2. Law of Torts

Question 1

What is Tortious liability

Answer 1

Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.

Question 2

Torts Vs Crimes ( note same behaviour can result in both)

Answer 2

-Tort is civil while crime is criminal law
-Tort provides compensation for the victim who has been harmed by the tortious (i.e. wrongful) act of the defendant. The object of criminal proceedings is to punish offenders who are found guilty of a wrong which is harmful to the interests of society as a whole.
-Under Tort the victim brings the legal action. Under Crime commonly brought in the name of the Crown by the police (in the UK) or a public prosecutor – although private prosecutions are occasionally found.

Question 3

Torts Vs Breach of Contract

Answer 3

-Tort is a breach of duty fixed by law, in other words a general duty which the law imposes on everybody.
-In the law of contract the duties are fixed by the parties themselves and set out in the contract.
-Remedy for torts is unliquidated damages whereas for breach of contract it is liquidated damages

Same circumstances may sometimes give rise to a breach of contract andatort.

Question 4

Unliquidated damages

Answer 4

Unliquidated’ (or unspecified) means that the amount of damages is not fixed in advance but will be decided by the court, according to the seriousness of the injury which has been caused

Question 5

Type of Torts (plus interest)

Answer 5

1. Defamation/libel/slander-Protects a person’s interest in their reputation.
2. Trespass to person-Protects a person against deliberate physical harm.
3. Trespass to land-Protects a person’s interest in the land they occupy.
   4.Breach of copyright or patent design-Protects a person’s interest in ‘intellectual property’ – i.e. creations of their own mind

Question 6

Is injury or damages required under Tort?

Answer 6

In most cases an action in tort will succeed only where the claimant has suffered some form of injury, damage or loss. However, in some cases a tort may be actionable per se (actionable in itself). This means that the claimant does not have to prove that they have suffered loss or damage, only that the tort has been committed r.g trespass to land

Question 7

Type of behaviour torts

Answer 7

1. Intentional torts e.g trespass to land, receipt
2. Negligence or other fault

Question 8

Strict liability (no fault liability)

Answer 8

Sometimes a person may be held liable even though their actions are neither intentional nor negligent.

Question 9

Malice is not usually relevant in the law of torts. Name few cases where it is relevant.

Answer 9

-malice is an essential in malicious prosecution and malicious falsehood;
-in the tort of defamation certain defences are not available if there is malice;
-in the tort of nuisance some actions which are normally reasonable (and, therefore, lawful) will be held unreasonable (and, therefore, unlawful) if motivated by malice.

Question 10

Characteristics of Trespass

Answer 10

-The act of the defendant must be direct
-The Tort is actionable per se
-The act of the defendant must be intentional

Question 11

Forms of Trespass

Answer 11

1. To the person- assault, battery, false imprisonment
2. To goods - interfere with goods belonging to another
3. To land- direct interference with land which is in the possession of another

Question 12

Assault

Answer 12

An assault is any act of the defendant which directly causes the claimant to fear an attack on their person (which, as we shall see, is a ‘battery’). E.g to point a loaded gun at the claimant or wave a stick at them or make any threatening gesture is an assault

Question 13

Battery

Answer 13

Battery is the hostile application by the defendant of physical force, even though it may be slight, to the claimant. So, shooting a person or hitting them with a stick is a battery.

Question 14

False imprisonment

Answer 14

False imprisonment occurs when the defendant imposes total bodily restraint on the claimant, preventing them from going where they want to go. The word ‘false’, in this case, simply means wrongful.

Question 15

Conversion

Answer 15

If the defendant deliberately deals with the goods in a way which is inconsistent with the rights of the person who owns or possesses them, they can be sued for conversion. In this case, the defendant does more than merely meddle or interfere with the goods.

Question 16

What are the essentials for negligence to succeed

Answer 16

-a duty of care owed by the defendant to the claimant;
-a breach of that duty by the defendant (negligence) - fails to take reasonable precautions
-damage suffered by the claimant as a result of the negligent act.

Question 17

The neighbour principle

Answer 17

The neighbour principle is, therefore, one of ‘reasonable foreseeability’. A duty of care is owed to another person if it is reasonably foreseeable that they will be affected by one’s acts or omissions.

Question 18

Forms of damage under negligence

Answer 18

death
bodily injury
damage to property
Nervous shock
Financial loss ( must accompany physical damage to be considered under tort )

Question 19

Original test for remoteness

Answer 19

-the defendant was liable for any injury or damage which was caused directly by their negligence, but was not liable for indirect consequences.
-This principle was rejected and overruled by the Privy Council in 1961.

Question 20

thin skull’ or ‘eggshell skull’ cases

Answer 20

These are cases where the damage is not reasonably foreseeable because it results from some pre-existing physical weakness or defect in the claimant of which the defendant is not aware. Take your victim as you find them

Question 21

The main test for remoteness is

Answer 21

Reasonable foreseeability and causation

Question 22

Hedley Byrne rule applies to

Answer 22

not just to negligent ‘advice’ or ‘statements’ but to negligent professional work generally, including the drawing up of plans, the carrying out of surveys and similar activities. P

Question 23

pure’ economic loss

Answer 23

claims for financial loss which are not accompanied by any physical damage to the claimant or their property. They are not considered under tort

Question 24

Name one clear exception to the rule that pure financial loss is not recoverable in tort

Answer 24

Hedley Byrne principle– that is, cases where there is a ‘special relationship’ between the parties and pure financial loss is suffered when the claimant acts in reliance on negligent advice given by the defendant.

Question 25

Who can sue in negligence for psychiatric illness?

Answer 25

a person who suffers bodily injury will always be allowed to recover damages for any psychiatric harm that accompanies it:

claims for psychiatric illness are subject to the general principles of the law of negligence,
including the usual requirement of foreseeability; and
• only those claimants who suffer a recognisable psychiatric illness will succeed.

Question 26

primary victims vs secondary victims

Answer 26

P-Persons who suffer shock through fear for their own safety. This category of claimant was the first to be recognised by English law.
S-Persons who suffer shock through fear for the safety of others.

Question 27

secondary victims’ are not be entitled to damages
unless they could also establish proximity in terms of:(3)

Answer 27

their relationship with the immediate victim: this had to a ‘close tie of love and affection’;
• their closeness in space or time to the incident or its immediate aftermath
• the means by which they learned about the accident, which had to be through their own unaided senses.

Question 28

Other sources of liability for psychiatric illness

Answer 28

-Psychiatric illness caused by stress at work.
-‘Phobia’ cases- employees who have been exposed to something harmful e.g asbestos) that are not yet physically ill but develop a psychiatric illness as a result of a well-founded fear for what the future may
hold for them.
-Miscellaneous cases-cases where the claimant has suffered psychiatric injury as a result of
witnessing damage to property; ppl can form an attachment to property

Question 29

Public nuisance

Answer 29

Public nuisance has been defined as the ‘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 right common to all’.

It is treated as a crime because it affects the public at large. However, an individual who suffers ‘special damage, may bring a civil action.

Actions in nuisance will generally succeed only where there is an element of repetition in the interference or it amounts to a continuous state of affairs

Question 30

Private nuisance

Answer 30

A private nuisance is an unlawful interference with a person’s use or enjoyment of their land (which includes houses and buildings attached to it).

For the interference to be actionable, damage must result. This means that the interference must either cause actual physical damage to the land or at least adversely affect the claimant’s use and enjoyment of it.

Question 31

Remedies for nuisance

Answer 31

• damages or an injunction.
  -abate (stop) a nuisance, for example, by cutting off roots or branches which project from a neighbour’s trees.

Question 32

To succeed in an action for breach of statutory duty the claimant must establish

Answer 32

-The claimant must prove that Parliament intended to give people the right to sue for damages.
-The statute must impose a duty on the defendant and not merely a power e.g such fence dangerous machinery
-The claimant must prove that the statutory duty was owed to them.
-There must be a breach of the duty by the defendant.
-The damage suffered by the claimant must be caused by the breach and be of a
kind which was contemplated by the statute.

Question 33

employer must take reasonable care to:

Answer 33

-select competent staff;
-provide and maintain proper plant, premises and equipment;
-provide a safe system of work.

Health and Safety at Work etc. Act 1974 takes the general common law duties of the employer mentioned above and makes them subject to the criminal law.

Question 34

Vicarious liability

Answer 34

Liability is said to be ‘vicarious’ when one person is held liable for wrongs committed by another. Vicarious liability is, therefore, not a tort or a wrong in itself but a way in which liability may be imposed: a person may be directly liable for their own torts or vicariously liable for torts committed by others.

The rule is that an employer is vicariously liable for the torts committed by an employee in the course of their employment.

Question 35

Two stage test for vicarious liability

Answer 35

1.Is the relevant relationship one of employment or ‘akin to employment’?
2.Is the tort sufficiently closely connected with that employment or quasi employment?

Question 36

Reasons for imposing liability on the employer

Answer 36

1.The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability.
2.The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
3.The employee’s activity is likely to be part of the business activity of the employer.
4.The employer, by employing the employee , will have created the risk of the tort committed by the employee.
5.The employee will, to a greater or lesser degree, have been under the control of the employer

Question 37

OLA 1957

Answer 37

Occupiers liability Act 1957 that is all persons who are not trespassers.

The duty is:

… a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there

Question 38

OLA 1984

Answer 38

1984 Act extends a duty of care to trespassers and other ‘uninvited entrants’. There are, however, limitations on this duty when compared to the broader duty to visitors under OLA 1957.

1.A duty is owed only if the occupier knows or has reasonable grounds to believe that the danger exists and the trespasser has come/may come into its vicinity.
2.The risk must also be one against which the occupier may reasonably be expected to offer a trespasser some protection.
3.The only protected forms of damage are death and personal injury, with no duty in relation to property.

Question 39

Defective product: legal remedies available to person suffers harm from goods supplied by another

Answer 39

-If the victim was the buyer of the goods, they will usually be able to sue the seller for breach of contract
-If the victim was NOT the buyer of the goods their legal remedy will be an action in tort. An action in tort may be based either on negligence or under the Consumer Protection Act1987.

Question 40

Consumer Protection Act 1987

Answer 40

form of strict liability for defective products .Under the Act a producer is liable for personal injury, or damage in excess of £275 to property used for private purposes caused by a defect in their product.

Question 41

Forms of defamation

Answer 41

Libel: the defamatory statement is in a permanent form, e.g. an email, text, posting on social media or in a written publication.
Slander: the statement is in a transient (non-permanent) form. Slander will usually take the form of defamatory speech or possibly defamatory gestures.

Question 42

Defamatory statements

Answer 42

• a statement is defamatory if it is false and exposes the claimant to ‘hatred, ridicule or contempt or lowers them in the eyes of right-thinking members of society generally’.
  -A defamatory statement is not actionable unless it is published, i.e. communicated to some person other than the claimant.

Question 43

Slander is not generally actionable per se and damage must be proved. There are two exceptions to this rule.

Answer 43

defendant falsely alleges or implies that the claimant:

is guilty of a crime punishable by imprisonment; and
is unfit to carry out their profession, calling, trade or business.

Question 44

Defences to tort of defamation

Answer 44

1.Truth-in which the alleged defamation arises from factual statement.
2. Honest opinion- The defendant must prove the statements were honest, relevant and made without malice.
3. Publication on a matter of public interest: this will succeed provided the subject matter of the publication is a public interest matter and the publisher ‘reasonably believed’ the publication was in the public interest whether the allegation was true or false.
4. Innocent defamation: in which the statement was published unintentionally. This usually requires an offer to publish a correction and apology, together with appropriate damages.
5.Privilege: this applies in judicial and Parliamentary proceedings and applies to statements made to the police by members of the public.

Question 45

General defences to Tort

Answer 45

1. Self defence- good for battery and false imprisonment
   2.necessity - act carried to avoid greater evil.
2. Statutory authority - permitted by statute law
3. Consent- trespass to person, libel or nuisance
   6.volenti non fit injuria -assumption of risk. primarily a defence to negligence and defence to a breach of the ‘common duty of care’ owed by an occupier under the OLA1957.
4. Contributory negligence-claimant is partly to blame for the injuries which they have suffered at the hands of another.
5. Reduction of liability- other party share liability

Question 46

Law Reform (Contributory Negligence) Act 1945,

Answer 46

contributory negligence is no longer a complete defence: it merely reduces the damages awarded to the claimant to the extent that the claimant was himself to blame for the injury. Contributory negligence is, therefore, a ‘plea in mitigation’ (reduction) of liability rather than a true defence.

common example of the second situation is where a person is injured in a motor vehicle accident caused wholly by the negligence of another person, but suffers a more serious injury than would normally be expected as a result of their failure to wear a seat belt. Here the claimant in no way causes the accident but suffers a greater injury through their ownfault.

Question 47

Why should the law limit the time allowed for an action to be brought

Answer 47

-possibility of legal action could hang over the defendant indefinitely.
- A very long delay would also make a fair hearing difficult since evidence tends to become less clear and less easily available.

Question 48

Limitation Act 1980

Answer 48

-1 year where the claim is for libel or slander
-3 years for personal injury claims
-6 years other tort actions (mainly property damage claims).

The limitations date begins on date cause of action accrues ( damage/injury was caused) except if injured party under disability

Question 49

Latent Damage Act 1986

Answer 49

Latent Bodily injury- Time period runs from date of knowledge e.g asbestos claims

Latent property damage-claimant has six years to sue, beginning from the date when the damage first began, or three years from the date when it was discovered, if this produces a longer period. There is also a ‘long-stop’ (or cut-off date) of fifteen years from the date of the alleged negligence or wrongful act by the defendant

Question 50

Categories of damage

Answer 50

1. Special damages and general damages
2. Aggravated damages- additional damages to reflect the fact that the motives and conduct of the defendant have aggravated the injury suffered, by injuring the claimant’s sense of dignity or pride
   3.Exemplary (or punitive) damages - punish not under negligence
3. Contemptuous damages- tiny award for low opinion of claim

Question 51

Injunction

Answer 51

An injunction is a court order commanding the defendant:

to do a particular thing (such as knock down a wall which is blocking a right of way) – a mandatory injunction.

to refrain from doing a particular thing (such as publish a libellous book) – a prohibitory injunction.