Tort law: General and negligence/duty of care

Question 1

What is a tort?

Answer 1

A civil wrong/wrongful act against an individual or his property which gives rise to a civil claim. The motive of the defendant is generally irrelevant. (eg tort of recklessness, tort of defamation, tort of nuisance). This can also amount to a crime.

Question 2

Claimant vs defendant

Answer 2

The individual who was affected by the wrong (claimant) takes legal action against the wrongdoer (defendant). If the defendant is found liable, the court will award the claimant compensation or an injunction.

Question 3

What’s an injunction?

Answer 3

Forbidding future wrongdoings. Compels a party to do or refrain from specific acts. (Einstweilige Verfügung)

Question 4

What is a tort claim?

Answer 4

A private matter between parties, so it could be settled before it reaches court. This is often the preferred tactic of resolution.

Question 5

What were the two earliest torts?

Answer 5

‘Trespass to land’, liability of invading another’s land. Indirect interference with another’s land was later called tort of nuisance.

Trespass to the person, which was deliberate touching of another.

Question 6

What is the only ‘general tort’ based on a conduct?

Answer 6

Negligence

Question 7

What are strict liability torts?

Answer 7

Liability will be imposed regardless of whether there is fault.

Question 8

Intentional vs unintentional conduct

Answer 8

In unintentional conduct the defendant is liable regardless of intention.

Question 9

What can torts be classified by?

Give the 4 categories

Answer 9

By the type of loss the claimant has suffered.

• Economic loss: The defendant’s conduct affected the claimant’s financial dealings. Pure economic loss receives least protection from tort law. (There can be no liability in negligence for pure economic loss) The claimant will be more successful if the defendant acted deliberately to cause financial loss. Negligence will not often prove liability.
• Physical damage to the claimant himself or his property: Physical damage is more widely protected. intentional Almost always proves liability through tort of trespass to the person. Negligence is usually enough to prove liability.
• Interference with the enjoyment of land (eg through pollution). The tort of nuisance allows for even less than negligence to prove liability.
• Insult to the reputation of the claimant. The highest protection is that of the claimant’s reputation. Liability can be proven regardless of intentionality/negligence/ unreasonableness.

Question 10

When are penal awards made? (2)

Answer 10

• When the tort was committed in an oppressive way by government officials, such as unlawful arrest. the purpose of it is to deter the state from violating civil liberties.
• When the defendant’s conduct has made a profit that is bigger than the compensation payable to the claimant.

Question 11

What is corrective justice?

Answer 11

Someone who has harmed others should put the matter right. Balance between the parties should be restored

Question 12

What is distributive justice?

Answer 12

There should be a fair distribution of burdens and losses among members of society

Question 13

What is retributive justice?

Answer 13

A defendant should pay a fair but not disproportionate sum for the loss caused

Question 14

What is vicarious liability?

Answer 14

An employer is liable for damages caused by his employees

Question 15

What is the tort of trespass to land

Answer 15

The defendant intentionally acts in a way which results in him or his property intruding on the claimant’s land. If there is intention, that is enough to prove liability. Tort law also covers above and below the claimant’s land. e.g. mining.

Question 16

What is compensation?

Answer 16

A clear aim of tort law

Question 17

What are the defences of a trespassing claim? (3)

Answer 17

• Permission was given. Could be in the form of a license, or it could be implied.
• Lawful authority. eg police officer entering under warrant.
• Necessity. entrance to save a life.

Question 18

What’s trespass liability?

Answer 18

Based on direct invasion of land and doesn’t depend on whether the invasion is unreasonable

Question 19

What’s a tort of nuisance?

Name its defences (4)

Answer 19

There was an indirect interference with the claimant’s land and the interference was unreasonable.

1. Consent, even previous consent.
2. Prescription. this is when the defendant’s conduct had unreasonably interfered with the claimants land for at least 3. 20 years and no claim was brought within that time.
3. Statutory authority, which may support the defendant’s conduct.
   Lack of responsibility could also be proven as a defence.

Question 20

What is negligence liability?

Answer 20

The defendant’s act was careless and has caused damage. Not every negligent act can be tried. Essentials (eg duty of care) have to be established. The claimant has to establish that the defendant owes them a duty of care.

Question 21

What is a public nuisance?

Answer 21

A nuisance that affects a substantial number of people. This is a crime and those responsible can be prosecuted

Question 22

What’s the aim of a tort of negligence?

Answer 22

To provide compensation to the claimant.

Question 23

Give 5 tests for establishing duty of care

Answer 23

1. Asking ‘should you have done this?’
2. Proximity test. Is the relationship close enough between
   claimant and defendant that carelessness would
   reasonably cause damage?
3. Was the harm caused reasonably foreseeable?
4. Is it reasonable and fair to impose a duty of care?

Question 24

Give 4 categories for nervous shock

Answer 24

1. Illness develops after claimant fears for own safety (in range of foreseeable danger), making them a primary victim.
2. Illness develops after claimant fears for the safety of a close relative. The close relationship must be proven.
3. Sufficient proximity between claimant and accident in terms of both time and space. Being told about the accident by a third party is outside the scope of duty.
4. Illness develops after seeing the aftermath of another’s injury or harm. A secondary victim.

Question 25

Name 2 categories of economic loss in a claim of negligence

Answer 25

1. Pure economic loss. Unconnected with physical damage

2. Economic loss from physical injury/damage to property

Question 26

What are negligent misstatements?

Answer 26

Liability is based on the existence of a special relationship. Defendant must know he has specialised knowledge and that any information he gives will be relied upon by the claimant. In this case, if pure economic loss is due to negligent misstatements, a claim can be made.

Question 27

What is professional negligence?

Answer 27

When a person neglects their duties in their job/doesn’t carry them out correctly. It relies on the position of the person giving advice or carrying out acts negligently. Liability for accountants and auditors lies on the purpose for which the reports were made. Lawyers are liable for psychiatric injury if negligence led to wrong imprisonment.
Surveyors/builders/architects have duty of care to clients.

Factors to consider:
- Purpose for which statement was made.
- Purpose for which statement was communicated.
- Relationship between advisor and advisee.
- Size of any class to which advisee belonged.
- State of knowledge of the advisor.
- Lawyers can be held liable to claims of negligence to
people who aren’t their clients.
- Immunity has been removed in both criminal and civil
proceedings.

Question 28

State the facts, argument of appellant and judgment of lords of the case “M’Alister (or Donoghue) v. Stevenson”

Why is this not contract law?

Answer 28

Facts:
Appellant, M’Alister, was bought a drink by a friend at a bar. There was a decomposed snail in the drink, making the appellant very ill, resulting in medical costs. Appellant was a pauper/poor person: entitled to legal aid.

Argument appellant:
Tries to seek damages against seller of the drinks: They have a duty of care to provide safe drinks to the public, and this was breached due to negligence. Considered the neighbour test to determine duty of care:
If one reasonably should have foreseen the effect on another during the action, they have a duty of care.

Opinion of the lords:
‘Every manufacturer/repairer of any article is under duty to everyone who may legitimately use the article.’ Whether the bottle was sealed doesn’t affect the duty of care, just makes it easier to prove negligence. Based on the neighbour test, it was found that there was a duty of care.
But the case is still not concluded. A breach of duty of care and resultant damage need to be proven.

No binding contract between appellant and seller- It was the appellant’s friend, rather than the appellant, who bought the drink (entered a contract). It’s a case of tort law.

Question 29

What is immunity in law?

Answer 29

An exemption (freeing from liability). Granted by statute or government authorities from a legal duty, penalty or prosecution.

Four types:
1. Witness immunity- in exchange for information or testimony, granted by the judge/grand jury/legislation

2. Public officials’ protection from liability for decisions made in the course of official duties
3. Governmental immunity protects government agencies from lawsuits unless government agrees to be sued;
4. Diplomatic immunity which exempts foreign ambassadors from U.S. criminal prosecution.