2 - Law of Torts

Question 1

What is a tort?

Answer 1

A civil wrong arising from a breach of duty

Question 2

What is breach of contract?

Answer 2

Failure to comply with the duties as set out in the contract

Question 3

What is the main remedy under common law for torts?

Answer 3

Damages (financial compensation)

Question 4

What is meant by “unliquidated damages”?

Answer 4

The amount is to be decided by the court and is not fixed in advance

Question 5

What is the general purpose of the law of torts?

Answer 5

To allow people to sue if their interests are threatened or harmed in order to protect their rights

Question 6

What are some examples of torts and what they protect?

Answer 6

1. Defamation (libel/slander) - protects reputation
2. Trespass to the person - protects from physical harm
3. Nuisance/trespass to land - protects land interests
4. Copyright/patent - protects intellectual property

Question 7

What does it mean for a tort to be actionable “per se”? What tort does this mainly apply to?

Answer 7

Actionable in itself - the claimant does not need to prove a loss, only that the tort has occurred. This mainly applies to trespass

Question 8

What are the three ways torts can be classified by the type of behaviour they require for the tort to exist?

Answer 8

1. Intentional torts
2. Torts requiring negligence or fault
3. Strict liabilities

Question 9

What does it mean for a tort to be intentional?

Answer 9

There must be intent in order for the tort to be committed. For example trespass or deceit

Question 10

What does it mean for a tort to require negligence?

Answer 10

If the defendants actions are negligent then the tort has been committed, whether it was intentional or not. Examples are some types of private nuisance

Question 11

What is a strict liability?

Answer 11

When a person can be held liable for a tort even where their actions are not intentional or negligent. Also called no-fault liability. See Rylands v Fletcher (1868)

Question 12

What characteristics must be present for a trespass tort to succeed?

Answer 12

1. The actions must be direct
2. The act must be intentional
3. The tort is actionable per se

Question 13

What are the three main forms of trespass?

Answer 13

Trespass to the person, trespass to goods, and trespass to land

Question 14

Explain the three forms of trespass to the person

Answer 14

1. Assault - causing a person to fear an attack (ie threatening someone)
2. Battery - use of physical force against a person (ie attacking someone/causing them harm)
3. False imprisonment - wrongful restraint of a person (does not require physical contact, eg locking them in a room)

Question 15

What is trespass to goods?

Answer 15

Directly and intentionally interfering with goods which belong to another person. For example taking goods, moving them, or meddling with them (eg letting down a car tyre)

Question 16

What is conversion of goods?

Answer 16

A sub-category of trespass to goods in which the defendant does more than meddle or interfere. Examples are theft, selling borrowed goods, or causing damage so severe the goods are destroyed or useless

Question 17

What is trespass to land?

Answer 17

Interference with another person’s land by unlawful entry, unlawful remaining (refusal to leave), or unlawfully placing or throwing an object onto the land (littering/tipping)

Question 18

What is the relevance of trespass to insurance?`

Answer 18

Very limited - insurance policies are intended to cover fortuitous acts where there is a clear loss. Since trespass must be intentional and may be actionable per se it would not normally be covered under most policies. A significant exception is contractors PL insurance where it may cover accidental damage arising out of trespass (eg someone wandering onto a building site and falling in a hole)

Question 19

What is the most important tort for insurance, as well as the source of the most legal cases?

Answer 19

Negligence

Question 20

What is negligence?

Answer 20

A failure to take care where the law demands it should be taken.

Doing something a reasonable and prudent person would not do, or failure to do something which a reasonable and prudent person would do

Question 21

What are the three essential elements for a negligence claim to succeed?

Answer 21

1. A duty of care was owed
2. The defendant breached that duty
3. The breach caused damage to the claimant

Question 22

What is the neighbour principle?

Answer 22

Reasonable foreseeability - a duty of care is owed if it reasonably foreseeable that they will be affected by acts or omissions

Question 23

What case established the general principle governing the duty of care in negligence?

Answer 23

Donoghue v Stevenson (1932)

Mrs Donoghue visited a cafe with her friend, who bought her a bottle of ginger beer. She drank some but when she poured more out a decomposed snail fell out the bottle. She became mildly ill and sued. She could not sue the cafe for breach of contract (she did not buy the ginger beer) or for negligence (the bottle was opaque and the cafe could not have known about the snail) so she sued the manufacturer. She succeeded, becoming the first case in which it was held that a manufacturer owed a duty of care through their products

Question 24

When considering whether a duty of care is owed, how may the court link risk and care?

Answer 24

The greater the risk posed, the more care will be expected.

For example someone operating a nuclear power station is expected to take more care than someone playing table tennis. In short, what is reasonable depends on the circumstances

Question 25

What is the significance of The Wagon Mound 1961 case?

Answer 25

Damage is too remote if it is not reasonably foreseeable.

Fuel oil was negligently spilt into a harbour. The oil mixed with cotton waste and spread to a nearby wharf where welding operations were underway. The sparks ignited the oil, causing damage. At the time it was not known that oil could ignite in this way so it was held that the damage was not reasonably foreseeable and therefore too remote for a negligence claim to succeed.

Question 26

What is the thin skull or eggshell skull rule?

Answer 26

If the damage caused is greater than would be foreseeable due to a pre-existing condition that makes them more susceptible to damage, the defendant is liable for the full extent of the damages.

Question 27

What is negligent misstatement? What is the leading case?

Answer 27

Where a loss has been suffered due to negligent advice or words. The leading case is Hedley Byrne v Heller and Partners (1963)

Question 28

What general principle was established in Spartan Steel and Alloys v Martin & Co (Contractors) Ltd (1973)?

Answer 28

“Pure” economic loss is not recoverable under tort. Economic loss is generally only recoverable under tort where it is a direct result of physical damage. The one exception to this is for a claim of negligent misstatement.

Question 29

In “nervous shock” cases, what are primary and secondary victims?

Answer 29

Primary victims are those who suffer shock through fear of their own safety

Secondary victims are those who suffer shock through fear for the safety of others

Question 30

In nervous shock cases what established in Page v Smith?

Answer 30

Primary victims only need to prove that some form of injury was foreseeable, not that the specific psychiatric injury was foreseeable

Question 31

Coming from the case of Alcock v Chief Constable of South Yorkshire Police (1992), what must a secondary victim establish in order to be entitled to damages?

Answer 31

Proximity in terms of:

1. Their relationship with the victim (a close tie of love and affection)
2. Their closeness in space or time to the incident or its’ immediate aftermath
3. The means by which they learned about the accident, which has to be via their own unaided senses

In short: They must be in the proximate space and time of the accident or its’ immediate aftermath, and have a close tie with the victim

Question 32

What are the two types of nuisance?

Answer 32

Public nuisance - carrying on of an activity which is likely to cause inconvenience or annoyance to the public or a section of the public, or interference with a common right

Private nuisance - interference with a person’s use or enjoyment of their land

Question 33

What is the relevance of the tort of nuisance to insurance?

Answer 33

Very limited - insurance policies generally require a concrete injury, loss, or damage. This may not exist in a a nuisance claim so is unlikely to be covered

Question 34

What is the rule in Rylands v Fletcher?

Answer 34

A person who, for his own purposes, brings on his lands and collects and keeps there anything likely to cause mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all damage which is the natural consequence of its escape

A sub-type of the tort of negligence that imposes strict liability

Question 35

What is a breach of statutory duty?

Answer 35

A breach of a duty set out in legislation distinct from common law where parliament intended there to be a civil remedy

Question 36

What is vicarious liability?

Answer 36

Where one person is held liable for the actions of another. A key example is where the employer is liable for the actions of their employees

Question 37

What is stated under the Occupiers’ Liability Act 1984?

Answer 37

A reasonable duty of care is owed to all visitors present on another’s land for the purposes of the visit, and to trespassers where it is reasonably foreseeable they may come to personal injury or death and reasonable precautions can be taken

Question 38

Who is generally liable for dangerous or defective premises?

Answer 38

The occupier

Owners who do not occupy the land are only liable in exceptional circumstances

Question 39

How could you pursue an action for defective goods if you:

a) Purchased the goods
b) Were gifted the goods

Answer 39

a) If you purchased the goods you can sue for breach of contract
b) You did not buy the goods so there is no contract. You would therefore have to pursue an action under either the tort of negligence or the Consumer Protection Act 1987

Question 40

What relevance does the Consumer Protection Act 1987 have in tort law?

Answer 40

It imposes strict negligence for product liability. A person who suffers damage from a defective product does not have to prove negligence by the manufacturer or supplier. It applies to personal injury and property damage in excess of £275

Question 41

What are the two forms of the tort of defamation?

Answer 41

Libel - The defamatory statement is made in a permanent form (eg email, text, social media, published article)

Slander - The defamatory statement is in a transient (non-permanent) form (eg speech)

Question 42

What makes a statement defamatory?

Answer 42

An untrue statement that exposes the claimant to hatred, ridicule or contempt, or lowers them in the eyes of right-thinking members of society generally

Question 43

Does the tort of defamation require a provable loss to succeed?

Answer 43

Generally yes damages such as loss of enjoyment or loss of financial benefit must be proved UNLESS the defendant falsely alleges the claimant:

1. Is guilty of a crime punishable by imprisonment
2. Is unfit to carry out their profession, trade, or business

In this cases the claim is actionable per se

Question 44

What defences are available for the tort of defamation?

Answer 44

1. The statement is true
2. The statement is an honest opinion
3. It is a matter of public interest
4. The statement was published unintentionally
5. Judicial or parliamentary privilege

Question 45

What are some general defences to torts?

Answer 45

1. Self defence
2. Necessity - preventing a greater evil
3. Statutory authority - allowed in law (eg flying over private land)
4. Consent (eg a boxing match is not battery)
5. Volenti non fit injuria / assumption of risk - the claimant is aware of the risk but continues anyway
6. Contributory negligence - both parties partly to blame
7. Reduction of liability - another party shared some liability (a third party, not the claimant - that would be contributory negligence)

6 and 7 are not strictly defences as there is still an element of liability on behalf of the defendant - they are instead pleas in mitigation

Question 46

What does the Latent Damage Act 1986 do?

Answer 46

Impose periods beyond which claims cannot be made - they are said to be statute-barred

Question 47

What are the main limitation periods?

Answer 47

1 year for defamation
3 years for personal injury
6 years for property (and most other torts)

Question 48

How are limitation periods modified in the event of latent bodily injuries?

Answer 48

The limitation period of 3 years begins from the date of knowledge of the injury

Question 49

How are limitation periods modified in the event of latent property damage?

Answer 49

The limitation period of 6 years begins from the date when the damage occurred, or is 3 years from the damage being discovered if this is longer. There is also a cut-off date of 15 years from the date of the negligent act

Question 50

What types of damages are there?

Answer 50

Special damages - Must be strictly proved (eg loss of earnings, medical expenses)

General damages - Automatically assumed to have come from the tort (so do not require proving)

Aggravated damages - Additional damages where the motives or conduct have aggregated the injury (or injured dignity/pride)

Exemplary/Punitive damages - Exceed the loss which has been suffered, intended to punish the defendant. Not awarded for torts and very rare in the UK, mainly seen in the USA.

Nominal damages - Awarded for a tort actionable per se where no real loss has occurred

Contemptuous damages - A tiny sum (traditionally 1p) where the court has a low opinion and disproves of the claim

Injunctions - An order to do or not do a particular thing where monetary compensation is not, or not solely, enough

Question 51

What are the two types of private nuisance?

Answer 51

1. Wrongfully allowing the escape of a noxious thing from one’s property so as to interfere with the claimant’s land
2. Wrongful interference with one’s rights attaching to land (eg right of access, right to light, etc)