Part 1c - Law of Torts

Question 1

What is a tort?

Answer 1

• “Breach of a duty primarily fixed by law”
• “A civil wrong in which a remedy, usually compensation is available to the wronged person in civil courts.”
• They would only receive this remedy given there are elements of culpability (deserving blame):
  generally through intentions or negligence

Question 2

Requirements for tort of negligence: (3)

Answer 2

1. The defendant owed the claimant a duty of care.
2. The defendant broke that duty of care.
3. The claimant suffered loss or damage as a result of the breach of duty.

Question 3

Describe the Caparo test (3) + Cases:

Answer 3

1. Was the harm or loss caused reasonably foreseeable?
   a. Margereson v JW Roberts ltd
2. Was there a sufficient relationship of proximity between claimant and the defendant for a duty to be imposed?
   ○ Proximity = legal closeness.
   a. West Bromwich Albion Football Club Ltd v El-Safty
3. Fair, just and reasonable
   a. Hill v Chief Constable of West Yorkshire

Question 4

Special cases occur when: (3)

Answer 4

1. The damaged caused is pure economic loss.
2. The damage is psychiatric (rather than a physical) injury.
3. The damage was caused by a failure to act (liability or omissions)

Question 5

Pure economic loss + Case

Answer 5

• Financial damage suffered as the result of the negligent act of another party which is not accompanied by any physical damage to a person or property.
  ○ Recovery of pure economic loss is very unlikely and difficult.
  § Case: Well v Foot and Mouth research institute

Question 6

What determines a negligent misstatement within a duty of care? (4)

Answer 6

• Defendant knew the identity of the claimant.
• Advice was in connection with specific or particular type of transaction.
• It was reasonable for the claimant to rely on the misstatement without seeking independent advice
• Defendant could anticipate the claimant would rely on that statement

Question 7

Duty of Care v Omissions

Answer 7

• Duties of care are duties not to cause injury or damage to others.
  ○ They are NOT duties to actively help others
• No duty = No liability
• Tort law holds people liable for acts, not omissions.
  ○ Exceptions: The defendant has assumed responsibility for the other in some way (jobs).

Question 8

Standard of Care and what does a court consider? (5)

Answer 8

• Standard of care- objective test:
  ○ How would a reasonable person act in this situation? –> If the defendant does not act in a “reasonable” way from that professions perspective, it would be considered a breach of duty.
• Factors taken into consideration by the court:
  ○ The probability of harm being caused by the claimant–> More likely the harm, the more caution is required.
  ○ The potential seriousness of the harm
  ○ The precautions / costly
  ○ The value to society/usefulness of the attempted act
  ○ Higher skill = Higher standard of care

Question 9

How is causation proven? (2)

Answer 9

1. The evidence the claimant brings to court needs to clearly suggest that the defendant has breached his duty.
   ○ There must be a causal link between the breach of duty by the defendant and the damage suffered by the claimant.
   ○ Also the damage suffered by the claimant must not be too remote.
2. The defendant may rely on the doctrine of res ispa loquitur
   ○ This is where the situation speaks for itself

Question 10

Eggshell skull principle

Answer 10

The defendant in a personal injury case will be held responsible for the damaged caused as-is, even if the claimant has a pre-existing condition that made this injury worse.
If you think of a person having a skull made of eggshell’s, if someone punches him in the face and he dies, it would still be considered murder (eggshell or not).

Question 11

Defense’s in tort

Answer 11

1. Partial defense
2. Complete defense

Question 12

Complete defense

Answer 12

Volenti non fit injuria
If someone willingly places themselves in a position where they may harm themselves, they are not able to bring a claim against the other party in tort.

Question 13

Volenti non fit injuria

Answer 13

If someone willingly places themselves in a position where they may harm themselves, they are not able to bring a claim against the other party in tort.

Question 14

Partial defense

Answer 14

Contributory negligence: Failure of an injured party to act with reasonable caution, resulting as a contributory factor in the injury which they have suffered.

Question 15

Strict liability tort

Answer 15

Defendant is liable for the action regardless of their intention or mental state.
○ A defendant places another person in danger, even in the absence of negligence, simply because he is in possession of a dangerous product, animal or weapon
○ The claimant would not need to prove negligence

Question 16

Consumer right act

Answer 16

The CRA covers all unfair terms in consumer contracts and notices including exclusion clauses.

Question 17

Give the 4 circumstances to prove product liability:

Answer 17

1. The product contained a defect
2. The damage was caused by the defect
3. The claimant suffered damage
4. The defendant was either a producer, a marketer, an importer, or a supplier into the EU of the product.

Question 18

Vicarious liability

Answer 18

Where a person can be held strictly liable for tors committed by another person.
(People who sponsor maids in Dubai have vicarious liability for their actions).

Question 19

Law of Torts vs Criminal Law

Answer 19

Law of Torts: Providing a remedy for people who suffered harm.
Criminal law: Punishing the people for the wrongs they have committed.

Question 20

Law of Torts vs Contract Law (3)

Answer 20

1. Both are a part of civil law.
2. Law of torts: Obligations that are not mentioned in the contract, but are imposed upon persons by the law.
   This commonly results in filing for unliquidated damages.
3. Contract law: The obligations imposed in the contract have been voluntarily agreed to by the parties when entered into the contract.

Question 21

The Tort of Negligence (3)

Answer 21

Where persons negligently cause harm to others.
There are 3 elements to succeed in an action for negligence:
1. Defendant owed the claimant a duty of care.
2. The defendant breached that duty of care.
3. Reasonable foreseeable damage was caused by the breach of duty .

Question 22

Duty of care + Case

Answer 22

An individual requiring adherence to a standard of reasonable care is a legal obligation, when that individual performs any acts which could foreseeably harm others.
Case: Donoghue v Stevenson (1932); the “neighbor principle”, Robinson v Chief Constable of West Yorkshire Police (2018); Darnley v Croydon Health Services NHS Trust (2018)

Question 23

3 stage test for Duty of Care

Answer 23

1. The harm or loss caused was reasonably foreseeable.
2. There was a sufficient relationship or proximity between the claimant and the defendant
3. In all the circumstances is it fair, just, and reasonable that the law should impose a duty on the defendant?

Question 24

Floodgates argument

Answer 24

A legal principle where sometimes judges would restrict or limit the right to make claims for damages as this may result in the metaphorical “floodgates” opening.
This refers to restricting certain claims to avoid loads of similar claims being filed for people hungry for compensation
–> Even if the floodgate were to open ever-so-slightly, water would burst through the gates until it has balanced up.

Question 25

Pure economic loss with tort of negligence (4) + Case

Answer 25

A duty of care not to cause pure economic loss is only present when there is “a special relationship of proximity” between the claimant and defendant. There are 4 aspects that need to be present:
1. The defendant knew that the statement he made would be communicated to the claimant.
2. The advice the defendant gave is done in relation to a specific transaction.
3. The defendant knew that the claimant would rely on this statement.
4. If a statement is negligent and it results in physical injury, then a claimant will be entitled to recover damages for his loss or injury.
This is why in every investing video they always have to state: “This is not financial advice”
Case: White v Jones (1995)

Question 26

Disclaimer (of responsibility)

Answer 26

A disclaimer of responsibility by the defendant for any negligent statement may be sufficient to exclude the duty of care.
This disclaimer would be signed by the claimant determining the boundaries of where responsibility is allocated to.
Liabilities for causing death and injuries can never be excluded, other damages can be excluded if there is a reason to.

Question 27

Psychiatric Injury + Case

Answer 27

This is a form of personal injury that is more problematical to claim for than physical injury.
They have to consider floodgates of litigation, it is difficult to diagnose, and it may be hard to quantify the extent of compensation.
Case: Dulieu v White (1901)

Question 28

Secondary Victims

Answer 28

People who suffer a psychiatric illness as a result of witnessing an accident or ‘it’s immediate aftermath’.

Question 29

Guidelines to be considered a secondary victim (3)

Answer 29

1. Person must see primary victim injured.
2. A medically recognized psychiatric illness is suffered by the claimant as a result of the incident.
3. Come to the scene immediately afterward
   Given the person has close ties of love and affection for the victim of the accident.

Question 30

What proves a negligent misstatement within a duty of care (4) + 2 examples of negligent misstatements

Answer 30

1. Proximity
2. Specific transaction
3. Dependent on that statement
4. If statements negligent–> Compensation
   Examples:
   - Pure economic loss
   1 + 2 + 3 required = Special Relationship
   - Statement leading to injury