Chapter 2 Flashcards
Torts
Wrongful acts by one person which causes harm to another where the injured party can seek remedies
Explain how tort is fault based
The claimant must show that the loss was suffered because the defendant committed a legally recognized wrong. Explain the rest
Types of Damages
General damages - monetary compensation for non monetary losses suffered
Special damages - compensation for monetary losses suffered
Vicarious Liability
When a person is held liable for the fort of another because they had the power to prevent it or they encouraged it to happen
Negligence
The omission to do what a reasonable person would do
Reasonable person
A person who possesses the skills of intelligence and judgment required for their own protection and the protection of others
Is negligence a breach of duty of care ?
Duh
A tort Feasor is liable to compensate a claimant who can show
They owed a duty of care
A loss was suffered as a result of that breach
They failed to demonstrate a duty of are this breaching that duty of care
Negligence cases are based on a non contractual relationship therefore
Remedies are non contractual
Neighbor principle
One must avoid acts that could be foreseen as injury to their neighbor
In the neighbor principle, there is a duty of care where
There is a relationship of proximity between the parties
Damage was reasonably foreseeable
Fair and just in the circumstance to impose a duty of care
If the 3 tests are not satisfied then the claimant has no claim
A relationship will be proximate if the advice is given
In a contractual relationship
In a fiduciary relationship
In a special relationship (where the giver of advice knows or ought to know)
Standard of care
The degree of care which should be expected of a person in order to discharge his duty of care to others
A defendant is only liable …..
For damage caused by the negligent action or inaction. If the loss would have occurred regardless then it is not a direct consequence of the negligence and the defendant is not liable
Novus actus interveniens (new intervening cause)
If chain of events between the negligent act and the eventual damage is broken by an unforeseen factor the loss is too remote and the defendant will not be liable
Examples of intervening acts which remove liability from the defendant
Actions of a third party which become the real cause of the loss or damage (the defendant is only liable for damages up until the point when the third party intervened)
Actions of the claimant
Natural events unforseeable
When is the burden of proof shifted to the defendant ? (Strict liability)
The facts speak for themselves (res ipsa loquitur)
The law imposes strict liability on the defendant
Ways a defendant can protect against liability
Volenti non fit injuria - the claimant knew of risk and voluntary contented to it
Contributory negligence- a partial defense where the tortfeasor shows that the claimants own actions or inactions contributed to the loss or damage suffered
Is free content to tort an absolute defense ?
Yes
What does the limitation act 1980 state
Negligence cases must be brought within 6 years of the negligent act or omission
Passing off
Where a persons reputation or identity Is misappropriated by another person
What is the main remedy for passing off
Injunction
What must a claimant establish to bring a successful case in passing off
Goodwill or reputation attached to the goods and services of the claimant
Misrepresentation by the defendant to the public
Loss or damage resulting from the erroneous belief that goods and services of the defense at are goods and services of the claimant
What are equitable remedies
A court may decide on equitable remedies when it believes that paying off the person simply won’t be enough to settle the situation
The law of negligence considers foreseeability twice in relation to
Duty of care and remoteness
Damage claimed must be
The direct foreseeable consequence of the defendants negligence
Chain of causation
Breaking a chain of causation means that there is a disruption to one of the elements of negligence.
If a damage suffered was not reasonable foreseeable the defendant is not liable
True
Is there automatic liability for economic loss ?
No
A holding company is not responsible for the liabilities of its subsidiaries. However it could be responsible if specific circumstances require a duty of care to be imposed
True
Equitable remedies
Injunction
Specific restitution
What is the rule in nervous shock cases
In order to have a claim, the claimant must suffer shock and illness as a result of
Being close to the events in both time and space
Fearing for one’s safety or that of a close relative
A person in a position that requires the exercise of special care will be expected to exercise it
True
Damage claimed must be the direct foreseeable consequence of the defendants negligent actions
True
Eggshell skull rule
The Eggshell Skull Rule states that a defendant in a personal injury case will be responsible for the damage caused as-is, even if the victim had a pre-existing condition that made him or her predisposed to serious injury.
Eggshell wallet
A defendant whose fort causes the claimant to lose money or aggravate losses might be liable to compensate the other party for the whole loss
Where is the evidential burden
On the claimant to show that on the balance of probabilities the loss or suffering was due to the defendants breach of duty
Defended in tort to escape liability
Volenti non fit injuria - the claimant knew of the risk and voluntarily consented to it
Contributory negligence - a partial defense when the tortfeasor shows that the claimants own actions or inactions contributed to the loss or damage suffered
Free consent to try is absolute defense but
Consent to criminal acts does nit constitute Volenti
A person who assumes known risk through compelling motives is not giving free consent
Mere knowledge of a risk does not prove consent
Time period to bring in negligence claims
Within 6 years of the negligent act (reduced to 2 years in personal injury claims)
Three elements to bringing a successful case of passing off
Goodwill or reputation attached to the goods or services of the claimant
Loss or damage resulting from the erroneous belief that the goods of the defendant are the goods of the claimant
Misrepresentation by the defendant to the public leading them to believe that the goods offered are those of the plaintiffs
