Tort Flashcards
Can pure economic losses be recovered?
The general rule is that no duty of care is owed in respect of pure economic loss. There is an exception to this rule for pure economic loss caused by negligent statements where there is a special relationship between the defendant and claimant.
Following conditions need to be established for a special relationship to arise:
(1) the advice is required for a purpose made known to the defendant
2) the defendant knows that the advice will be communicated to the claimant and will be relied on,
(3) the claimant must have relied on the information and
(4) it must have been reasonable for the claimant to do so
Can PEL caused to someone else’s property be recovered?
Damage to property which did not belong to the claimant is classed as pure economic loss and cannot be recovered
A claimant was involved in a minor road traffic accident caused by the negligence of the defendant. The claimant’s car suffered minor damage to the bodywork. The claimant was not hurt in the accident but was very shocked. She is later diagnosed as suffering from post-traumatic stress disorder (‘PTSD’) caused by the shock of the accident.
What can be a claim by the claimant against the defendant?
he claimant can recover damages for her PTSD. She has suffered psychiatric harm without physical impact.
As someone in the actual area of danger created by the defendant’s negligence, she is a primary victim. As a primary victim, she is owed a duty of care in respect of her psychiatric harm, provided that there was a foreseeable risk of physical injury to her, which the traffic accident establishes.
A solicitor went to work on a Saturday. When she signed in, the security guard told her that all staff were required to leave the building by 5.00 pm and were not authorised to remain on the premises after that time. However, at the end of the day the solicitor had not finished her work and so decided to remain after 5.00 pm. At 5.30 the security guard locked all the doors and left the premises. The guard carelessly failed to check whether everyone had left the building so he was not aware that the solicitor had remained there. When the solicitor tried to leave the premises, she discovered that she was locked in. She telephoned for help and was released about 30 minutes later.
What will be the outcome of a claim by the solicitor against the guard for false imprisonment?
The solicitor’s claim is unlikely to succeed. For a successful claim in false imprisonment, the defendant’s actions in confining the claimant must be intentional.
This is not satisfied because the guard did not know the solicitor was locked in the building
A farmer makes a haystack with hay that is not properly dry. The stack later catches fire and causes severe burns to a neighbour who comes to help fight the fire. Evidence shows that bacterial action in the damp hay had caused the stack to heat up and ignite. Some local landowners were aware of the danger of storing damp hay in a stack, but the farmer himself was not aware of the risk.
In an action by the injured neighbour against the farmer in the tort of negligence, what will happen?
he farmer owed his neighbour a duty of care, and he will be in breach of that duty if he fell below the standard of care to be expected of a reasonable person in his position. The burden of proving breach of duty is on the neighbour as claimant
A woman borrowed a car from a friend to drive on a motoring holiday. The woman packed her luggage into the car. She then left the car in a car park but failed to pay for a ticket giving her the right to park there. Whilst she was away, a lorry driver crashed into the car. The car was so badly damaged that it was unusable. The woman had to hire a replacement car for the remainder of her motoring holiday. Also, all of her luggage which was in the car was destroyed and she had to spend a substantial amount on replacing it.
In a claim by the woman against the lorry driver, what will be the consequence?
The woman can recover for the cost of her luggage. Damage to property which did not belong to the claimant is classed as pure economic loss and cannot be recovered.
So, the woman cannot recover for the damage to the car and hire of a replacement because the car did not belong to her. However, she can recover for the cost of replacing the luggage because this is property which did belong to her, so the cost of replacing it is not pure economic loss.
A householder wished to plant a hedge between his land and that of his neighbour. He carefully noted the position of the existing wooden fence posts between the two properties. He dug a hole next to each fence post and planted a bush in it. The neighbour is now angry because the trees have in fact been planted on land which belongs to him. He has proved this by producing a plan which shows that the existing fence posts are situated wholly on his side of the boundary, so that the bushes have been planted on his land.
If the neighbour pursues a claim in tort against the householder, what will be the consequence?
The householder has committed trespass to land. By digging a hole and planting a bush on land belonging to his neighbour, the householder has carried out an intentional and direct interference with the neighbour’s possession of land and so has committed the tort of trespass to land
Trespass does require intention. However, the defendant only needs to intend his actions. He does not need to know that the land belonged to another or intend to commit a trespass.
What is the duty of care to a lawful visitor?
the duty of the occupier to his lawful visitors in respect of damage caused by the state of the premises is governed by the Occupiers’ Liability Act 1957. It is a duty to take reasonable care to see that the visitor will be reasonably safe in using the premises for the permitted purpose
A man recently purchased a cafe and all its contents. One of the items he acquired was a rotary meat slicing machine. The machine had been purchased direct from the manufacturer by the previous owner of the cafe. Last week, the man was using the machine in the cafe when the blade spun out of the machine and caused him to suffer a severe laceration. The blade also smashed a stack of expensive crockery. An expert report later showed that the machine suffered from a dangerous manufacturing defect which was the cause of the accident.
In a claim by the man against the manufacturer to recover damages for his losses, which of the following statements is correct?
The man can recover in strict liability for his personal injury. The Consumer Protection Act 1987 (‘CPA’) applies because he suffered damage caused by a defect in a product. The manufacturer is a potential defendant under the Act, as the producer of the product. Liability under the Act is strict. So, the man should have a claim under the Act for his personal injury.
However, the Act does not apply to damage to business property caused by a defective product, so the claim under the CPA could not cover the damaged crockery. For the damaged crockery, the man would need to pursue a claim in the tort of negligence.
A boy hit his ball over the fence into a neighbour’s garden. The boy asked the neighbour for permission to enter her garden. She agreed but warned him not to go beyond a fence near the bottom of the garden because the garden beyond that was in a dangerous condition and he could be hurt. When he entered the garden, the boy saw that his ball had landed beyond the fence, so he climbed over it. As the boy bent down to retrieve the ball, he brushed against an exposed electric wire hidden by an overgrown bush. He received a shock and sustained burns. The exposed electric wire was known to the neighbour.
What is the likely result if the boy sues the neighbour?
the neighbour is not liable. Although the boy had permission to enter the garden, he became a trespasser when he exceeded that permission by climbing over the fence. The Occupiers’ Liability Act 1984 therefore applies. An occupier owes a duty of care to a trespasser provided she is aware of the danger, and that the trespasser may come into the vicinity of it, and the danger is one against which it would, in all the circumstances, be reasonable to expect her to offer protection. If these conditions are satisfied, the occupier’s duty is to take reasonable care to see that the trespasser is not injured by the danger.
The Act provides that the duty may be discharged by taking such steps as are reasonable in all the circumstances of the case, such as giving warning of the danger concerned or discouraging persons from incurring the risk. On the facts, the occupier may owe the boy a duty of care. However, she appears to have discharged that duty by warning the boy not to go beyond the fence because it was dangerous and he could be hurt.
A dog whistle manufacturer’s factory was located near a residential area. The manufacturer used the most effective methods for testing its whistles, but it was impossible to completely soundproof the testing area. A breeder of champion show dogs bought some property near the factory. Her dogs were able to hear the whistles and consequently were in a constant state of agitation, with the result that she was unable to carry on her business effectively. Evidence showed that the whistles caused no disruption to ordinary pet dogs in the surrounding homes, but the breeder’s dogs were affected because they had abnormally sensitive hearing.
Which of the following is the most likely outcome in a claim by the breeder against the manufacturer?
The breeder will not be successful. Nuisance requires an unlawful interference with the claimant’s use of land. An interference is unlawful when it is substantial and unreasonable. An interference will not be considered unreasonable when it only interferes with the claimant’s use of land because of the claimant’s abnormal sensitivity. On the facts, the breeder’s dogs are only affected by the sound of the whistles because of their abnormally sensitive hearing. Therefore, she will not succeed in a claim in nuisance
Who can recover bereavement and loss of dependency damages?
Bereavement damages are recoverable only by the deceased’s spouse or civil partner or cohabitant of more than 2 years, or the deceased’s parents if the deceased was under age 18 and never married.
Children of the deceased are not entitled to bereavement damages.
Loss of dependency damages are available if the claimant was a dependant of the decedent and was financially dependent on the deceased
A cyclist was riding his bicycle along a trail with due care when a deer suddenly leaped out of the trees in front of him. The cyclist swerved to avoid hitting the deer and bumped into a jogger near him, causing the jogger to suffer cuts and bruises. The jogger also has begun to suffer from an anxiety disorder as a result of the collision, and she is afraid to jog any longer when others are nearby.
In an action by the jogger against the cyclist, which of the following best describes the likely outcome?
The cyclist owed the jogger a duty of care. However, on the facts, he was riding carefully and appears to have responded reasonably to the deer suddenly leaping in front of him.
Therefore, he does not appear to have fallen below a reasonable standard of care and would not be in breach of duty. So, he is not likely to be liable
A child aged 3 was walking along the pavement with her mother next to a busy road. The mother did not hold the child by the hand and was distracted by looking at her mobile phone. Suddenly, the child ran into the road into the path of a car driven by the defendant. The defendant was unable to avoid hitting the child, who suffered a broken leg. The court found that the driver had been exceeding the speed limit for the road where the accident occurred, and that if he had not been exceeding the limit, he would have been able to stop in time and avoid hitting the child.
In a claim by the child against the driver, which of the following statements is correct?
The driver may seek contribution from the child’s mother. The mother owes the child a duty of care. The mother appears to have breached that duty by failing to take reasonable care for the child’s safety. The mother’s breach of duty is a cause of the child’s injury. The driver also owes a duty of care to the child. He has breached his duty by failing to take reasonable care, by driving over the speed limit. The driver’s breach of duty is also a cause of the child’s injury. The child has suffered one indivisible injury caused by both the mother and the driver.
So, both the mother and the driver are liable to the child in respect of the same damage. In those circumstances, the driver may recover a contribution from the mother towards any damages he is ordered to pay.
A grocer contracted with an electrician to replace lighting for display cases at his store. Before engaging the electrician for this job, the grocer confirmed that the electrician had appropriate qualifications and experience. Once the lighting was completed, the grocer had a safety inspector approve the work. However, on the day after the work was completed, a customer suffered a severe shock when she touched the metal side of a display case. Evidence later showed that the electrician had failed to properly ground the wiring installation, leading to the metal of the display case to become charged with electricity.
In a claim by the customer against the grocer for injuries she suffered from the electrical shock, what is the standard of liability now?
Reasonable care to see that the visitor will be reasonably safe (not an absolute duty)
The grocer will not be liable to the customer. Harm has been caused to the customer by the state of the premises, the grocer is the occupier of the premises, and the customer is a lawful visitor. So, liability is governed by the Occupiers’ Liability Act 1957.
The occupier owes a duty of care in respect of the condition of the premises. That duty may be discharged by employing an independent contractor to carry out work of construction, maintenance, or repair, provided that the occupier acted reasonably in entrusting the work to an independent contractor and took reasonable steps to satisfy himself that the contractor was competent and the work properly done.
So, on the facts, the grocer discharged the duty which he owed to his customer by engaging a qualified electrician and having the work inspected.
A statute provides in relevant part as follows: “Transporters of waste are prohibited from releasing any waste except at authorized waste processing facilities, to prevent environmental harm and damage to persons or property along the route of transport.”
A waste transporter was crossing a bridge when one of its sealed containers unexpectedly failed, releasing waste into the river below. A tour boat happened to be crossing under the bridge at the time, and some passengers were splashed with the waste, causing damage to their clothing and skin irritation. The container failed because of a latent defect that could not have been discovered by the transporter. One of the affected boat passengers brought a claim against the waste transporter based on breach of statutory duty.
If the court determines that Parliament intended the statute to give rise to civil claims for violation of the statute, which of the following statements best describes the outcome of the passenger’s claim?
The statutory duty appears to have been imposed in part to protect persons along the route of transport from harm to persons or property caused by the waste.
Here, harm was caused to passengers on the boat that was crossing the waste transporter’s path when the waste was released. Despite the unusual circumstances, the statute would likely be deemed to apply to the injury suffered by the claimant here.
