Tort (+ ) Flashcards

Question

Employer’s liability vs vicarious liability

Answer 1

Employers liability Principles of negligence where employee claims against employer claimant must always be an employee of the defendant Negligence in the work place: employee suing employer for breach of duty they owed to employee Vicarious liability Not a tort! But a MECHANISM that can be used by claimant to sue an employer for a tort that has been committed by one of the employer’s employees Employer is not at fault, rather their employee is at fault

Answer 2

C = employee + negligence sequence single overriding duty: reasonable steps for employee safety x4: competent; systems; equipment; premises Duty x4 Safe/competent employees Safe/proper plant and equipment Safe place of work/premises Safe systems of work Singly duty: take reasonable precaution to ensure an employee’s safety Duty is personal and non delegable: regardless of who employer uses to carry out task; the ultimate responsibility is with employer Negligence in work place so to establish employer’s primary liability need to go through sequence! Have to ensure that claimant is an employee of defendant!

Answer 3

Vicarious liability x3: tort A + employee of B + during Tort has been committed by party A Party A is employee of party B (or akin) --Economic reality test! Ready mix concrete --Paid in exchange of service/mutuality of obligations --Party B had control over party A eg tasks --All contractual factors are consistent with employment relationship --If not employee or independent contractor then akin to employment test? x5 --Party B lent party A to another party: who is the employer? ----General rule: original employer remains liable ----Unless other employer had the most control + can also find dual liability! Tort committed during course of employment: close connection test x2 --Nature of employees activities/job --Sufficient connection between position of employee and wrongful conduct to make it just for employer to be liable

Answer 4

Type of loss in negligent claim — Not a tort!

Answer 5

1) identify recognised psychiatric harm (fear, mental grief, distress does not count) 2) is a duty of care owed?

Answer 6

Types of victim: actual, primary, secondary victims Actual: physical and possibly psychiatric harm Primary: suffer psychiatric harm as a result of reasonable fear for physical safety (objective) Secondary: no physical but suffer psychiatric due to fear for someone else (not in danger zone) Rescuers do not have special status! Only be primary victims if in reasonable fear of their safety Actual and primary victims are smaller in numbers than secondary victims — fear about size of secondary means court takes a restrictive approach

Answer 7

actual (actual physical harm): sequence primary (danger zone): physical harm RF + sequence secondary (for other): x5: psy RF, prox x2, shock, FJR Actual victim: apply usual sequence for negligence Primary victim: starting point — establish that physical harm was reasonably foreseeable then sequence Secondary victim: Alcock criteria x4-5 1 -- Was psychiatric harm reasonably foreseeable? (Not enough that physical harm would be foreseeable) 2 -- Is there proximity of relationships between the claimant and ‘victim’? Presumed in certain relationships eg parent/child but can be rebutted Not presumed (eg siblings) can in theory be rebutted but has not been successful 3 -- Is there proximity in time and space? 4 -- Was the psychiatric harm shock-induced? As opposed to gradual realisation 5 -- Is it fair, just and reasonable to impose a duty of care? Eg policy considerations like floodgates Short element in adapt: beyond primary and secondary victims considers psychiatric harm in assumption of responsibility cases

Answer 8

Type of loss! Not a tort! Affects duty of care but still need to consider full sequence!!

Answer 9

Economic loss not flowing from damage to person or property (eg bad investment, missed contractual opportunity, loss of inheritance) Loss arising from damage to property of another (eg auction could not run because of a cow disease) Defective items: product that was always defective (property has not been damaged, rather it is not worth what you thought it was)

Answer 10

General rule: no duty of care is owed in respect of pure economic loss (for acts!!) Exceptions x3 1 -- Wills: beneficiaries owed duty of care from solicitors (eg negligent drafting = loss of inheritance) 2 -- References: person writing owes subject of reference an accurate reference 3 -- Negligent misstatements (no duty of care owed for negligent acts casing PEL)

Answer 11

duty? x1/3: reasonable reliancex3; assume R; special R Where there is no precedent, case law! Hedley Byrne v Heller: 3 tests 1-- Reasonably reliance x3 Claimant must have relied on D advice (factual issue) It was reasonable for C to rely on D advice (legal issue: eg disparity of knowledge/context) D knew or ought to have known that C was relying on advice 2-- Voluntary assumption of responsibility: but for the absence of consideration, there would be a contract 3-- Special relationship of trust and confidence The parties seeking advice trusted the other to exercise a degree of care and it was reasonable and they knew or ought to have known it would be relied upon even if duty still need to consider rest of sequence! loss, breach, causation, remoteness...

Answer 12

1/3 tests + Dx3 (com, purpose, w/o) + Cx1 (detriment) Rules of Hedley Byrne Heller + x4 D must communicate to third party (identifiable) or know that it would be D must know the purpose D must know that 3rd party would rely without independent enquiry C acted upon advice to detriment (reasonable to expect D to protect C form that loss)

Answer 13

Disclaimers Subject to UCTA 1977 (B2B) or CRA 2015 Only if reasonable or fair!

Answer 14

completely different to negligence so no sequence

Answer 15

Claimant must have a legal interest in land affected

Answer 16

x3 1) creator of nuisance 2) occupier of land where nuisance originates For nuisance created themselves For nuisance created by others eg contractors if reasonably foreseeable consequence of task If created by trespasser then occupier can be sued if they continue or adopt nuisance 3) owner of land Where land occupied by tenant, landlord not usually liable unless x2 -- Created nuisance -- Or authorised: participating in it or leasing with high likelihood of nuisance

Answer 17

x4: indirect, damage, continuous, unlawful 1) indirect interference Eg smells, sounds, fumes, vibrations Contrast with physical invasion (ie direct interference = trespass) 2) recognised damage (no PI or PEL) Must be reasonably foreseeable Physical damage to property or sensible personal discomfort (SPD, S = relating to senses) or SPD needs to materially interfere with ordinary human comfort Consequential economic loss (not pure economic loss!) 3) continuous act Ongoing, minor exceptions (adapt!) 4) unlawful interference (unlawful = unreasonable: balancing act between parties! And D cannot argue that C moved to the nuisance) Time and duration Locality (use of land but for physical damage, court will not consider locality + likely unlawful) Abnormal sensitivity Malice Lack of care Excessive behaviour Public benefit

Answer 18

x7: necessity, prescription, statute, consent, 3rd, God, CI Prescription: 20 years (that a claimant could have complained not how long activity has been going) Statutory authority: authorised by statute and the nuisance was inevitable. Consent: C must have specifically consented to the activity causing the nuisance (not enough to consent an activity of which the nuisance is a consequence) Act of third party: no responsible + no adopt/continue Act of God: unless adopt/continue Contributory negligence: failure and failure contributed Necessity

Answer 19

Remedies (x3) — see adapt Damages (rarely) Injunction Abatement — self help remedy, no need for court order but must give notice unless emergency

Answer 20

Individual — if they have suffered special damage (over and above the class, or different loss and does NOT need to have an interest in the land!) Local authority (if it has suffered in its own behalf or on the behalf of inhabitants) Attorney general

Answer 21

Creating or responsible for nuisance Losses to be recovered is wide: PI, property, CEL, PEL and inconvenience (ie SPD)

Answer 22

Claim x4 Act or omission One-off event (no need for continuous act) Class of his majesty’s subjects (no exact n, depends on facts, significant % of community) Materially affects comfort and convenience (harm being caused to reasonable comfort and convenience to class: CEL, PEL, PI, property, SPD but must reasonably foreseeable)

Answer 23

Remedies x2 (no abatement) Damages (rarely) Injunction

Answer 24

Defences x5 (no prescription) Statutory authority: Consent Act of third party Act of God Contributory negligence

Answer 25

who/sued: subset of private but only recover property damage and CEL claim x5: brings; purpose; escape; foreseeable; non-natural defences: private (but no prescription) + common benefit + claimant act/omit remedies: private but damages most likely Rule: protects against interference from defendant's land due to an isolated escape Who can be sued? Who can sue? Same as private BUT only for loss of property damage and CEL Claim x5 1) C BRINGS onto land + accumulates (not naturally occurring) 2) for OWN PURPOSES + something likely to do mischief (high threshold) 3) must be an actual ESCAPE (where D has control to where D no longer has control of land) 4) causes FORESEEABLE HARM (no need for escape to be foreseeable harm but rather the harm is if the escaped occurs) 5) NON-NATURAL use of land (D use had to be extraordinary and unusual re to standards of day) Defences: same as private but No prescription and +2: common benefit + act or default of claimant Remedies same as private nuisance (but damages most common since types of loss property/CEL)

Answer 26

Anyone with a legal interest in land affected (own it or be in possession of it) Demised/rented land: claimant is tenant or licensee in possession rather than land owner

Answer 27

it does not require any actual damage!! Note: Trespass includes airspace! But statute so that aircraft reasonably above is not trespass Below ground too! Unless absurd

Answer 28

Claim x2 1-- Direct and physical interference Entering C’s lands Remaining on C land when permission has been revoked Doing something that is not permitted on C’s land Placing objects on C’s land without permission 2-- Interference was intentional Must intend the direct action that results in the trespass but need not intend to trespass Eg voluntarily hit tennis ball and accidentally goes on neighbour’s land is trespass as you intend to hit ball Intention can be implied (case law)

Answer 29

x3 Permission/consent Legal authority: eg policy Necessity: to protect public or private interest

Answer 30

Remedies x5 Damages (most common) Injunction Re-entry (self help but only reasonable force) Recovery of land (court order for D to be removed) Mesne profit (D have made a profit/saved expenditure while wrongfully occupying land)

Answer 31

Extension of negligence but based in statute Loss caused by state of premises Statute x 2: occupier’s liability act 1957 (visitors) AND occupiers liability 1984 (non visitors) visitors 1 -- occupier + premises + visitor = duty 2 -- standard of care 3 -- fall below standard? warnings causation/remoteness: assume unless defence: consent + CI non-visitors 1 -- occupier + premises + visitor MIGHT = duty only for PI (not property) 2 -- duty owed x3 3 -- standard of care warnings easier than visitors causation/remoteness assumed defence: consent + CI

Answer 32

Duty (PI/property): occupier(s) + premises + visitor standard: safety of visitor (not premises)+ objective + lower (skilled)/higher (children) + context (vulnerable) below? equation warnings x3: what, where, how independent contractors: hire, select, supervise 1) Occupier + premises + visitor = duty owed in relation to personal injury and property damage --Occupier sufficient degree of control over premises to justify imposition of duty (wheat v lacon) Can be more than one occupier: eg independent contractor and anyone living there at the time --Premises Broad definition! Any fixed of moveable structure, including any vessel, vehicle or aircraft --Visitor (by common law so defined by case law) Express permission (can be limited! On the basis of certain conditions: area, time or purpose) Implied permission: eg postman Doctrine of allurement (not as relevant): children visitors as lured easily Lawful authority: from statute eg medical professionals Contractual permission 2) standard of care (s2(2) OLA 1957): D needs to do all that is reasonable so that visitor is reasonably safe --Visitor (not premises) that must be safe --Objective test: does not matter if D thought they did well --Context: reasonable care depends on visitor concerned! Eg awareness of vulnerability!! --Higher standard of care for children! s2(3)(a) --Lower standard of care for occupiers that are skilled visitors s2(3)(b) eg electrician 3) below standard of care (same test as general negligence) Likelihood of harm Magnitude of harm Practicality of precautions…. Warnings: effective if enables visitor to reasonably safe Where danger is, what danger is and how to avoid it Independent contractors If D acted reasonably in entrusting work to the independent contractor x3: hiring, selecting, supervising Causation and remoteness: assume caution and remoteness are made out unless seems otherwise Defences x2 Consent Contributory negligence

Answer 33

1984: non visitors Occupier + premises + non visitor MIGHT = duty owed in relation toPI only (not property of trespasser) Occupier + premises = same as 1957 1 -- Non visitor = on land with no invitation whose presence is unknown or if known objected 2 -- Duty owed if x3: danger; vicinity; protection (obj) Occupier/D are aware of danger or have reasonably ground to believe that it exists Occupier/D knows or have reasonably grounds (eg facts) that someone is in the vicinity or may come into the vicinity Occupier/D reasonably expected to offer some protection (objective) Standard of care s1(4): care as in reasonable in all circumstances that entrant does not suffer injury on the premises by reason of the danger concerned 3 -- Below standard Same as general negligence: eg likelihood and gravity of harm etc Court unlikely to have the same expectations as for visitors Warnings s1(5) duty may be satisfied if occupier takes all reasonably steps to give warning or discourage Easier to satisfy for non visitors than visitors (eg physical barriers can be enough for non visitors) Causation and remoteness: assume okay unless issue arises Defences x2 (adapt case law) Consent Contributory negligence

Answer 34

Exclusion or limitation classes — OLA 1957 (not OLA 1984 — the act is silent! But likely common law principle of common humanity) s2(1) Restrictions x4 s(3) OLA 1957: occupier cannot by contract exclude common duty of care So where an occupier is bound by contract to allow visitors to use or repair premises, the duty of care owed to visitor cannot be excluded or restricted by contract UCTA 1977 (B2B) Cannot exclude death or personal injury from their negligence Can only excluded other types of loss if term/notice satisfy reasonableness CRA 2015 Between consumer and trader Like UCTA cannot exclude death or personal injury from their negligence Can only excluded other types of loss if term/notice is FAIR Common law Common humanity principle Minimum legal standard of care which can never be excluded by agreement or notice Would conscientious person with D’s defendants knowledge, skill, resources be reasonably expected to have done something which would have avoid the accident rather than rely on exclusion or restriction

Answer 35

Two aspects: Consumer Protection Act 1987 and liability negligence CPA and negligence not mutually exclusive but if both succeed claimant cannot be compensated twice

Answer 36

CPA 1987 Strict liability regime: parties liable without showing fault on their part Definition from s2(1) -- Product -- With a defect -- Causes damage -- Persons as 2(2) who are liable

Answer 37

any goods or electricity Includes any component or raw materials comprised in another product Sections 1(2) CPA 1987

Answer 38

expectation of safety form consumer's perspective: >reasonable care Safety of product is not such as people generally are entitled to expect So focus is at what people generally can expect: consumers perspective not manufacturer’s (does not matter that manufacturer took reasonable care!) Higher standard than reasonable care! A v National Blood authority Relevant consideration include (s3(2)) Manner and purpose for which marketed What might reasonably be expected to be done with it Time of supply

Answer 39

death, PI, CEL (not business) no PEL no product itself Damage Death , PI, any loss or damage to property (CEL too but not business use) PEL not recoverable Product itself not recoverable s5(4): damage must exceed 275 Property is ordinarily intended for private use s5(3) = consumer protection (cannot recover for business as business cannot suffer personal injury or death)

Answer 40

Persons liable for damage s2(2) The person who produced the product or held themselves out as the producer Any person who has imported the product into the UK from outside the UK in the course of business Producer Manufacturer Person who won/abstracted product (eg coal) Person who carried out the process (neither manufactured or abstracted eg agriculture) Supplier might be liable — If claimant asked details of producer within reasonable time and supplier failed to ID producer then claim can be brought If more than one person liable: jointly and severally liable s2(5)

Answer 41

Defences x7: s(4) comply, another, business, art, sub, CI, time a) Defect attributable to compliance with statute or retained EU regulations b) Person proceeded against did not at any time supply the product to another c) Otherwise than in the course of business (?) d) defect did not exist in product at relevant time e) state of scientific knowledge at the relevant time could not have detected it (limited no fault defence where fault is caused by limited scientific knowledge) f) defect due to subsequent product that product is found in Importance of relevant time s4! s6(4) contributory negligence is also a defence

Answer 42

Product? Defective? Damage? Identify people liable? Defences? Limitation?

Answer 43

Any attempt to exclude or limit liability is PROHIBITED s7 Limitation: claim must be brought within 3 YEARS of later date -- Date injury and/or damage occurred -- When claimant became aware or should have become reasonably become aware -- 10 YEARS after product was put into circulation by D: absolute defence

Answer 44

not for PEL/product legal causation re inspection! Is a duty owed? Precedent! Manufacturer owes duty of care to user of product (not just end user/final purchaser) and manufacturer owes duty to a party that comes into contact with product (even if did not use or buy) Breach, causation, remoteness, defences, remedies General negligence: loss of product itself is PEL and generally not recoverable Legal causation: where goods were going to be examined between manufacture and use by consumer then harm caused to consumer is not the manufacturer faults (NAI) yet there must be a reasonably probability of immediate inspection

Answer 45

don't forget the rest of the cause of action: breach, causation, remoteness, defences, remedies

Answer 46

SC held if tortfeasor is not carrying on their own independent business, question is if relationship is sufficiently analogous to employment to make it fair, just, reasonable to impose vicarious liability. Useful to consider that a relationship is more likely to be akin to an employment relationship if: x5: means, resulting, activity, risk, control 1 -- The employer is more likely to have the means to compensate the claimant than the tortfeasor; 2-- Tort committed as a result of an activity being undertaken by tortfeasor on employer's behalf; 3 -- The tortfeasor's activity is part of the business activity of the employer; 4 -- By allowing tortfeasor to carry on activity, employer created risk of tort being committed; and 5 -- The tortfeasor is, to a greater or lesser degree, under the control of the employer.