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UNDERLYING FLK 1 > Contract and Tort > Flashcards

Contract and Tort Flashcards

1
Q

What is a bilateral contract?

A

A bilateral contract is where both parties assume an obligation to each other.

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2
Q

What is a unilateral contract?

A

A unilateral contract is where one party makes an offer that calls for an act to be performed by one or more other parties.

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3
Q

What is required for a valid agreement?

A

One party must make a clear and certain offer displaying an intention to be bound, and the other party must unequivocally accept the offer.

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4
Q

How do courts determine if an agreement exists?

A

Courts take an objective approach, considering what a reasonable person would say was the intention of the parties.

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5
Q

What constitutes an offer?

A

An offer is an undertaking to be contractually bound by the terms of that offer upon unconditional acceptance by the offeree.

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6
Q

What is an invitation to treat?

A

An invitation to treat is a preliminary statement expressing a willingness to receive offers and cannot be accepted to form a binding contract.

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7
Q

Give examples of invitations to treat.

A

Examples include goods displayed in shop windows, advertisements for no reward, and auctions with reserve.

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8
Q

How can an offer be terminated?

A

An offer can end by rejection, lapse, or revocation.

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9
Q

What is a counteroffer?

A

A counteroffer is a response that introduces new terms or varies the original offer, which implies rejection of the original offer.

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10
Q

What happens to an offer if the offeree dies?

A

The death of an offeree will cause the offer to lapse.

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11
Q

Can a bilateral contract be revoked?

A

Yes, a bilateral offer can be revoked at any time before acceptance unless the offeree has given something in return for that promise.

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12
Q

What constitutes acceptance in a bilateral contract?

A

Acceptance is a final and unqualified assent to the terms of an offer communicated to the offeror.

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13
Q

What is the postal rule regarding acceptance?

A

Acceptance may be binding when posted if it is reasonable to send by post, properly stamped, and the offeror has not excluded the postal rule.

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14
Q

What is consideration in contract law?

A

Consideration is an act of forbearance by one party for the promise of something in return.

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15
Q

What must consideration be?

A

Consideration must be sufficient, meaning it is worth something in the eyes of the law.

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16
Q

What is promissory estoppel?

A

Promissory estoppel allows a contract to be enforced despite not being supported by consideration under certain conditions.

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17
Q

What is the presumption regarding intention to create legal relations in a commercial context?

A

There is a very strong presumption that the parties intended to create legal relations.

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18
Q

What is the doctrine of privity of contract?

A

The doctrine of privity states that only parties to a contract can acquire rights and be subject to liabilities under that contract.

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19
Q

What is actual authority in agency law?

A

An agent has actual authority if they have been expressly or impliedly authorized by the principal to contract on their behalf.

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20
Q

What is the difference between terms and representations?

A

A term is a statement intended to be binding, while a representation is a statement not intended to be binding.

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21
Q

What is required for incorporation of terms by notice?

A

Terms can be incorporated by notice if reasonable steps are taken to bring the terms to the other party’s attention before or at the time of contracting.

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22
Q

What does the Sale of Goods Act 1979 imply?

A

The SGA implies terms into sale of goods contracts that are not covered by the CRA.

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23
Q

What is an implied condition under Section 14(2) of the Sale of Goods Act?

A

There is an implied condition that the goods supplied under the contract are of satisfactory quality.

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24
Q

What does the Services Act 1982 (SGSA 1982) imply?

A

The SGSA 1982 implies terms into contracts for services, and contracts for work and materials that are not covered by the Consumer Rights Act (CRA).

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25
Q

What is the implied condition under Section 3 of SGSA 1982?

A

Where there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description.

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26
Q

What does Section 4(2) of SGSA 1982 state about quality?

A

Where goods are supplied in the course of a business, there is an implied condition that the goods supplied under the contract are of satisfactory quality.

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27
Q

What is the implied term regarding care and skill under Section 13 of SGSA 1982?

A

Where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.

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28
Q

What does Section 14 of SGSA 1982 state about time for performance?

A

Where the supplier is acting in the course of a business and the time for the service to be carried out is not fixed by the contract, there is an implied term that the service will be carried out within a reasonable time.

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29
Q

What does Section 15 of SGSA 1982 imply about consideration?

A

Where the consideration for the service is not fixed by the contract, there is an implied term that a reasonable charge will be paid.

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30
Q

What is the scope of the Consumer Rights Act (CRA)?

A

The CRA applies to contracts made between a trader and a consumer.

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31
Q

What does Section 9 of CRA state about quality?

A

Every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory.

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32
Q

What does Section 10 of CRA state about fitness for purpose?

A

Every contract to supply goods is to be treated as including a term that the goods are reasonably fit for that purpose.

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33
Q

What does Section 11 of CRA state about description?

A

Every contract to supply goods is to be treated as including a term that the goods will match the description.

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34
Q

What is the implied term regarding care and skill under Section 49 of CRA?

A

Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill.

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35
Q

What does Section 51 of CRA state about consideration?

A

Every contract to supply a service is to be treated as including a term that the consumer must pay a reasonable price for the service, and no more.

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36
Q

What does Section 52 of CRA state about time for performance?

A

Every contract to supply a service is to be treated as including a term that the trader must perform the service within a reasonable time.

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37
Q

What is required for the incorporation of exemption clauses?

A

A clause purporting to limit or exclude liability for a breach of contract or tortious duty must be incorporated in accordance with the ordinary principles.

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38
Q

What must an incorporated clause cover?

A

An incorporated clause must cover the breach of contract and loss or damage which has occurred.

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39
Q

What is the contra proferentum rule?

A

An unclear or ambiguous exemption clause will normally be construed against the person seeking to rely on it.

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40
Q

What is required to exclude liability for negligence?

A

Clear wording is needed to exclude liability for negligence.

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41
Q

What does UCTA 1977 impose on exemption clauses?

A

UCTA imposes statutory controls on exemption clauses contained in business-to-business contracts.

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42
Q

What is the rule regarding death or personal injury under UCTA?

A

A person cannot exclude or restrict liability for death or personal injury resulting from negligence; any such clause is void.

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43
Q

What does UCTA state about other loss through negligence?

A

A person cannot exclude or restrict liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

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44
Q

What does UCTA state about breach of sections 13-15 SGA?

A

Liability for breach of sections 13-15 SGA cannot be excluded or restricted except in so far as the term satisfies the requirement of reasonableness.

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45
Q

What does UCTA state about breach of standard terms?

A

Liability for breach of contract can be limited by a clause in a party’s standard terms in so far as the term satisfies the requirement of reasonableness.

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46
Q

What is required for a term to be considered reasonable under UCTA?

A

The term must have been a reasonable one to have been included, having regard to the circumstances known to or in the contemplation of the parties when the contract was made.

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47
Q

What does the CRA impose on exemption clauses?

A

The CRA imposes statutory controls on exemption clauses contained in trader-to-consumer contracts.

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48
Q

What does the CRA state about death or personal injury?

A

A trader cannot exclude or restrict liability for death or personal injury resulting from negligence.

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49
Q

What does the CRA state about breach of sections 9-11?

A

Liability for breach of sections 9-11 CRA cannot be excluded or restricted.

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50
Q

What does the CRA state about breach of section 49?

A

Liability for breach of section 49 CRA cannot be excluded but can be restricted to recovery of the price paid (as a minimum).

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51
Q

What is a condition in contract terms?

A

A condition is a major term ‘going to the root of the contract’. If breached, the innocent party can repudiate the contract and claim damages.

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52
Q

What is a warranty in contract terms?

A

A warranty is a contractual term of lesser importance than a condition. If breached, the innocent party is entitled to damages only.

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53
Q

What is an innominate term?

A

An innominate term is neither a condition nor a warranty and is classified based on the effects of the breach on the injured party.

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54
Q

What is actionable misrepresentation?

A

An actionable misrepresentation is an unambiguous false statement of fact made to the claimant which induces the claimant to enter the contract.

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55
Q

What does ‘induced’ mean in the context of misrepresentation?

A

‘Induced’ means formed one of the reasons for entering the contract. If the statement is material, inducement will be inferred.

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56
Q

What is the status of an opinion in misrepresentation?

A

An opinion is not a statement of fact unless it is not actually held or lacks reasonable grounds from a representator in a position of superior knowledge.

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57
Q

What is the status of a promise regarding a future intention in misrepresentation?

A

A promise regarding a future intention is not a statement of fact if the representor knows they cannot do what they state.

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58
Q

What is the status of silence in misrepresentation?

A

Silence is not a statement of fact unless there is a half-truth, failure to correct a false representation, or the contract is one of utmost good faith.

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59
Q

What must be proven for fraudulent misrepresentation?

A

The party alleging fraudulent misrepresentation must prove that the false representation was made knowingly, without belief in its truth, or recklessly.

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60
Q

What must be proven for negligent misrepresentation?

A

The party accused of negligent misrepresentation must fail to prove that they had reasonable grounds to believe the statement was true.

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61
Q

What must be proven for innocent misrepresentation?

A

The party accused of innocent misrepresentation must prove that they had reasonable grounds to believe the statement was true.

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62
Q

What is the effect of misrepresentation?

A

A contract/variation entered into as a result of misrepresentation is voidable.

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63
Q

What is a common mistake in contract law?

A

Common mistake occurs where parties make the same fundamental mistake.

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64
Q

What is a cross-purpose mistake?

A

Parties negotiate at a cross-purpose when they are both mistaken but about different things.

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65
Q

What is a unilateral mistake?

A

Unilateral mistake occurs where only one party is mistaken, and the other party knows of the mistake.

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66
Q

What is the effect of a common mistake about the quality of goods?

A

A common mistake about the quality of goods will not void the contract unless the mistake is so severe that it renders the subject matter ‘radically different’.

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67
Q

What is the exception for unilateral mistake regarding the nature of the document signed?

A

A mistaken belief as to the nature of the document is an exception if due to blindness, illiteracy, or a trick or fraudulent misrepresentation.

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68
Q

What is the presumption of identity in face-to-face transactions?

A

In face-to-face transactions, there is a strong presumption that the seller intended to deal with the person in front of them.

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69
Q

What is the presumption of identity in distance transactions?

A

In distance transactions, it is easier for the seller to prove they intended only to deal with the person named in the correspondence.

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70
Q

What is the effect of an operative mistake?

A

The effect of an operative mistake is that the contract will be void from the outset.

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71
Q

What is the difference between mistake and misrepresentation?

A

If misrepresentation is established, ‘voidable title’ passes to the fraudster; if mistake is established, the contract is void from the outset.

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72
Q

What is required for duress to the person?

A

For duress to the person, actual or threatened violence must influence the decision to enter the contract.

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73
Q

What is required for duress to property?

A

For duress to property, it must be shown that but for the threat to seize or damage property, the contract would not have been entered into.

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74
Q

What is economic duress?

A

Economic duress results when one party has a lack of practical choice due to illegitimate pressure.

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75
Q

What is the effect of duress on a contract?

A

A contract/variation entered into under duress is voidable.

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76
Q

What is the difference between duress and undue influence?

A

Duress deals with situations where consent has not been given, while undue influence involves a relationship of trust and confidence.

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77
Q

What are the types of undue influence?

A

Undue influence can be actual (proven) or presumed where there is a relationship of trust and confidence.

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78
Q

What relationships raise an irrebuttable presumption of trust and confidence?

A

Parent to child, trustee to beneficiary, doctor to patient, and solicitor to client.

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79
Q

What is the effect of undue influence on security contracts?

A

A security contract can be set aside if the bank had actual or constructive knowledge of undue influence.

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80
Q

What are the court’s remedies for undue influence?

A

Remedies are awarded at the court’s discretion; delay or lack of ‘clean hands’ may lead to refusal.

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81
Q

What are the remedial consequences of entering an illegal contract?

A

The consequences are within the court’s discretion, considering the integrity of the legal system.

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82
Q

How can a contract be terminated?

A

A contract may be terminated in accordance with the agreement on the occurrence of a specified event.

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83
Q

What is the doctrine of complete performance?

A

The doctrine states that a contractual obligation is discharged by precise and exact performance.

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84
Q

What is substantial performance?

A

Where the work is finished but slightly defective, the party is entitled to the full contract price less the cost of remedying the defect.

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85
Q

What happens if one party wrongfully prevents performance?

A

The innocent party can sue for damages or a quantum meruit.

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86
Q

What is voluntary acceptance of performance?

A

Where the innocent party accepts partial performance, the party in default is entitled to payment on a quantum meruit basis.

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87
Q

What are divisible obligations?

A

Where the contract is intended to be divisible, the performing party is entitled to payment for each part performed.

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88
Q

What is tender of performance?

A

A party may rely on the defense that they tendered performance if they unconditionally offered to perform and the promisee refused.

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89
Q

What is a subsequent binding contract?

A

The parties may agree to release one another from obligations in a subsequent binding contract supported by consideration.

90
Q

What is a condition precedent?

A

A condition precedent is a condition that must be satisfied before any rights come into existence.

91
Q

What is a condition subsequent?

A

A condition subsequent provides for the termination of the contract upon the happening of a specified event.

92
Q

What is the categorization of terms in breach?

A

A breach of a warranty only entitles a party to damages, while a breach of a condition entitles a party to claim damages and terminate the contract.

93
Q

What is a repudiatory breach?

A

The innocent party has a choice to affirm or terminate the contract.

94
Q

What must be communicated to terminate a contract?

A

A decision to terminate must be communicated to the party in default.

95
Q

What is required for affirmation of a contract?

A

Affirmation requires clear and unequivocal commitment to continue with the contract.

96
Q

What is wrongful termination?

A

A party seeking to terminate must be certain they have the right to do so; otherwise, it can be treated as a repudiatory breach.

97
Q

What is the doctrine of frustration?

A

Frustration occurs when an unforeseen event occurs after the contract is formed which makes performance impossible or radically different.

98
Q

What events can make performance impossible?

A

Performance can become impossible due to the unavailability of a vital object or person.

99
Q

What can make performance illegal?

A

Performance can become illegal due to a change in the law or government intervention.

100
Q

What happens when a common purpose is frustrated?

A

Performance can become radically different because the joint purpose for which it was entered into can no longer be achieved.

101
Q

What makes performance radically different?

A

Performance can become impossible due to the unavailability of a vital object or person, become illegal due to a change in law, or become radically different if the joint purpose can no longer be achieved.

102
Q

What are the restrictions on the doctrine of frustration?

A

Frustration is rarely held due to increased expense, cannot be caused by a party’s default, must be within reasonable contemplation, and cannot override express contractual provisions.

103
Q

What is the effect of frustration on future obligations?

A

If a contract is frustrated, it ends automatically at the time of the frustrating event, with no breach and no future obligations to perform.

104
Q

What does the Law Reform (Frustrated Contracts) Act provide?

A

It allows recovery of money paid before the frustrating event, eliminates the need to pay money that should have been paid before, and allows recovery of expenses incurred in returning money.

105
Q

What is unjust enrichment?

A

Unjust enrichment occurs when the defendant is enriched at the claimant’s expense and retention of that enrichment is unjust.

106
Q

What is the aim of damages in contract law?

A

The aim is to compensate the claimant for loss suffered due to the defendant’s breach, without putting the claimant in a better position than if the contract had been performed.

107
Q

What is expectation loss in damages?

A

Expectation loss damages aim to put the innocent party in the situation they should have been in if the contract had been performed.

108
Q

What is reliance loss in damages?

A

Reliance loss damages aim to restore the innocent party to the situation they would have been in if the contract had never been made.

109
Q

What is restitution in damages?

A

Restitution damages aim to restore a benefit to the claimant that the defaulting party acquired at their expense, awarded in exceptional circumstances.

110
Q

What is the cost of cure in calculating expectation interest?

A

The cost of cure represents the cost of substitute or remedial work to put the claimant in the position they would have been in had the contract been performed.

111
Q

What is diminution in value?

A

Diminution in value measures the difference in value between the performance received and that promised.

112
Q

What is loss of amenity?

A

Loss of amenity provides a remedy for non-economic loss that is nonetheless valuable to the innocent party.

113
Q

Are damages for mental distress generally recoverable?

A

No, but they may be recoverable if the contract’s sole or major purpose was to provide pleasure, relaxation, or peace of mind.

114
Q

Are damages for loss of reputation generally awarded?

A

No, except in employment contracts where there is an implied term of trust and confidence.

115
Q

What is a liquidated damages clause?

A

A liquidated damages clause stipulates a certain sum payable on a particular breach of contract.

116
Q

What is a penalty clause?

A

A penalty clause requires the party in breach to pay an excessive sum and will not be upheld.

117
Q

What distinguishes between liquidated sums and penalties?

A

A clause is not a penalty if it is a primary obligation that furthers the commercial objective; it may be a penalty if it is a secondary obligation that compensates the innocent party.

118
Q

What is specific performance?

A

Specific performance is a court order requiring a party to perform its contractual obligations, not granted if it causes hardship or for contracts for services.

119
Q

What is an injunction?

A

An injunction is a court order restraining a party from doing something, granted only where ‘just and convenient’.

120
Q

What is rescission?

A

Rescission is the right to set aside a transaction and restore the former position, available for misrepresentation or common mistake unless certain conditions apply.

121
Q

What is the duty to mitigate?

A

The innocent party must take reasonable steps to minimize the effect of the breach and cannot recover damages for losses attributable to failure to mitigate.

122
Q

What is an indemnity?

A

An indemnity is a promise to reimburse someone for a stated loss, remaining in effect even if one party’s obligation ceases.

123
Q

What is a guarantee?

A

A guarantee is a promise to ensure the other party fulfills its obligations, requiring written and signed contracts.

124
Q

What are the consumer’s rights regarding non-conforming goods?

A

Consumers have the right to reject goods within 30 days, require repair or replacement, and request a price reduction or final rejection under certain conditions.

125
Q

What is causation in tort law?

A

Causation involves factual causation, where the breach must cause the loss, and legal causation, where there is a chain linking the breach to the damage.

126
Q

What is the test for remoteness?

A

The test for remoteness is whether the damage was of a kind that a reasonable person would have foreseen.

127
Q

What is negligence?

A

Negligence is a breach of a legal duty of care owed to a claimant that results in undesired harm.

128
Q

What are established duty situations?

A

Established duty situations are those with clear precedents, such as road users, doctor-patient, employer-employee, and manufacturer-consumer.

129
Q

What is the Caparo test?

A

The Caparo test determines whether a novel duty exists based on reasonable foresight of harm, proximity of relationship, and fairness.

130
Q

When is there liability for omissions?

A

Liability for omissions may arise from statutory or contractual duties, sufficient control, assumption of responsibility, or creation of risk.

131
Q

What is the standard of care in breach of duty?

A

The standard of care requires the defendant to behave as a reasonable person would in all circumstances, assessed objectively.

132
Q

What is res ipsa loquitur?

A

Res ipsa loquitur raises a prima facie inference of negligence when the cause of the accident is unknown, shifting the burden of proof to the defendant.

133
Q

What is the aim of damages in tort?

A

The aim is to put the claimant back in the position they would have been in had the tort not occurred, with a duty to mitigate loss.

134
Q

What is the similar in type rule?

A

Provided the type of harm was reasonably foreseeable, the defendant is liable, even if the precise way in which it occurred was not foreseeable.

135
Q

What is the egg shell skull rule?

A

Provided the type of harm was reasonably foreseeable, the defendant is liable for the full extent of the harm, even if the precise extent of the harm was not foreseeable.

136
Q

What is the aim of damages in tort?

A

The aim of damages in tort is to put the claimant back in the position they would have been in had the tort not been committed. The claimant has a duty to mitigate their loss, ie keep it to a minimum.

137
Q

What are special damages in personal injury claims?

A

Special damages cover losses which are quantifiable at the time of trial, such as pre-trial medical expenses and loss of earnings. They are presented to the court in the form of a calculation.

138
Q

What are general damages in personal injury claims?

A

Claimants can recover for past, present and future pain and suffering and loss of amenity. The court quantifies damages based on the facts of the case.

139
Q

What can claimants recover for post-trial medical expenses?

A

Claimants can recover reasonable medical expenses for the number of years treatment is likely to continue, calculated based on the estimated annual cost of treatment.

140
Q

How is future loss of earnings calculated?

A

Claimants can recover the amount they would have been capable of earning in the future, calculated as the claimant’s net annual loss of earnings multiplied by the appropriate period of future loss according to the Ogden tables.

141
Q

What is the cost of care in personal injury claims?

A

Claimants can recover the cost of help to recover from their injury. The identity of the carer impacts the amount the claimant can recover.

142
Q

What happens to state benefits received by a claimant?

A

If a claimant receives state benefits because of the accident, these will be deducted from damages and paid back to the state by the defendant.

143
Q

What payments are not deducted from damages?

A

Insurance payments, ill-health payments, and charitable payments are not deducted from the damages which the claimant receives.

144
Q

What does the Law Reform (Miscellaneous Provisions) Act state?

A

All causes of action survive both the claimant and the defendant for the benefit or burden of their estate, except claims in defamation and claims for bereavement damages.

145
Q

What is loss of dependency under the Fatal Accidents Act?

A

A dependent who was financially dependent on the deceased can claim damages for loss of dependency, calculated as the deceased’s annual net earnings multiplied by the period of loss.

146
Q

Who can claim damages for bereavement?

A

The only people who can claim damages for bereavement are the spouse of the deceased or their parents if they are a minor or never married. The amount is currently £15,120.

147
Q

What can dependents claim for funeral expenses?

A

The deceased’s dependents can claim for funeral expenses, but if paid out of the estate, the claim should be commenced under the Law Reform (Miscellaneous Provisions) Act.

148
Q

What is consequential economic loss?

A

Consequential economic loss means monetary loss which is a direct result of personal injury or property damage.

149
Q

What is pure economic loss?

A

Pure economic loss means monetary loss which has not been caused by personal injury or damage to other property.

150
Q

What is the general rule regarding pure economic loss?

A

The general rule is that pure economic loss is not recoverable in tort.

151
Q

What are the exceptions to the general rule of pure economic loss?

A

A defendant may owe a duty in respect of pure economic loss if they make a negligent statement knowing that the claimant is relying on their advice.

152
Q

What is consequential psychiatric harm?

A

Consequential psychiatric harm is psychiatric harm suffered as part of a physical injury, e.g., nightmares and phobias.

153
Q

What is pure psychiatric harm?

A

Pure psychiatric harm is psychiatric harm suffered without physical impact, caused by sudden shock and must be a medically recognised psychiatric illness.

154
Q

What is a primary victim?

A

A primary victim is directly involved in the incident and suffers psychiatric harm because of reasonable fear for their own physical safety.

155
Q

What is a secondary victim?

A

A secondary victim is not directly involved in the incident and suffers psychiatric harm due to fear for someone else’s safety.

156
Q

What is the general rule for primary and secondary victims regarding duty of care?

A

Primary victims are owed a duty of care if the risk of physical injury was foreseeable. Secondary victims are owed a duty if the Alcock criteria are satisfied.

157
Q

What is the nature of an employer’s duty?

A

An employer owes a personal, non-delegable duty to take reasonable care for the safety of their employees.

158
Q

What is the duty to provide competent staff?

A

The duty arises where an employer knows, or ought to know, about the physical or psychological risk a particular worker poses to fellow workers.

159
Q

What is the duty regarding adequate plant and equipment?

A

An employer must provide all necessary equipment and maintain it to a safe standard, even if the inadequacy is due to inherent defects.

160
Q

What is the duty to provide a safe system of work?

A

An employer must devise a safe system of work and take reasonable steps to ensure compliance, involving continual risk assessment.

161
Q

What is the duty to provide a safe workplace?

A

The duty applies regardless of where the employees are at work and is a more onerous version of an occupier’s duty to visitors.

162
Q

What is the duty regarding stress at work?

A

The duty extends to where injury to health through stress at work was reasonably foreseeable, considering the nature and extent of the work.

163
Q

What is vicarious liability?

A

Employers can be held vicariously liable for torts committed by their employees in the course of their employment, with strict liability.

164
Q

What is the distinction between an employee and an independent contractor?

A

The main distinction is that an employee is employed under a contract of service, while an independent contractor is under a contract for services.

165
Q

What happens when an employer lends an employee to another employer?

A

There is a rebuttable presumption that the original employer will be vicariously liable for torts committed by the employee.

166
Q

What constitutes an act done in the course of employment?

A

An act is deemed to be done in the course of employment if it is a wrongful act authorised by the employer or an unauthorised mode of doing something authorised.

167
Q

What is the significance of prohibited acts in the course of employment?

A

Whether a prohibited act is within the course of employment depends on whether it was done to further the employer’s business.

168
Q

Can an employer be vicariously liable for intentional torts?

A

An employer can be vicariously liable for an intentional tort committed purely for an employee’s benefit if there is a close connection between the employment and the act.

169
Q

What are ‘frolic’ cases?

A

Whether an employee is acting outside the course of their employment is determined by the extent of their geographical divergence and departure from the task set.

170
Q

What is voluntary assumption of risk?

A

Consent operates as a complete defence if the claimant had full knowledge of the risk and willingly accepted it.

171
Q

What is contributory negligence?

A

Contributory negligence is a partial defence where the claimant’s failure to take reasonable care contributes to their damage. The claimant can recover damages as deemed just by the court.

172
Q

What is the illegality defence?

A

If the claimant was involved in illegal activity at the time of injury, it may provide a complete defence if closely connected to the injury.

173
Q

What is the necessity defence?

A

The defendant must prove they were acting in an emergency to save life, limb, or property and were not at fault in causing the emergency.

174
Q

What defines an ‘occupier’?

A

An occupier need not be the owner of the premises but must exercise a sufficient degree of control over it.

175
Q

What is the definition of ‘premises’?

A

The definition is very wide and includes open land as well as fixed or moveable structures such as vessels, vehicles, or aircraft.

176
Q

Who is considered a visitor under OLA 1957?

A

A visitor is someone with express or implied permission to be on the occupier’s land.

177
Q

What is the duty of care owed to visitors?

A

An occupier must take reasonable care to ensure that the visitor is reasonably safe in using the premises for the purpose for which they are permitted.

178
Q

What is the standard of care for occupiers?

A

Occupiers must meet the standard of the reasonable occupier.

179
Q

What is the standard of care for child visitors?

A

The standard of care is higher for child visitors who may not appreciate dangers obvious to adults.

180
Q

What is the standard of care for skilled visitors?

A

The standard of care is lower for skilled visitors where the danger is incidental to their work.

181
Q

What are warning signs in relation to occupiers’ duty?

A

An occupier complies with their duty if they adequately warn visitors of dangers, provided the warning is sufficient for safety.

182
Q

Who is considered a trespasser?

A

A trespasser is someone whose presence is unknown to the occupier or, if known, is practically objected to.

183
Q

What is the duty of care owed to trespassers?

A

An occupier owes a duty to a trespasser if they are aware of the danger and have reasonable grounds to believe it exists.

184
Q

What is the standard of care owed to trespassers?

A

Occupiers must meet the standard of the reasonable occupier and can discharge their duty by adequately warning of danger.

185
Q

What is the extent of liability for occupiers?

A

An occupier will only be liable for physical injury arising from the state of the premises; property damage is not recoverable under OLA 1957.

186
Q

What is the exclusion of liability for private occupiers?

A

Private occupiers are not subject to UCTA or CRA provisions and can display a notice excluding liability to visitors/trespassers.

187
Q

What is the narrow rule in product liability?

A

Donoghue v Stevenson considered the circumstances in which a manufacturer of a product owes a duty of care to the consumer.

188
Q

Who is considered a manufacturer?

A

A manufacturer is anyone who works on a product before it reaches the consumer, including repairers and installers.

189
Q

What is the definition of a product?

A

A product is anything capable of causing damage, including items supplied with the product such as packaging or instructions.

190
Q

Who is considered a consumer?

A

The consumer is the ultimate user and anyone the defendant should reasonably have in mind as likely to be injured by their negligence.

191
Q

What is the standard of care for manufacturers?

A

Manufacturers must meet the standard of the reasonable manufacturer.

192
Q

What is the Consumer Protection Act (CPA)?

A

A claim under the CPA provides an additional cause of action to negligence for defective products, with strict liability for the manufacturer.

193
Q

Who can be defendants under the CPA?

A

Claims can be brought against manufacturers, own branders, importers, and suppliers unable to identify any entities in the supply chain.

194
Q

Who can be claimants under the CPA?

A

Anyone who has suffered damage caused by a defective product can bring a claim under the CPA, with no reasonable foreseeability requirement.

195
Q

What types of damage are recoverable under the CPA?

A

Recoverable damages include death, personal injury, and property damage over £275; a separate negligence claim should be brought for loss of the product.

196
Q

What is public nuisance?

A

Public nuisance is defined as continuous unlawful interference with a person’s use or enjoyment of land, or some right over/in connection with it.

197
Q

What are the three types of interference in private nuisance?

A

Interference can be by encroachment, direct physical injury, or interference with quiet enjoyment.

198
Q

What does ‘unlawful’ mean in the context of nuisance?

A

Unlawful means unreasonable, requiring a balance between the rights of one person and the enjoyment of another’s land.

199
Q

What is the significance of duration/frequency in nuisance claims?

A

A nuisance requires an element of continuity; the longer the interference lasts, the more likely it is to be actionable.

200
Q

What is the rule regarding isolated incidents in nuisance?

A

An isolated incident will only amount to a nuisance if it arises from a continuing situation on the defendant’s property.

201
Q

What is the rule regarding abnormal sensitivity in nuisance claims?

A

The courts will generally ignore any abnormal sensitivity of the claimant.

202
Q

Who can sue in private nuisance?

A

A claimant must have a proprietary interest in the land to sue in private nuisance.

203
Q

Who can be defendants in private nuisance?

A

The potential defendants are the creator of the nuisance, the occupier of the land from which it originates, or the landlord.

204
Q

What defines public nuisance?

A

Public nuisance is defined as an act or omission that endangers the life, health, property, or comfort of the public in the exercise of common rights.

205
Q

What is the requirement for unreasonable conduct in public nuisance?

A

The number of people affected must constitute a class of the public, a representative cross-section of the public.

206
Q

What is the requirement for particular harm in public nuisance?

A

The claimant must suffer damage as a result of the public nuisance.

207
Q

Who are the potential defendants in a public nuisance case?

A

The potential defendants are: the creator of the nuisance; the occupier of the land from which the nuisance originates; or the landlord.

208
Q

What is the definition of public nuisance?

A

Public nuisance is defined as an act or omission that endangers the life, health, property or comfort of the public in the exercise or enjoyment of rights common to all of His Majesty’s subjects.

209
Q

What constitutes unreasonable conduct in public nuisance?

A

The number of people affected by the nuisance must constitute a class of the public (a representative cross section of His Majesty’s subjects).

210
Q

What is required for particular harm in a public nuisance claim?

A

The claimant must suffer damage over and above the public at large, which includes personal injury.

211
Q

What is the definition of the rule in Rylands v Fletcher?

A

Rylands v Fletcher created a tort that covers the situation where there is an escape of something dangerous during a non-natural use of land. The occupier of the land is liable for the damage caused because of the escape, regardless of fault.

212
Q

What does ‘something likely to do mischief’ mean in Rylands v Fletcher?

A

The defendant must bring onto their land some thing or substance capable of causing damage. Examples include water and cattle.

213
Q

What is meant by ‘escape’ in the context of Rylands v Fletcher?

A

The substance or item causing damage must actually move from the defendant’s premises to a place outside the defendant’s occupation or control. The escape can be an isolated incident.

214
Q

What are non-natural uses of land?

A

The use of land must be extraordinary or unusual according to the standards of the day. The use of land for industrial purposes is not generally considered non-natural.

215
Q

What is meant by foreseeable damage of the relevant type?

A

The type of damage must be reasonably foreseeable, i.e., not too remote. The Wagon Mound test applies.

216
Q

What are the remedies available for nuisance?

A

Damages and injunctions are the primary remedies. Damages reflect the cost of repairing damage or loss in value, while injunctions are discretionary and may be granted if damages are inadequate.

217
Q

What is prescription in the context of nuisance?

A

Prescription is an effective defence to a claim of private nuisance, available only if the actionable nuisance has been ongoing against the claimant for at least 20 years.

218
Q

What is the statutory authority defence in nuisance cases?

A

A defendant may rely on the defence of statutory authority if they can show that the nuisance was an inevitable result of doing what the statute authorised.

219
Q

Is planning permission a defence in nuisance cases?

A

A grant of planning permission is an ineffective defence, but it could change the character of the neighbourhood, which is relevant when considering interference with the enjoyment of land.

220
Q

What does ‘came to the nuisance’ mean?

A

It is generally no defence to argue the defendant came to the nuisance, but the court may consider this when deciding whether to grant an injunction.

UNDERLYING FLK 1 (3 decks)

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