Tort Flashcards
What is a trespass to land?
An unlawful direct interference with the claimant’s possession of land.
Trespass of land is actionable per se, what does this mean?
The claimant does not need to show that any actual damage or injury to the land - the fact the claimant’s right has been infringed is sufficient.
What must the relationship between the claimant and land in order to have a claim for trespass to land?
To bring an action for trespass to land, the claimant must have exclusive possession of the land.
What is the definition of land in respect of trespass of land?
Trespass protects land and buildings erected on the land. This includes subsoil and airspace.
What is direct interference for trespass of land?
Must be direct such as willingly driving over someone else’s land.
Would vibrations class as interference of land with trespass?
No
What is the element of intention of trespass of land?
Usually committed by an intentional act of interference however only the intention to enter the land. It is no defence to mistakenly think the land belonged to them.
What are the 2 defences to trespass of land?
Lawful entry
Necessity
What is the defence to trespass of land of lawful entry?
A defendant whose presence on the lane is lawful does not commit trespass.
What is the defence of necessity to trespass to land?
It is a defence to trespass in land for the defendant to show that it was necessary to enter onto the land to preserve life or property.
What are the 4 remedies for trespass to land?
- Damages
- Injunction
- Order of possession
- Self-Help
What is the trespass to land remedy of damages?
As trespass is actionable per se, any trespass to land allows the claimant to recover at least nominal damages. If actual loss has been suffered, damages may be awarded to reflect this.
What is the trespass to land remedy of an injunction?
An injunction can be granted to prohibit the defendant from continuing to trespass on the claimants land.
What is the trespass to land remedy of order for possession?
If a claimant who is entitled to possession of the land has been dispossessed by the defendant, the claimant may bring an action to prove their title to the land and obtain an order from the court to recover possession.
What is the trespass of land remedy of self-help?
A person who is entitled to possession of land may use reasonable force to remove a trespasser.
What are the 3 categories of trespass to a person?
- Battery
- Assault
- False Imprisonment
What is the offence of battery?
The intention of direct application of unlawful force to the claimants person.
What is the definition of unlawful force with relation to the offence of battery?
Any unwanted physical contact. Even if the contact is to help the claimant, it can be battery if they have not consented. (e.g. unwanted medical attention)
What is the exception to unlawful force in respect of the offence of battery?
Conduct which is generally acceptable in the ordinary conduct of everyday life does not amount to battery.
What is the definition of direct contact regarding the offence of battery?
The application of force must be direct. Would also include claimants clothing.
What is the definition of intention with regards to the offence of battery?
The act of applying force must be intentional. Involuntary action does not amount to battery. The defendant only needs to intend the application of force and not intend harm. Intention to apply force to one person maybe ‘transferred’ to another person.
What is the offence of assault?
The intention act which causes the claimant reasonably to apprehend the immediate and direct infliction of unlawful force on their person.
What is the definition intention regarding the offence of assault?
The defendant must have intended the claimant to apprehend the use of force.
What is the definition of apprehension of force regarding the offence of assault?
The claimant must be aware of the threat of force - no assault is committed if the claimant is unaware of the threat.
Does the claimant need to be scared for the offence of assault to occur?
No, just for them to apprehend the force.
Does force need to be applied for an offence of assault to occur?
No, there can still be an offence if the defendant does not actually carry out the threat of force.
To what extent does the apprehension of force need to be for an assault offence to occur?
If the claimant is aware that the defendant is not capable of carrying out the threat of force, there is no assault.
Can words alone amount to an offence of assault?
Yes, provided they amount to an immediate threat of force.
What is the offence of false imprisonment?
The unlawful constraint of the claimant’s freedom of movement from a particular place.
What is the definition of unlawful for the offence of false imprisonment?
Means the constraint must be unlawful. If the defendant can establish lawful grounds for detaining the claimant, this provides a defence.
What is the definition of intentional for the offence of false imprisonment?
The defendant’s actions in constraining the claimant’s freedom of movement must be intentional. However, the defendant need not intend the constraint to be unlawful.
What is the definition of the constraint on freedom of movement for an offence of false imprisonment?
Imprisonment refers to actions which deprive the claimant of free movement. There must be a complete constraint on the claimant’s freedom of movement in every direction. If the claimant can move in one direction or are given a reasonable means of escape, there is no false imprisonment.
What is the definition of awareness of constraint for the offence of false imprisonment?
It is not necessary that the claimant know of the constraint, because the purpose of the tort is to protect the claimant’s freedom of movement.
What are the 4 defences to trespass to a person?
- Consent
- Necessity
- Self-Defence
- Lawful arrest and lawful authority
What is the defence of consent regarding trespass to the person?
It is a defence to trespass to the person that the claimant consented to the contract.
What is the defence of consent to medical treatment?
An adult claimant who is of sound mind and full understanding is entitled to withhold consent to medical treatment even when it is necessary to save the claimant’s life.
What is implied consent regarding the defence of trespass of the person?
The physical contact that takes place during sport would be battery were it not for the fact that participants are taken to impliedly consent to the contact which occurs when the sport is played within the rules of the game.
What are the limits to the defence of consent to trespass to the person?
The claimant’s consent must not be induced by fraud, misrepresentation or duress.
What is the defence of necessity on trespass to the person?
May apply when the defendant acts reasonably to prevent harm.
What is the defence of self-defence to trespass on the person?
It is a defence to trespass for the defendant to prove they acted in self-defence. This can be when they are being or about to be attacked. The force used by the defendant in self-defence must be in proportion to the force used against them.
What is the defence of lawful arrest and lawful authority?
A person effecting the lawful arrest will have a defence to trespass to the person.
What remedies are available for trespass to the person?
If the claimant has not suffered any actual damage, the claimant may still recover an award of nominal damages. If actual damages have been suffered compensatory damages may be made to reflect this.
What is negligence?
A breach by the defendant of a legal duty to take care which causes damage to the claimant.
What are the elements to negligence?
- Defendant owed the claimant a duty of care
- Defendant breached that duty
- Defendant’s breach caused damage to the claimant
What are examples of established duties of care?
Drivers, doctors, teachers, parents, solicitors, employers and manufacturers of products.
What are novel duty situations?
Situations whereby there is no previous authority establishing the existence of a duty of care.
What is the criteria to be met when determining whether a duty of care is owed?
- Foreseeability - claimant must be a foreseeable victim
- Proximity - There must have been a relationship of sufficient proximity between the claimant and defendant
- Fair, Just and Reasonable - is it fair, just and reasonable in all circumstances to impose a duty of care.
What are the 4 exception to omission to act?
- Special Relationships between Parties
- Control
- Liability for Actions of Third Parties Under Defendant’s Control or Responsibility
- Rescue Situations
Would a special relationship between parties create a legal duty to act?
Yes, a relationship can arise when the defendant has assumed responsibility towards the claimant.
When would control create a legal duty to act?
If the defendant exercises control over the claimant, this may create a duty on the defendant to take care for the claimant.
When would the liability for actions of third parties under the defendant’s control or responsibility?
While a defendant generally does not owe a duty to exercise control over a third party to prevent them from causing harm to the claimant.
When would a rescue situation create a duty to act?
There is generally no duty to carry out a rescue however if a person does act in a rescue, they have a duty not to make the situation any worse.
Once a duty of care is established, how is determined what standard they are expected to meet?
The reasonable person test is used.
What is the reasonable person test?
The standard of care to be expected of a reasonable person in the defendant’s position.
When must the breach be assessed?
After the event.
What are the 2 factors the courts will take into consideration when assessing breach?
- Magnitude of risk
2. Practicability of Precautions
What is the magnitude of risk when assessing a breach?
The court will ask (1) how likely was it for harm to occur and (2) how serious is the potential harm?
If the activity carried out was low risk then they might not be able to prove they fell below the reasonable standard of care. The greater the potential harm from the defendant’s activities, the more precautions the defendant is expected to take in order to meet the standard of reasonable care.
What is the practicability of precautions when assessing a breach?
In assessing whether the defendant fell below the reasonable standard of care, the court will balance the practicability of taking precautions against the risk in question.
What is social unity when assessing a breach?
When considering the precautions which the defendant ought to have taken to meet the standard of reasonable care, the court will also have regard to the social unity of the defendant’s conduct.
What are the 3 particular types of defendants?
- Under-skilled defendants
- Skilled Defendants and Professionals
- Children
How will the reasonable person test be interpreted for under-skilled defendants?
Cannot rely on their lack of skills to argue they were not in breach of duty
How will the reasonable person test be applied to skilled defendants and professional?
Defendants who exercised a particular skill or profession are required to meet the level of skill of a reasonably competent member of that profession. There is an additional duty to disclose certain risks associated with treatment.
How will the reasonable person test be applied to children?
There is no minimum age for liability however the defendant’s age is relevant because the standard of care to be expected of a reasonable person in the defendant’s position.
Who has the burden of proof for proving a breach of duty?
Claimant.
What is Res Ipsa Loquitur?
Usually the claimant will produce evidence to explain how the incident happened. The court can then assess the level of skill and care exercised by the defendant.
What are the 3 conditions which must be satisfied for Res Ipsa Loquitur to apply?
- An absence of any explanation for how the incident occurred
- The thing which caused the accident must have been under the control of the defendant
- The accident must be such as would not normally happen if proper care had been taken.
Can criminal convictions be used to help the claimant prove a breach of duty?
Yes, if a person has been convicted of a criminal offence involving negligence.
What is the causation of damage in a negligence claim?
Damage is an essential element to a claim of negligence in tort. The claimant must show that the defendant’s breach of duty caused loss. Carelessness without loss will not give rise to a claim.
What are the 3 stages when establishing the causation of damages?
- Causation in Fact
- No New Intervening Acts
- Damage is Not Too Remote
What is causation in fact regarding negligence?
The claimant must prove that ‘but for’ the defendant’s breach of duty, the claimant would not have suffered the loss.
What is the importance of no new intervening acts for establishing the causation of damages?
There must be no new acts which intervene between the defendant’s breach of duty and the claimant’s loss.
What is the importance of the damage not being too remote for causation of damages?.
The loss suffered by the claimant must be reasonably foreseeable consequence of the defendant’s breach of duty.
Who holds the burden of proof for proving causation in fact?
The claimant.
What is the new modified test for causation in fact?
Material contribution - The claimant is required to prove that the defendant’s breach made a material contribution to the claimant’s loss.
What are divisible injuries?
Damages can be apportioned between the defendants according to the share if injury which each of them caused. This means the claimant can only recover a portion of their damages from each defendant, and so must sue them all if the claimant is to recover in full.
How do new intervening acts or events affect proving causation in fact?
When a new act has intervened between the defendant’s original negligence and the claimant’s ultimate injury, this new intervening act is said to break the chain of causation between the defendants initial negligence and the claimant’s ultimate loss.
Who can perform an intervening act for this to break the chain of causation?
A third party, the claimant.
What is an intervening natural event?
A natural event may break the chain of causation and cut off the defendants liability for further damage.
What is the effect of remoteness of damage in negligence?
The defendant will not be liable if that damage is too remote a consequence of the defendant’s act.
What is the test for remoteness of damage in negligence?
Reasonable foreseeability - Was the claimant’s damage a reasonably foreseeable result of the defendant’s negligence? If the answer is no, the damage was not reasonably foreseeable and the defendant is not liable for it.
What are the 2 exceptions to the reasonable foreseeability rule in the remoteness of damage for negligence?
- Egg Shell Skull Rule
2. Similar in Type Rule
What is the Egg Shell Skull Rule?
Describes the situation in which the claimant suffers from a pre-existing condition which causes the effect of the defendant’s negligence to be more extensive or severe than might have reasonable foreseeable.
What is the similar in type rule?
Describes a situation in which the claimant suffers the type of harm which would reasonably foreseeable, but the manner in which it occurs is unforeseeable.
What is contributory negligence?
A failure by the claimant to take reasonable care for their own safety which contributes to the harm suffered by the claimant.
Does the defendants negligence have to have contributed towards the happening of the accident?
No, just needs to contribute towards the damage suffered.
What are the consequences of contributory negligence?
A finding of contributory negligence does not defeat the claim entirely, rather, damages are to be reduced to such extent as the court considers just and equitable.
What is a defence to negligence?
Voluntary assumption of the risk. The claimant must have had full knowledge of the risk and the claimant must have freely and voluntarily assumed the risk.