Tort Flashcards
1
Q
What is tort?
A
Civil wrong committed by one individual against another
2
Q
Purpose of tort law
A
Provide compensation to individuals in situations where their private individual interests have been infringed
3
Q
Example of when private interests may be infringed
A
Drinking contaminated bottle of ginger beer (donoghue v stevenson)
4
Q
Difference between tort and crime
A
criminal law - committed against society rather than individual
5
Q
Name of someone who commits a tort
A
Tortfeasor
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.
7
Q
Fault liability meaning
A
Rule that victims are strictly liable for their losses unless the injurer is at fault. Deters others
8
Q
Strict liability meaning
A
can be committed without defendant being at fault in any way.
9
Q
Why can strict liability be unfair?
A
Defendant can be liable to pay damages even if harm was not preventable
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
11
Q
Corrective justice
A
Putting individual back in position they were in before incident possibly through payment of damages or apology
12
Q
Retributive system
A
based on justice and aims to prevent wrong doing
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
14
Q
Disadvantages of tort
A
-Creates compensation culture
-Negligence brought against state bodies
-System abused by fraudulent claims
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
16
Q
Private nuisance
A
unreasonable interference with a persons property where affected property owner seeks remedies
17
Q
Defamation
A
Communicating false statements about a person that injures their reputation
18
Q
False imprisonment
A
Person intentionally restricts another persons movements without legal authority, justification or permission
19
Q
Trespass to land
A
Act of remaining or entering land without right to do so
20
Q
Trespass to the person
A
Wrong doings done to individual e.g. assault, battery and false imprisonment
21
Q
Negligence case
A
Blyth v Birmingham Waterworks Co.
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
23
Q
3 types of harm negligence protects against
A
Personal injury/Damage to property/Economic loss
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
25
Example case of duty of care
Donoghue v Stevenson
26
Significance of Donoghue v Stevenson
House of Lords established the neighbour principle
27
Lord Atkin - neighbour principle
neighbour - someone you owe a duty of care to
-owe duty of care to anyone who could be affected by their action
28
Test for duty of care
Caparo
29
Caparo v Dickman
Dickman negligently prepared accounts making company sound like it was doing better than it was
30
Significance of Caparo v Dickman
Established 3 part test for establishing duty of care
31
3 components of Caparo test
reasonably forseeable/proximity/fair,just and reasonable
32
Proof of duty of care in order
Donaghue, Robinson and Caparo if robinson not satisfied
33
case of forseeablilty
Bourhill v Young
34
Bourhill v Young
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
35
Example case of Proximity for duty of care
McLoughlin v O'Brien
36
What happened in McLoughlin v O'Brien
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
37
Significance of McLoughlin v O'Brien
Claimant entitled to recover for psychiatric injury recieved.
House of Lords extended class of persons considered proximate to immediate aftermath of event
38
Omission
Not doing something you should have done
39
Test for just, fair and foreseeable
Policy test - judges able to limit extent of the tort through judicial discretion
40
Reason for policy test
floodgates argument where there's a risk of opening claims by huge number of claimants
41
Case for fair,just and reasonable
Hill v Chief Constable of West Yorkshire
42
Hill v Chief Constable of West Yorkshire
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
43
Significance of Hill v Chief Constable of West Yorkshire
Police would be sued by lots of people if Hill successfully sued e.g everyone police haven't caught
44
Reasonable man test definition by Alderson B
Omission to do something a reasonable man would do or doing something they would not do
45
The four tests for breach of duty of care
-Degree of prob that harm will be done
-magnitude of likely harm
-cost and practicality of preventing risk
-Potential benefits of the risk
46
Extra factors of breach of duty of care
Special characteristics of defendant e.g the novice
Professional persons
47
Case for degree of probability harm will be done
Bolton v Stone
48
Bolton v Stone
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
49
Case for magnitude of likely harm
Paris v SBC
50
Paris v SBC
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.
51
Case for cost and practicality and preventing risk
Latimer v AEC
52
Latimer v AEC
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.
53
Case for potential benefits of risk
Daborn v Bath tramways
54
Daborn v Bath Tramways
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
55
Case for Novice
Nettleship v Weston
56
What standard is learner driver held to?
Same as every other driver
57
Case for professional persons
Bolam v FHMC
58
Bolam v FHMC
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
Significance of Bolam v FHMC
House of Lords formulated Bolam Test
60
Bolam Test
Medical professional not guilty of negligence if they asked in accordance with a practice and they agreed
61
What is the standard of care for a professional person?
Expected to show they have degree of competence usually expected of a typical skilled member of profession
62
Mullin v Richards
standard of care expected of children
Different from adults therefore more careful and reasonable
63
Case for resulting damage
Barnett v Chelsea &Kensington HMC
64
Barnett v Chelsea & Kensington HMC
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
'but for' test
Causation decided using this
Would damage have been done if it wasn't for defendants breach of duty
66
Two issues involved in Resulting damage
Causation and Remoteness of damage
67
Intervening Act
Something that breaks the chain of causation
68
Facts speak for themselves
res ispa loquitur
69
meaning of damage is not remote
Not too removed from defendants negligence
70
What case has been overruled by Wagon mound
Re Polemis
71
Re Polemis
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
Significance of Re Polemis
Held that there was a requirement that damage is foreseeable
Defendant liable for all direct consequences of their actions
73
Wagon Mound
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
What was held in Wagon Mound?
Defendant not liable for damage of property as major damage too remote from original oil discharge
75
Foreseeability of damage
relates to kind or extent of damage suffered
76
Case for foreseeability of damage
Smith v Leech Brain
77
Smith v Leech Brain
Defendant found liable of death of man burned on lip by hot metal due to defendants negligence as it caused cancer
78
Egg shell rule/thin skull rule
Defendant must take victim as they find them in regard to physical characteristics
79
Types of personal injury
physical/psychiatric
80
Primary victim
individual that has been harmed first hand
81
Secondary victim
Person who suffers psychiatric injury as a result of another person's negligence but was not exposed to danger
82
How many died at Hillsborough
96
83
When was Hillsborough disaster
1989
84
Extra Case for fair, just and reasonable
Alcock v Chief Constable of South Yorkshire
85
Alcock v Chief Constable of South Yorkshire
10 plaintiffs claim against South Yorkshire police for damage by nervous shock from witnessing Hillsborough disaster
86
What was significance of Alcock v South Yorkshire police
Held that claimant should show a sufficiently proximate relationship to the victim
-Test for secondary victim
87
Test for secondary victim
-Close tie of love and affection
-See it with own senses
- not including siblings, grandparents unless they are guardians
88
order of tort of negligence
-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
Years of both occupiers liability act
1957 and 1984
90
What is a visitor?
Under common law - a person who has to express or implied permission to enter the premises
91
case for Four categories of occupier
Wheat v Lacon & co
92
Four categories of occupier
Tenants
Landlords
owners
Independent contractors
93
5 stages of OLA 1957
-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
Occupier
Anyone who is in control of the land
95
What did OLA 1957 establish
A common duty of care - occupier under duty to keep visitor reasonably safe
96
OLA 1957 guidelines on applying standard of care
Children/professional person/warning/independent contractor
97
children standard of care case OLA 1957
Phipps v Rochester
98
Phipps v Rochester
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
What did Phipps v Rochester establish
responsibility of young children rests with parents
100
Case for giving warning of danger
Tomlinson v Congleton
101
Tomlinson v Congleton
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
Case for danger caused by independent contractors
Haseldine v Daw
103
Haseldine v Daw
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
Defences to OLA 1957
+ Warning of danger
+ Contributory negligence
+ Consent
+ Exclusion of liability
105
What does OLA 1984 entail
Duty owed to persons other than visitors
106
Case before OLA 1984
Addie v Dumbreck
107
Addie v Dumbreck
Only duty not to inflict harm wilfully
108
Duty under OLA 1984
Occupier owes duty if aware of danger/believes that others in the vicinity of danger/risk where he'll have to offer protection
109
Current case for OLA 1984
British railways board
110
British railways board case
board knew there was hole in fence by the railway and a child suffered severe burns from going through hole onto railway line.
111
What did the house of lords to in relation to british railway board case
used 1966 practice statement to depart from Abbie v Dumbreck precedent and held DOC should be owed to tresspassers
112
Two main remedies for tort
Damages and Injunctions
113
Damages
put injured party in same position they were in if the tort not occurred
114
Injunctions
Court order instructing a party to do or refrain from doing something. Mostly in cases of nuisance
115
Types of damages
General, special, nominal, contemptuous, aggravated and exemplary
116
General damages
Damages that flow from the negligence and cannot be given exact figure
117
Special damages
calculated specifically at time of trial
118
nominal damages
Damages awarded when there has been little or no harm caused and court wants to owe small amount
119
When are nominal damages used for
No proof of damage required
120
contemptuous damages
awarded when level of harm low and court believes action
121
aggravated damages
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
exemplary damages
punitive damages - purpose to punish d from committing tort- Lord Devlin
123
Mitigation of loss
Claimant is entitled to be compensated for his loss but is under duty to keep loss at a reasonable level
124
Case for mitigation of loss
Barracuda Networks
125
Barracuda Networks case
Refused any offered aid and sank and couldn't claim since they wouldn't accept help
126
Two forms of injunction
Prohibitory and Mandatory
127
Prohibitory injunction
Instruct defendants not to behave in a certain way
128
Mandatory injunction
instruct defendant to take action to correct the situation created by the tort
129
What torts are injunctions used for?
nuisance, trespassing and defamation
130
Interim injunctions
instructs defendant not to behave in a certain way and is granted once action has begun but before court hearing
131
Types of injunction
Quia timet and interim
132
Quia timet injunction
An extreme remedy granted to prevent a legal wrong before it occurs
133
Case for Quia timet injunction
Fletcher v Bealey
134
Fletcher v Bealey
Manufacturer of paper needed large quantity of water and produced industrial waste in river which affected other companies. The claimant wanted an injunction
135
What did judge pearson say to fletcher v bealey
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
When is interim junction granted?
if claimant undertakes to pay damage to the defendant for any loss sustained as a result of injunction
137
What do courts try to balance in terms of injunctions
Must weigh one need against another and determine where the balance of convenience lies
138
equity
fairness
139
Equitable remedy
fair solution and discretion of court and not a right
140
Maxims
Rule of equity and determine when equitable remedy might be awarded
