Tort law Flashcards
types of damages in tort law
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.
are damages reduced if C received money from charity, insurance or benefits
charity and insurance - no reduction in damages
benefits for 5 years after injury - reduction of damages
misuse of private information
reasonable expectation of privacy in relation to the information (objective)
balance articles 8 and 10 (legit, necessary, lawful, proportionate).
can you get an injunction for breach of confidence
only if it is in the public interest
when is there a breach of confidence
duty to keep confidence arises from a confidential situation, transaction or relationship
reduction of damages using contributory negligence when injury would have been avoided or reduced by wearing a seatbelt
whole injury would have been avoided - 25% deduction
part of injury - 10%
would not have made a difference - no reduction
when does contributory negligence apply
damage caused by C must be within foreseeable risk of C’s negligence
when does the voluntary assumption of risk defense apply
voluntary agreement with full knowledge of the risks
working in a bad environment is not voluntary
agreement needed - knowledge alone is not enough
can voluntary assumption of risk defense apply to a rescuer
no
limitation periods for claims in tort law
non-personal injury claims - 6 years
personal injury claims from negligence, nuisance or breach of duty 3 years
defamation 1 year
can tort law limitation periods be extended
only for personal injury claims where there is latent damage or it would be equitable
not for non-personal injury or defamation claims
can a limitation period run against a minor
no it does not begin running until 18th birthday
can you owe a duty of care to a criminal
no duty of care is owed if C is in that position due to committing illegal act
what is conversion
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
What rights does C need in property to bring a claim in conversion
right to possession. No need to be the owner. contractual right to possession not enough
what type of property can be protected by the tort of conversion
goods only not land
Can the buyer of converted goods be liable in conversion
yes but can sue the seller
limitation periods for conversion
6 years after first conversion no action can be brought in respect of subsequent conversions and owner’s title is extenguished.
remedies for conversion
return of goods or compensation. damages according to market value of items
who owns the converted property after a successful conversion action
D owns it or anyone who purchased it from D.
can banks and post offices be liable for conversion
no
can a carrier of goods be liable for conversion
yes
can an auctioneer be liable for conversion
only if goods are sold. if they are unsold and returned then auctioneer not liable
is there a duty for the police to conduct their investigations in a particular way
no general duty regarding how the police conduct their investigations - Hill
exceptions to the general rule of no liability for omissions
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
can a child under 18 sue or be sued
no, need a litigation friend (an adult to represent them)
is D liable for breach of duty if they can show they complied with accepted practice in their profession or trade
may not be liable
what is a novel duty situation
where there is no precedent establishing a duty of care so need to apply caparo
what is an estblished duty situation
where there is precedent showing that a duty of care exists so no need to apply caparo
what are some examples of established duty situations
road users, doctor and patient, employer and employee, manufacture and consumer, teacher and pupil
what is ipsa loqitur
an inference of negligence against D who must provide a reasonable explanation for how accident could have occurred without negligence
what must D show to escape liability in a ipsa loqitur situation
how the accident actually happened and not due to their negligence or, if not possible, that they had at all times used reasonable care
is there generally liability for psychiatric harm
the general rule is that D does not owe C a duty not to cause pure psychiatric harm
what is pure psychiatric harm
psychiatric harm suffered without physical impact
when can there be liability psychiatric harm
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
what is a primary victim
actually involved in the incident. they are actually in danger or reasonably believe they are in danger
are primary victims owed a duty of care regarding pure psychiatric harm
yes if risk of physical injury was foreseeable
no need to foresee risk of psychiatric harm
what is a secondary victim
they witness injury to someone else or fears for safety of someone else
are secondary victims owed a duty of care regarding pure psychiatric harm
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)
does thin skull rule apply to psychiatric harm
yes
are rescuers and employees owed a duty of care regarding pure psychiatric harm
this is same as everyone else so use primary and secondary victim rules
If C is injured more than once but two Ds, what is second D liable for?
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
What is the waggon mound test
If a reasonable person would not have foreseen the type of damage then it is too remote to be recovered
Requirements for D to rely on an exclusion notice it
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
Do acts of third parties break chain of causation
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
If D liable for loss of C if loss was caused by D causing damage to property of third party
No it is pure economic loss
Can you claim in tort against someone with who you have a contract for professional services
Yes as long as tort duty is consistent with duties owed in contract
What are the 2 elements of a special relationship under Hadley Byrne
An assumption of responsibility by D
And
Reasonable reliance by C
What are the 4 criteria that show D has assumed a responsibility towards C
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
Can D be liable for pure economic loss where statement was provided to a third party who relied on it to Cs detriment
Yes if D has assumed responsibility
Is consent a defence to negligence
Yes a complete defence
What is another name for the defence of consent
Voluntary assumption of risk
Aka
Non fit injuria
To whom does the defence of consent not apply
Employer / employee
Rescuer even if they took time to consider their choice
Requirements to establish the defence of consent
C had full knowledge of nature and extent of risk and willingly consent to accept the risk of being injured due to Ds negligence
Rescuer did not consent to risk of injury (and cannot therefore use defence of consent) if…
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
What is the defence of illegality
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
Test for contributory negligence
Whether C failed to take reasonable care for their own safety
Standard of care in contributory negligence
Standard of reasonable person
2 elements needed to show contributory negligence
Carelessness of C
And
Carelessness contributed to Cs damage
What causal link is needed for contributory negligence
Causal link between Cs negligence and harm
How much are damages reduced if contributory negligence is established.
Reduced to such an extent the court thinks just and equitable having regard to Cs share of the responsibility
How much are damages reduced when contributory negligence is established and it is a seat belt case
Would have been avoided -25%
Would have been reduced -15%
Would have made no difference -0%
Can children be contributory negligent
Yes
Would child of Cs age have taken more care for his safety than C did
Can a child’s damages be reduced on the basis that their parents were contributory negligent in addition to D
No but D could try to recover some damages from the parent
Can a rescuer be contributory negligent
Only if wholly unreasonable disregard for safety
Judged by standard of reasonable rescuer
If work is full, noisy, repetitive are these factors taken into consideration when considering contributory negligence of employer - employer
Yes
Is a C who acts in the moment to try to save themselves due to Ds negligence contributory negligent
No, not if Cs action were reasonable response to dangers caused by D
What are special damages
Loss that can be calculated precisely at trial
What are general damages
Loss unable to be calculated precisely at time of trial
Are pain suffering and loss of amenity special or general damages
General
How are damages for pain and suffering assessed
Subjectively
How are damages for loss of amenity assessed
Objectively
What does pecuniary loss include
Medical expenses, loss of income, care services, property damage
Can you recover the costs of private medical care even if it was available on the NHS
Yes but cannot recover the amount it would have cost if you received it for free on NHS
How to calculate loss of earnings pre trial
Calculate the net earnings for that period (after tax pensions etc) incl perks of job
How to calculate loss of earnings post trial
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
Can you claim for loss of earnings during lost years of life
Yes but deduct from earnings
25% if married with dependent children
Or
33% for person with no dependents
What are the three types of interference within private nuisance
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)
Does thin skull rule apply to nuisance
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
What is the meaning of unlawful in nuisance
Unreasonable and substantial not criminal
Nothing to do with reasonable person test
Does C have to have suffered damage to recover in private nuisance
Yes must show causation
What losses can be recovered in private nuisance
Physical damage to land, interference with quiet enjoyment and consequential loss flowing from recoverable damage
What losses cannot be recovered in private nuisance
Damage to personal property
Factors to consider when deciding if use of land unreasonably interfered with Cs use and enjoyment
Length Frequency Extent of harm Character of locality Public benefit Malice
Defences for private nuisance
20 years prescription Statutory authority Contributory negligence Consent of C Nuisance due to act of god unless D adopted or continued nuisance
What are NOT defences to private nuisance
C came to nuisance
Public benefit
Planning permission
Contributory actions of others (nuisance due to separate actions of several people)
What are the two elements of the necessity defence to private nuisance
A situation exists because of an imminent danger to life and limb (sometimes property)
And
Ds actions were reasonable in all the circumstances
When can the necessity defence NOT be relied on for private nuisance
When D was negligent or necessity existed because of D
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
Yes but must show real risk of losing current job
In what form are remedies for person injury and death awarded
Normally lump sum but could be provisional or periodic
What sort of payments are deducted from damages
Insurance payments, Ill health pensions and charitable payments are not deducted but benefits are
Which element of damages for personal injury are benefits deducted from
Loss of earnings, cost of care and loss of mobility
Not pain, suffering and loss of amenity
What must you show to recover cost of professional care when claiming damages for personal injury or death
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
Can a tort claim continue after death of C of D
Yes apart from defamation and bereavement damages
Regardless of whether death was due to incident or something else
Can an estate continue or commence a claim on behalf of deceased C
Yes
3 possible claims under the Fatal Accidents Act 1976
Loss of dependency
Bereavement damages
Funeral expenses when paid for by dependents
How much are bereavement damages
£15,120 and split between Cs
Who usually commences a claim under the fatal accidents act
The deceased’s PR
What must be shown to claim under fatal accidents act
That if they had survived they would have been able to claim against D themselves
Can D rely on usual defences when defending a claim under the fatal accidents act
Yes can use any defence that would have applied to the deceased incl contributory negligence
Who can claim under fatal accidents act
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)
How to assess the amount of damages for a dependency claim under the fatal accidents act
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
Does the substance need to be dangerous for rylands to apply
No, just needs to be capable of causing damage if it escapes
Defences for rylands
Escape due to unforeseeable act of stranger
Escape caused by act of god that was not reasonably foreseeable
Statutory authority
Consent
Contributory negligence
Elements of rylands liability
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
Remedies for nuisance
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
Can anyone use abatement for nuisance without warning D
Must give prior notice to D unless emergency or doesn’t need to enter Ds land
Types of injunctions available for nuisance
Prohibitory
Mandatory
Quia timet (in anticipation of a tort)
What must be shown to get a quia timet injunction
Almost certain to incur damage without injunction And Such damage is imminent And. D won’t stop without injunction
Can C always get an injunction for nuisance
No they are discretionary and not awarded if damages are adaquate
When are damages adaquate
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
