tort law

Question 1

what is a tort?

Answer 1

a tort is a private law action committed against an individual, whereas crime is a public law action committed against the state.
it is a body of law mostly found in the common law rather than statute law. it involves civil wrongs - trespass, nuisance and negligence.
a claimant to a tort action is normally seeking some form of remedy. this is usually in the form of monetary compensation paid by the tortfeasor to compensate for the tort.

Question 2

what is the purpose of tort law?

Answer 2

tort focuses on compensation of individuals in situations where their private individual interests have been infringed.

Question 3

what is meant by corrective justice?

Answer 3

restorative justice. it means putting a person back in the position they was in. this might be through the payment of damages or even the issuing of an apology - ‘ right the wrong’

Question 4

what is meant by retributive justice?

Answer 4

based on punishment. it aims to prevent wrongdoing. more commonly associated with criminal law. the knowledge that one might be used for a tortious act might serve as a deterrent or encourage a higher standard of care when performing certain acts.

Question 5

what is the fault liability in tort?

Answer 5

the general principle in law is that there can be no liability without fault. liability in tort is based on the idea that the defendant is, in some way, at fault.

Question 6

what is strict liability in tort?

Answer 6

SL torts, can be committed without the defendant being at fault in any way. these have the potential to be unfair, as the d can be liable to pay damages even though they may nit have been able to prevent the harm. drylands b fletcher 1869

Question 7

what are the justifications and the criticisms towards law of tort?

Answer 7

justifications: victim can be compensated and put back in the position they were in if the tort had never happened; individuals are deterred from committing acts or omissions that might hurt others; supported by the rule of law

criticisms: creates compenssation culture; cost the taxpayer money if claimed against the government; lack of equality; system may be abused.

Question 8

what is negligence? (duty of care)

Answer 8

it was defined in the case pf Blyth v Birmingham waterworks co 1856 as ‘failing to do something which the reasonable person would do or doing something which the reasonable person would not do’. negligence can come from either an act or omission.
someone is negligent if they act carelessly to another person to whom they are legally obliged to act carefully, and if the carelessness causes the other person to suffer some harm or loss.

Question 9

what 3 elements must be proved fro a claimant to succeed in a negligence claim? (duty of care)

Answer 9

1. the d owes the claimant a duty of care - Donoghue v Stevenson 1932
2. the d was in breach of that duty of care -
3. the claimant suffered damage as a result of the breach and that damage was not too remote.

Question 10

what was the neighbour principle stated in Donoghue v Stevenson 1932 (duty of care)

Answer 10

lord atkin stated that there was a neighbour principle which imposes a universal duty to take care. “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbours”.
he defines neighbour as anyone who would be so directly affected by your act that you ought reasonably to have them in your contemplation.

Question 11

what 2 other approached were formulated after Donoghue v Stevenson? (duty of care)

Answer 11

3-stage test in caparo v dickman 1990
and most recently the approach taken in Robinson v chief constable of West Yorkshire police 2018.

Question 12

what was the test for duty of care formulated by Robinson 2018?

Answer 12

1. follow precedent if possible - court should always follow precedent if one exists. for example: doctor-patient (Montgomery v Lanarkshire 2015); driver-passenger (nettle ship v Weston 1971); manufacturer-consumer (Donoghue v Stevenson 1932)
2. if no precedent exists… develop incrementally from similar cases.
3. if no similar cases exist… only then revert to the caparo test.

Question 13

what is the caparo test for duty of care?

Answer 13

a wider approach than the neighbour test.
1. foreseeability - must be reasonably foreseeable that damage or injury would be caused to there particular d; as seen in Kent v Griffiths 2000
2. proximity - if there is not a sufficiently proximate relationship between the claimant and defendant, the d cannot reasonably be expected to have the claimant in mind since they are not likely to be affected by the d’s acts or omissions; bourhill v young 1943
3. it is just, fair and reasonable to impose a duty of care? Alcock v chief constable of South Yorkshire police 1991.

Question 14

what is the general standard of care for breach of duty of care?

Answer 14

that od the reasonable man, which assumes that a reasonable person is average, not perfect (objective test).
‘what would a reasonable person have foreseen in this particular situation?’

Question 15

what is the reasonable man test, and where did it come from?

Answer 15

the reasonable man. test came from Anderson b in Blyth v Birmingham waterworks 1865, which defined it as ‘the omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do’
nettle ship v Weston 1971

Question 16

what are the 4 tests for breach of duty?

Answer 16

1. degreee of probability that harm will be done - if the risk is very small, it may be decided that the d is not in breach. roe v minister of health 1954
2. the magnitude of likely harm - courts consider not only the risk of harm, but also how serious the injury could foreseeably be. Paris v Stepney borough council 1951
3. the cost and practicality of preventing risk - looking at whether the d could have taken precautions against the risk. Latimer v AEC ltd 1953
4. potential benefits of the risk - daborn v bath tramways 1946

Question 16

where the defendant is a professional person, what are their special characteristics when it comes to breach of duty?

Answer 16

where the d has a professional skill, the court will expect them to show that they have the degree of competence usually expected of a typical skilled member of that profession. this means, for example, that a gp will only be expected to exercise the normal level of skill of a gp, not that of a senior consultant or surgeon.
Bolam v frier hospital management committee 1957 - The medical professional will not be held to have breached their duty of care if thy acted in a manner professional, with expertise in that particular area. With this, it doesn’t matter whether other medical professionals who are not experts in said area agree with it or not

Question 17

what is the main principle and points of liability in negligence resulting damage?

Answer 17

there has to be some sort of damage resulting from the defendant’s negligence.

Question 18

what does the claimant must prove in resulting damage?

Answer 18

a) the damage was caused by the defendant’s breach of duty
b) that the damage was not too remote; that it was reasonably foreseeable.
causation + remoteness of damage

Question 19

what is it meant by legal causation?

Answer 19

refers to when the d is legally responsible for the injury or loss. for the d to be liable for an injury it must be shown that the reasonable person could foresee the injury occurring.

Question 20

what is it meant by factual causation?

Answer 20

involves showing the link between the defendant’s act or omission and the injury or loss caused. not all factual causation involves legal causation

Question 21

how is causation decided?

Answer 21

using the but for test: but for the defendant’s breach of duty, would damage or injury have occurred?
the claimant must show a casual link between d’s act or omission and the damage caused.
Barnett v Chelsea & Kensington hospital management committee 1968

Question 22

what is foreseeability in remoteness of damage?

Answer 22

a d may still be liable even if the extent of the injury was not foreseen. this can be seen in the case of smith v leech Brain & co 1962 - he was still held liable for the negligence even though the extent of the injury was not foreseen.

Question 22

how is remoteness of damage proved?

Answer 22

it must also be established that the damage was not too remote - too removed from the d’s negligence. the test for remoteness is whether there is a direct, foreseeable causation.

there are 2 tests:
1. re polemis 1921, and
2. wagon mound 1961 - a claimant must show that the type of damage caused by the defendant’s act or omission was reasonably foreseeable.

Question 23

what is an intervening act and what points surround it in resulting damage?

Answer 23

the link between the d’s act or omission and the injury or loss suffered is often referred to as the chain of causation.
novus actus interveniens (a new intervening act)
res ipsa loquitur (the facts speak for themselves) - if it is clear that the harm could not have arisen unless the defendant was negligent, the court may be prepared to infer that the defendant was negligent without hearing detailed evidence of what was or was not done. gee v metropolitan railway 1873

Question 24

psychiatric injury: what is a primary victim?

Answer 24

a person who either sufferers physical injury as a result of another person’s negligence or; where it was reasonably foreseeable that they could have been physically injured as a result of another person’s negligence and as a result they have suffered a psychiatric injury.

Question 25

psychiatric injury: what is a secondary victim?

Answer 25

a person who suffers psychiatric injury as a result of another person’s negligence but was not exposed to danger. there are several other conditions which need to be met to be classified as a secondary victim. Alcock v chief constable of South Yorkshire police 1992.

Question 26

reasonable foreseeability depends upon establishing a sufficiently proximate relationshionship; how is that met?

Answer 26

the closer the tie between the claimant and the victim, the more likely it s that they would succeed in showing that the psychiatric damage was reasonably foreseeable.
in Alcock it was held that the claimant usually show a sufficiently proximate relationship to the victim.

Question 27

what was held in Alcock about secondary victims, for them to be classified as such?

Answer 27

a claimant must witness the event with their own unaided senses - witness the event in person. they said that the claimant must be in close physical proximity to the event. therefore, people who see the event on TV, hear about it, are unlikely to be classified as secondary victims.

Question 28

what is occupiers’ liability and where does it come from?

Answer 28

comes from both statute law and the common law. it involves the liability of an occupier to both visitors and persons other than visitors to their premises.

key statutes:
1. the occupiers’ liability act 1957 which covers concerns the duty owed to lawful visitors
2. the occupiers liability act 1984 which covers persons other than visitors - unlawful visitors

Question 29

what case defined the 4 categories of and occupier, and what were they?

Answer 29

wheat v lacon & co 1966
- if a landlord lets premises then the tenant will be the occupier
- if a landlord who lets part of a building retains certain ares then the landlord will be the occupier in respect of those ares
- if an owner licenses a person to use premises but reserved the right of entry then the owner remains the occupier
- if contractors are employed to carry out work on premises, the owner will generally remain the occupier, although there may be circumstances where the contractor could be the occupier

Question 30

who is a visitor? in both common law and under the occupiers liability act 1957

Answer 30

under the common law, a visitor is a person who has express or implied permission to enter the premises
under the occupiers liability act 1957, person who have a right to enter premises conferred by law are lawful visitors - police officers and firefighters

Question 31

what is the common duty of care imposed in the occupiers liability act 1957 s.2?

Answer 31

1. an occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
2. the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe using the premises for the purposes for which he is invited or permitted by the occupier to be there.

Question 32

what are the guidelines in applying the common duty of care, laid down in the occupiers liability act 1957?

Answer 32

s.2(3)(a) an occupier must be prepared for children to be less careful than adults.
s.2(3)(b) an occupier can expect a person in the exercise of his calling, to appreciate and guard against any special risks ordinarily incident to it.
s.2(4)(a) a warning may discharge the duty of care
s.2(4)(b) the occupier is not liable for the fault of an independent contractor, provided he or she acted reasonably in entrusting the work to a contractor and took reasonable steps to ensure that the contractor was competent and the work was. properly carried out.

Question 33

what does the occupiers liability act 1957 state about special characteristics (children)?

Answer 33

the occupiers liability act 1957 s.2(3)(a) states that occupiers must be prepared for children to be less careful than adults and as a result the premises must be reasonably safe for children of that age. the occupier should guard against any kind of allurement, that is foreseeable. Glasgow corp v Taylor 1922

Question 34

what does the occupiers liability act state about trades people?

Answer 34

the occupier owes a tradesperson a common duty of care whilst on their premises. however, s.2(3)(b) pf the act states that the occupiers will not be liable where the tradesperson fails to guard against risks which they would be expected to know. roles v Nathan 1963

Question 35

what are the 3 requirements for the torts of independent contractors? (OLA1957)

Answer 35

must be reasonable for the occupier to have given the contractor work.
the contractor must be competent to carry out the task and occupiers should check this.
the occupier must check the work has been done properly.

Question 36

what does the occupiers liability act 1984 concern?

Answer 36

duty owed to persons other than visitors: unlawful visitor or trespasser

Question 37

who is a trespasser?

Answer 37

a visitor who has no permission or authority to be on the occupier’s land.
in Addie v dumbreck 1929 it was held that there was no duty of care owed by occupiers to trespassers to ensure that they were safe when coming onto the land. the only duty was not to inflict harm wilfully.
in British railways board v Herrington 1972 it was held that a duty of care could be owed to trespassers. this led to the OLA1984

Question 38

under the occupiers liability act 1984, when does the occupier owes the trespasser a duty of care?

Answer 38

1. he is aware of the danger or has reasonable grounds to believe that it exists;
2. he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger;
3. the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection

Question 39

what is the main difference between the occupiers liability act 1957 and 84?

Answer 39

OLA1957 - lawful visitors: ‘the common duty of care’. reasonable care to ensure that the visitor is reasonably safe.
duty is owed to all visitors

OLA1984 - unlawful visitors: reasonable care to ensure that unlawful visitor is not injured.
duty owed only if certain conditions are met; starts from the assumption that there is none. Tomlinson v congleton borough council 2003

Question 39

under the occupiers liability act 1984, what is the duty owed?

Answer 39

under s.1(4), the duty owed to persons other than visitors is to take care as it is reasonable in all the circumstances of the case to see that they are not injured on the premises by the danger concerned.

Question 40

what is meant by a remedy?

Answer 40

what the claimant is seeking to right the wrong

Question 41

what are the 2 main types of remedies in tort law? what are they?

Answer 41

• damages: the aim is to put the injured party in the same position as they would have been in if the tort had not occurred
• injunctions: this is a court order instructing a party to do or refrain from doing something - most used in cases of nuisance

Question 42

what is meant by mitigation of loss in damages?

Answer 42

a claimant who has suffered a loss as a result of a tort is entitled to damages for any losses. however, the claimant is expected to take reasonable steps to mitigate any losses.

Question 43

what are the 6 types of payable damages?

Answer 43

1. general damages: not capable of being calculated before the trial and the court has to calculate them; can be divided into pecuniary and non-pecuniary.
2. special damages: are capable of being calculated at the time of the trial. medical expenses (Cunningham v Harrison 1973) and expenses to cover special facilities (lovey v rydal school 1970)
3. nominal damages: awarded when there was little or no harm caused; these are only actionable per se
4. contemptuous damages: awarded when the level of harm has been low and the court believes that an action should not have been taken, even though the d was liable
5. aggravated damages: represent an additional sum of money because the initial harm was made worse because of some aggravating factor
6. exemplary damages: punish the d for committing the tort. rookes v Barnard 1964

Question 44

what is the difference between pecuniary and non-pecuniary damages?

Answer 44

pecuniary damages: can be easily calculated in money terms. calculated future losses

non-pecuniary damages: not wholly money based. pain and suffering; loss of amenity; damages for the injury itself.

Question 45

what are the 2 types of injunction?

Answer 45

1. prohibitory injunctions: these instruct the defendant to not behave in a certain way - stop committing the tort
2. mandatory injunctions: these instruct the defendant to take an action to rectify the situation created by the tort.

Question 46

what is a quia timet injunction?

Answer 46

obtained before the court occurs.
quia timet = because he fears
the circumstances are granted in fletcher v Bealey 1884: the danger must be imminent, the potential damage must be substantial and the only was the claimant can protect himself is through a quia timet

Question 47

what is a interim injunction?

Answer 47

may be granted once an action has begun but before the main court hearing. the injunction will intruct the defendant to not behave in a certain way. granted in American cyanamid v ethican 1975:
1. there must be a serious issue to be tried
2. the balance of convenience must favour the granting of the injunction

Question 48

what are the 3 maxims of equity?

Answer 48

1. one who seeks equity must do equity
2. equity does nothing in vain
3. delay defeats equity