Tort Flashcards
What elements do you need to bring a successful claim under the Consumer Protection Act 1987 (‘CPA’).
The manufacturer is a potential defendant under the CPA as producer of the pipe. The pipe is defective because its safety was not such as persons generally are entitled to expect. The manufacturer is liable to the worker because he suffered damage caused by the defect in the product. Liability under the CPA is strict; it is not necessary to prove that the defect was caused by any fault on the part of the manufacturer. On the facts, there is no defence to the claim under the CPA, as discussed below.
What is the duty owed under the Occupiers’ Liability Act 1984.
An occupier owes a duty to a trespasser provided the following are satisfied: the occupier is aware of the danger (the company knew of the defect); the company was aware that a trespasser may come into the vicinity (it was aware of the youth’s previous trespasses); and it would be reasonable to expect the occupier to offer protection (the defect was serious and dangerous). The duty is to take reasonable care to see that the trespasser does not suffer injury. The duty does not cover damage to property.
When does a ‘state of the art’ defence apply under the CPA 1987?
This defence applies where the producer could not have discovered the defect because of the state of scientific and technical knowledge at the time. However, this defence has been narrowly interpreted. It does not apply where the risk of a defect is known about, even if the knowledge does not exist to enable it to be avoided.
What is the limitation period for a non-personal injury negligence-based claim?
When does the time start to run from?
The limitation period for a non-personal injury (‘PI’) negligence-based claim is six years. The time starts to run from the accrual date, which is the date the tortious act occurred.
A woman is considering buying a second-hand car from a private seller. The woman asks the seller whether the car has been involved in any accidents, and the seller says that it has not. Relying on the seller’s statement, the woman buys the car. She then learns that the car had previously been written off as a result of an earlier accident of which the seller had not been aware.
Can the woman recover damages for the misrepresentation?
Yes, unless the seller can prove that they had reasonable grounds for making the statement.
The seller’s statement appears to have been a representation on which the woman relied. The seller was not aware of the accident, so the misrepresentation was not fraudulent. In cases of non-fraudulent misrepresentation, the innocent party can recover damages arising from the misrepresentation unless the party who made the misrepresentation can prove that they had reasonable grounds for believing, and did believe, that it was true. The burden of disproving negligence is, therefore, on the person who made the misrepresentation.
Where an injury is divisible, how can the claimant recover damage?
Since both employers are each only liable to pay damages for the share of the injury which each caused, the worker would need to pursue a claim against both employers to recover his damages in full.
For the tort of assault, does the party apprehending the force from the defendant have to be scared/fearful?
No, there is no requirement of FEAR, just an apprehension of force.
True or false? Voluntary assumption of risk is a complete defence in an action by an employee against an employer.
True but unlikely
True or false - The previous landowner who had planted trees whose roots are now encroaching on the claimant’s property next door can be sued for private nuisance?
True
