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Law Sem 1, Yr1 > Tort Law > Flashcards

Tort Law Flashcards

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1
Q

What is tort

A

A civil (as opposed to criminal) wrong which entitles the claimant to a remedy
Concerned with protecting persons rights
Claimant (injured person) sues Defendant (tortfeasor)

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2
Q

Who can sue

A

Deceased (relatives)
Companies
Competent adults
Vulnerable adults
Children (litigation represented)

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3
Q

Damnum sine injuria

A

Damage without wrongful act

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4
Q

Damage scope

A
  • Personal injury
  • Property damage
  • Economic loss
  • Loss to reputation
  • Not death
  • Not grief/upset
  • Damnum sine injuria
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5
Q

Human rights act 1998

A

Direct claim possible against the State or public body for breach of these rights
Court also has duty to take rights into account when making decisions

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6
Q

Limitation act 1980

A
  • Personal injury claims
  • Most other tort claims
  • Children
  • Claimants who lack capacity
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7
Q

Aims and functions

A
  • Compensation
  • Fault
  • Justice
  • Deterrence
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8
Q

Causes of cases

A
  • Pollution
  • Personal injury
  • Invasion of privacy
  • Defamation
  • Incidents at work
  • Medical errors
  • Major incidents
  • Global implications
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9
Q

What is negligence

A

Carelessness

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10
Q

ABC (DE) elements of negligence

A

D must owe C A legal duty of care
D must have Breached that duty
The breach must have Caused (resulted in) damage to C
Are there any Defences
Is there an Effective remedy

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11
Q

A legal duty owed by D to C

A

Duty already established by prior case law
Court must decide as question of law if is new situation

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12
Q

Breach of duty

A

D’s behaviour must fall below the standard of care expected by the law
What would the law expect of a reasonable person in D’s position?

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13
Q

Breach must Cause damage (loss) to Claimant

A

Damage
C must suffer tangible harm recognised by the law
Breach must in fact cause C’s loss (factual causation)
Loss must not be too remote a consequence of D’s breach

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14
Q

Defences

A

Complete defences such as consent
Partial defence of contributory negligence

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15
Q

Effective remedy

A

To put C back into their pre-tort position - in so far as money can
Not intended to be a ‘windfall’
Fair and reasonable - not excessive
Justice/Deterrence?
Apologies

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16
Q

Types of liability

A

Individual
Independent
Strict V Fault-based
Joint
Joint and several
Vicarious

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17
Q

Individual liability

A

Single defendant responsible for whole of claimant’s loss

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18
Q

Independent liability

A

More than one defendant
Each defendant causes different damage to claimant
Claims may be linked factually but claimant must sue all defendants to fully recover losses

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19
Q

Joint liability

A

More than one defendant liable for same loss to claimant
Both defendants can be sued together
Either defendant can be sued for the total loss

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20
Q

Possible scenarios for joint liability

A

D1 and D2 act together to commit tort
D1 and D2 act separately but C’s loss cannot be divided
D2 is vicariously liable for D1’s loss

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21
Q

Joint and several liability

A

Joint defendants are jointly and severally liable to claimant
If D1 ad D2 jointly cause RTA in which C injured, C can sue
 D1 alone
 D2 alone
 D1 and D2

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22
Q

If C 100% sues D1 for RTA or smth like that

A

D1 must pay 100% compensation for C’s loss (even if not 100% to blame)
- D1 can then sue D2 for a contribution
 Civil Liability Contribution Act 1978

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23
Q

Vicarious liability

A

One person can be made liable for the tort of another
E.g. employer responsible for actions of employee if tort committed in course of employment
Relationship between tortfeasor and vicariously liable defendant likely to be akin to that of an employer/employee relationship

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24
Q

Donoghue V Stevenson [1932]

A

Snail in beer case

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25
Q

Examples of relationship based general duties of care

A
  • Road users (drivers, passengers and pedestrians)
  • Dr to patient
  • Solicitor to client
  • Parent to child/teacher to pupil
  • Rescuer to rescue
  • Employer to employer (some special rules)
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26
Q

Specific duties subject to restrictions

A
  • Duty to not cause psychiatric harm
  • Negligent Misstatement and Economic Loss
  • Duty owed by occupiers to visitors and trespassers
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27
Q

Novel situations

A
  • Similar to existing precedent but new case distinguishable
  • Is existing precedent close enough to apply as incremental step?
  • New situation NOT previously considered by Courts at all
  • Existing law says NO duty, new case seeks to challenge this (example – omission cases
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28
Q

Strict liability

A

In certain cases, defendants can be held liable without proof of negligence or intent to harm. This often applies in situations involving inherently dangerous activities or defective products

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29
Q

Omissions and actions of third party

A

Failing to act at all
Failing to act positively to prevent a third party affecting the claimant

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30
Q

Third party failing to act at all

A

Off-duty Dr sees man collapse in shop but does not intervene at all = omission
Contrast where Dr fails to check patient’s records when treating

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31
Q

Failing to act positively to prevent a third party affecting the claimant

A

D’s omission allows a third party to injure C

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32
Q

General rule

A

No duty to act positively for benefit of others

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33
Q

Exceptions from general rule

A

Alter perspective: could nonfeasance be misfeasance?
Is it truly an omission
D has degree of control over C or over third party
Assumption of responsibility by D for C
Where D has created or adopted a risk

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34
Q

Misfeasance

A

The act of engaging in an action or duty but failing to perform the duty correctly.

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35
Q

Nonfeasance

A

The willful failure to execute or perform an act or duty required by one’s position, office, or law whereby that neglect results in harm or damage to a person or property

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36
Q

Foreseeability of harm

A

No foresight = no duty
Rarely an obstacle in cases as no need to foresee specific harm/circumstances
Test really asks – is C a ‘foreseeable victim’?

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37
Q

Proximity of relationship

A

Cases where D directly causes physical harm to C
Geographical closeness
Cases where D’s involvement is indirect or loss is not physical
- Has D ‘assumed responsibility’ for C?
- C must usually be singled out over and above rest of the public

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38
Q

S11 Civil Evidence Act 1968

A

Hearsay
Defendant’s conviction for a relevant criminal offence admissible as proof of breach in civil case unless the contrary is proven

39
Q

Res ipsa loquitur

A

‘The thing speaks for itself’
Refers to situations where the evidence is so clear it implies negligence without needing further proof
Suggests circumstances are sufficient to establish liability on their own

40
Q

Res ipsa loquitur example

A

Scott V London and St Catherine’s Docks [1895]
- Heavy bag of sugar fell from a docked ship and injured Scott (passing by)
- Court held that circumstances surrounding the incident were such that it could be inferred that the dock operators were negligent without needing direct evidence of their actions
- Allowed the plaintiff to prove negligence through the circumstances of an incident rather than direct evidence

41
Q

The reasonable person test
Negligence

A

‘Negligence is the omission to do something that the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do’

42
Q

Issues with reasonable person test

A

Who is the reasonable person?
What standard of behaviour will the law expect of the reasonable person?
Did the defendant fall below that standard so breaching his duty?

43
Q

Reasonable person test types

A

Children
- Same age as defendant

Professing to have skill/experience
- Ordinary skilled person professing to exercise relevant skill

44
Q

Standard of care
Reasonable person test

A

What behaviour does the court expect of the reasonable person in this situation?
The degree of caution and concern an ordinary person must exercise in their actions to avoid harming others
Helps determine whether a defendant’s conduct was unreasonable or failed to meet the expected level of care
Likelihood of harm
Severity of potential harm
Degree and magnitude of risk

45
Q

Social benefits of defendant’s activity

A

Consideration of whether the activity that caused harm has a greater social value or benefit
May justify the taking of more risks than usual

46
Q

The Bolam Test

A

Standard is what is accepted as proper by a responsible body of medical opinion
Merely because there is a body of opinion that takes a contrary view

47
Q

Considerations to standard of care

A

How should it be determined where a duty of care arises from novel (new) facts?

Recognition of a duty of care may lead to conflicting duty relationships, with differing standards of care expected

A potential claim may involve more than one breach of duty

48
Q

Duty of care with rescuers

A

If a person has been negligent, they owe a rescuer a duty of care

49
Q

Causation questions

A

But for breach of duty, would loss have risen? (factual)
Is loss too remote to be recoverable? (legal)
Is there novus actus interveniens that breaks chain of causation? (intervening act)

50
Q

When was but for test established for factual causation

A

Barnett v Chelsea & Kingston Hospital [1969]
- Arsenic poisoning case
- On facts ‘but for’ the breach patient would still have died
- Factual causation not proven

51
Q

All or nothing approach to causation

A

More than one possible cause
- Can result in no person being recognised as the factual cause of C’s loss

52
Q

Exceptions to relax strict application of but for test

A
  • Industrial disease cases
  • Material contribution
  • Failure to inform
53
Q

Traditional and current approach of legal causation
Remoteness

A

Traditional = Re Polemis [1921] direct consequence test
Current = Wagon Mound test

54
Q

Problems defining the ‘type’ of harm

A

Similar in type approach = Hughes v Lord Advocate [1963]
- Provided harm similar to what is foreseeable irrelevant that it is more extensive or occurs through unforeseeable means
- How similar is similar?
* More modern approach = broad definition of ‘type of harm’
- Jolley v Sutton [2000]

55
Q

Acts of the claimant
Causation

A

Later conduct of Claimant = NAI if wholly unreasonable in the circumstances
Suicide and other deliberate acts

56
Q

Hypothetical claimant choices
Causation

A

What would claimant have done had there been no Breach?
If C’s conduct is NOT a NAI, it may still be evidence of contributory negligence

57
Q

Contributory negligent statute

A

Contributory Negligence Act 1945

58
Q

Actions of a third party
Causation

A

Later actions of a third party will be a NAI if wholly unforeseeable as a consequence of D’s breach
Instinctive reactions
Medical error (may not always b NAI)

59
Q

How to evade liability in tort

A

Denial
- Preliminary issue
- Limitation

Defence
- Justifications – reasonableness
- Public policy

60
Q

Defences in tort

A

Voluntary assumption of risk
- Volenti non fit injuria

Requirements
- Knowledge of risk
- Acceptance of risk
- S149 Road Traffic Act 1988
- Not for rescuers

61
Q

What was the s1 Law Reform Contributory Negligence Act 1945

A
  • ‘Where any person suffers damage [partly] as a result of his own fault …..the damages in respect thereof shall be reduced to such extent as the court thinks is just and equitable …’
62
Q

Failure to take reasonable care for own safety

A

Objective standard
Rescuers
Agony of moment
-C will not be penalised with the benefit of hindsight provided conduct reasonable when they acted

63
Q

Contribution to fact or extent of loss

A

Fault must make difference
Contribution to fact C harmed
Contribution to extent of harm

64
Q

Part 20 Civil Procedure Rules 1998

A
  • Defendant seeks to involve a third party whom C hasn’t sued
  • Defendant argues that liability for any compensation should be shared
  • Civil Liability (Contribution) Act 1978
  • Claimant may sue more than one defendant
65
Q

Concluding a claim structure

A

*Resolution or Settlement?
*Offers
- Financial
- Rehabilitation
- Part 36, Civil Procedure Rules
*Alternative Dispute Resolution
- Mediation
- RTM
*Apologies
*Costs

66
Q

Compensation - schedule of loss
Structure

A

*General Damages
- Injury
- PSLA
*Special Damages
- Past Losses – need evidence
- Future Losses
- Includes care, earnings, adaptations, accommodation
*Gratuitous Care
*Periodic Payments

67
Q

Public bodies - justiciability

A
  • Case may not be ‘justiciable’ at all
  • Preliminary question
  • Cases which concern a statutory discretion
  • If justiciable courts then consider if DUTY arises
  • Public policy considerations
  • May mean not fair, just and reasonable to impose a duty
  • Police cases
68
Q

Blanket immunity post HRA 1998

A
  • Special relationships: duty of confidentiality?
  • May be an alternative claim under HRA
  • Art 2 ECHR = must be a real and immediate threat to life of identifiable individual
  • Does ‘blanket immunity’ affect right to a fair trial?
  • Armed forces
  • Emergency services
69
Q

Vicarious liability

A
  • Classically principle applied in employment context so employer (ER) is liable to C for tort of an employee (EE)
  • Where VL applies to ER is jointly liable with EE so C can sue either or both oft them
  • If ER compensation C, ER may seek indemnity from EE
70
Q

Traditional requirements for vicarious liability

A

Must be tort committed by an EE
Commission of a tort by EE
Tort must be committed in course of EE’s employment

71
Q

Must be tort committed by an EE
VL requirement

A

Employment relationship
 Traditional approach confined VL to employment relationship
 No VL for the actions of an Independent Contractor
 Often clear that worker is an ‘employee’ (employed under a ‘contract of service’)
 Test, in cases of doubt: Ready Mixed Concrete[1968]

72
Q

Commission of a tort by EE
VL requirement

A

 Can be any but cases commonly involve
o Negligence
o Assault and battery
o Harassment

73
Q

Ready mixed test for VL

A
  • Does worker agree to provide own work and skills in return for remuneration?
  • Does worker agree to be subject to the other’s control to a sufficient degree?
  • Can ER direct what EE does (not necessarily how)?
  • Are other terms consistent with a contract of service? (inconsistent if worker must provide all own tools or take financial risk)
74
Q

Modern more flexible approach to VL

A

Extended VL outside the employment relationship

 Is it ‘fair just and reasonable’ to impose liability on defendant?
 5 policy factors identified which would be relevant to this question
 Nature of relationship between an individual and a defendant
 Manner in which individual’s conduct is related to the above relationship

75
Q

New terminology for VL

A
  • ‘EE’ = tortfeasor (TF) akin to an employee
  • ‘ER’ = vicariously liable defendant (VLD) akin to an employer
76
Q

Stages of VL w new terminlogy

A
  • Stage 1: Relationship between TF and VLD that is – or is akin to - an EE/ER relationship
  • Stage 2: Tortious act committed by TF/EE in the course of ‘employment’
77
Q

Why was new approach needed

A

Classical test doesn’t really help where EE used employment opportunity for acts of personal gratification (e.g. violence or sexual abuse)

78
Q

Factual causation test

A

Barnett ‘but for’ test

79
Q

Legal causation Wagon Mound no1 remoteness test

A

Is the type of harm suffered by the claimant a reasonably foreseeable consequence of the defendants breach of duty of care

80
Q

Where is psychiatric illness medically recognised

A

DSM-V
ICD 10

81
Q

Law Commission Report 1998 on psychiatric illness

A

‘The ordinary emotions of anxiety, fear, grief or transient shock are not conditions for which the law gives compensation’

82
Q

What is CPH

A

Consequential psychiatric harm
* Psychiatric injury that is a consequence of a physical injury
- Subject to proof of factual and legal causation in negligence under normal principles

83
Q

What is PPH

A

Pure psychiatric harm
No physical injury
Primary victim
Secondary victim
Property damage

84
Q

Preconditions for duty to arise for psychiatric harm

A
  • C must suffer from a medically recognised condition
  • Psychiatric injury or
  • Stress-induced physical condition, e.g. heart attack
  • Normal emotions of grief and distress NOT sufficient (Vernon v Bosley [1997])
  • Medical condition must have been caused by a sudden shock on the senses
85
Q

PV and SV

A

Primary and secondary victim
* If pre-conditions satisfied C must then be classified as either a PV or SV
* Classifications are mutually exclusive
* Approach to DUTY of care differs depending on classification

86
Q

PV

A

Primary victim
Participants
- Those in zone of physical danger
- Those who reasonably believe themselves to be so
- Test of duty of care for primary victims

87
Q

Test of duty of care for primary victims

A

 If personal injury reasonably foreseeable in circumstances then any duty for physical harm (i.e. Road users duty in Page) covers the psychiatric harm
 Irrelevant that psychiatric harm may not be foreseeable
 So no ‘control mechanisms’ for PV’s who are treated very favourably compared to SV’s
- C must witness with own unaided senses
 C must witness accident OR immediate aftermath

88
Q

SV

A

Secondary victims
Bystanders
Alcock test

89
Q

Alcock test

A

Sets out duty of care t4est for SV
Known as Alcock control mechanisms
 Psychiatric injury must be foreseeable in someone of normal fortitude
 Reasonably foreseeable consequence
 No longer needs to be horrific
 Objectively assessed so modifies ‘egg-shell’ skull rule
 Relationship of close love and affection between C and person actually involved

90
Q

Key points from supreme court about psychiatric harm accident

A

 Accident: refers to ‘an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means’
 Affirms Alcock & Frost but restricts class of eligible claimants
 Restrictions to duty of care owed by doctors/hospitals
 Corrects ‘unfortunate wrong turn’ in interpretation of Alcock
 Rejects notion that ‘accident’ witnessed by SV needs to be a particularly ‘horrifying event’ but reasonable foreseeability still important

91
Q

Duty of care for self-inflicted injuries

A

No duty where defendant negligently self-inflicts harm which C witnesses

92
Q

Position of duty of care for rescuers

A
  • No special class of ‘primary victim’ – normal rules apply
  • Rescuer = PV if they objectively expose themselves to physical danger or reasonably believe they are so doing
  • Otherwise rescuer = SV and subject to Alcock test
93
Q
A

Law Sem 1, Yr1 (4 decks)

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