paper 2 - tort Flashcards
describe pure economic loss
claimant suffers PEL following a negligent act theres more demanding principles to apply to prevent ‘floodgates of litigation’.
you have to establish if the harm is economic loss.
PEL is loss thats purely financial or economic. its a monetary loss (e.g. loss of profits while business cant operate) and if the loss isnt connected to any other loss its PEL.
general principle is that c cant claim for PEL as a result of a negligent act of another. duty of care in negligence doesnt extend to PEL (sparton steel v Martin and co 1973, Weller v foot mouth diseease research institute 1966). can claim if negligent misstatement.
describe pure economic loss - negligent misstatement
this is when something wrong is said that c relies on (hedley byrne v Heller).
if theres is a negligent misstatement theres a 2 part test.
1. was the statement made negligently (incorrect of fraudulently)
2. was there a special relationship.
describe pure economic loss - 2. was there a special relationship
for special relationship (like in caparo v dickman 1990) you have to show 3 elements.
1. d must have special skill/ expertise. this can be a recognised qualification or the d presents themself as an expert. they dont have to be a professional.
2. the c must have relied on the advice and it must be reasonably foreseeable for the c to rely on the advice given. it requires a sufficent degree of proximity between parties - c must show they relied on the advice and had a loss from it.
3. advice must be communicated directly to c, so not through 3rd party. d must know purpose of advice and that its likely the c will rely on the advuce without seeking any further independent advice.
if all the conditions are met and a loss happens the loss can be claimed from the d. a defence is any disclaimer like in ‘hedley byrne v heller’.
explain vicarious liability - definition
vicarious liability isnt a tort in and of itself. its a way of getting someone else (an employer) to pay compensation on behalf of the d (employee).
explain vicarious liability - tortfeasor
first need a ‘tortfeasor’ which is the person who committed the tort (wrongdoing).
to see if the tortfeasor is an employee theres some tests:
1. control test so does employer have control over employees actions, can they dictate how the employee does their job (yewen v Noakes).
2. integration test: is employee an integral part of the business or just an accessory (Stevenson v McDonald).
3. multiple test: consider a variety of factors (tax, ownership of equipment, uniform and logo) (ready mixed concrete v minister of pesnions and national insurance).
but we only apply the modern test of ‘is there a relationship akin to employment’, so does it look like employment (Barclays bank v various claimant).
explain vicarious liability - acting in course of employment
need to decide if tortfeasor acting in course of employment. decided case by case and needs ‘close connection’ between nature of role and actions taken by tortfeasor (Mohamud v Morrisons supermarket).
you need to consider if tortfeasor doing their job but doing it badly (century insurance v NI trasnport board) making the employer liable.
‘authorised act’ but in a way thats prohibited so doing job in way theyve been told not to (rose v plenty) making employer liable.
or doing something unconnected with their job but on company time/ premises (shelbourne v cruk) where employer not liable.
explain vicarious liability - crime thats a tort
need employee to comit a crime thats also a tort.
if crimes closely connected to job then they are liable (lister v hesley Hall).
if crime not conencted to job but occurs due to info/ access provided by their role then they arent liable (Morrisons v various claimants).
was the employee on a ‘frolic of their own’ so doing something outside of company time/ place of employment (hilton v thomas Burton).
explain vicarious liability - remedies
remedies are usually damages.
employee primarily responsible to pay compensation and his gets passed to an employer.
victim gets one payment not double. employer can force tortfeasor to pay back any and all the money theyve had to pay out (civil liability (contribution) act 1978). like deducting wages if they are stil working for them. theres a problme with reocuping if the tortfeasor has been sacked.
explain rylands v fletcher - definition
explain rylands v fletcher - 1. escape
explain rylands v fletcher - 2. accumulation
explain rylands v fletcher - 3. non natural use - dangerous
explain rylands v fletcher - 4. foreseeability
explain rylands v fletcher - defences
explain private nuisance - definition
