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Professional negligence claim—scope of duty, causation and remoteness—checklist

Professional negligence claim—scope of duty, causation and remoteness—checklist This Checklist identifies the key factors to consider when determining whether or not there is a viable claim to be brought in professional negligence in terms of the scope of the duty, causation and remoteness, when considering whether the losses claimed fall within the scope of the professional’s duty, using the ‘analysis model’ proposed by the Supreme Court in its 2021 decisions in Manchester Building Society v Grant Thornton and Khan v Meadows. For detailed guidance on causation and remoteness in this area, see Practice Note: Causation and remoteness in professional negligence claims. Note: in Armstead v Royal & Sun Alliance, the Supreme Court rejected the application of this six-point checklist used by the Court of Appeal when deciding whether the claimant car-hirer could recover damages she had had to pay to the car-hire company for loss of use owing to the car being damaged by a third party’s negligence—the case had not been one where the scope of...

Glossary—Latin legal terms

Glossary—Latin legal terms Despite attempts in recent years to simplify the language used in legal cases, there are still a number of Latin phrases commonly used in personal injury claims. The following Latin phrases are listed in alphabetical order: Latin term Definition Meaning Acta iure imperii Legal acts of public nature Liability of the state for actions or omissions in the exercise of state authority Bona Fide In good faith A Bona Fide agreement is one entered into without intent to deceive Caveat Take care/caution A legal notice to the court to prevent another party taking action without informing the person who gave the notice Compos Mentis Of sound mind Legally fit to conduct the claim De Facto In fact As a matter of fact Ex Gratia As a matter of favour An ex gratia payment is made without any legal or contractual obligation to do so Ex Parte By a party An ex parte application is made to the court by one party in the absence or without...

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Defences to Tort Claims

Defending a tort claim—general considerationsIn reality, many claims are ‘defended’ on the basis that the defendant either did not owe the claimant a duty, or there was no breach of duty or there was a break in the chain of causation.In each of those cases, the claimant has failed to establish that the defendant is prima facie liable.This Practice Note considers the defences, which may exculpate a defendant from liability where liability has prima facie been established.For guidance on limitation defences in tort claims, see the Practice Notes:•Limitation—tort claims•Limitation—professional negligence claims—Date of accrual in tort•Limitation—Latent damageContributory negligence as a defence to a claim in tortSection 1(1) of the Law Reform (Contributory Negligence) Act 1945 (LR(CN)A 1945) provides that where a claimant suffers damage partly as result of their own fault and partly as a result of the fault of the defendant, the court shall reduce the claimant’s damages to such an extent as it thinks just and equitable. Where the fault of both the claimant and the defendant contributed to...

Did the claimant consent to the risk of injury?

The essence of a defence of volenti non fit injuria (‘to a willing person, no injury is done’) is that the claimant understands the danger of the situation and willingly consents to the risk of injury. In such circumstances, should injury occur, the claimant has no reason for complaint.The defence is often shortened to volenti.If established, volenti is a complete defence. The justification is that it is not possible to apportion consent and say that a claimant agreed to run certain risks but not others. As such, the defence will only be successful in clear cases.The volenti defence will rarely be available in claims for breach of statutory duty.Requirements for bringing the defenceThree factors must be present in order to run the defence:•capacity•knowledge and willingness•agreement (express or implied)CapacityThe claimant must have the capacity to give their consent in the relevant way. Children and those suffering from mental illnesses may be found to lack the appropriate capacity to consent to the risk of injury.Knowledge and willingnessThe courts have held that simple...

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Defence alleging volenti non fit injuria in sporting injury claim

Defence alleging volenti non fit injuria in sporting injury claim [ In the High Court of Justice OR In the COUNTY COURT AT [insert] ] [ [Specify division] ] [ [Specify Specialist court] ] [ [Insert location] District Registry ] Claim No: Between [A B]        Claimant and [X Y]        Defendant ________________________________________________ Defence ________________________________________________ 1 Paragraph numbers in this Defence refer to paragraphs in the Particulars of claim dated [insert date]. 2 Paragraph 1 is admitted. 3 Paragraph 2 is denied. It is denied that the Defendant was negligent as alleged in paragraph 5 of the Particulars of Claim or at all. 4 The accident occurred around 20 yards outside the penalty area in the Defendant’s half of the pitch. The Defendant, who was playing in the position of Centre Back, had jumped for a header in competition with the Claimant. In the process of winning the ball, the Defendant inadvertently struck the Claimant with his elbow and rendered him unconscious. 5 The referee awarded a free...

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Is it possible to include a restrictive covenant or an agreement in a transfer whereby the transferee covenants or agrees not to object to a potential nuisance caused by the transferor?

Is it possible to include a restrictive covenant or an agreement in a transfer whereby the transferee covenants or agrees not to object to a potential nuisance caused by the transferor? Restrictive covenants A restrictive covenant requires the covenantor not to do the thing specified, whether that is building on or using the land for particular purposes. We have found no authority on whether this could include not to object to the use of land in a certain way. Covenants restricting the use of land imposed by a seller include covenants imposed for the seller’s own benefit. For restrictive covenants affecting registered land, a notice must be entered in the charges register of the burdened land. Where there is no entry on the register, subsequent registered proprietors will take free of the covenants. For more information on restrictive covenants, see: Restrictive covenants—overview and specifically: • Practice Note: Restrictive covenants—nature and characteristics • Restrictive covenants: general: Encyclopaedia of Forms and Precedents [66], and • Nature of restrictive...

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Who occupies for Occupiers’ Liability Act 1957 purposes? (Mathewson v Crump)

Property Disputes analysis: The claimant, a professional plasterer, brought a personal injury claim for over £200,000 under the Occupiers’ Liability Act 1957 (OLA 1957) against the joint owners of a property. The property, at the time of the accident, was being renovated by a construction company owned by the father of one joint owner. The claimant was acting in person at the time of trial. Ownership was not sufficient to invite liability under OLA 1957. The quality of the duty owed to those entering by reason of their profession or calling was analysed by the judge. Written by Lauren Godfrey, barrister at Hardwicke.

Court rules late acceptance of Part 36 offer not a route to escape fixed costs (Parsa v DS Smith PLC and another)

Personal Injury analysis: Roger Mallalieu, barrister at 4 New Square, examines the High Court’s decision in Parsa v DS Smith PLC and another upholding a County Court ruling that it lacked jurisdiction to award costs on an indemnity basis. The claimant’s final Part 36 offer to settle his low value personal injury claim arising out of a road traffic accident was only accepted by the defendants four months after the expiry of the 21-day period for acceptance and just a week before trial.