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A Level Law > Tort Law > Flashcards

Tort Law Flashcards

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1
Q

negligence general definition

A

An act or a failure to act which causes injury or damage to a person or their property

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2
Q

Blyth definition of negligence

A

failing to do something which the reasonable person would do or doing something the reasonable person would not do

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3
Q

3 things needed to be liable for negligence

A
  1. They owe the c a duty of care,
  2. They breach the duty and,
  3. Causes reasonably foreseeable injury or damage.
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4
Q

Duty of Care

A

a moral or legal obligation to ensure the safety or wellbeing of others

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5
Q

Donoghue v Stephenson

A

the neighbour principle

Atkin - You must take reasonable care to avoid acts or omissions which can reasonably be likely to injure your neighbour

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6
Q

define neighbour

A

a person whom you owe a duty of care

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7
Q

Caparo 1990

A

3 part test to establish negligence:

  1. it has to be foreseeable,
  2. there has to be proximity or neighbourhood and,
  3. it must be fair, just and reasonable to impose a duty
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8
Q

Robinson v Chief Constable of West Yorkshire 2018

A

Caparo should only be used in novel situations where no previous precedent has been set.

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9
Q

Kent v Griffiths

A

Ambulance service owes a duty of care, it was reasonably foreseeable that an ambulance turning up late would cause further illness.

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10
Q

Bourhill v Young

A

the link has to be close, the person cannot be just an innocent bystander no matter the harm accidentally caused

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11
Q

Hill v Chief Constable of West Yorkshire

A

reluctant to find that it is fair, just and reasonable to impose a duty of care on public authorities such as the police etc.

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12
Q

A reasonable person in negligence

A

a professional - Bolton
a learner - Nettleship
a child - Mullin

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13
Q

Paris v Stepney

A

vulnerable people need a higher standard of care

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14
Q

Bolton v Stone

A

Lower standard depending on the size of risk and the actions already taken to prevent injury

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15
Q

Latimer v AEC Ltd.

A

If reasonable steps have been taken it is not necessary to incur further costs

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16
Q

Roe v Minister of Health

A

there is no breach if the danger is unknown

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17
Q

Watt v Herefordshire

A

in an emergency, there is a greater risk and a lower standard of care if the risks are justifiable.

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18
Q

Barnett v Chelsea and Kensington Hospital

A

introduces the “but for?” test

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19
Q

Wagon Mound

A

sufficient connection between negligence and damage that could be foreseeable

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20
Q

Hugh v Lord Advocate

A

injury is foreseeable, the type of injury doesn’t have to be

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21
Q

Smith v Leech Brain and co.

A

eggshell rule, take the victim as you find them
reasonably foreseeable harm even if it made more serious by a pre-existing condition
liable for all subsequent consequences

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22
Q

res ipsa loquitur

A

the thing speaks for itself

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23
Q

Scott v London and St Katherine Docks co.

A

res ipsa loquitur case

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24
Q

Law Reform Act 1945

A

contributory negligence

Any damages awarded can be reduced according to the extent or level to which C contributed to their own harm.

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25
Q

Sayers v Harlow

A

The local council was liable, however the actions the d took contributed to her injury and damages were reduced 25%.

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26
Q

Jayes v IMI

A

admitted fault for serious injury so was 100% liable

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27
Q

Volenti non fit injuria

A

no wrong done to the willing

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28
Q

no wrong done to the willing

A

volenti non fit injuria

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29
Q

volenti requirements

A
  1. knowledge of precise risk
  2. exercise of free choice
  3. voluntary acceptance of risk
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30
Q

Volenti - Road Traffic Act

A

consent does not apply to traffic accidents

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31
Q

Haynes v Harwood

A

there was a duty to protect the public so volenti did not apply

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32
Q

sidway v maudsley hospital

A

consent does not require an extensive list of all of the symptoms and remote side effects in medical cases

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33
Q

Re: T

A

must consent to all treatment

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34
Q

Chatterton

A

must be aware of likelihood of risks

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35
Q

Montgomery

A

must be given sufficient information to make an informed choice

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36
Q

ICI v Shatwell

A

If the c acts against employers instructions or against statutory rules there can be an exception where volenti succeeds

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37
Q

occupiers liability

A

a duty to keep visitors safe from harm from the state of the premises
common law

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38
Q

Occupiers Liability Act 1957

A

visitors

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39
Q

Occupiers Liability Act

1984

A

trespassers

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40
Q

OLA 57 S1(2)

A

occupational control

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41
Q

Wheat v Lacon and Co

A

can be more than one occupier

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42
Q

OLA 57 S1(3)

A

premises inclides ‘any fixed or moveable structure, including any vessel, vehicle and aircraft’ this includes land

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43
Q

visitor

A

invitee, licensee, those with contractual permission or a statutory right

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44
Q 
common duty 
57 S2(2)
A

take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe using the premises for the purpose which they were invited

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45
Q

Laverton v Kiapasha

A

took all reasonable means by mopping, signs etc.

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46
Q

Dean and Chapter of Rochester Cathedral

A

tripping, slipping and falling are everyday occurences and accidents happen

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47
Q

duties owed to children

A

common duty and special duty

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48
Q

57 S2(3)(a)

A

the occupier must be ‘prepared for children to be less careful than adults and the premises must be reasonably safe for a child of that age’.

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49
Q

Glasgow City Council v Taylor

A

The occupier should guard against any known allurement or attraction which may place a child visitor at risk of harm.

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50
Q

Phipps v Rochester

A

there should be parental supervision for young children

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51
Q

Jolley v Sutton

A

An occupier is only liable for foreseeable harm

52
Q

OLA 57 S2(3)(b)

A

‘An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incidental to it, so far as the occupier leaves him free to do so.’

53
Q

Roles v Nathan

A

The occupier is not liable for something associated with the visitors trade.

54
Q

contractors OLA 57 S2(4)(b)

A

not liable for ‘damage caused to a visitor by a danger due to the faulty execution of any work or construction, maintenance or repair by an independent contractor employed by the occupier.’

55
Q

occupiers must prove for contractors

A
  1. reasonable to entrust the work
  2. contractor is competent
  3. they inspected the work if possible
56
Q

cases for contractors

A
  1. reasonable = Haseldine
  2. competent = Bottomly
  3. inspect = Woodward
57
Q

a trespasser

A

Someone who has no permission to be on the premises or a visitor who has gone beyond their permission.

58
Q

OLA 84 S1(1)(a)

A

“in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them”

59
Q

OLA 84 S1(3)

An occupier of premises owes a duty to a trespasser if —

A

(a) is aware of the danger or has reasonable grounds to believe that it exists;
(b) knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger; and
(c) the risk is one against which, in all circumstances of the case, he may reasonably be expected to offer the other some protection.

60
Q

OLA 84 S1(4)

A

the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.

61
Q

Ratcliff

A

Not liable if T is injured by an obvious danger

62
Q

Donoghue v Folkestone

A

Time of day and year will impact on whether O is liable

63
Q

Tomilson

A

Don’t have to spend money to protect from obvious dangers

64
Q

Higgs v Foster

A

Not liable if they had no reason to suspect presence of a T

65
Q

Rhind v Astbury

A

Not be liable if unaware or had no reason to suspect danger existed

66
Q

Keown v Coventry NHS

A

Not liable if child understands the danger

67
Q

Baldaccino

A

no duty to warn of obvious duty

68
Q

Warning sign s2(4)(a) OLA 57

A

a warning is ineffective unless ‘in all the circumstances it was enough to enable the visitor to be reasonably safe.’
its up to the judge to decide

69
Q

Rae v Marrs

A

Warning sign is not enough if it cannot be read (e.g. in the dark or hidden)

70
Q

Westwood v Post Office

A

a warning is enough for trespassers

71
Q

Winfield definition and who private nuisance concerns

A

Concerns people living in close proximity.
Winfield: ‘an unlawful indirect interference with a person’s use or enjoyment of land or some right over, or in connection with it.’

72
Q

Two types of private nuisance

A
  1. Loss of amenity

2. Material damage

73
Q

the claimant in private nuisance

case?

A

tenant/owner/someone affected with a legal interest.

Hunter v Canary Warf: can’t claim without a legal interest e.g. children or lodgers.

74
Q

the defendant in private nuisance

A

Creator/owner that adopts, creates, causes or allows a nuisance. Doesn’t need a legal interest in the land from which nuisance is coming.

75
Q

Tetley v Chitty

A

council allowed the noise so they are the d

76
Q

Sedleigh Denfield

A

the owner was aware and allowed it to continue so they adopted it and can be the D.

77
Q

Natural nuisances

case?

A

can be liable if it is a result of natural causes and they are aware of the risk but failed to deal with it properly.
Case: Leakey v National Trust

78
Q

three requirements of private nuisance

A
  1. an unlawful and unreasonable use of land
  2. leading to an indirect interference
  3. with the c’s use or enjoyment of their land
79
Q

Unreasonable

A

The courts decide if it is unreasonable

The expectation for neighbours to have a certain amount of ‘give and take’ and whether it is reasonable or excessive.

80
Q

Interference

A

Physical damage/interference with quiet enjoyment.

Physical damage: there will be a nuisance.

81
Q

St Helen’s Smelting Co v Tipping

A

physical damage can be interference

82
Q

Quiet Enjoyment

A

if there is an interference with quiet enjoyment the court will assess 5 factors of reasonableness

83
Q

factors of reasonableness

A
  1. Locality
  2. Duration
  3. Time of day
  4. Malice
  5. Sensitivity
84
Q

Locality and case

A

the character of the neighbourhood

Sturges v Bridgeman: “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.

85
Q

Duration and case

A

should be continuous, it depends on the circumstances.

Crown River Cruises: A short-term display can amount to an actionable nuisance.

86
Q

Time of Day

A

disturbance at night is more serious than during the day.

87
Q

Malice and cases

A

A deliberately harmful act is normally unreasonable

Hollywood Silver Fox Farm v Emmett: meant to cause deliberate harm, so D was liable.

Christie v Davey: acts of revenge in response to unreasonable behaviour can also be a nuisance.

88
Q

Sensitivity

A

If the c is unduly sensitive they may not have a claim.

Robinson v Kilvert: LJ - “A man who carries out an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property.”

89
Q

Rylands v Fletcher definition

A

where the c’s property is damaged or destroyed by something from a neighbouring property
It is a strict liability and a common law offence

90
Q

Rylands v Fletcher Case and Requirements

A

Collects large unnatural volume of water, caused damage.
Requirements from Sir Blackburn:
1. That the D brought something on to his land
2. That the D made a non-natural use of the land
3. The thing was likely to do mischief it is escaped
4. The thing escaped and caused damage

91
Q

R v F - the claimant

A

A person who has an interest in the land that has suffered. Could own, rent or have a proprietary interest.

92
Q

R v F - the defendant

A

The owner or occupier of the land; must meet all four requirements of the tort to be liable.

93
Q

Read v Lyons

A

Requires an escape from a place where the d has occupation or control to a place outside of this.

94
Q
  1. Accumulation
A

being brought onto the land

Case: Giles v Walker - not liable for anything that naturally accumulates

95
Q
  1. Non-natural
A

some extraordinary use of the land.

The court can take into account the amount that is stored and the way that it was stored.

96
Q
  1. Case: Rickards v Lothian
A

The use of water in domestic pipes was decided to be a natural use of land.

97
Q
  1. Case: R v F
A

Non-natural can mean large quantities.

“a special use bringing with it an increased risk to others and not merely an ordinary use of the land.”

98
Q
  1. Case: Cambridge Water
A

Storage of large amounts of chemicals is non-natural; creating local employment doesn’t make it natural

99
Q
  1. Case: Levy v Mason Auto Parts
A

Storing in large quantities in a haphazard manner is non-natural.

100
Q
  1. Likely to do mischief if it escapes
A

The damage must be foreseeable, not the escape.

101
Q
  1. Case: Transco
A

ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape might be.

102
Q
  1. Case: Hale v Jennings
A

The risk of injury is foreseeable and amounts to an escape. Only personal injury claim.

103
Q
  1. Escape
A

Read v Lyons: escape from a place where the d has occupation or control to a place outside of this.

104
Q

R v F: Foreseeability - Cambridge Water

A

it must be reasonably foreseeable

105
Q

R v F: Foreseeability - Wagon Mound

A

Must not be too remote

106
Q

R v F: Foreseeability - Stannard

A

Ward - damage caused by fire can be R v F, but this is rare, this is because:

  1. The ‘thing’ must escape, not the fire.
  2. Occasions when a fire is brought onto land may be limited to where it is intentional or negligent.
  3. Starting a fire may be an ordinary use.
107
Q

R v F: Defences

A

Volenti.
Statutory authority.
Acts of a stranger whom D has no control.
Act of God; extreme weather.
Contributory negligence; can reduce damages owed.

108
Q

R v F: Defences - Nicholas v Marsland

A

Acts of God; extreme weather ‘no human foresight can provider against’

109
Q

R v F: Defences - Perry

A

Acts of a stranger

110
Q

R v F: Remedies

A

C must show damage to, or destruction of, property in order to succeed in a claim.
The level of damages will be the cost or repair.

111
Q

Vicarious Liability

A

Shifts the burden onto a third party, from the employee to their employer.

112
Q

VL Salmond Test

A

“a master is not responsible for acts done by a servant unless in the course of employment.”

It is in the course of employment if it is:

  1. “a wrongful act authorised by the master, or
  2. A wrongful and unauthorised mode of doing an act authorised by the master.”
113
Q

Requirements for VL

A
  1. The person who committed the tort is an employee.

2. They are acting in the course of their employment.

114
Q

The Control Test [& Case]

A

The control the employer has over how they do their work, what was done and the way it was done.
The more control, the more likely to be an employee.

Mersey Docks; updated by Hawley v Luminar

Should ‘exercise so much control that they are effectively employed’

115
Q

The Integration (organisation) Test [& Case]

A

Jordan and Harrison Ltd: if a person’s work is only an accessory they’re not an employee; their work must be fully integrated into the business.

116
Q

The Economic Reality/Multiple Test [& Case]

A

The court weighs up these sets of factors:
Are they paid a regular salary or on commission?
Do they pay tax as an employee or self-employed?
Does the contract describe them as an employee?
Can they delegate work without permission?

Ready Mix Concrete: the drivers were independent contractors because they owned major assets and profit depending on their own decisions.

117
Q

Acting in the course of employment

A

A question of fact. Recent judgments are in favour of claimants who have been injured.

  1. Against orders
  2. committing criminal acts
  3. outside employment
  4. negligent acts
  5. on a frolic of their own
118
Q
  1. Against orders: Limpus
A

doing what they were employed to, though the way was against orders; liable.

119
Q
  1. Against orders: Rose v Plenty
A

liable when acting against orders if it benefits the employer.

120
Q
  1. Criminal acts: Lister
A

they may be liable if there is a ‘close connection’ between the act and the job.

121
Q
  1. Criminal acts: CC of Merseyside Police
A

Police will not be liable due to loss allocation

122
Q
  1. Criminal acts: Mattis v Pollock
A

was encouraged to use force due to the nature of the job.

123
Q
  1. Criminal acts: Mohamud v Morrisons Supermarkets
A

At work, within working hours, a close connection; the employer is liable.

124
Q
  1. Outside employment: Beard v London General Omnibus Co
A

Causing injury acting outside of employment, the employer isn’t liable.

125
Q
  1. Negligent acts: Century Insurance
A

If they cause injury when doing a job badly, the employer can be liable.

126
Q
  1. Frolic of his own
A

Doing something, or at a time, outside their time of work = not liable

127
Q
  1. Frolic of his own: Hilton
A

away from the workplace, on unauthorised break, and causes injury or damage, employers NOT liable.

A Level Law (7 decks)

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