Law Flashcards
Tort
A civil wrong which causes harm to another
5 Types of Tort
Negligence Nuisance Defamation Trespass Rule in Rylands v Fletcher
Tortfeasor
A person who commits the tort
Civil Standard of Proof
Balance of probabilities
Mandatory Injunction
Undo or remedy any damages
Prohibitory Injunction
Discontinue a wrongful act
Ratio Decidendi
Rule of law which future decisions are based
Obiter Dicta
A judge’s opinion not essential to the decision therefore not legally binding as a precedent.
Precedent
Similar cases should be decided in a similar way
Stare Decisis
The doctrine of binding precedent
Per Incurium
Careless decision
Damages
Compensatory Damages
Aggravated Damages
Punitive Damages
Interlocutory Injunction
Temporary injunction - Prevents defendant from doing something or to remedy any damage prior to a full hearing - Normally for Pollutors
Tort of Negligence claimant must show
Duty of Care
Breach of Duty
Suffering of Damage
Duty of Care
Caparo Test
Proximity needs to be established
Foreseeable Damage
Fair, just and reasonable to impose a duty
Breach of Duty
Show that behaviour has fallen below expectations
Suffering of Damage
Consequence has led to damage
Donoghue vs Stevenson
1932 AC 562 Lord Atkin
Concept of duty of care was established
Introduces concept of proximity (Neighbour principle)
Caparo v Dickman
1990
Created the 3 part test
Negligence development from Donoghue
Ward v Tesco Stores Ltd
1976
Res Ipsa Loquitur - Thing speaks for itself
Establish a prima facie case of negligence
Defendant needs to prove they were not negligent
Barnett v Chelsea & Kensington Hospital
1969
But For defendant actions they wouldnt suffered loss
Hospital not liable, would act have occurred
Causation
Claimant needs to show had the breach not occurred there would be no damage
Breach-Damage connection (but for)
Bradford v Robinson Rentals Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd
[1967] Application / [1961] Based
Remoteness
Frostbite not unforeseeable of extremely cold weather
Limitation period for Negligence
6 Years
Volenti non fit injuria and Defence
No injury can be done to a willing person
There has been agreement to assume the risk
Full knowledge to the nature and extent of the risk
A voluntary decision by the claimant to assume the risk
Negligence Definition
Failure on the part of the defendant to take care as the law requires to ensure that no harm comes to the plaintiff
Professional Negligence
Bolam v Friern Hospital Management Committee
Standard of care expected someone carries out a job
Judge McNair in 1957
Bolam Test
Expert Evidence
Fellow members of the defendants profession
No Experience
Nettleship v Weston
1971
Standard of care of learner driver same as experienced
Vicarious Liability
Imposing strict liability of employers on the actions of their employees
Storey vs Aston
1869
Caused accident due to negligence
Frolic of his own established - no liability
Salmond Test
A tort is committed in employment if :
Wrongful act authorised by the master
Wrongful and unauthorised act authorised by the master.
Occupier
A person who has sufficient control of the premises/ land.
Occupiers Liability
A specialised branch of negligence, and allows a claimant to sue an occupier of land or premises for damage or personal injury which occurs on the premises.
Health and Safety at Work Act 1974
Section 4
Those in charge have to take reasonable care of visitors
Commissioner for Railways v McDermott
1967
Occupier to have control over safety
There is proximity between occupier, duty of care arises
Occupiers Liability Act
1957
Created common duty of care, liability similar to negligent
Common law exists, alongside statutory common DOC
Premises Defintion
A fixed or movable structure including any vessel, vehicle or aircraft
Fisher v CHT Ltd
1966
Joint Liability, <1 Occupier, depends who failed their duty
Contractor joint w/ club, plasterer electric shock
Each defendant owed duty of care
To be Occupier Liable
Degree of control over premises
Control allows assessment of state and safety
Appreciation of failing to take care may result in injury
Control need not be exclusive or apply to whole premises
Unfair Contract Terms Act
1977
Occupier cannot exclude or limit liability
Restriction must satisfy requirement of reasonableness
Trespassers
Not visitors under 1957 Oc Li Act
1984 Occupier liable if known danger on land
Children careful of features of allurement
Actionable without damage
Trespass Liability
How serious was the danger
How specific was the warning
How the warning was given
If warning was heeded then he would be reasonably safe
3 types of Nuisance and Remedies
Public, Private, Statutory
Injunction, Damages Abatement
Public Nuisance
A-G v PYA Quarries 1957
Nuisance that will impact on more than just an individual
Individual claimants need to show they’ve suffered more
(Harper v Haden & Son 1933)
Private Nuisance
Reed v Lyons & Co Ltd 1945
Interference of another use of enjoyment or right over land or damage
Noise (transient?), smell, dust, encroachment
Noise Nuisance
Control of Pollution Act 1974
Halsey v Esso Petrol 1961 - noise measured in decibels
Granting Injunction Test
American Cyanamid v Ethicon Ltd 1975 Is there a serious issue Would damages be appropriate Balance of convenience lay Other special factors
Nuisance Locality
Roskell v Whitmorth 1871
Character of neighbourhood
Statutory Nuisance
Defined by statute in 79-82 EPAct 1990
Not stopped/abated = criminal offence
Rylands vs Fletcher
1868
Things that have been brought onto land and escaped
Reservoir water escaping, flooding mining tunnels
Contractor failed to block shafts / duty to prevent escape
Ruling of Rylands vs Fletcher
Rule imposes strict liability - if escaped then liable
They had a duty to prevent escape
Refined Rylands vs Fletcher
Cambridge Water vs Eastern Counties Leather plc 1994
The damage must be foreseeable
