Chapter 2

Question 1

What is a Tort?

Answer 1

A civil wrongs that causes a claimant to suffer a loss or harm, resulting in legal liability for the person who commits the tortious act.

Question 2

What is the difference in the purpose of legal action for a tort vs crimes

Answer 2

Tort is to provide compensation
Criminal is to punish offenders found guilty

Question 3

What is an example where both a tort and crime are shown?

Answer 3

A steals Bs coat (theft and trespass to goods)

Question 4

What is the main remedy for damages from tort ?

Answer 4

Financial compensation.

Question 5

What are 4 examples of torts?

Answer 5

Defamation
Trespass to the person
Private nuisance/ trespass to land
Breach of copyright or patent design.

Question 6

Is injury or damaged required for action against Tort?

Answer 6

Yes, in most cases the claimant has suffered some form of injury, damage or loss. Some however is actionable per se (eg. Trespass to land)

Question 7

What is meant by intentional tort?

Answer 7

It is a classification of tort and means there is a requirement for the defendant to intentionally commit the tortious act (eg trespass)

Question 8

Which torts do not require intent?

Answer 8

Negligence

Question 9

What is meant by strict liability?

Answer 9

The idea of ‘no-fault’ liability - where someone is held liable for their actions when they were not intentional or negligent (liability in a contract)

Question 10

Does the law of tort concern itself with malice or motive?

Answer 10

Not usually. Except for two cases (in the tort of defamation, some defences are not available and in the tort of nuisance some actions which are normally reasonable are deemed unreasonable if motivated by malice).

Question 11

What are the characteristics that trespass needs to have?

Answer 11

The act must be direct
The act must be intentional
The tort is actionable per se (they do not need to prove any loss has been suffered)

Question 12

What are the three forms for trespass to the person?

Answer 12

Assault - any act which directly causes the claimant to fear an attack.
Battery - the hostile application of physical force.
False Imprisonment - imposing total bodily restraint on the claimant

Question 13

What is trespass to goods?

Answer 13

When the defendant directly and intentionally interferes with goods which are in the possession of another.

Question 14

What is conversion?

Answer 14

Conversion is an intentional tort consisting of ‘taking with the intent of exercising over the chattel an ownership inconsistent with the real owners right of possession’

Question 15

What is trespass to land?

Answer 15

Trespass to land is the direct interference with land which is in possession of another. It must be intentional and takes three forms.
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.

Question 16

What is the relationship between trespass and insurance?

Answer 16

Not much - insurance is for fortuitous losses (accidental) and trespass is intentional.

Question 17

What is Negligence?

Answer 17

The most important tort for insurers (motor accidence, employment injuries etc). The failure to take care in circumstances where the law demands that care should be taken.

Question 18

For an action in negligence to succeed what are the three essential elements?

Answer 18

1- A duty of care owed by the defendant to the claimant
2- A breach of the duty of care by the defendant
3- damage suffered by the claimant

But only reasonably foreseeable losses resulting from the negligent act will be compensated.

Question 19

Which case established a general principle governing the duty of care?

Answer 19

Donoghue v Stevenson (1932)
A lady bought a ginger beer for a friend, when she poured out some a decomposed snail emerged.She could not sue for the cafe as she did not buy the ginger beer, nor could she sue for negligence as the bottle was opaque. However, she could sue the manufacturer - showing proximity.

Question 20

What is a breach of duty?

Answer 20

A breach of duty occurs when the defendant fails to do what a reasonable man would have done in the circumstance.

Question 21

What forms can damage take?

Answer 21

Death, bodily injury and damage to property

Question 22

Which case shows a legal limit for remoteness of damage?

Answer 22

The wagon mound
negligible spill of fuel in Sydney - oil mixed with cotton waste and spread to a wharf where welding operations were sparking and this caused the oil to ignite. Although the fire was a direct result of negligence, they could not have reasonably foreseen it.

Some medical issue with a pre existing condition are exceptions to this rules (Thin skull rule)

Question 23

Which case meant the law changed for negligent misstatements (people outside of contract could sue for negligent advice)?

Answer 23

Hedley Byrne v Helier and Partners (1963)
- special relationship
- giver of the advice can reasonably force suffering from acting on the advice
- loss

Question 24

When is economic loss awarded?

Answer 24

Courts are reluctant to allow pure economic loss, however if it is not remote and accompanies physical damage they the defendant is liable. (Spartan Steel -no liability in tort for any economic loss which does not flow directly from some physical damage suffered by the claimant).

Question 25

Who can sue in negligence for psychiatric illness?

Answer 25

Anyone that suffers physical harm.

Question 26

What is ‘nervous shock’ cases?

Answer 26

A person developing a psychiatric illness following the shock of witnessing a terrible accident caused by the negligence of another- they need to establish that they fall within a class of persons to whom a duty of care is owed.

Question 27

What type of victims do you have for nervous shock?

Answer 27

Primary - suffer shock through fear of their safety
Secondary - suffer shock through fear for the safety of others.

Question 28

Which case was important for establishing primary and secondary victims in nervous shock?

Answer 28

Alcock V Chief constable of South Yorkshire
A football match where 96 people were crushed to death. Secondary victims were not entitled to damages unless they had a relationship with an immediate victim, were close in space/time to the aftermath or they had learnt about it through their own senses.

Question 29

What are the two forms on nuisance?

Answer 29

Public (cause inconvenience to the public) and Private (protect a persons interests in their land)

Question 30

What is a defence in nuisance that is separate to the other torts?

Answer 30

under the Prescription Act 1832 - if the defendant can establish that the actionable nuisance has existed openly and continuously for at least 20 years, their right to continue with the activity in question cannot be challenged.

Question 31

What is the rule in Roland’s v Fletcher?

Answer 31

It is an example of strict liability. The case saw contractors create a reservoir to supply water to a mill, in doing so they accidentally connected to the claimants mine - after the work completed this burst and ruined the colliery. The defendant was not negligent but was found guilty. (Anything on your land should stay on your land - in this case it escapes and destroys another)

Question 32

What are the defences available for Roland’s v Fletcher?

Answer 32

Consent of the claimant
Act of God
Unexpected act of a stranger
Statutory authority

Question 33

What is statutory duty?

Answer 33

Acts of parliament and written rules and regulations covering other torts.

An example is the Highways Act 1980 providing that users are owed maintanence to it.

Animals Act 1971 (strict liability for damage caused by animals under the care of another.

Question 34

What is needed to succeed for breach of statutory duty ?

Answer 34

1- Statute was intended by parliament to allow a civil remedy
2- Statute must impose a duty on the defendant and not merely a power
3- The claimant must prove that the statutory duty was owed to them
4- there must be a breach of the duty by the defendant
5- the damage suffered must be caused by the breach.

Question 35

What is employers liability?

Answer 35

Part of law of torts concerned with the liability of the employer for injuries suffered by employees in the course of their employment.

Question 36

Under employers liability what must the employer take reasonable care to do?

Answer 36

1- Select competent staff
2- Provide and maintain proper plant, premises and equipment
3- Provide a safe system of work

Question 37

What act takes the common law duties of the employer and makes them subject to criminal law?

Answer 37

Health and safety at Work Act (1974)

Question 38

What is meant by Vicarious Liability?

Answer 38

When one person is held liable for wrongs committed by another.

Question 39

In doubtful cases for vicarious liability, what are the five policy reasons that are relevant?

Answer 39

1- employer has more means to compensate
2- Tort committees as a result of an activity at work
3- employees activity is part of the business activity
4 - employer, by employing the employee created the risk

Question 40

What is the Occupiers Liability Act 1957?

Answer 40

An Act passed to simplify the old common law rules. Under the act a common duty of care is owed to all visitors present on the land to another.
In 1984- this was extended to cover trespasses.

Question 41

What is the Consumer Protection Act 1987?

Answer 41

A form of strict liability for defective products.A producer is liable for personal injury, or damage in excess of £275 to property used for private purposes.

Question 42

What are the two forms of defamation?

Answer 42

Libel (permanent form)
Slander (non-permanent)

Question 43

What are the defences for defamation?

Answer 43

Truth
Honest Opinion
Publication on a matter of public interest
Innocent defamation
Privilege

Question 44

What are the general defences in tort?

Answer 44

Self defence
Necessity
Statutory Authority
Consent and Volenti non fit injuria (to a willing person it is not wrong )

Question 45

What is contributory negligence?

Answer 45

When the claimant is partly to blame - due to the law reform this is not a complete defence.

Question 46

What are the limitations of actions against tort?

Answer 46

Limitation Act 1980 limitation periods are:
- One year where the claim is for libel or slander
- Three years for personal injury claims
-Six years for most other tort actions

Question 47

What are remedies in Tort?

Answer 47

Damages (compensate by paying for loss)
Special damaged and general damages
Aggravated damages - additional damages beyond loss to reflect that the motives and conduct of the defendant have aggravated the injury suffered (injuring dignity of pride)
Exemplary (or punitive) damages - object of an award is not to punish the wrongdoer but compensate the claimant (punishment is a function of the criminal law). But exemplary damages are awards which exceed the loss with intent to punish the defendant.
Nominal Damages - where a person has committed a tort which is actionable per se but no real loss has been caused to the claimant.
Contemptuous damages - award of a tiny sum to mark the courts low opinion of the claim of the claimant or record their disapproval of the claimants conduct.

Question 48

What is an injunction?

Answer 48

A type of equitable remedy (many times it is to prevent reoccurrence of a tort)