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Torts > Tort law > Flashcards

Tort law Flashcards

1
Q

types of damages in tort law

A

compensatory (pecuniary and non-pecuniary) to put in position before tort
nominal - rights violated but no loss suffered. Only for torts actionable per se
contemptuous - successful action but shouldn’t have brought it
exemplary aka punative - additional to compensatory damages to punish and deter
aggravated - compensatory but indicate C’s position was made worse by D’s malice or bad motive
provisional - when there is a chance C’s health will suffer in the future this makes an award based on C’s health at the time but allows C to return one if the deterioration occurs.

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2
Q

are damages reduced if C received money from charity, insurance or benefits

A

charity and insurance - no reduction in damages

benefits for 5 years after injury - reduction of damages

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3
Q

misuse of private information

A

reasonable expectation of privacy in relation to the information (objective)
balance articles 8 and 10 (legit, necessary, lawful, proportionate).

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4
Q

can you get an injunction for breach of confidence

A

only if it is in the public interest

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5
Q

when is there a breach of confidence

A

duty to keep confidence arises from a confidential situation, transaction or relationship

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6
Q

reduction of damages using contributory negligence when injury would have been avoided or reduced by wearing a seatbelt

A

whole injury would have been avoided - 25% deduction
part of injury - 10%
would not have made a difference - no reduction

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7
Q

when does contributory negligence apply

A

damage caused by C must be within foreseeable risk of C’s negligence

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8
Q

when does the voluntary assumption of risk defense apply

A

voluntary agreement with full knowledge of the risks

working in a bad environment is not voluntary
agreement needed - knowledge alone is not enough

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9
Q

can voluntary assumption of risk defense apply to a rescuer

A

no

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10
Q

limitation periods for claims in tort law

A

non-personal injury claims - 6 years
personal injury claims from negligence, nuisance or breach of duty 3 years
defamation 1 year

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11
Q

can tort law limitation periods be extended

A

only for personal injury claims where there is latent damage or it would be equitable
not for non-personal injury or defamation claims

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12
Q

can a limitation period run against a minor

A

no it does not begin running until 18th birthday

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13
Q

can you owe a duty of care to a criminal

A

no duty of care is owed if C is in that position due to committing illegal act

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14
Q

what is conversion

A

when D deals with goods as if they own them. D makes a claim to the property. Deals with loss of goods rather than damage to them

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15
Q

What rights does C need in property to bring a claim in conversion

A

right to possession. No need to be the owner. contractual right to possession not enough

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16
Q

what type of property can be protected by the tort of conversion

A

goods only not land

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17
Q

Can the buyer of converted goods be liable in conversion

A

yes but can sue the seller

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18
Q

limitation periods for conversion

A

6 years after first conversion no action can be brought in respect of subsequent conversions and owner’s title is extenguished.

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19
Q

remedies for conversion

A

return of goods or compensation. damages according to market value of items

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20
Q

who owns the converted property after a successful conversion action

A

D owns it or anyone who purchased it from D.

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21
Q

can banks and post offices be liable for conversion

A

no

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22
Q

can a carrier of goods be liable for conversion

A

yes

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23
Q

can an auctioneer be liable for conversion

A

only if goods are sold. if they are unsold and returned then auctioneer not liable

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24
Q

is there a duty for the police to conduct their investigations in a particular way

A

no general duty regarding how the police conduct their investigations - Hill

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25
Q

exceptions to the general rule of no liability for omissions

A

no duty to act but if you do act then duty not to make it worse
relationship of control
where there is a relationship of control over another they may have a duty to take positive action to prevent harm from being caused to third parties

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26
Q

can a child under 18 sue or be sued

A

no, need a litigation friend (an adult to represent them)

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27
Q

is D liable for breach of duty if they can show they complied with accepted practice in their profession or trade

A

may not be liable

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28
Q

what is a novel duty situation

A

where there is no precedent establishing a duty of care so need to apply caparo

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29
Q

what is an estblished duty situation

A

where there is precedent showing that a duty of care exists so no need to apply caparo

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30
Q

what are some examples of established duty situations

A

road users, doctor and patient, employer and employee, manufacture and consumer, teacher and pupil

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31
Q

what is ipsa loqitur

A

an inference of negligence against D who must provide a reasonable explanation for how accident could have occurred without negligence

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32
Q

what must D show to escape liability in a ipsa loqitur situation

A

how the accident actually happened and not due to their negligence or, if not possible, that they had at all times used reasonable care

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33
Q

is there generally liability for psychiatric harm

A

the general rule is that D does not owe C a duty not to cause pure psychiatric harm

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34
Q

what is pure psychiatric harm

A

psychiatric harm suffered without physical impact

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35
Q

when can there be liability psychiatric harm

A

when it is sudden (not gradual build up) and either a recognised psychiatric illness or a shock induced condition (e.g. heart attack or miscarriage) then apply primary and secondary victim rules

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36
Q

what is a primary victim

A

actually involved in the incident. they are actually in danger or reasonably believe they are in danger

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37
Q

are primary victims owed a duty of care regarding pure psychiatric harm

A

yes if risk of physical injury was foreseeable

no need to foresee risk of psychiatric harm

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38
Q

what is a secondary victim

A

they witness injury to someone else or fears for safety of someone else

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39
Q

are secondary victims owed a duty of care regarding pure psychiatric harm

A

apply alcock criteria:

  • must be reasonably foreseeable that a person of normal fortitude in C’s position would suffer psychiatric illness (even if C is not of normal fortitude)
  • C must have a close relationship of love and affection with person endangered by Ds negligence
  • C must be present at incident or immediate aftermath
  • C must see or hear the incident or its immediate aftermath with their own senses (not through third party or news/images/video)
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40
Q

does thin skull rule apply to psychiatric harm

A

yes

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41
Q

are rescuers and employees owed a duty of care regarding pure psychiatric harm

A

this is same as everyone else so use primary and secondary victim rules

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42
Q

If C is injured more than once but two Ds, what is second D liable for?

A

Second D is only liable for the additional harm. Damages are divided between two Ds unless this is impossible, then C gets all damages from either one of Ds and D can claim some back from other D

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43
Q

What is the waggon mound test

A

If a reasonable person would not have foreseen the type of damage then it is too remote to be recovered

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44
Q

Requirements for D to rely on an exclusion notice it

A

Took reasonable steps to bring it to Cs attention before tort was committed
Wording must cover loss suffered
UCTA or CRA apply so cannot exclude PI or death but can exclude other negligence as long as fair and reasonable

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45
Q

Do acts of third parties break chain of causation

A

Not if instinctive act in the moment
Not if D ought to have foreseen it as a likely consequence (even if negligent but not if grossly negligent)

Can break chain if reckless or intentional

46
Q

If D liable for loss of C if loss was caused by D causing damage to property of third party

A

No it is pure economic loss

47
Q

Can you claim in tort against someone with who you have a contract for professional services

A

Yes as long as tort duty is consistent with duties owed in contract

48
Q

What are the 2 elements of a special relationship under Hadley Byrne

A

An assumption of responsibility by D
And
Reasonable reliance by C

49
Q

What are the 4 criteria that show D has assumed a responsibility towards C

A

D knew the purpose for which advice was required
D knew advice would be communicated to C either specifically or as a member of an ascertainable class
D knew C was likely to act on advice without further inquiry
The advice was acted on by C to their detriment

50
Q

Can D be liable for pure economic loss where statement was provided to a third party who relied on it to Cs detriment

A

Yes if D has assumed responsibility

51
Q

Is consent a defence to negligence

A

Yes a complete defence

52
Q

What is another name for the defence of consent

A

Voluntary assumption of risk
Aka
Non fit injuria

53
Q

To whom does the defence of consent not apply

A

Employer / employee

Rescuer even if they took time to consider their choice

54
Q

Requirements to establish the defence of consent

A

C had full knowledge of nature and extent of risk and willingly consent to accept the risk of being injured due to Ds negligence

55
Q

Rescuer did not consent to risk of injury (and cannot therefore use defence of consent) if…

A

They were rescuing person or property endangered by Ds negligence
And
Acting under compelling legal, moral or social duty
And
Conduct was reasonable and likely consequence of Ds actions

56
Q

What is the defence of illegality

A

C cannot recover damages for negligence if they were engaged in an illegal act at the time they were injured
Must be very close connection between illegal activity of C and injury suffered

57
Q

Test for contributory negligence

A

Whether C failed to take reasonable care for their own safety

58
Q

Standard of care in contributory negligence

A

Standard of reasonable person

59
Q

2 elements needed to show contributory negligence

A

Carelessness of C
And
Carelessness contributed to Cs damage

60
Q

What causal link is needed for contributory negligence

A

Causal link between Cs negligence and harm

61
Q

How much are damages reduced if contributory negligence is established.

A

Reduced to such an extent the court thinks just and equitable having regard to Cs share of the responsibility

62
Q

How much are damages reduced when contributory negligence is established and it is a seat belt case

A

Would have been avoided -25%
Would have been reduced -15%
Would have made no difference -0%

63
Q

Can children be contributory negligent

A

Yes

Would child of Cs age have taken more care for his safety than C did

64
Q

Can a child’s damages be reduced on the basis that their parents were contributory negligent in addition to D

A

No but D could try to recover some damages from the parent

65
Q

Can a rescuer be contributory negligent

A

Only if wholly unreasonable disregard for safety

Judged by standard of reasonable rescuer

66
Q

If work is full, noisy, repetitive are these factors taken into consideration when considering contributory negligence of employer - employer

A

Yes

67
Q

Is a C who acts in the moment to try to save themselves due to Ds negligence contributory negligent

A

No, not if Cs action were reasonable response to dangers caused by D

68
Q

What are special damages

A

Loss that can be calculated precisely at trial

69
Q

What are general damages

A

Loss unable to be calculated precisely at time of trial

70
Q

Are pain suffering and loss of amenity special or general damages

A

General

71
Q

How are damages for pain and suffering assessed

A

Subjectively

72
Q

How are damages for loss of amenity assessed

A

Objectively

73
Q

What does pecuniary loss include

A

Medical expenses, loss of income, care services, property damage

74
Q

Can you recover the costs of private medical care even if it was available on the NHS

A

Yes but cannot recover the amount it would have cost if you received it for free on NHS

75
Q

How to calculate loss of earnings pre trial

A

Calculate the net earnings for that period (after tax pensions etc) incl perks of job

76
Q

How to calculate loss of earnings post trial

A

Multiple net income (account for likely promotions but not inflation) by period of loss
Discount rate 0.25% (this accounts for interest)
Can discount for contingencies of life

77
Q

Can you claim for loss of earnings during lost years of life

A

Yes but deduct from earnings
25% if married with dependent children
Or
33% for person with no dependents

78
Q

What are the three types of interference within private nuisance

A

Nuisance by encroachment on neighbours land
Nuisance by direct physical injury to neighbours land
Nuisance by interference with neighbours quiet enjoyment of his land (amenity)

79
Q

Does thin skull rule apply to nuisance

A

Must show it is unreasonable by standards of ordinary user and then can recover loss even if it is greater than it would be for a normal user

80
Q

What is the meaning of unlawful in nuisance

A

Unreasonable and substantial not criminal

Nothing to do with reasonable person test

81
Q

Does C have to have suffered damage to recover in private nuisance

A

Yes must show causation

82
Q

What losses can be recovered in private nuisance

A

Physical damage to land, interference with quiet enjoyment and consequential loss flowing from recoverable damage

83
Q

What losses cannot be recovered in private nuisance

A

Damage to personal property

84
Q

Factors to consider when deciding if use of land unreasonably interfered with Cs use and enjoyment

A 
Length 
Frequency 
Extent of harm
Character of locality 
Public benefit 
Malice
85
Q

Defences for private nuisance

A 
20 years prescription 
Statutory authority 
Contributory negligence
Consent of C
Nuisance due to act of god unless D adopted or continued nuisance
86
Q

What are NOT defences to private nuisance

A

C came to nuisance
Public benefit
Planning permission
Contributory actions of others (nuisance due to separate actions of several people)

87
Q

What are the two elements of the necessity defence to private nuisance

A

A situation exists because of an imminent danger to life and limb (sometimes property)
And
Ds actions were reasonable in all the circumstances

88
Q

When can the necessity defence NOT be relied on for private nuisance

A

When D was negligent or necessity existed because of D

89
Q

Can C get damages to reflect that they can still work but would be less likely to get another job due to loss / harm caused by D if they lost their current job

A

Yes but must show real risk of losing current job

90
Q

In what form are remedies for person injury and death awarded

A

Normally lump sum but could be provisional or periodic

91
Q

What sort of payments are deducted from damages

A

Insurance payments, Ill health pensions and charitable payments are not deducted but benefits are

92
Q

Which element of damages for personal injury are benefits deducted from

A

Loss of earnings, cost of care and loss of mobility

Not pain, suffering and loss of amenity

93
Q

What must you show to recover cost of professional care when claiming damages for personal injury or death

A

Show cost was in line with market rate and reasonable or if family members provide care they can claim payment in form of lost earnings

94
Q

Can a tort claim continue after death of C of D

A

Yes apart from defamation and bereavement damages

Regardless of whether death was due to incident or something else

95
Q

Can an estate continue or commence a claim on behalf of deceased C

A

Yes

96
Q

3 possible claims under the Fatal Accidents Act 1976

A

Loss of dependency
Bereavement damages
Funeral expenses when paid for by dependents

97
Q

How much are bereavement damages

A

£15,120 and split between Cs

98
Q

Who usually commences a claim under the fatal accidents act

A

The deceased’s PR

99
Q

What must be shown to claim under fatal accidents act

A

That if they had survived they would have been able to claim against D themselves

100
Q

Can D rely on usual defences when defending a claim under the fatal accidents act

A

Yes can use any defence that would have applied to the deceased incl contributory negligence

101
Q

Who can claim under fatal accidents act

A

Anyone in list of dependants in act AND show they were actually dependent on the deceased (eg reasonable expectation of pecuniary benefit - could be cost of replacing child care, doesn’t have to be money)

102
Q

How to assess the amount of damages for a dependency claim under the fatal accidents act

A

Deceased’s net annual earnings minus 25% for married with children and 33% for no dependants
Multiply by period of loss to dependant

Don’t consider remarriage or inheritance but do consider perks of job

103
Q

Does the substance need to be dangerous for rylands to apply

A

No, just needs to be capable of causing damage if it escapes

104
Q

Defences for rylands

A

Escape due to unforeseeable act of stranger
Escape caused by act of god that was not reasonably foreseeable
Statutory authority
Consent
Contributory negligence

105
Q

Elements of rylands liability

A

D brings something onto their land for their purposes
something likely to do mischief if it escapes
Which represents a non natural use of the land
It caused foreseeable damage of the relevant type (wagon mound foreseeability)

Thing must not naturally be on the land
Use of land must be extraordinary and unusual
The thing must move from the land to Cs land

106
Q

Remedies for nuisance

A

Damages for any loss suffered at date of trial
Limited ability to award damages for future loss
Personal loss- award loss of amenity value of land ie land with nuisance worth less than before
Damage to land- award cost of repair or if not possible then loss of value of land
Abatement
Injunction

107
Q

Can anyone use abatement for nuisance without warning D

A

Must give prior notice to D unless emergency or doesn’t need to enter Ds land

108
Q

Types of injunctions available for nuisance

A

Prohibitory
Mandatory
Quia timet (in anticipation of a tort)

109
Q

What must be shown to get a quia timet injunction

A 
Almost certain to incur damage without injunction 
And 
Such damage is imminent 
And. 
D won’t stop without injunction
110
Q

Can C always get an injunction for nuisance

A

No they are discretionary and not awarded if damages are adaquate

111
Q

When are damages adaquate

A

Damages only adaquate for past loss and are not awarded for future loss

Shelfer:
Harm suffered is small
Capable of being quantified in financial terms
Capable of adaquate compensation in damage
And
It would be oppressive to grant an injunction

Torts (8 decks)

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