Chapter 2: Law of torts Flashcards
What is a tort?
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act.
Is injury or damage required for a tort claim to succeed?
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 (this means 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.
What is an intentional tort?
Some types of tort are classed as ‘intentional torts’ as there is a requirement for intention on the part of the defendant to commit the tortious act.
What is strict liability?
Strict liability exists when a defendant is liable for committing an action, regardless of what their intent or mental state was when committing the action.
Explain the tort of trespass?
Trespass takes three main forms:
- Trespass to the person
- Trespass to goods
- Trespass to land
Trespass must be direct and intentional. The claimant does not have to prove that they suffered loss.
Trespass to the person takes three forms:
- Assault
- Battery
- False imprisonment
Trespass to land is the direct interference with land which is in the possession of another.
Trespass to land takes three forms:
- Unlawful entry onto the land of another
- Unlawfully remaining on the land of another
- Unlawfully placing or throwing any material object on the land of another
What is the tort of negligence?
Negligence is, essentially, a failure to take care in circumstances where the law demands that care should be taken. This gives rise to a claim for damages by the person who suffers harm as a result.
For an action in negligence to succeed, there are three essential elements:
* a duty of care owed by the defendant to the claimant;
* a breach of that duty by the defendant; and
* damage suffered by the claimant (which is caused by the breach).
However, only reasonably foreseeable losses that result from the negligent act will be compensated.
Explain the duty of care of negligence
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. This is known at the neighbor principle.
Explain the breach of duty in negligence
A breach of duty occurs when the defendant fails to do what a ‘reasonable’ man would have done in the circumstances, or does what a reasonable man would not have done.
Alternatively, we can say that a breach occurs when the defendant fails to take reasonable precautions.
What are the two forms of nuisance?
Public nuisance and private nuisance
What is public nuisance?
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’.
Actions in nuisance will generally succeed only when there is an element of repetition in the interference or it amounts to a continuous state of affairs.
What is private nuisance?
A private nuisance is an unlawful interference with a person’s use or enjoyment of their land.
What are the two interferences that can occur in private nuisance?
- wrongfully allowing noxious (i.e. harmful) things to escape from their own property so as to interfere with the claimant’s land (such as noise, smoke, smells, vibration, damp or vermin);
- wrongful interference with servitudes, or rights attaching to the claimant’s land (such as rights of way, rights to light or rights of support to land or buildings).
For interference to be actionable, damage must result. This means that the interference must either cause physical damage to the land or at least affect the claimant’s use and enjoyment of it.
The law of nuisance attempts to create a fair balance between ‘neighbours’ by allowing people to make reasonable use of their own land but preventing unreasonable use of land which will adversely affect others. It is recognized that there must be some ‘give and take’
between neighbours so not every trivial interference will amount to a nuisance in law.
What is vicarious liability?
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.
What does the Occupiers’ Liability Act 1984 state?
The principles established in the Herrington case were put into statutory form in the Occupiers’ Liability Act 1984. Accordingly, the 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.
- 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.
- The risk must also be one against which the occupier may reasonably be expected to offer a trespasser some protection.
- The only protected forms of damage are death and personal injury, with no duty in relation to property.
It should be noted that visitors and trespassers are owed only a duty to take such steps as will make them reasonably safe. Trespassers, for their part, are owed duties only in respect of hazards of which occupiers are or should be aware, and only if the occupier should be
aware of their presence.
Liability for dangerous or defective premises is generally placed on the occupier rather than the owner of the premises.
What is the tort of defamation and what are it’s two forms?
Defamation is, essentially, a false statement about a person which causes injury to that person’s reputation.
The tort of defamation takes two forms:
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.
