Tort

Question 1

What is required for a novel duty of care to be imposed?

Answer 1

1. Foreseeability
2. Proximity
3. Fair, just and reasonable

Question 2

What is taken into account when considering a standard of care?

Answer 2

1. Magnitude of risk; and
2. The practicability of taking precautions.

Question 3

What is the standard test for causation in fact?

Answer 3

The “but for” test.

Question 4

What is the test for factual causation when multiple causes act together to cause harm?

Answer 4

The “material contribution” test.

Question 5

What is the test for whether a third party breaks the chain of causation in law?

Answer 5

It will break the chain only if it was not reasonably foreseeable.

Question 6

What is the test for whether an intervening act of the claimant breaks the chain of causation in law?

Answer 6

It will break the chain of causation only if the claimant acted entirely unreasonably.

Question 7

What will the court ask when considering if loss is too remote to claim for?

Answer 7

Whether the loss was a reasonably foreseeable result of the defendant’s negligence.

Question 8

How is loss divided and who can the claimant pursue in the case of a single divisible injury?

Answer 8

The claimant must pursue both defendants.

Question 9

How is loss divided and whom must the claimant pursue in the case of one indivisible injury?

Answer 9

The claimant can pursue either defendant and they are liable jointly and severally. The defendant can claim a contribution by statute from the other defendants.

Question 10

What are special damages?

Answer 10

Those that can be precisely calculated on the date of trial.

Question 11

What are general damages?

Answer 11

Those that the court must calculate at trial.

Question 12

Who can claim for bereavement?

Answer 12

1. A surviving spouse;
2. A cohabiting partner of more than 2 years; or
3. Parents if the child was under 18 and not married.

Question 13

What is pure economic loss?

Answer 13

1. Damage suffered to property not owned by the claimant;
2. Defective products; and
3. Financial loss not flowing from damage to the claimant’s person or property.

Question 14

When is pure economic loss recoverable by a claimant in the case of a negligent misstatement?

Answer 14

When there is a special relationship between the parties, an assumption of care by the defendant and a reliance by the claimant.

Question 15

In claims for psychiatric harm, who is a primary victim?

Answer 15

A claimant who was in the actual area of the event causing damage.

Question 16

In claims for psychiatric harm, who is a secondary victim?

Answer 16

Those not in the actual area of the event causing the damage.

Question 17

When is a primary victim owed a duty of care in a claim for psychiatric damage?

Answer 17

When there was a reasonably foreseeable risk of physical injury.

Question 18

When is a secondary victim owed a duty of care in a claim for psychiatric harm?

Answer 18

When it is reasonably foreseeable that a person of normal fortitude would suffer psychiatric injury, there are close ties of love and affection, the claimant was present at the scene or in the immediate aftermath and witnessed the event with their own unaided senses.

Question 19

What is an employer’s duty of care towards its employees?

Answer 19

To take reasonable care of their safety, including providing a safe environment, safe employees, safe systems etc. It is a non-delegable duty.

Question 20

What is the standard of care imposed on an employer?

Answer 20

The standard of a reasonable employer.

Question 21

What are the requirements for the defence of consent?

Answer 21

1. The claimant had full knowledge of the risk; and
2. The claimant freely and voluntarily assumed the risk.

Question 22

What is contributory negligence?

Answer 22

Where the claimant failed to take reasonable care of their own safety which contributed to the harm suffered.

Question 23

What is vicarious liability?

Answer 23

The liability of one person for the fault of another.

Question 24

When is an employer vicariously liable for a tort committed by their employee?

Answer 24

When a tort was committed by an employee in the course of employment.

Question 25

When is an employee acting in the course of employment for the purposes of vicarious liability?

Answer 25

When the tort was so closely connected to the task the employee is employed to carry out that it would be fair, just and reasonable to impose vicarious liability.

Question 26

When does a duty of care arise in a common law negligence claim for a defective product?

Answer 26

When the manufacturer puts the product into circulation in the form that it is intended to reach the consumer and there was no reasonable prospect of intermediate examination.

Question 27

What kind of regime does the Consumer Protection Act 1987 impose?

Answer 27

A strict liability regime.

Question 28

Who is a potential defendant under the CPA?

Answer 28

The manufacturer of a product, anyone who holds themselves out to be manufacturer, or an importer of the product.

Question 29

When is a product defective under the CPA?

Answer 29

When it is not such as persons generally are entitled to expect.

Question 30

What three kinds of damage are excluded under the CPA?

Answer 30

a) Damage to the product;
b) Damage to business property; and
c) Damage under £275.

Question 31

What is public nuisance?

Answer 31

An unreasonable interference with the comfort and convenience of life of a class of the public.

Question 32

What damages are recoverable in a public nuisance action?

Answer 32

Damage to property and personal injury.

Question 33

Who can claim in a public nuisance action?

Answer 33

1. A person who has suffered damage over and above the rest of the class; or
2. The Attorney General.

Question 34

What is private nuisance?

Answer 34

An unlawful interference with the claimant’s use and enjoyment of the land.

Question 35

What kind of damage is recoverable in a private nuisance action?

Answer 35

Physical damage, amenity damage or encroachment onto land. Personal injury is NOT recoverable.

Question 36

Who can be sued in a private nuisance action?

Answer 36

The creator of the nuisance, or the occupier of the land if the person causing the nuisance is under their control.

Question 37

Who can sue in an action for private nuisance?

Answer 37

The claimant must have a proprietary interest in the land.

Question 38

What are the requirements for a claim under the rule in Rylands v Fletcher?

Answer 38

1. The defendant brings something onto their land that is likely to cause harm if it escapes;
2. The defendant is engaged in a non-natural use of the land; and
3. The thing actually escapes and causes harm.

Question 39

What is the liability under Rylands v Fletcher?

Answer 39

Strict, so there is no need to show fault, merely that something escaped and caused harm.

Question 40

What are defences to a claim in Rylands v Fletcher?

Answer 40

1. An unforseeable act of a stranger;
2. An act of god; and
3. Consent.

Question 41

What can be recovered in a claim under Rylands v Fletcher?

Answer 41

Damage that is not personal injury.

Question 42

To whom does the Occupiers’ Liability Act 1957 apply: visitors or non-visitors?

Answer 42

Visitors

Question 43

What is the duty of care owed under the OLA 1957?

Answer 43

That the visitor will be reasonably safe in using the premises for such purposes as they have been invited or are permitted to be there.

Question 44

What can be recovered under the OLA 1957?

Answer 44

Damage to property and personal injury.

Question 45

When can an occupier discharge their liability under the OLA 1957 with regard to warnings?

Answer 45

If the warning is enough to enable the victim to be reasonably safe.

Question 46

When can an occupier discharge their duty under the OLA 1957 with regard to independent contractors?

Answer 46

If they acted reasonably in entrusting the work to a contractor, they ensured the contractor was as competent and they ensured that the work was done properly.

Question 47

When can an occupier not exclude liability under the OLA 1957?

Answer 47

Businesses cannot exclude liability for death or personal injury, and can only exclude for anything else if it is reasonable / fair.

Question 48

What is required in a notice to exclude liability under the OLA 1957?

Answer 48

It must have been brought to the attention of the visitor and be in clear language that covers the damage.

Question 49

To whom is a duty of care owed by occupiers by the OLA 1984?

Answer 49

Non-visitors, mostly trespassers which includes visitors who exceed permission given to them.

Question 50

When is a duty of care owed under the OLA 1984?

Answer 50

1. The occupier is aware of the danger;
2. The occupier is aware the non-visitor may come into the vicinity of the danger; and
3. The danger is one against which in all circumstances it would be reasonable to offer protection.

Question 51

What is the duty of care owed under the OLA 1984?

Answer 51

To take such care as reasonable in all the circumstances to ensure the trespasser does not suffer injury by reason of the danger concerned.

Question 52

How can the occupier discharge their duty under the OLA 1982?

Answer 52

By taking such steps as reasonable to give warning of the danger.