2 - Law of Torts

Question 1

What is a ‘Tort’?

Answer 1

A civil wrong that causes the claimant to suffer loss or harm.

‘Tort’ in its simplest sense means ‘wrong’.

The legal action the victim might bring against us is known as an ‘action in tort’.

Question 2

What is a Tort a breach of?

Answer 2

Tort is a breach of duty fixed by law.

i.e. a general duty the law imposes on everyone.

Question 3

What is the purpose of legal action against a Civil Tort?

What is the purpose of legal action against a Crime?

Answer 3

Civil Tort:
To provide compensation/reparation for the victim harmed by the tortious act of the defendant.

Crime:
To punish offenders who are guilty of a wrong which is harmful to the interests of society as a whole.

Question 4

Who requests the legal action against a Civil Tort?

Who requests the legal action against a Crime?

Answer 4

Civil Tort:
The victim themselves (claimant).

Crime:
Usually in the name of the Crown by the police (in the UK).

Question 5

Under an insurance contract, what is the duty of the insured and what is the duty of the insurer?

Answer 5

Insured has a duty to pay the premium and the insurers have a duty to pay claims.

Question 6

What is the main remedy to a Tort under common law?

Answer 6

Damages (financial compensation) is the main remedy under common law.

note: damages = financial compensation.

Question 7

What does it mean if damages are ‘Liquidated’ (or specified)?

On the topic of damages, what does ‘Unliquidated’ (or unspecified) mean?

Answer 7

Liquidated = Parties to a contract will have agreed, in advance, a fixed amount of compensation to be paid if there is a breach of contract.

Unliquidated = Damages are not fixed in advance but will be decided by the court, according to the seriousness of the injury caused.

Question 8

Different torts protect different interests:

Defamation?

Trespass to the person?

Private nuisance, trespass to land?

Breach of copyright or patent design?

Answer 8

Defamation: Protects a person’s reputation.

Trespass to the person: Protects a person against deliberate physical harm.

Private nuisance, trespass to land: Protects a person’s interest in the land they occupy.

Breach of copyright or patent design: Protects a person’s interest in ‘intellectual property’ - i.e. creations in their own mind.

Question 9

Is injury or damage required for an action in tort?

Answer 9

Mostly, an action in tort will succeed only where the claimant has suffered some form of injury, damage or loss.

Question 10

What is an ‘intentional tort’?

Answer 10

Intention from the defendant to commit the tortious act.

E.g.
- the tort of trespass
- the tort of deceit

Question 11

What is a ‘tort of negligence’?

Answer 11

When one party owes another party a duty of care, and fails to take reasonable care to avoid causing damage to that party.

Question 12

What is a tort of ‘strict liability’?

Answer 12

When a person is held liable although their actions are neither intentional nor negligent.

Question 13

What is NOT usually relevant in the law of torts?

Answer 13

Malice or motive.

Why the defendant behaved the way they did, or the motive for their actions, is not usually relevant in the law of torts.

So, on one hand, because malice/motive is not usually relevant, a person could act with the very best intentions but still be held liable if the action is unlawful.

On the other hand, if a person carries out an act with malicious intent, they will not be liable if what they’ve done is not UNlawful.

Question 14

How many forms of the Tort of Trespass are there?

What do all Tort’s of Trespass have in common?

Answer 14

Trespass comes in 3 forms.

All 3 forms have these characteristics:

1. The act of the defendant must be direct (injury/harm caused directly).
2. The act of the defendant must be intentional (not accident).
3. The tort is actionable per se (claimant does not need to prove they have suffered loss or damage).

Question 15

Name the 3 different forms of Trespass?

Answer 15

1. Trespass to the person (assault, battery, false imprisonment).
2. Trespass to goods.
3. Trespass to land.

Question 16

‘Trespass to the person’ itself takes 3 forms, what are they? Describe each?

Answer 16

1. ASSAULT.
   Any act of the defendant which directly caused the claimant to fear an attack on themselves (e.g. to point a loaded gun at the claimant, or wave a stick at them).
2. BATTERY.
   Is the hostile application of physical force by the defendant (e.g. shooting someone, or hitting them with a stick).
3. FALSE IMPRISONMENT.
   When the defendant imposes total bodily restraint on the claimant, preventing them from where they want to go. No physical contact is necessary (e.g. locking someone in a room).

Question 17

What is the second form of Trespass, ‘Trespass to goods’?

Answer 17

It is when the defendant directly and intentionally interferes with goods which are in the possession of another.

i.e. taking goods from the possession of another, or moving them from one place to another.

Question 18

As part of ‘Trespass of goods’, what does it mean to be sued for ‘Conversion’?

Answer 18

If a person receives stolen goods and does not give them back to the true owner should they turn up and claim it, then you can be sued for conversion.

Question 19

What is the third form of Trespass, ‘Trespass to land’?

Answer 19

The direct interference with land which is in the possession of another.

No damage to the land need necessarily occur for action to be brought.

Question 20

Name the 3 forms the third form of Trespass (Trespass to land) can take?

Answer 20

1. Unlawful entry onto the land of another.
2. Unlawfully remaining on the land of another.
3. Unlawfully placing or throwing any material object upon the land of another (e.g. rubbish/litter).

Question 21

What is the tort of Negligence?

Answer 21

A failure to take reasonable care where the law demands care should be taken, which gives rise to a claim for damages by the person (claimant) who suffers damages as a result.

Essentially a breach in the defendants duty of care to the claimant, that results in some suffer of harm.

Question 22

What 3 characteristics make a tort negligent?

Answer 22

1. A duty of care owned by the defendant to the claimant
2. A breach of that duty by the defendant (negligence)
3. Damage suffered by the claimant as a result of the negligent act.

Question 23

When is a duty of care owed to another person?

Answer 23

‘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.

‘Proximity’ (closeness):
- Closeness between the defendant and claimant determine if there is a duty of care.

Question 24

When is there a breach in the duty of care?

Answer 24

When the defendant fails to take reasonable care.

Question 25

Is the defendant liable for every loss which is connected to their wrongful act?

Answer 25

No. The law attempts to place a reasonable limit on the defendant’s responsibilities by releasing them from liability where the damage is ‘too remote’.

Question 26

What is the current test for ‘remoteness of damage’?

Answer 26

Whether the kind of damage you have suffered was reasonably foreseeable by the Defendant, at the time of the breach.

If the ‘chain of causation’ leading from the defendants negligent act is broken by a ‘new intervening cause’, the defendant will not be responsible for any damage which occurs subsequently.

Question 27

What did the ‘Hedley Byrne V. Heller and Partners’ case establish? And when does liability under the Hedley Byrne rule arise?

Answer 27

Originally: Professional people who give bad advice can be sued by their clients, only when there is a contractual relationship between them.

Hedley Byrne established: That liability could arise in tort for ‘negligent misstatement’.

Liability under the Hedley Byrne rule arises when:
- there’s a ‘special relationship’ between the parties (but not a contract), where it’s reasonable for the claimant to rely on the advice given.
- the giver of the advice can reasonably foresee that the advice is likely to be acted upon and the recipient is likely to suffer if it is inaccurate.
- the advice is acted upon causing loss to the claimant.

Question 28

What is the KEY element in the Hedley Byrne case?

Answer 28

The key element is the ‘reliance’ from the claimant, and the assumption of responsibility towards the claimant by the defendant.

Question 29

What other loss can occur as a result of physical damage? And is the defendant liable?

Answer 29

A negligent act which causes physical damage may cause economic loss too.

If economic/financial loss accompanies physical damage and results directly from it, the defendant is liable for such loss, if the economic loss is not too remote.

Question 30

What is a ‘pure’ economic loss? How does the court consider these claims in tort of pure economic loss?

Answer 30

Claims for financial loss which are not accompanied by any physical damage to the claimant for their property.

Courts are reluctant to allow claims in tort for ‘pure’ economic loss.

Question 31

What is the principle in ‘Spartan Steel’?

Answer 31

No liability in loss for any economic loss which does not flow directly from some physical damage suffered by the claimant.

Question 32

How do claims regarding bodily injury and psychiatric illness go hand-in-hand?

Answer 32

A person who suffers bodily injury will always be allowed to recover damages for any psychiatric harm that accompanies it: there are no special rules or restrictions.

There’s a less simple position when the negligent act of one person causes psychiatric illness in another without the latter having incurred any bodily harm.

Question 33

What psychiatric illness sees the vast majority of successful claims?

Answer 33

PTSD - Post traumatic stress Disorder.

Question 34

What 2 categories do successful psychiatric illness claimants fall into?

Answer 34

1. those suffering psychiatric illness as a consequence of an ‘accident’, caused by the negligence of another, in which people are injured or put in danger.
2. those suffering psychiatric illness by other means.

Question 35

What is a ‘Nervous Shock’ case? What does the claimant have to establish in these cases?

Answer 35

When a person develops a psychiatric illness triggered by witnessing an accident caused by the negligence of another. E.g. Witnessing an injury to one’s parents and developing a psychiatric illness because of it.

Claimant will have to establish that they were owed a duty of care.

Question 36

What are the 2 main categories of victims of ‘Nervous Shock’ cases? Describe them?

Answer 36

1. Primary victims
2. Secondary victims

Primary victims: Person suffering shock through fear of their own safety.

Secondary victims: Person suffering shock through fear for the safety of others.

(law came to recognise secondary victims post the 1989 Hillsborough football stadium disaster).

Question 37

Name some other sources of liability for psychiatric illness?

Answer 37

1. ‘Nervous shock’:
   (person develops a psychiatric illness triggered by witnessing an accident caused by the negligence of another)
2. Psychiatric illness caused by stress at work:
   (damages awarded for injury to feelings from harassment by employees)
3. ‘Phobia cases
   (employee has been exposed to something harmful, i.e. asbestos, through their employers negligence, and is not yet physically ill but develops a psychiatric illness out of fear of their future)
4. Miscellaneous cases:
   (person has suffered psychiatric injury as a result of witnessing damage to property, i.e. fire)

Question 38

What are the 2 forms of the tort of ‘Nuisance’?

Answer 38

1. Public nuisance
2. Private nuisance

Question 39

Describe Public nuisance?

Answer 39

Carrying on an activity which is likely to cause inconvenience/annoyance to the public.

e.g. nightclub noise, nuisance on the highway (which is the most prevalent area of liability).

Question 40

Describe Private nuisance?

Answer 40

Unlawful interference with a person’s use or enjoyment of their land.

e.g. allowing harmful substances to escape from ones own property to interfere with the claimants land.

Question 41

Who sues, and who is sued in a private nuisance claim?

Answer 41

Claimant (suer): the occupier of the land which is affected.

Defendant (sued): the person who creates the nuisance.

Question 42

What must occur for the tort of nuisance to be actionable?

Answer 42

Damage. The interference must either cause actual physical damage to the land or adversely affect the claimant’s use & enjoyment of it.

Question 43

How long does a defendant have to prove that a nuisance has existed openly & continuously for, for the activity in question not to be challenged?

Answer 43

20 years.

If the defendant can establish the nuisance has existed openly & continuously for 20 years, their right to continue with the activity in question cannot be challenged.

Question 44

What are the remedies for nuisance?

Answer 44

Usual remedies for nuisance are damages or an injunction.

Question 45

What do most liability insurances require for the policy to respond?

Answer 45

Some form of concrete injury, loss or damage to occur.

Question 46

What breach of statute?

Answer 46

Breach of a duty imposed on some person or body by a statute.

Question 47

What is an employer’s duty in common law?

Answer 47

The employer’s duty in common law is a duty to take reasonable care for the safety of their employees.

Question 48

The Health and Safety at Work etc. Act 1974:

What duty does the act impose?

Who does the act apply to?

Answer 48

The act states its the duty of every employer to ensure, the health, safety and welfare at work of all their employees.

The act applies to all places of work and all employees.

Question 49

What criminal penalties can apply under the Health and Safety at Work etc. Act 1974?

Answer 49

Substantial criminal penalties, including unlimited fines and imprisonment for up to two years.

Question 50

What is the common law doctrine of ‘Vicarious Liability’?

Answer 50

Liability is ‘vicarious’ when one person is held liable for wrongs committed by another.

Thus, ‘vicarious liability’ is a way in which liability may be imposed: a person may be either directly liable for their own torts or vicariously liable for torts committed by others.

E.g. When a worker injures a fellow employee during the course of their job or injures someone who is not a fellow employee (i.e. visitor), the victim can claim compensation from the employer, who is vicariously liable.

Question 51

What does Vicarious Liability particularly apply to?

Answer 51

Employer’s liability.

E.g. When a worker injures a fellow employee during the course of their job or injures someone who is not a fellow employee (i.e. visitor), the victim can claim compensation from the employer, who is vicariously liable.