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MO5 Insurance Law - 2022 - Chapter 1 and 2 > Law of Tort > Flashcards

Law of Tort Flashcards

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1
Q

What does the word tort mean?

A

Tort = wrong

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2
Q

What does tort mean (not the word)?

A

The breach of a duty, which the law has imposed on everyone, known as a tort.

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3
Q

Where does tortious liability arise from?

A

The breach of a duty primarily fixed by the law.

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4
Q

Is a tort civil or criminal?

A

Civil

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5
Q

Is a tort accidental or intentional?

A

Usually accidental
Exception is trespass which is intentional

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6
Q

Who claims for a tort?

A

Claimant

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7
Q

What is the reward for a successful suing under tort?

A

Damages = compensation or reparation
or an injunction

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8
Q

What is reparation?

A

Repairing or making right

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9
Q

What court is a tort tried under?

A

Civil court

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10
Q

Is a crime accidental or intentional?

A

Usually intentional

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11
Q

What claims for a crime?

A

Usually the Crown/Police

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12
Q

What is the sanction for a criminal action?

A

A punishment such as jail time

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13
Q

How would you distinguish a tort from a breach of contact?

A

A tort is a breach of a duty which everyone has to follow imposed by law

A breach of contract is a breach of duty fixed by the parties themselves and set out in a contract.

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14
Q

What court is a tort and breach of contract claim brought in?

A

Civil Court

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15
Q

What are the remedies of damages for a tort?

A

Main = damages (financial compensation)
Subject to = unliquidated/unspecified damages, not fixed in advance but decided by the court.

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16
Q

What interest is protected under:

Defamation (libel and slander)
Trespass to person
Private nuisance or trespass to land
Breach of copyright/patent design

A

D - Interest in the persons reputation.
T - Interest in a persons right against deliberate physical harm
P - Persons interest in the land they occupy
B - Persons interest in intellectual property

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17
Q

What is actionable per se?

A

Actionable in itself.

The claimant does not need to have suffered a loss, only prove a tort has been committed.

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18
Q

What is an intentional tort?

A

Requirement on the part of the defendant to commit the tortious act intentionally.

ie deliberately striking someone or intentionally entering someone’s property.

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19
Q

What are the tree characteristics of Trespass?

A

The act of the defendant must be direct
The act of the defendant must be intentional
The tort is actionable per se.

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20
Q

What are the tree forms of Trespass?

A

Trespass to person
Trespass to goods
Trespass to land

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21
Q

What are the three forms Tresspass to the person takes?

A

Assault
Battery
False Imprisonment

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22
Q

What does trespass to the person: assault mean and what form does it usually take?

A

Act of defendant directly causes the claimant to fear an attack on their person.
Usually verbal

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23
Q

What does trespass to the person: battery mean?

A

Physical version of assault.
Defendant uses physical or is hostile towards the claimant

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24
Q

What does trespass to the person: false imprisonment mean?

A

Defendant imposes total bodily restraint and the claimant is not free to go where they want.
This is the case even if they are simply locked in a room and the defendant never actually touches the claimant.

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25
Q

Tuberville v Savage (1669) - what happened in this case? think SWORD

A

Defendant put his hand on his sword but then said “he would have attacked if the judges were not there” as the judges were there, there was no prospect of the threat being carried out.

This is an example where spoken words canceled out the tort committed.

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26
Q

What is the definition of trespass to goods?

A

Where the defendant interferes with another persons goods, usually intentionally.

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27
Q

What is the definition of conversion?

A

Dealing with the goods of a person which is inconsistent with the rights of the person who owns or posses them

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28
Q

What is the deciding factor that makes something conversion rather than trespass to goods?

A

More than just interfering or meddling with another persons goods. ie. where the goods are effectively destroyed, sold or made useless.

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28
Q

What is the deciding factor that makes something conversion rather than trespass to goods?

A

More than just interfering or meddling with another persons goods. ie. where the goods are effectively destroyed, sold or made useless.

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29
Q

What is the Torts (interference of goods) act 1977 and what was the reason for its creation?

A

The collective description under the act is “wrongful interference with goods” to cover: trespass to goods, conversion and certain other torts concerning goods. It was created to simplify procedures and remedies but didn’t change the common law principle.

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30
Q

What is the general definition of trespass to land?

A

Direct interference with land someone else owns.

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31
Q

What are the three types of trespass to land?

A
  1. Unlawful entry
  2. Unlawfully remaining
  3. Throwing an object

Must be intentional.

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32
Q

What does trespass to land ab inito mean?

A

Ab inito = from the beginning .

Someone could enter land lawfully but then abuses there right, they will then be treated as a trespasser from the beginning.

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33
Q

Why would insurance usually not cover trespass?

A

Insurance policies cover losses that are fortuious (accidental)

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34
Q

Define negligence?

A

Failure to take care in circumstances where the law demands care should be taken.

Any damages that arise as a result of not taking such care can be sued against.

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35
Q

What are the three essentials in order to sue for negligence?

A
  1. A duty of care owned by the defendant to the claimant.
  2. A breach of that duty by the defendant ie. negligence
  3. Damages suffered by the claimant as a result of the act

(only reasonably foreseeable loses as the result of negligence are covered)

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36
Q

What happened in the Donoghue vs Stevenson case?

A
  • Mary’s friend bought her a can of coke.
  • Mary drank the coke.
  • A dead snail was discovered inside.
  • Mary got sick.
  • As the can was dark the snail was not visible from outside.
  • The shopkeeper was not liable as they couldn’t reasonably know there was a snail in it.
  • As Mary didn’t buy the coke there was no contract of sale.
  • For the first time the manufacturer of the coke was liable as they had a duty of care to the consumers of there products.
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37
Q

How is a breach of duty in negligence judged?

A

Judged by what a reasonable man would do in the same circumstances
OR
When the defendant fails to take reasonable precautions.

KEY WORD - reasonable

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38
Q

What happened in the Overseas Tankship (UK) Ltd vs Morts’ Dock case and what is this case also knowns as?

A
  • (The Wagon Mound) Case
  • Oil was split in water negligently
  • The oil flows down the river
  • A spark sets the oil on the water on fire
  • The fire sets a building on land alight
  • Because it was not reasonably foreseeable, the damage was “too remote” to claim for negligence.
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39
Q

What does the chain of causation?

A

The causation cant be broken by novus actus interveiens (new intervening cause)

ie the defendants negligent was not the direct cause of damage then they wont be reponsible.

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40
Q

What does Novus actus interveniens mean?

A

New interfering cause

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41
Q

What happened in the Hedley Brynn and co Ltd vs Heller and Partners Ltd case?

A
  • Claimant wanted to do business for a firm so asked the bank for a reference
  • Bank gave a glowing reference for the firm with “without responsibility”
  • Claimant gave a large credit to the firm based on reference
  • Firm went into liquidation and claimant lost the credit given
  • Claimant sued bank for false reference
  • Reference was misleading and the bank would have been liable if not for disclaimer
42
Q

What tort and case does PI insurance derive from?

A

Negligent Misstatement and the Hedley Bryne and co ltd vs Hellers and Partners Ltd case

43
Q

What happened in the Spartan Steel and Alloys vs Martin and co (contractors) Ltd 1973 case?

A
  • Defendants negligently cut through a cable carrying electricity to claimants factory
  • Mental in furnaces was damaged
  • Claimant ask sued for profit that would have been made if they had electricity
  • Court only awarded for loss of metal in furnaces and not for what they could have made
  • Court decided this as what they could have made was financial only and no physical loss
44
Q

Explain the standard for economic loss and the exception to this rule?

A

No liability in tort for any economic loss which does not flow from physical loss suffered by claimant.

Exception - where a “special relationship” between parties and a pure financial loss is suffered. EG where the claimant acts in reliance on negligent advice given by the defendant.

Applies to law of torts ONLY.

45
Q

When can you always claim for psychiatric illness within the law of negligence?

A

If you claim for bodily injury you can always claim for a psychiatric illness that accompanies it.
It must be a recognizable phychiatric illness.
Subject to general principles of the law of negligence.

46
Q

What does Nervous Shock mean?

A

Term lawyers use to describe:

Those who suffer a phychiatric illness as a consequence of an ACIDENT caused by the NEGLIGENCE of another in which people are injured or put in danger.

47
Q

What does Nervous Shock mean?

A

Term lawyers use to describe:

Those who suffer a psychiatric illness as a consequence of an ACCIDENT caused by the NEGLIGENCE of another, in which people are injured or put in danger.

48
Q

What is a primary nervous shock victim?

A

Someone who develops nervous shock after fearing for there OWN lives.

49
Q

What is a secondary nervous shock victim?

A

Someone who fears for the safety of OTHERS, such as a parent seeing their child in immediate danger.

50
Q

What happened in the Alcock vs Cheif Constable of South Yorkshire Police case and what is this case also known as?

A
  • (Hillsborough) Case
  • Crush in a football stadium in Sheffeild. Many died.
  • Police responsible for policing the match negligently allowed excessive numbers of football supporter to enter the ground.
  • Stadium colapsed under weight of excessive people
  • 96 people dies
  • Alcock was 16 people who were uninjured but sued for psychiatric illness due to witnessing the plight of others.
51
Q

Who were Alcock in the case?

A

16 claims grouped together from, family watching on TV, Emergency Room workers and Police who all classed as secondary victims.

52
Q

What test was established as a result of claims from the Hillsbourgh case in terms of secondary victims?

A

You must meet the following criteria to claim:

  1. “close love and affection” to an immediate victim
  2. Closeness in space or time to the incident or immediate aftermath
  3. Learned or experience through own unaided senses

In order to claim for damages.

53
Q

What other sources of liability are there for Psychiatric Illness?

A
  1. Psychiatric illness caused by stress at work
  2. Phobia cases - developed through negligent exposure to hazardous substances at work
  3. Miscellaneous cases - witnessing damage to property
54
Q

Define nuisance tort?

A

Carrying on of an activity which is likely to cause inconvenience or annoyance to the public, or a section of the public, or interfere with a right common to all.

55
Q

What two types of nuisance are there?

A

Public Nuisance - annoys the public - criminal offence
Private Nuisance - unlawful interference with another persons use or enjoyment of their land.

56
Q

What are the two forms of Private Nuisance?

A

Where the defendant wrongfully allows NOXIOUS things to escape from their own property so as to INTERFER WITH THE CLAIMANTS LAND.

The wrongful interference with SERVITUDES or RIGHTS attaching to the CLAIMANTS LAND.

the interference must be unreaonable

57
Q

What is a key defense to nuisance under the Prescription Act 1832?

A

The act allows the defendant to continue an activity which they have been openly and continually doing for 20+ years.

58
Q

What is the remedy for nuisnace?

A

Damages or an injunction

59
Q

What happened in the Rylands vs Fletcher case?

A
  • A reservoir which after being filled, the shafts gave way and flooded the claimants coal mine.
  • Defendant is not negligent, the judge ruled they were strictly liable.
60
Q

What is the Rylands vs Fletcher case an example of and what does it mean?

A

Strict Liability which exists when something escapes and this results in the non-natural use of another’s land. Liability that can arise even where there is no fault or negligence.

61
Q

What is Ryalands v. Fletcher today?

A

A tort in its own right.

62
Q

What defences are there for Rylands v. Fletcher tort?

A
  1. Consent (of the claimant)
  2. Acts of God
  3. Unexpected act of a stranger
  4. Statutory Authority
63
Q

What is a breach of statutory duty tort?

A

Some statues/duties by legislation are distinct from common law and a “breach of statutory duty” is appropriate in that case to describe it.

64
Q

Under the Highway Act 1980 statue, explain how they could breach of statutory duty?

A

The act states they highway authority have a duty to keep highways free from ice and snow.

If they fail to do this it is a breach of this duty and gives rise to an action for breach of statutory duty.

65
Q

What is breach of statutory duty?

A

A tort in its own right

66
Q

To succeed in a claim for breach of statutory duty what 5 things must be met? IDOBC

A

Breach of Statutory Duty = IDOBC.

1.INTENDED - Establish that the statue was intended by Parliament to allow civil remedy.
2. DUTY NOT POWER - The statue must impose a duty on the defendant and not a power.
3. OWED TO C - The claimant must prove that the statutory duty was owed to them.
4. BREACH BY D - There must be a breach of the duty by the defendant
5. CONTEMPLATED - The damages suffered by the claimant must be caused by the breach and be a kind which was contemplated by the statue.

67
Q

What three things must duties do employers have?

A
  1. Select competent staff
  2. Provide and maintain proper plant, premises and equipment
  3. Provide a safe system to work.
68
Q

What tort does Employers Liability fall under?

A

Negligence - distinct branch.

The duty is common law so “reasonable duty” is required.

69
Q

What does the Health and Saftey at work ETC Act 1974 make employers dutys subject to and where do they apply?

A

The duties are subject to criminal laws in not followed.

Applies to:

  1. All placed of work
  2. All employees
  3. Some person’s who are not employees
70
Q

What is vicarious liability?

A

Not a tort.
A way which liability may be imposed

Vicarious Liability = liability for wrongs committed by another

71
Q

What type of liability is Employers’ Liability and what does it mean?

A

Vicarious Liability = an employer is liable for the torts committed by an employee in the course of their employment

72
Q

What is the two part test for vicarious liability in Employers Liability?

A
  1. Is the relevant relationship one of employment or akin to employment?
  2. Is the tort sufficiently closely connected with that employment or quasi employment?
73
Q

Why was the Occupiers’ Land Act 1957 passed, what what does it mean why is it there?

A

Passed to simplify old common law rules.
Liability arising from defective of dangerous premises.
Imposes a common law duty of care which is owed to all visitors on the land of another to ensure their safety.

74
Q

What does the Occupiers Liability act 1984 extend to the Occupiers Land Act 1957?

A

Extends the previous act to trespassers and other uninvited entrants.
Occupiers also owed a duty of common humanity to anyone not invited onto there land, not just visitors.

75
Q

What are the limitations to Occupiers Liability Act 1984?

A
  1. A duty owed only if the occupier knowns/ has reasonable grounds to believe danger exists and the trespasser has come/may come into the vicinity.
  2. The risk must also be one against which the occupier may reasonably be expected to offer the trespasser some protection.
  3. The only protected forms of damage are death and personal injury.
76
Q

What is liability for defective products?

A

If someone suffers an injury or damage or illness due to a defective product.

77
Q

If someone suffers an injury due to a defective product, what options do they have if they:
a) bought the product
b) didn’t buy the product

A

Bought: Usually can sue the seller for breach of contract
Didn’t buy: Their only legal remedy will be an action in tort.

78
Q

Under defective products claims, what two ways can an action be brought based on?

A

Negligence
Under the consumer protection act 1987

79
Q

How can a negligence create liability for a defective product?

A

Any negligence on the part of a manufacturer, wholesaler or retailer can create liability for causing hard to a claimant

80
Q

How can under the staute of the Consumer Protection Act 1987 a claim for liability be brought for a defective product?

A

There is strict liability, a producer of a product is held liable for a personal injury or damage to another persons property as a result of a defect in their product.

81
Q

What is the main defense for a defective product and what does it mean?

A

State of Art
A producer may escape liability if the state of SCIENTIFIC OR TECNICAL knowledge at the RELEVANT time, was not such that a producer of products of that sort might be expected to have discovered the defect.

82
Q

What is libel and slander?

A

Libel - Permanently - written or published
Slander - transient - usually spoken

Either being a defamatory statement of another where it is false and exposes a claimant to “hatred, ridicule or contempt or lowers them in the eyes of right-thinking members of society generally.

83
Q

Is a defamatory statmnet actionable per se?

A

No

84
Q

With a defamatory statement, damage must be proved with what two exceptions?

A
  1. The defendant aledges that the claimant is guilty of a crime punishable by imprisonment
  2. is unfit to carry out there profession, calling, trade or business
85
Q

What defenses are there for libel and slander?

A
  1. TRUTH
  2. HONEST OPINION without malice
  3. PUBLICATION ON A MATTER OF PUBLIC INTEREST
  4. INOCENT DEFAMATION - apology must be given
  5. PRIVILEDGE such as parliamentary
86
Q

What are three general defenses in tort?

A
  1. SELF DEFENCE - reasonable force to defend ones self, ones property or other persons.
  2. NECESSITY - An act was carrier out to avoid a greater evil.
  3. STATUTORY AUTHORITY - it can be argued a particular act is permitted by statue.
87
Q

What is meant by the consent defence?

A

The claimant agrees to a deliberate act by the defendant such as a boxer agreeing to be punched in a fight.

88
Q

What does Volenti non fit injuria mean?

A

No legal wrong is done to a person who consents, eg. someone getting into a car with someone driving who they know is drunk and then being injured in a crash.

The claimant has assumed the risk of an action by the defendant

89
Q

What is contributory negligence ?

A

Where the claimant is party to blame for the injury’s which they have suffered at the hand of another.

90
Q

What does the Law Reform (contributory negligence) Act 1945 state, and how has it changed defenses for contributory negligence?

A

The act can reduce the damages awarded to the claimant though a “plea in mitigation” which means a reduction not a defense.

A defendant MAY be able to REDUCE their liability by claiming that someone else should share responsibility for the loss.

Any reduction of liability must be JUST AND EQUITABLE having regard to the extent of the persons responsibility for the damages in question.

91
Q

Under the Limitation Act 1980, what time frame does a claimant have to claim for a
a)Defamation case
b)Personal Injury case
c) Other torts case

And when does the countdown start?

A

a)Defamation case - 1 year
b)Personal Injury case - 3 years
c) Other torts case - 6 years

Countdown begins when the action accrues or the injury happens.

92
Q

What is Latent Damage?

A

Hidden injury/damages

93
Q

When does a Latent Bodily Injury countdown begin for damages?

A

The time starts from the DATE OF KNOWLEDGE
ie. when they realise they have an injury or damage

94
Q

On a Latent Propety Damage claim, how long does a claimant have to claim from:

Began
Discovered
Long stop

A

Began - 6 years from the date it first began
Discovered - 3 years from the date it was discovered
Long-Stop - 15 years from the date of the alleged negligence or wrongful act by the defendant

95
Q

What is the purpose of damages in tort?

A

To compensate the claimant, to put them back in the financial position they would have enjoyed if the tort was not committed.

96
Q

What is special damages?

A

Specific amounts that can be evidenced by the claimant such as loss of earnings, damage to clothes etc

97
Q

What are general damages?

A

More vague, cant be quantified, such as damages for pain and suffering.

98
Q

What are aggravated damages?

A

Additional damages that may be awarded to reflect the claimants sense of dignity or pride being injured.

99
Q

What are Exemlary/punitive damages?

A

Rare in UK law. Damages are to compensate claimant not punish defendant normally however in certain torts such as assault or trespass the court may aware additional damages to reflect the conduct of the defendant.

100
Q

What are nominal damages?

A

Awards which act as a TOKEN to acknowledge the defendant was in the wrong but the claimant has suffered no real loss.

101
Q

What are contemptuous damages??

A

Awarded where a TRIVIAL claim has been brought by the claimant and has esentially WASTED the courts time.

102
Q

What is an injunction and when would it be used?

A

Sometimes mandatory to make the defense do something or prohibitorily stop the defendant from doing something.

Awarded as an equitable remedy subject to the courts discretion.

MO5 Insurance Law - 2022 - Chapter 1 and 2 (10 decks)

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