Lecture 6

Question 1

what is tortious liability?

Answer 1

liability imposed by the courts when a person is injured or suffers a loss due to another person’s actions or their negligence

Question 2

what are the different types of tort?

Answer 2

• negligence
• passing off
• defamation

Question 3

legal neighbour = ?

Answer 3

people directly affected by one’s actions

Question 4

what must a claimant prove if they’ve brought a case under tort of negligence?

Answer 4

claimant must prove:
- duty of care
- breach (of duty)
- harm or loss

Question 5

what does breach of duty of care constitute?

Answer 5

• duty of care towards children
• duty of care from children
• duty of care towards disabled employees
• duty of care from professionals/expert

Question 6

res ipsa loquitur = ?

Answer 6

facts speak for themselves

Question 7

onus = ?

Answer 7

burden of proof

who must prove their case

Question 8

what does harm suffered constitute under tort of negligence?

Answer 8

• death
• physical injuries
• damage to property
• financial loss arising out of the above
• pure financial losses

Question 9

causation in tort of negligence?

Answer 9

claimant can only recover damages if they can prove that they’ve suffered a loss and the defendant’s breach caused the loss

Question 10

contributory negligence = ?

Answer 10

damages can be reduced if the claimant’s situation was partly caused by their own doing

Question 11

volenti non fit injuria = ?

Answer 11

to one who volunteers, no harm is done

the claimant should know of the risk to accept the risk

consent can be impliedly or expressly

Question 12

can professional advisors be held liable?

Answer 12

yes

can be held for breach of contract or tort of negligence

(e.g., auditor is liable for all shareholders collectively - not individual shareholders)

Question 13

vicarious liability = ?

Answer 13

where one person is held liable for the torts of another, even though that person didn’t commit the act themselves

Question 14

in which instance does vicarious liability occur and what are the conditions for it to hold?

Answer 14

in employment

• the wrongdoer must be an employee
• employee must have committed a tort
• tort must have been committed in the course of employment

Question 15

how can you distinguish between an employee and an independent contractor?

Answer 15

• control test (test to see if employer has control over the individual)
• organisation test/ integration test
• multiple test/ economic reality test (asking multiple questions; e.g., right to dismiss? right to decide place & time of work? etc.)

Question 16

what is tort of passing off?

Answer 16

common law remedy to protect the goodwill of a trader from misrepresentation

claimant must prove there is similarity in the trade names/marks and defendant is passing off his goods as those of the claimant’s

Question 17

passing off = ?

Answer 17

selling goods of your own, pretending they’re goods of another person

“a man may not sell his own goods under the pretence that they are goods of another man”

Question 18

trademarks act 1994 = ?

Answer 18

governs trademarks within the UK

Question 19

extended passing off = ?

Answer 19

misrepresentation of a particular quality of a product/service causes harm to the plaintiff’s goodwill

Question 20

is passing off different from trademark infringement?

Answer 20

yes

Question 21

what does a trademark consist of?

Answer 21

words, designs, letters, numerals, colours, sounds, shape of goods or packaging

Question 22

what is tort of defamation?

Answer 22

protection to reputation - every person is entitled to their good name

Question 23

how can defamation be committed?

Answer 23

• words can be considered defamatory
• words referring to the claimant
• words that are published about the claimant

Question 24

what are various defences against defamation?

Answer 24

• justification (truth) - a complete defence
• privilege - information is in the public interest

Question 25

what are the two types of privilege?

Answer 25

absolute privilege (e.g., parliamentary/judicial proceedings)

qualified privilege (e.g., doctors’ duty)

Question 26

what is tort of private nuisance?

Answer 26

protection from ongoing annoyance that can arise as a result of certain land usage

covers a wide range of neighbour-neighbour relationships (claimant & defendant’s properties don’t need to be directly next to eachother)

• nuisance doesn’t need to be artificial, can be naturally occurring

Question 27

what is tort of trespass?

Answer 27

constitutes of trespass to person, trespass to land and trespass to goods

Question 28

trespass to person = ?

Answer 28

infringement of personal rights (battery, assault, false imprisonment and harassment)

Question 29

trespass to land = ?

Answer 29

unjustified interference with the possession of land (dumping of. fridge of neighbour’s land)

Question 30

trespass to goods = ?

Answer 30

unwarranted interference with personal property