Tort Flashcards
What does a claimant have to prove to succeed in an action for negligence?
- A duty of care was owed
- The defendant breached the duty of care
- The claimant suffered damage as a result of the breach
3.1) For which the claimant must prove that the defendant’s negligence actually caused the damage
3.2) And that the damage caused was not too remote
How do courts tend to hold professionals liable for giving ‘advice’ vs. ‘information’?
Professionals are more likely to be held liable for negligent advise given as opposed to information provided. However, advice not information should not be approached rigidly - instead it should be governed objectively.
What may break the chain of causation in a negligence action?
- The conduct of the claimant (contributory negligence)
- An independent act of nature
- The third party’s intervening act was either intentional or reckless (NAI)
What are three potential defences in an action for private nuisance?
- Prescription - where the claimant has allowed the nuisance to continue for 20 years without complaining
- Statutory Authority - where parliament has authorised a particular act, any action against that nuisance is prohibited - provided that the statutory powers are not exercised negligently.
- Lawful Use of the Land - Where the alleged nuisance arose from lawful use of the land.
Define ‘defective product’ under the consumer protection act of 1987.
A product has a defect if “the safety of the product is not such as persons generally are entitled to expect.” (S 3(1) CPA).
In a claim for personal injury, can damages be paid either in a ‘lump sum’ or ‘periodical payments’?
It must be paid as a LUMP SUM.
Which statutes prevent the use of consent as a defence to breach of duty of care?
S 149 Road Traffic Act prevents the use of consent by motorists facing claims from their passengers.
S 2 Unfair Contract Terms prevents the use of consent as a defence by people actin gin the court of business. A persons awareness or agreement to a term in a contract that purports to exclude or restrict liability for negligence will not itself be taken as an indication of voluntary acceptance of any risk.
S 65(1) Consumer Rights Act prevents traders from using contractual terms and notices to limit or exclude liability for death or personal injury through negligence.
Due to a driver’s negligent driving, his passenger was seriously injured in a road traffic accident. When
emergency services attended the accident scene, the car was found to contain a large packet of cocaine which the driver and passenger were planning to sell later.
Which one of the following statements best describes the position in relation to defences in the tort of
negligence?
Select one alternative:
a) It is unlikely the driver can rely on the defence of illegality because the crime committed by the passenger was not sufficiently serious.
b) It is likely the driver can rely on the defence of illegality because both he and his passenger were
planning to sell cocaine. The passenger’s claim would be negated.
c) It is likely the driver can rely on the defence of illegality because the cocaine was in the car. The
passenger’s claim would be negated.
d) It is likely the driver can rely on the defence of illegality because both he and his passenger were
planning to sell cocaine. The passenger’s damages would be reduced.
e) It is unlikely the driver can rely on the defence of illegality because there was not a direct link between
the passenger’s injury and the illegal act
e) It is unlikely the driver can rely on the defence of illegality because there was not a direct link between
the passenger’s injury and the illegal act
A man leaves his car unlocked with the keys in the ignition whilst he runs into his local shop to buy some milk.
A teenager drives off in the car, failing to stop at a red light and hitting an eight-year-old girl as she crosses the road. The girl is seriously injured. The man is not insured in relation to the vehicle.
Which of the following statements is most accurate regarding whether a duty of care was owed by the man to the eight-year-old girl?
Select one alternative:
a) It is very unlikely that the man owed the eight-year-old girl a duty of care; it was a third party that caused
the harm.
b) The man might owe a duty of care to the eight-year-old girl if a reasonable driver would not have left their keys in the ignition.
c) The man might not owe a duty of care to the eight-year-old girl as he was not insured.
d) The man might owe a duty of care to the eight-year-old girl as he created the dangerous situation.
e) The man might not owe a duty of care to the eight-year old girl as he did not know her.
d) The man might owe a duty of care to the eight-year-old girl as he created the dangerous situation.
A chain of restaurants has numerous branches. Each branch has an appointed manager who is responsible
for its day to day operations. A new employee begins working in one of the kitchens on a particularly busy day, so the manager does not train him first. The manager has failed to train new employees on several occassions previously. The new employee suffers burns when he lifts a boiling pan of soup from the hob.
Which of the following most accurately describes all of the available claims in tort?
Select one alternative:
a) The new employee can bring a claim against the manager in general negligence and vicariously against the owner of the restaurants.
b) The new employee can bring a claim in employers’ primary liability against his employer, the owner of
the restaurants.
c) The new employee can bring a claim in employers’ primary liability against the manager and vicariously
against the owner of the restaurants.
d) The new employee can bring a claim against the manager in general negligence and vicariously against the owner of the restaurants. The new employee and manager can also bring a claim in employers’ primary liability against the owner of the restaurants.
e) The new employee can bring a claim against the manager in general negligence and against the owner of the restaurants vicariously for the manager’s tort. The new employee can also bring a claim in
employers’ primary liability against the owner of the restaurants.
e) The new employee can bring a claim against the manager in general negligence and against the owner of the restaurants vicariously for the manager’s tort. The new employee can also bring a claim in
employers’ primary liability against the owner of the restaurants.
What is the rule with regards to company’s advising employees to bring their own protective equipment?
A charity employs a member of staff to disinfect donated clothes using spray chemicals. The disinfecting takes place in the basement where there are no windows; it is therefore poorly ventilated. The employee is provided with a face mask, but not given any instructions on when and how to use it. The employee finds wearing the face mask makes it difficult to breathe and decides not to use it. Shortly afterwards the employee develops a lung disease as a consequence of the exposure to the disinfectant.
Which of the following best describes the charity’s liability for the employee’s disease?
Select one alternative:
a) The charity will not be in breach of the employers’ primary duty of care because it provided the employee with proper safety equipment. It was the employee who chose not to wear it.
b) The charity will not be in breach of the employers’ primary duty of care for failing to provide a safe place
of work due to the poor ventilation because it provided face masks.
c) The charity will be in breach of the employers’ primary duty of care for failing to provide a safe place of work due to the poor ventilation and also for failing to provide a safe system of work by not encouraging
the use of the face mask.
d) The charity will be in breach of the employers’ primary duty of care as the employers’ duty of care is non- delegable and strict.
e) The charity will be in breach of the employers’ primary duty of care by not providing adequate ventilation in
the basement.
c) The charity will be in breach of the employers’ primary duty of care for failing to provide a safe place of work due to the poor ventilation and also for failing to provide a safe system of work by not encouraging
the use of the face mask.
A delivery company is recruiting self-employed drivers to protect itself from vicarious liability should any accidents occur. The contracts state that the drivers are (1) self-employed; (2) required to work a minimum of four shifts per week; (3) able to work for other companies; and (4) able to send substitute drivers to carry out their shifts. The drivers will be paid according to the hours they drive and will not be entitled to holiday or sick pay.
Which of the following best describes the potential liability the delivery company may face if one of their
driver’s commits a tort whilst driving?
Select one alternative:
a) The drivers will be employees as they seem fully integrated into the business of the company; therefore the company could be held vicariously liable for the drivers’ torts.
b) The drivers will be independent contractors but the company will still be vicariously liable for the drivers’
torts.
c) The drivers will be independent contractors and therefore the company will not be vicariously liable for the drivers’ torts.
d) The drivers will be employees as the company has the requisite control to be the drivers’ employer;
therefore the company could be held vicariously liable for the drivers’ torts.
e) The drivers will be employees as there is mutual obligation between the drivers and the company;
therefore the company could be vicariously liable for the drivers’ torts.
c) The drivers will be independent contractors and therefore the company will not be vicariously liable for the drivers’ torts.
