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
