Tort Flashcards
What is Trespass to Land?
Unlawful direct interference with the claimant possession of land.
Need not intent to commit the tort of trespass or know land belongs to another
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?
- CAUSATION IN FACT: 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
- DAMAGE NOT TOO REMOTE; 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
- failure to take reasonable care for own safety, which contributes to harm
- need not cause accident, must contribute to damage suffered
Voluntary Assumption of risk - complete defence:
1. claimant has full knowledge of risk
2. and freely, voluntarily assumes risk
- does not apply to passengers in road traffic accidents
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
Special Relationship Exclusion
When economic loss is caused by negligent statement or representation and;
- advice required for purpose known to defendant
- defendant knew
1) advice communicated to claimant for that purpose
2) claimant likely to rely on it without independent enquiry
- Claimant actually relied on advice
- Must have been reasonable for claimant to do so
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 and extends to economic loss which is consequential to physical injury or damage.
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. owed a duty of care provided there was a foreseeable risk of physical injury to them.
Secondary: outside area of danger
Must also establish:
- Sudden shocking event
1) Witnessed events with their own unaided senses
2) present at accident or immediate aftermath
3) close ties with person endangered
4) 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 - adequate supervision
- competent fellow staff - adequate training
- safe plant, equipment and workplace
If an employee is injured by equipment with latent defect due to third party, who is deemed negligent
Employers Liability (Defective Equipment Act):
Employer deemed negligent if
- defect in equipment cause by fault on part of someone
- if employee can establish cause of defect, can prove breach of duty on part of employer
Defences available for employers
Voluntary Assumption of risk - employee voluntarily accepted the risk of defendants negligence - full appreciation and consent to risk required
Contributory Negligence - failed to take reasonable steps for safety
What is Vicarious liability
Liability of one person for a TORT committed by another - liability without fault
When will an employer be vicariously liable for torts committed by an employee
A tort committed by employee in the course of employment against another person, including negligence and criminal actions
Factors to consider:
- Disobedience to Instructions -
prohibition limiting scope of employment - breach outside court of employment
limits manner in which carried out - breach inside course of employment - Deviation from Route: degree of deviation: has the employee started a separate journey?
What is a relationship akin to employment?
Someone not technically employed but have a relationship ‘akin’ to employment making it is fair, just and reasonable to impose vicarious liability;
- Tort committed as a result of activity undertaken by tortfeasor in behalf of defendant
- Tortfeasor’s activity integral to defendants business
- Defendant created the risk of the tort by assigning the activity to the tortfeasor
CLOSE connection required
When will an employer be liable for their OWN breach of duty?
Employer is not vicariously liable for tort of an independent contractor
Employer engaging an independent contractor may become PERSONALLY LIABLE:
1. If it is in breach of 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
- If in breach of duty to take care in selecting a competent contractor
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
What are the recoverable pecuniary losses resulting from negligently inflicted injury for a LIVING claimant
- Loss of Past Income (between injury and trial/settlement based on net wages)
- Loss of future income: a)difference in income before and after injury b) adjusted for contingences in life c) lump sum
- IF claimant has shortened life expectancy due to injury, claimant can recover damages for the income they would have earned during those lost years. - reduction made to account for living expenses
- Cost of Care recoverable
- Cost of Medical Treatment recoverable (regardless if private) - Non-Pecuniary Losses
Recoverable non-pecuniary losses
- Past and Future pain and suffering
- Past and Future loss of amenity
Person in coma can recover only loss of amenity
How is damage to property measured
- Replacement costs - if destroyed
- Costs of repair - if repairable + consequential costs (replacement until repaired)
What are Special Damages
Those that can be precisely calculated at the time of trial, including:
- past loss of earnings and past expense
What are General Damages
Those that need to be assessed by court, including:
- future loss of earning and future expenses
- pain and suffering, loss of amenity
What damages are recoverable if the victim dies
- Existing tort cause of action survives Claimaint
- estate can recover damages for pain and suffering + loss of amenity + expenses and loss of earnings up to death
- No claim for death itself and after death
- Contributory negligence considered
- Defamation claims don’t survive
- cause of action against a defendant who dies aswelll also survives and may be brought against their estate. - If deceased would have been able to bring a tort claim on account of negligent act that caused their death. they can seek:
a) Bereavement:
- only by deceased’s spouse or civil partner or cohabitate of 2+ years
- or deceased parents if under 18, unmarried
b) Loss of Dependency:
- dependant of deceased (children./ spouse/ parents/ grandparents/children/ siblings) and financially dependant on them
c) Funeral expenses recoverable if tort caused victims death
What is Occupiers Liability
Liability for injuries whilst on someone’s property due to state of premise being covered by:
- OLA1957: injuries to visitors
- OLA 1984: injuries to non-visitors
Who is an occupier
Person who has CONTROL over premise
e.g. owner in possession of premise, tenant etc
What is the duty owed by an occupier to a permitted visitor
- Common duty of care - reasonably safe using premise
- Extra care for children
- A visitor entering for their own calling expected to appreciate and guard against special risks
- Warning is not enough, must provide alternative routes
5.Independent contractors will only be liable if occupier:
a) took reasonable care in entrusting work to them
b) were satisfied they were competent + work properly done
How can an Occupier exclude their duty of care
- Contract or Non-Contractual Notice
- Any exclusions must be reasonable, clear and brought to attention of visitor BEFORE
- Contractual Exclusion: brought to attention of visitor before contract made
- Non-Contractual:
CANNOT exclude of liability for death or personal injury in course of business, other liability only if reasonable
Defences of VAR and CN apply.
Can a duty be owed to a trespasser
Yes if:
1. Occupier is aware/ought to be aware of danger
2. Aware/ought that a trespasser may come in vicinity of danger
3. Reasonably expected for the occupier to offer protection from danger;
4. Duty to take reasonable care that trespasser doesn’t suffer injury by danger
- warning is enough
- does not concern damage to property
Defences can apply: CN, VAR
Duty of care of a Builder/Landlord under Defective Premises Act 1972
- A landlord must repair known or reasonably known defects within their repair obligations.
- The landlord must ensure tenants are reasonably safe from personal injury or property damage.
Builders - provide dwelling fit for habitation
Where can a claimant bring a claim for a defective product?
- Contract Claim - strict liability, requires privity of contract
- cost of defective good can be recovered - Common Law Negligence - proof of negligence (duty of care>breach>caused damage)
- Consumer Protections Act 1987 - strict liability
Requirements for Liability based on Negligence
Defendants: Manufacturers, wholesalers, retailers, assemblers, repairers
Claimant: anyone reasonably foreseeable to be affected by the defect (consumers, their families, friends, etc.).
Liability: Failure to exercise reasonable care in supplying product:
- Manufacturing defect
- Design defect (design below reasonable care standards).
Defences: Assumption of risk and contributory negligence
To whom is the manufacturer’s duty of care owed?
Anyone the manufacturer could reasonably foresee being affected by a defect, including consumers, their families, friends, neighbours, bystanders, etc.
Is the duty of care owed by the retailer?
No, unless the defective product is one for which inspection is expected, then the retailer owes a duty to reasonably inspect.
What damages does the manufacturer’s duty cover?
Covers personal injury and consequential economic losses.
Q: What does the Consumer Protection Act 1987 (CPA) establish?
A: A regime of strict liability for damage caused by defective products.
Q: Under the CPA, what must a claimant prove?
A: The product was defective (unsafe), not that there was fault (negligence).
Q: Who can be a potential defendant under the CPA?
A: The manufacturer, anyone holding themselves out as the manufacturer (e.g., store-branded goods), and anyone who imported the product.
Q: Under what conditions can the supplier (retail seller) be a defendant?
1.The claimant requests the name of one of the above parties (manufacturers, importers etc) from the supplier.
- It isn’t reasonably practicable for the claimant to identify those persons independently AND
- The supplier doesn’t identify the manufacturer or importer.
Q: What types of damages are recoverable under the CPA?
A: Personal injury and property damage.
Pure economic damage (damage for the product alone) isn’t recoverable.
Q: What types of damage are not recoverable under the CPA?
- Damage to the defective product itself
- Damage to business property is not covered
- Property damage which does not exceed £275
Pure economic loss is also not recoverable
Q: What are some examples of defects that can make a product unsafe?
- Inadequate instructions and warnings.
- Misleading product packaging or marketing.
- The product being unsafe for a reasonably expected use.
Q: What are some defences under the CPA?
- The defect didn’t exist when the product was supplied.
- The defendant wasn’t acting in the course of business/ with view to profit.
3.’State of the art’ defence (no technical knowledge to make a safer product at the time). - Contributory negligence.
Liability cannot be excluded or limited under CPA
Q: What can be used to prove tort liability if a statute imposes a duty under the circumstances in which the claimant was injured?
Breach of that duty (rather than the duty owed under the negligence standard) can be used to prove tort liability.
Includes duties in The Occupiers’ Acts and the Consumer Protection Act.
Q: Can breach of duty under the Health and Safety at Work Act be used in a civil case?
A: No, if the Act provides that a breach of duty under the act can’t be used in a civil case, the standard doesn’t apply.
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Q: What must a claimant show in a breach of statutory duty case?
A: That they are within the class of persons intended to be protected by the statute.
What is a Nuisance
A: Nuisance is the invasion of rights relating to the use and enjoyment of private or public property.
Q: What are the two principal types of nuisance?
Public: An unreasonable interference with the comfort and convenience of life of a CLASS OF PUBLIC (e.g., obstruction of a highway).
Private: Conflicting uses of land
e.g. disputes between neighbouring landowners where the defendant’s use of land unlawfully or unreasonably interferes with the claimant’s use and enjoyment of their land.
Q: When can a private citizen bring an action for public nuisance?
A: Only if the private citizen has suffered particular damage beyond that suffered by the general public.
e.g A private citizen whose windshield was struck and broken by a golf ball from a golf course
Q: What types of interference can be involved in private nuisance?
- Physical damage (e.g., flooding, vibration),
- Damage to enjoyment (e.g., noise, dust, smells),
- Encroachment (e.g., overhanging tree branches).
Q: What is a key exam tip regarding nuisance versus negligence?
A: Intangible damage such as noise or smells is sufficient for a nuisance action but not for negligence. Negligence requires physical or economic harm.
Q: What factors do courts consider in determining what is unreasonable in a nuisance case?
- The intensity
- Duration of the interference,
- Character of the neighbourhood at the time
- Whether the claimant is abnormally sensitive,
- Malice
Q: Who can bring a suit for nuisance?
A: Anyone with a proprietary interest in the land, such as the owner, a landlord, or a tenant.
Q: Who can be sued for causing a nuisance?
A: The person who causes the nuisance or allows their employees to cause it.
Q: What are the defences to a nuisance claim?
- Prescription (the nuisance has been going on for 20 years or more and has been actionable during that time)
- Statutory authorization.
Q: What are non-defences to a nuisance claim?
- That planning permission was granted for the use
- The nuisance existed before the claimant came to it (“coming to the nuisance”).
Q: What remedies are available for nuisance?
A: An injunction and/or damages.
Injunction - courts look at all circumstances
Q: What does the rule in Rylands v Fletcher entail?
A: Imposes strict liability for the escape of a dangerous thing from the defendant’s land in the course of a non-natural use of the land.
Q: What are the conditions for liability under Rylands v Fletcher?
- The defendant brings something onto their land likely to cause harm if it escapes
- The defendant was engaged in a NON-NATURAL USE of the land
- The thing escapes and causes damage.
Q: What are the defences under the rule in Rylands v Fletcher?
- Escape caused by an
a) unforeseeable act of a stranger,
b) an unforeseeable natural circumstance,
c) the claimant’s contributory negligence,
d) statutory authority.
