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Tort Flashcards

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1
Q

What is tort?

A

Civil wrong committed by one individual against another

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2
Q

Purpose of tort law

A

Provide compensation to individuals in situations where their private individual interests have been infringed

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3
Q

Example of when private interests may be infringed

A

Drinking contaminated bottle of ginger beer (donoghue v stevenson)

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4
Q

Difference between tort and crime

A

criminal law - committed against society rather than individual

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5
Q

Name of someone who commits a tort

A

Tortfeasor

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6
Q

How did the law of tort develop?

A

Used at end of 16th century/based on idea that defendant is at fault in some way.

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7
Q

Fault liability meaning

A

Rule that victims are strictly liable for their losses unless the injurer is at fault. Deters others

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8
Q

Strict liability meaning

A

can be committed without defendant being at fault in any way.

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9
Q

Why can strict liability be unfair?

A

Defendant can be liable to pay damages even if harm was not preventable

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10
Q

Rylands v Fletcher 1868

A

Established case law - person who keeps dangerous substance on their land and escapes causing damage to neighbours property may be held strictly liable for damage caused

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11
Q

Corrective justice

A

Putting individual back in position they were in before incident possibly through payment of damages or apology

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12
Q

Retributive system

A

based on justice and aims to prevent wrong doing

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13
Q

Advantages of tort

A

-victim can be compensated for damage
-Individuals deterred from committing acts or emissions that could hurt others
-If no tort, those who suffered injuries would be unable to claim compensation
-Supports rule of law

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14
Q

Disadvantages of tort

A

-Creates compensation culture
-Negligence brought against state bodies
-System abused by fraudulent claims

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15
Q

Lord Reed - Clapham Omnibus

A

-Hypothetical person used by English law
-necessary to decide whether a party has acted as a reasonable person would
-average reasonable person who can be measured against defendant

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16
Q

Private nuisance

A

unreasonable interference with a persons property where affected property owner seeks remedies

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17
Q

Defamation

A

Communicating false statements about a person that injures their reputation

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18
Q

False imprisonment

A

Person intentionally restricts another persons movements without legal authority, justification or permission

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19
Q

Trespass to land

A

Act of remaining or entering land without right to do so

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20
Q

Trespass to the person

A

Wrong doings done to individual e.g. assault, battery and false imprisonment

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21
Q

Negligence case

A

Blyth v Birmingham Waterworks Co.

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22
Q

Blyth v Birmingham waterworks co.

A

failing to do something which the reasonable person would do or doing something which the reasonable person would not do

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23
Q

3 types of harm negligence protects against

A

Personal injury/Damage to property/Economic loss

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24
Q

3 elements of negligence

A

Duty of care/breach of duty of care/claimant suffered damage as a result of breach and damage not remote

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25
Q

Example case of duty of care

A

Donoghue v Stevenson

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26
Q

Significance of Donoghue v Stevenson

A

House of Lords established the neighbour principle

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27
Q

Lord Atkin - neighbour principle

A

neighbour - someone you owe a duty of care to
-owe duty of care to anyone who could be affected by their action

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28
Q

Test for duty of care

A

Caparo

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29
Q

Caparo v Dickman

A

Dickman negligently prepared accounts making company sound like it was doing better than it was

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30
Q

Significance of Caparo v Dickman

A

Established 3 part test for establishing duty of care

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31
Q

3 components of Caparo test

A

reasonably forseeable/proximity/fair,just and reasonable

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32
Q

Proof of duty of care in order

A

Donaghue, Robinson and Caparo if robinson not satisfied

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33
Q

case of forseeablilty

A

Bourhill v Young

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34
Q

Bourhill v Young

A

Pregnant coming from bus and heard a motor accident then saw blood on road that made her suffer a shock resulting in the baby becoming stillborn.
negligent driving forseeable
injury of Bourhill not forseeable - not in immediate facility

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35
Q

Example case of Proximity for duty of care

A

McLoughlin v O’Brien

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36
Q

What happened in McLoughlin v O’Brien

A

husband and 3 kids suffered car accident by lorry driver where 1 child was killed. Wife went to hospital and suffered severe shock, depression and personality change. She brought action against defendant for psychiatric injury

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37
Q

Significance of McLoughlin v O’Brien

A

Claimant entitled to recover for psychiatric injury recieved.
House of Lords extended class of persons considered proximate to immediate aftermath of event

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38
Q

Omission

A

Not doing something you should have done

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39
Q

Test for just, fair and foreseeable

A

Policy test - judges able to limit extent of the tort through judicial discretion

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40
Q

Reason for policy test

A

floodgates argument where there’s a risk of opening claims by huge number of claimants

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41
Q

Case for fair,just and reasonable

A

Hill v Chief Constable of West Yorkshire

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42
Q

Hill v Chief Constable of West Yorkshire

A

family of Victim of serial killer claimed negligence against police for their failing duty to catch killer sooner. Court held that there was no duty of care as it would not be fair or reasonable to impose on police for for omission as it creates a door for others to claim

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43
Q

Significance of Hill v Chief Constable of West Yorkshire

A

Police would be sued by lots of people if Hill successfully sued e.g everyone police haven’t caught

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44
Q

Reasonable man test definition by Alderson B

A

Omission to do something a reasonable man would do or doing something they would not do

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45
Q

The four tests for breach of duty of care

A

-Degree of prob that harm will be done
-magnitude of likely harm
-cost and practicality of preventing risk
-Potential benefits of the risk

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46
Q

Extra factors of breach of duty of care

A

Special characteristics of defendant e.g the novice
Professional persons

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47
Q

Case for degree of probability harm will be done

A

Bolton v Stone

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48
Q

Bolton v Stone

A

Hit by cricket ball while standing outside ground on road which is rare as no one had been injured like this before as fence 17ft

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49
Q

Case for magnitude of likely harm

A

Paris v SBC

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50
Q

Paris v SBC

A

mechanic blind in one eye which employers were aware of but did not provide him with safety goggles. He was blinded in his good eye by metal. Employers argued that goggles were not needed for this activity but counter argued better care should have been taken as they were aware of eye.

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51
Q

Case for cost and practicality and preventing risk

A

Latimer v AEC

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52
Q

Latimer v AEC

A

Owner of factory used sawdust to reduce effects of recent flood but factory floor remained slippery. An employee fell and injured themselves. However there was no breach as in order to avoid slippery floor, they would have to close which was not proportionate to the level of risk as they would lose money.

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53
Q

Case for potential benefits of risk

A

Daborn v Bath tramways

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54
Q

Daborn v Bath Tramways

A

Hit by left hand ambulance due to no indicators during war time. court of appeal held that a lower standard of care than usual was applied because ambulance acted in public good and it would be unreasonable to convert to right

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55
Q

Case for Novice

A

Nettleship v Weston

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56
Q

What standard is learner driver held to?

A

Same as every other driver

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57
Q

Case for professional persons

A

Bolam v FHMC

58
Q

Bolam v FHMC

A

Undergoing electric convulsive therapy for mental illness. The doctor did not give relaxant drugs as there was a small risk of death. However there was a small risk of fracture if relaxant was not given which happened to claimant.

59
Q

Significance of Bolam v FHMC

A

House of Lords formulated Bolam Test

60
Q

Bolam Test

A

Medical professional not guilty of negligence if they asked in accordance with a practice and they agreed

61
Q

What is the standard of care for a professional person?

A

Expected to show they have degree of competence usually expected of a typical skilled member of profession

62
Q

Mullin v Richards

A

standard of care expected of children
Different from adults therefore more careful and reasonable

63
Q

Case for resulting damage

A

Barnett v Chelsea &Kensington HMC

64
Q

Barnett v Chelsea & Kensington HMC

A

claimants husband went to hospital for vomiting and severe stomach pain. The doctor refused to examine him in A&E and advised him to go to GP. He died of arsenic poisoning hours later. Defendant held not liable as husband would have died anyway

65
Q

‘but for’ test

A

Causation decided using this
Would damage have been done if it wasn’t for defendants breach of duty

66
Q

Two issues involved in Resulting damage

A

Causation and Remoteness of damage

67
Q

Intervening Act

A

Something that breaks the chain of causation

68
Q

Facts speak for themselves

A

res ispa loquitur

69
Q

meaning of damage is not remote

A

Not too removed from defendants negligence

70
Q

What case has been overruled by Wagon mound

A

Re Polemis

71
Q

Re Polemis

A

Dropped wooden plank onto hold of ship which struck something while falling which caused a spark which ignited by petrol resulting in ship destruction

72
Q

Significance of Re Polemis

A

Held that there was a requirement that damage is foreseeable
Defendant liable for all direct consequences of their actions

73
Q

Wagon Mound

A

defendant negligently discharged fuel from his own ship into Sydney Harbour and oil drifted across wharf where welding works took place. The claimant advised that there was no risk of fire but oil ignited and damaged property.

74
Q

What was held in Wagon Mound?

A

Defendant not liable for damage of property as major damage too remote from original oil discharge

75
Q

Foreseeability of damage

A

relates to kind or extent of damage suffered

76
Q

Case for foreseeability of damage

A

Smith v Leech Brain

77
Q

Smith v Leech Brain

A

Defendant found liable of death of man burned on lip by hot metal due to defendants negligence as it caused cancer

78
Q

Egg shell rule/thin skull rule

A

Defendant must take victim as they find them in regard to physical characteristics

79
Q

Types of personal injury

A

physical/psychiatric

80
Q

Primary victim

A

individual that has been harmed first hand

81
Q

Secondary victim

A

Person who suffers psychiatric injury as a result of another person’s negligence but was not exposed to danger

82
Q

How many died at Hillsborough

A

96

83
Q

When was Hillsborough disaster

A

1989

84
Q

Extra Case for fair, just and reasonable

A

Alcock v Chief Constable of South Yorkshire

85
Q

Alcock v Chief Constable of South Yorkshire

A

10 plaintiffs claim against South Yorkshire police for damage by nervous shock from witnessing Hillsborough disaster

86
Q

What was significance of Alcock v South Yorkshire police

A

Held that claimant should show a sufficiently proximate relationship to the victim
-Test for secondary victim

87
Q

Test for secondary victim

A

-Close tie of love and affection
-See it with own senses
- not including siblings, grandparents unless they are guardians

88
Q

order of tort of negligence

A

-Is duty of care owed - neighbour principle, Robinson, Caparo test
-Was defendant in breach of duty - 4 test
-Was damage caused to claimant as a result of breach - but for

89
Q

Years of both occupiers liability act

A

1957 and 1984

90
Q

What is a visitor?

A

Under common law - a person who has to express or implied permission to enter the premises

91
Q

case for Four categories of occupier

A

Wheat v Lacon & co

92
Q

Four categories of occupier

A

Tenants
Landlords
owners
Independent contractors

93
Q

5 stages of OLA 1957

A

-Was claimant lawful visitor
-Has occupier satisfied his duty of care
-Was claimant lawful child visitor
-Was claimant carrying out a trade
-Was claimant independent contractor

94
Q

Occupier

A

Anyone who is in control of the land

95
Q

What did OLA 1957 establish

A

A common duty of care - occupier under duty to keep visitor reasonably safe

96
Q

OLA 1957 guidelines on applying standard of care

A

Children/professional person/warning/independent contractor

97
Q

children standard of care case OLA 1957

A

Phipps v Rochester

98
Q

Phipps v Rochester

A

5 year old fell down trench while playing on council - owned ground. The court held that the parents should have been supervising their child

99
Q

What did Phipps v Rochester establish

A

responsibility of young children rests with parents

100
Q

Case for giving warning of danger

A

Tomlinson v Congleton

101
Q

Tomlinson v Congleton

A

visited artificial lake where allowed canoeing/windsurfing and angling in other area. Swimming or diving was not permitted and he ignored the warning sign and dived in lake. He broke his neck and left tetraplegic

102
Q

Case for danger caused by independent contractors

A

Haseldine v Daw

103
Q

Haseldine v Daw

A

Lift plunged but occupier was not liable as lift work id highly specialised. The occupier was not liable as they were not specialised and did not build lift

104
Q

Defences to OLA 1957

A

+ Warning of danger
+ Contributory negligence
+ Consent
+ Exclusion of liability

105
Q

What does OLA 1984 entail

A

Duty owed to persons other than visitors

106
Q

Case before OLA 1984

A

Addie v Dumbreck

107
Q

Addie v Dumbreck

A

Only duty not to inflict harm wilfully

108
Q

Duty under OLA 1984

A

Occupier owes duty if aware of danger/believes that others in the vicinity of danger/risk where he’ll have to offer protection

109
Q

Current case for OLA 1984

A

British railways board

110
Q

British railways board case

A

board knew there was hole in fence by the railway and a child suffered severe burns from going through hole onto railway line.

111
Q

What did the house of lords to in relation to british railway board case

A

used 1966 practice statement to depart from Abbie v Dumbreck precedent and held DOC should be owed to tresspassers

112
Q

Two main remedies for tort

A

Damages and Injunctions

113
Q

Damages

A

put injured party in same position they were in if the tort not occurred

114
Q

Injunctions

A

Court order instructing a party to do or refrain from doing something. Mostly in cases of nuisance

115
Q

Types of damages

A

General, special, nominal, contemptuous, aggravated and exemplary

116
Q

General damages

A

Damages that flow from the negligence and cannot be given exact figure

117
Q

Special damages

A

calculated specifically at time of trial

118
Q

nominal damages

A

Damages awarded when there has been little or no harm caused and court wants to owe small amount

119
Q

When are nominal damages used for

A

No proof of damage required

120
Q

contemptuous damages

A

awarded when level of harm low and court believes action

121
Q

aggravated damages

A

damages awarded over and above that needed to put claimant back in position they were in before tort occurred. It’s additional money for because initial harm made worse with aggravated factor

122
Q

exemplary damages

A

punitive damages - purpose to punish d from committing tort- Lord Devlin

123
Q

Mitigation of loss

A

Claimant is entitled to be compensated for his loss but is under duty to keep loss at a reasonable level

124
Q

Case for mitigation of loss

A

Barracuda Networks

125
Q

Barracuda Networks case

A

Refused any offered aid and sank and couldn’t claim since they wouldn’t accept help

126
Q

Two forms of injunction

A

Prohibitory and Mandatory

127
Q

Prohibitory injunction

A

Instruct defendants not to behave in a certain way

128
Q

Mandatory injunction

A

instruct defendant to take action to correct the situation created by the tort

129
Q

What torts are injunctions used for?

A

nuisance, trespassing and defamation

130
Q

Interim injunctions

A

instructs defendant not to behave in a certain way and is granted once action has begun but before court hearing

131
Q

Types of injunction

A

Quia timet and interim

132
Q

Quia timet injunction

A

An extreme remedy granted to prevent a legal wrong before it occurs

133
Q

Case for Quia timet injunction

A

Fletcher v Bealey

134
Q

Fletcher v Bealey

A

Manufacturer of paper needed large quantity of water and produced industrial waste in river which affected other companies. The claimant wanted an injunction

135
Q

What did judge pearson say to fletcher v bealey

A

There must be prood of imminent danger if no actual damage is proved and there must also be proof that apprehended damage will be substantial

136
Q

When is interim junction granted?

A

if claimant undertakes to pay damage to the defendant for any loss sustained as a result of injunction

137
Q

What do courts try to balance in terms of injunctions

A

Must weigh one need against another and determine where the balance of convenience lies

138
Q

equity

A

fairness

139
Q

Equitable remedy

A

fair solution and discretion of court and not a right

140
Q

Maxims

A

Rule of equity and determine when equitable remedy might be awarded

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