Essay Plans Flashcards
Negligence =
Definition =
- A breach of duty of care which results in a damage
Key Elements =
There was a duty of care owed to the claimant (Caparo Test)
- Reasonably Foreseeable
- Proximity of Relationship
- Fair, just and reasonable
The Duty of Care has been breached
- Objective standard of reasonable people
- Bolam Test for professionals
- Risk factors which raises or lowers standard of care
The breach of duty has caused the damage
- Use causation and remoteness
- But For Test, Intervening Act, Foreseeable injury, Egg Shell Rule, Remoteness and Res Ipsa Loquitur
Defences
1. Contributory Negligence
2. Volenti non fit injuria = Subjective Test
Economic Loss =
- Pure economic loss is the failure of gaining future profit which is not recoverable due to contract law and flood gates
Exception =
- The exception to this if it stems from a negligent statement
Negligent Statement =
- A defendant has negligently made a claim which is relied on leading to pure economic loss
Requirements:
- Special skill
- Reliance
- Directly communicated
- No disclaimer
- Aware of reliance
Psychiatric Injury =
Theory = Victim must show if they are primary or secondary victim alongside the other elements of negligence
Key Terms =
Psychiatric Injury - Severe long term mental injury which is more than shock or grief
Primary Victim - Someone who is directly injured in the event
Secondary Victim - Someone who is harmed when they witness an event (Must pass elements)
Elements of primary victim =
1. Involved in accident
2. Suffer physical or psychiatric injury
3. Defendant was negligent
4. Can claim for both physical and pyschiatric injury
Elements of secondary victim =
1. Accident or sudden event due to defendant’s negligence which caused the injury
2. Some form of mental injury
3. Alcock Criteria
4. Person of reasonable fortitude would suffer the same
Alcock Criteria =
1. Close ties in love and affection
2. Suffer mental injuries at the scene or immediate aftermath
3. Suffer shock through unaided senses
Other Claimants =
1. Rescuers that are put at physical risk
2. Bystanders (Must meet Alcock Criteria)
3. Property Owners
4. Near misses (Primary victims)
5. Gradual shock (Must be sudden unless a continuation of horryfing events)
Occupiers Liability =
1957 =
Definition = The occupier of the premises owes a duty of care to keep lawful visitors safe whilst on their premises
Key Elements =
1. Occupier
2. Premises
3. Lawful Visitor
4. Duty of Care
- Consider duty of care to lawful visitors, children, those exercising a calling and independent contractors
Defences =
1. Warnings
2. Exclusion Clauses
3. Contributory Negligence
4. Consent
Remedies =
- Claim damages for any personal injury or property damage
1984 =
Definition = An occupier owes a common duty of care to lawful visitors. A trespasser is not a lawful visitor so they must owe a duty of common humanity on to occupiers towards trespassers
Key Elements =
1. Occupier
2. Premises
3. Trespasser
4. Duty of Care to Trespasser
- Must arise from the state of premises or if they have reasonable grounds to believe there is a danger, may encounter the danger and should be reasonanbly expected to offer some protection
- This only covers personal injury
- Consider restrictions of liability
Defences =
1. Warnings
2. Volenti non fit injuria
3. Contributory Negligence
Remedies =
- Can claim damages for death and personal injury but not loss to property
Vicarious Liability =
Definition = Where a third party has legal responsibility for the unlawful actions of another
Employers Responsibility =
1. Hiring, firing and disciplining
2. Properly trained and procedures are followed
3. Supervising Employees
Test for Vicarious Liability =
- Was the person alleged to have committed the tort an employee? (Use test for employment)
- Did the employee commit the tort during the course of the employment? (Use elements of course of employment)
Test for Employment =
1. Old Test = A contract of service is an employee and a contract for services is an independent contractor
2. Control Test = Defines an employee through power to select, control method of working, payment of wages and right to suspend and dismiss
3. Integration/Organisation Test = If they are fully integrated
4. Economic Reality/Multiple Test = Distinguishes between an employee and independent contractor. Provide work for wage, subject to the control of the employer, other considerations constistent with their being a contract of employment
5. Updated test of Economic Reality = Ownership of tools, method of payment, payment of tax, job description and independence of doing the job
6. Recent developments of non-traditional employment =
- Control by the employer
- Control by the contractor of himself
- Organisation/Integration Test
- Entrepreneur test of whether they were on a business in his own account
- Test set out in E v English Province of Our Lady of Charity = Relationship akin to employment, a relationship sufficiently close, fair to impose liability
- Test set out in Catholic Child Welfare Society = Was the relationship capable of giving rise to vicarious liability and whether the sexual abuse was connected to that relationship
Test for during course of employment =
1. Acting against orders = If they are doing their job but acts against the way they do it, the employer can be liable
2. Committing a criminal act = During their work it must be a close connection between the crime and what the employee was meant to do
3. Committing a negligent act = Can be liable if they do their job poorly which harms another so must properly train them
4. Acting on a frolic of their own = If it causes injury while doing something outside of the area of the work, they will not be liable
Damages =
- If the employer is vicariously liable, they may be ordered to pay compensation
- If the employee is liable, they may be ordered to pay compensation which will be deducted from wages
Nuisance =
Private Nuisance
Definition = A tort claim where someones enjoyment of their property is affected by the unreasonable behaviour of a neighbour
Key Elements =
1. Parties to an action and have an interest in the land
2. Must be unlawful/unreasonable
3. Either loss of amenity or material damage
4. Factors of reasonableness
Defences =
1. Prescription
2. Moving to the nuisance = This is not a proper defence
3. Statutory Authority
Remedies =
1. Injuction
2. Damages
3. Abatement
Rylands v Fletcher Nuisance =
Definition = Damage caused by the occupier who has brought something non-natural onto the land and is a non-natural use of the land which is likely to do mischief if it escapes which it does and then causes foreseeable damage
Key Elements =
1. Parties to an action
2. Bringing something onto the land
3. Amounts to a non-natural use of the land
4. Which is likely to cause mischief if it escapes
5. Which it does and causes reasonably foreseeable damage to the adjoining property
Damage caused by fire =
1. Must be the thing that escapes and not the fire
2. A fire could be negligently started rather than brought onto the land
3. It may be an ordinary use of the land
Defences = It is strict liability but there are some defences
1. Volenti non fit injuria
2. Act of stranger
3. Act of God
4. Statutory Authority
5. Contributory Negligence
Remedies =
- Cost of repair for damage to property
