Tort

Question 1

What are examples of intentional torts?

Answer 1

Trespass to land
Trespass to the person
Trespass to goods

Question 2

What are the elements to Trespass to land?

Answer 2

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

Question 3

what variations of trespass to person are there?

Answer 3

Battery
Assault
False Imprisonment

Question 4

what are the elements of trespass to the person via battery?

Answer 4

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

Question 5

what are the elements of trespass to person via assault?

Answer 5

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.

Question 6

what are the elements of trespass to person via false imprisonment?

Answer 6

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

Question 7

what are the elements to trespass of goods?

Answer 7

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

Question 8

what is conversion in relation to trespass of goods?

Answer 8

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.

Question 9

What is the definition of Negligence?

Answer 9

Negligence is the breach of a legal duty to take care, resulting in damage to the claimant.

Question 10

What elements are required to show negligence?

Answer 10

Duty of care owed by the defendant.
Breach of that duty.
Defendant’s action caused the damage.

Question 11

Established Duties of Care

Answer 11

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

Question 12

What are Novel Duty situations?

Answer 12

Situations where no previous authority establishing the existence of a duty of care so courts develop the law incrementally.

Question 13

What elements do the court consider for novel duty situations?

Answer 13

Foreseeability of harm.
Proximity between claimant and defendant.
Fairness, justice, and reasonableness.

Question 14

Omissions to act

Answer 14

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.

Question 15

Breach of Duty – Reasonable Person Test

Answer 15

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.

Question 16

Factors of the Reasonable Person Test

Answer 16

Magnitude of risk (likelihood and seriousness of harm).
Practicability of precautions.
Social utility of the defendant’s actions.

Question 17

Types of defendants

Answer 17

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.

Question 18

Children in tort matters

Answer 18

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.

Question 19

Res Ipsa Loquitor

Answer 19

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.

Question 20

requirement for Res Ipsa Loquitor to apply?

Answer 20

1. 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

3. The accident must be such as would not normally happen if proper care was taken.

Question 21

What are the three stages of establish causation of damage

Answer 21

Causation in fact
No new intervening acts
Damage not too remote

Question 22

What is Causation in Fact?

Answer 22

The “but for” test determines if the damage would not have occurred but for the defendant’s breach.

Question 23

When would the “but for” test not apply?

Answer 23

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.

Question 24

What is Intervening Acts?

Answer 24

The chain of causation is broken if an unforeseeable act (by a third party, claimant, or natural event) occurs after the defendant’s breach.

Question 25

What is Remoteness of Damage?

Answer 25

The damage must be reasonably foreseeable as a result of defendant's negligence.

Question 26

What are exceptions to Remoteness of Damage?

Answer 26

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.

Question 27

What are Divisible and indivisible injuries?

Answer 27

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

Question 28

What are successive injuries?

Answer 28

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.

Question 29

What are the defences to negligence?

Answer 29

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)

Question 30

What is pure Economic loss?

Answer 30

1. Damage to property not belonging to claimant. 2. Cost of damage suffered by defective product acquired by claimant. 3. Financial loss which doe snot flow from damage to claimant's person or property

Question 31

what is the general rule for pure economic loss?

Answer 31

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.

Question 32

What is Consequential economic loss?

Answer 32

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.

Question 33

Pure economic loss for property belonging to another?

Answer 33

Damage is generally not recoverable when property belonging to another is effected

Question 34

Can cost of damages to a defective products be recovered?

Answer 34

In these situations, the defective product is treated as pure economic loss and is therefore not recoverable.

Question 35

Elements of Negligence in Employer-Employee Cases

Answer 35

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.

Question 36

What is the scope of an Employer’s Duty of Care?

Answer 36

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.

Question 37

What is a Nondelegable Duty of Care?

Answer 37

Employers cannot delegate their responsibility for reasonable care. They are liable if delegated tasks are performed negligently by contractors or employees.

Question 38

Definition of Standard of a Reasonable Employer?

Answer 38

Employers are judged against the care expected of a reasonable employer.

Question 39

What factors are looked at when assessing the standard of an employer?

Answer 39

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

Question 40

Employer’s Liability (Defective Equipment) Act 1969

Answer 40

Addresses latent defects in employer-provided equipment. Employers are deemed negligent for defects caused by third parties, simplifying claims for employees.

Question 41

Causation of damage in employer's liability?

Answer 41

The same test is applied as with the tort in trespass

Question 42

Defences in employer liability cases?

Answer 42

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.

Question 43

What is Vicarious Liability?

Answer 43

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.

Question 44

What are the three conditions for Vicarious Liability in employment?

Answer 44

Was a tort committed? Was it committed by an employee? Was it committed during the course of employment?

Question 45

Was a tort committed?

Answer 45

Vicarious ability can only arise if that harm amounts to a tort against the claimant

Question 46

Was it committed by an employee?

Answer 46

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

Question 47

The Modern Economic Reality Test Factors?

Answer 47

Personal service obligation. Employer’s control over work. Ownership of tools. Financial risk assumption. Contractual consistency with employment.

Question 48

During the course of Employment?

Answer 48

Tort must closely connect to the employee's job.

Question 49

Effect of negligence during course of employment

Answer 49

Employers remain liable if employees perform tasks negligently within their role.

Question 50

Disobedience to Instructions in during course of employment?

Answer 50

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.

Question 51

Deviations from Authorized Tasks

Answer 51

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

Question 52

Relationships Akin to Employment

Answer 52

Liability extends to non-employees performing integral business tasks. Factors: Tort performed on behalf of employer. Integral to employer’s business. Employer-created risk.

Question 53

Relation of Independent Contractors and employers?

Answer 53

Employers are generally not vicariously liable but may face liability for: Breach of nondelegable duty. Negligence in hiring an incompetent contractor.

Question 54

What is the aim of damages in tort law?

Answer 54

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.

Question 55

What is the duty to mitigate in the context of damages?

Answer 55

The claimant must take reasonable steps to mitigate their loss, such as seeking medical treatment or alternative employment.

Question 56

What are pecuniary losses in tort claims?

Answer 56

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.

Question 57

How are damages for past income calculated?

Answer 57

Based on the claimant’s net loss of wages, accounting for deductions like tax and any sick pay received.

Question 58

What factors are determined for loss of future income?

Answer 58

Claimant unable to go back to work Claimant limited to go back to work Shortened life expectancy

Question 59

What is the method used to calculate damages for future loss of income when a claimant cannot work?

Answer 59

Multiply the claimant’s annual pre-accident income by the number of lost income years, adjusting for lump sum payments and life contingencies.

Question 60

What are nonpecuniary losses in tort claims?

Answer 60

Non-monetary losses like pain and suffering and loss of amenity caused by the injury.

Question 61

When are damages for pain and suffering not awarded?

Answer 61

When the claimant is unconscious and does not experience pain and suffering during that period.

Question 62

What two terms are used to distinguish damages?

Answer 62

Special damages General damages

Question 63

What are classified as special damages?

Answer 63

Those which can be precisely calculated, such as past earnings and expenses.

Question 64

What are classified as General damages?

Answer 64

Those which that need to be assessed by the court, such as future earnings and expenses.

Question 65

What happens to a claimant’s cause of action if they die?

Answer 65

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

Question 66

Who can claim bereavement damages under statute?

Answer 66

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.

Question 67

What conditions must be met to claim for loss of dependency?

Answer 67

The claimant must be an eligible dependant and financially dependent on the deceased.

Question 68

Are funeral expenses recoverable in tort claims?

Answer 68

Yes, if the defendant’s tort caused the victim’s death.

Question 69

What are the two main statutes governing occupiers' liability in the UK?

Answer 69

The Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984.

Question 70

What does the Occupiers' Liability Act 1957 primarily cover?

Answer 70

The duty of care owed by occupiers to lawful visitors.

Question 71

Who qualifies as a lawful visitor under the 1957 Act?

Answer 71

Individuals invited or permitted by the occupier to be on the premises, such as guests, customers, or ticket-holding spectators.

Question 72

What is the definition of "premises" under the Occupiers' Liability Acts?

Answer 72

Land, buildings, and any fixed or movable structures, such as scaffolding or ladders.

Question 73

What is the "common duty of care" owed by occupiers to lawful visitors?

Answer 73

To take reasonable care to ensure visitors are reasonably safe while using the premises for permitted purposes.

Question 74

How does the 1957 Act address the duty of care towards children?

Answer 74

Occupiers should anticipate that children are less careful than adults and take greater precautions to avoid harm

Question 75

What is the duty of care expected when visitors enter premises in the exercise of their calling (e.g., electricians)?

Answer 75

Occupiers can expect professionals to guard against risks incidental to their work.

Question 76

Under what circumstances can an occupier discharge their duty of care through warnings?

Answer 76

When the warning is sufficient to enable visitors to avoid the danger and remain reasonably safe.

Question 77

What are the key defences available under the 1957 Act?

Answer 77

Exclusion of liability voluntary assumption of risk contributory negligence

Question 78

Factors to consider with exclusion of liability?

Answer 78

within statutory controls: not excluding death or personal injury effective notice: must be clear wording & be brought adequately to the claimant's attention

Question 79

Who are "non-visitors" as defined by the Occupiers' Liability Act 1984?

Answer 79

Persons who are not invited or permitted, typically trespassers.

Question 80

When is a duty owed to a trespasser under the 1984 Act?

Answer 80

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.

Question 81

How is the duty of care to trespassers different from that to lawful visitors?

Answer 81

It is narrower and requires reasonable care to protect against injury, not to ensure reasonable safety .

Question 82

How can an occupier discharge their duty of care to trespassers?

Answer 82

By giving adequate warnings or discouraging trespassers from incurring risks.

Question 83

What is the difference between warnings and exclusions in occupiers' liability?

Answer 83

Warnings fulfill the duty of care by enabling safety; exclusions set up a defence to the claim.

Question 84

What is physchiatric harm?

Answer 84

Harm caused by claimant without any physical impact.

Question 85

Types of shock

Answer 85

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

Question 86

Elements of Psychiatric harm?

Answer 86

Same elements of negligence apply. This also is true of consequential psychiatric harm

Question 87

Types of Victims of Psychiatric harm

Answer 87

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.

Question 88

Duty of Care rules for victims?

Answer 88

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

Question 89

Limit on duty of care

Answer 89

Psychiatric harm must amount to medically recognised condition.

Question 90

application of sudden shock

Answer 90

A line is drawn between sudden shock events and harm caused by exposure of shock over time

Question 91

Relationship of defective products with breach of contract?

Answer 91

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

Question 92

Defences on defective products?

Answer 92

Usual defences are available, a claimant who continuously uses the defective product may be met with contributory negligence

Question 93

Who may be liable if defects causes damage?

Answer 93

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

Question 94

When is a supplier consider a defendant?

Answer 94

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.

Question 95

what is a defect?

Answer 95

When its safety is not such as persons are generally entitled to expect

Question 96

what provisions are taking into account for defects?

Answer 96

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

Question 97

What damages can be recovered for defective products?

Answer 97

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

Question 98

What is no defect when product first put into circulation defence?

Answer 98

The producer must prove that the defect did not exist when the product was first supplied

Question 99

Not supplying in a course of business?

Answer 99

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

Question 100

State of the art defence

Answer 100

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.

Question 101

What is the relation of liability and consumer protection act regarding defective products?

Answer 101

Liability under the act cannot be limited or excluded

Question 102

What is the definition of public nuisance?

Answer 102

An unreasonable interference with the comfort and convenience of life of a class of the public.

Question 103

What are common examples of public nuisance?

Answer 103

Obstruction of the highway, offensive trades, quarry blasting causing dust/noise/vibrations over a large area.

Question 104

Who can bring a claim in public nuisance?

Answer 104

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.

Question 105

Can damage in public nuisance include personal injury?

Answer 105

Yes, it can include both property damage and personal injury.

Question 106

Define private nuisance?

Answer 106

An unlawful interference with the claimant’s use and enjoyment of land that is substantial and unreasonable.

Question 107

What are the three types of damage in private nuisance?

Answer 107

Physical damage (e.g., flooding, vibrations). Amenity damage (e.g., noise, dust, smells). Encroachment (e.g., overhanging branches, tree roots).

Question 108

What is the key difference between private nuisance and trespass to land?

Answer 108

Trespass involves intentional and direct interference, while nuisance covers indirect damage or interference.

Question 109

Who can sue for private nuisance?.

Answer 109

Only those with a proprietary interest in the land (e.g., freehold owners, tenants).

Question 110

What factors determine the reasonableness of interference in private nuisance?

Answer 110

Intensity and duration of the interference. Character of the neighborhood. Abnormal sensitivity of the claimant. Malice on the part of the defendant.

Question 111

What are the remedies for nuisance?

Answer 111

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.

Question 112

Is "coming to a nuisance" a valid defence?

Answer 112

No, the existence of a prior nuisance does not prevent a claim by a new claimant.

Question 113

What is the core principle of Rylands v Fletcher?

Answer 113

Strict liability for damage caused by the escape of a dangerous thing from the defendant’s land due to non-natural use.

Question 114

What are the elements of the rule in Rylands v Fletcher?

Answer 114

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.

Question 115

What type of damage is recoverable under Rylands v Fletcher?

Answer 115

Property damage, but not personal injury.

Question 116

What defences are available under Rylands v Fletcher?

Answer 116

Unforeseeable act of a stranger. Act of God. Consent of the claimant. Contributory negligence. Statutory authority.

Question 117

How is remoteness of damage assessed in Rylands v Fletcher?

Answer 117

Damage must be reasonably foreseeable; unforeseeable damage is too remote.