Tort

Question 1

trespass to land

Answer 1

direct interference with claimant’s exclusive possession of the land

does not require intent to trespass, but the intent to enter the land

Question 2

Battery

Answer 2

intentional direct application of force to the claimant’s person

force=unwanted physical contact beyond what is generally acceptable in ordinary conduct of life
does not have to be person to person - can be throwing a ball that hits someone or knocks their hat off
must intend the application of force

Question 3

Negligence

Answer 3

a person owes a duty of care to another and breaches it. the breach causes damage

Question 4

When will courts imply a duty of care in a novel duty situation?

Answer 4

claimant is a foreseeable claimant - conduct must have caused a foreseeable risk of harm
there is a relationship of sufficient proximity between defendant and claimant
and
fair just and reasonable to impose the duty on the defendant

Question 5

Generally cant be liable for an omission as no general duty to act. Exceptions include:

Answer 5

special relationships (parent-child, teacher-student)
defendant has control over the victim (in police custody)
harm caused by third party under defendant’s control (parental duty to control child to prevent harm)
attempt a rescue –> duty not to make situation worse

Question 6

What does court consider in assessment of whether care used was reasonable?

Answer 6

the likelihood of harm arising and the seriousness of potential harm

practicability of precautions
social utility of the defendant’s conduct

Question 7

Duty of care is usually that to act with reasonable care, what a reasonable person would do. What duty of care is owed by skilled professionals?

Answer 7

act as a reasonably competent member of that profession

doctors also need to warn of material risks, which is patient dependent

Question 8

Duty of care for a child:

Answer 8

act as a reasonable child of the same age
if doing adult activity like driving a car, may be held to adult standard

Question 9

Res ipsa loquitur

Answer 9

doctrine implying that duty owed was breached in situation where there is no evidence of how a person’s harm came to be.

3 elements:
-accident wouldn’t normally happen without negligence
-no explanation for how the accident occurred
-the thing causing the accident is under the control of the defendant

Question 10

egg shell skull doctrine

Answer 10

take your victim as you find them
liable for full extent of harm even if the severity of it wasn’t reasonably foreseeable to you

Question 11

similar in type rule

Answer 11

if the type of harm was reasonably foreseeable but the manner in which it occurred wasn’t, still liable
ie left open flame, it’s knocked into manhole and explodes - burns were foreseeable

Question 12

What is pure economic loss

Answer 12

-damage to property that doesn’t belong to claimant
-cost of damage suffered by a defective product acquired by the claimant
-financial loss which does not flow from damage to the claimant’s person or property

Question 13

Is pure economic loss recoverable in an action in negligence?

Answer 13

generally not recoverable in negligence action
unless they arise from negligent misstatements by the defendant and:

-defendant knew the claimant was likely to rely on the defendant’s advice without independent enquiry
and
-advice is required for purposes made known to the claimant

Question 14

Consequential economic loss

Answer 14

unlike pure economic loss, CEL can be recovered along with damages for physical injury or physical damage to claimant’s property

ex. claimant bought fridge for £3000 and it shorts out soon after purchase: £3000 cannot be claimed bc that’s PEL
but if there was £500 worth of meat in the fridge that subsequently went off, can claim the £500 damages in negligence action

Question 15

Pure psychiatric harm

Answer 15

psychiatric harm that isn’t accompanied by any physical impact
for example, shock from seeing something happen
can only recover damages if primary or secondary victim and for medically recognised psychiatric conditions

Question 16

Consequential psychiatric harm

Answer 16

psychiatric harm along with physical injury
ordinary rules for recovery in negligence

Question 17

primary vs secondary victim of pure psychiatric harm

Answer 17

primary: in actual area of danger created by defendant
secondary: person outside that area and has to establish:
–they were present at scene or immediate aftermath
–sudden shock
–close ties with person endangered by negligence
and
–psychiatric harm was foreseeable

Question 18

Goal of damages in tort:

Answer 18

to put injured party in the position they would have been in had the tort not occurred

Question 19

Recoverable pecuniary (financial) losses from negligently inflicted injury of a living claimant

Answer 19

Loss of past income: between injury and trail/settlement based on net wages lost (after taxes and NI)

Loss of future income: difference between income before and after injury multiplied by number of years income will be lost
—>adjusted for contingencies of life and awarded as lump sum reflecting present value of the award amount

past and future expenses of medical treatment, care, equipment or modifications to claimant’s home
—>choosing private treatment doesn’t constitute failure to mitigate

Question 20

Recoverable nonpecuniary losses for PI

Answer 20

past and future pain and suffering, loss of amenity

Question 21

how is damage to property measured in PI

Answer 21

replacement costs if destroyed or cost of repair if repairable
plus consequential costs like hiring replacement while waiting for repair/replacement

Question 22

Special damages

Answer 22

those that can be precisely calculated at time of trial/settlement
past loss of earnings and past expenses

Question 23

General damages

Answer 23

those that need to be assessed by the court including future loss of earnings, expenses and any damages for pain and suffering and loss of amenity

Question 24

Bereavement damages

Answer 24

amount fixed by statute
only recoverable by spouse/civil partner/cohabitant of over 2 years or parents if deceased under 18 and unmarried

Question 25

loss of dependency damages

Answer 25

available if claimant an eligible dependent of the deceased (partner, children…) and financially dependent on them

Question 26

Occupiers’ Liability Act 1957

Answer 26

governs liability for injuries to visitors:
occupier common duty of care to see that the visitor will be reasonably safe using the premises for the purposes for which they were invited
duty to the person and their property

standard of “reasonable care”
may be required to take more care with respect to children as they are less careful than adults
warning may not be enough if no way around it
can exclude duty of care by contract or notice if clear and brought to the attention of the visitor before the contract or risk is encountered

Question 27

Occupiers’ Liability Act 1984

Answer 27

governs liability for injuries to non-visitors/trespassers

duty owed if trespasser if occupier is aware of danger or ought reasonably to be aware
occupier aware that trespasser may come into vicinity of danger (or ought to be)
and
danger is one against which it would be reasonable to expect the occupier to offer protection

duty to take such care that is reasonable in circs to protect against injury
doesn’t cover damage to property
warning is sufficient

Question 28

Occupier

Answer 28

someone who has control over the premises (owner or tenant in possession)
premise = buildings on the land and the land itself

Question 29

Defective Premises Act 1972

Answer 29

landlord obliged or permitted to carry out repairs to the premises has a duty of care in respect of defects in the state of the premises
defects within scope of repair obligations or rights which LL knew or ought to have known about
duty owed to anyone who might reasonably be expected to be affected by the defect
duty to take such care as is reasonable in all the circs to see that they are reasonably safe from PI or damage to property

Question 31

Manufacturer’s duty of care

Answer 31

Duty of reasonable care who uses the product if the manufacturer doesn’t expect it to be examined after leaving the manufacturer before reaching the consumer
Duty owed to anyone the manufacturer could reasonably foresee as likely to be affected by a defect in the product
Duty breached if claimant can show there was a manufacturing defect (product not manufactured as it should have been) or design defect (design fell below standard of reasonable care

Covers damages for PI and consequential economic loss

Question 32

Nuisance

Answer 32

Invasion of rights relating to the use and enjoyment of private or public property

Question 33

Public nuisance

Answer 33

Unreasonable interference with comfort and convenience of life of a class of the public

Question 34

When can a private citizens bring an action for public nuisance?

Answer 34

If they have suffered particular damage beyond that suffered by general public

Question 35

Private nuisance

Answer 35

Disputes between neighbouring land owners in which the defendant uses their land in a way which unlawfully or unreasonably interferes with the claimant’s use and enjoyment of the land
Can be physical damage, damage to enjoyment or encroachment

Question 36

Rule in Rylands v Fletch er

Answer 36

Strict liability when there is an escape of a dangerous thing from the defendant’s land in the course of a non-natural use of the land

Def brings something onto their land likely to cause harm if it escapes
Def engaged in non natural use of the land
And
The thing escapes and causes damage
Limited to foreseeable damage

Defences: unforeseeable act of a stranger, unforeseeable natural circs, contributory negligence and stat authority

Question 37

When does intervening act by claimant break chain of causation?

Answer 37

When claimant acted entirely unreasonably

Question 38

Damages for divisible injury

Answer 38

Apportioned between defendants
Need to sue them all to get full damages

Question 39

Damages for indivisible injury

Answer 39

Recover damages in full from any defendant
They can they recover part from other defendant (in portion decided by court)

Question 40

Damages for successive injuries

Answer 40

2nd defendant only liable for paying damages to extent they made situation worse

Question 41

Test for remoteness of damage

Answer 41

Was the claimant’s damage a reasonably foreseeable result of the defendant’s negligence?

If not, defendant not liable
Exceptions:
-egg shell skull rule - pre existing condition - take victim as you find them
-similar in type rule - type of harm reasonably foreseeable but way it happens is unforeseeable

Question 42

Egg shell skull rule

Answer 42

Claimant suffers from a pre-existing condition which causes the effect f the defendant’s negligence to be more severe than reasonably foreseeable
Take victim as you find them - so fully recoverable in negligence

Question 43

Similar in type rule

Answer 43

Claimant suffers the type of harm that would be reasonably foreseeable but the way it occurs is unforeseeable

(Ie open flame carries risk of burn, loss of high earner wages)

Question 44

Contributory negligence

Answer 44

Partial defence (but not in intentional torts like trespass to person)

Claimant’s failure to take reasonable care for own safety
Which contributes to harm suffered (whether the happening of the accident or the level of damage suffered)

Reduces damage to reflect claimant’s share of responsibility

Question 45

Voluntary assumption of risk

Answer 45

Complete defence
Claimant had full knowledge of risk and must have freely and voluntarily assumed it

Does not apply to road traffic accidents

Question 46

Defence of illegality

Answer 46

Can’t base a claim on your own illegal act
Can’t recover damages for harm suffered whilst taking part in criminal activity