L.O 2. Understanding the principals of the law of torts and the characteristics of the main torts Flashcards
1
Q
What is the purpose of legal action in a civil law tort?
A
To provide compensation or reparation for the victim who has been harmed by the tortious act of the defendant.
2
Q
who brings the legal action against a civil tort?
A
The victim themselves (claimant)
3
Q
What is the purpose of a legal action in a criminal law crime?
A
The object of criminal proceedings is to punish offenders who are found guilty of a wrong which is harmful to the interests of society as a whole
4
Q
Who brings the legal action against a criminal law crime?
A
The crown police or the public prosecutor - although private prosecutions are occasionally found
5
Q
give three examples on when behavior may amount to a crime and a tort?
A
- If A steals B’s coat there is a crime (theft) and a tort (tresspass to goods and conversion)
- If A physically attacks B there is a crime (assault in some form) and a tort (tresspass to the person)
- If A carelessly drives into B’s car there may be a crime (perhaps driving without due care) and a tort (negligence)
As a result, A may be prosecuted in a criminal court ad punished, sued ion a civil court by B to pay compensation.
6
Q
What is a tort?
A
A breach of duty fixed by law; a general duty which the law imposes on everybody.
In the law of contract an important branch of the civil laws are dutied fixed by the parties themselves and set out in contract
7
Q
what is the remedy in torts?
A
an action for unliquidated damages.
8
Q
what does unliquidated mean?
A
‘unspecified’ means the amount of damages is not fixed in advance and will be decided by the courts, according to the seriousness of the injury which has been caused.
9
Q
what does liquidated mean?
A
damages in contract are sometimes specified, liquidated. this means that parties to a contract will have agreed the fixed amount of compensation to be paid if there is a breach of contract.
10
Q
what is the purpose of law of torts?
A
to protect peoples rights by allowing them to sue if their interests are invaded , threatened or harmed.
11
Q
Different torts protect different interests; what are these interests? (4)
A
- Defamation (libel and slander) - protects a persons interests in their reputation.
- Tresspass to the person - protects a person against deliberate harm
- Private nuisance, trespass to land - protects a persons interest against the land they occupy
- Breach of copy right or patent design - protects a persons interest in their ‘intellectual property’.ie a creation of their own mind.
12
Q
is injury or damage required for a tort?
A
- in most cases an action for tort will not succeed unless the claimant has suffered some form of injury, damage or loss. however sometimes a tort may be actionable per say (actionable in itself), meaning that the claimant does not have to prove that they suffered a loss or damage, only that the tort has been committed.
13
Q
give an example of a type of tort which is actionable per se in every form; which we don’t need to prove that damage or injury has happened?
A
Tresspass; every form of which is actionable per se. one can sue a person for trespass without having to prove that the trespasser caused any damage to the land.
14
Q
what is another way of classifying torts?
A
by looking at the type of behaviour the wrongdoer must exhibit and the degree of fault, if any which is necessary to be a tort.
15
Q
what is an intentional tort?
A
where there is a requirement for intention from the defendant to commit the tortious act.
16
Q
Give two examples of intentional tort.
A
- Tresspass; for instance, to deliberately strike a person with an umbrella is trespass to the person. However to do so accidentally is not tresspass (it is neither negligence according to recent views)
- Deceit. which is committed when one person deliberately makes a false statement to another with the intention that the other will rely upon it, and the person who misled suffers loss or damage as a result. This tort is referred to again under misrepresentation and breach or pre contractual duties.
17
Q
what are the torts which require negligence or other fault?
A
the tort of negligence itself as well as some forms of private nuisance and, even where no negligence isn’t required, the defendants conduct must be at least unreasonable. it goes without saying that in these cases there will be no liability for conduct which is accidental,, where there is no fault from the defendant.
18
Q
What does ‘strict Liability’ refer to?
A
Sometimes a person may be liable even though their actions were neither intentional or negligent. This is also known as ‘non fault liability’.
Liability in contract is usually strict and will usually be no defence to a breach of contract for the defendant to plead that all reasonable care was taken and there was no negligence on their part. Strict liability may arise in tort also. (bear in mind that there is always the chance that defences can be available even for strict liabilities)
A good example of this is the Ryland V Fletcher case.
19
Q
what does ‘malice or motive’ have to do with the law of torts.
A
it is evident that liability in tort shall exist if negligence or intent is proven. this is why the law of torts doesn’t really bother looking into the motives behind a persons actions. malice is not usually relevant in torts - malice in the legal sense meaning not just personal spite or ill-will but any improper motive.
Because someone malice and motive isn’t usually relevant, a person who had good intentions will still be held liable if the action is unlawful; and a person who has malicious intent they may not be liable if the act is not unlawful.
20
Q
where might malice be relevant?
A
malice is an essential ingredient in one or two minor torts such as malicious prosecution or malicious falsehood.
- in the tort of defamation certain defences are not available if there is malice.
- in the tort of nuisance some actions which are normally reasonable and lawful will be held unreasonable and unlawful motivated by malice
21
Q
What are the three main torts?
A
Tresspass
Negligence
Nuisance
22
Q
what are the three main forms of trespass?
A
- Trespass to the person
- Tresspass to goods
- Tresspass to land
23
Q
What three characteristics must all forms of Tresspass have?
A
- The act of the deferent use have been direct
- The act of the defendant has to be intentional
- The tort is actionable per se
24
Q
What does it mean when we say the tort is actionable per se?
A
The claimant does not have to prove that they have suffered any loss or damage in order to succeed.
25
what are the three forms of trespass to the person?
- Assault
- Battery
- False imprisonment
26
what is assault?
an act of the defendant which directly caused the claimant to fear an attack - the threatening actions before the attack. (the legal definition of assault is different to that used in every day language).
27
give a case example of assault;
Tubervillle V savage 1669
the defendant had put his hand on his sword and said 'if I were not assize time. I would not take such language from you' meaning he would have attacked the claimant if the judges had not been in the district. this was not an assault because the presence of the judge in the district meant that there was no prospect of the threat being carried out.
28
What is Battery?
Battery is the hostile application by the defendant of physical force, even though it may be slight to the claimant.
Assault and battery typically go together but it is possible to have one without the other: a real threat of violence which is not carried out is still an assault, and a sudden attack without threat is battery.
29
What does false imprisonment refer to ?
false imprisonment refers to when the defendant imposes total bodily restraint on the claimant, preventing them from going where they want to go. The word 'false' in this case means wrongful.
- no physical contact is necessary, so locking a persons in a room which they entered voluntarily is still false imprisonment.
- most actions for false imprisonment usually a brought against the police, prison authorities, store detectives., and other officials who's job it is to detain people from time to time.
30
What is trespass to goods?
occurs when the defendant directly and intentionally interferes with goods which are in possession of another.
31
what is conversion?
if the defendant deliberately deals with the goods in a way which is inconsistent with the rights of the person who owns or possesses them, they can be sued for conversion. (in this case the defendant does more than just meddle with the goods, i.e more than just moving the goods, it may be a case of stealing or selling borrowed goods)
32
what act is relevant to trespass to goods?
The ' Torts (interference with goods) act 1977. the collective description 'wrongful interference with goods' was introduced to cover trespass to goods, conversion and certain other torts concerning goods.
33
what is trespass to land?
This is direct interference with land which is in possession of another.
- must be intentional, the defendant must have intentionally have stepped onto the land in question.
34
what are the three forms of trespass to land?
- unlawful entry to the land
- unlawfully remaining on the land
- unlawfully placing or throwing any material object onto the land of another.
35
what happens when someone enters land unlawfully but abuses their right to be there?
this is treated as trespass ab initio
36
would an act of trespass be covered under a standard insurance policy?
insurance policies only cover losses that are fortuitous (accidental). therefore as trespass is always deliberate in some sense.
however there are policies which do specifically cover the risk of trespass to land or goods.
i.e PL policies issued to contractors often cover the risk of trespass to the properties of third parties however wouldn't cover this if the act was deliberate.
37
what is negligence?
- the most important tort, the most common.
- The failure to take care in circumstances where the law demands that care should be taken, giving rise to a claim for damages by the person who suffers harm as a result.
38
for the action of negligence to succeed, there are three essential elements. These are:
- A duty of care owed by the defendant to the claimant.
- A breach of duty by the defendant (negligence)
- Damage suffered by the claimant as a result of the negligent act.
it is important to note that only reasonably foreseeable losses will be compensated.
39
what is 'duty of care'?
Duty of care is owed to another person if it is reasonably forseeable that they will be affected by ones acts or ommissions.
proximity plays an important part also.
40
what is a case example for duty of care?
Donoghue V Stevenson 1932.
41
what happened in Donoghue V Stevenson 1932.
The neighbour principle was established.
May Donoghue visited a cafe with a friend, who brought her a ginger beer. she drank some of this but when poured it out found there was a decomposed snail inside. she was mildly ill, and sued the manufacturer in negligence. the manufacturer owed a duty of care to their customers. this is when the neighbour principle/test was established by lord atkin.
42
what is the neighbour principle?
summary; the neighbour principle is one of 'reasonable foreseeability'. a duty of care is owed to another person if it is reasonably foreseeable that they will be affected by my acts or omissions.
the rule that you are to love your neighbour in law; you must not injure them.
you must take reasonable precautions to avoid acts or omissions which you can reasonably foresee would likely injure your neighbour.
your neighbour Is anyone who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in to question.
43
what is a breach of duty?
a breach of duty occurs when the defendant fails to do what a 'reasonable' man would have done in the circumstances, or does what a reasonable man would not have done.
44
what is meant by the term 'reasonable'?
under English law, the standard by which the defendants behaviour is judged is objective. this means that the same applies to everybody. i.e everybody who drives a car is expected to meet the same standard of competence.
- however a defendant who poses himself as having a particular professional skill or ability will be expected to exercise that skill in a competent fashion.
the greater the risk presented by the defendants activities, the greater will be the care expected of them.
45
what three factors do the courts take into account when looking at breach of duties?
- the magnitude of the risks involved - the likely hood of damaged.
- the ease with which the risk could have been eliminated
- the current state of scientific and technical knowledge.
46
what does 'damage' refer to?
damage can take a number of forms, including death, injury and damage to property
47
how do causation and remoteness fit into damage?
a defendant is not liable in negligence for every loss which has some connection with their wrongful act. the law attempts to place a reasonable limit on the defendants responsibilities by releasing them from liability where the damage is too remote.
48
give a case example relating to a test based on foreseeability; damage would be too remote if it was of a type which was not reasonably foreseeable:
overseas tank ship (UK) Itd v Morts dock and engineering co ltd (The wagon mound):
- the details are that the men who were employed by the defendant negligently spilt fuel oil into Sydney harbour, the oil mixed with cotton waste and other debris and spread to the claimants wharf where welding operations were causing sparks to fall into the water. the sparks caused the oil to ignite the claimants wharf.
although the fire was a direct result of the defendants negligence, the court held that the damage was too remote as it was of a type which was not reasonably foreseeable. at the time it was not known that oil could set fire this way.
this is an Australian case but has been followed in England and Wales.
49
what is meant by 'you take your victim as you find him'
this rule applied to the thin skull cases, these are cases where the damage is not reasonably foreseeable because it results from pre-existing physical weakness or defect in the claimant of which the defendant was not aware.
50
give a case example for the thin skull rule;
Smith V Leech Brain and co ltd 1961
51
what happened in Smith V Leech Brain and co ltd 1961
a worker had pre malignant cancer of the lip which was activated when a blob of molten rock struck him through negligence of a fellow employee, he later died of the disease. although the death was quite unforeseeable, the employers were still fully liable. Cases such as this are an exception to the general rule that no claim lies for damages which are not foreseeable.
52
give a case example for remoteness of damage:
Abouzaid V Mothercare UK Ltd 2001
53
what happened in Abouzaid V Mothercare UK Ltd 2001
A boy was left blind after attempting to attach a sleeping bag to a pushchair when a piece of elastic strap with a metal buckle pinged back at his eye. he tried to sue the store who sold him the sleeping bag but this was unsucessful as it was not seen as foreseeable that one would hurt themselves whilst undertaking the action that he was.
He die however manage to sue under product liability under the fact that there was no warning on the instructions of the specific potential injury.
54
what is the general test for remoteness now?
the degree of reasonable foreseeability.
however causation is still important.
55
why is causation important as well as remoteness?
if the defendants negligence is not the direct cause of the damage, they will not be held responsible for it and the issue of foreseeability need not even be considered.
where the chain of causation leading to the defendants negligent act is broken by a 'Novus acts interveniens' (are intervening cause) the defendant will not be held responsible.
56
What is negligent misstatement?
originally there was no liability in tort for negligent words or negligent advice, only negligent acts. (liability for negligent advice could arise only where there was a contract between the parties. This meant that professional people who gave bad advice could be sued only by their clients. They would not be liable to other people who suffered loss as a result.
57
which case changed the law of negligent misstatement?
Hedley Byrne V Heller and Partners 1963
58
what happened in Hedley Byrne V Heller and Partners 1963?
this case established that liability could arise in tort for negligent reinstatement. It also established a new category of liability in tort for pure economic loss.
The facts; The claimants had contacted the defendants, who were bankers to a firm which they were about to do business.
The defendants gave a good reference concerning the firms credit- worthiness, although the document was headed with 'without responsibility' - a disclaimer of liability.
The claimants acted on this misleading report (the firm was in trouble) and gave substantial credit, so that they lost heavily when the firm went into liquidation. They sued the defendants in the house of lords and held that the bankers would have been liable in negligence if they had not expressly disclaimed liability.
59
Liability under the Hedley Byrne rule arises where;
- There is a special relationship between the parties (but there is not a contract)
- The giver of the advice can reasonably foresee that the advice is likely to be acted upon and that the recipient is likely to suffer if it is inaccurate.
- The advice is, in fact, acted upon, causing loss to the claimant.
60
the key element in the Hedley Byrne case was;
the reliance on the part of the claimant, However, the Hedley Byrne rule has expanded in recent years and it is clear that the rule now applies not just to negligent advice or statements but to negligent professional work generally.
It is now clear that actual reliance on the part of the claimant is not necessary, provided there was an assumption of responsibility towards the claimant by the defendant.
61
what remedies are available for economic loss under tort?
where economic loss accompanies physical damage and results directly from it, the defendant is liable for such loss, provided the economic loss is not too remote.
The courts have been reluctant to allow claims in tort for pure economic loss however. That is, claims for financial loss which is not accompanied by any physical damage to the claimant or their property.
62
give a case example for economic loss in tort:
Spartan Steel and Alloys V. Martin and Co (contractors.) Itd
63
what happened in Spartan Steel and Alloys V. Martin and Co (contractors.) Itd?
The defendant negligently cut through a cable carrying electricity to the claimants factory, interrupting the power supply for 15 hours. Metal in the claimants furnaces were damaged - reducing value by £368. the claimant also claimed for the £400 profit they would have made on these as well as the £1,767 for profit they would have made on four further melts they would have had in during this time.
the court held they could recover costs on those that were damaged and their profits but not for the predicted profit as this was pure financial loss.
64
what is one exception to the findings of the spartan steel case?
The Hedley Byrne case is an exception - that financial loss is recoverable if there is a special relationship between the parties and the pure financial loss is suffered when the claimant acts in reliance of on negligent advice given by the defendant.
65
How does psychiatric illness fit under the tort of negligence?
This is an area where legal liability is expanding. This has been caused in part, by medical advances which have led to a better understanding of psychiatric illnesses and greater confidence in their diagnosis.
66
who can sue in negligence for psychiatric illness?
The person who suffers bodily injury will always be allowed to claim for psychiatric harm that accompanies it,
- The position is less simple when the negligent act of one person causes psychiatric illness in another without the latter having incurred any bodily harm.
- claims for psychiatric illness are subject to the general principles of the law of negligence, including the usual requirement of foreseeability.
- Only those claimants who suffer a recognisable psychiatric illness will succeed. there is no liability for grief and sorrow.
- The vast majority for successful claims are for PTSD
67
what two categories do successful claimants for psychiatric illness fall under?
- Those who suffer psychiatric illness as a consequence of an accident caused by the negligence of another, in which the people injured or put in danger (the 'nervous shock' cases)
- Those who suffer psychiatric illness by some other means
68
What are 'nervous shock' cases?
when a person develops a psychiatric illness following from the shock of witnessing a terrible accident caused by the negligence of another. - they are then seen as someone to which the duty of care is owed.
69
what are the two types of victims in nervous shock cases?
Primary victims and secondary victims
70
what is a primary victim?
persons who suffer shock through fear for their own safety. This category of claimant was the first to be recognised by English law.
71
give a case example of a primary victim?
Page V. Smith
72
what happened in page v smith?
The claimant suffered from M.E following on from an accident with a car driven by a negligent driver, whether this was foreseeable or not did not matter given that some form of personal injury was foreseeable.
In this case it was held that primary victims of this type need only prove some form of injury was physical in order to recover compensation
73
what is a secondary victim?
persons who suffer shock through fear for the safety of others.
As the 20th century progressed, the law began to recognise claims by persons who suffered shock through fear for the safety of others.
74
what is a case example for secondary victims?
Alcock V Chief constable of south yorkshire police (1992)
75
what happened in Alcock V Chief constable of south yorkshire police (1992)
the Yorkshire police were responsible for policing a football game; they let an excessive number of people onto the pitch, leading to 96 people being crushed to death and many more injured. there was 16 cases considered for secondary psychiatric illnesses risk due to witnessing the plight of others.
the house of lords held that on cases like this foreseeability alone was not a sufficient test of liability.
the court held here that 'secondary victims' should be entitled to damages only if they could establish proximity in respect of;
- Their relationship with the immediate victim, by means of close ties of love and affection.
- their closeness in space or time to the event or its immediate aftermath
- the means by which they learned about the accident, which had to be through their own unaided senses.
76
what happened in white V chief constable of South Yorkshire Police 1999
- there were some police officers who carried out the rescue work at the Hillsborough disaster and initially won damages for nervous shock in claims against their employers. However, this was reversed.
- The House of Lords laid down that the cheifs duties did not extend to taking reasonable steps to protect them from psychiatric harm, just physical. the rescuers could only claim damages if they could fulfil the additional control tests laid down in Alcock such as ' close tie of love or affection' to a primary victim.
77
what are 3 other ways that liability for psychiatric illness can occur?
- Illness caused by stress at work;
- phobia cases
- miscellaneous cases
78
how can liability for psychiatric illness occur through stress at work?
- stress and pressure at work (case example; Walker V Northumberland county council (1995)
- Harassment by colleagues or employees where the employer may be vicariously liable.
for harassment of a sexual nature, an employer is liable for all acts of its employees committed in the course of employment and, in this case, damages may be awarded for injury to feelings not amounting to psychiatric illness.
79
how can can psychiatric illness occur through phobia?
these are cases where employees are exposed to something harmful such as asbestos through their employers negligence, they may not be physically ill but develop a psychiatric illness because of a result of a founded fear for what the future may hold for them. this could also be the case when exposed to hazardous substances outside of a course of employment however.
80
how can psychiatric illness occur through miscellaneous cases?
these are cases where the client has suffered from psychiatric injury as a result of witnessing damage to property, it seems people can form attachment to property which is just as strong as that to human beings.
81
What are the two forms of the tort of nuisance?
Public & private
82
what is public nuisance?
'carrying out an activity which is likely to cause an inconvenience to the public, or a section of the public, or interference with a right common to all'
83
what is a good example for public nuisance?
Toxic fumes from a factory which engulf an entire neighbourhood or noise from a nightclub which keeps the whole community awake.
The most prevalent is on a highway, by obstructing, blocking or making it unsafe to use.
84
what is 'special damage' in reference to public nuisance?
when an individual experiences a loss far greater than that suffered by the public, whilst public nuisance is a crime to the public, the individual can bring about civil action.
85
give an example where special damages might occur?
digging a whole in a road might cause public nuisance as it inconveniences the public as a whole but an individual who suffers injury as a result of falling in the hole might be able to bring an action in tort for damages.
86
when are actions in nuisance likely to succeed?
where there is an element of repetition in the interference or it amounts to a continuous state of affairs
87
what is the purpose of the tort of private nuisance?
to protect a persons interest in their land.
A private nuisance is an unlawful interference with a persons use or enjoyment of their land (which includes houses and buildings attached to it)
88
what are the two forms that the interference of the defendant might occur?
- Wrongfully allowing noxious (harmful) things to escape from their own property so as to interfere with the claimants land (such as noise, smoke, smells, vibration, damp or vermin.
- wrongful interference with servitudes or rights attaching to the claimants land (such as rights of way, rights to light or rights of support to land or buildings.
89
what must occur for interference to be actionable?
Damage must have been caused either physically or adversely affect the claimants use and enjoyment of it
90
give an example of result of damage of interference; when it adversely affects the claimants use of enjoyment of it.
if the claimant in unable to sit comfortably in their garden as there is continuous noise from the neighbours this amounts to private nuisance although there isn't any physical damage.
91
Is personal injury actionable under nuisance?
No - as the object of the tort of nuisance is to protect a persons interest in their land rather than the person. This would be actionable under negligence or trespass to person
92
What must interference be in order to be a nuisance?
'unreasonable'. there must be some give and take so not every trivial interference will amount to nuisance at law.
93
who is the claimant in the case of nuisance?
The occupier of the land affected; the owner or the tenant.
94
who is the defendant in the case of nuisance?
the person who creates the nuisance. Usually the occupier from the property the nuisance is from.
A landlord can be liable for nuisance if they create the nuisance then let the property or when they allow nuisance created by a third party to remain.
95
What is the defence to nuisance under the Presctiption act 1832?
This act provides that if the defendant can establish that the actionable nuisance has existed openly and continuously for at least 20 years, their right to continue the activity in question cannot be challenged/.
96
what two things are never a defence to nuisance?
- That the claimant 'came to the nuisance'
| - that the alleged nuisance is a benefit to the community.
97
what are the two usual remedies to nuisance?
Damages or injunction
the claimant may also employ the 'reasonable self help' (stop) a nuisance, i.e by cutting off roots or branches which protect from a neighbours trees.
98
how can claims for nuisance arise in insurance?
- when a builder causes damage to an adjacent property this could give rise to a nuisance claim.
Very rare as they're usually on negligence
- claims based on mere interference may be excessive noise, unpleasant smalls etc that aren't causing any physical damage. - Liability insurers are unlikely to become involved in these cases.
99
What happened in the case of Ryland V Fletcher; what rule was established?
Strict liability; liability can fall even where there has been no negligence.
'we think that the true rule of law is that a person who, for his own purposes, brings on his land and collects and keeps there anything which is likely to cause mischief if it escapes, must keep it at his peril. If he does not do so, is prima facie answerable for all the damage which is the neutral consequence.'
100
Although the rule in Ryland V Fletcher imposes strict liability; what are the defences that are available?
- Consent of the claimant
- Acts of God
- Unexpected act of a stranger
- Statutory authority
101
To succeed in an action in tort for breach of statutory duties the claimant must establish what 5 things?
1: That the statute was intended by parliament to allow civil remedy.
2: The statute must impose a duty on the defendant and not merely a power.
3: The claimant must prove that the statutory duty was owed to them.
4: There must be a breach of the duty by the defendant.
5: The damage suffered by the claimant must be caused by the breach and be of a kind which was contemplated by the statute.
102
what are the 3 duties of an employer regarding reasonable care?
An employer must take reasonable care to:
1: Select competent staff
2: provide and maintain proper plant, premises and equipment
3: Provide a safe system of work
103
is the liability of an employer strict?
No - they have a duty to take reasonable care but the liability is not strict.
These standards are high.
104
What is the purpose of the Health and Safety at work act 1974?
This act takes the common law duties of an employer to take reasonable care and makes them subject to criminal law.
"It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees."
105
what kind of criminal penalties may be given to an employer and their employees under the Health and safety at work act?
- Unlimited fines
- up to 2 years imprisonment
S.47 of the act makes it clear that breaches under it will not be civilly actionable and they will be sued under s.2 of the act.
106
what was the effect of the Enterprise and Regulatory Reform Act 2013?
his amends s.47(2) of the Health an safety at work act 1974 which provided that a breach of a duty arising under these regulations would be civilly actionable unless the regulations provide otherwise and replaced it with the that of: breach of duty under health and safety regulations will not be civilly actionable unless those regulations expressly provide that it should be.
107
Which one rule under the Enterprise and regulatory reform act 2013 goes unaffected?
Management of Health and Safety at Work Regulations 1999. This states that an employer may be sued if an accident at work is attributable to an employer’s failure to implement a suitable and sufficient risk assessment.
108
what is meant by vicarious liability?
Liability is said to be ‘vicarious’ when one person is held liable for wrongs committed by another. Vicarious liability is, therefore, not a tort or a wrong in itself but a way in which liability may be imposed: a person may be directly liable for their own torts or vicariously liable for torts committed by others.
particularly important in EL (commonly referred to as 'master and servant'/ employee/employee
109
why is liability under EL vicarious to the employer and the employee is not directly liable?
he employer (a firm or corporation in most cases) is much more likely to have the financial means to pay the claim than the individual employee. Furthermore, the employer is likely to have insurance cover for accidents of this sort. In the case of injury to an employee, insurance is (in most cases) compulsory under the Employers’ Liability (Compulsory Insurance) Act 1969.
110
The fact that EL is vicarious to the employer and independent contractor defends where not recognised for vicarious liability claims was put forward by which court?
The court of appeal
111
What was found in the case of Barclays Bank V. various claims:
Substituting tortfeasor (or wrongdoer) for employee, the courts have been able to establish a relationship akin to employment for independent contractors, and therefore find vicarious liability. Although the second stage of the test was not appealed, the Court of Appeal reiterated that the ‘medical examinations were sufficiently closely connected with the relationship between [the independently contracted doctor] and [Barclays]. They were the whole purpose of that relationship’.
112
What 2 points did the high court apply in Cox V. ministry of justice 2016 under Barclays Bank V. various claims?
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?
113
What was the 5 stage criteria which the courts where satisfied in in the case of Catholic Child Welfare Society and Others v. Various claimants and Others (2012)) ( vicarious liability and why this falls on the employer)
1. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability.
2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer.
3. The employee’s activity is likely to be part of the business activity of the employer.
4. The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee.
5. The employee will, to a greater or lesser degree, have been under the control of the employer.
114
What was the purpose of the Occupiers Liability Act 1957?
(the old act)
This act was used to simplify the old common law rules.
= A common duty of care is owed to all visitors present on the land of another, that is all persons who are not trespassers..
115
What is the 'common duty of care'?
"A duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there" .
- The same as the duty of care which is imposed by the law of negligence.
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What did the case of 'British railways Board V. Herrington (1972)' find regarding trespassers?
British rail was found liable when a child trespasser, in an area where children were known to play, climbed through the gap in the fence and was severely injured. when coming into contact with the live electrified rail.
The house of lords for the first time, held that occupiers owed a duty of care of 'common humanity' to trespassers.
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What act highlights the principals found in the Herrington case?
Occupiers Liability Act 1984
