ACCA F4: Chapter 3 - The Law of Torts

1 Understand the nature of the law of tort A tort is a type of civil wrong. It is a breach of a legal duty or an infringement of a legal right which gives rise to a claim for damages. As a tort is a breach of a legal duty, there is no liability unless the law recognises that the duty exists.

1 Understand the nature of the law of tort A contractual relationship does not have to be established for a claim in tort to be successful. Often the parties have never even met before. For example, in a claim for personal injury as a result of a road accident, the parties will often have had no previous relationship at all.

1 Understand the nature of the law of tort The claimant may choose the remedy most appropriate.

1 Understand the nature of the law of tort Contract: Under a valid contract, the amount of damages awarded is intended to put the claimant back in the position he would have been in had the contract been properly performed. In contract the limitation period is six years from the breach of contract. Tort: In tort, the amount of damages awarded is intended to put the claimant in the position he would have been in had the tortious act never taken place. In tort the limitation period is generally six years, but three years for personal injury.

1 Understand the nature of the law of tort - There must be an act or omission by the defendant. - The act or omission must have directly caused damage or injury to the claimant. - The courts must be able to establish a legal liability as a result of the damage. - A claim will only be successful if the damage or loss suffered is not ‘too remote’ i.e. the damage or loss must be as a direct consequence of something the defendant did/or did not do.

2 Negligence Negligence is the breach of a legal duty to take care, which results in damage to another.

2 Negligence - That a duty of care was owed to him by the defendant - The defendant breached that duty - As a consequence of that breach, damage or loss has been suffered.

2 Negligence There is a duty to take reasonable care not to cause foreseeable harm to others.

2 Negligence The case of Donoghue v Stevenson (below) was the first to establish that a duty of care may be owed to a person, even where no contractual relationship exists. Manufacturers of goods owe a duty of care to the ultimate consumer of the product. Prior to this case, the belief was that to allow an action to be taken where there was no contractual relationship would undermine the principles of contract law. The doctrine of privity states that only parties to a contract can sue or be sued.

2 Negligence Facts: Mrs Donoghue went to a cafe with a friend. The friend bought her a bottle of ginger beer which Mrs Donoghue drank. She then discovered that there was a decomposed snail in the bottom of the opaque bottle. Mrs Donoghue found this sight so upsetting that she suffered physical illness. She sued the manufacturer, claiming that they were under a duty to see that such outside bodies did not get into the ginger beer. Held: There was a duty on behalf of the manufacturer to take reasonable care in the manufacture of their products. The manufacturer owes a duty to the consumer to take reasonable care to prevent injury.

2 Negligence ‘You must take reasonable care to avoid acts or omissions which you ought reasonably foresee would be likely to injure your neighbour.’ He defined neighbours as: '...persons who are so directly affected by my act that I ought reasonably to have them in contemplation'.

2 Negligence Bourhill v Young (1943) Facts: A motorcyclist was killed in a road accident for which he has responsible. A pregnant woman who got off a tram near the scene of the accident claimed that when she got to the scene of the accident she saw blood on the road and as a result suffered shock which put her into premature labour which resulted in the loss of her baby. She subsequently brought a claim in relation to nervous shock and the resulting loss. Held: The House of Lords held that the motorcyclist did not owe a duty of care to the pregnant woman as she was not deemed to be a foreseeable victim. She was not present at the scene of the accident, she arrived after the accident occurred.

2 Negligence A secondary victim is someone whose personal safety is not threatened, but who suffers psychiatric injury as a result of either fear for the safety of others or the trauma of witnessing a harrowing event. - First, they must have close ties of love and affection with the person who suffers injury or death in an accident attributable to negligence. - Second, they must have been present at the accident or on the scene in its immediate aftermath. - And third, the psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon receiving it second-hand.

2 Negligence White v Chief Constable of South Yorkshire Police (1998) Facts: The claimants were police constables on duty for maintaining law and order during a football match in April 1989 at Hillsborough Stadium. As a result of overcrowding and the consequent stampede, 95 people died and hundreds of others sustained injuries. The policemen on duty, including the claimants, had to tend to the victims for whom many of them suffered post traumatic stress disorder. Four of them were on duty at the stadium, and the fifth one was responsible for stripping bodies and completing casualty forms at a hospital. Resultantly, they claimed compensation for their psychiatric injury from the police department. Held: The House of Lords overruled the decision of the Court of Appeal and rejected the claim. In this case the claimants did not meet the first criteria of for a sucessful claim.

2 Negligence Pure economic loss is monetary loss which is unconnected to physical injury to a person or damage to other property. Not recoverable!