishing a special relationship for duty of care in pure economic loss
D must have specialskill or expertise
D must voluntarilyassumeresponsibility for giving advice
D must know that C would rely on the advice and that it was reasonable to rely on the advice
C has relied on advice to their detriment
Private Nuisance
An unlawful direct interference with a person's use or enjoyment of their land or rights over it
C must have proprietary interest in the land to make a claim
Factors courts will consider in determining if a private nuisance is unreasonable
Sensitivity of C
Duration and time of nuisance
Character of the area
Acts of malice
Social benefit
There must be some damage, harm or inconvenience to C, and the damage must be reasonably foreseeable
Injunction
Prohibits or controls an activity, won't be granted for trivial matters or where it's in the public interest for the activity to continue
Rylands v Fletcher
D brought something dangerous onto the land which has escaped and caused damage
Criteria for Rylands v Fletcher
D must voluntarily bring onto his land an accumulation of substance which escapes and it must be an artificial accumulation
Accumulated substance must be dangerous
Must be a non-natural use
Dangerous thing must escape
Only damage stored on the land can be recovered
Defences to Rylands v Fletcher
Act of God
Act of Stranger
Vicarious Liability
Employee remains jointly liable with their employer for their actions
Substance moves from D's land to a land they don't control
Reads v Lyon
Claim failed as C got injured on D's premises so there wasn't an escape
Stannard v Gore
D had bought tires on premises not the fire
Only damage stored on the land can be recovered, damage anywhere else and personal injury can't be claimed for as seen in Rylands
Cambridgewater co v eastern held that only damage which is foreseeable is recoverable
Act of God
A natural event so enormous that it can't be foreseen or guarded against
Nichols v Marsland
D was not liable as there was nothing he could do
Act of Stranger
D is not liable if the escape is caused by the deliberate and unforeseen act of a stranger
Perry v Kendricks
D was not liable as the act was caused by the deliberate act of a third party
Vicarious Liability
Employee remains jointly liable with their employer for their actions. C can sue employee but more likely to sue employer. Employee and vicariously liable employer are jointly and severely liable for damages to which C is entitled
To establish vicarious liability against an employer
The wrongdoer has committed the tort against C
Establish that wrongdoer is an employee
Economic test is that having considered all the facts of the case, the court decides whether the overall picture of a worker is closer to an employee or to an independent contractor
Hawley v Luminar Leisure
Original test is the control test stating an employee is a worker who is told that to do and how to do it
Dragonfly Consultancy Ltd v HMRC
The club exercised so much control over the manner in which the employee carried out his work that they effectively employed him
Readymixed concrete v minister of pensions
Drivers were independent contractors because they owned major assets and profit depended on their decisions