Tort Flashcards
What is Trespass to Land?
When does Negligence arise?
- When a person owes a duty of care to another
- Breaches duty
- Breach CAUSES damage
What happens if there is no duty of care established?
Novel duty:
Courts will imply duty of care only if:
1. Claimant is a foreseeable claimant (conduct must have caused foreseeable risk of harm)
2. Relationship of sufficient proximity
3. Fair, just and reasonable to impose duty on defendant
Can a person be liable for omission?
Generally, no, becuase there is no duty to act. Exceptions to this are:
1. Special relationship (parent/child)
2. Defendant has control over victim
3. When harm is caused by third party under defendants control
4. Rescue attempt: duty not to make things worse
What is the standard of care for a duty owed?
Duty to act with REASONABLE CARE - objective standard
Courts will consider in deciding reasonableness:
1. Likelihood of harm
2. Seriousness of potential harm
3. Practicability of precautions + Social Utility
Who owes a special duty of care
Skilled defendants and professionals e.g. doctors
Must act as a reasonably competent member of that profession would.
Doctors: duty to warn patients of MATERIAL RISK OF TREATMENT - subjective test, based on patient
Standard of care of a child
Must act as a reasonable child of the same age would, but child doing adult things must be held to adult standard (driving)
What is Res ipsa loquitur?
Doctrine used to imply that duty owed was breached in situations where there is no evidence of how harm came to be
Three Elements:
1. Accident would not normally happen without negligence
2. No explanation of how accident occurred
3. Thing causing accident under defendants control
What are the components of Causation?
- Claimant must show on the balance of probabilities that BUT FOR the defendants breach, claimant would not have suffered harm
- if more than one cause acting together, claimant must show breach materially contributed to their harm - No new act intervened between breach and injury
- Claimant’s harm was reasonably foreseeable
- egg shell still applies
When will an intervening act break the chain of causation?
- If it was unforeseeable
e.g. doctors gross negligence when treating patient but not their ordinary negligence - Claimants own actions can break chain if unreasonable
What is the egg shell skull doctrine?
You must take your victim as you find them.
Unusually weak bones or refusal to medical treatment for religious reasons will not break chain.
What happens if two or more defendants breached a duty which led to an indivisible injury?
Claimaint can recover fully from either defendant
If one defendant can prove they paid more than their share of fault, they can seek contribution from other defendant
What happens if two or more defendants breached a duty which led to a divisible injury or if there is a successive injury?
Each defendant is liable for the proportion of the injury they caused4
Successive injury - claimant can recover from each defendant only for injury caused by them
Types of Defences for Negligence
Contributory Negligence - partial defence to negligence
Voluntary Assumption of risk - complete defence:
1. claimant has full knowledge of risk
2. and freely, voluntarily assumes risk
Illegality - complete defence:
- if claimant was injured by defendant whilst undertaking a criminal activity, illegality applies
- does not apply to minor criminal activity
What is Pure Economic Loss and can it be recovered
General rule: not recoverable e.g.
1. Damage to property which does not belong to claimant
2. Cost of damage suffered by defective product
3. Financial loss that does not flow from damage to claimants person or property
When can Pure Economic Loss be recovered
When it arises from Negligent Misstatements by the defendant and:
1. defendant knew claimant would rely on them without independent enquiry
2. Advice is for purpose made known to defendant
What is Consequential Economic Loss and can be recovered
It can be recovered along with damages for physical injury or physical damage to claimants property
What is Pure Psychiatric Harm
Harm which is not accompanied by any physical impact. - special rules apply
If it is suffered along with physical injury, it is consequential psychiatric harm and ordinary rules apply
What do the special rules of PSH depend on?
Whether the victim was a primary or secondary victim
Primary: actual area of danger created
Secondary: outside area of danger
Must also establish:
1) present at accident or immediate aftermath
2) Sudden shock, close ties with person endangered
3) Psychiatric harm was foreseeable
Damages can only be recovered for medically recognised conditions
What is the duty of an employer to their employees?
To take reasonable care for the safety employees, including steps to
- reduce risk of psychiatric harm from stress
- safe system of work
- competent fellow staff
- safe plant, equipment and workplace
Is an employee is injured by equipment with latent defect due to third party, who is deemed negligent
The employer
Defences available for employers
Voluntary Assumption of risk
What is Vicarious liability
When will an employer be vicariously liable for torts committed by an employee
When will an employer be liable for their OWN breach of duty?
If it is a nondelegable duty
e.g. duty of care to employees, reasonable care in selecting contractor, duty when contractor is hired to carry out hazardous activities
What is the goal of damages in tort?
Put the injured party back in the position they would be in if tort had not occurred.
Claimant has duty to mitigate loss
