Tort Law Flashcards
What is a tort
A tort is when somebody has suffered a civil wrong either a loss, injury or damage. Usually remedied with compensation however can also be an injunction
Remedies in tort law
2 types of damages:
Special Damages- can be specifically calculated
General Damages- rough estimate
Balancing public interest with private interest
Miller v. Jackson (1977) : a couple complained about cricket balls in their garden from a neighbouring cricket club
Negligence
An act or failure to act which causes injury or damage to another person or their property
. Blythe v. Birmingham: “failing to do something which a reasonable person would or would not do”
The Caparo Test
A 3 part test replaced by the neighbour principle:
.was the damage or harm foreseeable?
.Is there proximate relationship between claimant and defendant?
.Is it fair and just to impose a duty?
Caparo v. Dickman: established the Caparo test and statutory accounts.
Robinson’s Case
Was a case which introduced the neighbouring principle. Case consisted of a 75 yr old woman who was caught in the collateral damage of a police pursuit of a drug dealer. Established that Caparo test need only be used in new and novel cases
Kent v. Griffiths
Covers damage and foreseeable harm
Barnhill v. Young
Covers Proximity of relationship
Bill v. Chief Constable of West Yorkshire
It was ruled unfair for officers to have duty of care in pursuit. Covers fairness in imposing a duty
Breach of Duty
Claimant must prove that a duty of care is owed and secondly that it has been breached eg Bolam v. Fiern
2 questions asked when reviewing breach of duty
Does the defendant’s conduct fall below ordinary?
Is there a substantial body of opinion within a profession that would support the course of action taken by the defendant?
Breaches of duty within medical cases
The actions of doctors and individuals within the medical profession are judged as breach of duty or not by professionals within the profession eg R v. Adamako
Other breaches of duty
Learner driver and claims eg Nettleship v. Weston
Children and young people eg Mullin v. Richards
Res ipsa loquitar
The thing speaks for itself
In ‘res ipsa loquitar’ cases what does the claimant need to prove
The defendant was in control of the situation that caused injury
The accident would not have happened but for the defendant’s negligence
There is no other explanation for the injury
Factual Causation and the ‘but for’ test
Must be proved that if it wasn’t but for the action or omission of the defendant the outcome would not have occurred eg Barnett v. Chelsea
Remoteness of damage
Was the damage or consequence foreseeable. Is measured by the ‘Wagon Mound’ Australian case
Legal Causation
Where an intervening event can break the chain of causation.
“Novis actus intervienes”- where an event unrelated to the original chain of causation occurs ultimately ruling it as the prime suspect of the outcome
Take your victim as you find them
If the claimant has a pre-existing condition that was worsened by the outcome. Then the defendant can be held liable
What is occupiers liability
Field of tort which concerns the duty of care owed by those who occupy real property through ownership or lease to people who visit or trespass
2 acts of occupiers liability act
Occupiers Liability Act of 1957 deals with lawful visitors
Occupiers Liability Act of 1984 deals with trespassers
What is an occupier and premise
Occupier is referred t as someone in control of a premise
A premise is defined as as a fixed or movable structures, vessels, vehicles or land
Who does lawful visitors refer to
Invitees
Licensees
Those with contractual permission
Those with statutory rights to entry- police
Laverton v. Kipasha takeaway supreme
Responsibility of the occupier to make sure the visitor is safe
Occupiers liability to children
Extra special care since children are less careful than adults eg Glasgow Corporation v. Taylor
Sometimes occupier not found liable if child was left unattended
‘Allurement’ is something to attract a child’s attention eg Jolley v. Sutton
Occupiers liability to people carrying out trade or calling
If tradesman is working in premises then the occupier will owe a duty of care
Trade must cause injury otherwise occupier is not held liable
Occupiers liability for torts of independence confessors
If a lawful visitor is injured by a tradesman negligent work the there is a case where the occupier may be able to pass defence on them instead. 3 requirements must be met:
The work must have been specialist or complicated
The contractor hired must be competent
The occupier needs to check that the work has been done properly eg Woodward v. Mayor of Hastings
Defences to a claim by a lawful visitor
Contributory negligence
Volenti
Warning notices
Exclusion Clauses
Liability for trespassers
Age of trespasser may be taken into account
Must be aware they are in the vicinity of danger
Factors affecting liability
No liability if danger is obvious and trespasser is an adult
No liability if occupier is unaware of trespassers presence
Differences between 1957 and 1984 acts
1957 act allows for personal injury and damage to property claims whereas 1984 act only allows for personal injury
Defences to negligence claims
2 main defences:
Alleging the claimant is partly to blame for their injuries (volenti)
Alleging the claimant consented or agree to accept risk of harm
Contributory negligence
Is a partial defence set out in the Law Reform Act 1945 eg Sawyer v Harlow
Damages can also be reduced if claimant has played a part in the injury- not wearing seatbelt, failing to wear crash helmet eg Stinton v. Stinton
Consent (volenti)
If the claimant consented to the risk. It may be demonstrated that:
There was knowledge of the risk involved,fed
Exercise free choice by the claimant
Stermer v. Lawson
Cases in relation to occupiers liability regarding children
Jolley v. Sutton
Glasgow v. Corporation
Phipps v. Rochester
Remedies in tort
Special Damages
General Damages
Lumpsums and structured settlements
Mitigation of loss
Injunctions
Aims of compensation
To put claimant back into a position they were in before the tort has been committed
Pecuniary loss- when loss can be measured purely in monetary terms
Non-Pecuniary loss- is when loss cannot be measured solely in a sum of money
