guidelines cl a2 (revised)

7/28/2019 Guidelines CL A2 (Revised)

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Unit Outcomes

Outcome Evidence for thecriteria

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Examine therole of the

Law of Tortin business

activities

assessingparticularforms oftortiousliability

(3)

Describe thenature of generaltortuous liabilitycomparing andcontrasting tocontractual

liability

3a.1 Definitions of Tort and Contract

define tort

define contract

3a.2 General Characteristics of Tortuousliability

3a.3 Aims and Objectives of the Law of

Torts

3a.4 Compare and Contrast Tort and

Contract

similarities

differences

3a.5 Case Examples

tortuous liability

contractual liability

a

Explain theliability applicableto an occupier of

premises

Part 1: Theory

3b.1 Describe Occupier

3b.2 Discuss Liability to visitors

define occupier liability

duty of care to visitors

discharge of duty to visitors

(reasonable measures and

warnings)

Part 2: Relate to Case3b.3 Issue: Do it on your own

3b.4 Explain Trespasser & Duties toTrespasser

3b.5 Prime Computers liability to

trespassers

analyze prime computers actions

and responsibilities as an

occupier (such as standard of

care)

apply relevant rules (i.e. duty

owed, duty broken, damage,warning)

case examples

3b.6 Conclusion (draw assumption from

analysis)

b

Discuss thenature of

employersliability withreference to

vicarious liabilityand health and

safetyimplications

Part 1: Theory

3c.1 Vicarious Liability

define vicarious liability

explain employers liability with

reference to vicarious liability

c


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safetyimplications

3c.2 Tests Applied by the Courts to

prove employment relationshipbetween Prime Computers andPeter, Bob and Lydia.

The control test

The integration test

The multiple test

other factors

does the alleged employer have

the power to select or appoint its

employees, any may it dismiss

them? course book page 117

clause (b)

Payment of salary is a fair

indication of there being a

contract of employment course

book pg 117 clause (c)

case examples

CASE 1: Peter

Part 2: Relate to Peters Case3c.3 Issue

would Prime Computer be held

vicariously liable for tort

committed by Peter?

3c.4 Apply Rules and Provide Analysis

for Course of Employment

course of employment

(employer is vicariously liable for

the following torts of employees)

employee disobeys orders as

to how he shall do his work

course book page 118, clause

(a)

while engaged on his duties,

the employee does something

for his own convenience

course book pg 119, clause (b)

course of employment

(employer is not vicariously liable

for the following torts of

employees)

if employer allows theemployee to use the employers

vehicle for employees own

affairs, the employer is not

liable for any accident which

may occur. There is the same

result when a driver disobeys

orders by giving a lift to a

passenger who is injured 0

course book page 119

case example: Twine v Beans

Express 1946

3c.5 Conclusion (draw assumption from

analysis)

c


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safetyimplications

if the court found that smoking

was the probable cause, would

the compensation be reduced on

the basis of Bobs asthmaproblem?

apply contributory Negligence Act,

1945

it can result in a substantial

reduction

3.11 Conclusion

was Prime Computers be

reasonably able to foresee that

carelessness on his part may

damage the claimant under duty

of care?

would the law allow that duty to

result in liability? Refer to course

book page 148

would Bob be successful in his

claim? If so, whats the effect for

contributory negligence on his

asthma problem?

Remark: how substantial in the reduction

of claim due to contributory negligence

depends on medical evidence available

(Dann v Hamilton, 1939)

CASE 3: Lydia

Part 5: Relate to Lydias Case3c.12 Issue

would Prime Computers be held

vicariously liable for tort

committed by Peter?

3c.13 Breach of Duty of Care

was employee owed a duty of

care by employer for repetitive

strain injury? Use case examples

Bettany v Royal Doulton (UK)LRD (1993) and Pickford v

Imperial Chemical Industries pic

(1996)to confirm.

should employer provide

adequate instruction or training

or explain the risks of failing to

take adequate breaks?

c


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safetyimplications

in considering the

factors which impact on the

questionof breach such as costversus the practicality of taking

precautions and likelihood of

harm resulting, would employerappear to have breached their

duty?

3.14 Conclusion

consider above points carefully

and draw assumptions from

analysis

c

Distinguish strictliability from

general tortuousliability

Part 1: Distinguish Strict Liability fromGeneral Tortuous Liability

3d.1 Strict Liability

strict liability n. automatic

responsibility (without having toprove negligence) for damages due

to possession and/or use of

equipment, materials or

possessions which are inherently

dangerous such as explosives, wild

animals, poisonous snakes, or

assault weapons. This is analogous

to the doctrine of "res ipsa loquitur

in which control, ownership and

damages are sufficient to hold the

owner liable even without proof of

specific negligenct acts or

omissions. (See: negligence,

liability, res ipsa

loquitur)http://legal-

dictionary.thefreedictionary.com/St

rict+Liability

strict liability is liability without

fault (was the damage reasonably

forseeable) Case example: Rylands

v Fletcher

3d.2 Tortuous Liability

Tort liability, which is defined by

law, requiring an injured party to

prove only that he or she washarmed in a specified way in order

to collect damages. For example,

the law provides that an employer

is responsible if a worker is injured

on the job. All the worker must do

to collect Workers Compensation

Benefits is to prove that the injury

took place at work. Read more:

http://www.answers.com/topic/st

rict-liability#ixzz1A6mgGu50

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Distinguish strictliability from

general tortuousliability

tortuous liability revolves around

duties fixed by law

common tortuous liabilities may

include negligence, trespass,nuisance and so on. The precise

impact and extent may be

modified by statue, for example

consumer protection laws,

environmental laws etc.

Part 2: Relate to case

3d.3 Apply Tortuous liability to PrimeComputersas an employer

Injured party to prove that he or

she was harmed in a specified way

in order to collect damages in

Peter, Bob and Lydia cases.

d

Understandand apply

the elementsof the Tort

ofNegligence

(4)

Explain andunderstand the

application of theelements of the

Tort ofNegligence

Essential Elements of the Tort ofNegligence

1. A duty of care

(Basic test):

-Was the damage caused reasonable

foreseeable

-was there a relationship of proximity

between claimant and defendant?

-The law should allow that duty to result in

liability. In particular, liability for the actsof independent third parties has been

restricted.

2. Breach of that duty

-standard of reasonable care i.e. the person

concerned should do what a reasonable

(average) man would do and abstain from

doing what a reasonable man would not do.

-case example an application, Nettleship v

Weston (1971) Text book page 83

-rule for the standard of reasonable man

knowledge and general practice

existing at the time

particular skill

the balance must be struck between

advantage and risk

if is unusually vulnerable, a higher

standard of care is expected.

- discuss res ipsa loquitur i.e. the facts speak

for themselves with case example, Scott v

London & St Katharine Docks Co 1865

-what must claimant show to rely on res

ipsa loquitur principle?

a


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Explain andunderstand the

application of theelements of the

Tort ofNegligence

3. causation

-Define causation. (is the casual

relationship between conduct and result)-The usual method of establishing factual

causation is the but-for test. The but for test

inquires But for the defendants act, would

the harm have occurred? E.g A shoots and

wounds B. We ask But for A's act, would B

have been wounded? The answer is No.

So we conclude that A caused the harm to

B. The but for test is a test of necessity. It

asks was it necessary for the defendants

act to have occurred for the harm to have

occurred.

4. Damage caused by the breach

- damage was caused by breached of

defendants duty of care. The plaintiff must

demonstrate a loss or injury to recover.

-types of damages

Read more at Suite101: The Law of

Negligence: Duty, Breach of Duty,

Injury & Causation | Suite101.com

http://www.suite101.com/content/the-

law-of-negligence-

a105023#ixzz1NPUfykeq

Remark: These elements must be

considered in the above order and without

one of the elements liability will not be

proven.

a


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Analyse thepractical

applications ofparticular

elements of theTort of

Negligence

1.1 Claim Compensation for Nervous

Shock

Establishing Duty of Care, Breached ofDuty, Causation and Damage

- Did Tom owe a duty a care to Mimi,

Chriss mother? Did Tom breach that

duty? Who and what caused her to suffer

from nervous shock? Was there any

damage or injury done to her?

- basic duty of care test for Tom to Mimi,

Chriss mother using case example of

Donoghue v Stevenson 1932 (duty of care

owed to the ultimate consumer of goods

thereby providing a potential remedy for

a person injured by goods who was not in

contractual relationship with the

defendant).

* foreseeability of harm to the plaintiff of

class of plaintiff, i.e proximity in terms of

relationship and time and space and that

it was fair, just and reasonable to impose

a duty.

Compensation for nervous shock:

a). need to establish that Minmi has

suffered a recognized medical condition

Compensation will not be awarded formere grief or distress: the claimant must

prove a definite and identifiable

psychiatric illness course book pg 151

b). by putting a person in fear of his own

safety (Dulieu v White & Sons 1901), a

claim may succeed

c). or in fear for the safety of his children

(Hanbrook v Stoke Bros 1925)

d). or by making him an actual witness to an

act of negligence by which he suffers

nervous shock such as seeing his house

on fire (Attia v British Gas plc 1987)

e). A person suffering nervous shock may

have a claim if they can show that there

was a sufficiently close relationship

between themselves and the primary

victim and that they either saw the

accident with their unaided senses or

came upon the immediate aftermath.

(McLoughin v OBrien 1982)

b


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Negligence

Analysis and Conclusion

-establish the relationship between Mimi

and Chris, the seven year old boy whom

she is fearing the safety for.

-is there a duty of care owed to mere

bystanders? Use case example: Bouhill v

Young 1943 and Hearty v EE Caledonia

1996.

- Use point (c) i.e. Mimi as actual witness

and (d) the sufficiently close relationship

between the her and Chris to determine

that she probably comes within the criteria

of McLoughlin v OBrien and Alcock v Chief

Constable of South Yorshire 1992.

- whether it is reasonable to assume thatTom owed her a duty of care. Was this

duty breached? Analyze its causation and

the damage.

-Form valid conclusion

1.2 Claim for Mr.Winslows BrainDamage against Dr.Murphy

Establishing Duty of Care, Breached of

Duty, Causation and Damage

- Did Dr. Murphy owe a duty a care to Mr.

Winslow, Toms father? Did Dr. Murphy

breach that duty? What was the caused(i.e. conduct and result of defendant)? Was

there any damage done to Mr. Winslow?

-Define standard of a reasonable man and

apply test on Dr.Murphy.

-Give case example

-Provide analysis

-Form conclusion by drawing assumptions

from above analysis.

1.3 Claim for Watch Shop and Caf Store


- Did Tom owe a duty a care to Watch shop

and caf store? Did Tom breach that duty?

What was the caused (i.e. conduct and

result of defendant)? Was there any

damage done to these two shops?

b


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Negligence

Analysis for Duty of Care Owed to watch

shop & Care Store

- Could Tom, as the driver foresee potential

harm to Watch shop and Caf store? Use

the decision in Carmarthenshire CountryCouncil v Lewis 1955 as an authority for

establishing that a road user owes a duty

of care to persons with property adjoining

the highway.

Compensation for economic loss

-loss of profits connected with the repair to

the premises subject to the limitations

placed on the recovery of economic loss

arising out of damage to property as

opposed to pure economic loss as decided

in Spartan Steel & Alloys Ltd v Martin & Co

Ltd 1973.

Decision to case example:

-claim for damage to goods was successful

-claim for loss of profit to these goods was

successful

-claim for loss of profit on the future goods

i.e. those which could not be

manufactured because of the shutdown of

the furnace was not successful.

The case clearly illustrates the issue of fair,

just and reasonable as it was felt by the

court that factory owners should insure

against this type of loss.

-Pure economic loss is not recoverable

(Murphy v Brentwood district council

1990) unless it arises from negligent advice

or misstatements as per Hedley Byrne & Co

Ltd v Heller & Partners Ltd 1964 or falls

within the special circumstances of Junior

Books v Veitchi.

- Apply facts of Murphy to determine (to

conclude whether) Cafe store will be able

to recover any loss to their trade.

Conclusion:

-Is physical damage and pure economic loss

recoverable for watch shop and caf store?

b


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Negligence

1.4 Claim for Winslows Physical Injuries

in the Accident


- Did Tom owe a duty a care to Mr.

Winslow? Did Tom breach that duty? What

was the caused (i.e. conduct and result of

defendant)? Was there any damage done

to Mr. Winslow?

Breach of Duty of Care : Standard of Care

Factors to determine breach of duty of

care:

-expectation of a reasonably competent car

driver in case example Nettleship v Weston

1971.

-driving too fast in a built up area (Bolton v

Stone 1951)

-should Tom heed his fathers advice?

Causation

Factors to consider causation:

-connection between the breach and the

injury by using but for test (Barnett v

Chelsea & Kensington HospitalManagement Committee 1969.

-would Tom be liable for the injuries

sustained in the accident itself using the

but for test?

Contributory Negligence

Consideration of whether there is anything

which would reduce the amount of damage

or removeliability needs to be addressed.In this case Winslow was not wearing a seat

belt. Tom could argue contributory

negligence on Winslows part, i.e. that his

actions have contributed to his own injuries

in some way. If Tom succeeds, damages

would be reduced to the extent that it could

be shown that the wearing of a seat belt

would have reduced or lessened the injuries

received(Froome v Butcher 1976).

b

Merit grades awarded M1 M2 M3

Distinction grades awarded D1 D2 D3

guidelines cl a2 (revised)

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