Tort Law Flashcards
What are the elements of negligence?
Duty of Care
Breach of Duty
Causation
What are some established duty situation?
Road users to each other
Road users to pedestrians
doctor to patient
employer to employee
Teacher to pupil
Parent to child
What is the Caparo test for novel duty situations
- Foreseeability (was it reasonably foreseeable that the defendants actions could cause harm to another person)
- Proximity (Sufficient Link between the parties)
- Fair, Just and Reasonable
When will a duty of care arise for omissions?
- If an individual has control over them
- If someone has assumed responsibility over them
- If someone has created a dangerous situation
- Special Relationship
What is the two stage test in determining whether someone has breached their duty of care?
- What was the standard of care they ought to have demonstrated?
- Did their conduct fall below this standard?
What is the standard of care in normal circumstances?
Objective test of what a reasonable man would do in the circumstances of that particular case
What is the standard of care for a child?
Standard of that of a reasonable child of the same age
What standard of care must someone with a specialised skill be held to?
Person must show standard of care of what would be expected of the person in that profession.
Should act in accordance with a responsible body of opinion (doing what others with the same skill consider reasonable)
What is the but for test?
if the harm would not have occurred but for the breach of duty, the breach caused the harm.
What is the test for remoteness?
The damage must have been foreseeable. The foreseeable damage must have been the same kind of damage which actually occurred
When is the chain of causation broken by a third party?
Chain of causation is unlikely to be broken by an action which the defendant ought to have foreseen as a likely consequence of their negligence
When is the chain of causation broken by the claimant?
Claimant must act highly unreasonable to break the chain of causation
What are the defences to negligence?
Consent (Voluntary assumption of risk)
Contributory Negligence
Illegality
Necessity
What elements must be present for the defence of consent to apply?
The claimant must have had full knowledge of the nature and extent of the risk and that they willingly consented to the risk of being injured by the defendants negligence
What are the elements of illegality for it be used as a defence?
There must be a link between the illegal act and the tort committed by the defendant.
The illegal act must be sufficiently serious.
What are the elements for contributory negligence for it to be used as a defence?
The claimant has been at fault
The fault has contributed to the infliction of injury
And has contributed to the extent of their injuries
What is the objective of tort, what position should it put the claimant in?
the position the claimant was in if the accident hadn’t occurred
What are general damages?
These are to compensate for pain, suffering and loss of amenity caused by the injury
What are special damages?
These cover specific items of loss which have arisen and will arise in the future as a result of the defendants actions (capable of precise calculation)
What elements might make up general damages?
Loss of amenity, pain and suffering form the injury.
Loss of satisfaction of employment
Loss of holiday
Disadvantage of the labour market
What elements might make up for special damages?
past loss of earnings
future loss of earning
Assistance needed for care
Expenses Incurred
Where someone has died, what two potential claims can be brought on behalf of?
Claim on behalf of the deceased estate
Claim for the benefit of the deceased’s dependants
Who can bring a claim as a dependant under the Fatal Accidents Act?
Those who were actually financially dependent on the deceased
What losses can be recovered for a fatal accidents act claim?
Losses of dependency (salary multiplied by period of dependency)
Bereavement Allowance
Funeral Expenses
What is the general rule for claiming for pure economic loss?
You cannot claim for pure economic loss
What are the exceptions to the general rule of not being able to claim for pure economic loss?
Negligent statements
-reasonable reliance
- voluntary assumption of responsibility
- proximity between statement and the loss
Negligent Actions
Economic loss caused by damage to property of a third party is classed as what kind of economic loss?
Pure economic loss and therefore is not recoverable
What is the general rule for giving advice in a social situation in terms of pure economic loss?
general rule is that no duty of care is owed in respect of advice given in social situations because there is no assumption of responsibility.
However, if the individual has more experience or skill, then a duty may arise
Who is a primary victim (psychiatric harm)?
Someone who was actually involved in the accident therefore they must be in the actual area of danger or reaosnably believe they were in danger
What duty of care is owed to primary victims in pure psychiatric harm cases?
A duty of care is owed to primary victims provided the risk of hpysical injury was foreseeable (not necessary for psychiatric harm to be foreseeable)
Who is a secondary victim (psychiatric harm)
Someone who is not involved in the incident but they have witnessed injury to someone else or fear for the safety of another person
When is a duty of care owed to secondary victims?
There must be;
- proximity of relationship (claimant must have close relationship with the person endangered)
- proximity of time and space (must be present in the location of accidence or the immediate aftermath)
- Proximity of perception (must experience the event with your unaided senses)
What duties does an employee have to their employee?
- competent staff (employer knew or ought to have known)
- adequate material
- proper system of work and supervision (work-related psychiatric illness must be reasonably foreseeable
- Safe workplace
Can the employers duty of care to their employee be delegated?
No it cannot
What elements must be satisfied for a claim of vicarious liability?
- Worker must be an employee or in a relationship akin to employment
- Commits a tort
- In the course of their employment (is there a connection between the tort and what they are employed to do)
What must a claimant show to claim occupiers liability?
- Suffered loss due to the state of the premises
- Identify the occupier
- Prove he is a visitor
- Establish that the occuier failed to take reasonable care for his safety
What can occupiers exclude liability for for visitors?
Can exclude liability for property damage but not for death or personal injury
What is an occupier liability for trespassers?
For a duty to be owed to a trespasser, the following conditions must be met:
- Occupier must be aware of the danger
- Must believe that people may come into the vicinity
- The risk is one which may be reasonably be expected to offer protection against
What liability can be excluded by occupiers against trespassers?
Only personal injury is recoverable, property damage is not
What elements must be shown for a claim in product liability under negligence?
To show a duty of care the claimant must establish
- defendant is the manufacturer
- item causing damage is the product
- claimant is a consumer
- product reached the consumer in the same form in which it left the manufacturer
Who can bring a claim under the consumer protection act for product liability?
Anyone who has suffered damage caused by a defect in a product can bring a claim:
- Damage: includes personal injury and damage to property over £275 but does not apply to business property or pure economic loss
- Caused by the defect: but for test
- Defective
- Product
What liability is there for the product being defective under the consumer protection act?
There is strict liability, does not matter if there is no proof of any fault on the defendant s behalf
What must a claimant show for a claim in private nuisance?
- Claimant must have a proprietary interest in the land
- Defendant must be the creator of the nuisance or occupier of the land from where the nuisance has originated
- Unlawful interference: substantial and unreasonable (consider factors; duration and frequency, excessiveness, character of neighbourhood, public benefit, malice, abnormal sensitivity of claimant)
- Causes damage (physical damage, interference with quiet enjoyment of land, loss of profits from a business. Personal injury can NOT be recovered)
Who can sue in public nuisance?
- An individual who has suffered ‘special damage’ (suffered over and above the rest of the class)
- Local Authority
- Attorney General
What damage is recoverable in public nuisance?
Property damage, pure and consequential economic loss, personal injury.
Loss must be foreseeable
Who can sue and be sued under the rule in Rylands v Fletcher?
- Claimant must have a proprietary interest in the land
- Defendant must bring, collect or keep the ‘thing’ onto the land or any person that has control over the land
What damage is recoverable under Ryland and Fletcher?
Only damage recoverable is property damage and consequential economic loss
What are the elements of the tort in Rylands and Fletcher?
- Defendant brings thing onto land
- For their own purposes, anything likely to do mischief if it escapes
- It does escape
- Escape causes foreseeable harm
- Non-ordinary use of land
What are the defences to rule in Rylands and Fletcher?
- Common Benefit
- Act or default of the claimant
- Statutory authority
- Act of third party
- Act of God
- Contributory Negligence
- Consent
