tort law Flashcards
what is the 3 stage test (caparo) for duty of care?
1) foreseeability of harm (reasonable person)
2) relationship of sufficient proximity
3) must be fair, just and reasonable to impose a duty
what does a learner driver owe a duty of care - what is the standard? to not cause….
owe a duty of care not to cause reasonably foreseeable harm = all road users owe other road users a duty of care
what are the 5 exceptions to the rule on omissions (tort law)?
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
what are the 4 exceptions to the rule that there is no duty for failing to prevent a third party from causing harm?
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
do the ambulance owe a duty of care?
yes they owe a duty of care to respond to 999 call within a REASONABLE time
do the fire brigade owe a duty of care?
no - but if they go to a fire they owe a duty of care not to make the situation worse via a positive act
do the police owe a duty of care?
no they do not owe a duty of care to respond to emergency calls
does a coastguard owe a duty of care?
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
does a doctor owe a duty of care to a patient?
yes, because once they accept the patient for treatment then medical staff must provide care and skill expected of them.
what is the standard that medical professionals are required to inform the risks to their patients?
they are required to inform of any material risks involved in recommended treatment
what is a material risk?
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
what is the Bolam test professional standard?
standard of the ordinary reasonable man exercising and professing to have that skill
what is the standard required of a child?
standard is that of the reasonable child of the D’s age carrying out that act
as part of the Bolam test when has a D not fallen below the standard?
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
how is the standard of care altered for a person who has illness or a disability?
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.
what does likelihood of harm mean? (bolton v stone)
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
what does magnitude of harm mean? (Paris)
if any injury that may occur would be serious, greater care will be needed than if the risk was a more minor injury
what does practicality of precautions mean? (Latimer)
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
what does benefit of the D’s conduct mean? (watt)
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)
in a professional negligence case if it concludes that the practice is commonplace but it is not logical - has the D breached their duty?
yes, if the opinion doesnt withstand logical analysis then the D is in breach of duty (Bolitho)
what is factual causation?
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
when do you use the material contribution test?
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.
what is the material contribution test?
more than negligible contrition to the loss (Bennington)
operating cumulatively together
what test do you use for mesothelioma and lung cancer caused by asbestos cases? (industrial cases)
material increase in risk test
what is the material increase in risk test?
C needs to show D’s breach materially increased the risk of harm suffered by D
(only for asbestos cases)
what types of causes need to occur to apply the material contribution test?
sequential contribution causes and simultaneous cumulative causes
what type of loss can loss of chance be argued?
when the loss is pure economic loss
what is apportionment?
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.
in mestholemia cases how are negligent employers held (when there are multiple sufficient causes)?
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.
if the second event is tortious - what is the liability for the first D and the second D?
first D is liable for the original damage past the point of the 2nd event. second D is liable for any additional damage
if the second event is naturally occurring - what is the D’s liability?
D is liable for damages only up until the natural event
if the second D hasnt caused any additional damage - what is their liability?
they are not liable
what are the 3 types of novus actus events? (intervening acts)
1) acts of god
2) acts of third party
3) acts of C
what must an act of god be for it to break the chain in causation?
it must be an exceptional natural event
what must an act of a third party be for it to break the chain in causation?
it must be high unforeseeable
what must an act of a third party (medical treatment) be for it to break the chain in causation?
it must be so gross and egregious as to be unforeseeable (as it doesnt normally break the chain of causation)
what must an act of C be for it to break the chain in causation?
must be highly unreasonable (normally dealt with under contributory negligence)
for the law on remoteness is it necessary for D to foresee the exact sequence of events that led to the damage?
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
what does the thin skull rule say?
D is liable for all reasonably foreseeable harm caused by their negligence, even if V has a pre-existing condition that exacerbates the injuries.
does the thin skull rule apply to economic loss?
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.
what must the D show in order to establish a defence in consent?
-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
what is the doctrine of contributory negligence?
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
what is the rule in emergencies on C’s actions?
in emergency situations, the actions of C are judges on what a reasonable person would do in that situation
what is the rule if injuries are caused by direct consequence of participating in illegal activities?
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.
what is the defence of illegality?
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.
what are the 2 elements that need to be proved for a defence of contributory negligence?
(1) The claimant failed to take reasonable steps for their own safety; and
(2) This failure contributed to the claimant’s damage.
when is a claimant less likely to be found at fault for contributory negligence?
if they needed to act in an emergency
if they are a child
if they are a rescuer
if contributory negligence is suffered - how are damages awarded?
damages are reduced by a % which is just and equitable and the court has considerable discretion
what are special damages?
they are quantifiable losses incurred up to the time of trial, such as the financial loss
what are general damages?
cover non-quantifiable losses, including future financial losses and non-monetary aspects like depression and impact on social life
how do the courts approach the assessment of general damages for pain, suffering and loss of amenity?
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
what can dependents claim under the fatal accidents act 1976?
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)
who can claim for bereavement damages?
only a spouse, civil partner or cohabiting partner can claim this
if an employee has a history of dangerous behaviour - can the company be held liable regarding breach of duty?
yes = company has duty to take reasonable precautions to ensure safety of employees when aware of another employee’s dangerous behaviour
what should be considered when deciding if a relationship is akin to employment?
what is the close connection test for employers liability?
must be sufficient connection between employee’s wrongful act and their employment duties
do companies have a duty to select and employ competent staff?
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
what is vicarious liability?
liability of one party for a tort committed by another party
when does vicarious liability arise?
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
what happens if employer (X) lends an employee (A) to another employer/hirer (Y) - who has the duty if A commits a tort?
there is a rebuttable presumption that X will be vicariously liable for any torts committed by A.
(dual liability is possibly, but is rare)
what 3 factors should be considered when deciding if there is an employment relationship?
1) remuneration in exchange for personal service and mutuality of obligations
2) control
3) all other contractual factors consistent with an employment relationship
is personal injury a type of harm covered by private nuisance?
no - personal injury is not a type of harm covered by private nuisance
what must the courts ask when determining if there is a duty of care established for a primary victim?
whether physical injury was reasonably foreseeable as a result of D’s negligence. if yes, then normal principles for determining duty of care apply
what must psychiatric harm be in order for it to be recoverable for a primary victim/secondary victim? (what type of psychiatric harm)
must be medically recognised or a shock-induced physical condition
what is the Alcock criteria (3 questions) that must be asked to examine if a secondary victim is owed a duty of care?
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?
what must be established for proximity of relationship between C and V for secondary victims?
close ties of love and affection = rebuttable presumption
eg, parent/child, husband/wife, engaged couples
what are the 2 elements that need to be proved for occupational stress claims?
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
what is the general rule on duty of care for pure economic loss?
general rule is that no duty of care will be owed in respect of pure economic loss
what are the 3 exceptions to the general rule that there is no duty of care for pure economic loss?
pure economic loss caused by:
1) a negligent statement
2) negligently drafted will
3) negligently drafted reference
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?
1) reasonable reliance
2) assumption of responsibility
3) special relationship of trust and confidence between the parties
a nuisance must be a continuing act - but what are the 2 exceptions to this?
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)
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?
time and duration
abnormal sensitivity
malice
lack of care
excessive behaviour
what losses are recoverable in private nuisance?
physical damage to property and sensible personal discomfort (SPD) are recognised losses (and any consequential losses flowing from recognised loss)
what is the effect of planning permission on whether there is a tort of private nuisance?
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
what are the 6 defences to private nuisance?
1) 20 years’ prescription
2) statutory authority
3) consent
4) contributory negligence
5) acts of third party
6) acts of god
how is damages awarded for private nuisance>
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.
what 3 remedies are available for private nuisance?
1) injunction = primary remedy and can be full or partial
2) damages = awarded for any physical damage to property
3) abatement = self-help remedy
what is public nuisance?
acts or omissions of D that materially affect the reasonable comfort and convenience of life of a class of her majesty’s subjects.
who can be sued in public nuisance?
creator of the nuisance or any person who is responsible for the nuisance (eg, owner / occupier) may be sued
what are the elements that need to be considered for a claim in Rylands v Fletcher?
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
what must a claimant have (what type of interest) to bring a claim in Rylands v Fletcher?
claimant must have a proprietary interest in the land affected
who is the defendant in a Rylands v Fletcher claim?
D is the person who brought the ‘thing’ onto the land and/or any person who has control over the land (owner/occupier)
what losses are recoverable for a claim in Rylands v Fletcher?
property damage and consequential economic loss
what are the defences for Rylands v Fletcher?
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
does a claimant have a claim in private nuisance if the nuisance affects an abnormal sensitivity on C’s property?
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
what does occupiers’ liability act 1957 govern?
governs the duty owed by occupiers to visitors
what does the occupiers’ lability act 1984 govern?
governs duty owed by occupiers to non-visitors
what type of loss can a visitor claim for under the occupiers’ liability act 1957?
can claim for both personal injury and property damage
is a duty of care automatic for a visitor under the OLA 1957?
yes it is an automatic duty of care owed by the occupier
when is there a lower standard of care owed under the OLA 1957?
lower standard of care: owed to person entering in the exercise of a calling
when is there a higher standard of care owed under the OLA 1957?
higher standard of care: owed to children and visitors with particular vulnerabilities
if there is building work being carried out by independent contractor - is an occupier in breach?
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
if the occupier warns the C of the danger - is the occupier in breach?
no not in breach if warn C of the danger and the warning was enough to enable the visitor to be reasonably safe
what are the 3 defences available under OLA 1957 and OLA 1984?
1) volenti (consent)
2) contributory negligence
3) illegality
what type of loss can a non-visitor claim for under the OLA 1984?
can only claim for personal injury (not property damage)
what is the standard of care on an occupier under OLA 1984?
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
when will an occupier owe a duty of care under OLA 1984 to a non-visitor (there are 3 elements)?
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
under CRA 2015 using OLA 1957 can traders exclude liability for a visitor’s death or personal injury?
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
when can you exclude liability under CRA 2015 using OLA 1957?
can exclude liability for other loss (not death or personal injury) if the term or notice is fair
under UCTA 1977 using OLA 1957 can business occupiers exclude liability for non-consumer visitor’s death or personal injury?
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
when is a person entitled to damages under consumer protection act 1987?
they will be entitled to damage caused by a defect in a product
what damage is recoverable under Consumer protection act?
1) death
2) personal injury
3) loss of damage to any property (including land)
what are the 2 limitations on type of damage which a claim can be brought under the consumer protection act?
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
what must a claimant show for a product to be defective under consumer protection act?
that they generally entitled to expect
do people who repair a product owe a duty of care under consumer protection act (product liability)?
yes potentially and suppliers and distractors if they should have inspected the product
is the loss of the product itself recoverable?
no - this is Prue economic loss
what are the 2 defences available under the consumer protection act 1987 for product liability?
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
what does the law reform (miscellaneous provisions) act 1934 allow you to claim?
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]
what does the Fatal Accidents Act 1976 allow you to claim for?
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
who is a dependent under the fatal accidents act 1976?
a close blood relation and those related by marriage or who have cohabited over 2 years
what does defective mean?
its safety is not such as persons generally are entitled to expect
