Tort Flashcards
complete
What elements of land does trespass to land protect?
- Land and buildings erected on land
- Subsoil
- Airspace up to height necessary for ordinary use of land
Term for type of interference creating contact with land
Direct interference
What intention is needed to commit tort of trespass to land?
Defendant need not intend to commit tort of trespass to land and need not know land belongs to another
What are the three torts that encompass trespass to the person?
- Battery
- Assault
- False imprisonment
What are the three requirements for the tort of battery?
- Unlawful force
- Direct contact
- Intentional
What is assault?
Intentional or reckless act which causes the claimant to reasonably apprehend the immediate and direct infliction of unlawful force on their person
What is the role of intention in false imprisonment, trespass to goods and conversion?
Action must be intentional, but defendant need not intend to infringe the claimant’s rights
What is the difference between trespass to goods and conversion?
Trespass to goods is intentional and direct interference with claimant’s possession of goods.
Conversion is dealing with claimant’s goods in a way which is seriously inconsistent with the rights of the owner.
What three elements must be proved for a negligence claim?
- Duty of care
- Breach of duty
- Causation of damage
What are the below examples of:
- Doctor to patient
- Teacher to pupil
- Parent to child
- Employer to employee
- Solicitor to client
Established duty of care
What is the term for a duty of care that is not established nor determined by case law?
Novel duty situation
What are the three elements in determining a novel duty situation?
- Foreseeability
- Proximity (relationship of sufficient proximity)
- Fair, just and reasonable
One does not generally have a duty to act. What are the three exceptions?
+ duty if action is taken
- Special relationship between parties (e.g. parent-child)
- Control (e.g. police officer exercising control over someone they have arrested)
- Liability for third parties (e.g. parent must prevent child from causing harm to others)
- Rescue situations - duty not to make things worse
In what case would a defendant committing a negligent and reasonably foreseeable act that causes harm not be liable for damages?
If it was outside their scope of duty of care
What three factors are used to assess a breach of duty?
- Magnitude of risk
- Practicality of taking precautions to avoid that risk
- Social utility (e.g. emergency or rescue situation)
What two factors are assessed within magnitude of risk?
- Likelihood of harm
- Seriousness of potential harm
What test is being described?
The test is objective and impersonal. It does not depend on the defendant’s skill and experience.
Test for breach of duty
The principle that the mere occurrence of some types of accident is sufficient to imply negligence
Latin
Res ipsa loquitur (the thing speaks for itself)
Three conditions for res ipsa loquitur to apply
- Absence of explanation of how incident occurred
- Thing which caused the accident must have been under defendant’s control
- Accident would not have occurred if proper care was taken
What is the result in a claim proving carelessness without loss?
No claim
Three stages in establishing causation of damage
- Causation in fact (but for)
- No new intervening acts
- Damage not too remote (foreseeable consequence of breach of duty)
What is the modified test for causation in fact if there are multiple alternative possible causes of loss?
Material contribution
Claimant is only required to prove the defendant’s breach of duty made a material contribution to the claimant’s loss
How does a claimant recover damages after suffering an indivisible injury as a result of two defendants’ negligence?
Claimant is entitled to recover full damages from both defendants.
If recovered in full from one defendant, he can recover a just and equitable amount from the other.
(Claimant can only recover damages once)
What is the second defendant liable for in a case of successive injuries due to two separate incidents of negligence?
Second defendant only liable to the extent that their negligence made the damage worse
What is the effect of an intervening act by a third party that causes a negligence tort on the claimant after an initial act of negligence
Breaks the chain of causation (unless first defendant ought to have reasonably foreseen the action as a consequence of their negligence)
What happens if the claimant’s own actions break the chain of causation from an initial injury and the claimant suffers a second?
The claimant will recover no damages for the subsequent injury
Under remoteness of damage, a defendant is not liable for damages caused from a negligent act which causes damages too remote/not reasonably foreseeable.
What are the two exceptions to the reasonable foreseeability rule?
- Egg shell skull rule (a pre-existing condition causes negligence to be more severe than reasonably foreseen)
- Similar in type rule (reasonably foreseeable harm occurs in an unforeseeable way)
A failure by the claimant to take reasonable care for their own safety which contributes to the harm suffered by claimant
Contributory negligence
Which act provides a finding of contributory negligence does not defeat a claim but reduces damages awarded to claimant
Law Reform (Contributory Negligence) Act 1945
What is the negligence defence if the following applies
- Claimant had full knowledge of the risks
- Claimant freely and voluntarily assumed the risk
Voluntary assumption of Risk (Volenti Non Fit Injuria)
What are the three defences to negligence?
- Contributory negligence
- Voluntary assumption of risk (complete defence)
- Illegality (complete defence)
What is usually the only case when damages for pure economic loss are recoverable?
When there is a special relationship between claimant and defendant
In which type of economic loss do ordinary negligence rules apply and duty of care owed?
Consequential economic loss
Why does pure economic loss caused by defendant’s negligent act damaging a third party’s property (e.g. damage to electrical supply cable) not allow claimant to claim damages?
Defendant did not owe claimant a duty of care.
No damages recoverable
In which type of economic loss is no duty of care owed?
Pure economic loss
What damages can a claimant recover for pure economic loss caused by negligent statements?
Re contract
- If statement made within contract (e.g. breach of term requiring reasonable advice) then claimant can recover damages for breach of contract
- If no contract, no damages recoverable
Three requirements for special relationship exception
Purpose
Rely
Reasonable
- Defendant knows purpose of advice
- Defendant knows claimant likely to rely on advice without independent enquiry
- Claimant reasonably relies on advice
What is the term for psychiatric harm suffered without physical impact?
Pure psychiatric harm
Two types of victim under pure psychiatric harm
- Primary victim (in actual area of danger)
- Secondary victim (outside actual area of danger, e.g. bystander witnessing incident)
When is a duty of care owed to primary victims in terms of foreseeablility?
Two points: injury and psychiatric
- Duty of care arises if there is a foreseeable risk of injury
- Psychiatric harm need not be foreseeable
Four requirements for secondary victims
- Reasonably foreseeable that person of normal fortitude in claimant’s position would suffer psychiatric illness in the circumstances
- Close ties of love and affection with person endangered
- Must have been present at accident or immediate aftermath
- Must have witnessed events with own unaided senses
What is the requirement for psychiatric harm suffered?
Must be a medically recognised condition (PTSD & depression, not alarm & distress)