Tort Law Flashcards
Duty of Care Test for Novel Situations
Caparo Test:
1. Reasonably foreseeable harm to C.
2. Sufficient Proximity.
3. Is it Fair, Just and Reasonable.
Is there a duty of care for omissions to act?
No - However, there are some situations which may give rise to a duty, such as:
- The duty to not make things worse.
- Duty to act if they have some power over the situation.
What is the breach of duty standard?
The “reasonable person” (objective standard)
What is the standard test for standard causation?
“But for” test
What is the test for causation where there are multiple potential defendants?
Did the defendants breach “materially contribute” to the damage.
Remoteness of Damage Test
Was the damage reasonably foreseeable?
Does a D owe a C a duty of care to not cause pure economic loss?
No - Pure economic loss may include:
- Defective Item
- Economic loss from damage to 3rd party property
Test for negligent misstatements
Did D have a special relationship and act on the advice of another, to their detriment.
Primary Victim
Actually involved in the incident i.e. they were in danger, or reasonably believed they were in danger (Physical)
Secondary Victim
- Foreseeability of Psychiatric Harm
- Proximity of Relationship
- Proximity of Time/Space
- See’s with their own unaided sense.
What is the Employers duty to provide?
- Safe Place of Work
- Safe Plant/Machinery
- Competent Staff
Consent (Defence)
C had full knowledge of the nature/extent of the risk, and willingly consented to that risk
Illegality (Defence)
That there is a close relationship between the illegal act, and the injury which was suffered.
Contributory Negligence
The C contributed towards their injuries. Set amounts include:
- Seatbelt (where no damage would have been caused otherwise) - 25%
- Seatbelt (where made damage worse) - 15%
- Seatbelt (where would have changed nothing) - 0%
Is it possible to exclude liability for death/personal injury?
No
Law Reform (Miscellaneous Provisions) Act 1934
A deceased claimant can claim for
- Pain/Suffering
- Damage to Property
- Medical and other expenses
- Loss of income up to death.
Fatal Accidents Act 1974
A claim can be brought:
- Behalf of the dependants for loss of dependency (Married/children)
- Claim for Bereavement (Wife/Husband and then parents)
- Funeral expenses
Vicarious Liability Test
- Is the employee a ‘worker’
- Did the Employee commit a tort?
- Was the tort committed during the course of his employment?
Occupiers Liability Act 1957 (Visitors)
- Suffered loss due to the state of the premises
- Who had ‘sufficient degree of control’ over the premises.
- Are they a visitor?
- Did the occupier fail to take reasonable care of the visitors safety?
Occupiers Liability Act 1984 (Trespassers)
- The occupier was aware of the danger/had reasonable grounds to believe it existed.
- The occupier knew, or had grounds to know, that the trespasser was in the vicinity.
- The occupier could be reasonably expected to offer some protection against the risk
Product Liability (Donoghue v Stephenson)
- The defendant must be the manufacturer.
- The item causing damage is a product.
- The claimant is the consumer.
- The product must reach the consumer, in the form it left the manufacturer.
Consumer Protection Act 1987
Anyone who can establish that they have suffered harm, caused by a defect in a product, may claim.
- Personal injury can be claimed.
- Personal property (over £275)
- No business property
Private Nuisance
An unlawful interference with a person’s use, or enjoyment, of the land or some right over, or in connection, with it.
Rylands v Fletcher
- D brings onto the land, for their own purposes, something which is likely to do mischief (i.e. water, cattle etc).
- It escapes.
- Which represents a non-natural use of the land.
- It causes foreseeable damage of the relevant type
Public Nuisance
An act or omission that endangers the life, health, property or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.
