Tort Law Flashcards
Action
a claimant brings an action (or sues)
aggravated damages
damages given to the claimant in excess of exact compensation, because the defendant behaved badly
amenity damage
not physical damage, but nuisance that interferes with enjoyment of property (smells, noises)
antitrust law
US: competition law (mededingingsrecht)
assault
the defendant causes the claimant to believe he is going to commit a battery
assumption of a duty
although there is no legal duty of care, the defendant voluntarily assumed a duty of care and thus becomes liable if he is negligent
assumption of the risk
defence in the US that the plaintiff had accepted and consented to the risk of injury
award
damages are awarded to the claimant
balance of probabilities
standard of proof in UK civil cases.
battery
interfering with a person. There must be some sort of contact, but injury is not necessary
breach of a duty of care
failing to perform a duty of care
breach of confidence
UK law imposes a duty of confidence on a person that receives confidential information.
break the chain of causation
another action breaks the chain of causation between the act and the harm suffered
burden of proof
obligation to prove facts in court. It is usually on the claimant but can shift to the other party, for instance in the case of res ipsa loquitur
but for rule
rule of causation. The claimant must show he would not have suffered the injury but for the acts of the defendant
causation
a link between the act and the damage
chattel
personal property (rather than real property)
chose in action
a personal right that can be enforced as if it were property. It is a thing recoverable by a lawsuit rather than a thing in actual possession, for instance damages if a contract is breached
comparative negligence
US term. the negligence of both parties is compared and the damages will be calculated pro rata (like 6:101 BW)
compensatory damages
an amount awarded to the claimant to recompense his damage suffered
consumer protection
tort law protects customers against defective products that have caused damage
contemptuous damages
an insignificant amount is awarded when the claimant has won the case but the action had little merit
contributory negligence
defence: an injured party failed to take reasonable care of himself, thus contributing to his own injury.
UK: the amount of damages recoverable will be diminished
US: (some states) a succesful defence will totally defeat a plaintiff’s claim
conversion
Tort of conversion. It is a voluntary act by one person inconsistent with the ownership rights of another
course of employment
the employee was doing his job at the time the tort was committed
damages
financial compensation in tort law, that will put the claimant back into the position where he was in before the tort was committed
defamation
tort of defamation. the claimant’s reputation has been damaged by a published, defamatory statement
defamatory statement
a statement which has lowered the claimant’s reputation in the eyes of right-thinking people
defences to defamation
- truth
- honest opinion
- publication on a matter of public interest
- absolute privilege (statement made in court)
- qualified privilege (statement in academic or scientific journal or a legal/moral/social duty to make the statement)
- unintentional defamation
defendant
the one accused of committing a tort. Also called tortfeasor
disclaimer
notice given that legal responsibility will not be accepted
discrimination torts
torts laid down in statute regarding sexual, racial, religious and disability discrimination
duty of care
a duty binding on one party to avoid acts or omissions, which could reasonably be foreseen as likely to injure the other party (zorgplicht)
duty to mitigate
where a party has been harmed, he is under a duty to ensure that his losses are no greater than strictly necessary (schadebeperkingsplicht)
economic torts
intentionally inflicting economic loss on another. Includes:
- deceit
- malicious falsehood
- injurious falsehood
- passing-off
- interference with contract
- intimidation
- conspiracy
Exemplary damages/punitive damages
an amount awarded well in excess of straightforward compensation to punish the defendant
false imprisonment
the defendant deprives the claimant of his liberty
fraudulent misrepresentation
the maker of the statement either knows the statement is not true, or is reckless as to whether it is true
goods
personal property but not a chose in action, money or securities
harassment
discriminatory conduct regarding a person’s gender, race or religion. An employer can be held vicariously liable for harrassment by employees, unless he has taken all reasonable precautions
immediate aftermath
when a claimant has nervous shock, he may not have witnessed the event itself but he has seen the consequences of the event soon afterwards
incorporeal chattels
intangible personal property of value, like a grant of patent
independent contractor
works under a contract for services (zzp)
injunction
order of the court compelling the defendant to (not) do something:
- prohibitory: forbidden to do something
- mandatory: direct performance of a positive act
- interim/interlocutory: before the end of the trial (vovo)
- final/permanent/perpetual: at the end of a trial
intangible property
personal property that can’t be seen or touched, like a patent or copyright
joint and several liability
joint: more than one person is liable
several: each person in a group is individually liable for the full amount
law of obligations
contractual obligations, obligations in tort and restitution in the case of unjustly enrichment
legal person
artificial construct
libel
defamatory statements in a permanent form, like written or filmed statements
limitation period
a claim must be brought within a fixed period of time
loss of amenity
damages are awarded not for the suffering but also for loss of amenity. For instance: the loss of a hand is a fixed damage, but it will increase if it was a piano player
lump sum
damages in the form of one final payment. There might be a discount rate if the lump sum also comprises future losses as the lump sum may earn interest in the meantime
menacing
some US states use this term instead of assault (+ battery)
natural person
human being
negligence
more than mere carelessness, but a breach of a duty of care which causes damage
negligent act
pure financial loss caused by a negligent act rather than a negligent statement is not actionable
negligent misstatement
a false statement made negligently (sometimes breaking a duty of care)
neighbour principle
important for determining if a defendant owed a duty of care in the event of the tort of negligence. Your neighbour is someone who would be closely and directly affected by your acts, thus you have to take reasonable care to avoid acts or omissions that could harm him.
nervous shock
psychiatric harm
nominal damages
awarded when claimant was successful but he suffered very little damage
non-pecuniary loss
loss of enjoyment in life due to pain and suffering
novus actus interveniens
an intervening event breaking the chain of causation
nuisance
tort. infringement of the claimant’s use or enjoyment of his land
objective test
test for a breach of duty in the tort of negligence. did the defendant act as a reasonable person?
occupier
a person that controls premises and owes a duty of care to all visitors, even if they are not invited
pecuniary loss
economic or financial loss
personal property
property other than real property, such as goods and chattels
physical damage
actual harm, as opposed to amenity damage (preventing enjoyment)
premises
land and buildings/structures on it
private nuisance
a defendant has interfered in an unreasonable way with an individual’s use or enjoyment of land
proximity
is a factor in establishing a duty of care. there must be a sufficiently close relationship between the claimant and the defendant that results in the claimant being closely and directly affected by the defendant’s wrongdoing
public nuisance
harm done to the public at large, like a community. To bring an action, an individual must show he suffered special damage
publish
tort of defamation: a defamatory statement must be published, so brought to the attention of a third party
quasi-contractual
there is no contract between the parties but their relationship resembles a contractual one
real chattel
an interest in land less than a leasehold
real property
land and structures attached to it
reasonable care
whether the defendant took reasonable care to prevent harm to the claimant is judged on the facts of the case
reasonable foreseeability
in a negligence claim, one factor that must be taken into account in establishing a duty of care is whether the conduct that injured the claimant could be reasonably foreseen by the defendant as having that effect.
reasonable person
objective test for establishing a breach of a duty of care in the tort of negligence. How would a reasonable person have acted in this situation?
reckless
a misrepresentation is made recklessly if the maker didn’t care if the statement was true or not
remoteness
if the damage could not have been reasonably foreseen, it’s too remote and the defendant is not liable for it
res ipsa loquitur
the facts speak for themselves, it would be hard to explain how the claimant got injured unless the defendant was negligent. This shifts the burden of proof: the defendant must show that his negligence did not cause the injury
respondeat superior
US: an employer is liable for actions by his employees in the course of employment (6:170 BW)
Rylands v Fletcher
a person can be held strictly liable if he has brought onto his land anything that could cause ‘mischief’ to a neighbour were it to escape
Slander
oral defamatory statement
special damage
tort of public nuisance: one individual suffered special damage
special relationship
there may be liability for a negligent misstatement if the nature of the relationship between the claimant and the defendant is such that the defendant could expect the claimant to rely on the statement.
state of the art defence
product liability. The defendant argues that he could not possibly have know that the product was defective given the state of scientific knowledge at the time
statute barred
a claim has to be brought within a fixed period or time or the court cannot hear it
statutory duties of care
duty of care found in statute law
statutory nuisances
nuisances found in statute law, like environmental nuisance
statutory product liability
strict liability for defective products causing damage to consumers. You need damage and proof that the product caused the damage
strict liability
the defendant acted neither negligently nor intentionally, ie in product liability
structured settlement
damages awarded in the form of a lump sum, followed by periodic payments
tangible property
either real or personal property (roerende goederen)
thin skull rule
liable for the full extent of the injury, tortfeasor takes the victim as he finds him
tort
a civil wrong resulting from a breach of a legal duty
tortfeasor
the defendant in a tort case
tortious
adjective
tort of invasion of privacy
not in UK, only in US. 4 types:
- appropriation (unauthorised use of a picture or name)
- intrusion
- public disclosure of private facts
- false light
trademark
any sign that distinguishes goods of services from one undertaking from those of another
trespass to chattels
intentional interference with a chattel in the posession of the claimant
trespass to land
intentional interference with another’s peaceful possession of his land
trespass to the person
intentional interference with the person
unfair competition
violation of accepted fair trade practices
vicarious liability
employer is liable for employee’s torts committed in the course of employment
volenti non fit iniuria
a person who has consented to taking the risk of injury has no claim. this defence is now limited, ie employers can’t use it
