Tort Flashcards
Negligence
An act or omission which breaches a duty of care owed by one party to another and as a consequence causes loss or damage to that party.
Duty of care
Was the C owed a duty of care?
Has D breached that duty by falling below the required standard of care?
Was Ds breach of duty the factual cause of Cs injury?
Was the damage suffered not too remote?
When is a duty of care established?
Road users, teachers, doctors.
How does duty of care relate to negligence?
Once a DOC is established the first element of a potential claim in negligence has been proved. Then establish whether the DOC has been breached.
Breach of duty
Ones behaviour has fallen below the standard expected by law.
Breach of duty
Ones behaviour has fallen below the standard expected by law.
Standard of care.
Relates to the test used by the court to assess whether the Ds actions are those of a reasonable person in all the circumstances.
Standard Expected
General - reasonable person
Professional - skilled/trained
Special - children/sports/unskilled/illness/emergencies/state of knowledge
Negligence - causation, remoteness and loss
Causation
Relates to the connection between the breach of duty and the harm suffered. The breach of duty must be both the factual and legal cause of harm.
Factual - what are the facts? on the balance of probabilities ‘but for’ the Ds negligence would the C have suffered the harm?
Exceptions - multiple potential causes
- multiple sufficient causes
- lost chance
Causation
Relates to the connection between the breach of duty and the harm suffered. The breach of duty must be both the factual and legal cause of harm.
Factual - what are the facts? on the balance of probabilities ‘but for’ the Ds negligence would the C have suffered the harm?
Exceptions - multiple potential causes
- multiple sufficient causes
- lost chance
Exeptions - multiple potential causes
Develop mesothelioma - compensation act 2006
Joint and several liability
Develops lung cancer = Barker
Any liable employers
Damage apportioned to time worked there.
Exeptions - multiple potential causes
Develop mesothelioma - compensation act 2006
Joint and several liability
Develops lung cancer = Barker
Any liable employers
Damage apportioned to time worked there.
Single cause of of harm
‘but for’ breach that substantially causes the harm will be sufficient to prove causation.
Materially contributed to harm
Breach that materially contributes to he harm will be sufficient to prove causation.
Materially increases risk of harm
materially increases risk of harm
Lost chance
negligent act that increases the risk of something happening
Lost chance
negligent act that increases the risk of something happening
Remoteness
Too remote a consequence of Ds negligence? Was the type/kind of damage reasonably foreseeable at the time that the breach of duty occurred?
Remoteness
Too remote a consequence of Ds negligence? Was the type/kind of damage reasonably foreseeable at the time that the breach of duty occurred?
Eggshel skull theory
Court will not allow the D to blame C’s pre-existing state of health for the consequences of the breach of duty suffered by C.
Novus actus interveniens
A new interviening act that breaks the chain of causation, meaning the original Ds negligent act is not the cause of the C’s loss/damage.
Novus actus interveniens
A new interviening act that breaks the chain of causation, meaning the original Ds negligent act is not the cause of the C’s loss/damage.
Negligence - remedies, economic loss and psychiatric harm
PI
Non pecuniary loss - comp for pain, suffering and loss of amenity.
Future pecuniary loss - financial loss C will suffer in years.
Death - Law Reform Act - allows the D’s claimants estate to continue the claim.
Fatal Accidents Act 1976
Seperate Claim for the benefit of the deceased claimants dependants.
Law Reform (MP) Act
- Pain, suffering and loss of amenity
- Loss of earnings
- care/services
- damage to property
- Funeral expense
Fatal Accidents Act
- bereavement award
- dependency claim for dependants suffering financial loss
- funeral expenses
-loss of consortium (loss of benefits in a family relationship)
Pure economic loss
- financial loss resulting in the harm caused by the negligent act
Consequental economic loss
- financial loss sustained due to another harm caused by negligence
Negligent misstatements
-duty of care can arise where the harm was pure economic loss
–special relationship
–voluntary assumption of risk
–reliance
–reliance was reasonable in circs
Psychiatric Harm
- recognised psychiatric illness caused by a sudden shock or horrifying event.
It is more than grief, sorrow or sadness.
Primary Victim
- one in the physical zone of danget or reasonably believes that they are in danger
Secondary victim
- normally bystanders not within the physical zone of danger and will not have suffered physical harm.
- must satisfy the test laid down by Alcock.
Alcock control mechanism
- test the court uses to ascertain whether there is a DOC owed in cases involving psychiatric injury
a) the class of persons recognised
b) closeness of the C
c) the means by which the shock is caused
Alcock control mechanism
- test the court uses to ascertain whether there is a DOC owed in cases involving psychiatric injury
a) the class of persons recognised
b) closeness of the C
c) the means by which the shock is caused
Defences
Consent
Contributory Negligence
Illegality
Consent
Comp consented to he activity that carried a risk of harm.
Two elements:
1) C had full knowledge of risk
2) C voluntarily accepted the risk
Volenri non fit injuria
- there can be no injury to one who consents
Contributory Neglience
Relates to C’s failure to take reasonable care of their own safety and as a result the C will be found to have contributed to the harm caused.
Illegality
Ex turpi causa non critur actio - from a dishonerable cause an action does not arise.
Complete Defence
- Equally to blame 50%
- injuries prevented 25%
- injuries less severe 10%
- No difference 0%
Vicarious Liability
The principle that dictates that someone other than the third party that carried out the negligent act will be liable for C’s injury.
- an employer/employee relationship must exist.
- employee must have committed a tort
- tort must be committed in the course of employment
Joint Tortfeasors
a tortfeasor is a person responsible for committing or carrying out the tort. A joint tortfeasor relates to the fact that there may be more than one person responsible for committing the tort and causing the harm/damage to C.
Employers Liability
Relates to the duty of both common and statutory law an employer has in respect of their employees.
An employer is expected to provide:
- competent staff
- adequate plant and equiptment
- a safe system of work
- safe premises
Occupiers Liability
1957 - Protects lawful visitos
1984 - Protects trespassers
Visitor - one that has a right to enter, or one that is invited, or one whos presence has not been objected to.
Trespassser - one that goes onto land without any invitation and who’s presence may be unknown to the occupier or if known, is objected to.
Defences to Occupiers Liability Act
Occupiers cannot exclude liability for death or personal injury
-Consent
-Restrict/modify/exclude duty
-warnings
-contributory negligence
Product Liability
Common Law - Narrow rule (Donoghue)
Statutory Law - Consumer Protection Act
Common law =
Manufacturer
Products
Ultimate consumer
Intermediate examination
Product Liability - Defences
- Consent
- Contributory Negligence
- Exclusion of liability
Consumer Protection Act
- provides protection for PI and some damage to property caused by a defect in a product. If a product is defective the manufacturer will be liable.C does not have to prove duty, care and breach - only that the defective product has caused injury = strict liability
Strict liability
- where the manufacturer is liable without proof of fault.
Elements to be proved:
- damage - PI- defect - product - who is liable?
Defences
- claim within 3 years of injury/damage
Claim can be brought under both common law and CPA
Common law- C needs to prove negligence - will need to cover costs of product.
CPA - strict liability - does not have to cover cost
Damage to property must exceed 275 pounds.
Nuisance and Rylands v Fletcher
Private - protects individuals in the enjoyment of their property and land
Public - protects a class of people in the enjoyment of a common right
Nuisance is the tort that deals with the interference of land
Private nuisance - unlawful interference with a persons use or enjoyment of land. eg noise, smell, dust, fumes, physical damage, natural features eg trees
Who can sue?
Only those with exclusive possession rights to the land or property.
Who can be sued?
- the creator of the nuisance
- the occupier of the land
- a landlord that authorises a nuisance
C must suffer injury, harm or damage.
Public Nuisance
- a tort and also a crime and involves PI or other harm. Must effect:
- a class of people
- C must have suffered special damage
Public nuisance is an act of omission that materially effects the reasonable comfort and convienence of life of a group or class of people.
Class of people: local community, wider impact on public, highway users, groups with common characteristics.
Public nuisance
Damage can be claimed for
- damage to property
- PI
- economic loss
Who can sue?
- Anyone effected by public nuisance
- The AG
- Local authority
- an individual
Public nuisance
Who can be sued?
- the creator of the nuisance
- the person responsible for the nuisance
Defences
- consent
- contributory negligence
Prescription - private only statutory authority
Act of god
unforeseeable act of a stranger
necessity
planning permission
came to the nuisance
public benefit
contributoy to negligence
Public nuisance
Remedies
- injunction
- damages
Injunction - court order that prevents the activity causing the nuisance to continue
Damages - compensation
where the harm is small and can be quanified in financial terms and can be compensated by damages, it would be oppressive to grant an injunction.
Rylands v Fletcher
- specialised form of private nuisance
THE RULE
Did the D bring and collect something onto the land likely to do mischief?
V
Is the collection brought onto the land non-natural?
V
is there a possibility that damage would occur if the thing brought onto the land escaped?
V
Did the escape cause damage to C’s land?
R v F = defences
- statutory authority
- act of god
- unforseeable act of stranger
- consent to common benefit
Remedies
- damages
cannot bring a claim for PI
Duty of care
The caparo three stage test
Three limbs must be established
1) it was reasonably foreseeable that the defendants failure to take care could cause damage to C.
2) there was a relationship of proximity between C and D.
3) it is fair, just and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause damage to C.
