Tort Flashcards
complete
1
Q
What elements of land does trespass to land protect?
A
- Land and buildings erected on land
- Subsoil
- Airspace up to height necessary for ordinary use of land
2
Q
Term for type of interference creating contact with land
A
Direct interference
3
Q
What intention is needed to commit tort of trespass to land?
A
Defendant need not intend to commit tort of trespass to land and need not know land belongs to another
4
Q
What are the three torts that encompass trespass to the person?
A
- Battery
- Assault
- False imprisonment
5
Q
What are the three requirements for the tort of battery?
A
- Unlawful force
- Direct contact
- Intentional
6
Q
What is assault?
A
Intentional or reckless act which causes the claimant to reasonably apprehend the immediate and direct infliction of unlawful force on their person
7
Q
What is the role of intention in false imprisonment, trespass to goods and conversion?
A
Action must be intentional, but defendant need not intend to infringe the claimant’s rights
8
Q
What is the difference between trespass to goods and conversion?
A
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.
9
Q
What three elements must be proved for a negligence claim?
A
- Duty of care
- Breach of duty
- Causation of damage
10
Q
What are the below examples of:
- Doctor to patient
- Teacher to pupil
- Parent to child
- Employer to employee
- Solicitor to client
A
Established duty of care
11
Q
What is the term for a duty of care that is not established nor determined by case law?
A
Novel duty situation
12
Q
What are the three elements in determining a novel duty situation?
A
- Foreseeability
- Proximity (relationship of sufficient proximity)
- Fair, just and reasonable
13
Q
One does not generally have a duty to act. What are the three exceptions?
+ duty if action is taken
A
- 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
14
Q
In what case would a defendant committing a negligent and reasonably foreseeable act that causes harm not be liable for damages?
A
If it was outside their scope of duty of care
15
Q
What three factors are used to assess a breach of duty?
A
- Magnitude of risk
- Practicality of taking precautions to avoid that risk
- Social utility (e.g. emergency or rescue situation)
16
Q
What two factors are assessed within magnitude of risk?
A
- Likelihood of harm
- Seriousness of potential harm
17
Q
What test is being described?
The test is objective and impersonal. It does not depend on the defendant’s skill and experience.
A
Test for breach of duty
18
Q
The principle that the mere occurrence of some types of accident is sufficient to imply negligence
Latin
A
Res ipsa loquitur (the thing speaks for itself)
19
Q
Three conditions for res ipsa loquitur to apply
A
- 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
20
Q
What is the result in a claim proving carelessness without loss?
A
No claim
21
Q
Three stages in establishing causation of damage
A
- Causation in fact (but for)
- No new intervening acts
- Damage not too remote (foreseeable consequence of breach of duty)
22
Q
What is the modified test for causation in fact if there are multiple alternative possible causes of loss?
A
Material contribution
Claimant is only required to prove the defendant’s breach of duty made a material contribution to the claimant’s loss
23
Q
How does a claimant recover damages after suffering an indivisible injury as a result of two defendants’ negligence?
A
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)
24
Q
What is the second defendant liable for in a case of successive injuries due to two separate incidents of negligence?
A
Second defendant only liable to the extent that their negligence made the damage worse
25
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)
26
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
27
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)
28
A failure by the claimant to take reasonable care for their own safety which contributes to the harm suffered by claimant
Contributory negligence
29
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
30
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)
31
What are the three defences to negligence?
- Contributory negligence
- Voluntary assumption of risk (complete defence)
- Illegality (complete defence)
32
What is usually the only case when damages for pure economic loss are recoverable?
When there is a special relationship between claimant and defendant
33
In which type of economic loss do ordinary negligence rules apply and duty of care owed?
Consequential economic loss
34
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
35
In which type of economic loss is no duty of care owed?
Pure economic loss
36
What damages can a claimant recover for pure economic loss caused by negligent statements?
## Footnote
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
37
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
38
What is the term for psychiatric harm suffered without physical impact?
Pure psychiatric harm
39
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)
40
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
41
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
42
What is the requirement for psychiatric harm suffered?
Must be a medically recognised condition (PTSD & depression, not alarm & distress)
43
When is a duty of care owed to a secondary victim?
| Type of suffering
When the victim suffers from sudden shocking event. Not gradual.
Does not apply to primary victims
44
What type of duty does an employer owe an employee?
## Footnote
Re extent
Reasonable duty of care (not absolute)
45
What are the four elements of the scope of the employer's duty?
- Safe plant and equipment
- Safe place of work
- Competent fellow staff
- Safe system of work (including psychiatric harm from stress)
46
Who is liable in a case of negligence caused problems in the case of employees injured by employer-provided equipment which suffered from a latent defect that could not be discovered by exercising reasonable care?
The person who was at fault, such as the manufacturer of the faulty equipment
47
How is causation in fact determined?
'But for' the defendant's breach of duty, the harm would not have occurred
48
What is the effect of intervening acts in causation of damage?
Breaks the chain of causation between defendant's breach and claimant's harm
49
Five factors considered to decide if a tortfeasor is an employee or independent contractor
- Personal service (salaried)
- Control (of how work is done)
- Ownership of tools
- Chance of profit and risk of loss
- Contractual provisions (if consistent with employee contract)
50
Three factors considered in case of vicarious liability of employers
- Was a tort committed
- By an employee
- In the course of employment
51
What are the two effects of employer prohibition against an employee and how do they impact classification under course of employment?
- Disobeying a prohibition limiting the scope of employment usually takes the employee outside the course of employment
- Disobeying a prohibition limiting the manner in which an employee should perform usually does not take the employee outside the course of employment. Employer vicariously liable
52
What is the term describing an employee who deviates from an authorised journey in such a way as to go outside their course of employement?
Frolic
53
Are employers vicariously liable for the torts of:
- Employees
- Independent contractors
- Relationship akin to employment
- Yes
- No
- Yes
54
Two cases where an employer may be personally (not vicariously) liable for a tort committed by an independent contractor?
- Employer breached own nondelegable duty of care
- Employer breached own duty to take reasonable care in selecting competent contractor
55
What is the aim of damages in tort?
To place the claimant in the position they would have been in had the tort not occurred
56
What duty regarding loss does a claimant have in a claim seeking damages?
Duty to mitigate
57
What are the three forms of pecuniary (financial) losses?
- Loss of past income
- Loss of future income
- Expenses
58
What are the deductions when calculating loss of past income?
Tax, national insurance, and sick pay, leaving only net pay
59
How is loss of future income assessed if claimant is unable to return to work?
Multiplying claimant's pre-accident annual income by number of years of lost income
60
How is loss of future income assessed if claimant is limited in return to work?
Multiplying difference between claimant's original and reduced salary by number of years of lost income
61
When assessing future loss of income where claimant has shortened life expectancy, what is the term for the period the claimant can recover damages for?
Lost years
(including living expenses for those years)
62
What are the two types of expenses that can be claimed as remedy for personal injury?
- Costs of care (reasonable costs, including relatives' care)
- Costs of necessary medical treatment (no mitigation obligation to accept NHS over private)
63
Which type of non-pecuniary damages are awarded and not awarded to an unconscious injured claimant who does not experience pain and suffering?
- Can claim loss of amenity
- No damages for pain and suffering for period claimant is unconscious
64
What two types of damages can be recovered in damage to property?
- Damages based on cost of replacement or diminuation of value (if not destroyed)
- Consequential costs (e.g. hiring replacement)
65
Two categories of damages that can be awarded
| Depending on how damages calculated
- Special damages (can be precisely calculated - past loss of earnings & past expenses)
- General damages (must be assessed by court - nonpecuniary damages for pain and suffering & loss of amenity)
66
What happens to a case where a negligent defendant dies?
Case brought against their estate
67
Who can make a claim for damages for bereavement?
## Footnote
Think: who will be most sad when you die
- Spouse or civil partner
- Cohabiting partner (2+ yrs immediately before death)
- Parents - if deceased was an unmarried minor (under 18)
68
Who can claim damages for loss of dependancy and what is the requirement?
- Spouse, civil partner, cohabiting partner 2+ yrs, parents (incl. in-laws), children (incl. those treated as children & unborn), grandparents, grandchildren, and siblings
- Must have been financially dependant on deceased
69
What are the three acts concerning occupier's liability?
- Occupier's Liability Act 1957 (visitors)
- Occupier's Liability Act 1984 (trespassers)
- Defective Premises Act 1972 (builders and landlords)
70
Who is an occupier?
Someone with sufficient control over the premises
71
What are premises?
Land, buildings, garden, fixed structures (e.g. scaffolding) and movable structures (e.g. ladders)
72
What are the two special classes of visitors under the 1957 Act?
- Children - occupier should take more precautions to avoid harm
- Specialists - occupier can expect them to appreciate risks (e.g. electrician and wires)
73
How can an occupier discharge their duty to visitors?
- Warnings - doesn't absolve occupier unless it was sufficient to enable visitor to be reasonably safe (e.g. wet floor sign with alternative directions)
- Independant contractors - occupier duty discharged if acting reasonably in instructing contractor and takes reasonable steps to ensure competence
74
When a business occupier can and cannot exclude liability
- Cannnot exclude liability for death and personal injury
- Can otherwise exclude liability only if exclusion is reasonable and fair
75
What must take place for contractual exclusion?
## Footnote
Re visitor
The term excluding liability must be incorporated into the contract by being brought to visitor's attention before contract made
76
What is being described?
Adequate steps must be taken to bring the term excluding liability to the attention of the visitor before they encounter the risk for which the liability is excluded
Noncontractual exclusion
77
When is a duty owed under the 1984 Act?
- The occupier is aware of the danger (or ought to be)
- The occupier is aware trespasser may come into vicinity of the danger (or ought to)
- The danger reasonably requires protection from
78
What duty is owed to trespassers?
Duty to take such care as is reasonable to see trespasser does not suffer injury by reason of the danger concerned.
Duty does not cover damages
79
How can an occupier discharge their duty to trespassers?
Reasonable steps to give warnings of the danger or to discourage trespasser from incurring risk
80
A product manufacturer owes a duty of care to the end consumer. What two conditions must be satisfied?
- Manufacturer puts product into circulation in the form intended to reach end consumer
- No reasonable expectation/probability of intermediate examination
81
What kind of damage to property resulting from product defect is recoverable?
- Damage the defective product causes to other property
- Not damage caused to defective product itself (pure economic loss)
82
Which act?
Creates a regime of strict liability for damage caused by defectice products. Not necessary to prove defect arose because of defendant's fault
Consumer Protection Act 1987
83
What are the 4 elements of CPA 1987?
- Product contained a defect
- Claimant suffered damage
- Damage caused by defect
- Defendant is a producer, own brander, or importer
## Footnote
Does not need to prove defendant is at fault
84
Who are potential defendants under the CPA 1987?
- Manufacturer
- Own brander
- Importer
85
What term describes liability in a claim against two or more defendants under CPA 1987?
Joint and severally liable
86
Three limitations on damage recoverable under CPA 1987
- Damage to defective product itself cannot be recovered
- Damage to business property is cannot be recovered
- Property damage under £275 cannot be recovered
87
Four defences under the CPA 1987?
- No defect when product put into circulation
- Defendant did not supply product in course of business
- State of the Art Defence
- Contributory negligence
88
Statutes which expressly provide for civil claims
- Occupier's Liability Acts 1957 & 1984
- Consumer Protection Act 1987
89
When can an individual affected by public nuisance sue?
When they have suffered over and above the damage suffered by the class in general
90
Who can sue for public nuisance?
- Individual particularly affected
- Attorney General
91
What is private nuisance?
Unlawful intereference with the claimant's use and enjoyment of land.
Must be an ongoing nuisance (not isolated event)
92
In which tort can a claimant sue against intangible damage (noise, smell)?
Tort of nuisance
(not tort of negligence)
93
What is the difference in coverage between trespass to land and the tort of nuisance?
- Trespass to land deals with intentional and direct interference
- Tort of nuisance covers indirect damage
e.g. planting tree on someone else's land = trespass to land, gradual encroachment by tree roots = nuisance
94
Two situations NOT a defence to private nuisance
- Planning permission
- Coming to a nuisance (nuisance already been going on)
95
What are the three remedies for nuisance?
- Injunction
- Damages
- Abatement (DIY)
96
What is a defence to trespass to land?
Entry onto land to abate a nuisance with proper notice given
97
What is the difference between nuisance and Rylands v Fletcher?
Rylands v Fletcher does not require a continuing state of affairs. An isolated escape is sufficient
98
Three elements of the tort in Rylands v Fletcher
- Defendant brings onto their land something likely to cause harm if it escapes
- Defendant engaged in non-natural use of land; and
- The thing gathered on the land escapes and causes damage
99
Which rule are the below defences to?
- Unforseeable act of stranger
- Act of God
- Consent
- Contributory negligence
- Statutory authority
Rylands v Fletcher
100
What are the three types of nuisance?
- Public nuisance
- Private nuisance
- Rylands v Fletcher
101
In what type of law is pure economic loss generally recoverable?
Contract
102
What type of tort claim would be made if damage is caused accidentally?
Negligence
103
Duty of care extends to property damage as well as personal injury for which of the following:
- Occupier's Liability Act 1957
- Occupier's Liability Act 1984
- Defective Premises Act 1972
- Occupier's Liability Act 1957
- Defective Premises Act 1972
104
What 4 factors are considered to determine whether the interference is unreasonable in a private nuisance action?
- Whether the defendant's activity is motivated by malice
- Whether the claimant is abnormally sensitive to the defendant's activity
- The intensity and duration of the activity
- Whether the damage from the activity was reasonably foreseeable
105
What are the 2 defences to a private nuisance claim?
- Prescription (nuisance has been going on for 20+ yrs)
- The use is permitted by statute
106
What are the 3 requirements for statute to apply in a claim for breach of statutory duty?
- Claimant falls within class protected by statutory duty
- Statutory duty breached by defendant
- Claimant suffered type of damage statute intended to protect against
