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SQE 1 > Tort/DR: EXTRA > Flashcards

Tort/DR: EXTRA Flashcards

1
Q

When is PEL recoverable?

A

1. Assumption of responsibility by D?
* D knew why advice was required
* knew advice would be communicated to C
* knew C would likely act on advice without independent inquiry
* C acted to their detriment
2. Was it reasonable for C to rely on advice?

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2
Q

Examples of PEL

A
  1. Economic loss caused by acquiring a defective item of property
  2. Economic loss caused by damage to the property of a 3rd party
  3. Economic loss where theres no PI or physical property damage
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3
Q

When is PSH recoverable?

A
  1. Harm is caused by a sudden shock
  2. AND is a medically recognised psychiatric condition or shock induced physical condition
  3. C is primary or secondary victim
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4
Q

PSH: what is a primary victim?

A

i. Was in actual area of danger
ii. OR reasonably believed they were in danger (was risk of physical injury was foreseeable?)

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5
Q

PSH: what is a secondary victim and when will they be owed a DOC?

A

1) Witnesses injury to someone else
2) OR fears for the safety of another

  1. Reasonably foreseeable that person of normal fortitude in Cs position would suffer psychiatric illness?
    2.. Proximity of relationship?-close relationship of love/affection with endangered person (rebuttable presumption for parents/spouses)
  2. Proximity time/space? Present at accident/immediate aftermath
  3. Proximity of perception?-Must see/hear accident/immediate aftermath with own senses
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6
Q

PSH: is 2h after the birth of a child the ‘immediate aftermath’?

A

Yes

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7
Q

What is the meaning of the fact that an employer’s duty to its employees is personal and non-delegable?

A

Employer can delegate tasks but is held legally responsible when a contractor it employed is negligent.

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8
Q

Can breaches of statutory duty be relied on by employees for a claim against an employer?

A

No but can be used to prove breach

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9
Q

Specifically, what do employers owe their employees a duty to provide?

A
  1. Competent fellow staff
  2. Adequate plant/equipment
  3. Provide and maintain a proper system of work and supervision
  4. Safe place of work
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10
Q

What defences CANT be relied on by a driver in claims against them by their passengers?

A

Consent/Volenti
CAN rely on contributory negligence

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11
Q

Exceptions to the defence of consent/volenti?

A

□ Employees-have no choice to carry out dangerous tasks
□ Rescuers-wont have voluntarily assumed risk if rescuing person endangered by D negligence, under social/legal duty, conduct reasonable, natural and probable in all circumstances
□ Passenger to drunk drive

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12
Q

When wont rescuers have consented to the risk of injury?

A
  1. Rescuing person endangered by D negligence
  2. under social/legal duty,
  3. conduct reasonable, natural and probable in all circumstances
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13
Q

When will rescuers be found contributory negligent?

A

Only if shown wholly unreasonable disregard for his/her own safety

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14
Q

When does the defence of illegality not apply?

A

Caselaw has est that illegality cannot be relied upon where a trespasser is bringing a claim under the Occupiers’ Liability Act 1984.

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15
Q

Elements of the defence of consent?

A
  1. Claimant had full knowledge of the nature/extent of risk.
    AND
  2. Claimant freely consented to accept the risk of injury .
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16
Q

Elements of the defence of contributory negligence?

A
  1. carelessness on claimants part
  2. carelessness had contributed to claimants damage
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17
Q

What does a claim for loss of dependency cover?

A

Loss of pecuniary benefits from the deceased

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18
Q

Formula for calculating loss of future earnings

A

1.MULTIPLICAND: gross annual (ADD promotions DON’T ADD inflation LESS tax, NI, pension)
TIMES
2. MULTIPLIER: period of future loss based on pre accident working life expectancy/when can return to work (increased via discount rate of -0.25%)

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19
Q

Damages for PI: when does loss of earning capacity apply?

A

If C is still working but would suffer a disadvantage on the job market in the future
NOT if they are no longer working at all

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20
Q

What are general and special damages?

A

SPECIAL: Losses capable of being calculated precisely at time of trial
GENERAL: POST trial losses not capable of being calculated precisely at time of trial

21
Q

What happens if written questions are put to an expert who does not answer?

A

Court may order that:
1. Party instructing expert cant rely on the evidence of that expert
2. Fees of that expert are not recoverable

22
Q

Deadline for expert to reply to written questions?

A

within 28 days of service of the report

23
Q

What form must expert evidence be in to be admissible?

A

Report that complies with Part 35

24
Q

What is the ‘development risks’ defence to liability under the CPA 1987?

A

Given the state of knowledge (highest possible standard of knowledge in the world) at time of supply, it wasnt reasonable to expect the producer to have been aware of the defect NOT inability to test a product

25
Q

Potential defendants in negligence and under the CPA 1987 for product liability

A

NEGLIGENCE
1. Manufacturers
2. Repairers
3. Installers
4. Suppliers if they should inspect

CPA 1987
1. Producer
2. Own brander
3. Importer
4. Forgetful Supplier

26
Q

What can be recovered for property damages under negligence and the CPA 1987?

A

NEGLIGENCE: everything except the cost of replacement/repair (if not too remote/reasonably foreseeable)
CPA: PI (inc mental) and property over £275, NOT business prop

27
Q

Defences under the CPA 1987

A
  1. Defect attributable to compliance with legal requirements
  2. D supplied the product otherwise than in the course of business
  3. Defect didn’t exist when D supplied the product
  4. Manufacturer of component parts isnt liable for defect in finished product.
  5. D did not supply the product to another
  6. ‘Development risks’ (state of the art)
28
Q

Who can sue for private nuisance?

A

Only a person with the right toexclusive possession deriving from a proprietary interest
○ Owner/occupier
○ Tenant (in leasehold)

29
Q

Who are the potential defendants for private nuisance?

A
  1. CREATOR (even if land now occupied by someone else)
  2. OCCUPIER if created or another created (vicarious liability, independent contractor, created by another if adopted or continued
  3. LANDLORD if authorised, Nuisance existed at start of letting and landlord knew or ought reasonably to have known it, landlord covenanted to repair the premises, or has the right to enter to do so, and, fails to make the repairs, giving rise to the nuisance
30
Q

Private nuisance:m when is the factor of the character of the neighbourhood relevant?

A

only relevant for interference causing personal discomfort and inconvenience (rather than physical (material) injury to property)

31
Q

What interferences are covered by private nuisance?

A
  1. Encroachment
  2. Direct physical injury to neighbours land
  3. Interference with quiet enjoyment of their land
    NOT PI
32
Q

Under which tort of land can PI be recovered for?

A

Public nuisance

33
Q

When is permission not needed to commence part 20 additional claim?

A

If it is issued (before or) at the same time as filing the defence.

34
Q

What are the types of claim under the Fatal Accidents Act 1976

A
  1. Loss of dependency
  2. Bereavement
  3. Funeral expense if paid by the dependants
35
Q

Fatal Accidents Act 1976: who can claim for loss of dependency?

A

Current/Former spouse/Civ P
Cohabitees lived for 2y
Parents
Children
Siblings
If actually financially dependent on deceased

36
Q

Fatal Accidents Act 1976: Who can claim for Bereavement?

A

Spouse/CivP
Parents of unmarried minor
Cohabiting partner who lived in same household for 2y immediately before death as spouse

37
Q

When do the rules of service of witness statements not apply and what can the judges do in these circumstances?

A

Small claims
Judge can still restrict evidence to ensure parties on =footing/case dealt with fairly

38
Q

What form must expert evidence be in to be admissible?

A

A report that complies with Part 35

39
Q

When will employers have breached their duty to provide a safe system of work via imposition of stress?

A

Threshold q: was stress reasonably foreseeable?
Consider:
1. Nature/extent of work done
2. Signs from the employees themselves

40
Q

Employers liability and stress: What can employers do/assume regarding stress at work?

A

Yes, employer can generally assume employee is up to normal pressure of the job and can take what they say at face value

41
Q

What will the court consider when calculating how much damages should be reduced by for contributory negligence?

A
  1. Culpability: relative blameworthiness
  2. Causation: extent to which Cs carelessness caused/contributed to loss
42
Q

When will the illegality defence apply?

A

Where harm a result of an inherent part of the joint criminal enterprise

43
Q

Damages on death: can the estate claim for loss of future earnings?

A

No, may be included in damages for loss of dependency

44
Q

5 examples of when an employee will have committed a tort ‘in the course of their employment’?

A
  1. Wrongful act authorised act
  2. Authorised act carried out in wrongful (careless) and unauthorised way (Eg. Unloading oil whilst smoking)
  3. Expressly prohibited acts which furtherer the employers business
  4. Intentional tort for own purposes but theres a sufficient close connection between the work they were employed to do (what was the nature of job?) and tort (eg boys school warden and systematic abuse)
  5. Frolic cases where Employee deviated from the employers instructions but was still carrying out the employers business/fraud stemmed from employer authorised act
45
Q

Conditions for occupier to owe duty to trespasser?

A
  1. Aware of danger/reasonable grounds to believe it exists
  2. Know/reasonable grounds to believe trespassers are/may come into in vicinity of the danger
  3. Reasonably be expected to offer some protection against risk
46
Q

How can an occupier to comply with their duty of care to visitors?

A

Warning notice thats adequate to keep that particular visitor safe, consider
◊ Nature of warning: specific or too general
◊ Nature of danger: if hidden, warning needs to be more specific
◊ Type of visitor-written warning might not be enough for child
(distinguished from exclusion of liability)

47
Q

Elements to establish product liability in negligence under narrow rule in Donoghue v Stevenson

A
  1. D manufacturer
  2. C consumer
  3. Item causing damage is a product
  4. Product reached consumer in form it left manufacturer with no reasonable possibility of intermediate inspection
48
Q

When do the rules on service/later service of witness statements not apply

A

Small claims
But judges can still restrict evidence

SQE 1 (46 decks)

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