Tort Law Flashcards
What is the principle for awarding damages in tort law?
To put the injured party financially as near as possible into the position they were in before the act complained of.
When is an employer vicariously liable for his employee?
If there is a “close connection” between the action complained of and the employment. This means that the action was so closely connected with acts the employee was authorised to do that it can fairly and properly be regarded as done in the course of the the employee’s employment.
Close connection test:
1. Is the employer more likely to have the means to compensate the victim than the employee and can the employer be expected to have insurance?
2. Was the tort committed as a result of activity taken by the employee on behalf of his employer?
3. Is the activity of the employee likely to be part of the business activity of the employer?
4. Did the employer create the risk of the tort by employing the employee to do the activity?
5. Is the employee under the control of the employer?
Less weight given to 1 and 5.
What is a duty of care and what is the legal test for it?
Everyone has a duty of reasonable care to avoid acts or omissions that may injure their neighbour.
Caparo Industries plc v Dickman.
1. Forseeability - was it forseeable that the negligence of the defendant could have harmed the claimant?
2. Proximity - is there sufficient proximity between the parties?
3. Justice and Reasonableness - is fair, just and reasonable that the law impose a duty of care?
What is the legal test for breach of duty?
Objective standard: would the reasonable man consider a person with a duty of care to have breached his duty?
Four factors that could be considered (although not a formal test):
* likelihood that the damage would occur;
* cost/practicability of preventing damage occuring;
* seriousness of damage if it occurs; and
* utility of defendant’s conduct - were they doing something really urgent and important?
What is the legal test for causation in fact?
The “but for” test.
For example, “I would not have broken my leg but for that driving running the red light”, or “I would have made the investment but for my advisor giving me faulty advice”.
The act of negligence does not have to be the only cause, merely a cause.
NB there is an element of remoteness here. If A runs a red light and breaks B’s leg, and then B cannot work as a result meaning he loses his house, causation in fact may be satisfied. But if B’s wife’s home baking business then fails because of the lost house, this damage is too remote from A to have been caused by him.
What is the legal test for causation in law?
Objective standard: would the reasonable man have forseen the kind of damage that actually occured. NB the scale of the damage is not relevant.
For example, A runs a red light and hits B. A should have been able to forsee that B would be physcially harmed. Thus, it does not matter whether B merely got a scratch or died. Either way, there is causation in law.
NB there must not be a break in the chain of causation. If A hits B and B falls next to a tree, and then the tree falls down and breaks B’s leg, A is not liable for that, because he didn’t cause it. Causation in fact may be satisfied but causation in law would not be.
What is the legal test for the duty of care in cases of negligent misstatement?
Clerk & Lindsell:
1. The defendant must be a person who has or professes to have special knowledge or skill, and makes a representation by virtue thereof to another.
2. The advice must not have been given in a casual or off-hand way, or in circumstances where it was clearly not meant to be taken seriously.
3. There must have been no disclaimer of responsibility.
What is the legal test for the duty of care to third parties in cases of negligent misstatement?
Caparo v Dickman: [NB not the same as Caparo Industries plc v Dickman]:
- The purpose for which the advice was required had to have been known to the defendant.
- The defendant would have had to know, or have had reasonable grounds to know, that what he said would be communicated to the claimant.
- The defendant would have had to know, or have had reasonable grounds to know, that the claimant would rely on what he said.
When can one sue for pure economic loss?
In cases of negligent misstatement and tort of deceipt.
What are the three elements of malicious falsehood? Explain each one.
- The defendant must have made a false statement of fact and not of opinion which was published.
- The statement must have been made maliciously.
- The statement must have caused special damage, unless s3 of the Defamation Act applies.
Definition of “malice”: there must have been a dominant improper motive. The words must have been intended to injure another person and must have been made with knowledge of the falsity of the statement, or with recklessness as to the falsity of the statement.
s3 of Defamation Act: The claimant does not have to prove special damages if the statement was calculated to cause
1. pecuniary damage to the claimant and the statement was published in writing or other permanent form; or
2. pecuniary damage to the claimant in respect of any office, profession, calling, trade or business held by him at the time of publication.
NB “oranges and plumbs can’t top bananas” is a pneumonic for the above list.
