1. Lecturer: Miljen Matijašević e-mail: miljen.matijasevic@gmail.commiljen.matijasevic@gmail.com Session 4

2. 1. Revision of the last session 2. Negligence 3. Case studies

3. English Civil Law The Law of Torts

4. Derive adjectives from the following nouns: 1. tort 2. defamation 3. libel 4. slander 5. fraud

5. Derive adjectives from the following nouns: 1. torttortious 2. defamationdefamatory 3. libellibellous 4. slanderslanderous 5. fraudfraudulent

6. 1. What is English civil law and how do we classify it? 2. What is a tort? How are torts regulated in English law? 3. What is the job of the court in tort cases? 4. Can the same act be considered a crime and be subject to a civil lawsuit? Elaborate. 5. What are the available remedies in torts? 6. What does compensation include?

7. Unit 31

8. Negligence = carelessness?

9.  Defined as a breach of a duty of care owed to the claimant, which resulted in an injury or loss (i.e. damage) sustained (i.e. suffered) by the claimant through negligent action/omission on the part of the defendant  Damage caused by negligence gives grounds for a civil claim for compensation (e.g. damages)

10.  In order to establish liability for negligence, the following must be established: ◦ Breach of duty of care (i.e. negligence) ◦ Causation

11.  The first thing to establish is: ◦ Did the defendant owe the claimant a duty of care?  The second question: ◦ What standard of care was expected of the defendant in the situation in question?  Finally: ◦ Was that standard of care breached? reasonably foreseeable  Harmful consequences, i.e. damage must be reasonably foreseeable

12. Types of standard:  The General Standard  The Higher Professional Standard  The Lower Standard

13.  The General Standard of Care ◦ ‘The level of care provided by a reasonable man in the given circumstances’ Blyth v Birmingham Waterworks (1856) A hydrant broke in a Birmingham street, causing a flood which affected a number of ground-floor and basement flats. The frost was of a severity hardly to be expected in the region.

14.  The Higher Professional Standard ◦ Standard expected of a reasonable professional – of particular importance in clinical negligence claims ◦ A medical professional is expected to act in accordance with practices accepted as proper by a responsible body of medical opinion

15. Bolam v Friern Hospital Management Committee (1957) – consequences of electroconvulsive therapy; the claimant had not been given relaxants nor had he been restrained – suffered substantial injuries ◦ This precedent also known as ‘The Bolam Test’ ◦ At the time, giving relaxants or restraining patients was not standard procedure – the Hospital not liable

16.  The Lower Standard ◦ Applies to a reasonable child of the defendant’s age Mullins v Richards (1998) A 15-year-old girl was playing with a plastic ruler. It broke and a splinter hit a classmate in the eye, causing eye damage. ◦ In your opinion, should the lower standard apply to adults, e.g. learner drivers or inexperienced medical doctors?

17.  Having established the breach of duty of care, the claimant must prove CAUSATION (i.e. that it was that particular breach that caused the damage) but for  The ‘but for’ test: Would the claimant have been injured but for the defendant’s breach of duty? (but for=if it hadn’t been for) NO: there is causation – defendant liable YES: there is no causation – defendant not liable, although negligent

18.  Proving causation may be very complicated if the damage might also have occurred in a non- tortious way ◦ E.g. exposure to asbestos causing someone’s cancer – the cancer might have developed regardless of the exposure  In cases like this, the claimant needs to prove that the negligence materially increased the risk of damage  Burden of proof: balance of probabilities (defendant’s negligence more likely than not caused the damage)

19.  In the event of original (non-tortious, natural) and increased (tortious) risk of damage – the risks are quantified  The original risk is weighed against the increased risk FOR EXAMPLE: ◦ original risk 20 %, increased risk 40 % - there is causation ◦ original risk 60 %, increased risk 40 % - there is NO causation

20.  Problematic cases – negligence obvious, but causation difficult to prove ◦ Cook v Lewis (1952) The claimant had been shot at by D1 and D2 at the same time. Either shot could have caused the claimant’s injury, but it was impossible to prove which one had. The “but for” test could not provide results.

21.  The chain of causation may be broken by: ◦ a natural event, ◦ an action by a third party, or ◦ an action by the claimant.  If the chain is broken, causation cannot be established

22. foreseeabilityremoteness  Weighing foreseeability and remoteness  In establishing the causal link, the danger, i.e. harmfulness of the defendant’s actions must be reasonably foreseeable and the injury must not be too remote from the negligent act  If the damage is remote, it might affect the amount of compensation

23. ◦ Jobling v Associated Dairies (1982) The defendant (claimant’s employer) negligently caused injury to the claimant, which reduced his earning capacity. Several years later, the claimant contracted a natural illness that would stop him from working. ◦ Q: Can D be found liable for C’s loss of earning capacity resulting from the illness?

24. ◦ Jobling v Associated Dairies (1982) ◦ NO CAUSATION – the natural illness would have developed regardless of the negligent act. Damage too remote from the negligent act.

25. ◦ Robinson v The Post Office (1974) The claimant was injured at work through the defendant’s negligence (claimant’s employer). As treatment, the claimant was given an anti-tetanus injection. Several days later, he developed a severe reaction to the vaccine, which caused brain damage. ◦ Q: Is D liable for the ultimate brain damage? What about the liability of the doctor administering the anti-tetanus shot?

26. ◦ Robinson v The Post Office (1974) ◦ CAUSAL LINK ESTABLISHED – if it had not been for D’s negligence, the C would not have received the anti-tetanus shot. The doctor was following standard procedure and applied the expected standard of care.

27.  Negligence regulated by statutes, not subject to common law  If care is owed pursuant to a statute, common law negligence cannot be claimed  Statutory negligence regulated in: 1.Consumer Protection Act 2.Occupiers’ Liability Act

28. Consumer Protection Act  implementing EU Product Liability Directive  In the case of products causing damage to consumers – producers and suppliers have strict liability, i.e. legal responsibility independent of negligence

29. Occupiers’ Liability Act  Applies to occupiers of premises, who owe a duty of care to their visitors and are liable for any damage ‘due to the state of the premises or to things done or omitted to be done on them’

30. standard of care sustain damage damages liability foreseeability remoteness causation ‘but for’ test original risk increased risk statutory negligence strict liability

32. Three men attended at the emergency department but the casualty officer, who was himself unwell, did not see them, advising that they should go home and call their own doctors. One of the men died some hours later. The post mortem showed arsenic poisoning, which was a rare cause of death. Even if the deceased had been examined and admitted for treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Q: Is the casualty officer liable for negligence?

33. The claimant had suffered leg injuries through the defendant’s negligence, which left him prone to having his leg give way. One day the claimant visited a block of flats and descended the stairs carrying a child. When the claimant felt his leg give way, he pushed the child to safety and tried to jump and land safely himself. However, he broke his leg. Q: Is D liable for C’s injury (broken leg)?

34. Twin State Gas & Electric Co. maintained uninsulated electrical wires across a bridge. Children enjoyed climbing on the bridge. Dillon, a 14-year-old boy, climbed up the bridge. As he was leaning over the edge he lost his balance, grabbed a wire, and was electrocuted. If Dillon had not caught the wire, he would have surely fallen off the bridge and been killed. Twin State argued that he was dead either way. Q: Is Twin State liable for Dillon’s death?