Basic Definitions & Concepts Flashcards
What is a tort?
A collection of civil wrongs
What is the law of tort concerned with compared to law of contract?
The provision of a remedy to persons who have been harmed by the conduct of others that DOESN’T arise from a contract
For every civil wrong…
There is a remedy
Common examples of torts
Physical injuries; Injury to reputation; Nuisance; loss or damage to property
Duty of care for tort?
Certain groups of people (based on established categories of duty of care)
Duty of care for contract?
A known person (e.g. party to the contract)
Remedy for contract?
Likely, put you in the position you would’ve been in IF the contract HAD BEEN performed
Remedy for tort?
Likely, put you in the position you would’ve been in IF the tort NEVER happened
Limitation period for tort?
3 years
Limitation period for contract?
6 years
Can there be concurrent liability between contract and tort?
Yes
Object of criminal law compared to tort?
Punish those found guilty
Object of tort compared to criminal law?
Compensate the victim (as though the tort had never occurred)
Functions of law of tort
Compensation; Preventative; Deterrence
Example of allocation/compensation function
Pay compensation for harm caused through negligence, like speeding, or falling asleep at the wheel
Example of preventative function
Injunction
Example of deterrence function
Defamation
Basis of liability in tort?
Most commonly: damage and fault
What establishes fault in tort?
Deliberate action or negligience
Is liability always fault based?
No - you can be liable for something that isn’t necessarily your fault - e.g. employers can be held responsible for tort committed by employee
How do you establish negligence?
Establish that the defendant owed a duty of care; the defendant breached the duty of care; the defendant’s breach caused the claimant’s loss (factually and legally); the damage was reasonably foreseeable; the loss in financial terms
What is private nuisance?
Unreasonable interference with a person’s use or enjoyment of land or some right in connection with it
What is assault?
Any act of the defendant which directly and either intentionally or negligently causes claimant immediately to apprehend a contact with his/her person
What can damages cover?
Compensation from the injury but also damage arising from the tort
What is an injunction?
A stop to the cause of the tort
What is negligence?
(1) Person’s state of mind - damage caused inadvertently (2) Liability - damaged caused via carelessness
In brief - what are the elements of negligence?
Duty, Breach, Causation, Remoteness, Damage
What are some examples of established duty of care?
Employer/employee; doctor/patient; road user
What is an example where there is no established duty of care?
Police to victims of crimes
Employer/employee duty of care case?
Wilsons & Clyde Coal Co Ltd v English (1937)
Doctor/patient duty of care case?
Bolam v Friern Hospital Management Committee (1957)
Road user duty of care case?
Nettleship v Weston (1971)
Police/victim of crime duty of care case?
Hill v Chief Constable West Yorkshire (1989)
Duty of care case for novel situations?
Caparo PLC v Dickman (1990)
What’s the neighbour principle?
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour Your neighbour is someone who is so closely/directly affected by you that you should reasonable have them in mind when making decisions.
What are the elements of the Caparo test?
(1) Reasonable foreseeability (2) Sufficient proximity (physically/legally) (3) Circumstances to impose duty of care must be fair. just and reasonable (4) Public policy
Can statutory provisions determine liability?
Yes (Yuen Kun Yeu)
What elements influence whether duty of care exists beyond Caparo?
(1) Nature of defendant’s conduct (2) Type of claimant (3) Type of defendant (4) Type of damage sustained
What’s an omission?
Passive inaction
What is common law’s view on failure to act/prevent harm
No general liability without statute. Exceptions: Assumption of responsibility; if you create danger or make it worse
Why is the court reluctant to impose liability for omissions?
(1) Invasion of freedom (2) Difficult to identify individual at fault (3) Inefficient economics
How do you determine liability for negligence?
(1) Establish standard of care (2) Establish that that standard of care was breached
Which case established the reasonable man?
Blyth v Birmingham Waterworks Co (1856)
What are qualities of the reasonable man?
Ordinary intelligence and experience; not prophetic or clairvoyant; capable of making reasonable errors
What is the exception to the reasonable man standard?
Children (Orchard v Lee 2009)
Is the reasonable man standard of care objective?
Yes; Nettleship v Weston (1971) holds that the standard for a driver is reasonably competent and experienced; the standard doesn’t change just because D is a novice
Does the magnitude of the risk of harm make a difference?
Yes - need to balance the likelihood of harm vs. the seriousness of injury risked
Does the defendant’s objective matter?
Yes - consider emergency responders (Watt v Hertfordshire; Daborn v Bath Tramways)
Does the cost of reducing risk matter?
Yes - risk must be balanced against cost and practicality. See Latimer v AEC (no breach of duty for D who cleaned factory but didn’t render it entirely safe)
What case is used to establish professional standard of care for doctors?
Bolam v Friern Hospital Management Committee
What case holds that doctors should warn of possible adverse outcomes?
Chester v Afshar; Montgomery v Lanarkshire Health Board
What is the standard of proof for the claimant?
Balance of probabilities
What are the three conditions for applying res ipsa loquitur?
(1) D had right to control that which caused damage (2) Accident could not have happened without negligence (3) There are no known facts on which the accident can be explained without negligence
What is core to a negligence claim?
Proof of damage
How can a defendant avoid liability, even if they’re in breach of a duty of care?
(1) Prove the act didn’t cause the damage (2) Prove the damage was too remote
What’s causation?
As a matter of fact, did D’s negligence lead to Claimant’s loss?
What’s remoteness?
As a matter of law, can D be held liable for damage caused?
Which case provided the ‘but for’ law?
Cork v Kirby Maclean Ltd (1952)
What’s the ‘but for’ test?
Used when establishing D’s liability; but for the negligence of D, would the damage have occurred?
Who shoulders the burden of proof for causation?
Claimant
Who shoulders the burden of proof for remoteness?
Defendant
When do you need to show that D contributed 51% to injury for negligence?
When it has to do with a future damage (e.g. future possibility of contracting an illness)
When do you need to show that D “materially increased” the risk of harm?
When there are multiple factors in a harm, and you can’t determine where D’s influence played a role (like a disease of the lungs)
What can break the chain of causation?
Intervening act of the claimant, of a third party, or of nature
What are the three conditions for applying the maxim of res ipsa loquitur?
(1) D must have right to control that which caused damage
(2) Accident should be something which could not have happened without negligence
(3) Can’t explain the accident in terms of negligence
When do you need to show that D materially contributed to injury?
Cumulative causes - see Bonnington Castings
Which circumstances do not break chain of causation?
If third party is not independent; instinctive/reflexive acts; foreseeable acts; clinical negligence
What are the two main tests of remoteness?
Direct consequences and foreseeable consequences
What’s the authority on direct consequences
Re Polemis and Furness, Withy & Co
What’s the authority on foreseeable consequences
Wagon Mound No 1
What are the three points to know for Wagon Mound
(1) Kind of damage must be reasonably foreseeable
(2) Extent of damage need not be
(3) Precise manner need not be
What damages are recoverable in tort?
Physical injury, damage to property, consequential economic loss
What is pure economic loss?
Financial loss unconnected with loss to claimant’s person or their property
Is there liability for pure economic loss?
Generally, no. Would open people up to indeterminant damages for an indeterminant time from an indeterminant class of people.
Exceptions: as a result of defective item of property, and as a result of physical damage to a third party’s property
What is the “complex structure theory”?
Explained in D&F Estates.
A defective property can be considered as comprising distinct parts. If there’s a defect in one part of the property, the loss caused to other parts of the property may be claimed.
What is the “adjoining property” exception?
Explained in Murphy v Brentwood.
If a dangerous defect in a building becomes apparent before it causes personal injury or property damage, it becomes a defect in quality and liability lies in contract.
What is the Hedley Byrne special relationship test?
(1) Claimant relied on defendant’s skill and judgement
(2) Defendant knew or out reasonable to have known claimant was relying on them
(3) It was reasonable in the circumstances for the claimant to do so
What are the factors for determining liability in negligent misstatement?
James McNaughton Paper Group Ltd v Hicks Anderson and Co (1991)
(i) Purpose for which the statement is made
(ii) Purpose for which it is communicated
(iii) Relationship
(iv) Size of the class
(v) State of knowledge
(vi) Reliance by advisee
What role does the Unfair Contract Terms Act 1977, and Consumer Rights Act 2015 play in tort?
Can influence whether a disclaimer erases a negligent misstatement
Does the Hedley test relate just to providing advice?
No - it can also be used for providing business information. See South Australia Management Corporation.
What can you and can’t you recover for w/r/t psychiatric illness
Yes: medically recognised psychatric illness
No: mere grief, sorrow, distress, anxiety (Vernon v Bosley)
What’s the test for secondary victims for psychiatric illness
Alcock v Chief Constable of South Yorkshire
- Psychiatric injury is reasonably foreseeable
- Must be in relationship of love & affection with immediate victim
- Proximity in time and space to events causing psychiatric illness (closer than 50 mi, 2 hours)
- Claimant must have directly perceived incident (no tv)
- Illness must be caused by sudden shocking event
Bourhill v Young
Psychiatric injury must be reasonably foreseeable for person of normal mental fortitude
What is the test for primary victims of psychiatric illness
Page v Smith
As long as physical harm was foreseeable, if you’re a primary victim and you suffer psychiatric illness you can recover
YAH v Medway NHS Foundation Trust
Psychiatric illness can come on slowly - doesn’t have to be sudden shocking event
What’s the difference between a primary and secondary victim for psychiatric harm?
Primary: either in physical zone of danger or has reasonable fear of injury
Secondary: wasn’t involved directly with the accident but they do know someone who was and they were directly exposed to it
