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Law > Tort Law > Flashcards

Tort Law Flashcards

1
Q

What aspect of law does tort fall under?

A

Civil Law

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2
Q

Who is a tort claim usually between?

A

Two individuals or an individual and a business

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3
Q

What is a tort claim used for?

A

To claim compensation of an injury or damage to property.

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4
Q

Who has the responsibility of proving the burden of the case?

A

The claimant

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5
Q

What is the standard of proof?

A

The balance of probabilities

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6
Q

Is the state usually involved in tort claims?

A

No they’re not.

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7
Q

What is negligence?

A

When a duty of care had been breached which leads to the claimants injury or damage of property.

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8
Q

What three elements need to be proved before negligence is established?

A
  • Duty of care being owed to claimant
  • Duty of care being broken as a result of the defendant
  • Broken duty of care caused the loss being complained about
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9
Q

What does the neighbour principle state?

A
  • Responsible care must be taken to avoid acts which are reasonably foreseeable to injure your neighbour
  • Your neighbour is anyone who can be directly affected by an act
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10
Q

What are the three elements of the Caparo test and what do they help to find?

A

The Caparo test needs to be proven in order to find the defendant liable

  • Foreseeability - reasonably foreseeable that a person in claimants position would be injured
  • Proximity - There was a sufficient closeness between the parties
  • Reasonableness - It is fair to impose liability of defendant
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11
Q

What are the four variations of the reasonable man?

A
  • Ordinary person doing a task
  • The learner
  • The professional
  • Young people
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12
Q

What are the risk factors that should be considered when deciding whether standard of care should be lowered or raised?

A
  • Special characteristics of the claimant
  • Size of the risk
  • Have precautions been taken
  • Benefits of taking the risk
  • Were risks known about at the time of the accident
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13
Q

What are the two defences to a negligence claim?

A
  • Contributory negligence - claimant has contributed to their injuries
  • Consent - claimants has agreed to the risk of harm
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14
Q

What is a strict liability?

A
  • Do not require fault to be proven

- Cheaper and simpler for claimant

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15
Q

When is strict liability used?

A
  • To stop unreasonable use of neighbouring land
  • Damage to land caused by material escaping from neighbouring land
  • Employee committing tort while in employment
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16
Q

What are the two types of damages that can be awarded to a claimant?

A
  • Special damages - cover claims that can be specifically calculated (cover period up to trial)
  • General damages - Include the pain and suffering of the claimant and future loss of earnings (cover period after the trial)
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17
Q

What is the ‘but for’ test?

A

If the following statement applies:

Defendant will be liable if claimants damage would not have occurred ‘but for’ defendants negligence.

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18
Q

What are the two types of damage that have to be proved to find the defendant liable?

A
  • Causation - idea that breach of duty caused the damage/injury
  • Remoteness of damage - damage caused was reasonably foreseeable
19
Q

What is the ‘eggshell skull rule’?

A
  • When the claimant had a pre existing condition and the incident becomes much more serious due to this.
  • Defendant is liable for all the consequences
20
Q

What does ‘Res ipsa loquitur’ mean?

A

The thing speaks for itself

21
Q

When claiming res ipsa loquitur what does the claimant have to prove?

A
  • Defendant was in control of the situation, which caused injury
  • Accident wouldn’t have happened if someone wasn’t negligent
  • No other explanation for the injury
22
Q

What needs to be proved to use consent as a defence?

A
  • Knowledge of risks involved
  • Claimant had free choice
  • Acceptance of risks
23
Q

Where can consent not be used as a defence?

A

Traffic accidents

24
Q

What is the difference between the occupiers liability acts 1957 and 1984?

A
  • The occupiers liability act 1957 - deals with lawful visitors
  • The occupiers liability Act 1984 - deals with trespassers
25
Q

What are the three types of lawful visitors?

A
  • Adults
  • Children
  • workmen
26
Q

What are the four types of adult visitors?

A
  • Invitees - people who have been invited to enter
  • licensees - people with express/implied permission to be on the land for a period of time
  • Contractual permission - they are allowed on the land with a particular purpose
  • Statutory right of entrance - people with statutory right to enter e.g. police
27
Q

For children, what is the standard of care measured by?

A

The age of the child

28
Q

What should occupiers do to prevent risk to children?

A

The occupier should guard against any allurement or attraction that might compel a child into a dangerous zone.

29
Q

Is the responsibility of children higher or lower than adults?

A

It is higher

30
Q

What is a defence an occupier can use against a tradesman?

A
  • If a tradesman is injured by something relating to their trade then occupier doesn’t owe a duty of care
  • Tradesman should already know about the risks of their own trades
31
Q

What happens if a visitor is injured by the work of a private contractor?

A

The occupier may be able to pass the claim to the contractor as they could use this as a defence, if certain requirements are met

  • Must be reasonable for the occupier to have given the work to the independent contractor (specialist work)
  • Contractor must be competent to carry out task
  • Occupier must check the work
32
Q

What are the defences to an occupiers liability claim?

A
  • Contributory negligence - the claimant is partly responsible for the injuries caused this would reduce the amount of compensation
  • Consent - claimant has agreed to the potential risks, defendant would no longer be liable
  • Warning notices - can be an oral or written warning and is a complete defence
33
Q

What does the claimant receive if the occupier is liable?

A

Damages

34
Q

What does the occupiers liability act 1984 cover?

A
  • The act provides compensation for personal injuries only

- Damage to property is not involved as it reflects that lawful visitors are owed higher duty of care

35
Q

What three points need to be proved for the occupier to owe a trespasser a duty of care?

A
  • Occupier is aware of the danger/ has reasonable grounds to believe it exists
  • Reasonable to believe trespasser was in the vicinity of the danger
  • Occupier is expected to offer protection against this particular risk
36
Q

What elements are taken into account in a case between a trespasser and an occupier?

A
  • Degree of danger
  • Practicality of taking precautions
  • age of the trespasser
37
Q

When will the occupier not be liable for a trespasser?

A
  • If they had no reason to suspect the presence of a trespasser
  • If they were not aware of the danger
38
Q

What remedy does a trespasser get if their claim succeeds?

A

Damages for personal injury

39
Q

What are the two types of loss?

A
  • Pecuniary loss - can be easily calculated in money terms

- Non-pecuniary loss - damages that are not wholly money based

40
Q

What is a lump sum settlement and what are the disadvantages of it?

A
  • Damages are paid in lump sum so claimant cannot go back to the court if they exhaust the money.
  • DISADVANTAGE - claimants condition can worsen this would be unfair to the claimant as they would be underpaid. Also the claimants condition can better rapidly which would be unfair to the defendant as they paid higher than was needed.
41
Q

What are structured settlements?

A
  • When all/part of the damages are paid in periodical payments.
  • They parties agree if the initials of payment are for life or for a specific period
  • Amount can be reassessed at intervals
  • Ensures claimant is getting the right amount for their treatment and the defendant is not overpaying
42
Q

What is mitigation of loss?

A

When a claimant is entitled to be compensated for their loss but must try to keep the expenses of their treatment to s reasonable level

43
Q

What is an injunction and what happens if someone fails to follow it?

A
  • It is an order of the court to stop doing something

- Failure to follow an injunction could lead to fines or imprisonment

44
Q

What are the types of injunction?

A
  • Perpetual injunction - ordered as a final order e.g. ensure someone stops being a nuisance to their neighbours
  • Mandatory injunction - orders a party to carry out a certain action

Law (3 decks)

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