The Law of Torts Flashcards
What is a Tort
Breech of a Legal duty - there is no requirement for a contract to be in place.
If there is a contract and a Tort the claimant may choose which action to take.
How long after a breech can action be bought?
For Breech of Contract - 6 Years
For Torts not relating to personal injury - 6 Years
For Torts relating to personal injury - 3 years.
What conditions must be met for a Tort to exist?
Act or omission - Defendant must do something they legally should not or not do something they legally should.
Causation - must cause harm to the claimant as a direct consequence.
Legal Liability - Due to the damage the claimant must be owed a remedy.
How is negligence defined?
Breech of legal duty to take care which results in damage to another.
Three elements must be proved:
Defendant had a duty to take care not to cause harm.
It can be proved that the defendant did not take care.
The claimant suffered loss or damage as a result of the breech.
How do we know who a duty of care is owed to for a Tort?
Everyone owes a duty of care to their Neighbour, where neighbour is:
A person closely and directly affected by my acts that they reasonably should be considered when carrying out the act.
What losses are included under negligence?
Physical Losses - Damages to property or person
Financial Losses - loss of earnings act
Nervous Shock - Mental Trauma
How do we determine if a duty of care exists?
Four tests should be considered:
Could the defendant reasonably have foreseen the damage
is there sufficient closeness between the two parties
Is it fair for the courts to impose a duty of care between the two parties.
Is it against public policy to apply a duty of care.
How is it established if there was a breech?
Burden of proof is usually with the claimant unless:
Res Ipsa Loquiter (the facts speak for them selves) i.e. the damage is proof.
In this case the claimant must show this was under the control of the defendant
Burden of proof shifts to the defendant.
What is the standard of care owed?
The degree of care should be what could be expected from a reasonable man.
If the defendant possesses a particular skill - standard of care will relate to a normal expectation under that skill level.
NB - hindsight is irrelevent
How is causation identified?
Was the loss caused by something else.
Would the loss have occurred anyway?
What types of losses are normally recoverable?
Loss as a result of personal injury
Damage to property
Financial Loss directly connected to personal injury.
What is meant by Professional Advice & Negligence misstatement
A duty of care will exist when there is a special relationship:
Was the defendant in the business of giving professional advice
Was the advice given in a business context, not social.
Did/Should the defendant have known that the advice would be relayed upon.
What defences can be used against a claim for negligence?
Contributory Negligence - where claimant is partially responsible for their own injuries.
Volenti Non Fit injuria - Claimant has freely contented to the risk of loss or damage
Novus Actus Interveniens - something that ochrrs after the breech and ceases the defendants liability.
Exclusion Clauses - may fall under provisions in UCTA, can include “Act of God”.
What is passing off?
Where a business uses a name similar to another business.
Misleading persons in to believing it is the same business.
And causing actual damage to the business.
Remedy = restrain from trading under similar name/damages.
