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
