England

Question 1

Tort of battery

Answer 1

1. Unlawful touching of another
2. Defences:
   - Consent
   - Necessity
   - Self-defence

Remarks:

• Even if non-violent touching
• The touching must be intentional, not the damage
• There is a margin of appreciation for busy places

Question 2

Tort of assault

Answer 2

1. Causes apprehension of imminent battery
2. Does not require actual touching, just the threat of it
3. Defences:
   - Necessity
   - Self-defence

Question 3

Tort of defamation

Answer 3

1. Permanent = Libel

Temporary = Slander

Question 4

Tort of Trespass

Answer 4

1. Physical interference with land

2. Intention is not required

Question 5

Tort of Negligence - Acts

Answer 5

1. Check if there is a precedent:
   - Precedent - Follow it
   - No precedent - Go to 2.
2. Duty of care:
   - Proximity
   - Foreseeability
3. Breach of that duty - Compare with reasonable person
4. Causation
5. Damages:
   - For physical damage and damage to property
   - Otherwise check for precedent or use caparo test (fair, just and reasonable)

Remarks - Pure omissions are not liable

Question 6

Vicarious Liability

Answer 6

1. Establish the employee’s liability:
   - Use tort of negligence or another specific tort
2. Establish employer’s liability:
   - Establish employer-employee relationship - Employer is liable for an act for which he had a close connection and for an actual employee (not private contractor unless expressly allowed)
   - Labour contract is not required, but the level of independence matters
   - In course of employment = Act authorised by the employer
   - The employer is strictly and absolutely liable  There is no defence!

Question 7

Negligence test

Answer 7

Objective test – Always compare to reasonable person

1. Probability of harm
2. Extent of loss
3. Burden of precautionary measures
4. Benefit to society
5. Knowledge/skill

Subjective test – Only applied for children:

1. If -12 YO - Compare to a child of same age
2. If over 12 YO - Compare to reasonable adult
3. If the person has lost control (completely)

Question 8

Mental Harm

Answer 8

1. For primary victims - Mental harm must be recognised as a medical illness
2. For secondary victims - Recognised as a medical illness resulting from the act/omission if:
   - Directly witnessed the accident or the aftermath of it
   - And has a close tie of love and affection with the victim

Question 9

Damages for next of kin

Answer 9

1. Closed list:
   - Spouse
   - Registered partner
   - Parents of a minor
   - Child cannot claim damages (only for pecuniary loss)
   - Fixed amount  12.980£
2. But:
   - Not in line with ECHR
   - The list was extended to include the partner (even unregistered)

Question 10

Public Body Liability

Answer 10

1. Check justiciability:
   - Policy - Not justiciable
   - Operational - Justiciable
2. Duty of care:
   - Policy decision - Reluctant to impose liability
   - Operational decision - Liability is possible
3. Breach of that duty - Public body’s conduct was so unreasonable that no reasonable public body would do this
4. Causation
5. Damage

• Court? Civil courts

Question 11

Road Traffic Liability

Answer 11

Use tort of negligence

1. Duty of care
2. Breach of that duty - Use comparison with perfect driver (Nettleship v. Weston)
3. Causation
4. Damage
5. Defences - You can use contributory negligence, even for kids (compare with kid of same age)

Also check breach of statutory duty but the courts are not so keen on using those to establish liability

Question 12

Prenatal issues

Answer 12

1. Wrongful birth:
   - Costs of maintaining the child = pure economic loss = does not fulfil the caparo test = no damages
   - Loss of income recognised
   - Non-pecuniary loss is recognised for the mother
2. Actively caused prenatal harm:
   - Both the mother and the child are protected
3. Non-prevented prenatal harm:
   - Mother’s claim is allowed
   - Child’s claim is dismissed

Question 13

Donoghue v. Stevenson

Answer 13

Atkin Neighbour principle - A duty of care exists if the damage was foreseeable and there is sufficient proximity between the wrongdoer and the victim

This principle was made binding by Home Office v. Dorst Yacht Co. Ltd.

Question 14

Bolton v. Stone

Answer 14

When assessing negligence you should not only assess the probability that an act might happen but also the probability that this act will result in damage

Question 15

Wells v. Cooper

Answer 15

Occupier’s liability - When the occupier of a premise carries out small works of repair, he must apply the same standard of care as a professional would

Question 16

Mansfield v. Weetabix

Answer 16

If the driver still has some control over the vehicle, he is still liable.

Question 17

Lister v. Hesley Hall

Answer 17

Sexual abuse case - Vicarious liability can be established if there is a close connection between the act which resulted in damage and the employment duties

Question 18

Campbell

Answer 18

National law must be interpreted in light of ECHR law

Question 19

Nettleship v. Weston

Answer 19

Traffic Liability - Apply perfect driver standard of care

Question 20

Tort of Negligence - Omissions

Answer 20

1. Duty of care:
   - Creation of risk or
   - Assumption of responsibility or
   - Status of tortfeaser or
   - Control of tortfeaser
   - + Foreseeability, proximity and fair/just/reasonable
2. Breach of that duty – Compare with reasonable person
3. Causation
4. Damage