Tort

Question 1

Duty of care?

Answer 1

There is already precedent of duty of care

Establishing a new one:

1. Reasonable foreeablty - that the defendant failure to take care could cause damage to the claimant
2. Proximity between claimant and defendant
3. It is fair, just and reasonable for the law to impose a duty

Question 2

Omissions

Answer 2

• there is no duty to prevent harm unless there is an established relationship between the parties.

Establishes relationship occur:”

• where there is control
• where there is assumption of responsibility
• where d creates a dangerous situation

Question 3

When is there a general duty of care on third parties?

Answer 3

1. Where there is a special relationship between D and C due to proximity
2. Where there is a special relationship between D and third party due to proximity
3. When someone creates a source of danger and it is reasonable foreseeable that the third party would interfere
4. Where there is failure to take steps to stop danger created by third party

Question 4

Breach of care

Answer 4

Standard of care has not been reached.

The standard of care - What would the reasonable man do?

Question 5

Levels of standard of care

Answer 5

Medical - higher - did the doctor act in a manner accepted by a responsible body of medical professionals, if so was it logical to do so.
Children - lower - standard of reasonable person of that age
Learner - higher - judge on the reasonable competent thing they are learning
Illness - different - should stop themselves from doing something they can no longer do
Emergency - different - excessive care and skill reasonable in that circumstance, and public interest
State of knowledge - different - judge at the time of the incident

Question 6

Other relevant facts when considering the standard of care

Answer 6

Cost of precautions
Social value
Likelihoood of harm
Seriousness of injury

Question 7

Res Ispa loqitor

Answer 7

The thing speaks itself

1. Control - whatever caused the damage must of been under the control of the D
2. The damage would not normally occur without negligence
3. Cause of accident is unknown

Question 8

Civil evidence act

Answer 8

Criminal convictions can be used as evidence in civil proceeding

Burden on proof thus switches to defendant to prove they were not negligent

Question 9

Factual causation of negligence

Answer 9

But for test

Question 10

Exceptions to but for factual causation negligence

Answer 10

1.Mutiple potential causes - D act or omission must be substantial
2. Materially contributed to harm
3. Materially increase the risk of harm
4. Continuing claim - when dealing with consecutive cause of harm, where all pass the but for test, the original d is liable for the harm.
5. Impossible to use but for test - all liable
6. Loss of chance - will be liable unless you chance was already below 50% - then D is unlikely to be liable

Question 11

Legal causation - negligence

Answer 11

1. Was the harm too remote - was the type of damage reasonably foreseeable?
2. Was there any intervening act - only will break chain of causation if it is unforeseeable

Question 12

Remedies for personable injury claims

Answer 12

Question 13

Pecuniary loss - pure economic loss and consequences economic loss - definitions

Answer 13

Pure economic loss is financial loss resulting from the harm cause by the negligent act

Consequential economic loss is the financial loss sustained due to another harm caused by negligence

Question 14

When is PEL and CEL recoverable?

Answer 14

Pure economic loss - is not recoverable

Consequential economic loss is recoverable because the loss resulted from physical harm to property or claimant due the negligent act

Question 15

What are the exception of pure economic loss being unrecoverable?

Answer 15

When a negligent misstatement exists

1. Where a special relationship of trust and confident exists between the parties
2. Where the party preparing a statement has assumed the risk - by expressly or impliedly
3. Where there has been a reliance on information or statement
4. Where reliance on the statement was reasonable

Question 16

Claims for psychiatric harm remedies

Answer 16

The injury must be medically recognised and diagnosed

The claimant must be either a primary or secondary victim.

Question 17

Primary victim

Answer 17

A primary victim is one that is in the physical zone of danger or reasonably believes they are in danger and it harm was foreseeable.

Question 18

Secondary victims

Answer 18

Reasonable foreseeable that someone of reasonable fortitude would suffer some pysicatric injury

Alcock test
A. Close tie of love and affect
2. Close in time and space to the aftermath
3. Shock was witness by their own sense

Question 19

What further categories can claim psychiatric harm

Answer 19

1. Resucers - only if they were exposed to physical danger
2. Witnessing the destruction of property - recoverable
3. Involuntary involvement - there has to reasonably held belief that the claimant has been involuntarily involved in another person death or injury
4. Assumption of responsibility - for the claimant not to suffer physicatric harm
5. Anxiety of developing future disease - not recoverable

Question 20

What are general defences of tort?

Answer 20

1. Consent - complete defence
   A. C had full knowledge of the nature and extent of the risk
   B. The claimant voluntarily accepted the risk
2. Contributory negligence - partial defence
3. Illegality - complete defence - there has to be connection of the claimant illegal activity and their injury

Question 21

Breakdown Contributory negligence

Answer 21

1. Did the claimant fail to exercise reasonable care for their own safety
2. Did the failure contribute to their harm
3. To what extent shall there damages be reduced
   -25% if injuries would of been prevented and 10% if injuries would be less severe

Children - the younger the child the less likely to be held as CN - under 10 cannot be held as CN

Employers - if they weren’t following the rules than likely to be held as CN

Rescuers - judged on a reasonable rescuer. Courts are very reluctant to do this

Question 22

Vicarious Liabilty - elements

Answer 22

Someone else being liable for another negligent act

1. Employer and employee relationship must exist
2. Employee must have committed a tort
3. Tort was committed in the course of employment

Question 23

Who is an employee? Who is an independent contractor

Answer 23

1. Does the employer have control over the individual? If yes - employee
2. Is the individual integral to the business or just an accessory to it? If integral - employee
3. Get wages? Will work under the control of the employer? And the provision of the contract are consistent with a contract of employer? - if yes - employee

Question 24

What constitutes as - in the course of employment?

Answer 24

1. Authorised acts - vicariously liable
2. Authorised act in authorised manner - vicariously liable
3. Prohibited act - that furthers the employees business - vicariously liable
4. Prohibited act which does not fall out of the scope of employment, only falls out of how to do it - vicariously liable
5. Unlawful acts - close connection test - is there a link between the unlawful act and the activities the employee should be carrying out - if yes then vicariously liable

Question 25

Occupier liability act 1957 and 1984 - difference

Answer 25

1957 - protects lawful visitors
1984 - protects all others including trespassers

Question 26

1957 - who is the occupier? What is the duty of care?

Answer 26

Occupier - has control over the premises

Duty of care - to take such care as in all circumstance of the care is reasonable to see that the visitor is reasonable safe in using the premises for the purpose which he is invited or permitted by the occupier to be there.

Remember the visitor must be safe not the premises.

Question 27

1957 - what deviation are there from the usual standard of care

Answer 27

Children - must be prepared for children to be less careful. Higher responsibility. Court looks at age of child, whether the child would be reasonable aware of the risk, and whether there is any allurement to the risk.

Skilled worked - skill worker can be expected to take extra care of risk that relates to the profession thus there is lower standard

Question 28

1957 - warning?

Answer 28

If danger is obvious no warning needed.

Court would consider whether the warning is enough to keep the visitors safe?

Question 29

1957 - independent contractors

Answer 29

Occupier will not be liable for injury cause by faulty work of an independent contractor iif

1. Occupier entrusted the work to an independent contract
2. Take reasonable steps to ensure the contractor was competent
3. Taken reasonable step to ensure work was properly done

Question 30

1957 - damages covered?

Answer 30

To death, personal injury and damage to property

Question 31

1984 - duty of care?

Answer 31

Duty only exists where

1. Occupier is aware or has reasonable ground to believe danger exists
2. The courier knows or has reasonable grounds to believe that the traps set is in the vicinity of the danger
3. The risk is one again which in all circumstance the occupier may reasonably be expected to offer some protection

Question 32

1984 - damages?

Answer 32

Only to personal injury and death

Question 33

Defences for 1954 and 1984

Answer 33

Question 34

Compensation Act 2006

Answer 34

Where volunteers organising charity or sports events - the act provide reassure that those involved that - failure to take precautions will not lead to a finding of liability if those precautions would of prevent the activity from going ahead

Question 35

Product laibilty - common law

Answer 35

1. D is a manufacturer
2. The product caused damage
3. To anyone foreseeably affected by the product

The exception to this - is where the manufacturer thought it would be examined by an intermediate - no liability

Question 36

Product Liability - common law defences

Answer 36

1. Consent
2. Contributory negligence
3. Exclusion of liability - death and PI can’t be excluded

Question 37

Consumer protection act 1987 - how do you establish liability?

Answer 37

Imposes strict liability - if product is defective then manufacturer is automatically liable - no need to proved duty and breach

You only need to show that you have suffered damage by defective product to establish Liability - but for test

Liabilty can be joint and several to all defendant

Question 38

Consumer protection act - defences

Answer 38

Must bring the claim within 3 years of injury or damage

Limitation period of 10 years after defendants circulation of the product

Question 39

Private musicale - liability

Answer 39

1. Be interference with the claimant use and enjoyment of the land

2.that interference must be unlawful

Question 40

Public nuisance - liability

Answer 40

A class of people have suffered special damage

Question 41

Who have been recognised to be a class of people

Answer 41

1. Local community
2. Groups with common characteristics
3. Highway user
4. Wider impact on the public

Question 42

Defences for private and public

Answer 42

1. Consent
2. Contributory negligence
3. Prescription - only to private
4. Statutory authority
5. Act of god
6. Unforeseeable act of strange
7. Necessity
8. Planning permission
9. Claimant came to the nuisance
10. Public benefit
11. Contributors to nuisance

Look at table 8.5

Question 43

Remedies for private or public nuisance

Answer 43

1. Injunctions - where damages not apporiate
2. Damages
3. Abatement - d rectifies the nuisance by removing it or stoping

Question 44

Roland v flècher - liability

Answer 44

1. Did the d bring something into their land likely to do mischief?
2. Is the collection brought onto the land non-natural?
3. Is there a possibility that damage would occur by that thing escaping?
4. Did the escape cause damage to the defendants land?

Question 45

Ryland v fletchers - defences and remedies

Answer 45

Consent
Contributory negligence
Statutory authority
Act of god
Unforeseeable act of a stranger

Remedies - damages for damage to property not personal injury