Tort Flashcards
What are examples of intentional torts?
Trespass to land
Trespass to the person
Trespass to goods
What are the elements to Trespass to land?
Possession - Claimant must have exclusive possession of the land
Land - This includes not just the surface but also subsoil and airspace up to a height necessary for ordinary use of land
Unlawful direct interference - Person’s action creates contract with the land i.e. walking, driving over it,
Intention - Committed by a volitional act of entering the land or causing an object to enter the land
what variations of trespass to person are there?
Battery
Assault
False Imprisonment
what are the elements of trespass to the person via battery?
Battery - the intentional direct application of unlawful force to the claimant.
Unlawful Force - Includes any unwanted physical contact that is not generally acceptable in ordinary conduct of everyday life.
Direct contact - Application of force must come into contact with the claimant’s person, this includes striking, taking hold and throwing something
Intention - Applying force must be volitional
what are the elements of trespass to person via assault?
Assault - An intentional act which causes the claimant reasonably to apprehend the immediate and direct infliction of unreasonable force.
Intention - Defendant must have intended the claimant to apprehend the use of force.
Apprehension of Force - Claimant must be aware of the threat of force; no assault is committed if the claimant is unaware of the threat.
what are the elements of trespass to person via false imprisonment?
Unlawful - ‘False’ imprisonment means that the constraint must be unlawful.
Intention - Defendant’s actions in constraining the claimant’s freedom of movement must be intentional.
Constraint on freedom - ‘Imprisonment’ refers to actions which deprive the claimant of freedom of movement. this must be a complete constraint
what are the elements to trespass of goods?
Interference - An act upon another’s goods that goes beyon what is acceptable in everyday life.
Intention - Must intend to do the act of interference. Defendant need not intent to commit the tort of trespass
what is conversion in relation to trespass of goods?
Conversion happens when the defendant’s actions are inconsistent with the rights of the owner to such an extent as to exclude the owner from use and possession of the goods.
What is the definition of Negligence?
Negligence is the breach of a legal duty to take care, resulting in damage to the claimant.
What elements are required to show negligence?
Duty of care owed by the defendant.
Breach of that duty.
Defendant’s action caused the damage.
Established Duties of Care
Examples of relationships where a duty of care exists:
Doctor to patient
Employer to employee
Manufacturer to consumer
Exceptions include the police’s failure to apprehend offenders, where no duty is owed
What are Novel Duty situations?
Situations where no previous authority establishing the existence of a duty of care so courts develop the law incrementally.
What elements do the court consider for novel duty situations?
Foreseeability of harm.
Proximity between claimant and defendant.
Fairness, justice, and reasonableness.
Omissions to act
A person does not have a legal duty to act, Exceptions to this rule can be:
Special relationships i.e. parent and child and control i.e. someone under arrest by the police.
Breach of Duty – Reasonable Person Test
A breach occurs if the defendant’s actions fall below the standard of a reasonable person. The test is objective and impersonal i.e. the defendant’s lack of knowledge and experience are not taken into account.
Factors of the Reasonable Person Test
Magnitude of risk (likelihood and seriousness of harm).
Practicability of precautions.
Social utility of the defendant’s actions.
Types of defendants
Under-skilled defendants: Cannot rely on lack of skill to argue that were not in breach. They will be held to the standard of care to be expected by that certain activity
Skilled defendants: Defendants who exercise a particular skill are required to meet the level of skill of a reasonably competent member of that profession.
Children in tort matters
There is no minimum age for liability of tort. A child will be expected to meet the standard of a reasonably child of the same age as the defendant. The standard of care is objective.
Res Ipsa Loquitor
This is the principle where in some cases there may be an ansence of any kind of explanation of how the incident happened. Therefore, the courts may infer a breach of duty on this basis.
requirement for Res Ipsa Loquitor to apply?
- Absence of any explanation for how the incident occurred
2.The thing which causes the accident must have been under the control of the defendant
- The accident must be such as would not normally happen if proper care was taken.
What are the three stages of establish causation of damage
Causation in fact
No new intervening acts
Damage not too remote
What is Causation in Fact?
The “but for” test determines if the damage would not have occurred but for the defendant’s breach.
When would the “but for” test not apply?
When a claimant faces two or more alternative possible causes of loss. Or one injury resulting from a number of different causes acting together, it is only required to prove the defendant’s breach was material contribution to the loss.
What is Intervening Acts?
The chain of causation is broken if an unforeseeable act (by a third party, claimant, or natural event) occurs after the defendant’s breach.
What is Remoteness of Damage?
The damage must be reasonably foreseeable as a result of defendant’s negligence.
What are exceptions to Remoteness of Damage?
Eggshell Skull Rule: Take the victim as they found them
Similar in Type Rule: Liability exists even if the type of harm which would be reasonably foreseeable but the manner which it occurs is unforeseeable.
What are Divisible and indivisible injuries?
Divisible - Damages can be apportioned between defendants and their share of what they each caused
Indivisible - Can allow claimant recover all damages from one defendant Said defendant may seek to recover from others
What are successive injuries?
If claimant suffers one injury and later suffers a second one, which impacts the first. The second injury defendant is only liable to the extent their negligence made the damage worse.
What are the defences to negligence?
Contributory Negligence: Claimant’s own negligence contributed to their harm, reducing damages. (Partial)
Voluntary Assumption of Risk: Claimant freely and voluntarily assumed the risk. (Complete)
Illegality: Claimant’s injury arises from their own illegal act. (Complete)
What is pure Economic loss?
- Damage to property not belonging to claimant.
- Cost of damage suffered by defective product acquired by claimant.
- Financial loss which doe snot flow from damage to claimant’s person or property
what is the general rule for pure economic loss?
Pure economic loss is not recoverable an action in negligence. Exception to this rule is the loss being caused by negligent statements when there is a special relationship.
What is Consequential economic loss?
Ordinary rules of negligence apply therefore a duty of care is owed in respect of the physical injury or damage also extends to economic loss which is consequential on such injury or damage.
Pure economic loss for property belonging to another?
Damage is generally not recoverable when property belonging to another is effected
Can cost of damages to a defective products be recovered?
In these situations, the defective product is treated as pure economic loss and is therefore not recoverable.
Elements of Negligence in Employer-Employee Cases
Duty of Care: Employers owe employees an established duty of care.
Breach of Duty: Failure to exercise reasonable care for employee safety.
Causation of Damage: The breach must directly cause the injury, and the damage must not be too remote.
What is the scope of an Employer’s Duty of Care?
Safe Plant and Equipment: Provision of safe machinery and protective gear.
Safe Workplace: Ensuring a safe environment.
Competent Staff: Properly trained and capable employees.
Safe Work System: Enforcing and supervising safe operational systems.
Psychiatric Harm: Reasonable steps to manage foreseeable stress-related harm.
What is a Nondelegable Duty of Care?
Employers cannot delegate their responsibility for reasonable care. They are liable if delegated tasks are performed negligently by contractors or employees.
Definition of Standard of a Reasonable Employer?
Employers are judged against the care expected of a reasonable employer.
What factors are looked at when assessing the standard of an employer?
Employee’s individual circumstances: A duty is owed to each employer individually so the circumstances of precaution against each employee are determined
Date of knowledge of Risk: Relevant to determine feasibility of safety measures against a risk before it becomes known.
Common Practice: Industry standards are relevant but not decisive.
Latent defects in equipment: Employer will not be liable if they exercised reasonable care when purchasing the equipment in question
Employer’s Liability (Defective Equipment) Act 1969
Addresses latent defects in employer-provided equipment. Employers are deemed negligent for defects caused by third parties, simplifying claims for employees.
Causation of damage in employer’s liability?
The same test is applied as with the tort in trespass
Defences in employer liability cases?
Voluntary Assumption of Risk: Difficult to establish in employment due to employer not having free choice.
Contributory Negligence: Reduces damages if the employee failed to take reasonable care of their own safety.
What is Vicarious Liability?
Liability imposed on one person for a tort committed by another, despite no personal fault. Example: Employer liable for an employee’s negligent driving while working.
What are the three conditions for Vicarious Liability in employment?
Was a tort committed?
Was it committed by an employee?
Was it committed during the course of employment?
Was a tort committed?
Vicarious ability can only arise if that harm amounts to a tort against the claimant
Was it committed by an employee?
Test based on integration: Employees work as a integral part of a business, contractors operate as an accessory
The Modern Economic Reality Test is also applied
The Modern Economic Reality Test Factors?
Personal service obligation.
Employer’s control over work.
Ownership of tools.
Financial risk assumption.
Contractual consistency with employment.
During the course of Employment?
Tort must closely connect to the employee’s job.
Effect of negligence during course of employment
Employers remain liable if employees perform tasks negligently within their role.
Disobedience to Instructions in during course of employment?
Liability depends on the prohibition limiting the scope of employment vs the prohibition limiting the manner of employment.
Example: Driving against employer’s prohibition = no liability; speeding = liability.
Deviations from Authorized Tasks
Liability is dependant on the deviation if a only a minor, the employer may still be found to acting in the course of their employment. If the deviation is major that it would be a ‘frolic’ this may amount to being outside the course of employment
Relationships Akin to Employment
Liability extends to non-employees performing integral business tasks.
Factors:
Tort performed on behalf of employer.
Integral to employer’s business.
Employer-created risk.
Relation of Independent Contractors and employers?
Employers are generally not vicariously liable but may face liability for:
Breach of nondelegable duty.
Negligence in hiring an incompetent contractor.
What is the aim of damages in tort law?
To place the claimant, as far as money can do so, in the same position they would have been in had the tort not occurred.
What is the duty to mitigate in the context of damages?
The claimant must take reasonable steps to mitigate their loss, such as seeking medical treatment or alternative employment.
What are pecuniary losses in tort claims?
Financial losses suffered by the claimant due to injury, including loss of income (past and future) and expenses to cost of care and medical treatment.
How are damages for past income calculated?
Based on the claimant’s net loss of wages, accounting for deductions like tax and any sick pay received.
What factors are determined for loss of future income?
Claimant unable to go back to work
Claimant limited to go back to work
Shortened life expectancy
What is the method used to calculate damages for future loss of income when a claimant cannot work?
Multiply the claimant’s annual pre-accident income by the number of lost income years, adjusting for lump sum payments and life contingencies.
What are nonpecuniary losses in tort claims?
Non-monetary losses like pain and suffering and loss of amenity caused by the injury.
When are damages for pain and suffering not awarded?
When the claimant is unconscious and does not experience pain and suffering during that period.
What two terms are used to distinguish damages?
Special damages
General damages
What are classified as special damages?
Those which can be precisely calculated, such as past earnings and expenses.
What are classified as General damages?
Those which that need to be assessed by the court, such as future earnings and expenses.
What happens to a claimant’s cause of action if they die?
The action survives for the benefit of their estate, covering damages up to the date of death. It is irrelevant whether the tort caused the death of the claimant
Who can claim bereavement damages under statute?
The spouse, civil partner, or qualifying cohabiting partner of the deceased, and parents if the deceased was an unmarried minor. Parents of the deceased over 18 and children of the deceased cannot claim.
What conditions must be met to claim for loss of dependency?
The claimant must be an eligible dependant and financially dependent on the deceased.
Are funeral expenses recoverable in tort claims?
Yes, if the defendant’s tort caused the victim’s death.
What are the two main statutes governing occupiers’ liability in the UK?
The Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984.
What does the Occupiers’ Liability Act 1957 primarily cover?
The duty of care owed by occupiers to lawful visitors.
Who qualifies as a lawful visitor under the 1957 Act?
Individuals invited or permitted by the occupier to be on the premises, such as guests, customers, or ticket-holding spectators.
What is the definition of “premises” under the Occupiers’ Liability Acts?
Land, buildings, and any fixed or movable structures, such as scaffolding or ladders.
What is the “common duty of care” owed by occupiers to lawful visitors?
To take reasonable care to ensure visitors are reasonably safe while using the premises for permitted purposes.
How does the 1957 Act address the duty of care towards children?
Occupiers should anticipate that children are less careful than adults and take greater precautions to avoid harm
What is the duty of care expected when visitors enter premises in the exercise of their calling (e.g., electricians)?
Occupiers can expect professionals to guard against risks incidental to their work.
Under what circumstances can an occupier discharge their duty of care through warnings?
When the warning is sufficient to enable visitors to avoid the danger and remain reasonably safe.
What are the key defences available under the 1957 Act?
Exclusion of liability
voluntary assumption of risk
contributory negligence
Factors to consider with exclusion of liability?
within statutory controls: not excluding death or personal injury
effective notice: must be clear wording & be brought adequately to the claimant’s attention
Who are “non-visitors” as defined by the Occupiers’ Liability Act 1984?
Persons who are not invited or permitted, typically trespassers.
When is a duty owed to a trespasser under the 1984 Act?
If the occupier knows of the danger, knows trespassers may come into its vicinity, and the danger is one the occupier should reasonably expect to offer protection against.
How is the duty of care to trespassers different from that to lawful visitors?
It is narrower and requires reasonable care to protect against injury, not to ensure reasonable safety .
How can an occupier discharge their duty of care to trespassers?
By giving adequate warnings or discouraging trespassers from incurring risks.
What is the difference between warnings and exclusions in occupiers’ liability?
Warnings fulfill the duty of care by enabling safety; exclusions set up a defence to the claim.
What is physchiatric harm?
Harm caused by claimant without any physical impact.
Types of shock
Shock by being in danger
shock by witnessing harm to others
The harm cause can be psychiatric condition caused by shock or a Shock-induced physical condition i.ee miscarriage
Elements of Psychiatric harm?
Same elements of negligence apply. This also is true of consequential psychiatric harm
Types of Victims of Psychiatric harm
Primary Victim: someone who is in the actual area of danger created by defendant
Secondary Victim: Everyone else who is affected by defendant’s act but outside the actual area.
Duty of Care rules for victims?
Primary Victim: If there is a foreseeable risk of personal injury, even if personal injury did not occur.
Secondary victim: duty only owed if the following are established;
A person of reasonable fortitude would suffer a psychiatric illness in the circumstances.
Person must have close ties of love and affection with the person endangered.
Person must be present at the accident or in its immediate aftermath
Limit on duty of care
Psychiatric harm must amount to medically recognised condition.
application of sudden shock
A line is drawn between sudden shock events and harm caused by exposure of shock over time
Relationship of defective products with breach of contract?
Breach of contract may prove better alternative then claiming a breach in tort. However, a claim in tort can provide a remedy even when there is no claim available in contract
Defences on defective products?
Usual defences are available, a claimant who continuously uses the defective product may be met with contributory negligence
Who may be liable if defects causes damage?
Produce of product
Any person who held themselves out as a producer by putting their name or mark on it
Any person who imported the product in order to supply it
Two or more defendants, liability is jointly and severally
When is a supplier consider a defendant?
If a person requests the supplier identify the producer and the request is made in a reasonable period of time. If it’s not practical for claimant to identify these person independently and the supplier fails to identify the producer within a reasonable period.
what is a defect?
When its safety is not such as persons are generally entitled to expect
what provisions are taking into account for defects?
1.Instructions and warning provided with product
2. Product packaging and the purpose which the products was marketed
3. What might reasonably be expected to be done with the product
4. The time when the product was supplied
What damages can be recovered for defective products?
Damage to the product itself cannot be recovered
Damage to business property is not covered
Property damage which does not exceed £275 cannot be recovered
What is no defect when product first put into circulation defence?
The producer must prove that the defect did not exist when the product was first supplied
Not supplying in a course of business?
If the defendant was not acting in the course of business when supplying the product and they were nether producer or acting with a view to profit
State of the art defence
If the defendant can show the scientific and technical knowledge at the time the product being supplied was not such a producer of those types of product might have discovered the defects existence whilst under their control.
What is the relation of liability and consumer protection act regarding defective products?
Liability under the act cannot be limited or excluded
What is the definition of public nuisance?
An unreasonable interference with the comfort and convenience of life of a class of the public.
What are common examples of public nuisance?
Obstruction of the highway, offensive trades, quarry blasting causing dust/noise/vibrations over a large area.
Who can bring a claim in public nuisance?
Individuals: Only if they suffer particular damage beyond that suffered by the general class.
Attorney General: Can bring action on behalf of the affected class to prevent the nuisance.
Can damage in public nuisance include personal injury?
Yes, it can include both property damage and personal injury.
Define private nuisance?
An unlawful interference with the claimant’s use and enjoyment of land that is substantial and unreasonable.
What are the three types of damage in private nuisance?
Physical damage (e.g., flooding, vibrations).
Amenity damage (e.g., noise, dust, smells).
Encroachment (e.g., overhanging branches, tree roots).
What is the key difference between private nuisance and trespass to land?
Trespass involves intentional and direct interference, while nuisance covers indirect damage or interference.
Who can sue for private nuisance?.
Only those with a proprietary interest in the land (e.g., freehold owners, tenants).
What factors determine the reasonableness of interference in private nuisance?
Intensity and duration of the interference.
Character of the neighborhood.
Abnormal sensitivity of the claimant.
Malice on the part of the defendant.
What are the remedies for nuisance?
Injunction: To cease or limit the activity causing the nuisance.
Damages: Compensation for harm caused.
Abatement: Self-help remedy to stop the nuisance (e.g., removing overhanging branches). Must give defendant notice to allow time for work should access to land be needed.
Is “coming to a nuisance” a valid defence?
No, the existence of a prior nuisance does not prevent a claim by a new claimant.
What is the core principle of Rylands v Fletcher?
Strict liability for damage caused by the escape of a dangerous thing from the defendant’s land due to non-natural use.
What are the elements of the rule in Rylands v Fletcher?
Defendant brings something onto their land likely to cause harm if it escapes.
Defendant engages in non-natural use of the land.
The thing escapes and causes damage.
What type of damage is recoverable under Rylands v Fletcher?
Property damage, but not personal injury.
What defences are available under Rylands v Fletcher?
Unforeseeable act of a stranger.
Act of God.
Consent of the claimant.
Contributory negligence.
Statutory authority.
How is remoteness of damage assessed in Rylands v Fletcher?
Damage must be reasonably foreseeable; unforeseeable damage is too remote.
