Tort law

Question 1

What are the 4 aims of negligence?

Answer 1

• Corrective justice
• Compensation
• Deterrence
• Vindication

Question 2

What does the aim of corrective justice say?

Answer 2

If a person’s livelihood is interfered with by another, they should be compensated by being put back in the position they would be in had the tort not occurred

Question 3

What does the aim of compensation say?

Answer 3

Justice for the claimant can be achieved in most cases by requiring the defendant to pay damages for any loss suffered after fault has been imposed

Question 4

What does the aim of deterrence say?

Answer 4

Decisions made in the tort of negligence also look to deter future careless activity or behaviour through the imposition of liability

Question 5

What does the aim of vincidation say?

Answer 5

Some negligence claims are brought to find out what actually happened. Often, this is to attract publicity in hopes to prevent the reoccurrence of incidents

Question 6

What is fault (personal) liability?

Answer 6

A person will only be held liable if they were at fault

• When a tortfeasor has been found liable, they are responsible for the harm and the compensation

Question 7

What is strict liability?

Answer 7

A situation where a person will be held liable even if they were not at direct fault

Question 8

What are the three types of liability regarding joint tortfeasors?

Answer 8

Independent, several, and joint

Question 9

What is independent liability?

Answer 9

When a claimant has suffered harm as a result of two separate torts

INDEPENDENT TORTS, INDEPENDENT TORTFEASORS

Question 10

What is several liability?

Answer 10

When more than one defendant acts independently to cause the same damage

SEVERAL DEFENDANTS, SAME DAMAGE

Question 11

What are the two forms of joint liability?

Answer 11

• Where two or more people share a joint purpose to commit the same tort
• By way of vicarious liability

JOINT PURPOSE, SAME TORT

Question 12

The Civil Liability (Contribution Act) 1978

Answer 12

Joint liability

Section 1: The person looking to claim contribution from another liable party must be actually or theoretically liable

Section 2: The courts will decide what amount of contribution is just and equitable. They may order that a party pays the complete amount or nothing at all

Question 13

Several liability

Vision Golf v Weightmans [2005]

Answer 13

The first solicitors were liable for their damage, even though another firm caused the same damage at a later date

Question 14

What legal field is Brooke v Bool [1928] concerned with?

Answer 14

Joint liability

Question 15

Why does vicarious liability look mainly to economic points?

Answer 15

• Compensation must come from a solvent defendant
• Employers have insurance to protect against these risks
• It incentivises employers to reduce the risk by changing the work environment or recruitment processes

Question 16

What are the 2 requirements of vicarious liability?

Answer 16

• There must be an employer/employee relationship
• The employee must be acting in the course of employment

Question 17

What policy areas were considered in Catholic child welfare society [2012]?

Answer 17

• The employer should have insurance, so can compensate the victim
• The tort will be committed as a result of activities taken on behalf of the employee
• The employer will have created the risk of tort by employing the employee to carry out an activity
• The employee will, to some degree, be under the control of the employee

Question 18

What are the 4 tests to determine whether somebody is an employee?

Answer 18

• Control test
• Multiple test
• Business integration test
• Business on their own account test

Question 19

What case spawned the control test?

Answer 19

Ferguson v John Dawson and Partners [1976]

Question 20

What is the control test?

Answer 20

• Based on the master servent premise
• Considers that an employee must be under the control of the employer
• Later found to be inadequate as not all employees are under the direct control of the employer

Question 21

What case spawned the business integration tesst?

Answer 21

Stevenson, Jordan and Harrison v Macdonald and Evans [1952]

Question 22

What is the business integration test?

Answer 22

• Looks at whether the employees work was an integral part of the business
• If it were, there would be a contract of employment
• Later found to be an inadequate test

Question 23

What case spawned the multiple test?

Answer 23

Ready mixed concrete v Minister of pensions [1968]

Question 24

Why was the multiple test made?

Answer 24

To improve the business integration test

Question 25

What is the multiple test?

Answer 25

To establish a contract for services, the courts must satisfy 3 conditions:

• The worker agrees to a wage
• The worker agrees to be under the employer’s control
• The other terms are consistent with the contract being one of service

Question 26

What case spawned the business on their own account test?

Answer 26

Market investigations v Minister of social security [1969]

Question 27

What was the business on their own account test made?

Answer 27

The high court felt that it was important to ask whether the worker is conducting the service as a person in business or on their own account

Question 28

What is the business on their own account test?

Answer 28

The courts will consider

• Use of own premesis and equipment
• Hiring of own workers
• Taking of financial risk (and to what degree)
• Degree of responsibility for investment and management

The courts have said this test is not conclusive and usually use the multiple test

Question 29

What are the two tests used to determine whether somebody is acting in the course of employment?

Answer 29

The salmond test and the close connection test

Question 30

What is the salmond test?

Answer 30

The salmond test considers whether an employee’s harmful act is a wrongful and unauthorised mode of doing some act authorised by the master

Question 31

What are the two branches of the salmond test?

Answer 31

• A wrongful act authorised by the employer
• A wrongful and unauthorised way of some act authorised by the employer

Question 32

Salmond test

A wrongful act authorised by the employer

Answer 32

Where an employer instructs their employee to act wrongfully. It can also be where the employee has implied they have authority to commit the tort

Question 33

Poland v Parr [1927]

Answer 33

A contractor’s employee was, in the course of his employment, following close behind his employer’s waggon carrying sugar bags. Seeing a boy with a hand on one of the bags, the employee believed the boy to be stealing sugar and hit him. This caused the boy to fall and the waggon to run over his foot, leading to the loss of his leg.

the employee had an implied authority to act to protect his employer’s property if he has reasonable ground to believe that it was in danger

Question 34

Warren v Hensleys [1948]

Answer 34

An employer was not liable for an assault on a customer because it was an act of revenge, not in the course of employment

Question 35

Salmond test

A wrongful and unauthorised way of some act authorised by the employer

Answer 35

Occurs when an employer is doing their job but the job isn’t being followed directly

Question 36

Salmond test

Give examples of a wrongful and unauthorised way of some act authorised by the employer

Answer 36

• The employee ignores a direct instruction not to do something
• The employee acts carelessly
• Using unauthorised held, so long as this does not benefit the employer
• The employee breaches a statutory duty
• The employee does something that is not connected with their job
• The employee diverts from their normal work on a frolic
• Giving a lift in a compact vehicle
• The employee acts outside of the usual boundaries of work