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Engineering Law Flashcards

1
Q

What is the law

A

The law is a system of rules established by authority.
It can forbid behaviour, impose duties, and grant powers.

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2
Q

Social Conventions & Laws

A

Not all social conventions are legal rules.

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3
Q

Morality & Law

A

Morality and law can have differences.

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4
Q

Sources of Law

A

Legislative Law
Common/Case Law

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5
Q

Legislative Law

A

Consists of Constitutional Law and Statute Law

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6
Q

Legislative Law: Constitutional Law

A

structure, power and function of government and citizen’s rights

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7
Q

Legislative Law: Statute Law

A

laws passed by legislative body e.g. parliament

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8
Q

Common/Case Law

A

Legal precedents established through judicial decisions on past cases

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9
Q

Common/Case Law: Tort Law

A

wrongs committed by one party against another

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10
Q

Common/Case Law: Contract Law

A

formation, interpretation, enforcement of agreements between parties

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11
Q

Common/Case Law: Equity Law

A

remedies to injustices from strict application of common law

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12
Q

Categories of Law

A

International
Domestic

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13
Q

International Public Law

A

governs relationships between countries

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14
Q

International Private Law

A

Governs which country’s laws should apply to individuals with links to at least two countries

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15
Q

Domestic Public Law

A

Involving the state

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16
Q

Domestic Private Law

A

relationships of citizens and corporations, state establishes rules but is not concerned with punishment

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17
Q

The Three Institutions of Government & Their Functions

A

Government: Executive
Parliament: Legislative
Courts: Judicial

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18
Q

Seperation of Government Branches

A

Needs to be as much separation as possible for a fair democracy and ensure not branch has too much power. Rule of Law is upheld, ensuring laws are applied fairly and consistently.

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19
Q

Rule of Law

A

all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders

No one is above the law

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20
Q

Government’s Role

A

govern, implement, enforce laws. Defend state, maintain international relations

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21
Q

Parliament’s Role

A

making and passing laws

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22
Q

House of Commons

A

Elected, debate, propose, amend laws. Challenges government’s work

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23
Q

House of Lords

A

Appointed and hereditary peers with expertise. Review and revises legislation from house of commons.

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24
Q

Court’s Role

A

interpreting laws, ensure fair application

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25
Q

Tribunal

A

Independent from courts, handles specific cases (e.g. employment, immigration)

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26
Q

Tribunal Advantages

A

Accessible, includes 2 experts in relevant field, decisions can be appealed to higher tribunals or courts, cost effective and faster

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27
Q

Tribunal Disadvantages

A

: Reduced legal precedent, fewer legal protections, lacks same level of legal expertise as judges

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28
Q

ADR

A

Alternative Dispute Resolution
Not under judicial branch of government. Range of methods to resolve conflicts as an alternative to litigation

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29
Q

ADR Litigation Alternatives

A

Negotiation
Mediation (Neutral third party during discussions)
Conciliation (Mediation for more legal disputes)
Arbitration (Neutral arbitrator to make a binding decision)

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30
Q

ABSs

A

Alernative Business Structures
Professional service with a comprehensive range of legal services

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31
Q

Solicitors

A

Provides legal advice to clients. Ensure barristers are chosen properly and collect relevant evidence

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32
Q

Barristers

A

: Provide legal consultation and advice, directly address judges on behalf of clients

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33
Q

Judges

A

Preside over court cases, make legal rulings. Appointed from pool of barristers. Administrative function of summons, warrants, and issuing licences. Cannot be sued except for conduct outside courtroom.

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34
Q

Judgicial Independance

A

Judges shoukd not be influenced by politics, personal beliefs etc.

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35
Q

Judges Responsibilities: Interpretation of Statues

A

Apply any clear and comprehensive legislation whether they agree or not. Unclear statues allow judges to take into account intention of legislation

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36
Q

Judges Responsibilities: Application of Precedent

A

Cases with similar facts are treated the same. Lower courts are bound by decisions of higher courts. Can overturn precedent but is rare. Ensures certainty and consistency and saves time and money

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37
Q

Civil Justice System

A

One dividual brings case against another. State is not involved. Judge only trial. Outcome is usually compensation. Standard of proof is lower. Impact must be considered i.e. cost, stress, time. Most cases are settled

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38
Q

Criminal Justice System

A

Crown prosecution service brings action against individual. Outcome is sanction imposed by state

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39
Q

Summary Offence

A

Minor offences tried in Magistrates’ Court

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40
Q

Indicable Offence

A

Serious offences tried in Crown Court

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41
Q

Triable Either Way Offence

A

Middle ground, tried in either court. Depends on defendant’s preference and seriousness of offence.

Complex cases tried in Crown court

Magistrates are more lenient but there is a higher likelihood of conviction than Crown

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42
Q

Contracts: Interpretation of Intent

A

Used to determine what parties to a contract meant

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43
Q

Contracts: Subjective Approach

A

Seeks to understand what each party had I mind. Difficult to apply and prove. Emphasises Meeting of Minds, when a contract is formed each party has a common understanding

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44
Q

Contracts: Objective Approach

A

Concerned with how a reasonable person interprets actions, words, and conduct. Provides legal certainty

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45
Q

Contracts: Bilateral Contract

A

Exchange of two promises e.g. Sale of goods – promise to pay, promise to deliver

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46
Q

Contracts: Unilateral Contract

A

A single conditional promise i.e. one party does something if the other party does something

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47
Q

Contracts: Offer

A

An expression of willingness to enter a contract on specified terms

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48
Q

Contracts: Invitation to Treat

A

Invitation for others to make offers

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49
Q

Contracts: Acceptance

A

Final expression of assent to terms in an offer.

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50
Q

Contracts: Communication Rule

A

Acceptance must be communicated to the offeror. Acceptance Produced + Acceptance Communicated = Valid Acceptance -> Contract

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51
Q

Contracts: Mirror Image Rule

A

Valid acceptance must mirror terms and conditions of the offer

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52
Q

Contracts: Postal Rule

A

Offers made through mail are contracts when the offeree posts the acceptance letter. Only for non-instantaneous communication

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53
Q

Contracts: Consideration

A

Price given in exchange for goods/services. Cannot have already been provided or promised before contract. Given from Promisee to Promisor. Value of consideration need not be proportionate to goods/services

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54
Q

Contracts: Representations

A

Statements of fact that may cause a party to enter the contract. Misrepresentation may lead to remedies for the innocent party e.g. Car sale: The car has been serviced regularly

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55
Q

Contracts: Terms

A

Promises made that are intended to be legally binding e.g. Lease: Tenant agrees to pau £1,000 in rent per month for a period of 12 months

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56
Q

Contracts: Express Terms

A

Explicitly stated in contract, oral/written

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57
Q

Contracts: Implied Terms

A

Implied through statue, case law, and trade customs

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58
Q

Contracts: Conditions

A

Fundamental terms that must be strictly and precisely fulfilled. Breach of condition entitles innocent party to terminate the contract and seek damages

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59
Q

Contracts: Warranties

A

: Less essential terms secondary to the main purpose of the contract. Breach of warranty entitles innocent party to seek compensation

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60
Q

Contracts: Innominate Terms

A

Importance is determined by impact of the breach

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61
Q

Contracts: Exemption Clauses in contracts

A

Limits freedom of parties to agree to terms in contracts. Intervenes when there’s is an extreme asymmetry of exchange between parties. Protects parties with less bargaining power.

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62
Q

Contracts: Unfair Contract Terms Act (1977)

A

Restricts unreasonable exemption clauses in contracts where both parties act in course of business (B2B).

Applies to clauses that try to exclude liability for death or injury through negligence

Other exemptions are allowed if they meet the test of reasonableness

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63
Q

Contractual interpretation

A

Discover the meaning of a contract by interpreting as a reasonable person.

Background must be considered, all relevant info that was available to parties when contract was formed)

Excludes previous negotiations and discussions between the parties.

Meaning of words in context is considered, not dictionary definitions.

Common sense should prevail, people do not tend to make mistakes in formal contracts.

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64
Q

Termination of Contract

A

Performance: Both parties perform their obligations
Agreement: Both parties agree to terminate the contract. The agreement to discharge a contract is a contract
Frustration: The occurrence of a frustrating event e.g. a contract to use a theatre that then burns down
Breach: Conditions are breached and the innocent party can terminate the contract

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65
Q

Contracts: Anticipatory Breach

A

: One party indicates their intention to breach the contract allowing the innocent party to sue

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66
Q

Damagesfor Breach of Contract

A

Remedy for breach of contract

Monetary compensation based on expected losses ust not be punitive

(party is put in position should the contract be completed) or reliance losses (party is put in position before the contract was established). M (used as punishment).

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67
Q

Breachof Contract Remedy: Action for Agreed Contract Price

A

Innocent party can claim full contract price when contract has been fully performed but not paid

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68
Q

Breachof Contract Remedy:Quantum Meruit

A

Reasonable sum for paid work when there’s no expressed contract but work was done with expectation of payment.

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69
Q

Breachof Contract Remedy: Specific Performance

A

Court orders breaching party to fulfil obligation.

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70
Q

Breachof Contract Remedy:Injunction

A

Prohibits a party from taking certain actions or requires them to perform a specific action

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71
Q

Breachof Contract Remedy:Repudiation

A

When one party clearly indicates they won’t perform obligations, allowing the innocent party to treat the contract as terminated and seek damages

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72
Q

Unincorporated Business

A

Business and owner are not separate legal entities. Owner is liable for debts and legal obligations. Their assets are at risk

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73
Q

Sole Trader

A

Single individual liable for business. No formal requirements to form the business therefore increased autonomy. To cease trading, inform relevant authorities (due to tax obligations)

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74
Q

Partnership

A

Two or more persons form business

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75
Q
  • Typical Partner
A

Right to take part in management

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76
Q
  • Silent Partner:
A

Invests money but no role in management

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77
Q
  • Salaried partner
A

Appears on letterhead but does not have rights and obligations of other partners

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78
Q
  • Partner by Estoppel:
A

: Appear as partner even with no active participation. Behaving like a partner incurs liability

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79
Q

Partner Rights

A
  • Right to Share Profits Equally
  • Right to be Indemnified (Compensation for personal losses using partnership account)
  • Right to have a Role on Management (Except silent partners)
  • Entitlement to Inspect Accounts
  • Right to Veto Entry of New Partners

applicable unless contract says otherwise

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80
Q

Partner Duties

A
  • General fiduciary (legal & ethical) duties: must act in good faith and loyalty
  • Duty of Disclosure: All info submitted to partner and legal representatives in matters affecting the business
  • Duty to Account: Submit true financial accounts, including benefits obtained without consent from any transaction on behalf of the firm
  • Non-compete Duty: partners competing with the business without consent from other partners must account to those partners for any profits or benefit produced during that business
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81
Q

Partner Liability

A
  • Joint Liability for Debts, Contracts & Torts: Torts committed in course of business have all partners liable if the offending partner did it within their actual or apparent authority.
  • Proportional Liability Sharing: Liability dependant on percentage of ownership
  • Imposing Liability: Can only be done during or after partnership (for acts during the partnership), not before
82
Q

Partnership Formation

A

Partnership Agreement that identifies purpose,
time span of existence,
names of partners,
business address,
percentage of ownership & distribution of profits,
authority of participating in management,
responsibilities of partners

83
Q

Partnership Termination

A

through time span completed.
Specific task for which the partnership was created is completed.
Agreement between partners.
The business is unlawful.
On death, bankruptcy, or permanent incapacity of a partner

84
Q

Incorporated Business

A

Business and owner are separate legal entities. Owner is protected from business debts.

85
Q

LLP

A

Limited Liability Partnership
Partners are liable up to their value of investment

86
Q

LLP Formation

A

through incorporation document and statement of compliance filed with Company House.
Certificate of incorporation is received allowing trade to begin.
Any Amendments must notify company house

87
Q

LLP Termiation

A

through voluntary dissolution
insolvency (inability to pay debts)

88
Q

Limited Company

A

Limited Company

Shareholders are liable for debts limited to the value of the shares they own but the company itself has unlimited liability, therefore it must satisfy its debts

89
Q

Limited Company: Characteristics

A

Perpetual Succession: Remain in existence till wound up
Contractual Ability: May establish and enforce contracts
Ownership of Property: Ability to own property
Director Liability for Torts/Crimes: Directors are liable for limited companies crimes/torts

90
Q

Limited Company: Formation

A

y filing documents with Companies House:
memorandum of association.
Articles of association.
Form IN01

91
Q

Limited Company: Termination

A

Termination when wound up

Through Application (to get struck off the register),
Voluntary Liquidation (For solvent companies, file Declaration of Solvency to Companies House),
Liquidation by Court (For insolvent companies)

92
Q

PLC

A

Public Limited Company

entitled to offer shares to public.
Must end in PLC or Public Limited Company.
Must hold an annual AGM.
Share capital of £50,000.
Two Directors,
Qualified Secretary.
Written resolutions require a meeting to be passed

93
Q

Ltd

A

Private Limited Company

prohibited to offer shares to public.
Must end in Ltd or Limited.
One director minimum.
No other requirements like PLC

94
Q

Law of Agency

A

Governs relationship between a principle and an agent

95
Q

Agent

A

Acts on behalf of and under the authority of the principle

96
Q

Actual Authority

A

: An express appointment by the principle with scope of authority specified in a contract

97
Q

Implied Authority

A

An implied authority, inferred appointment by the principle.

98
Q

Apparent/Ostensible Authority

A

An impression of representation conveyed by the principal to a third party that the agent has authority.

To establish, must demonstrate:
Person represented as an agent,
Principle must have made the representation,
the Third party must have acted as a result of the representation

99
Q

Authority through Ratification

A

Retrospective acceptance of a contract by the principal (Principle can reject/accept the contract made by the agent).

100
Q

When does Authority through Ratification Occur

A

Agent exceeds their authority
A person with no authority acted as if they had authority

101
Q

What criteria is required for Authority through Ratification

A

Given within reasonable time from agreement and communicated to the third party.
Principal must exist at time of contracting.
Third party must be aware that the principal exists and then agent is acting on their behalf.
Principal must have the capacity to contract.

102
Q

Agent Duties

A

o Fiduciary Duty: Act in best interests of principal. Avoid conflicts of interest. Abstain from profiting at the principal’s expense. Refrain from disclosing confidential information
o Obligation to Obey Lawful Instructions
o Obligation to Carry Out Duties Assigned
o Obligation to Carry Out Duties with Care, Skill, Diligence
o Obligation to Pay the Principal Sums Received on Their Behalf

103
Q

Agent Rights

A

o Indemnity (Security from loss)
o Payment
o Maintain the Goods: Agent’s owed money from principal can maintain control over goods relating to the debt until the debt is cleared

104
Q

Agent Liability

A

o Principal may be held jointly and severally liable for agent’s wrongful act if there is a sufficiently close connection between the agent’s authority and events that gave rise to liability (vicarious liability)

105
Q

Agent Liability: Principal Reimbursement

A

 Principal can seek reimbursement for damages from agent they were forced to pay but for when the principal authorised the conduct

106
Q

Agent Liability: Third Party Claims

A

 Third party can claim against agent, principal or both

107
Q

Agent Liability: Contractual Liability

A

Agents in scope of their authority are not personally liable to third parties

If the principal does not exist, the agent is liable

If an agent acts in excess of the principal’s authority and disclosed they were acting for a principal. Both are jointly liable, third party may enforce the contract against either

If an agent acts in excess of the principal’s authority and they did not disclose they were acting for a principal, the contract exists against the agent. Principal may assume obligations if third party would have agreed to contract is principal was disclosed or if agent did not withhold information to identify the principal when asked

108
Q

Agent Termination

A

Mutual Agreement,
Expiration of Period of Validity.
Accomplishment of purpose.
Revocation of agency agreement.
Substantial alteration in business circumstances or value of the subject
Operation by law (bankruptucy, loss of capacity, serious llness, death of agent or pricnipal)
Frustration (impossible or illegal to perform agent role)

108
Q
  • Employment Law
A

Governs the relationship between employers and employees

108
Q
  • Individual Labour Law:
A
  • Individual Labour Law:
109
Q
  • Collective Labour Law:
A

Relationship between trade unions and their employer

110
Q

Worker:

A

Minimal writes under employment law.
Minimum Wage.
Paid Holiday.
Rest Breaks.
Limits of Maximum Weekly Working Time.
Statutory Sick/Maternity/Paternity pay

111
Q
  • Employee
A

All rights under employment law.
Minimum Wage.
Paid Holiday.
Rest Breaks.
Limits of Maximum Weekly Working Time.
Statutory Sick/Maternity/Paternity pay.
Unfair Dismissal Rights.
Minimum Notice Periods.
Redundancy Payments.
Protection in Case of Transfer of Undertakings.
Employer National Insurance Contributions.
Right to request flexible working.
Time off for Emergencies.

112
Q

*Why need to Establish Employment Status:

A

to distinguish between worker and employee

113
Q

o Control Test

A

Examines degree of control employer has over individual’s work

114
Q

o Right to Control Test

A

: Improved control test that assesses whether employer has the right to dictate the individual

115
Q

o Integration Test

A

Assesses how integrated into the business the individual is. No definition for ‘integration; though

116
Q

o Mixed Test:

A

Several factors. Who provides equipment? Individual agrees to be subject to employer’s control? Mutual obligations

117
Q

 Mutality of Obligations:

A

Individual agrees to provide their own work in exchange for a wage. Obligation to turn up and be provided with work. Cannot send a substitute. Zero hour contracts do not count

118
Q

o Economic Reality Test

A

How dependant is the individual on their employer financially

119
Q

o Worker Test:

A

Individual is a worker where the individual personally performs a service for another party who is not a client or customer (is an employer)

120
Q
  • Contractual Statement of Terms:
A

Provided to an employee when they start working including names, date of start, remuneration, hours, etc.

121
Q

o Incorporation of Express Terms in Statement of Terms:

A

Terms can be incorporated from Collective Agreements and work rules in handbooks etc. Have to be apt for incorporation and intended to be incorporated

122
Q

o Incorporation of Implied Terms in Statement of Terms:

A

Terms implied by common law are implied in all contracts of employment

123
Q

Implied Employer Dutues

A

To Pay, Provide Work, Provide Safe Place to Work, Mutual Trust & Confidence

124
Q

 Implied Employee Duties

A

: Mutual Trust & Confidence,
Be Ready & Willing to Work,
Use Reasonable Skill & Care.
Obey lawful & Reasonable Orders.
Duty of Fidelity during Employment.

125
Q
  • Wrongful Dismissal
A

: Termination violates contractual terms or legal obligations.

126
Q

o Summary Dismissal

A

Employer does not have to pay the employee during the notice period due to gross misconduct or a fundamental breach of contract

127
Q
  • Actual Unfair Dismissal:
A

Employee is terminated in manner that is a violation of contractual terms or employment laws

128
Q
  • Constructive Unfair Dismissal:
A

Employer seriously breaches employment contract and employee resigns as a result

129
Q
  • Automatically Unfair Dismissal
A

Employer terminates employee for reason that is inherently unjust and illegal e.g. pregnancy

130
Q
  • Potentially Fair Dismissal:
A

Terminations that may be reasonable and are relayed to conduct ,capability, redundancy, statutory illegality or breach of restrictions, other substantial reasons. Considered fair if:

o Procedurally Fair: If procedures were fair. Fair investigation, Warnings Given, Employee told their story
o Substantively Fair: Was the employer’s response reasonable

131
Q
  • Redundancy:
A

Employer no longer requires role to be performed. Business employee does is ceased or requirement for work has ceased. Statutory redundancy payment is paid to those who are made redundant and are employed for more than 2 years

132
Q

o Compensatory Award

A

Compensation awarded in certain conditions. If situation doesn’t meet redundancy requirements, employee can claim unfair dismissal. Or if redundancy process was unfair e.g. selecting who is made redundant was selected through discriminatory criteria. Employee claims unfair dismissal

133
Q

Equality Act 2010

A

Covers discrimination in work (not voluntary work), education, provision of goods & services, associations (clubs)

134
Q

Direct Discrimination:

A

Protected characteristic leads to someone being treated less favourably. Employer can be mistaken about protected characteristic or it can be association with someone who has the protected characteristic

135
Q

Indirect Discrimination

A

: A policy that’s formally neutral but puts a group at a disadvantage

136
Q

harrassment

A

Unwanted conduct related to protected characteristic and it violates dignity or creates an hostile environment.

137
Q

Victimisation

A

: Subjection to detriment because individual does a protected act or believes they have done a protected act

138
Q

Protected Act

A

Complaints of discrimination. Evidence to help someone making a compliant. Anything in connection to act. Allegations against person subjecting you to detriment (unless the allegation is deliberately false)

139
Q

Disability

A

: Physical or mental impairment that has substantial or long-term negative effect on their ability to do normal daily activities. Or it is Cancer or HIV.

140
Q

Disability Protection

A

Protection from usual stuff and protected from discrimination arising from disability. There is a duty to make reasonable adjustments to avoid disadvantage. Cannot make disabled person pay for adjustments

141
Q

Data Protection

A

Safeguard information from unauthorised access, disclose, alteration or destruction.

142
Q

Personal Data

A

Any information relating to an identifiable natural person (excludes anonymised and company data)

143
Q

Sensitive Personal Data

A

Related to race, ethnicity, political opinions, religious beliefs, trade union membership status, sexual orientation, etc.

144
Q

Rights under Data Protection Act

A

Consent, Knowledge, Objection, Withdrawal/Correction

145
Q

UNCTAD Core Principles

A

Openness. Collection Limitation. Purpose Specification. Use Limitation. Security. Data Quality. Access & Correction. Accountability

146
Q

GDPR

A

Harmonises data protection throughout EU

147
Q

UK GDPR

A

Complementary to Data Protection Act

148
Q

Data Protection Act Principles

A

Lawfullness,
Fairness & Transparency.
Purpose Limitation.
Data minimisation.
Accuracy.
Storage Limitation.
Integrity & Confidentiality

149
Q

Data Protection by Design

A

Organisations must incorporate privacy measures from the start, must implement technical and organisational measures.

150
Q

Data Protection by Default

A

Data controllers must establish technical and organisational measures to ensure only the necessary data is processed.

151
Q

Non-compliance with Data Protection Act

A

Fined

152
Q

Property Right

A

Legal entitlement to a specific item giving authority to possess, use, and dispose of the item

153
Q

Intellectual Property

A

Creations of the mind such as inventions, artistic works, designs, symbols

154
Q

Copyright:

A

Protects works of authorship including books, films, music, art, computer programs. Item must be in a tangible medium

155
Q

Copyright Duration

A

70 years after creators death or 60 years from end of year if created by artificial intelligence

156
Q

Copyright Infringement consequences & defences

A

Consequences are injunction. Defences are for use in education, archives etc. or Fair dealing (satire, study, review, quotation)

157
Q

Trademark

A

Protects any sign capable of graphical representation for distinguishing goods or services. Can be bought/sold

158
Q

Purpose of Trademarks

A

Indicate origin, quality, advertise, investment

159
Q

Unregistered Trademark

A

: Limits actions that can be taken for infringement and provides less protection

160
Q

Registered Trademark duration

A

Lasts 10 years, can be renewed.

161
Q

Trademark exclusions

A

: Excludes signs that are in bad faith, contrary to morality or indicated to be endorsed by royalty

162
Q

Trademark infringement remedies

A

Damages, Injunction, account for profits, criminal offences

163
Q

Design Rights:

A

Cover the look of a product

164
Q

Unregistered Design Rights

A

Apply to 3D objects that are original and not commonplace in the industry. Must be of permanent form (stable and tangible).

165
Q

Unregistered Design Right Duration

A

15 years. 10 years from marketing if available for sale or hire within 5 years of design.

166
Q

Registered Design Rights:

A

Lasts 5 years, renewable up to 25 years. Covers appearance of the whole or part of a product resulting from features i.e. lines, contours, colours, shape, texture, materials

167
Q

Design Right Infringement Remedies

A

: Damages, Injunction, Account for profits, criminal offences

168
Q

Patents

A

Strongest form of protection for inventions that are new, inventive and capable of industrial application

169
Q

Patent Exclusions:

A

Non-inventions: Discoveries, theories, mathematical methods, artistic works, programs for computers, presentation of information. Methods of medical treatment or diagnoses, biological matters, inventions contrary to morality

170
Q

Patent Infringement Remedies

A

Damages, Injunction, Account for Profits. Order to Hand over Products. Defended through non-commercial use or for research use.

171
Q

Tort

A

Civil wrong causes harm or loss to an individual or their property

172
Q

Tortfeasor

A

Alleged wrongdoer who is said to have committed the tort

173
Q

Defendant

A

Party on receiving end of the tort (may not have committed the tort themselves i.e. vicarious liability)

174
Q

Intentional Tort

A

Deliberate act. Harm does not need to be intended. E.g. trespass, fraud, assault, etc.

175
Q

Negligence

A

Wrongs from failure to provide the degree of care a reasonable person is expected to provide

176
Q

Strict Liability

A

Entity is liable for a wrong without the injured party having to provide the entity did anything wrong. Harm occurring is enough to establish responsibility

177
Q

Determining Duty of Care

A

Incrementalism (Case law). Assumption of responsibility. Caparo tes

178
Q

Assumption of Responsibility

A

Defendant undertaken responsibility for a claimant and failed to deliver

179
Q

Caparo Test

A

Novel duty of care.
Considers Foreseeability (reasonable person forsee damage),

Proximity of relationship (neighbour principle, someone directly affected by an action to the extent they should be considered when deciding to perform the action).

Fair imposition (Courts consider implications of establishing liability to prevent surge of negligence claims)

180
Q

Breach of Duty of Care

A

defendant has fallen below standard of reasonable care. No consideration for lack of experience. Standard of care is relative to profession

181
Q

Factual Causation of Tortious Damage

A

Causal link must be shown using ‘but for’ test.

182
Q

Multiple causes of tortious damage

A

Claimant need only show the breach of duty of care either materially contributed to the damage or materially increased risk of damage

183
Q

Loss of Chance to Recover or Avoid Injury

A

Defendents negligence lowered chance of desirable outcome. Only works if initial chance of avoiding injury was over 50%.

184
Q

Legal Causation of Tortious Damage

A

Defendant was legally reasonable for damage suffered. Considers intervening acts and remoteness

185
Q

Intervening Acts

A

Breaks chain of causation between defendants breach of duty and damage suffered. Unreasonable actions by claimant can break chain of causation. Defendant only liable up to intervening act

186
Q

Remoteness

A

Defendant only liable for damages suffered which could be reasonably foreseen at time of negligent behaviour. Does not consider severity of injury, only type

187
Q

Defences against Negligence

A

Illegality (claimaints act was unlawful), Consent (claimant has consented, express or implicit, to particular risk or damage). Contributory Negligence (defendant has contributed to damage), Necessity (defendant acted in a way to prevent imminent danger to a person or property.

188
Q

Negligence Remedies

A

Damages (personal injury (lost earnings, medical expenses), death (funeral expenses), property (restoration, compensation,). Injunctions

189
Q

Prohibitory Injunction

A

Defendet must cease action causing tort

190
Q

Mandatory Injunction

A

Defendant must act to prevent tort being committed

191
Q

Interim Injunction

A

Prevent further damage until case comes to court

192
Q

Tort Time Limits

A

Bought within six years. Personal injury within 3 year of injury. Does not apply to minors until 18. Does not apply to claimaints suffering a mental disorder
 

193
Q

Vicarious Liability

A

Employers are liable for torts committed by employees during the course of employment

194
Q

Arguments for Vicarious Liability

A

Deep pockets. Deterrence. Consent. Enterprise Risk

195
Q

Requirements for Vicarious Liability

A

Employment like Relationship between tortfeasor and defendant (composite test) and tort committed during course of employment

196
Q

Liability of Independent Contractors:

A

Employers are only liable where tort was authorised (explicitly or implicitly) by employer and responsibility cannot be delegated (related to health and safety or imposed on employer by statute or involving hazardous act

197
Q

Product Liability

A

Injury or damage caused by a defect in a product making it easier for consumers to claim compensation.

198
Q

Requirements for Product Liability Claim

A

Defect. Suffered Damage. Causation. Defendant is producer, marketer (name on product implying they produced it), importer or supplier (only when all others cannot be identified)

199
Q

Product Liability Defences:

A

Compliance with law. Non-supply of Product (supplied outside of business e.g hobby). Non-existence of defect at time of supply. Technical and scientific development

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