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Tort Law > General > Flashcards

General Flashcards

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1
Q

Define the tort of trespass to land

A

Intentional direct interference with land owned by another.

**The claimant must have exclusive possession of the land

**Need only intend to interfere with the land, need not intend to trespass.

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2
Q

What defences are available for trespass to land?

A
  1. Necessity - to preserve life
  2. Lawful entry
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3
Q

Define the torts of trespass to the person

A
  1. Battery - intentional infliction of unlawful force
  2. Assault - intentionally causing imminent apprehension of unlawful force
  3. False imprisonment - intentional and unlawful constraint restricting freedom of movement
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4
Q

What defences are available for trespass to the person?

A
  1. Consent
  2. Necessity
  3. Self defence (must be reasonable)
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5
Q

What is the difference between trespass to goods and the tort of conversion?

A

Trespass - intential interference with property belonging to another

Conversion - intentional interference with property belonging to another, which are seriously inconsistent with the rights of the owner

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6
Q

What is the test for a novel duty of care?

A
  1. Whether the loss to the Claimant was foreseeable,
  2. Whether the relationship between the Claimant and D was sufficiently proximate, and
  3. Whether it is fair just and reasonable to impose a duty.
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7
Q

In what circumstances will an omission amount to breach of duty of care?

A
  1. Assumption of responsibility - usually special relationship (parent/child)
  2. Rescue - no duty to help BUT duty not to make things worse
  3. Control - if claimant is under the control of the D (eg police officer)
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8
Q

What is the standard of care for negligence? What will the courts consider to assess the extent of the breach?

A

Objective test - Reasonable standard of care

Courts will consider

  1. Magnitude of the risk (likelihood + seriousness of harm)
  2. Practicability of precautions
  3. Social utility (eg is D acting in a rescue situation, fewer precautions may be acceptable)
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9
Q

When is the relevant skill of particular defendents relevant to the standard of care?

A

Under skilled - not a defence (eg novice driver)

Professional - standard is what is reasonable for the profession

Children - all ages liable but reasonableness assessed by their age.

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10
Q

What is res ipsa loquitor and when does it apply?

A

When cannot determine whether D breached duty of care - court will infer that duty was breached IF

  1. No reasonable explanation for the loss
  2. Loss happened within D’s control, and
  3. Had proper care been exercised, there would be nromally be no loss.
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11
Q

When is the material contribution test applicable to establish causation?

A

When two or more factors could explain the loss. Claimant must establish that D’s negligence materially contributed to C’s loss.

eg. dust causes asthma. Could be innocent dust at work place or dust from malfunctioning machinery - negligent dust. C must establish neg dust made material contribution

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12
Q

What is the effect of divisible and indivisible loss?

A

Divisible - must establish causation re each D, and bring claim against each D

Indivisible - can establish causation against any D, and bring claim against any D. D’s can recover from other Ds.

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13
Q

When can event break the chain of causation?

A

ONLY when an intervening act by a third party was not reasonably foreseeable

Claimant’s actions only when they were entirely unreasonable

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14
Q

When is loss NOT too remote?

A

Loss must be reasonably foreseeable

HOWEVER,

Note - egg skull rule - must take C as you find them

AND

Similar in type rule - C suffers type of harm that is foreseeable but in a manner unforseaable - not too remote.

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15
Q

When does voluntary assumption of risk apply?

A

Can be a FULL DEFENCE

  1. C had full knowledge of the risk, AND
  2. C freely and voluntarily assumed the risk
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16
Q

Define pure economic loss

A
  • Loss to property NOT owned by C;
  • Loss to defective product itself; and
  • Financial loss that does NOT flow from damage to C’d person or property
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17
Q

When is pure economic loss recoverable?

(what are the 4 conditions?)

A

When there is a special relationship -

  1. Advice is required for a purpose
  2. D knows that the advice will be communicated to C for that purpose AND that C will likely rely on the advice
  3. C relies on the advice
  4. It is reasonable for C to rely on the advice
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18
Q

In what circumstances will duty be owed to secondary victim?

A
  1. When there is a special relationship of love and affection between C and primary victim,
  2. Reasonably foreseeable that person like C would suffer psychatric injury,
  3. C present or in the immediate aftermath of the event
  4. C witnessed the event with unaided senses
  5. C suffers sudden shock
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19
Q

What are the 4 elements of an employer’s duty of care?

A
  1. Safe plant and equipment
  2. Safe place of work
  3. Competent coworkers
  4. Safe system of work (includes foreseeable psychiatric harm due to stress)
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20
Q

In what circs is the employer liable for latent defects?

A

Strict liabilty - even if employer took reasonable steps and defect is caused by third party.

Employer will be liable IF

  1. There is a defect, and
  2. Attributable to some third party

C will need to establish the above.

HOWEVER - IF NOT attrbutable to a third party - unexplained - then employer also won’t be liable.

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21
Q

What three elements need to be established for vicarious liabilty?

A
  1. Was a tort committed?
  2. Was it committed by the employee?
  3. During the course of employment?
22
Q

What is the economic reality test?

A

To determine whether an employer is vicariously liable, the courts use modern economic reality test.

Courts consider

  • Control exercised by er
  • Whether using own equipment or er’s equipment
  • Chance of profit and risk of loss
23
Q

What does the court consider to determine whether ee’s acts occurred in the course of employment?

A

Was the tort so closely connected to the employment that it would be fair just and reasonable for employer to be liable?

Could include criminal activity by employee. BUT usually expressly prohibited activities will not be in the course of employment but depends on whether prohibited in scope or manner.

24
Q

In what circs will employer be personally liable for breach of another?

A
  1. When in breach of nondelegable duty OR
  2. when in breach of duty to take reasonable care in selecting independent contractor
25
Q

What is the difference between special and general damages? Provide examples for each?

A

Special damages - exact, e.g. loss of wages during hospitalisation.

General damages - to be assessed by court, eg loss of future wages, loss of amenity, pain (only when conscious!!)

26
Q

In what circumstances are damages available after death?

A
  1. for any existing cause of action - damages (UP TO DEATH) for the estate of the deceased
  2. new cause of action - damages for loss of dependancy (must actually be dependant AND deceased must have had a cause of action if not dead) and for bereavement (statutory)
27
Q

Who is a visitor under the 1957 act?

A

Anyone who has permission to be at the premises - if exceeds permission, becomes a trespasser.

28
Q

What is the duty of care to visitors under the 1957 Act?

A

Duty to take reasonable steps to ensure that visitor is reasonably safe for the purposes for they have permission to be at the premises.

29
Q

Who is the occupier under the 1957 Act?

A

Person with control of the premises - usually not landlord. BUT if particular area NOT included in the lease, landlord may have retained control.

30
Q

When is occupier NOT liable to visitors?
(3 circs)

A
  1. Warning - ONLY if in all circs warning was enough.
  2. IF work done by independent contractor AND occupier took reasonable steps in hiring contractor AND occupier took reasnbl steps to ensure contractor was competent and work properly done.
  3. When V voluntarily assumed responsibility
31
Q

How can occupier exclude liabilty for visitors?

A

Subject to statutory limitations - Not for personal injury and death and subject to reasonableness test for anything else.

AND by notice

Visitor should be made aware of the exclusion, or take reasonable steps to bring it to their attention.

32
Q

When is duty owed to trespasser under the 1984 Act?

A
  1. O is aware of the danger
  2. O is aware that T may come within vicinity of the danger
  3. Danger is of a kind where reasonable to expect O to offer protection
33
Q

How can occupier discharge duty to trespassers?

A

By warning - less restricted than for visitors!

34
Q

What kind of damage is recoverable for trespassers v visitors?

A

For visitors - all loss flowing from the breach

For trespassers - only personal injury - NOT damage to property

35
Q

What are the benefits to bring a breach of contract claim for defective products?

A
  • Strict liability - does not depend on whether supplier of goods was at fault
  • Can recover loss of the defective product itself (cf pure economic loss in tort)
36
Q

When does a manufacturer owe a duty of care to a consumer?

A
  • When M puts product into circulation, intended to reach end consumer AND
  • No reasonable expectation of intermediate examination
37
Q

What duty does the Consumer Protection Act impose?

A

Strict liability for producers/manufacturers and even suppliers if product is defective. NO NEED TO PROVE THAT DEFECT AROSE BC OF FAULT BY D

38
Q

When is a supplier liable under CPA?

A
  1. When C requested producer
  2. C’s request was within reasonable time
  3. C cannot reasonably practicably identiy producer, AND
  4. S failed to provide producer details
39
Q

What damages are covered under the CPA?
What is the minimum recoverable?

A
  • NOT damage to defective product itself
  • NOT damage to business property
  • ONLY damage exceeding £275
40
Q

What defences are available to D under CPA?

A
  1. Defect not there when P circulated the product
  2. State of the art - not possible to identify the defect
  3. D was not acting in course of business - not acting with a view to profit.
41
Q

Define public nuisance. Who can bring a claim?

A

Unreasonable interference with comfort and convenience of life of a class of the public.

Individual who suffers particular damage can bring the claim OR the attorney general.

42
Q

What amounts to damage under private nuisance?

A
  • Physical damage
  • Amenity damage - noise, smell etc
  • Encroachment damage - roots, overhaning branches
43
Q

Who can be sued for private nuisance?

A

EITHER the creator of the nuisance

OR

Occupier of the land from which the nuisance arises - even if natural event as they (ought to) know and fail to take reasonable steps

44
Q

What amounts to ‘unreasonable’ interference for purposes of private nuisance?

A

Physical damage is ALWAYS unreasonable

BUT amenity damage depends on the character of the neighbouhood AND is C is abnormally sensitive

IF with malice - more likely to be unreasonable.

45
Q

What is the rule of Rylands v Fletcher?

A
  1. D brings onto the land something which IF escapes, is likely to cause harm;
  2. The D engages in non-natural use of the land; AND
  3. The thing DOES escape and causes damage
46
Q

When is D not liable under Rylands v Fletcher?
1 - When not made out?
2 - Defences (3)

A
  1. When damage is too remote - the kind of damage must be forseeable
  2. IF DEFENCE applies:
    1. Unforeseeable act by stranger
    2. Act of God - unforeseeable, natural circs, impossible to take precautions against
    3. Consent + contributory neg.
47
Q

When will occupier be liable for private nuisance created by an independent contractor?

A

When the activities of the contractor carry a special danger of causing a nuisance

48
Q

What is the defence of illegality?

A

The defence of illegality is a rule of public policy which prevents a claimant from recovering compensation for damage suffered as a result of their own illegal actions.

So, the claimant cannot recover damages for harm suffered whilst he is taking part in criminal activity.The defence of illegality is a complete defence, defeating the claim entirely.

49
Q

Can a bone fide purchaser be liable for conversion?

A

YES -

The purchaser has committed the tort of conversion by dealing with the car in a way which is seriously inconsistent with the rights of the owner. Conversion requires intent, but this refers to an intention to deal with the goods, not to an intention to commit conversion. So, a mistake as to ownership is no defence.

50
Q

What is the similar in type rule?

A

C suffers type of harm that is foreseeable but in a manner unforseaable -

The loss if NOT too REMOTE.

Tort Law (9 decks)

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