Tort Flashcards
What is trespass to land?
direct interference with the claimant’s exclusive possession of the land
Is indirect interference considered tresspass?
No
What are the basis for a nuisance action?
Smells, noises, vibrations and the like
Does trespass require intent?
No, the intent should be intent to enter the land.
If the trespasser was not aware that the land belongs to someone else, it still qualifies for trespass because of the intention to enter the land.
What is Battery?
Intentional direct application of force to the claimant’s person
What is negligence
When a person owes a duty of care to another and breaches that duty and the duty causes damage
What are the type of duties?
Established duty
Novel duty
What is established duty
duty of care owed by certain classes of people according to case law and statute
What is novel duty?
not established - only if:
- Claimant is a foreseeable claimant
- relationship of sufficient proximity
- fair, just, and reasonable to impose the duty on the defendant
When is a person liable for omission?
special relationship between the parties
defendant has control over the victim
harm caused by a third party under the defendant’s control
person attempting a rescue - duty not to make the situation worse
The test to act with reasonable care under the duty is…
an objective standard
What is the Res Ipsa Loquitur
doctrine used to imply that the duty owed was breached in situations in which there is no evidence of how a person’s harm came to be
What are the elements of Res Ipsa Loquitur
Incident would not normally happen without negligence
No explanation for how the accident occurred
The thing causing the accident is under the control of the defendant.
What are the components of causation
claimant shows on the balance of probabilities (but for)
no intervening act
claimant’s harm was reasonably forseeable
When does an intervening act break the chain of causation
When it was forseeable
What is the egg shell skull doctrine?
You take your victim as you find them
What is a partial defence to negligence?
contributory negligence
What is a full defence to negligence?
Volenti non fit injuria (voluntary assumption of risk)
Illegality of an action of the claimant (contributed to the circumstances of their injury)
Is pure economic loss recoverable in an action in negligence?
No
What is pure economic loss
damage to property not belonging to the claimant
cost of damage suffered by a defective product
financial loss not flowing from the damage to the claimant or their property
Can consequential economic loss be recovered in an action in negligence?
Yes
In what case can pure economic loss be recovered?
If they arise from negligence misstatements by the defendant
what is pure psychiatric harm
psychiatric harm that isnt accompanied by an physical impact
What is consequential psychiatric harm?
when it is accompanied by a physical injury
Special rules for pure psychiatric harm as a primary victim?
claimant in the danger zone - ‘near miss’ situation
Special rules for pure psychiatric harm as a secondary victim?
being present at the scene or immediate aftermath
sudden shock
close ties with endangered person
psychiatric harm is foreseeable
Can the employer be liable for a latent defect attributable to a third party?
Yes, under the Employer’s liability (Defective Equipment Act) 1969
What is a complete defence for the employer’s liability?
The employee’s voluntary assumption of risk
what is vicarious liability?
liability of one person for a tort committed by another
Is an employer vicariously liable?
yes, for torts committed by an employee in the scope of their employment
Is vicarious liability attached to a criminal act?
The vicarious liability can attach for an employee’s tort that was also a criminal act if the act was closely connected to the employment
What is the effect of disobedience of an employee on the vicarious liability?
if the instructions are meant to limit the SCOPE of employment - the disobedience will take the act outside the scope of employment
If it limits the MANNER, then it is still within the scope of employment
The goal of damages in tort is..
to put the injured party in the position they would have been in had the tort not occurred
What is the duty of the victim?
Duty to mitigate (to avoid avoidable damage)
What are the recoverable pecuniary (financial) losses?
Loss of past income (based on net wages)
Loss of future income (difference in income before and after the injury multiplied by the number of years)
Past and future expenses of medical treatments, costs of care, costs of necessary equipment/modifications to home
What are the recoverable nonpecuniary losses?
Past and future pain and suffering and loss of amenity (loss of enjoyment)
What type of non-pecuniary damages can a person in a coma recover?
Loss of amenity (but not pain and suffering)
What are special damages?
Damages that can be precisely calculated at the time of trial
What are general damages?
need to be assessed by the court
Does the existing tort cause of action survive if the victim dies?
Yes, it survives for the benefit of the estate
Can defamation claims arise after death of victim?
No
What are bereavement damages?
fixed by statute
recoverable by the spouse or civil partner or cohabitant for more than 2 years or the parties if under 18 and not married
What are loss of dependency damages?
claimant was a dependent of the decedent AND was financially dependent on the decedentA
Are funeral expenses recoverable?
Yes, if the defendant’s tort caused the death
The Occupiers’ Liability Act 1957 governs…
liability for injuries to visitors
The Occupiers’ Liability Act 1984 governs…
liability for injuries to non-visitors/trespassors
Who is the occupier?
person who has control over the premises
What is the duty owed by the occupier to a visitor?
duty to the person and their property
standard of reasonable care
more care with respect to children
Will a warning be enough to meet the duty of care towards visitors?
if there is an alternative, yes
How can an occupier exclude their duty of care?
By contract
By notice
A business cannot exclude liability for…
death or personal injury
When is a duty owed to a trespassor
occupier is aware of the danger or ought to be reasonably aware
occupier is aware that the trespasser may come into the vicinity of the danger or ought to be reasonably aware
the danger is one against which it would be reasonable to expect the occupier to offer protection
What does the duty towards a trespasser cover?
the trespasser only (not their property)
How to discharge the duty towards a trespasser?
Warning
What is the difference between the duty owed to the trespasser and the visitor?
the duty owed to a lawful visitor is to take reasonable care to see that the visitor will be reasonably safe in using the premises
the duty owed to a trespasser is only to take reasonable care to protect against injury
A person injured by a defective product can bring a claim under…
the SGA 1979
or
Claim for negligence
What is the difference between a contract claim and common law negligence claim?
Contract claim is strict liability (fault need not be proved)
Negligence requires proof of fault
Under a negligence claim, can the cost of defective good be recovered?
No, as it is purely economic
When does a retailer owe a duty for defective product?
if the defective product is a type for which inspection is expected
What are the type of defects that a consumer can sue a manufacturer for?
Manufacturing defect
Design defect
What are the defences for defective product liability?
assumption of risk
contributory negligence
What type of regime does the CPA 1987 create?
strict liability for damage caused by defective products - no need to prove fault, only prove the product is defective (unsafe)
How can a product be defective?
Instructions and warnings are not sufficient
marketing/package implied that product could be used for something that the product could not be safely used for
Product wasn’t safe for use to which the product might be reasonably be expected to be put for
Who are the potential defendants for a defective product claim?
manufacturer or importer
When is a supplier a potential defendant in a defective product claim
claimant requests importer/manufacturer name
isnt reasonably practicable for claimant to identify the importer/manufacturer independently
the supplier does not identify the manufacturer/importer
What type of damages are recoverable under a defective product claim?
Personal Injury
Property damage
What type of damages are NOT recoverable under a defective product claim?
pure economic loss (including damage to the product alone)
Damage to business property
damage for private property under 275 pounds
What is the state of the art defence?
Product could not have been made without the defect at the time it was supplier because the technical or scientific knowledge needed to make a safer product didn’t exist at the time
What is nuisance?
the invasion of rights relating to the use and enjoyment of private or public property
What is public nuisance?
unreasonable interference with the comfort and convenience of life of a class of the public
when can a private citizen bring an action for public nuisance?
only if the private citizen has suffered particular damage beyond that suffered by the general public
What is private nuisance?
primarily concerned with conflicting uses of land, e.g. use of land in a way which unlawfully or unreasonably interferes with the claimant’s use and enjoyment of their land
What is a private nuisance interferance?
Physical damage (by flood/vibration)
Damage to enjoyment (amenity) caused by noise, dust, smells
Encroachment (overhanging tree branches)
What is the difference between private nuisance and trespass?
Private nuisance is intentional direct interference
Who can bring an action for private nuisance?
anyone with proprietary interest in the land
Defences for private nuisance
Prescription (nuisance going on for 20+ years)
Use permitted by statute
Non-defences for private nuisance?
planning permission granted
nuisance existed from before
What are the remedies for private nuisance?
Injunction
Damages
What is the rule in Rylands v. Fletcher
imposes strict liability when there is an escape of a dangerous thing from the defendant’s land in the course of a non-natural use of the land
limited to foreseeable damages only
Defences for Rylands v. Fletcher
escape due to unforeseeable act of a stranger
escape due to unforeseeable natural circumstances
contributory negligence
statutory authority.
