Paper Two

• ___ owes a clear duty of care, illustrated in Robinson V Chief Constable of West Yorkshire, to ___


  because...
• Duty is established by applying the principle from Caparo V Dickman 1990


  1. The first criteria is whether it was reasonably foreseeable that the claimant would be injured

  2. The second criteria is whether there was sufficient proximity by space, time or relationship

  3. The third criteria is whether it is fair, just and reasonable to impose liability
• In Kent V Griffiths 2000 it was reasonably foreseeable that an injured person waiting on an ambulance may develop severe injuries if there is a delay
• In Bourhill V Young, 1943 the defendant did not owe a duty of care because she was not of close relationship with the motorcyclist
• In Hil V Chief Constable of West Yorkshire, 1990 it was not fair, just or reasonable for the police to owe a duty of care because the police were not sufficiently close to the victim
• Breach of duty


  To prove breach of duty the defendant must have failed to reach the standard of care of a reasonable person which is an objective standard
• Professional standard of care


  • The standard of the professional is judged by the standard of the profession (Bolam V Friern hospital MC 1957)
• Learner standard of care


  • Learners are judged at the standard of the more experienced person (Nettleship V Weston 1971)
• Young person standard of care


  • The standard is a reasonable person of the defendant's age (Mullin V Richards 1998)
• Factors affecting the standard of care

  1. Special characteristics of the defendant

  2. Special characteristics of the claimant

  3. The size of the risk

  4. Whether all practical precautions been taken

  5. The benefits of taking the risk
• Damage


  1. Factual causation - applying the 'but for' test

  2. Causation in law - determining if the injury or damage suffered was reasonably foreseeable
• In Fairchild (2002) the 'but for' test was applied for factual causation
• In Bradford V Robinson (1967) the 'remoteness' of damage was applied for causation in law
• Breaks in the chain of causation


  1. Intervening acts

  2. The thin skull rule

  3. The victim's own act
• Damages


  Financial compensation to place the claimant back into their original position before the negligent act occurred
• Heads of damages


  • Loss earnings
  • Loss of future earnings
  • Future medical care
  • Loss of amenity
  • Pain and suffering
• Special damages


  Cover the period up to the trial for pecuniary loss that can be easily calculated in money terms
• General damages


  Cover the period after the trial for non-pecuniary loss because of the pain and suffering because of the accident or loss of amenity
• Mitigation of loss


  The claimant's duty to keep their loss to a reasonable level
• Forms of damages payment


  • Lump sum
  • Periodic payments
• Vicarious liability


  Employer may be liable for torts committed by employee or person in a position akin to employment
• Tests for vicarious liability


  1. Control test

  2. Integration test

  3. Economic reality test

  4. Close connection test
• In Barclays Bank V Various claimants (2020) the courts established that the tortfeasor must be an employee or in a position akin to employment for vicarious liability to apply
• In Short V JW Henderson LTD (1946) the control test was used to determine if the employer had the right to control what the employee did and the way in which it was done
• In Stevenson, Jordan and Harrison Ltd v Macdonald & Evans (1952) the integration test was used to establish whether a person is an employee if their work is fully integrated into the business
• In Ready Mixed Concrete v Minister of Pensions & National Insurance (1968) the economic reality test was used to determine whether a person is employed or is a self-employed contractor
• In Limpus v London General Omnibus the close connection test was used to determine if the employer will be liable for torts that an employee commits during the course of their employment
• In Hilton v Thomas Burton the employer will not be liable if the employee is acting on a 'frolic on his own' (acts outside the course of employment)
• Primary victim


  A person who suffers a diagnosed psychiatric injury
• In Behrens and Ors v Bertram Mills Circus Ltd (1957) the court established that an employer may be liable for psychiatric injury to a primary victim
• Assessing liability for primary victim


  Apply negligence - duty of care, breach of duty, damage
• Secondary victim


  A person who suffers psychiatric injury from witnessing an accident or its immediate aftermath
• Assessing liability for secondary victim


  1. Apply duty of care (Caparo V Dickman), breach of duty, damage

  2. Apply Alcock criteria - close ties of love and affection, mental injuries at the scene or immediate aftermath, suffered shock through own unaided senses
• In Page V Smith the rights and remedies available to secondary victims were defined
• In Mcloughin V O'Brien 1982 the court established that the claimant must have close ties of love and affection with the victim through blood/relationship to be considered a secondary victim
• Economic loss


  Consequential economic loss cannot be claimed for
• Private nuisance


  Unlawful indirect interference with a person's use or employment of land coming from neighbouring land
• Types of private nuisance


  • Loss of amenity nuisance (noise, smell, smoke)
  • Material damage nuisance (dangerous state of affairs on defendant's land causes physical damage)
• In Sedleigh Denfield V O'Callaghan the court established that private nuisance is the unlawful indirect interference with a person's use or employment of land coming from neighbouring land
• In Hunter V Canary Wharf the court established that for a successful private nuisance claim, the claimant must prove the defendant's activity amounts to unlawful or unreasonable use of land