Legal Liability

1
Legal Liability

• Considerations for Consultants

2
Origins and character of liability

• Tortious liability arises from a breach of a
  duty primarily fixed by law such a duty is
  towards persons generally and its breach is
  redressed by an action of unliquidated damages
• Quote by Winfield

3
Elements to a claim

• Duty of Care
• Breach of the duty
• Resultant loss

4
Liability may occur by

• A contractual duty
• A statutory duty (query criminal)
• Negligence (at common law)

5
Who may owe a duty to whom

• Donoghue v Stevenson (1932)
• Lack of privity of contract did not prevent the
  claimant from claiming
• Negligence accepted as a separate tort in its own
  right
• Established the neighbour principle

6
Lord Aitkin

• You must take reasonable care to avoid acts or
  omissions which you can reasonably foresee would
  be likely to injure you neighbour . Who then in
  Law is my neighbour?... Persons who are so
  closely and directly affected by my act that I
  ought reasonably to have them in my contemplation
  as being effected so when I am directing my mind
  to the acts or omissions in question

7
Caparo v Dickman (1990)

• The relevance to specialists
• Proximity
• Reasonable, just and fair

8
Breach of dutythe standard of care

• Two standards of care exist
• Objective test (reasonable man)
• Subjective test (individual)

9
The standard of care of experts and professionals

• Bolam v Friern Hospital Management Committee
  (1957)
• A question of negligence
• Mc Nair J established the standard of care
  appropriate to professionals
• where you get a situation which involves the use
  of some special skill or competence, then the
  test as to whether there has been negligence or
  not is not the test of the man on the Clapham
  omnibus, because he has not got the skill

10
Dick Bentley Productions v Harold Smith Motors
1965 2 All ER 65

• Special Knowledge or Skill
• from Lord Denning MR Here we have a dealer, Mr
  Smith, who was in a position to know, or at least
  to find out, the history of the car.He ought to
  have known better
• in a position to know the true position or at
  least to find out

11
Case study

• Mr. McCann sells his car by PX to Coopersducks (a
  dealership). Coopersducks sell the vehicle via
  the ABC auction.
• Arthur Daley buys the vehicle from the auction
  and sells it to Heathrobinson (a dealership) they
  in turn sell by way of retail to Mr. Smith.
• Mr. Smith returns the car to Heathrobinson,
  stating it has had major accident damage
  Heathrobinson refunds Mr. Smith and compel Arthur
  Daley to refund them.
• Arthur Daley now seeks to reject the vehicle to
  Coopersducks for a full refund on the basis the
  car has suffered major damage which should have
  been declared by Coopersducks when supplying the
  vehicle to auction
• Group legal at Coopersducks are minded to settle
  with Mr. Daley at 30,000
• Prior to settling the matter they have sought
  your advice on the matter
• Note
• Mr. Smith obtained a wheel alignment check
  showing the vehicle o/s/r wheel to be misaligned
  and that the front wheel alignment is outside
  tolerance.