tort law

Question 1

what is the 3 stage test (caparo) for duty of care?

Answer 1

1) foreseeability of harm (reasonable person)
2) relationship of sufficient proximity
3) must be fair, just and reasonable to impose a duty

Question 2

what does a learner driver owe a duty of care - what is the standard? to not cause….

Answer 2

owe a duty of care not to cause reasonably foreseeable harm = all road users owe other road users a duty of care

Question 3

what are the 5 exceptions to the rule on omissions (tort law)?

Answer 3

1) statutory duty
2) contractual duty
3) D has sufficient control over the C
4) D assumes responsibility for the C
5) D creates a risk

Question 4

what are the 4 exceptions to the rule that there is no duty for failing to prevent a third party from causing harm?

Answer 4

1) sufficient proximity between D and C
2) sufficient proximity between D and third party
3) D created the danger
4) risk was on D’s premises

Question 5

do the ambulance owe a duty of care?

Answer 5

yes they owe a duty of care to respond to 999 call within a REASONABLE time

Question 6

do the fire brigade owe a duty of care?

Answer 6

no - but if they go to a fire they owe a duty of care not to make the situation worse via a positive act

Question 7

do the police owe a duty of care?

Answer 7

no they do not owe a duty of care to respond to emergency calls

Question 8

does a coastguard owe a duty of care?

Answer 8

no, they dont owe a duty of care to rescue, but if they do attempt to rescue then they owe a duty not to make the situation worse

Question 9

does a doctor owe a duty of care to a patient?

Answer 9

yes, because once they accept the patient for treatment then medical staff must provide care and skill expected of them.

Question 10

what is the standard that medical professionals are required to inform the risks to their patients?

Answer 10

they are required to inform of any material risks involved in recommended treatment

Question 11

what is a material risk?

Answer 11

it is one that a reasonable person in the patients position would likely attach significance to, or the doctor should reasonably be aware that the particular patient would attach significance to

Question 12

what is the Bolam test professional standard?

Answer 12

standard of the ordinary reasonable man exercising and professing to have that skill

Question 13

what is the standard required of a child?

Answer 13

standard is that of the reasonable child of the D’s age carrying out that act

Question 14

as part of the Bolam test when has a D not fallen below the standard?

Answer 14

a professional is not guilty of negligence if they acted in accordance with a practice accepted as proper by a responsible body of professional opinion. not necessary for technique to be widely adopted, as long as a reasonable body supports it

Question 15

how is the standard of care altered for a person who has illness or a disability?

Answer 15

if they were aware of the impairment then they are held to the reasonable man test

if not aware then standard is of a reasonable competent …. who is unaware that he is suffering a conduction that impairs him.

Question 16

what does likelihood of harm mean? (bolton v stone)

Answer 16

the more likely someone is to get injured the more likely there will be a breach

eg, reasonable person wouldn’t have guarded against such a small risk

Question 17

what does magnitude of harm mean? (Paris)

Answer 17

if any injury that may occur would be serious, greater care will be needed than if the risk was a more minor injury

Question 18

what does practicality of precautions mean? (Latimer)

Answer 18

necessary to ascertain how easily the risk could have been avoided and to balance the cost and practicality of these precautions against the severity of the risk. D need only act reasonably = if it is unreasonable to require them to take necessary precautions, even against clearly foreseeable risk then the court will not impose a duty

Question 19

what does benefit of the D’s conduct mean? (watt)

Answer 19

the value of society of the D’s activity is a factor the courts consider. if D has taken a risk with the aim of preserving or protecting life, limb or property then this may be justified.

(potential benefits to safety are weighed against any possible damage that may result if the risk is taken)

Question 20

in a professional negligence case if it concludes that the practice is commonplace but it is not logical - has the D breached their duty?

Answer 20

yes, if the opinion doesnt withstand logical analysis then the D is in breach of duty (Bolitho)

Question 21

what is factual causation?

Answer 21

but for test = on the balance of probabilities, but for the D’s breach of duty would the C have suffered their loss at that time and in that way

Question 22

when do you use the material contribution test?

Answer 22

cumulative causes = when there is more than one cause of the C’s loss and the causes were acting together cumulatively to cause the loss.

the exact contribution of each factor cannot be definitely isolated.

Question 23

what is the material contribution test?

Answer 23

more than negligible contrition to the loss (Bennington)

operating cumulatively together

Question 24

what test do you use for mesothelioma and lung cancer caused by asbestos cases? (industrial cases)

Answer 24

material increase in risk test

Question 25

what is the material increase in risk test?

Answer 25

C needs to show D's breach materially increased the risk of harm suffered by D (only for asbestos cases)

Question 26

what types of causes need to occur to apply the material contribution test?

Answer 26

sequential contribution causes and simultaneous cumulative causes

Question 27

what type of loss can loss of chance be argued?

Answer 27

when the loss is pure economic loss

Question 28

what is apportionment?

Answer 28

when there is multiple tortious factors that have caused the loss, it divides liability between the Ds in a way that produces a practical result, providing compensation to C whilst recognising the respective fault go the Ds.

Question 29

in mestholemia cases how are negligent employers held (when there are multiple sufficient causes)?

Answer 29

they are jointly and severally liable - any or all of the negligent employers who exploded C to asbestos will be liable for C for whole sum of damages.

Question 30

if the second event is tortious - what is the liability for the first D and the second D?

Answer 30

first D is liable for the original damage past the point of the 2nd event. second D is liable for any additional damage

Question 31

if the second event is naturally occurring - what is the D's liability?

Answer 31

D is liable for damages only up until the natural event

Question 32

if the second D hasnt caused any additional damage - what is their liability?

Answer 32

they are not liable

Question 33

what are the 3 types of novus actus events? (intervening acts)

Answer 33

1) acts of god 2) acts of third party 3) acts of C

Question 34

what must an act of god be for it to break the chain in causation?

Answer 34

it must be an exceptional natural event

Question 35

what must an act of a third party be for it to break the chain in causation?

Answer 35

it must be high unforeseeable

Question 36

what must an act of a third party (medical treatment) be for it to break the chain in causation?

Answer 36

it must be so gross and egregious as to be unforeseeable (as it doesnt normally break the chain of causation)

Question 37

what must an act of C be for it to break the chain in causation?

Answer 37

must be highly unreasonable (normally dealt with under contributory negligence)

Question 38

for the law on remoteness is it necessary for D to foresee the exact sequence of events that led to the damage?

Answer 38

no it is not necessary, instead once the type of damage is reasonably foreseeable then it is not necessary for D to forsee the exact sequence of events that led to the damage

Question 39

what does the thin skull rule say?

Answer 39

D is liable for all reasonably foreseeable harm caused by their negligence, even if V has a pre-existing condition that exacerbates the injuries.

Question 40

does the thin skull rule apply to economic loss?

Answer 40

yes it does, D must take the C as they find them, including their financial vulnerabilities. D is liable for the full extent of C's losses, even if those losses are greater due to C's financial position.

Question 41

what must the D show in order to establish a defence in consent?

Answer 41

-had capacity to give valid consent to the risks - had full knowledge of the nature and extent of the risks (subjective) - agreed to the risk of injury (subjective); and - agreed voluntary

Question 42

what is the doctrine of contributory negligence?

Answer 42

if C fails to take reasonable steps for their own safety and this failure contributes to the damage they suffer, their damages can be reduced accordingly

Question 43

what is the rule in emergencies on C's actions?

Answer 43

in emergency situations, the actions of C are judges on what a reasonable person would do in that situation

Question 44

what is the rule if injuries are caused by direct consequence of participating in illegal activities?

Answer 44

when injuries are a direct consequence of participating in illegal activities, claims for damages are typically barred to avoid inconsistency in the law and harm to the integrity of the legal system.

Question 45

what is the defence of illegality?

Answer 45

The defence of illegality (ex turpi causa) is applied to prevent the claimant from recovering damages that relate to their own illegal conduct and not the defendant's negligence.

Question 46

what are the 2 elements that need to be proved for a defence of contributory negligence?

Answer 46

(1) The claimant failed to take reasonable steps for their own safety; and (2) This failure contributed to the claimant's damage.

Question 47

when is a claimant less likely to be found at fault for contributory negligence?

Answer 47

if they needed to act in an emergency if they are a child if they are a rescuer

Question 48

if contributory negligence is suffered - how are damages awarded?

Answer 48

damages are reduced by a % which is just and equitable and the court has considerable discretion

Question 49

what are special damages?

Answer 49

they are quantifiable losses incurred up to the time of trial, such as the financial loss

Question 50

what are general damages?

Answer 50

cover non-quantifiable losses, including future financial losses and non-monetary aspects like depression and impact on social life

Question 51

how do the courts approach the assessment of general damages for pain, suffering and loss of amenity?

Answer 51

court considers established case law to determine a single lump sum that accounts for both the physical pain endured and broader impact on C's lifestyle

Question 52

what can dependents claim under the fatal accidents act 1976?

Answer 52

dependents can claim for losses suffered due to the death, including loss of financial support and funeral expenses (if they were covered by the dependent)

Question 53

who can claim for bereavement damages?

Answer 53

only a spouse, civil partner or cohabiting partner can claim this

Question 54

if an employee has a history of dangerous behaviour - can the company be held liable regarding breach of duty?

Answer 54

yes = company has duty to take reasonable precautions to ensure safety of employees when aware of another employee's dangerous behaviour

Question 55

what should be considered when deciding if a relationship is akin to employment?

Question 56

what is the close connection test for employers liability?

Answer 56

must be sufficient connection between employee's wrongful act and their employment duties

Question 57

do companies have a duty to select and employ competent staff?

Answer 57

yes they do, when company is aware of history of negligence and employed them then this constitutes a breach of their duty to ensure safety of their employees by employing competent staff

Question 58

what is vicarious liability?

Answer 58

liability of one party for a tort committed by another party

Question 59

when does vicarious liability arise?

Answer 59

tort has been committed by A A is an employee of B, or in a relationship akin to employment; and tort was committed in the course of that employment need to be sufficiently close connection between wrongful act and employment

Question 60

what happens if employer (X) lends an employee (A) to another employer/hirer (Y) - who has the duty if A commits a tort?

Answer 60

there is a rebuttable presumption that X will be vicariously liable for any torts committed by A. (dual liability is possibly, but is rare)

Question 61

what 3 factors should be considered when deciding if there is an employment relationship?

Answer 61

1) remuneration in exchange for personal service and mutuality of obligations 2) control 3) all other contractual factors consistent with an employment relationship

Question 62

is personal injury a type of harm covered by private nuisance?

Answer 62

no - personal injury is not a type of harm covered by private nuisance

Question 63

what must the courts ask when determining if there is a duty of care established for a primary victim?

Answer 63

whether physical injury was reasonably foreseeable as a result of D's negligence. if yes, then normal principles for determining duty of care apply

Question 64

what must psychiatric harm be in order for it to be recoverable for a primary victim/secondary victim? (what type of psychiatric harm)

Answer 64

must be medically recognised or a shock-induced physical condition

Question 65

what is the Alcock criteria (3 questions) that must be asked to examine if a secondary victim is owed a duty of care?

Answer 65

1) was psychiatric harm reasonably foreseeable in a person of ordinary fortitude? 2) was there proximity of relationship between C and V? 3) was there proximity in time and space to the accident or its immediate aftermath?

Question 66

what must be established for proximity of relationship between C and V for secondary victims?

Answer 66

close ties of love and affection = rebuttable presumption eg, parent/child, husband/wife, engaged couples

Question 67

what are the 2 elements that need to be proved for occupational stress claims?

Answer 67

1) whether psychiatric harm was reasonably foreseeable to C 2) foreseeability depends upon relationship between characteristics of C and requirements made of them by the employer; including: a) nature and extent of work being undertaken b) signs of stress c) size and scope of business and availability of resources

Question 68

what is the general rule on duty of care for pure economic loss?

Answer 68

general rule is that no duty of care will be owed in respect of pure economic loss

Question 69

what are the 3 exceptions to the general rule that there is no duty of care for pure economic loss?

Answer 69

pure economic loss caused by: 1) a negligent statement 2) negligently drafted will 3) negligently drafted reference

Question 70

what are the 3 tests outlined in Hedley Byrne v Heller criteria that a C needs to establish for pure economic loss caused by negligent statement?

Answer 70

1) reasonable reliance 2) assumption of responsibility 3) special relationship of trust and confidence between the parties

Question 71

a nuisance must be a continuing act - but what are the 2 exceptions to this?

Answer 71

1) underlying state of affairs 2) state of affairs creating risk of escape of physically dangerous or damaging material eg, give rise to risk of escape of psychically dangerous or damaging material (such as water, gas or fire)

Question 72

what factors might the court consider when deciding whether D's use of land was unreasonable where C's loss is physical damage to property?

Answer 72

time and duration abnormal sensitivity malice lack of care excessive behaviour

Question 73

what losses are recoverable in private nuisance?

Answer 73

physical damage to property and sensible personal discomfort (SPD) are recognised losses (and any consequential losses flowing from recognised loss)

Question 74

what is the effect of planning permission on whether there is a tort of private nuisance?

Answer 74

planning permission doesnt authorise the nuisance (doesnt make the D's use of land reasonable). courts use the planning permission to help them decide whether the use of land is reasonable

Question 75

what are the 6 defences to private nuisance?

Answer 75

1) 20 years' prescription 2) statutory authority 3) consent 4) contributory negligence 5) acts of third party 6) acts of god

Question 76

how is damages awarded for private nuisance>

Answer 76

damages are awarded for any physical damage to property. they may be awarded in lieu of an injunction where the loss is SPD(sensible personal discomfort) - often where public interest outweighs C's interests.

Question 77

what 3 remedies are available for private nuisance?

Answer 77

1) injunction = primary remedy and can be full or partial 2) damages = awarded for any physical damage to property 3) abatement = self-help remedy

Question 78

what is public nuisance?

Answer 78

acts or omissions of D that materially affect the reasonable comfort and convenience of life of a class of her majesty's subjects.

Question 79

who can be sued in public nuisance?

Answer 79

creator of the nuisance or any person who is responsible for the nuisance (eg, owner / occupier) may be sued

Question 80

what are the elements that need to be considered for a claim in Rylands v Fletcher?

Answer 80

brought onto land; anything likely to do mischief if it escapes; the escape caused foreseeable harm; and there is non-natural use of the land

Question 81

what must a claimant have (what type of interest) to bring a claim in Rylands v Fletcher?

Answer 81

claimant must have a proprietary interest in the land affected

Question 82

who is the defendant in a Rylands v Fletcher claim?

Answer 82

D is the person who brought the 'thing' onto the land and/or any person who has control over the land (owner/occupier)

Question 83

what losses are recoverable for a claim in Rylands v Fletcher?

Answer 83

property damage and consequential economic loss

Question 84

what are the defences for Rylands v Fletcher?

Answer 84

same as public nuisance (contributory negligence; consent; statutory authority; acts of god; acts of third party) with the addition of common benefit and act/default of the claimant

Question 85

does a claimant have a claim in private nuisance if the nuisance affects an abnormal sensitivity on C's property?

Answer 85

no - abnormal sensitivity means if C's property or activities are abnormally sensitive, and such sensitivity is the cause of damage then the nuisance claim is likely to fail. private nuisance protects only ordinary use and enjoyment of the land

Question 86

what does occupiers' liability act 1957 govern?

Answer 86

governs the duty owed by occupiers to visitors

Question 87

what does the occupiers' lability act 1984 govern?

Answer 87

governs duty owed by occupiers to non-visitors

Question 88

what type of loss can a visitor claim for under the occupiers' liability act 1957?

Answer 88

can claim for both personal injury and property damage

Question 89

is a duty of care automatic for a visitor under the OLA 1957?

Answer 89

yes it is an automatic duty of care owed by the occupier

Question 90

when is there a lower standard of care owed under the OLA 1957?

Answer 90

lower standard of care: owed to person entering in the exercise of a calling

Question 91

when is there a higher standard of care owed under the OLA 1957?

Answer 91

higher standard of care: owed to children and visitors with particular vulnerabilities

Question 92

if there is building work being carried out by independent contractor - is an occupier in breach?

Answer 92

no they are not in breach if there is building, construction, repair or revocation is being carried out by independent contractor, they acted reasonably in entrusting the work to the independent contractor

Question 93

if the occupier warns the C of the danger - is the occupier in breach?

Answer 93

no not in breach if warn C of the danger and the warning was enough to enable the visitor to be reasonably safe

Question 94

what are the 3 defences available under OLA 1957 and OLA 1984?

Answer 94

1) volenti (consent) 2) contributory negligence 3) illegality

Question 95

what type of loss can a non-visitor claim for under the OLA 1984?

Answer 95

can only claim for personal injury (not property damage)

Question 96

what is the standard of care on an occupier under OLA 1984?

Answer 96

standard of care expected of an occupier is to take reasonable care to see that the entrant doesnt suffer injury on the premises by reason of the danger concerned

Question 97

when will an occupier owe a duty of care under OLA 1984 to a non-visitor (there are 3 elements)?

Answer 97

1) aware of danger or have reasonable grounds to believe it exists 2) know or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or may come into the vicinity of the danger; and 3) risk is one against which, in all circumstances, they may reasonably be executed to offer the other some protection

Question 98

under CRA 2015 using OLA 1957 can traders exclude liability for a visitor's death or personal injury?

Answer 98

no, you cannot exclude liability for a consumer visitor's death or personal injury BUT you may exclude liability for other loss if the term or notice is fair

Question 99

when can you exclude liability under CRA 2015 using OLA 1957?

Answer 99

can exclude liability for other loss (not death or personal injury) if the term or notice is fair

Question 100

under UCTA 1977 using OLA 1957 can business occupiers exclude liability for non-consumer visitor's death or personal injury?

Answer 100

no you cannot exclude liability for non-consumer visitor's death or personal injury but may exclude liability for other loss if fair and reasonable to do so

Question 101

when is a person entitled to damages under consumer protection act 1987?

Answer 101

they will be entitled to damage caused by a defect in a product

Question 102

what damage is recoverable under Consumer protection act?

Answer 102

1) death 2) personal injury 3) loss of damage to any property (including land)

Question 103

what are the 2 limitations on type of damage which a claim can be brought under the consumer protection act?

Answer 103

1) no claim can be brought if damage to property is under £275 2) property must be intended for private use / occupation / consumption and indeed by the person suffering loss or damage mainly for own private use / occupation / consumption

Question 104

what must a claimant show for a product to be defective under consumer protection act?

Answer 104

that they generally entitled to expect

Question 105

do people who repair a product owe a duty of care under consumer protection act (product liability)?

Answer 105

yes potentially and suppliers and distractors if they should have inspected the product

Question 106

is the loss of the product itself recoverable?

Answer 106

no - this is Prue economic loss

Question 107

what are the 2 defences available under the consumer protection act 1987 for product liability?

Answer 107

1) defect didn't exist in the product at the relevant time; 2) state of scientific and technical knowledge at relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control

Question 108

what does the law reform (miscellaneous provisions) act 1934 allow you to claim?

Answer 108

allows the estate of the deceased to claim for any pre-death losses only (both pecuniary and non-pecuniary) [no claim for the actual death]

Question 109

what does the Fatal Accidents Act 1976 allow you to claim for?

Answer 109

any dependent of the deceased can claim for any losses suffered as result of the death. - future losses can also claim for funeral expenses and/or bereavement award

Question 110

who is a dependent under the fatal accidents act 1976?

Answer 110

a close blood relation and those related by marriage or who have cohabited over 2 years

Question 111

what does defective mean?

Answer 111

its safety is not such as persons generally are entitled to expect