Tort Law

Question 1

Tort?

Answer 1

Type of a civil wrong.
Breach of legal duty
infringement of legal right which give rise to claim of damages

Question 2

Duty exists if

Answer 2

Law recognises it as a civil wrong

Question 3

Contractual relationship

Answer 3

Need not to exist to claim for tort. No previous relationship need to exist

Question 4

If contractual relationship exist

Answer 4

Two options available:
1. Under contract, damages may be awarded to put a claimant in a position if a contract was successfully performed.

2. In tort, damages awared to put the person back in the position if such tortious act never took place

Question 5

Limitation period

Answer 5

contract - 6 years from the breach of contract
tort - 6 years from the negligent act or omission but 2 years to personal injury claims

Question 6

The claimant’s loss might take the form of:

Answer 6

physical harm to their body or assets;
pain and suffering;
psychological harm;
damage to personal reputation; or
economic loss.

Question 7

Remedy for tort is

Answer 7

Damages,
Remedies may not be available for all types of loss.

Question 8

Damages

Answer 8

a monetary award for the direct, foreseeable consequential loss suffered by the injured party, to restore them to the position they would have enjoyed if the wrong had not been committed

Question 9

General damages

Answer 9

Compensation for non monetary harm suffered by claimant.

physical pain , loss of repo, psychological damage etc.
not easily quantifiable

General damages are generally awarded only in personal claims – that is, in claims brought by individuals who have suffered personal harm

Question 10

Special damages

Answer 10

compensate the claimant for the quantifiable monetary losses suffered

expenses generated by the other party’s tort

economic loss such as loss of profits

Special damages are claimed in both personal and commercial actions

Question 11

Where monetary compensation is not appropriate

Answer 11

Court may award injunction: to prevent the wrongdoer from continuing to act in a particular way or to positively do something to correct the harm done

Or specific restitution (restoration): for land or goods to be restored to a claimant who has been wrongfully deprived of them.

Question 12

Tortfeasor

Answer 12

a person who commits a tort.

regardless of age, is liable for a tort (providing they were capable of understanding the consequences when committing the tort).

Question 13

Liability for Torts Committed by Others
(Vicarious liability)

Answer 13

-if seen in some way to have authorised or encouraged it to happen;
-if some control (actual or notional) over the tortfeasor could reasonably have prevented it.

Question 14

A tortfeasor is liable to compensate a claimant who can show that:

Answer 14

A tortfeasor owed a duty of care

Tortfeasor failed to demonstrate the necessary standard of care and skill, and thereby breached that duty of care

Claimant suffered damage as a direct, foreseeable consequence of that breach

Question 15

Duty of Care - neighbour principle

Answer 15

A person who are closely effected by the act or breach done by one party.
Such closeness or proximity, they have duty of care to avoid causing reasonably foreseeable damage to one another.

Question 16

Neighbour principle - established that

Answer 16

1. The damage was reasonably foreseeable.
2. There was a relationship of proximity between the parties (i.e. the potential victim is of a reasonably foreseeable class).
3. It is fair and just in the circumstances to impose a duty of care.

Question 17

nervous shock

Answer 17

in order to have a claim, the claimant must suffer shock and illness as a result of:

fearing for one’s own safety or for that of a close relative; and
being close to the events in both time and space.

Question 18

Duty of Care Over Professional Advice (

Answer 18

relationship will be “proximate” if the advice is given:

in a contractual relationship;Acc and audit
in a “fiduciary” relationship; director, partner
where there is a “special relationship”

Question 19

Breach of Duty of Care – Failure to Achieve Standard of Care

Answer 19

degree of care which should be expected of a person in order to discharge his duty of care to others

Question 20

Situations Demanding Special Skills
(driver)

Answer 20

A person in a position that requires the exercise of special care will be expected to exercise it; any lack of training or experience is not a defence

Question 21

Remoteness of Damage

Answer 21

If there is no duty of care, the question of remoteness does not arise.

Question 22

Foreseeability, Causation and the “But For” Test

Answer 22

If the loss would have occurred regardless of the defendant’s negligence, it is not the direct consequence of the negligence and the defendant is not liable.

Damage claimed must be the direct, foreseeable consequence of the defendant’s negligence.

Question 23

Novus actus interveniens
(a new intervening cause)

Answer 23

If the chain of events between the negligent act and the eventual damage is broken by some other unforeseeable factor the loss is too remote and the defendant will not be liable for it.

Question 24

Example of novus

Answer 24

Actions of a third party
Actions of the claimant
Unforeseeable natural events

Question 25

Purely Economic Loss

Answer 25

damages are not available for purely economic loss

-reasonable care to protect the client/buyer against suffering personal injury or damage to other assets

Question 26

Who Must Prove the Case

Answer 26

evidential burden is usually on the claimant to show that, on the balance of probabilities, the loss or suffering was due to the defendant’s breach of duty.

Question 27

Shifting the Burden of Proof

Answer 27

Res ipsa loquitur
(the fact speaks for themselves)
the law imposes strict liability on the defendant

Question 28

Strict Liability

Answer 28

at common law, a person who keeps a dangerous substance is strictly liable for the consequences if it escapes

Question 29

Seek to issue disclaimer but protection against liability

Answer 29

Companies Act 2006 provides that a company may not give its directors or auditor a permanent relief from liability in negligence

Question 30

Two important defences are:

Answer 30

1. Volenti non fit injuria – the claimant knew of the risk and voluntarily consented to it.
2. Contributory negligence – a partial defence when the tortfeasor shows that the claimant’s own actions (or inactions) contributed to the loss or damage that was suffered