Final Exam - Tort / Risk Management Flashcards
Define Tort
a Civil wrong
4 Types of Tort
- Negligence
- Nuisance
- Trespass
- Defamation
What is the most common type of Tort?
- Negligence
Define - Negligence
an absence of care
What 3 step process / elements results in negligence?
o A duty of care is owed
o There is a breach of the duty (standard of care)
o Loss or damage is suffered as a result of the breach
If something happens to a civilian by an employee, you sue the _______
Employer (who is responsible for the actions of their employees)
Define vicarious liability
One person is held liable for the acts or omissions of another person
2 types of risk (unavoidable and avoidable)
Inherent risks (unavoidable) Obvious risks (avoidable)
Do you need to provide a warning for obvious risks?
No
- Presumption of awareness of ‘obvious risk’ (s5G) so, in general, no need to provide a warning (s5H)
Is there a liability for a dangerous recreational activity with obvious risks involved?
No liability whether aware or not (Civil Liability Act)
Is a duty of care owed for a recreational activity?
No duty of care for recreational activity if risk warning provided
Heads of Damage: What 3 monetary examples of compensation are there?
o Monetary loss suffered up to verdict
o Loss of earning capacity for future
o Other monetary loss resulting from needs created by the tort (future medical expenses)
Heads of Damage: What 3 non-economic examples of compensation are there?
o Pain and suffering past and future
o Loss of enjoyment of life past and future
o Loss of expectation of life
Define Occupier’s Liability
Occupier owes a duty to persons entering the premises to ensure they are not dangerous
3 elements that help define an occupier (for Occupier’s Liability)
o Depends on control over the premises not ownership
o Level of duty is commensurate with level of control
o There can be more than one occupier
- In determining liability, the court will consider whether (2 points)
o The defendant has a risk assessment system in place to identify and respond reasonably to “hazards” in its area of control or
o Whether it took reasonable steps to ascertain the existence of dangers which might reasonably be suspected to exist.
Define Negligent misstatement
A duty to avoid making careless statements that could harm a person
What 4 elements may create negligent misstatement?
- Misrepresentation is made
- Loss reasonably foreseeable as a consequence of the misstatement
- Reasonable to rely on the information
- Assumption of responsibility by provider of information
Tort Law: What 2 elements create Nuisance
- Interference with the reasonable use and enjoyment of land
- Interference must be sustained and unreasonable and actual damage incurred
4 steps of risk management
- Risk Identification
- Risk Evaluation/Analysis
- Risk Treatment (includes minimisation)
- Risk Maintenance
Exclusion clauses can exclude liability for personal injury. Must provide 2 things:
- Notice
2. Precise – cover the situation