Professional, Practical, Proven

Academy 2019/2020

Law and Ethics

Law of TortLecture 10

1) Describe a tort and define negligence2) The four elements of negligence3) Defenses to negligence4) Remedies for an injured party5) Professional negligence

Contents

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Law of Tort

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• A wrongful act in civil law other than a breach of contract or trust that gives rise to a claim in damages

• Common examples:• Trespass• Nuisance• Defamation• Negligence

Tort Defined

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• The unintentional breach by one party of a legal duty of care that cause loss/damage to the injured party

• Must prove:• Duty of care owed by the defendant• Breach of the duty of care • Damage suffered was caused by the breach• Damage was not too remote

What is Negligence?

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• Did the defendant owe a duty of care to the injured party?

Donoghue v Stevenson (1932)

• The Neighbour Principle - Persons who are so closely and directly affected by my acts or omissions that I should have them in contemplation when directing my mind towards those acts or omissions

• The Modern Day Test Caparo Industries v Dickman (1990)

• Was it reasonably foreseeable defendant’s action would cause harm?• Is there sufficient proximity between plaintiff and defendant?• Is it fair just and reasonable to impose a duty of care?

Duty of Care

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• Reasonable Man TestBlyth v Birmingham Waterworks (1856)

“omission to do something which a reasonable man would do”.

• Probability of causing damage O’Gorman v Ritz Clonmel (1947)

• Seriousness/Gravity of likely damageParis v Stepney Borough Council (1951)

• Cost and practicality of taking precautionsMuldoon v Ireland and Others (1988)

• Social Value of defendants actionsWatt v Hertfordshire County Council (1954)

Breach of Duty

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• Did the Breach cause the damage suffered by the injured party?

• BUT FOR TEST but for the defendant’s breach would the plaintiff have suffered the damage?

Barnett v Chelsea and Kensington Hospital (1969)

Causation

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• MATERIAL ELEMENT TEST • Where there are multiple causes of the injury

McGhee v National Coal Board (1973)

Causation

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• Reasonable Foreseeability Test - The courts will have to determine the damage cause was too remote, i.e., not reasonably foreseeable

Re: The Wagon Mound (1961)

Remoteness

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• Volenti non fit Injuria :Voluntary Assumption of Risk (Consent)Regan v Irish Automobile Club (1990)

• IllegalityAshton v Turner (1981)

• Contributory NegligenceFroom v Butcher (1976)

DEFENCES

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• Damages• Special Damages • General Damages • Aggravated Damages• Exemplary Damages• Nominal Damages

• Injunctions• Mandatory/prohibitory• Interim/permanent

REMEDIES

SAGEN

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• Must exercise a standard of care that is appropriate to a reasonable member of the profession

• Common practice What if the practice itself is flawed?

Bolitho v City & Hackney Health Authority (1998)

Professional Duty of Care

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QUESTION 11 – NEGLIGENCE AND DUTY OF CARE(a) Explain the meaning of the term negligence.

(1 mark)(b) In the context of duty of care in negligence explain how the following TWO tests operate in order todetermine the existence of a duty to take reasonable care:

(i) The neighbour principle(4 marks)

(ii) The modern day test(5 marks)

Total 10 Marks

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QUESTION 10Austin recently audited the accounts of Westwall Construction Ltd and provided an unqualified auditor’sreport to the shareholders of the company at its Annual General Meeting (AGM). Subsequent to thisreport the company has been investigated by the Office of the Director of Corporate Enforcement (ODCE)for fraudulent activity. The ODCE has discovered that the financial accounts of the company have been falsified in terms of sales records, purchases records, stock and the value of its fixed assets (which have not been depreciated in line with current market value). As Austin had not attended Westwall Construction Ltd’s stock take in the previous five years he was unaware of the falsified purchases, sales and stock records.The shareholders of Westwall Construction Ltd have recently appointed new directors to the company.These directors have contacted Austin to inform him that they plan on suing him for all losses arising inthe company as a consequence of his negligence.A. Draw a table outlining the FOUR elements of negligence and list the tests applied by the Court todetermine the existence of each of these elements.8 MarksB. Assess the potential success or otherwise of Westwall Construction Ltd’s claim against Austin fornegligence.2 MarksTotal 10 Marks

A. Elements of Negligence TestsDuty of Care:(1) Neighbour Test(2) Modern Day Test:Was it reasonably foreseeable that the defendant’s action would cause harm?Is there sufficient proximity between the plaintiff and defendant?Is it fair, just and reasonable to impose a duty of care on the defendant? (3 marks)

Standard of Care:Reasonable Man Test – taking into consideration:A. The probability of causing damageB. The seriousness/gravity of the likely damageC. Issues of cost and practicalities in taking precautionsD. The social value of the defendant’s actions (2.5 marks)

Causation:A. Single Cause: the “but for” testB. Multiple Causes: whether or not the actions of the defendant materially or substantially contributed to the plaintiff’s injury (1.5 marks)

Remoteness: Reasonable Foreseeability (1 mark)

B. Conclusion that: (1) Austin owed Westwall Construction Ltd’s a duty of care (based on foreseeability and proximity),

(2) he breached the standard of care by not attending WestwallConstruction Ltd’s stock take in the previous five years,

(3) but for the actions of Austin the shareholders of WestwallConstruction Ltd may not have suffered a loss, and Austin’s actions materially and substantially contributed to this loss, and

(4) these losses are reasonably foreseeable– thereby Austin is liable in negligence to Westwall Construction Ltd (2 marks)

The two main remedies in a Tort action are injunctions and damages. In this regard explain the meaning:(a) The meaning of the term “injunction” and the types of injunctions that may be granted by the Court.

(3 marks)(b) The distinction between general damages and special damages.

(4 marks)(c) The meaning of the term “punitive damages”, including an example of a situation where these types ofdamages may be awarded.

(3 marks)Total 10 Marks

A. Injunction: This is an Order of the Court compelling a person to do a specific thing (mandatoryinjunction) or preventing a person from doing a specific thing (prohibitory injunction) – an injunction isclassed as an equitable remedy and therefore granting it is at the absolute discretion of the Court – it isusually awarded when there is a legitimate legal case to answer and where the balance of probabilities liesin favour of granting it (2 marks) – there are two main types: (1) an interim injunction – granted on a shortterm basis pending a full hearing of the legal issues, and (2) a perpetual injunction granted following a fullhearing of the case (1 mark)

B. General and Special Damages: Special damages are awarded for out of pocket expenses incurred as aresult of the defendants actions – they are generally capable of being calculated and are usually divided intotwo distinct headings, loss of actual earnings and medical expenses – they can also relate to expensesarising out of property damage (2 marks), whereas general damages are damages awarded for the civilwrong committed, but which are not capable of simple calculation – this could include damages arisingfrom pain and suffering as a consequence of a physical injury or mental distress, as well as future medicalexpenses, loss of future earnings, diminution of quality of life etc (2 marks)

C. Punitive Damages: These are damages awarded as an additional measure to the plaintiff in cases wherethe Court strongly disapproves of the defendants behaviour, and to punish/make an example of thedefendant – generally, they are only awarded where the actions of the defendant are sufficiently egregiousand where the Court believes that actual loss is not sufficient to sanction this behaviour (2 marks) – anexample of this could arise in a defamation case, where rather than admit they are wrong the defendantstates that they can prove the truth of their statement and then cannot do this when the case goes to hearing(1 mark)

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