Tort Flashcards
Where there is uncertainty as to the existence of a duty of care, how is this settled?
The Camaro v Dickman test:
- Is there a reasonable foreseeable risk of harm?
- Is there sufficient proximity in the relationship?
- Is it fair, just and reasonable to impose a duty?
When will damages for BOD not be recoverable, even if defendant owed a duty and acted negligently?
If harm suffered was not within the scope of the defendant’s duty of care
How is BOD initially assessed?
By looking at whether the defendant fell below a reasonable standard of care
What will the court consider when deciding if a duty has been breached?
- Risk of damage / harm (how likely it would have been to happen)
- Seriousness of damage
- Social utility of the defendant’s activity
- Whether the thing speaks for itself (fact that defendant did cause harm is enough to show the duty has been breached)
- Practicability/cost of taking precautions
What is a defence if a tort does not happen very often?
That the risk of harm is low
What must doctors warn patients about?
Any risks that a reasonable person would attach significant harm to, even if they weren’t to be cause by the doctor’s negligence
What is causation in fact?
But for the defendant’s breach, would the claimant have suffered the damage?
What are cumulative conditions?
Whether, on the balance of probabilities, the BOD made a material contribution to the damage
What are non-cumulative conditions?
It is sufficient for a claimant to show that the defendant merely made a material contribution to the risk of harm - may be joint and several liability
What is causation in law?
The question of whether the defendant’s negligence was the true cause of the claimant’s damage, or merely a pre-condition for it?
Were the type of injuries suffered a reasonably foreseeable consequence of the defendant’s actions?
What must be show to establish causation?
- Factual causation (but for, defendant’s breach made a material contribution)
- Legal causation (defendant’s negligence the true cause of the claimant’s damage)
- No intervening acts
What is an intervening act?
Wheee the victim starts to suffer from a more serious injury that is unrelated to the initial harm caused by the defendant, and their health deteriorates due to this
When will a third party act break the chain of causation?
Where it was not reasonably foreseeable
+
Where its harm caused was greater than the original harm
When will a victim’s act break the chain of causation?
If it was such an unreasonable response to the situation that they are in / it was so unreasonable that they ought to be blamed for it.
Criminal conduct will break chain of causation, but suicide will not
If the way in which harm was suffered is unforeseeable, can a claimant still recover losses?
Yes, as long as the type of harm is reasonably foreseeable
What must a claimant show to establish psychiatric harm?
- They, as a result of the harm, suffered from a recognised psychiatric injury
- The psychiatric injury resulted from a shocking event
- There was causation (defendant’s act actually caused psychiatric injury)
- Foreseeability (psychiatric injury was a reasonably foreseeable consequence)
- Proximity (link between the defendant’s conduct and the psychiatric injury suffered)
Who is a primary victim?
Somebody who is directly involved in the event, and it was reasonably foreseeable that the defendant’s actions might have cause them physical harm (they were at risk of physical harm).
Can a primary victim recover due to psychiatric harm?
Yes, and psychiatric harm suffered does not need to be foreseeable
Who is a secondary victim?
Somebody who suffers psychiatric harm by witnessing an event that causes / threatens to cause death or personal injury
What is the secondary victim criteria?
- Reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer psychiatric harm
- Close tie of love and affection
- Claimant perceived the event / its immediate aftermath with their own unaided senses (cannot have heard about it from somebody else)
- Psychiatric harm was caused by a shock that is sudden and immediate
What are general damages?
- assessed by the court
- future loss of earnings
- future expenses
- damages for future pain
- damages for future suffering
- damages for future loss of amenity
What are special damages?
- identifiable, financially calculated losses
- income lost in between injury and trial
- travel expenses
- precisely calculated at the time of trial, including past loss of earnings and past expenses
Is a claimant dies, can their claim continue?
Yes, their existing cause of action may continue for the benefit of the estate
If there is a claim doe negligent misstatement of a dead person’s estate, who is the proper claimant?
The party who missed out of the benefit
What are the recoverable losses that can be claimed on behalf of a deceased claimant?
- pain and suffering
- loss of amenity
- expenses
- loss of earnings up until death
What are the non-recoverable losses that cannot be claimed on behalf of a deceased claimant?
- damages after the period of death
- death itself
If a victim dies, can an additional cause of action arise?
Yes, an additional cause of action may rise for the benefits of their dependants and for bereavement
Who can make a claim in their own right on the death of a victim?
Under the Fatal Accidents Act 1976, deceased’s relatives or dependants may be able to bring a claim in their own right
Who can damages for bereavement be claimed by?
- Spouse / civil partner
- Cohabitee living with deceased for 2 years before death
- Parent living with the deceased (if deceased under 18 and unmarried)
Who is not eligible to claim damages for bereavement?
- Parents of a child over 18
- Children, upon the death of the parent
What must be shown to claim damages for loss of dependency?
Must show that you are:
- an eligible person
- financially dependant on the deceased
Who is an eligible person in order to claim damages for loss of dependency?
Under the Fatal Accidents Act 1976:
- spouse / former spouse
- person living with the deceased as their spouse for at least 2 years immediately before death
- parent / ascendant (e.g., grandparent, uncle, aunt) or person treated by the deceased as his parent
- child or descendant of the deceased or any person treated as a child of the family in relation to marriage
- any person who is / is the issue of a brother, sister, aunt, uncle
What is the statutory bereavement award?
A fixed sum awarded by virtue of a claim by the spouse of the deceased / parents of the deceased (if deceased was a minor and never married)
What is loss of income and services dependancy damages?
Damages of future losses that court will assess - usually claimed for financial support if the members of the family were financially dependant on the deceased’s support / services provided by the deceased (cooking / cleaning / childminding)
Can funeral expenses be claimed as damages?
Yes, if paid by a dependant of the deceased
What is the limitation period in which to bring an action under the Fatal Accidents Act 1976 (dependants)?
Within three years from:
- The date of death; or
- The date of knowledge of the person for whose benefit the action is brought
What is the aim of damages for BOD?
To put the claimant in the position they would have been in had the tort not happened / duty not been breached
What are the different types of damages?
- General damages
- Special damages
- Nominal damages (harm suffered is minimal)
- Contemptuous damages (if court feels that particular action should not have been brought)
- Aggravated damages (higher due to defendant’s behaviour making situation worse)
- Exemplary damages
What are the defences for tort?
- Contributory negligence
- Consent (complete defence)
- Illegality (complete defence)
- Necessity
How can consent be used as a defence?
Must be shown that claimant had knowledge of:
- the nature of the risk
- the extent of the risk
+ claimant freely and positively accepted the risk
What is necessity as a defence?
Usually in the case of doctors, showing that they were acting in the patient’s best interests (e.g., patient couldn’t consent, and doctor had to carry out the procedure to keep them alive)
What is the time limit to bring an action in tort?
6 years from the occurrence of the tort
What is the time limit in which to being an action for personal injury?
3 years from when the damage was done, or
3 years from when the claimant had knowledge of the damage
What are employer’s non-delegate duties?
- Safe place of work
- Safe system of work
- Competent fellow employees
- Adequate plant and material
What is employer’s duty of safe system of work?
- employees being properly supervised
- ensuring employees understand why a particular system of work is used
- ensuring employees understand why they should follow prescribed safety routines
When will an employer be liable in relation to fellow employees?
- Employer is liable where fellow employees are not adequately trained to operate equipment.
- Employer is liable where fellow employee regularly engages in horseplay, and employer is aware but fails to take action and injury results.
What is an employer’s duty of providing adequate plant and material?
- adequate plant and material must be provided and maintained
- employers must take reasonable steps to compel their employees to use that equipment
- employer must take into account the individual circumstances of each employee in relation to the precautions that should be taken
Can employers delegate their duties?
Employer can delegate implementing safety systems to a contractor, but can never delegate their duty of care and will be liable if something goes wrong.
Will be liable if contractor fails to take reasonable care.
Will be personally liable if they failed to take reasonable care in their duty of selecting a competent and well trained contractor.
What is the test for vicarious liability?
- Was person an employee?
- Was person acting in the course of their employment?
Which situations will give rise to vicarious liability?
Relationships akin to employment will, but contracts for services with an independents contractor will not
What does it mean that an employee is acting in the course of their employment?
Whether tort was so closely connected with their employment that it would be fair and just to hold the employer liable
When will an employee not be deemed to have been acting on a frolic of their own?
Where employee is acting for their employer and doing what they have been asked to do, albeit in an unconventional way
What does occupiers liability apply to?
The condition of the premises, not the activities carried out on it
Who is an occupier?
A person who has control over the premises (doesn’t need to be the owner)
What is the duty imposed by the Occupier’s Liability Act 1957?
Duty to take reasonable care so the (lawful) visitor is reasonably safe in using the premises for the purpose they have been invited or permitted
What is premises?
All fixed and moveable structures, including things on the premises
What does the OLA 1957 include liability for?
Personal injury
Death
Property damage
What will the court consider when determining whether an occupier has breached their duty of care towards lawful visitors?
- The magnitude of risk, and
- The practicality of taking precautions
What is an occupier’s duty to children?
Reasonable care, but duty is not to guarantee that the premises are completely safe.
Expected that parents will act responsibly, and will be primarily responsible.
What is an occupier’s duty to skilled visitors?
Reasonable care, but skilled visitors will be expected to take appropriate action to deal with any risks
When will an occupier not be liable for damages suffered by the faulty work of an independent contractor?
If occupied has:
- Acted reasonably in choosing an independent contractor, and
- Took reasonable steps to be satisfied that the contractor was competent and work was properly done (e.g., getting somebody else to check the work)
Can an occupied exclude their liability under OLA 1957?
Yes, by using volenti (consent) through contract or by notice
(If occupier is a business, this exclusion will be subject to the UCTA)
If occupier under OLA 1957 is acting in the course of business, what liability can they not exclude?
Cannot exclude liability for death and personal injury
Can exclude liability for property damage if reasonable
What formalities must an exclusion clause follow to successfully exclude liability under OLA 1957?
Must cover the damage in question, and have been adequately brought to the claimant’s attention
What does it mean that an exclusion for liability must be adequately brought to claimant’s intention?
Contract = terms must be incorporated
Notice = notice must be given before claimant encounters the risk
What are the defences under OLA 1957?
- contributory negligence
- volenti
- warnings
- exclusion of duty of care (by giving reasonable notice)
What is the duty of occupiers under the Occupier’s Liability Act 1984?
Duty of occupiers to:
- Keep trespassers reasonably safe
- If they are aware of the danger
- And they know / believe that somebody may come into the vicinity of the danger
- And the risk is one that the occupier may reasonably be expected to protect against
What does the OLA 1984 include liability for?
Death and personal injury
NOT property damage
How can occupiers under OLA 1984 exclude their liability?
By notice / warning / contributory negligence / volenti (consent)
If order to rely of contributory negligence to negate the duty imposed under OLA 1984, what must be shown?
This the injury is within the general type of risk that the claimant was exposed to
What does pure economic loss cover?
- Damage to property that does not belong to the claimant
- Financial loss not flowing from damage to claimant’s property or person
- Negligent misstatements
PEL = loss not flowing from damage to the claimant’s person or property.
Damage caused to the defective product cannot be claimed for (PEL)
What must be proven for negligent misstatements?
- Existence of a special relationship between claimant and defendant
- Party preparing the advice has voluntarily assumed the risk
- There was reliance on the statement
- Reliance was reasonable
- Misrepresentation played a real and substantial part in inducing the claimant to act
What is covered by consequential economic loss?
Loss which is a direct consequence of physical injury or damage and is recoverable
When is the cost of damage recoverable?
Cost of damage to a defective procedure is not recoverable as a PEL.
Where defective product causes damage to other property, as long as damaged property is owned by the claimant, that is recoverable as a CEL.
What is the common law product liability in negligence?
Donoghue v Stephenson = manufacturer owes a duty to the consumer to take reasonable care of their product
Who is a consumer at common law?
Anyone who ought to be foreseen as being affected
Who is a manufacturer at common law?
All those who may have been involved with the product (includes packing, labelling, instructions).
Must show causation - that it is manufacturer’s fault for the injury suffered.
What is a manufacturer’s knowledge judged on?
The knowledge available at the time of manufacture
What damages are recoverable under common law for defective products?
Damage caused must be reasonable foreseeable, and possible to claim for:
- personal injury
- property damage
- CEL
What liability does the Consumer Protection Act 1987 impose?
Strict liability for:
- death
- personal injury
- some property damage / consequential loss (NOT PEL)
Who is liable under the CPA?
- producers
- own-branders
- importers
- other suppliers
can be joint and several liability
What products are covered by the CPA?
- goods
- electricity
- components
- raw materials
- things comprised in land by virtue of being attached
When is a product defective under the CPA?
Where its safety is not of the standard that people are generally entitled to expect
In determining how safe a product is, what factors will the court consider?
- Manner in which / purpose for which product has been marketed
- Packaging
- Use of quality marks
- Instructions and warnings
- What might reasonably be expected to be done
- Time which the product was supplied
if goods meet the required safety expectations, there will be no ability to sue
What are the defences under the CPA?
- Defect is attributable to statutory requirements
- Defendant did not supply the product (e.g., stolen goods)
- Supply of product was not in the course of business
- Defect did not exist at the relevant time (time when product supplied/made available for use)
- Development risk defence (new products, risks come with development)
- Defect was with a component within another product, and defect was integral to the design
- Contributory negligence
When must claims under the CPA be brought?
Within 3 years of the date that either:
(a) damage occurred, or
(b) claimant became aware / should have become aware of the damage
Long stop of 10 years since product put into circulation
What is a public nuisance?
Unreasonable interference with the comfort and convenience of life of a class of the public
What liability does public nuisance cover?
Personal injury
Property damage
Who can sue for public damage?
- An individual member of the public (if they can show that they have suffered special damage)
- AG on behalf of the public
What is private nuisance?
Indirect and unlawful interferences with a person’s use / enjoyment of their land.
Substantial and unreasonable interferences.
What criteria must be satisfied to claim under private nuisance?
- claimant must have a proprietary interest in the land (owning / renting, but not merely staying there for a couple days / employees)
and
- nuisance must be caused by some emanation from the defendant’s property
What damage can give rise to private nuisance?
- physical damage (flooding)
- amenity damage (noise / smells / dust)
- encroachment onto land (overhanging branches / tree roots)
What factors are used to determine private nuisance?
- Locality (nature of the area)
- Time / duration (time of day it occurs / how long it takes place for, must be a continuing state of affairs and not an isolated activity)
- Sensitivity (does claimant has a characteristic that makes them particularly sensitive?)
- Malice (if defendant is acting in bad faith)
- Damage (if nuisance has resulted in damage)
- Social utility of the defendant’s conduct (socially helpful, and therefore justified?)
Who is liable under private nuisance?
Occupier of the land
and
Creator of the nuisance
What are the defences to private nuisance?
- contributory negligence
- volenti (consent)
- statutory authority
- prescription (using their land in that way for at least 20 years, time starts to run from when claimant become aware of nuisance)
What are the remedies for private nuisance?
- injunction
- damages
- abatement
- HRA (respect for private life)
What is the rule in Rylands v Fletcher?
- Defendant brought something dangerous onto the land (needs to have brought that thing voluntarily, naturally grown things will not fit criteria)
- That dangerous thing is likely to do mischief
- Dangerous thing escapes
- Use of land was non natural (special use of land which carries an increased risk if danger to others)
- Damage occurs as a result of the escape
To sue under RvF, what must be shown about the damage?
The type of damage caused must be reasonably foreseeable and not too remote
Escape itself does not need to be foreseeable.
To sue under RvF, what must be shown about the land onto which the thing escapes?
The claimant must own or have exclusive possession of the land onto which the thing escapes
What is the remedy under RvF?
Damages
What are the defences for RvF?
- volenti (e.g., if claimant benefits from a water pipe that runs from defendant’s land, they will have impliedly consented)
- contributory negligence
- abnormal sensitivity of claimant’s property
- an act of God
- statutory authority
- acts of a stranger (unless they were reasonably foreseeable)
Will there be a defence if the nuisance already existed before the claimant took over the land?
No - the claimant will have a cause of action against either the occupier when the nuisance began or the current occupier
