Tort Law - FLK 1 Flashcards
What is negligence?
A claim where a defendant has breached a legal duty to take care, and a result of that breach, damage has been caused to the claimant.
What are the three main elements of the tort of negligence?
- D must owe C a duty of care
- D breached of duty
- Breached caused damage to C
What are the three types of harm negligence protects against?
- Personal injury
- Damage to property
- Economic loss
What are the factors of a negligence claim?
Duty of care, breach of duty, causation of damage
What is the test for duty of care?
Caparo v Dickman:
1. Is the damage foreseeable?
2. Was there a relationship of proximity between the claimant and defendant?
3. Is it just and reasonable to impose a duty of care?
What is the test for duty of care for omissions?
- D as a high degree of control over C
- D has assumed responsibility for C
- D creates a dangerous situation and fails to stop it or makes it worse
What is the standard of care (general and professional)?
General: objective - standard of reasonableness
Professional: according to degree/level of skill
What is the test for proving breach of duty?
Balance of probabilities
What is single and multiple causation?
Single: ‘but for’ test
Multiple: material contribution test
What can break the chain of causation?
Intervening acts:
- third party
- claimant’s actions
What is the test of remoteness for the claimant?
The claimant must prove that the damage was not too remote from the defendant’s breach.
What is the reasonable foreseeability test?
D is liable for damage which was reasonably foreseeable at the time when the defendant breached their duty.
What is the egg shell rule?
D is liable for the full extend of the damage even if the full extent was not reasonably foreseeable, due to some weakness in C.
What is the remedy for personal injury claims?
damages
What are the types of damages?
- General damages - resulting from the breach
- Special damages - resulting as an expense to treat breach
What are the principles that damages are subject to?
- Measure of damages
- Mitigation of loss
- The one action rule
What are the two types of compensatory damages?
- Pecuniary damages - losses which are mathematically calculable in money terms
- Non-pecuniary damages - not mathematically calculable
What is negligent misstatement?
Provides an exception to the exclusions regarding remedies for pure economic loss.
What are the possible claims for psychiatric harm?
Claims for medically recognised psychiatric illnesses.
What are primary and secondary victims to psychiatric harm?
Primary victims are actually involved in the incident
Secondary victims are not involved (e.g. bystander)
What are the requirements of the Alcock control mechanisms for secondary victims?
- Foreseeability of psychiatric harm
- Proximity of relationship
- Proximity in time and space
- Proximity of perception
What are employer’s primary liabilities?
Duty to take reasonable steps to provide:
1. Competent staff
2. Adequate materials
3. A proper system of work and supervision
4. A safe place of work
What is consent as a defence?
Voluntary assumption of risk - complete defence
Test:
1. C’s knowledge of risk
2. C’s consent
What is contributory negligence as a defence?
When C is partly to blame for the damage or its extent - partial defence
Test:
1. Carelessness on the claimant’s part
2. That carelessness has contributed to the claimant’s damage
What is illegality as a defence in tort?
Court will not help a claimant gain damaged who has been injured by doing an illegal act - complete defence.
Test:
1. Close connection
2. Public policy
What is necessity as a defence?
Justifying a course of action in response to a threat or greater harm.
What is vicarious liability?
Where the employer is held liable to a third party for the tort committed by their employee.
What is the three stage test to whether vicarious liability should apply?
- Was the tortfeasor and employee of D?
- Did the employee commit a tort?
- Was the tort committed in the court of employment?
What is occupier liability?
Occupiers of land owe a duty to people who come onto their land, visitors and trespassers.
What are the defences for occupiers liability?
contributory negligence, consent, and use of warnings.
What is product liability?
Producers of defective products owe a duty of care in negligence to the buyers and users of the products where anyone injured or caused loss may sue.
What is nuisance?
Protects the rights to use and enjoy land against interference from others.
What is private nuisance?
A tort to protect an individual in the enjoyment of their own property
What must the claimant prove for private nuisance?
- Unlawful interference with their enjoyment of land
- Interference was unreasonable
- Damage caused by the interference
What is public nuisance?
A crime but also creates a cause of action in tort. An act or omission that endangers life, health, property, or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all persons.
What are the remedies for private nuisance?
- Injunctions
- Damages
- Abatement
What are the damages for private nuisance?
- Statutory authority
- Alternative statutory remedies
- Prescription
- Coming to the nuisance
What are the remedies for public nuisance?
- Injunctions
- Damages
What are the damages for public nuisance?
- Statutory authority
- Alternative statutory remedies
What is the rule in Rylands v Fletcher?
Type of private nuisance that covers the situation where there is an escape of something dangerous in the course of a non-natural use of land
