SectionA Questions For Tort Flashcards
Identify 1 common law tort other than negligence
(1)
June 15
Examples include nuisance or trespass or defamation (libel/slander)
June 14
The law of tort establishes rules of conduct which are normative. What is
meant by this statement? (1)
Normative rules of conduct describe a standard of behaviour which everyone should observe.
Jan 16
Describe any 2 functions of tort (2)
- establishing normative rules of conduct
- providing compensation for the victim
- retribution against tortfeasor
Identify two common law torts.
1
Negligence
Nuisance
Trespass
Defamation (libel and slander)
June 14
Give an example of a statutory tort
;1)
- Occupiers’ Liability Act 1957 or 1984
- Consumer Protection Act 1987;
- Animals Act 1971.
Describe any 2 functions of the law of tort
2
*Establishing rules of conduct which are normative (everyone should observe them);
*Providing compensation for the victim;
*Ensuring retribution against the tortfeasor.
June14
The law of tort establishes rules of conduct which are normative. What is
meant by this statement?
Normative rules of conduct describe a standard of behaviour which everyone should observe.
June 16
Identify 2 common law torts (2)
Negligence
Nuisance
Trespass
Rylands v Fletcher
What is meant by proximity when establishing a duty of care?
1
Proximity is any form of relationship between the victim and the tortfeasor and/or physical closeness.
Cases- Watson v bbbc
Topp v London country bus
Mc Cloughlin v Obrien (relationship)
Kent v Griffiths
Jan 14
Define tort
1
A tort is a civil wrong
June 14
State four factors taken into account when assessing the standard of care expected of a defendant
(4)
1.The magnitude of risk test establishes that the greater the risk, the greater the precautions which should be taken. Bolton v Stone (1951). And forseeability (roe v moh) -2. the age of the D - Mullin v Richards -3. the vulnerability of the claimant- Paris v Stepney 1951 4. the importance of the defendant’s objective- Watt v Herts CC 1954; and 5. the cost of avoiding harm Latimer v AEC 1953
Jan 15
Define negligence
2
negligence can be defined as the breach of a legal duty to take care, causing damage to the claimant.
OR
as the failure to act as a reasonable person would have acted in such circumstances.
a relevant case is Blyth v Birmingham Waterworks Co. 1856
Explain the material increase in risk test which is used to establish causation in fact
June 16
Used where it is scientifically impossible to determine who is at fault
Did D materially increase the risk of C sustaining damage? (Mc Ghee v National Coal Board 1973)
Explain the reasonable person test
(4)
Jan 15
The reasonable person test is the omission to do what a reasonable person would do or doing something he would not.
The test is objective: the defendant is judged against the standard of the reasonable person;
case:Blyth v Birmingham Waterworks Co (1856);
The defendant should have the knowledge etc of a reasonable person at time of the event -Roe v MoH (1954).
Jan 15
Explain the neighbour test
2
A person must take reasonable care to avoid acts/omissions likely to harm a neighbour, who is someone so closely/directly affected that one ought reasonably to have them in contemplation when directing one’s mind to act/omission in question
. case : Donoghue v Stevenson (1932).
Explain what is meant by a primary victim in cases of psychiatric harm
(2)
A primary victim in cases of psychiatric harm is someone directly involved in the accident or within the zone of physical danger (in fear for their safety).
Page v Smith 1995
Explain the test for establishing causation in law
(3)
June 15
When establishing causation in law the relevant test is one of remoteness. The type of injury must be foreseeable, and must not be too remote.
Case:The Wagon Mound (No.1) (1961).
Identify and explain 1testfor establishing causation in fact
(2)
Jan 14
The two tests are the ‘but for’ test as in Barnett v Chelsea and ; Kensington HMC (1969) - c would not have suffered the loss BUT FOR the Ds negligence
and the ‘material increase in risk test’ as in McGhee v NCB (1972)-defendant has made a material contribution to the risk that the claimant would suffer harm. (Multiple)
Also, quantification of risk (more probable than not)- (wilscher v Essex AHA)
Explain the thin skull rule
4
The thin-skull rule states that the defendant must take his victim as he finds him.
if due to some personal idiosyncrasy a claimant suffers more than
would be expected, the defendant will nevertheless be liable;
provided the type of injury was foreseeable.
A relevant case would be: Smith v Leech Brain (1962)and Lagden v O’Connor 2004 (impenunosity)
Identify the four tests set out in Alcock v Chief Constable of South
Yorkshire (1992) for deciding whether a secondary victim may claim damages for nervous shock.
(4)
Jan 15
Must show that psych injury was reasonably forseeanle to a person of reasonable fortitude
Def of secondary victim first (someone who, when witnessing an accident, suffers injury consequential upon the injury, or fear of injury, to a primary victim.)
Relationship of love and affection between claimant and primary victim;
Claimant must have been physically proximate to accident or its
aftermath;
Claimant must see or hear the event or its immediate aftermath with own
senses;
Claimant must suffer sudden shock.
Explain the ‘magnitude of risk’ test which is used to establish whether a duty of care has been breached.
(2)
June 16
A factor that affects the forseeability of risk is the likelihood of its occurrence
The greater the chance of an accident from Ds actions, the greater care he should take
Bolton v Stone 1951 and Hilder v Portland cement 1961
Explain whether, in mesothelioma cases, a claimant may recover damages
from more than one employer.
(2)
Jan15
If each employer has materially increased the risk of contracting mesothelioma the claimant can claim full damages from any one employer or all of them (i.e. liability is joint & several)
A relevant case is Fairchild v Glenhaven Funeral Services (2002).
This point is now encapsulated in s3 Compensation Act 2006.
Explain any three policy considerations which have led the courts to restrict
claims for psychiatric injury.
(3)
The fear of fraudulent claims;
The difficulty in proving a causal connection between the negligent act and the harm;
The danger of “opening the floodgates”.
June 14
Identify and explain the test for establishing factual causation
(3)
‘but for’ test- it asks whether the damage would have occurred but for the defendant’s actions. A relevant case would be Barnett v Chelsea & Kensington HMC (1969). Or holt v edge 2007
First part of causation!!!
An answer based on the material increase in risk test would also have received credit.
June 14
The police fail to arrest a suspected criminal who later commits another crime. Explain whether the police may then be liable in negligence.
(3)
Statutory bodies such as the police are not generally liable on public policy grounds or that it is not generally considered just and reasonable to hold such statutory bodies liable and that the police authority are unlikely to be held liable here. case- Hill v Chief Constable of West Yorkshire cc 1992.
However police immunity is not absolute -Osman v UK (1998).
Jan14
Caparo v Dickman (1990) established the ‘three-stage test’ as to whether a duty of care is owed in negligence.
Describe the stage of ‘reasonable foreseeability’.
(b) Give an example or a case which illustrates ‘foreseeability’. (1)
The test: 1. Would a reasonable person in Ds position have reasonably 4seen that he might’ve injured/harmed
- That there was a relationship of proximity between the parties
- That it is fair, just and reasonable to impose a duty of care on public policy grounds
Reasonable foreseeability means that a reasonable person in the defendant’s position should reasonably have foreseen that the claimant might be injured. C must establish that harm was reasonably foreseeable
(b)For example, the manufacturer of ginger beer should have foreseen that the drink might have been consumed by someone who had not actually bought the drink. (Donoghue v Stevenson (1932) ✅
Smith v Littlewoods 1987 ❎
Identify and explain any two of the four tests set out in the case of Alcock and ; Others v Chief Constable of South Yorkshire (1991) for establishing whether a secondary victim may be able to claim for psychiatric harm
(4)
Jan 14
Show that psych injury was reasonably foreseeable to a person of reasonable fortitude
Defintion of a secondary victim first then(someone who, when witnessing an accident, suffers injury consequential upon the injury, or fear of injury, to a primary victim.)
The four tests are:
i. Close relationship of love and affection;
e.g: rebuttable presumption between spouses or parent/child.
ii. Physical proximity;
e.g: must be at the scene of the accident or its aftermath.
iii. Mustseeorheartheeventoritsaftermathwithownsenses; e.g: not sufficient to be told about it/see it on TV.
iv. There must be sudden shock;
e.g: the result of a traumatic experience or event not slow realisation.
Describe the three stages of the test for establishing the existence of a
duty of care.
Established duty OR
Proximity (topp v London bus/ Watson v BBBC/ mc Cloughlin v Obrien
/Kent v Griffiths 2000)
Forseeability )smith v littlewoods )
Fair just and reasonable L and another v Reading BC and others 2007
Hill v CC of S Yorkshire
All under Caparo v Dickman 1990
The reasonable man test is the standard test for breach of duty.
Identify three other factors considered by the courts when determining a
breach of duty.
(3)
June 15
The Claimant’s age/vulnerability Paris v Stepney and Mullin v Richards
Special characteristics of the Defendant
The Defendant’s objective watt v Herts CC
The cost of avoiding harm Latimer v aec
Foreseeability of harm (roe v MoH)
Whether the defendant professes to have a particular skill (bolitho)
The likelihood of harm
The magnitude of risk (Bolton v Stone)
Describe what is meant by proximity when establishing whether a duty
(1 mark)
June14
Proximity is any form of relationship between the parties and or physical closeness
.
Watson v British Boxing Board of Control 2000/ topp v London bus/ Kent v Griffiths - time/space
Mc cloughlin v Obrien (proximity of relationship)
When deciding whether there has been a breach of duty of care, how does the social importance of the defendant’s objective influence the court?
(2)
Jan 14
An act likely to cause harm may be justified if Defendant is engaged in a socially desirable objective. Watt v Herts CC (1954)
Also, Compensation Act 2006 and the contents of S 1- court will look at whether imposing liability
would prevent a desirable activity taking place AND
whether it would discourage persons from undertaking functions in connection with a desirable activity
Explain the neighbour test
(3)
June 15
two aspects of neighbour test:
i. Reasonable care must be taken to avoid acts/omissions which could
reasonably be foreseen as likely to injure one’s neighbour.
ii. One’s neighbour is someone so closely and directly affected by the act that one ought reasonably to have them in contemplation when directing one’s mind to the act or omission called into question. Case:Donoghue v Stevenson (1932).
State what must be foreseen when establishing causation in law
(2)
Jan 14
When establishing the remoteness of harm test for causation in law, reasonable foreseeability requires the type of damage to be a foreseeable result of the breach of duty as in The Wagon Mound (No.1) (1961).
If this is established, the d will then be liable for all harm actually caused
When deciding whether to impose liability in negligence, which 2 factors should a court consider under s1 Compensation act 1996?(2)
When considering the wider implication of a decision to impose liability, court must consider-
Whether it would prevent a desirable activity taking place
AND
whether it would discourage persons from undertaking functions in connection with a desirable activity
Jan 16
What is meant by proximity when establishing a duty of care?(1)
Any form of relationship and/or physical closeness to the tortfeasor
Physical proximity
Proximity in time and space (topp and Watson)
Proximity in relationship (mccloughlin v Obrien)
June 16
Explain whether a person who acts negligently owes a duty of care to a rescuer(3)
A duty of care is owed to a rescuer provided a reasonable person in the rescuers situation would feel obliged to assist
Once a doc is established, a person who creates a dangerous situation is liable for all the FORSEEABLE consequences of his action
Case: Ward v Hopkins 1959
Jan 16
Explain what is meant by a primary victim in cases of psych harm?(2)
Someone directly involved in the accident or within the zone of physical danger (in fear of their safety)
Page v Smith 1995
Define a secondary victim
(2)
June 15
A secondary victim is not directly involved in an accident, but suffers as a result of what he sees or hears happening to others.
Alcock v CC of S Yorkshire
June 16
Describe the 3 stages of the test for establishing the existence of a duty of care (3)
Caparo v Dickman 1932
- was risk of injury/harm to he claimant reasonably FORSEEABLE ? Smith v Littlewoods
-was there sufficient proximity between the parties? Watson v BBBC 2000 (time/space)
Mc Cloughlin v Obrien (relationship)
- is it fair, just and reasonable on public policy grounds to impose a duty of care? L and another v reading borough council 2007
Jan 16
Explain any 2 policy considerations which have led the courts to restrict claims for psych injury?(2)
- fear of fraudulent claim
- floodgates
- difficulty in proving a causal connection between the negligent act and the harm
Jan 16
Identify any 2 factors that the courts use to determine the standard of care in a negligence case? (4)
- cost of avoiding the harm
Latimer v aec - age/vulnerability
mullin v Richards (age of d)
Paris v Stepney(vuln of c - seriousness of injury
-social value of Ds act
watt v Herts cc (socially desirable objective)
June 16
Explain the ‘magnitude of risk’test which is used to establish whether a duty of care has been breached (2)
The greater the risk, the greater the standard of care required.
Relevant cases-
Bolton v Stone 1951
Hilder v Associated Portland Cement Manufacturers ltd 1961
Jan 16
Explain the thin skull rule?(4)
The defendant must take his victim as he finds him.
If due to some personal characteristic a claimant suffers more than would be expected the defendant will be liable for all the harm as long as the type of injury was FORSEEABLE
Case- Smith v Leech Brain 1962
Lagden v o Connor 2004
June 16
Explain the ‘material increase in risk’test which is used to establish causation in fact(3)
This applies where there are multiple causes of harm.
The defendant is liable if he made a material contribution to the risk of harm to the claimant
Mc Ghee v NCB 1972
Jan 14
Define vicarious liability.
Explain what must be demonstrated in order to establish an employer’s vicarious liability for the wrongful acts of an employee.
Vicarious liability is the liability imposed on one person for the wrongful acts of another.
To establish an employer’s liability for the wrongful acts of an employee it must be established that a tort has been committed, that an employer- employee relationship exists and that the employee was acting in course of employment.
Identify any two factors that the courts use to determine the standard of care in a negligence claim.
(2)
The cost of avoiding the harm; Latimer v aec
The claimant’s age/vulnerability; Mullin v Richards and Paris v Stepney
The seriousness of injury;
The social value of defendant’s act watt v Herts cc
June 16
Explain whether a religious organisation may be held vicariously liable for the wrongdoings of a priest (3)
May be liable if:
The priests relationship with he organisation is akin to employment AND the act is closely related to the priests role within the organisation.(lester v hesley hall)
Relevant cases: JGE v Trustees of the Portsmouth RC Diocesan Trust - akin!!!
Catholic Child Welfare Sociery b Various Claimants (FC) 2012
Explain who will be liable to pay damages if vicarious liability is established
(2)
An employer will be liable for the employee’s wrongful act. A good answer would have continued to state that the employee will also remain liable.
However, as vicarious liability does not only apply in situations of employment suitable alternative answers would also have gained credit.
Hilton v Thomas burton 1961
June 14
Identify and explain the original test for deciding whether a worker is an employee
2
It is called the control test and it considers the degree of control exercised over a worker.
Leading case is Yewens v Noakes 1880
June 16
Identify 3 defences to a claim of negligence (3)
Consent - volenti non fit injura- common law
Contributory negligence- Law Reform (cont neg)act 1945
Ex turpi causa non oritur actio- common law
Limitation
Limitation act 1980
Jan 16
Identify who will be liable to pay damages if vicarious liability is established?(2)
An employer will be liable for his employees wrongful act. The employee will also remain liable.
Hilton v Thomas burton 1961
Jan 14
Give one example or case to illustrate the defence of consent.
(1)
I.e. The fact that spectators at sporting events are deemed to consent to normal risks as in Murray v Haringay Arena (1951).❎
Stermer v Lawson 1977 ✅- must be KNOWLEDGE of the precise risk involved
Explain the effect of contributory negligence
(2)
Jan 15
Contributory negligence reduces the amount of damages payable by a defendant as the claimant is partly responsible for the harm.
The defence is contained in The Law Reform (Contributory Negligence) Act 1945.
Davies v Swan- dangerous position
Froom v butcher - seatbelt
Jan 16
Identify the limitation periods in a claim for negligence (2)
Where there is a claim for PI?
Where there is no element of PI?
3 years
6 years
Limitation act 1980
Explain the defence of ex turpi causa.
(2)
June15
The defence of ex turpi causa means that no legal action can arise from a blameworthy cause.
Relevant cases would be Clunis v Camden and Islington Health Authority (1998) and Gray v Thames Trains Ltd and another (2009)- inextricable link test
June 14
Identify the defence based on an illegal act
(1)
The defence evidenced by the case of Clunis 1998 is ex turpi causa (non oritur actio) or no legal action arises from a blameworthy cause.
June 16
Is the loss of future earnings classified as general or special damages (1)
General damages
Identify the limitation periods in a claim for negligence:
(a) where there is an element of personal injury; (1)
(b) where there is no element of personal injury.(1)
3 years
6years
Jan 16
Explain what is meant by special damages and give an example(3)
Special damages are quantifiable financial losses up to the date of trial.
For example, loss of earnings up to trial or medical expenses
Jan14
Give a example of general damages
1
Any example of general damages could have been given such as
pain and suffering, loss of amenity,
mental distress,
future loss of earnings
or the cost of future care.
To which category of damage do the following belong?
Future pecuniary loss
Loss of amenity
Both are general
For big questions about liability go through everything
I.e.- for VL do doc and breach as well
For liability do doc, breach and causation and look at remedies
For defences say everything you can think of!!!
State what is meant by special damages and give one example
(2)
Jan 15
Special damages are damages which are quantifiable up to date of trial. An example could have included any one of the following:
Transport costs to and from hospital;
Cost of private medical treatment;
Loss of net earnings to date of trial;
Cost of repairing/replacing damaged items etc.
State the purpose of damages in negligence
(1)
June 15
The purpose of damages in negligence is to put the Claimant in the position he or she would have been in had the tort not occurred.
The purpose of damages in tort is restitutio in integrum or to put the claimant in the position he/she would have been in if the negligence had not occurred.
Robinson v harman
Forseeability in Caparo
How to word the test
Would a reasonable person in the Ds position have reasonably foreseen that the C might be harmed/injured?
Identify 3 defences to a claim of negligence
3
Ex turpi causa complete (case law)
Volenti non fit injura -complete (case law)
Limitation- complete (Limitation Act 1980)
Contributory negligence - partial/ statutory (Law Reform(contributory negligence)Act 1945
Is the loss of future earnings classified as general or special damages?
(1)
General damages
Explain what is meant by special damages and give an example
(3)
Special damages are quantifiable financial losses up to the date of trial.
A relevant example could have been loss of earnings to the date of the trial.
Define vicarious liability
(2)
Jan 15
Vicarious liability is the liability of one party for the wrongful acts of another but the original tortfeasor still remains liable.
A relevant case is Hilton v Thomas Burton (1961).
Explain the multiple test for establishing whether a person is an employee
(3)
June15
The multiple test, used to consider someone’s employment status, considers all the circs in which a person works such as the freedom to choose hours of work or holidays or the ability to delegate work, all of which imply self-employed status or the payment of P.A.Y.E. or the requirement to obey reasonable orders, both of which imply employed status.
case Ready Mixed Concrete (SE) v Ministry of Pensions (1968).
And hall v lorimer 1990
