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A Level Law > Paper 2 Tort > Flashcards

Paper 2 Tort Flashcards

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1
Q

What is the burden of proof

A

On the balance of probibilities

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2
Q

How is negligence defined

A

Blyth v Birmingham ‘failing to do something or doing something the reasonable person would not do’

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3
Q

What is duty of care?

A 
Donogue v Stevenson Neighbour test
Caparo v Dickman
Harm forseseeable- Kent v Griffiths 
Proximity- Bourhill v Young, Mcloughlin
Fair, just and reasonable Hill v Chief
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4
Q

Breach of duty

A 
Bolam reasonable person, man on the clapham omnibus
Maurice
1. Competent professional
2. Body of opinion
Mullin- Age
Nettleship- Learner
Rick factors
Special characteristics Paris v Stepney
Size of risk Bourhill v Young, Haley
Appropriate precautions Latimer
Unknown Roe
Public benefit Day
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5
Q

Damage

A

Causation But For Barnett v Chelsea
Intervening remoteness of damage Wagon Mound
Foreseeable- Hughs, Bradford
Egg Shell Rule Leech Brain
Res Ispa ‘the thing speaks for itself’
St Katharine Docks
C has to show D was in control and accident would not have occured if not for negligence

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6
Q

Defences- contributory negligence

A

Law Reform Act 1945
Sayers 25% way tried to escape
Jayes 100% took guard off

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7
Q

Defences- Consent volenti

A

Stermer- understood risk
Smith- voluntarily undertaken
Hayes- no consent public duty
Sidway- not all risks need to be explained medical

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8
Q

What is an occupier and premises

A

Wheat v Lacon can be more than one
Harris v Birkenhead Court decided council had control
Bailey v Armes control over means of access not sufficient to make defendants liable

Premises fixed or moveable structure Wheeler even a ladder premises

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9
Q

Lawful Visitor 1957

A

S2(1) common duty of care

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10
Q

Adult visitors 1957

A

s2(2) ‘reasonably safe in using the premises for purposes invited there’
Laverton CoA decided shop owners took reasonable precautions
Dean slipping an everyday occurrence and not foreseeable

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11
Q

Liability to children 1957

A

S2(3) ‘must be prepared for children to be less careful’
Glasgow council should be aware berries are alluring
Phipps council not liable because parents have a responsibility
Jolly v Sutton not necessary to foresee specific outcome

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12
Q

Liability to people carrying out trade 1957

A

S2(3)B ‘a person in exercise of their calling will appreciate ordinary risks’
Roles v Nathan occupier not liable where tradesman fails to guard against risks they are expected to know of
Haseldine work was given to a specialist hired must be competent Bottomley
Occupier must check work is done properly Woodward

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13
Q

Defences to claim under 57 Act

A

warning notices
Rae deep pit, warning notice alone not enough
Staples dangers of wet algae on high wall obvious, no warning notice necessary

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14
Q

Liability to trespassers 1984

A

traditionally no duty other than to not deliberately inflict injury Addie v Dumbreck
HoL Practice Statement introduce duty of ‘common humanity’ Herrington

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15
Q

When will the occupier owe a duty 1984

A

S3(1)
aware of danger and have reasonable grounds it exists
reasonable grounds to believe others in vicinity
risk is one where the occupier may reasonably be expected to offer protection

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16
Q

Cases involving adults 1984

A

Ratcliff occupier not required to warn of obvious dangers
Folkstone occupier no duty, did not expect trespasser to jump in the harbour at midnight
Foster despite danger, could not have anticipated a trespasser in the vicinity
Rhind occupier not liable if don’t know of danger

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17
Q

Cases involving children 1984

A

Coventry since child appreciated danger, no danger due to state of property
Baldacchinho injuries did not result from the state of the premises

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18
Q

Defences 1984

A

consent, contributory negligence

warning notice Westwood eventhough door should’ve been locked, warning notice sufficient

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19
Q

What is Private Nuisance?

A

a tort claim where use or enjoyment of property affected by unreasonable behaviour of a neighbour

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20
Q

What are the 2 main types of private nuisance?

A

loss of amenity nuisance and material damage nuisance

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21
Q

What does the claimant require in private nuisance?

A

interest in the land, unlawful interference, with the use or enjoyment, damage must be the type that is foreseeable

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22
Q

Who can bring an action in private nuisance?

A

a person with an interest in the land, owner or tenant, not family members Malone v Laskey. Hunter v Canary interference must be sufficient with no solution. Sedleigh Lord Wright ‘a balance has to be maintained between the right of an occupier to do what he likes with the land and the right of the neighbour to not be interfered’. can be liable where nuisance is a result of natural causes where aware and fails to deal with Leaky v National Trust, Anthony v Coal

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23
Q

Unlawful in private nuisance

A

unlawful if behaviour is unreasonable, doesn’t need to be illegal Sedleigh

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24
Q

Factor of reasonableness Locality

A

Sturges v Brigman ‘what would be a nuisance in Belgrave Square would not be so in Bermondsey’ Bamford v Turner cocks crowing in the morning more of a nuisance in a residential area

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25
Q

Factors of reasonableness Duration of interference

A

Crown v Kimbolton firework display lasting 20 minutes causing fire actionable nuisance despite being short term. De Keysers for entitlement to an action in negligence need not be permanent

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26
Q

Factors of reasonableness- Sensitivity of the claimant

A

Robinson if it can be shown claimant is particularly sensitive, action may not be nuisance

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27
Q

Factors of reasonableness- Malice

A

Hollywood deliberate, unreasonable acts are nuisance. Christie v Davie injunction granted against neighbour due to deliberate malicious behaviour as revenge

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28
Q

Factors of reasonableness- Social benefit

A

Miller v Jackson conflicting balance of interests, court decided community use of cricket ground overweighed use of private garden

29
Q

Damage suffered must be foreseeable (private nuisance)

A

Cambridge Water v Eastern

no liability in private nuisance for personal injury Hunter v Canary

30
Q

Defences to private nuisance

A

Prescription- at least 20 years no complaint- Sturges v Bridgman defence of prescriptive right to continue failed as the nuisance began when the consulting room was built. Statutory authority Allen v Gulf oil c brought an action in nuisance for smell, noise and vibration of an oil refinery, d’s act constructing authorised by act of parliament. Marciz v Thames Water through the failures of the defendant’s the claimant’s home became severely flooded, the Water Industry Act which governed the conduct of the defendants provided appropriate remedies and procedures and excluded a private action in nuisance

31
Q

Remedies in Private Nuisance

A

Damages and Injunction COVENTRY V LAWRENCE an injunction is the default for a nuisance case
In deciding whether to use damages instead of injunction, the SHELFER TEST
Is the injury to the claimant’s right small
Can the injury be estimated in money
Would it be oppressive to grant an injunction
Damages used in TETLEY V CHITTY

32
Q

What is Rylands v Fletcher

A

where a person’s property is destroyed by the escape of non-naturally stored material onto adjoining property

33
Q

What are the 4 elements that must be proved for a successful claim in rylands v fletcher

A
  1. The bringing onto the land an accumulation or storage
  2. Of a thing likely to cause mischief if it escapes
  3. Which amounts to non-natural use of the land
  4. Which does escape and cause reasonably foreseeable damage to adjoining property
34
Q

What are the facts of rylands v fletcher?

A

the bringing onto land and storage of water, large volume could do great damage if it escapes, storage amounted to non-natural use of land, when escaped caused considerable damage to the claimant
READ V LYONS a defendant to an action will either be an owner or occupier

35
Q

The brining onto land

A

GILES V WALKER no liability when weeds spread onto neighbouring land as they naturally grew there
ELLISON V MINISTRY OF DEFENCE rainwater that accumulated naturally on an airfield didn’t lead to liability when it escaped and caused flooding on neighbouring land

36
Q

The thing likely to do mischief if it escapes

A

this is a test of foreseeability. It is not the escape that is foreseeable but the damage HALE V JENNINGS occupied chair from chair-o-plane, owner of ride liable as risk of injury was foreseeable if chair came loose

37
Q

Non-natural use of land

A

RICKARDS V LOTHIAN an
person blocked the plugs of D’s premises causing damage to the property below, D not liable as use of water in domestic pipes not non natural use of land
CAMBRIDGE V EASTON storage of chemicals in factory non-natural

38
Q

Thing must escape and cause reasonable damage

A

READ V LYONS an escape means from a place a defendants has occupation or control to a place outside it
LMS V STYRENE storage of flammable items, recognisable risk
STANNARD tyres not in itself flammable but fire risk that if there is a fire would ignite

39
Q

Defences for Rylands v Fletcher

A

Consent, act of stranger PERRY, act of god NICHOLS

40
Q

Remedies for Rylands v Fletcher

A

TRANSCO V STOCKPORT damage to property must be proved. personal injury not within the scope of claim tort

41
Q

What is an Order in Council Delegated Legislation?

A

(made by privy council)
Can be made on a wide range of matters especially: transferring responsibility between government departments, bringing actions into force such as emergencies- 9/11

42
Q

What are Statutory Instruments Delegated Legislation?

A

made by government minister)
Given authority to make regulations for areas under their particular responsibility, there are 15 departments, over 3000 SI made yearly

43
Q

What is By-Law Delegated Legislation?

A

By-Law (made by local authorities)

Made by local authorities covering their jurisdiction

44
Q

What are controls by parliament delegated legislation?

A

Checks on the enabling act- sets out limits
amendment/ repeal
Affirmative (positive endorsement of both houses) and negative resolution (assumes the SI is acceptable, automatic if ) and joint select committee SIs
The Legislative and Regulatory Reform Act 2006- sets out procedure of making SIs which are aimed to repeal an existing law in order to remove a burden

45
Q

What are judicial controls on delegated legislation?

A

Judicial Review
Procedural Ultra Vires (not followed procedure in enabling act Ayelsbury)
Substantive Ultra Vires (succeeded powers given by enabling act)
Unreasonable

46
Q

What are the reasons for Delegated Legislation?

A

Detailed law
Expert Knowledge
Local Knowledge
Consultation

47
Q

What are advantages of Delegated Legislation?

A 
Saves Parliamentary time
Access to technical expertise
Allows for consultation
Allows for quick law making
Easy to amend
48
Q

What are disadvantages of Delegated Legislation?

A

Undemocratic
Sub-delegation
Large volume and lack of publicity
Difficult wording

49
Q

What is Precedent?

A

Refers to the source of law where past decisions of the judges create law for future judges to follow
Once there has been a decision on point of law, this becomes precedent for future cases
Original Precedent- if point of law has never been decided
Binding Precedent- earlier case and must be followed
Persuasive Precedent- not binding but may be considered

50
Q

What are the hierarchy of the courts

A

Supreme–Court of Appeal–Divisional Courts–County Court–Magistrates

51
Q

Courts and Precedent

A

Appellate Courts
Supreme Court: most senior national court, decisions bind all below, not bound by its own Colchester Estates
Court of Appeal: bound to follow supreme court, must follow own decisions
Divisional Court: bound by decisions of the Supreme and of Appeal and their own
Inferior Courts
Bound to follow above, unlikely a decision of an inferior court can create precedent

52
Q

The Practice Statement

A

The Practice Statement 1966
Lord Chancellor in London Street Tramways
HoL to change law if they thought earlier cases were wrongly decided
Addie v Dumbreck trespassers cannot claim for injury, overruled Herrington

53
Q

Judgements and Precedent

A

Judgements
Stare Decisis (stand by decision- encourages fairness and consistency)
Ratio Decidendi (reason for decision- Sir Cross sometimes hard to distinguish)
Obiter Dicta (rest of judgement- persuasive not binding)
Law Reporting
Follow-Overrule-Distinguish

54
Q

Advantages of precedent

A 
Certainty
Consistency and Fairness
Precision
Flexibility
Time solving
55
Q

Disadvantages of precedent

A

Rigidity
Complex
Illogical distinctions
Slowness of Growth

56
Q

What is the county court

A

200
Disputes over equitable matters such as trusts up to £350,000
Heard by circuit or district judge

57
Q

How are cases started

A

Pre-Action Protocol

Parties give required info to each other, if fail to do so may be liable for certain costs

58
Q

Which court to use

A

Small Claims track- £10k or less. Personal injury £1k or less
County Court- £100k or less. Personal injury £50k or less
High Court- over £100k. Personal injury over £50k

59
Q

Small claims track

A

Usually heard in private but can be heard in an ordinary court, procedure allows District Judge to be flexible, cannot claim cost of lawyer, expected to represent themselves

60
Q

Fast track cases

A

Pre-trial matters, heard within 30 weeks, heard by Circuit Judge, 1 expert witness allowed

61
Q

Multi track cases

A

Deals with cases to suit their individual needs
In excess of £25k
Not subject to an exact limit

62
Q

What is the Woolf reform?

A

improvements of cooperation between parties’ lawyers in mitigation and improving the number of cases that need to settle

63
Q

What are advantages of the courts

A

Fair
Conducted by a legal expert
Enforcement easier

64
Q

What are disadvantages of the courts

A

Time consuming
Costly
Complicated
Uncertainty

65
Q

What are tribunals

A

Forum instead of court, enforce rights which have been granted through social and welfare legislation
Set up by the welfare state, reformed under Tribunal Act 2007 creating a unified structure of first tier to hear cases at first instance heard by tribunal judge deals with 600k cases annually. Upper tribunal divided into 4 chambers with further route to Court of Appeal

66
Q

What is advantage of tribunal

A

Set up to prevent overloading of courts with cases of social and welfare rights
For the applicant it is cheap, quick, by experts and informal

67
Q

What are disadvantages of tribunal

A

Lack of funding
More formal than ADR
Delays

68
Q

What is negotiation

A

Private, quick, cheap
If not resolved can involve solicitor
Many cases that are not resolved quickly end up in an agreed settlement

69
Q

What is mediation

A

A neutral mediator helps the party reach a compromise which is only suitable if there is hope the parties can cooperate
Must attend meetings before procedure, parties are in control of mediation runnings

A Level Law (2 decks)

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