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SQE FLK 1 > Tort > Flashcards

Tort Flashcards

1
Q

What is trespass to land?

A

direct interference with the claimant’s exclusive possession of the land

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2
Q

Is indirect interference considered tresspass?

A

No

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3
Q

What are the basis for a nuisance action?

A

Smells, noises, vibrations and the like

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4
Q

Does trespass require intent?

A

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.

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5
Q

What is Battery?

A

Intentional direct application of force to the claimant’s person

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6
Q

What is negligence

A

When a person owes a duty of care to another and breaches that duty and the duty causes damage

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7
Q

What are the type of duties?

A

Established duty
Novel duty

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8
Q

What is established duty

A

duty of care owed by certain classes of people according to case law and statute

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9
Q

What is novel duty?

A

not established - only if:
- Claimant is a foreseeable claimant
- relationship of sufficient proximity
- fair, just, and reasonable to impose the duty on the defendant

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10
Q

When is a person liable for omission?

A

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

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11
Q

The test to act with reasonable care under the duty is…

A

an objective standard

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12
Q

What is the Res Ipsa Loquitur

A

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

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13
Q

What are the elements of Res Ipsa Loquitur

A

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.

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14
Q

What are the components of causation

A

claimant shows on the balance of probabilities (but for)

no intervening act

claimant’s harm was reasonably forseeable

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15
Q

When does an intervening act break the chain of causation

A

When it was forseeable

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16
Q

What is the egg shell skull doctrine?

A

You take your victim as you find them

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17
Q

What is a partial defence to negligence?

A

contributory negligence

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18
Q

What is a full defence to negligence?

A

Volenti non fit injuria (voluntary assumption of risk)

Illegality of an action of the claimant (contributed to the circumstances of their injury)

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19
Q

Is pure economic loss recoverable in an action in negligence?

A

No

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20
Q

What is pure economic loss

A

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

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21
Q

Can consequential economic loss be recovered in an action in negligence?

A

Yes

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22
Q

In what case can pure economic loss be recovered?

A

If they arise from negligence misstatements by the defendant

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23
Q

what is pure psychiatric harm

A

psychiatric harm that isnt accompanied by an physical impact

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24
Q

What is consequential psychiatric harm?

A

when it is accompanied by a physical injury

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25
Q

Special rules for pure psychiatric harm as a primary victim?

A

claimant in the danger zone - ‘near miss’ situation

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26
Q

Special rules for pure psychiatric harm as a secondary victim?

A

being present at the scene or immediate aftermath

sudden shock

close ties with endangered person

psychiatric harm is foreseeable

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27
Q

Can the employer be liable for a latent defect attributable to a third party?

A

Yes, under the Employer’s liability (Defective Equipment Act) 1969

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28
Q

What is a complete defence for the employer’s liability?

A

The employee’s voluntary assumption of risk

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29
Q

what is vicarious liability?

A

liability of one person for a tort committed by another

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30
Q

Is an employer vicariously liable?

A

yes, for torts committed by an employee in the scope of their employment

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31
Q

Is vicarious liability attached to a criminal act?

A

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

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32
Q

What is the effect of disobedience of an employee on the vicarious liability?

A

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

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33
Q

The goal of damages in tort is..

A

to put the injured party in the position they would have been in had the tort not occurred

34
Q

What is the duty of the victim?

A

Duty to mitigate (to avoid avoidable damage)

35
Q

What are the recoverable pecuniary (financial) losses?

A

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

36
Q

What are the recoverable nonpecuniary losses?

A

Past and future pain and suffering and loss of amenity (loss of enjoyment)

37
Q

What type of non-pecuniary damages can a person in a coma recover?

A

Loss of amenity (but not pain and suffering)

38
Q

What are special damages?

A

Damages that can be precisely calculated at the time of trial

39
Q

What are general damages?

A

need to be assessed by the court

40
Q

Does the existing tort cause of action survive if the victim dies?

A

Yes, it survives for the benefit of the estate

41
Q

Can defamation claims arise after death of victim?

A

No

42
Q

What are bereavement damages?

A

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

43
Q

What are loss of dependency damages?

A

claimant was a dependent of the decedent AND was financially dependent on the decedentA

44
Q

Are funeral expenses recoverable?

A

Yes, if the defendant’s tort caused the death

45
Q

The Occupiers’ Liability Act 1957 governs…

A

liability for injuries to visitors

46
Q

The Occupiers’ Liability Act 1984 governs…

A

liability for injuries to non-visitors/trespassors

47
Q

Who is the occupier?

A

person who has control over the premises

48
Q

What is the duty owed by the occupier to a visitor?

A

duty to the person and their property

standard of reasonable care

more care with respect to children

49
Q

Will a warning be enough to meet the duty of care towards visitors?

A

if there is an alternative, yes

50
Q

How can an occupier exclude their duty of care?

A

By contract

By notice

51
Q

A business cannot exclude liability for…

A

death or personal injury

52
Q

When is a duty owed to a trespassor

A

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

53
Q

What does the duty towards a trespasser cover?

A

the trespasser only (not their property)

54
Q

How to discharge the duty towards a trespasser?

A

Warning

55
Q

What is the difference between the duty owed to the trespasser and the visitor?

A

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

56
Q

A person injured by a defective product can bring a claim under…

A

the SGA 1979

or

Claim for negligence

57
Q

What is the difference between a contract claim and common law negligence claim?

A

Contract claim is strict liability (fault need not be proved)

Negligence requires proof of fault

58
Q

Under a negligence claim, can the cost of defective good be recovered?

A

No, as it is purely economic

59
Q

When does a retailer owe a duty for defective product?

A

if the defective product is a type for which inspection is expected

60
Q

What are the type of defects that a consumer can sue a manufacturer for?

A

Manufacturing defect

Design defect

61
Q

What are the defences for defective product liability?

A

assumption of risk

contributory negligence

62
Q

What type of regime does the CPA 1987 create?

A

strict liability for damage caused by defective products - no need to prove fault, only prove the product is defective (unsafe)

63
Q

How can a product be defective?

A

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

64
Q

Who are the potential defendants for a defective product claim?

A

manufacturer or importer

65
Q

When is a supplier a potential defendant in a defective product claim

A

claimant requests importer/manufacturer name

isnt reasonably practicable for claimant to identify the importer/manufacturer independently

the supplier does not identify the manufacturer/importer

66
Q

What type of damages are recoverable under a defective product claim?

A

Personal Injury

Property damage

67
Q

What type of damages are NOT recoverable under a defective product claim?

A

pure economic loss (including damage to the product alone)

Damage to business property

damage for private property under 275 pounds

68
Q

What is the state of the art defence?

A

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

69
Q

What is nuisance?

A

the invasion of rights relating to the use and enjoyment of private or public property

70
Q

What is public nuisance?

A

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

71
Q

when can a private citizen bring an action for public nuisance?

A

only if the private citizen has suffered particular damage beyond that suffered by the general public

72
Q

What is private nuisance?

A

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

73
Q

What is a private nuisance interferance?

A

Physical damage (by flood/vibration)

Damage to enjoyment (amenity) caused by noise, dust, smells

Encroachment (overhanging tree branches)

74
Q

What is the difference between private nuisance and trespass?

A

Private nuisance is intentional direct interference

75
Q

Who can bring an action for private nuisance?

A

anyone with proprietary interest in the land

76
Q

Defences for private nuisance

A

Prescription (nuisance going on for 20+ years)

Use permitted by statute

77
Q

Non-defences for private nuisance?

A

planning permission granted

nuisance existed from before

78
Q

What are the remedies for private nuisance?

A

Injunction

Damages

79
Q

What is the rule in Rylands v. Fletcher

A

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

80
Q

Defences for Rylands v. Fletcher

A

escape due to unforeseeable act of a stranger

escape due to unforeseeable natural circumstances

contributory negligence

statutory authority.

SQE FLK 1 (7 decks)

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