tort law

Question 1

how is negligence proven

Answer 1

1. establish duty of care
2. demonstrate breach of duty
3. prove breach caused loss
4. that loss isn’t too remote

Question 2

how is a novel duty established

Answer 2

1) reasonable foresight of harm to claimant
2) sufficient proximity of relationship
3) it is fair, just and reasonable to impose a duty

Question 3

when is there liability for omissions

Answer 3

when a duty exists not to make a situation worse, or with a relationship of power and control

Question 4

what is the general standard of care

Answer 4

that of a reasonable man (objective test)

Question 5

what is the standard of care of a defendant exercising a special skill

Answer 5

the degree of skill or competence to be expected of someone who has that skill

Question 6

what is the standard of care on children

Answer 6

as much care as reasonably expected from a child of that age

Question 7

what is the burden of proof

Answer 7

the claimant must prove on the balance of probabilities

Question 8

what is the but for test

Answer 8

‘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)

Question 9

what constitutes an intervening act

Answer 9

• an act which breaks the chain of causation
• usually not negligence of 3rd party
• where claimant furthers harm by acting unreasonably

Question 10

what is the test for remoteness of damage

Answer 10

Wagon Mound:
- must have been reasonably foreseeable to a reasonable person

Question 11

what are the exceptions to the wagon mound test

Answer 11

• where type of injury was foreseeable but method of injury was not
• egg-shell skull rule

Question 12

general rule of pure economic loss

Answer 12

no duty of care arises

Question 13

exceptions to pure economic loss rule

Answer 13

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

Question 14

general rule for recoverable psychiatric harm

Answer 14

injury must be:
a. caused by sudden shock; and
b. either:
i. medically recognised psychiatric illness
ii. shock-induced physical condition

Question 15

psychiatric harm test for primary victims

Answer 15

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

Question 16

psychiatric harm test for secondary victims

Answer 16

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

Question 17

what duty to employers have to their employees

Answer 17

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

Question 18

what standard of care is an employer held to

Answer 18

that of a reasonable employer in its position

Question 19

what is the aim of tortious damages

Answer 19

to put the employer in the position they would have been in had the tort not been committed

Question 20

examples of non-pecuniary losses

Answer 20

• pain and suffering
• loss of amenity

Question 21

examples of pecuniary losses

Answer 21

• medical expenses
• loss of earnings
• lost years

Question 22

when is defence of consent applicable

Answer 22

• 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

Question 23

when does the defence of consent not apply

Answer 23

to traffic accidents, employees and usually rescuers where they acted reasonably under a duty

Question 24

contributory negligence reductions regarding not wearing a seatbelt

Answer 24

1. If the belt would have made no difference at all to the injuries, then no deduction is made.
2. If the belt would have reduced the injuries, then a deduction of 15% is made.
3. If the wearing of a belt would have avoided the injuries completely then a deduction of 25% is made.

Question 25

what is the defence of illegality

Answer 25

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

Question 26

what is vicarious liability

Answer 26

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

Question 27

definition of occupier for purposes of OLAs

Answer 27

someone who has sufficient degree of control over the premises, e.g. contractor doing renos could be liable

Question 28

duty under OLA to visitors

Answer 28

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

Question 29

how to avoid liability under OLA to visitors

Answer 29

adequate, specific warning signs

Question 30

duty under OLA to non-visitors

Answer 30

take such care as is reasonable in the circumstances to see that the trespasser does not suffer injury from the state of the premises

Question 31

when does duty arise to non-visitors under OLA

Answer 31

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

Question 32

what is private nuisance

Answer 32

(1) interference with the claimant’s use and enjoyment of the land
(2) interference is unlawful (substantial and unreasonable)

Question 33

who may sue in private nuisance

Answer 33

anyone with a right to exclusive possession

Question 34

who is liable under private nuisance

Answer 34

any of:
- creator of nuisance
- occupier of originating land
- landlord, where nuisance is result of letting

Question 35

defences to private nuisance

Answer 35

1. prescription
2. statute
3. act of god
4. other tortious defences

Question 36

elements of Rylands v Fletcher

Answer 36

(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

Question 37

when can a claimant claim for public nuisance

Answer 37

when they have suffered particular damage above and beyond that of the public at large