Tort GAPs

Question 1

Negligence

Answer 1

D owed C a duty of care

The D breached that duty

The D’s breach caused damage to the C

Question 2

Novel duty

Answer 2

C must be a foreseeable victim, must be a relationship of sufficient proximity between the C and D, and it must be fair, just, and reasonable to impose a duty of care

Question 3

Breach

Answer 3

D’s acts fall below that of a reasonable person.

Court considers magnitude of risk:

• foreseeability of harm and practicability of taking precautions
• Social utility

Question 4

Types of D

Answer 4

Under-skilled (no exception)

Skilled - same as other reasonably competent members of that profession

Question 5

Remoteness

Answer 5

Was the damage a reasonably foreseeable result of the D’s negligence?

Question 6

Remedies for PI

Answer 6

Pecuniary losses - loss of past income + loss of future income. Expenses

Non-pecuniary losses - Damages for both past, present and future pain, suffering, and loss of amenity.

Damage to property

Question 7

Remedies for death

Answer 7

• Claim survives death (bar defamation)
• Funeral expenses
• Bereavement damages
• Damages for dependents

Question 8

Pure economic loss - negligent act

Answer 8

Generally no recovery.
Covers:
- Damage to property not belonging to the C
- Damage to product itself
- Financial loss not flowing from the claimant’s person or property

Question 9

Pure economic loss - negligent misstatement

Answer 9

Special relationship

Assumption of responsibility by D

Reasonable reliance by C

Question 10

Psychiatric harm - secondary victim

Answer 10

• Harm must be caused by a sudden shocking event

Question 11

Employer’s liability

Answer 11

• safe plant and equipment
• safe place of work
• competent fellow staff
• safe system of work
• Each employee is treated as an individual (one eye)

Question 12

Defences

Answer 12

Voluntary assumption of risk (consent) - C had full knowledge of the risk and they must have freely and voluntarily assumed the risk

Illegality - complete defence

Necessity - prevent evil

Question 13

Vicarious liability

Answer 13

Economic reality test:
- Control (does employer have right to control how work is done?)
- Ownership of tools?
- Chance of profit and risk of loss?
-Contractual provisions?

is it a frolic of their own?

Question 14

OLA 1957

Answer 14

Can exclude liability - must be clear that exclusion covers damage and have been brought to the attention of the C

Question 15

OLA 1984

Answer 15

Duty to take such care as is reasonable in all the circumstances to see that the trespasser does not duffer injury by reason of the danger

Defences:
- Such steps as is necessary to warn trespassers of the danger or steps to discourage them from incurring the risk of danger

Question 16

Product liability - Principles of Negligence

Answer 16

DoC when:
- manufacturer puts product into circulation in the form that it is intended to reach end consumer

• There is no reasonable expectation of intermediate examination

Owe for PI and damage to property (excluding damage to product)

Duty is one of a reasonable manufacturer

Question 17

Product liability - Consumer Protection Act 1987

Answer 17

Strict liability - not necessary to prove that the defect arose because of a fault on the part of the D

Defendants:
Producer, person who holds themselves out as producer, an importer

Question 18

Nuisance

Answer 18

Public = AG can obtain injunction

Private = unlawful interference with the C’s use and enjoyment of land (unlawful when substantial and unreasonable). Must be a continuing state of affairs

R v F = Strict liability. Defences - unforeseeable act of stranger, contributory negligence, statutory authority,

Remedies = injunction, damages, abatement notice