tort law Flashcards
how is negligence proven
- establish duty of care
- demonstrate breach of duty
- prove breach caused loss
- that loss isn’t too remote
how is a novel duty established
1) reasonable foresight of harm to claimant
2) sufficient proximity of relationship
3) it is fair, just and reasonable to impose a duty
when is there liability for omissions
when a duty exists not to make a situation worse, or with a relationship of power and control
what is the general standard of care
that of a reasonable man (objective test)
what is the standard of care of a defendant exercising a special skill
the degree of skill or competence to be expected of someone who has that skill
what is the standard of care on children
as much care as reasonably expected from a child of that age
what is the burden of proof
the claimant must prove on the balance of probabilities
what is the but for test
‘but for’ the defendant’s breach, would the harm to the claimant have occurred
(materially increasing or contributing to risk of injury may be sufficient)
what constitutes an intervening act
- an act which breaks the chain of causation
- usually not negligence of 3rd party
- where claimant furthers harm by acting unreasonably
what is the test for remoteness of damage
Wagon Mound:
- must have been reasonably foreseeable to a reasonable person
what are the exceptions to the wagon mound test
- where type of injury was foreseeable but method of injury was not
- egg-shell skull rule
general rule of pure economic loss
no duty of care arises
exceptions to pure economic loss rule
where a negligent misstatement leads to a loss if:
- exceptionally close relationship which consists of:
a. an assumption of responsibility by the defendant
b. reasonable reliance by the claimant
general rule for recoverable psychiatric harm
injury must be:
a. caused by sudden shock; and
b. either:
i. medically recognised psychiatric illness
ii. shock-induced physical condition
psychiatric harm test for primary victims
they are owed a duty of care if:
- risk of physical injury was foreseeable
- they were in the actual area of danger
- they reasonably believed that they were in danger
psychiatric harm test for secondary victims
all of the following must be satisfied:
i. foreseeability of psychiatric harm
ii. proximity of relationship
iii. proximity in time and space
iv. proximity of perception
what duty to employers have to their employees
a non-delegable duty to take reasonable steps to provide:
- competent staff
- adequate material
- a safe system of work (and ensured compliance with system)
- a safe place of work
what standard of care is an employer held to
that of a reasonable employer in its position
what is the aim of tortious damages
to put the employer in the position they would have been in had the tort not been committed
examples of non-pecuniary losses
- pain and suffering
- loss of amenity
examples of pecuniary losses
- medical expenses
- loss of earnings
- lost years
when is defence of consent applicable
- acts as a complete defence
applies when claimant:
a. has full knowledge of the nature and extent of the risk
b. freely consents to that risk
when does the defence of consent not apply
to traffic accidents, employees and usually rescuers where they acted reasonably under a duty
contributory negligence reductions regarding not wearing a seatbelt
- If the belt would have made no difference at all to the injuries, then no deduction is made.
- If the belt would have reduced the injuries, then a deduction of 15% is made.
- If the wearing of a belt would have avoided the injuries completely then a deduction of 25% is made.
what is the defence of illegality
where claimant was involved in illegal enterprise at the time, they may be unable to claim if:
- damage arises directly out of the illegal activity
what is vicarious liability
where employer is jointly liable because:
- tortfeasor is an employee
- the tort was committed in the course of employment
* prohibited acts which further the employer’s business count
definition of occupier for purposes of OLAs
someone who has sufficient degree of control over the premises, e.g. contractor doing renos could be liable
duty under OLA to visitors
to take such care as is reasonable in the circumstances to ensure the visitor is reasonably safe in using the premises for the permitted use
how to avoid liability under OLA to visitors
adequate, specific warning signs
duty under OLA to non-visitors
take such care as is reasonable in the circumstances to see that the trespasser does not suffer injury from the state of the premises
when does duty arise to non-visitors under OLA
occupier must:
(1) be aware/ have reasonable grounds to believe danger exists;
(2) know/have reasonable grounds to believe trespasser is in the vicinity or may come into danger
(3) be reasonably expected to offer some protection against risk
what is private nuisance
(1) interference with the claimant’s use and enjoyment of the land
(2) interference is unlawful (substantial and unreasonable)
who may sue in private nuisance
anyone with a right to exclusive possession
who is liable under private nuisance
any of:
- creator of nuisance
- occupier of originating land
- landlord, where nuisance is result of letting
defences to private nuisance
- prescription
- statute
- act of god
- other tortious defences
elements of Rylands v Fletcher
(1) D brings onto their land something likely to do mischief, for their own purposes
(2) that thing escapes
(3) from a non-natural use of land
(4) causes damage which was foreseeable in the event of escape
when can a claimant claim for public nuisance
when they have suffered particular damage above and beyond that of the public at large
