Lecture 6 Flashcards
what is tortious liability?
liability imposed by the courts when a person is injured or suffers a loss due to another person’s actions or their negligence
what are the different types of tort?
- negligence
- passing off
- defamation
legal neighbour = ?
people directly affected by one’s actions
what must a claimant prove if they’ve brought a case under tort of negligence?
claimant must prove:
- duty of care
- breach (of duty)
- harm or loss
what does breach of duty of care constitute?
- duty of care towards children
- duty of care from children
- duty of care towards disabled employees
- duty of care from professionals/expert
res ipsa loquitur = ?
facts speak for themselves
onus = ?
burden of proof
who must prove their case
what does harm suffered constitute under tort of negligence?
- death
- physical injuries
- damage to property
- financial loss arising out of the above
- pure financial losses
causation in tort of negligence?
claimant can only recover damages if they can prove that they’ve suffered a loss and the defendant’s breach caused the loss
contributory negligence = ?
damages can be reduced if the claimant’s situation was partly caused by their own doing
volenti non fit injuria = ?
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
can professional advisors be held liable?
yes
can be held for breach of contract or tort of negligence
(e.g., auditor is liable for all shareholders collectively - not individual shareholders)
vicarious liability = ?
where one person is held liable for the torts of another, even though that person didn’t commit the act themselves
in which instance does vicarious liability occur and what are the conditions for it to hold?
in employment
- the wrongdoer must be an employee
- employee must have committed a tort
- tort must have been committed in the course of employment
how can you distinguish between an employee and an independent contractor?
- 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.)
what is tort of passing off?
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
passing off = ?
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”
trademarks act 1994 = ?
governs trademarks within the UK
extended passing off = ?
misrepresentation of a particular quality of a product/service causes harm to the plaintiff’s goodwill
is passing off different from trademark infringement?
yes
what does a trademark consist of?
words, designs, letters, numerals, colours, sounds, shape of goods or packaging
what is tort of defamation?
protection to reputation - every person is entitled to their good name
how can defamation be committed?
- words can be considered defamatory
- words referring to the claimant
- words that are published about the claimant
what are various defences against defamation?
- justification (truth) - a complete defence
- privilege - information is in the public interest
