Tort Law Flashcards
What is the Caparo test for duty of care?
- Foreseeability: the damage must be reasonably foreseeable
- Proximity: must be sufficient proximity between the defendant and claimant
- It must be fair just and reasonable to impose a duty
What is the 2-stage test for breach of a duty of care?
- How the defendant ought to have behaved (what standard of care should the defendant have exercised?)
- Whether the defendant’s conduct fell below the required standard (question of fact)
What factors should be considered when assessing whether there has been a breach of duty?
- Seriousness of the potential harm
- Magnitude of the risk (reasonable man takes precautions about things that are likely to happen, not every risk)
- Social benefit/utility of the activity
- Level of precautions taken (no requirement to mitigate against very unlikely situations)
- Practicality of taking precautions
Define reasonable person standard and professional standard of care
Reasonable person standard = objective test of how an ordinary, reasonable person would have acted in the same situation
Professional standard = (1) standard of a reasonable person exercising and professing to have a special skill (2) they have acted in accordance with a practice accepted by a professional body of opinion (can be overruled if illogical)
If a claimant is injured more than once, how does this affect causation?
Defendant shall only be liable to the extent that they made the claimant’s harm worse
Explain legal causation
Is there an unforeseeable intervening act that breaks the chain of causation?
Actions of third parties:
- Instinctive intervention = does NOT break the chain
- Negligent intervention = DOES break the chain
Negligent medical treatment does not break the chain - has to be grossly negligent
Define the remoteness test
- Similar in type rule = provided the injury is reasonably foreseeable, it is not necessary to foresee the way in which the injury was caused
- Egg-shell skull rule = take your victims as you find them
- As long as the injury is foreseeable, it does not matter that the [take your victim as you find them effect] is unforeseeable
What are the 3 types of damages?
Special = capable of being calculated at the time of the trial
General = not capable of being calculated precisely (eg: pain/suffering etc.)
Nominal = where the claimant proves a case but has not suffered a loss
What is the difference between pecuniary and non-pecuniary losses in non-fatal claims?
How are such losses calculated?
Pecuniary = losses capable of mathematic calculation
- Method: Multiplicand (net annual salary) X Multiplier (how long the claimant will lose this money - need to add discount rate of -0.25)
Non-pecuniary = not capable of being calculated
- Method: subjective test for awarding a sum for pain and suffering; objective test for loss of amenity
Explain what deductions will be made for non-fatal claims
For tax and NI contributions
NEVER for other insurance payments/money given to charity/family
Pecuniary losses will be reduced if state benefits are received, where compensation is sought for:
1. Loss of earnings
2. Cost of care
3. Loss of mobility
Under LR(MP)A 1934, what claims can be made by a deceased’s estate?
All causes of action survive death UNLESS they are claims in (a) defamation or (b) bereavement damages
Funeral expenses can be claimed, provided they have been paid for by the estate
Claim can cover pecuniary, non-pecuniary and loss of income (up until date of death)
Under the Fatal Accidents Act 1976, what claims can a dependant of the deceased make?
- Loss of dependency (if claimant is within class of dependants and was financially dependant on deceased)
- Damages for bereavement (for spouse/civil partner, parents (mother if illegitimate) of a minor who was never married/had a civil partner)
- Funeral expenses
Only provides compensation for pecuniary losses
Define the general rule for pure economic loss and its exception
General rule = are not recoverable/defendant does not owe a duty of care to a claimant not to cause PEL
Exception = (1) there is an assumption of responsibility by the defendant (2) there is reasonable reliance by the claimant
What are the 4 criteria that need to be satisfied for a defendant to have assumed responsibility (PEL)?
- Adviser knew the purpose for which the advice was required
- Adviser knew that the advice would be communicated to the advisee
- Adviser knew that the advisee was likely to act on the advice without independent inquiry
- Advice was acted on by the advisee to their detriment
What is the general rule for pure psychiatric harm and what are the exceptions to the rule?
General rule = no duty is owed for PPH
Exceptions:
1. Harm is caused by a sudden shock and it is either (a) a medically recognised psychiatric illness or (b) a shock-induced physical condition (miscarriage, heart attack etc.); and
2. Claimant must be a primary or a secondary victim
What is the difference between a primary and secondary victim in PPH?
Primary = in actual area of danger/believed that they were in danger
- Owed a duty provided the risk of injury was foreseeable (does not need to be the risk of psychiatric harm)
Secondary = witnessed injury to someone else/feared for the safety of someone else
What requirements are needed for a secondary victim to be owed a duty of care (PPH)?
- Foreseeability of psychiatric harm: would a person of normal fortitude in claimant’s position suffer PH
- Proximity of relationship: close relationship of love and affection with the person who is endangered
- Proximity in time and space: must be present at the incident/its immediate aftermath
- Proximity of perception: must see/hear the incident/its aftermath with their own senses
What common law duties do employers owe to employees?
To provide:
1. Competent staff
2. Adequate material
3. Proper system of work and supervision
4. Safe system of work
What are the elements of vicarious liability?
- A tort was committed
- By an employee
- In the course of an employment
