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Tort law Flashcards

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1
Q

Name the stages of negligence

A

Negligence has a three stage test:
- Did the D owe a duty of care?
- Was this duty breached?
- Did the breach cause damage to the C?

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2
Q

Stage 1 of negligence

A

Firstly it must be proved that the D owes the C a duty of care. If there is an obvious relationship (E.G doctor/ patient) then it is obvious that a duty is owed (Robinson), and the Campari test is not necessary. If not obvious then fully apply the Caparo test

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3
Q

Full test for stage 1 of negligence

A
  • If duty is obvious - Robinson
  • If duty is not obvious- three stage Caparo v Dickman test
    1- Was loss/ damage to the C reasonably foreseeable (Kent v Griffiths)
    2- Was there a relationship of close proximity (Bourhill v Young )
    3- was it fair, just, and reasonable to impose a duty upon the D (Hill v Chief constable of West Yorkshire police )
  • Side rule- Robinson- the police owe a duty of care to avoid causing, by a positive act, foreseeable personal injury to another person.
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4
Q

Stage 2 part 1 of negligence

A
  • Firstly, consider what characteristic the D falls under ( this will be the standard to judge whether they acted reasonably).
    • If the D is an expert or possesses a particular skill, then they will be judged by the standards of other reasonably competent professionals (Bolam/Bolitho)
    • If d is inexperienced or a learner, then they will be judged by the standards of someone experienced and competent (Nettleship vs Weston)
    • Children are judged by the standards of a reasonable child of a similar age (Mullins vs Richards)
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4
Q

Stage 2 of negligence

A
  • The D must have breached the duty of care to the C
  • Anderson B in ( Blyth vs Birmingham Waterworks) defined a breach as “Doing something the reasonable man would not do, or not doing something that the reasonable man would do”.
  • Apply relevant standard of testing (Cild/Learner/expert)
    -Apply all of the risk factors
    -Conclude stage 2
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5
Q

Stage 2 part 2 of negligence

A

-Apply the risk factors- These can r or raise the standard of care required of the reasonable person.
1- Probability of harm- More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against very small risks, but does against bigger risks, or risks that are more likely to happen (Bolton vs Stone)
2- Seriousness/magnitude of the risk - How serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken (Paris vs Stepney council)
3- Cot and practicality of the precautions. If the cost of taking the precautions to eliminate the risk is too greats, the D may not be in breach of duty (Latimer)

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6
Q

Side rule for end of stage 2 of negligence

A
  • Possible benefit of the risk- There are some risks which have benefits to society, here there will be no breach (Watt vs Hartfordshire council
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7
Q

Stage 3 of negligence intro and summary

A
  • Itmust be proved that the breach of duty has caused the damage to the C. This is an issue of causation
  • Factual causation (Barnett vs Chelsea hospital)
    -Legal causation- remoteness of the damage (Wagon mound no.1)
  • Must be no intervening acts which breaks the chain of causation - Thin skull rule (Robinson vs Post office/ Smith vs Leech brain co)
  • Conclude stage 3 and all three stages.
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8
Q

Negligence stage three part 1

A

-Factual causation asks was the D the cause of the damage in fact, so apply the “but for” test
- “But for the D’s actions, would the damage have occurred anyway ? (Barnett vs Chelsea Hospital )

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9
Q

Negligence stage 3 part 2

A
  • Legal causation- relates to the remoteness of the damage, meaning whether the damage to the C was reasonably foreseeable or was it too remote. If the damage was unforeseeable, then it my be too remote for the D to be the cause in law (Wagon Mound No1)
    • Side rule- D need not predict the precise way in which the injury was caused so long as injury of the same type was foreseeable (Hughes vs Lord Advocate)
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10
Q

Negligence stage 3 part 3

A
  • There must be no intervening acts which break the chain of causation.
    • Thin skull rule- (Robinson v Post office/ Smith vs Leech Brain Co): The D must take his victim/ claimant as he finds them.
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11
Q

Negligence risk factor 1

A

Probability of harm- More care would need to be taken if there is a higher probability of harm. The reasonable man does not need to take precautions against smaller risks, but does against bigger risks, or risks that are more likely to happen (Bolton vs Stone)

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12
Q

Negligence risk factor 2

A

Seriousness/ magnitude of the risk- The court needs to consider how serious the injury could potentially be, the bigger the risk of a serious injury, then the more care that needs to be taken (Paris vs Stepney Council)

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13
Q

Negligence risk factor 3

A

The cost and practicality of the precautions. If the cost of taking precautions to eliminate the risk is too great, the D may not be in breach of duty (Latimer)

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14
Q

Stage 1 of psychiatric injury

A
  • The C must be suffering from a recognised psychiatric injury, not ordinary human emotions. (Reilly vs health authority)
  • The claimant must show that this illness was caused by a traumatic event or an “Assault on the senses” - (Sion vs Hampsted health authority)
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15
Q

Stage 2 of psychiatric injury intro and definitions

A

-This stage asks whether the D was a primary or a secondary victim.
- A primary victim is anyone who fears for their own physical safety or is in the zone of danger.
- A secondary victim is an unwilling witness to a traumatic incident, but is in no physical danger.

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16
Q

Stage 2 of psychiatric injury- primary victim test

A

Page vs Smith established a two stage test for primary victims:
-1- Primary victims do not have to show that the psychiatric injury was foreseeable, merely that some kind of personal injury was foreseeable.
-2- The primary victim does not have to be a person a normal fortitude

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17
Q

Stage two of psychiatric injury- secondary victims part one

A

Alcock established that the secondary victim must meet the following control mechanisms in order to make a claim:
-1- The victim must have close ties of love and affection to the primary victim.
-2- They must have witnessed the accident or its immediate aftermath with their own unaided senses. McLaughlin vs O Brian stated this required the primary victim to be in their post accidental state, and not cleaned up.

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18
Q

Stage 2 of psychiatric injury - secondary victims test part 2

A

-3- D must have directly perceived the accident or its immediate aftermath, involving a family member
-4- It is sufficient for the C who was present at the scene of the accident or its immediate aftermath to show that there is a link between witnessing the accident and the illness suffered.

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19
Q

Side rules for stage 2 of psychiatric injury

A

-1- Rescuers- if they are a primary victim, then they can claim. If they are a secondary victim then they must satisfy the Alcock control mechanisms (Chadwick vs British transport)
-2- Bystanders- Mcfarlane stated that bystanders cannot claim unless they satisfy the Alcock control mechanisms

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20
Q

private nuisance intro and definition

A
  • Private nuisance is the “Unlawful (unreasonable) interference with a persons use or enjoyment of land”.
  • It does not matter if the D ha taken reasonable care to not be a nuisance. In Cambridge water, Lord Goff stated, “The fact that the D has taken all reasonable care will not exonerate him”.
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21
Q

Private Nuisance factor 1

A
  • Firstly, the location of the interference must be considered- Leeman vs Montague
  • Apply to the scenario , considering what type of area the interference is in (Industrial, residential, a mix)
  • Side rule- Damage to Land- If the nuisance causes physical damage to the C’s land, then the issue of location is irrelevant (St Helens Smelting vs Tipping)
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22
Q

Private nuisance factor 2

A
  • Secondly, the more long lasting the interference, the more likely to be a nuisance (Cunard vs Antifyre). Private nuisances are interferences for a substantial amount of time.
  • Side rule- time of day- even if the interference was short in duration, it could still be unreasonable due to the time of day (De Keysers royal hotel)
  • Side rule 2- Damage to land- and interference which is short in duration may still be W nuisance if it causes damage to the land (Crown river cruises vs Kimbolton)
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23
Q

Private nuisance factor 3

A

Finally, if the activity of the defendant is motivated by malice, it is likely to be unreasonable (Christie v Davey)
- Side rule : interference with the D’s recreational activities- Hunter vs Canary Wharf- interference with recreational activities will fail

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24
Q

Defences for nuisance

A
  • Statutory authority- Where an act of parliament gives permission for the nuisance (Allen vs Gulf Oil)
  • Planning permission- in Gillingham council vs Medway- planning permission could mean that the character of the neighbourhood has changed and therefore the interference is now reasonable.
  • Prescription- if the claimant tolerates the nuisance for a substantial amount of time (20 years) before making a complaint.
    Vole it-non-fit-injuria - This is where the C consents to the nuisance
  • Contributory negligence- Reduces compensation due to their own responsibility for the damage.
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25
Q

Remedies available for nuisance

A
  • Damages (Compensation)
  • Injunctions for the D to stop doing something
    • Miller v Jackson- will not be awarded if it goes against the public interest
    • Kennedy’s vs Thompson - can be tailored to meet the requirements of the case
  • Abatement-C is entitled to take reasonable steps to reduce the nuisance.
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26
Q

Rylands vs Fletcher definition

A

Where the D brings something onto their land and stores it there. It escapes and causes damage to the claimants land. This is a strict liability offence so there s no defence just because theD acted with care and attention. There are four stages to prove.

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27
Q

Rylands vs fetcher stage 1

A

Firstly, there must be a non-natural use of the land which means D has brought something onto the property that was not naturally there. Transco defined non natural use as a use which is” extraordinary and unusual” or as a “special use bringing increase danger to others”

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28
Q

Stage 2 of Rylands vs Fletcher

A

Secondly, there must be an escape of the thing brought onto the land. There must be an escape from a place that the D had occupation or control of, to a place where they did not (Read vs Lyons).

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29
Q

Stage 3 Rylands vs Fletcher

A

Thirdly, there must be damage caused by the escape. Rylands vs Blackburn J said that “D will be liable for all the damage which is the natural consequence of the escape”.

29
Q

Stage 4 of Rylands vs Fletcher

A

Finally, the damage must be of a foreseeable type and bot too remote (Cambridge water). If the D cannot predict it, they cannot prevent it.

29
Q

Defences or rylands vs Fletcher

A
  • Acts of a third party (Richards vs Lothian)
  • Acts of god (Natural disaster) - (Nichols v Marsland)
  • Statutory authority- Act of parliament
  • Acts/defaults of the claimant
  • Consent of the claimant
29
Q

Economic loss into part 1- consequential

A

Consequential economic loss is a loss in money, which is a direct consequence of physical damage caused by negligent acts. This loss is recoverable in tort law (Spartan Steel vs Martin).

30
Q

Economic loss into part 2

A

Pure economic loss is a loss in money which is not consequent on physical damage to the claimant. This loss is not recoverable under Tort Law (Spartan Steel vs Martin), unless it is due to a negligent misstatement.
- Apply relevant loss, carry on with negligent misstatement if needed.

31
Q

Negligent Misstatement intro

A
  • A negligent Misstatement is where the D makes a statement, the claimant relies on this advice and as a result suffers a pure economic loss.
  • Hedley Byrne vs Heller sets out a four stage test which if proven gives rise to a special relationship between the two parties (Caparo vs Dickman).
32
Q

Negligent Misstatement stage 1

A
  • The D must possess a special skill relating to the advice given- this is based on the skill and judgement of the D and the reliance placed upon it.
  • Side rule- Social situations (Chaudry vs Prabhaker)- Usually not liable, unless they possess the relevant expertise.
33
Q

Stage 2 of negligent misstatement

A
  • D knows that it was highly likely that the C will rely on that advice.
    -In mutual life vs Evatt it was held that a duty arises when the D is in the business of giving that advice, or had professed to having a special skill or knowledge in the field in which the advice was given.
34
Q

Stage 3 if negligent misstatement

A
  • C must rely on the advice and suffer a financial loss as a result
35
Q

Stage 4 Negligent Misstatement

A
  • It must be reasonable for the C to rely on the advice. - If there is proximity between parties then it is more reliable for the C to rely on the advice of the D (Caparo vs Dickman)
  • Also if the D is in a position of power then it is more reasonable (White vs Jones)
  • Side rule- Voluntary assumption of duty- giving advice when nobody asked for it (Hedley Byrne vs Heller)
36
Q

Vicarious liability definition and stages

A

Vicarious liability is where the employer is liable for the negligence of an employee. There are two stages to prove.
1- Whether the person is an employee or an independent contractor
2- whether the employee was acting outside the scope of their employment.

37
Q

Vicarious liability stage 1

A
  • Stage one asks whether the worker is an employee or an independent contractor. For obvious cases, we use the multiple test:
    Ready mix concrete vs Minister of pensions- held the following factors were important when establishing who is an IC or an employee:
    1- Whether a wage, national insurance, and tax is being payed
    2- who provides tools/ equipment?
    3- whether the worker has to obey orders
    4- The exercise of control over how work is done
    5- the acceptance of any business risk.
    6- The power to hire/ fire replacements
38
Q

Vicarious liability stage 1 part 2

A

For times when it is not obvious, we use the akin to employment test established in Christian Brothers:
1- The employer is more likely to have insurance/ be able to compensate the victim
2- The act is committed by the employee on behalf of the employer.
3- The employees activity is likely to be part of the business activity of the employer
4- The employer by employing the employee created the risk of the act being committed
5- The employee will have been under the control of the employer
- or they are an IC, and the employer will not be liable

39
Q

Vicarious liability stage 2

A
  • Stage 2 questions whether the employee was acting within the course of their employment (They were doing what they were supposed to do).
  • Establish whether they were acting inside the course of their employment using the factors.
40
Q

Vicarious Stage 2- when will employer be liable?

A

An employer will still be liable even if the employee was:
1- Acting excessively (Vasey)
2- Negligently (Centuries Insurance)
3- In an unauthorised way (Rose v Plenty)
4- Criminal act (Morrisons vs Mohamud)
5- abused students (Lister vs Hesley hall)

41
Q

Vicarious stage 2- when will an employer not be liable

A
  • An employer will not be liable if the employee was:
    1- Doing something completely unrelated to their job (Heasemans vs Clarity cleaning)
    2- Committing a frolic of their own (Storey vs Ashton)
    3- Personal vendetta (Morrisons vs various claimants)
42
Q

Vicarious stage 2 side rule

A
  • Travelling to and from work- employer will usually not be liable unless expenses are being payed (Smith vs Stages)
43
Q

Occupiers Visitors summary

A
  • OL act 1957- owe a common duty of care
  • Define occupier, Visitor, common duty of care
  • define standard of breach
    -Consider side rules of whether visitor is a child/ expert
  • Consider whether occupier can discharge their duty -warning signs/ negligence of an IC- apply two stage test
43
Q

Occupiers liability visitors intro

A

Under section 2(1) of the Occupiers liability act 1957, the occupier of a premises owe a visitor, “A common duty of care”.
- Define occupier, visitor, common duty of care

43
Q

Occupiers liability- visitors- occupier definition

A
  • To establish who the owner of the property is, we use the sufficient control test. Lord Denning,” Wherever a person has sufficient degree of control over a premises that they ought to realise that any failure on their part to act may result in injury to a person”. There can be multiple occupiers to the same property (Wheat vs Lacon).
43
Q

Occupiers liability- visitors- common duty of care definition

A
  • An occupier owes a visitor a common duty of care. Under S2(2)- this means that the occupier has a,” duty to take reasonable steps to ensure that the visitor will be reasonably safe in using the premises for which he is invited or permitted to be there”. The injury must be due to the state of the premises and not due to the activities of the visitor (Darby vs National trust).
44
Q

Occupiers liability- visitor definition

A

A visitor is anyone who is invited or permitted to be on the property (This can be expressed or implied).

45
Q

Occupiers liability- visitors- Breach

A
  • Standard- Occupiers must act reasonably- what a reasonable person would have or not have done. The duty is limited in that it is only owed in respect of the purpose for which the visitor is permitted to be on the premises.
    -Apply, has the occupier fallen below this standard
46
Q

Occupiers liability- visitors- side rule 1

A
  • Side rule- duty owed to children- Section 2(3)(A)- an occupier must be prepared for children to be less careful than adults. This is because children may not see the dangers or may not appreciate risks. Therefore, the occupier has a higher duty of care for children.
  • Allurements are something on an occupiers land that will attract children. (Glasgow corporation vs Taylor)- An occupier should guard against any allurement that places a child visitor at risk.
    -However very young children should be under their parents supervision (Phipps vs Rochester corporation)
47
Q

Occupiers liability- visitors- side rule 2

A
  • If the occupier is an expert- Section 2(3)(B) an occupier may expect that an expert will “ Appreciate and guard against any risks that are in the exercise of their calling”.
48
Q

Occupiers liability- visitors- 1st way of discharging duty

A
  • Warning signs- The warning must be sufficient to enable the visitor to be reasonably safe. However, in Cotton vs Derbyshire council, it was held there is no specific obligation to display a warning sign when the danger is one that should be obvious to visitors.
49
Q

Occupiers liability- visitors- 2nd way of discharging duty.

A

Negligence of an independent contractor0- Under section 2(4)(B) the occupier will not be liable for loss or injuries suffered by visitors when the cause of the damage is the negligence of an independent contractor hired by the occupier, if 2 conditions are met:

50
Q

Occupiers liability- visitors- Independent contractor test

A

1- It must have been reasonable for the occupier to have entrusted the work to the independent contractor.
2- The occupier must have taken reasonable steps to satisfy themselves that the contractor was competent and that the work was done properly. Haseldine vs Daw held if the work is of a complex or technical nature it is less reasonable to impose the obligation upon the D

51
Q

Occupiers liability- visitors- way of discharging duty 3

A
  • Consent- an occupier is not liable to a visitors for risks which the visitor willingly accepts.
52
Q

Occupiers liability- trespassers summary

A
  • occupiers owe trespassers a common humanity
  • A duty is owed for injuries caused by the state of the premises.
    -Apply three stage test about owing a duty
  • Apply whether they breached their duty
  • Apply ways the occupier can discharge their duty
53
Q

Occupiers liability- trespassers intro

A
  • C may be able to claim for occupiers liability under the occupiers liability act of 1984.
  • In British Railway board vs Herrington, occupiers owe a common duty of “Common humanity” to trespassers. This means that they don’t deliberately injure them or set traps.
54
Q

Occupiers liability- trespassers- stage 1

A
  • Section 1(1)- a duty is owed to trespassers for injuries caused by a danger due to the state of the premises.
  • Apply- were the injuries due to the state of the premises?
55
Q

Occupiers liability- trespassers stage 2

A
  • Section 1(3), and occupier owes a duty to trespassers if: (Subjective test):
    1-The occupier is aware of the danger or has reasonable grounds to believe that it exists.
    2- The occupier knows or has reasonable grounds to believe that someone is in the vicinity of danger.
    3- The risk is serious enough that the occupier may reasonably be expected to offer some protection against it.
56
Q

Occupiers liability- trespassers stage 3

A

Breach- the occupier must take reasonable care to see that the trespasser does not suffer personal injury.

57
Q

Occupiers liability- trespassers- how can the occupier discharge their duty?

A
  • Warnings- section 1(5)- the occupier may discharge their duty by taking reasonable steps to give warning of the danger or to discourage people. The emphasis is on making the trespasser aware of why they shouldn’t come onto the premises.
  • However, consider that child trespassers who may not necessarily be expected to take notice of warning signs, therefore greater steps need to be taken by the occupier.
58
Q

Concept essays- fault- paragraph 1

A

The Oxford English dictionary defines fault as, “something wrongly done”, “Mistake”, and “Culpability”. Fault is a legal and moral term used to describe a person’s culpability or blameworthiness, or in other words, the person committing the offence.

59
Q

Concept essays- fault paragraph 2

A

The Uk has a fault based legal system and in English law a persons liability is generally dependent upon their degree of fault. In criminal law, people are guilty, being to blame beyond all reasonable doubt, whereas in civil law peoples blame is measured on a balance of probabilities.

60
Q

Concept essays- fault paragraph 3

A

The law of tort is mainly based on the principle of fault, so usually the claimant may only obtain damages if someone else is shown to be to blame. This is based on the notion of individual responsibility- those who choose to behave in the way they do are responsible for the consequences. The following examples are from the law on…

61
Q

Concept essays- law and morality paragraph 1

A

Phil Harris defines morality as “A set of beliefs, values, principles and standards of behavior”. Morality can differ depending on factors such as culture, community, family, and religion. Moral rules develop over time.

62
Q

Concept essays- law and morality paragraph 2

A

Sir John Salmond described law as “The body of principles recognised and applied by the state in the administration of justice”. Compliance is compulsory, and breach will result in state sanctions, and laws come into force at a specific time.

63
Q

Concept essays-law and morality paragraph 3

A

Legal rules are compulsory, imposed on all and must be followed or will result in punishment/ sanctions when breached, whereas moral rules are not compulsory, and people have different values throughout society and they change gradually over time.

64
Q

Concept essays- law and morality paragraph 4

A

Legal liberalism believes that the law should allow freedom of the individual to be expressed as they please unless it causes harm to others. John Stuart Mill developed this through the harm principles. On the other hand, legal moralism believes there is a common moralism that should be enforced by law. For instance Thomas Aquinas and his natural law theory, which is the idea that there is a law derived from god.

65
Q

Concept essays- law and morality paragraph 5

A

Lord Devlin argued that law is based on morals, and that religious principles and society is held together by a moral code. He also believed that the law should set down a minimum standard of morality. Whilst Professor Hart argued using law to enforce moral standards is unacceptable as it infringes individual freedom. The following examples are from the law on…

66
Q

Concept essays- theories of Tort

A

Public policy is the factors the judge (Courts) consider when making their decision (apply each of these and talk about them in relation the law being assessed):
- Fairness
-Floodgates
-Justice
-Public interest

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