Tort Flashcards
General Principles of Tort
• allows person to claim compensation when they’ve been injured or their property has been damaged
• individual parties involved are claimant and defendant
• state is usually not concerned with tort law, action is between the persons involved in the incident
• if claimant is successful in proving their case, they will ask court to award a remedy
Burden and Standard of Proof
• in civil law, the burden of proving that the defendant is liable is on the claimant
• the standard of proof is the balance of probabilities - this means that it’s more likely than not that the C is telling the truth
• the C has to establish that the D was at fault for the incident and responsible for the damage
• the civil courts of first instance are different from those that deal with criminal law
Fault or No Fault
• Fault was first introduced into negligence law in Cambridge Water v Eastern Counties Leather 1994. Before that, fault was not always necessary for damages to be paid
• Fault means that there is some wrongdoing by the D and is a requirement in torts such as;
- negligence
- occupiers liability
- psychiatric damage
- pure economic loss caused by
negligent misstatement
However it’s not required in torts such as;
- nuisance
- Rylands v Fletcher
- vicarious liability
For these torts the C doesn’t need to show how or why the incident happened - simply that it did, and then establish a casual link to the damage suffered
Remedies
Remedies for successful action can include;
• damages - money calculated to return the C to their original position before the tort had taken place
• injunctions - a court order to stop
NEGLIGENCE PLAN
• intro
Negligence is when the D owes a duty of care to the C and they breach it, resulting in damage
• duty of care
Use caparo test for novel cases (proximity, foreseeability, fair+reasonable)
Otherwise, Robinson v CCWY
1- *is it foreseeable that D could affect C in some way? Kent v Griffiths
2- previous similar case that shows a duty of care exists
• breach of duty
Looks at the behaviour of D, 2 parts
1- set standard of care - how we expect D to behave (reasonable man test Blyth v BWW) (other cases if relevant: bolam - reasonable professional, mullin - reasonable child)
inexperience is not relevant nettleship v weston
2- risk factors to consider if D fell below this standard;
> likelihood of harm (size of risk) bolton v stone
> seriousness of harm Paris v Stepney
> reasonable precautions Latimer v AEC
> social benefit (IF relevant) Watt v Herts
• resulting damage
The harm caused/losses suffered
The harm must be:
1- caused by the breach would not have happened ‘but for’ the breach (D’s negligence) Barnett v C+K Hospital
2- not too remote from the breach must prove that D could have foreseen the damage.
Only general type of damage has to be reasonably foreseeable bradford v RR. If not, it is too remote (not reasonably foreseeable - C cannot sue wagonmound
Thin skull rule - if there is something unusual about C that makes their harm/losses worse, D is still liable as long as the original incident is foreseeable (Smith v Leach Brain & Co)
PSYCHIATRIC HARM PLAN
•intro
Psychiatric harm is when C claims for mental trauma rather than physical injury. The first thing we must prove is negligence.
(Already proved/don’t need to go through if it’s a 5/10 mark q)
•need a recognised psychiatric injury
(Not just emotions like grief) Behrens
And must be able to prove it Hicks v CCWY
•primary victims can always sue
people in the danger zone and it’s foreseeable they were at risk of physical harm Dullieu v White
•secondary victims must pass 4 part test from Alcock v CCWY
1- there must be a close tie of love and affectionwith a primary victim
2- they must have been proximate to the event or the immediate aftermath
3- they must have witnessed it with their own unaided senses
4- they must have received a psychiatric injury as result of shocking event
•threshold test
We must prove that a reasonable person would have suffered a psychiatric injury from this event
However if u have a condition that has been made worse by it, you can still sue (thin skull rule will apply) Page v Smith
•remedy is damages (non-pecuniary so general damages)
Main aim is to put you back into the original position you would have been in if the tort had not happened
ECONOMIC LOSS (NEGLIGENT MISSTATEMENT) PLAN
•intro
Economic loss is where the C suffers financially rather than physically
Courts concerned that there could be limitless claims in some situations so it’s usually not recoverable, even if D has been negligent (Murphy v Brentwood BC)
However there r some exceptions to this
•pure and consequential economic loss
The courts distinguish between two types of economic loss;
1. consequential - arises due to physical damage/injury and is recoverable
2. pure - not recoverable
•negligent misstatement
The exception to this is negligent misstatement
You can sue for pure economic loss if it had happened because of bad advice, carelessly given
•special relationship
Hedley Byrne v Heller tells us C can sue if there was a ‘special relationship’ between D and C, there does not need to be any contractual relationship between them
•criteria from Caparo v Dickman
Must be met in order to establish a special relationship;
1- the person giving the advice must have some special skill or knowledge in that area. Doesn’t have to be a professional in a business context (Chaudry v Probhkar)
2- advice must be communicated directly to C
3- D must know who they were advising and (roughly) what it would be used for and that C is likely to rely on it (Reeman v Dept for Transport)
4- reasonable for C to rely on the advice
5- C did rely on advice and suffered a loss because of it (JEB Fasteners)
6- D didn’t give a disclaimer to stop them being sued (SPATA)
•remedy is damages (pecuniary loss so special damages)
Main aim of tort
PRIVATE NUISANCE PLAN
•intro
Private nuisance is the unlawful interference with C’s use and enjoyment of the land
It’s a strict liability tort - no need to prove fault/carelessness
•3 types of private nuisance (from Hunter v Canary Warf)
1- encroachment
2- direct injury to the land
3- interference with C’s quiet enjoyment of the land (Wheeler v Saunders)
•3 criteria to prove
1- C must have an interest in the land (some legal right to it). This could be coz of ownership, tenancy, etc (Foster v Warblington)
Doesn’t include friends or family (Khorasandjian v Bush)
2- must be an unreasonable use of the land.
The court looks at factors such as
> time and duration of the nuisance (Spicer Bros)
> the character of the area (_St Helen’s smelting)
> whether D acted maliciously (Hollywood Silver Fox Farms)
If C is over sensitive claim will not succeed (Robinson v Kilvert)
3- must be some harm/damage or inconvenience, this must be reasonably foreseeable (the Wagonmound)
•do not excuse a nuisance;
- having planning permission (Wheeler v Saunders)
- C moving to the nuisance (Miller v Jackson) (ie D was there first)
•defences to nuisance
- prescription
- statutory authority
•D can still be sued even if they did everything they could to avoid a nuisance (Adams v Ursell)
•remedy most likely to be injunction but not if it’s against public interest (Miller v Jackson)
Otherwise damages could be awarded for the harm or inconvenience (depends what the harm is)
Main aim of tort
RYLANDS V FLETCHER PLAN
•intro
This is when something escapes from D’s land and causes harm to C’s land
Strict liability tort - no need to prove fault/carelessness
•4 criteria;
1- something was brought to land and kept there
Can’t have already been there (Giles v Walker)
2- there must be a ‘non-natural’ use of the land
Something extraordinary that would not normally be there. Ellison v MOD says that we can take the purpose of the land into account, BUT Tansco says that if u keep large amounts of chemicals on land it will always be non-natural
3- thing brought onto land is likely to do harm if it escapes
Doesn’t have to be something hazardous (R v F it was water)
4- there must be an escape and it must cause some damage that is reasonably foreseeable
If there’s no escape there can be no liability (Read v Lyons)
BUT it doesn’t have to be the thing brought to the land that escapes and causes the harm (Miles v Forest Granite Co)
The damage must be predictable (Wagonmound/Cambridge Water v Eastern Counties Leather)
•defences for R v F
- Act of God (vis major) eg bad weather Nicholas v Marsland
- Actions of a Third Party Rickards v Lothian
- Consent - C gave D permission to keep dangerous thing there
- Common Benefit - C was also getting benefit form dangerous thing being on Ds land
- Statutory Authority - an act of parliament said D was allowed to keep dangerous thing there
- Contributory Negligence can also apply is C also partly to blame for damage
•remedy is damages (usually pecuniary because it’s property damage, so special damages are usually awarded
Main aim of tort
DEFENCE OF CONTRIBUTORY NEGLIGENCE
•It’s a statutory defence from the law reform (contributory negligence) act 1945
• 2 criteria;
- the C risked their own safety in a way that contributed to their own injuries
- even if the claimant didn’t foresee the risk of this, a reasonable man would have done.
• case examples;
Sayers v Hanow BC → C was locked in a toilet cubicle and stood on toilet roll holder to get out. Damages reduced by 25%
Froom v Butcher → C wasn’t wearing a seatbelt when car crashed. Their damages reduced by 20%
•the effect:
it’s a partial defence - it doesn’t end the claim but it allows C’s damages to be reduced by however much the court thinks they were at fault
For this reason - it’s seen as a better compromise as a defence (less harsh)
DEFENCE OF CONSENT
•its a common law defence (comes from case law)
General defence for all torts
•2 criteria;
- D consented to the risk and fully appreciated the risks they were taking
- D consented to the risk voluntarily (of their own free will)
•case examples;
Morris v Murray > C consented to drunken joy ride in D’s plane
RTA 1988 > doesn’t apply to drunken drivers. Cannot plead the defence if they caused u an injury
Smoldon v Whitworth and Nolan > C can consent to sporting injuries (particularly contact sports) but only if it’s part of the game
•the effect
It’s a full defence so there’ll be no claim (which is why courts often prefer contributory negligence - less harsh)
