Tort Law Topics Flashcards
What is negligence
This is the omission to do something which a reasonable man would normally do
Duty Of Care-Neighbour Principle
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour
What three things must be proved for negligence
In terms of duty
Is the damage foreseeable
Proximity with the party
Is it fair, just and reasonable to impose a duty
Negligence
Foreseeability
Objective test: Would a reasonable person in D’s position foresee that someone in claimants position may be injured
Negligence
Proximity
Someone may suffer shock after seeing the aftermath of an accident but there is no liability if there is not a sufficient relationship between the parties
Bournhill V Young
Negligence
Reasonableness
This allows judges to make policy decisions. This balances the risk of fraudulent claims
is it fair just and reasonable
Negligence
Breach of duty
The standard of care that must be reached is that of the reasonable man.
He is expected to do this reasonably competently
Negligence
(Risk) Factors that affect the reasonable man standard
Special characters of the defendant and of claimant
Size of risk
Have all practical precautions been taken
What are benefits of taking risk
Negligence
Special characteristics of defendant
Meant to be reasonably competent in what they are doing
Negligence
Medical practitioners
Does the doctor conduct fall below that expected of an ordinary competent professional
Is there substantial body of opinion within the profession to support the action taken
Court could find the practice of the whole profession wrong and could therefore find that a duty had been breached even when following normal practice (Bolitho)
Negligence
Special Characteristics of Claimant
The reasonable man takes more care when the situation demands it
Negligence
Size of risk
The reasonable man takes more care when there is a greater risk does not have to take precautions against highly likely events
Negligence
Have all practical precautions been taken
Reasonable precautions do not always prevent injury.
Laitmer V AEC
Negligence
What are benefits of taking risks
Public utility. Lower standard will be required of reacting to an emergency
Negligence
Damage (Causation)
This is the caustion in fact and the remotness
Negligence
Remoteness of damage- Reasonably foresseable test
Type of damage must be reasonably foreseeable. Once damage of any kind is foreseeseable the D is liable for full extent of damage
Negligence
Thin Skull Rule
Take your victim as you find them
Negligence-Defences
Contributory Negligence
The C and D both were partly to blame for Injury/Loss
Negligence-Defences
Consent- Volenti non fit injuria
When the claimant voluntarily accepts the risk of the harm
Negligence
Damages
What do they do
This is to put the claimant in a position they would have been before the act or ommsion
Negligence
Mitigation of loss
The claimant has a duty to minimise their loss by taking reasonable action to do so.
Occupiers liabilty Act 1957
Who is it for
Visitors
OLA 1957
Lawful Visitor
Different types
Invitee-Have been invited
Licensee-implied permission to be there for a period of time
Statutory right of entry- Read a meter/ Police
Conctractual right of entry-ticket holder for an event
OLA 1957
Duty to keep the visitor reasonably safe
Reasonable warning signs are enough. Implied warnings and express warning
OLA 1957
For purposes for which they are invited
Common duty of care
The duty is varied for a specialist visistor undertaking his job
OLA 1957
Other variation of duty
Children. The occupier must be prepared for children to be less careful than adults
OLA 1957
Intervening causes
Damage
Natural Event can break the chain.
3rd party act
Victims own act if not reasonable
Defences for OLA 1957
Contributory Negligence
Independent contractors
Consent
Excluding liability
OLA 1957 Defence
Independent contractors
Statute
S2(4)b OLA 1957 occupier not liable if the visitor is injured by something dangerous that was created by the faulty work of an independent contractor
OLA 1957 Defence
Contributory Negligence
S2(3) OLA 1957 - consideration should be given to the standards of care expected by a ordinary visitor
D makes injuries worse
D is partly to blame for injuries
OLA 1957 Defence
Consent
S2(5) OLA 1957 occupier not liable if the visitor willingly accepts risks.
OLA 1957 Defence
Excluding liability
S2(1) OLA 1957 occupier can restrict or exclude liability for visitors by putting up a sign.
S.2(4) requires it to “in all the circumstances be enough to enable the visitor to be reasonably safe”
Who is the occupier in OLA 1984
Same defintion as the 1957 Act
OLA 1984
To whom is duty owed
Tresspassers
Person involuntraily on premises
Person exercising a prtivate right of way
Public entering under access agreement
Public enetering under national parks and access to countyside Act 1949
OLA 1984
In what circumstances is duty owed
s1(1) and s1(3) duty owed to persons other than visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done.
OLA 1984
What is the Duty s1(4)
“to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.”
OLA 1984
What damage is covered?
s1(1) duty owed in respect of “injury”.
S1(9) defines this as death or personal injury including disease or any impairment of physical or mental condition.
S1(8) not loss or damage to property.
OLA 1984
Factors that Judge may consider as circumstances
Likelihood of tresspass
Seriousness of injury risked
Cost and practicality
Likely age of tresspasser
Visibility and attractiveness of danger
Defences OLA 1984
Contributory negligence
Consent
Remedies OLA 1984
Damages for death and personal injury
What must be passed for Psychartic Harm
- A recognised Psychiatric Illness
- Was the Psychiatric injury caused by D’s negligence
- Is the C a primary or secondary victim
Psychartic Harm
Who is a primary victim
- Someone who is dircetly invloved in an accident
- Is a rescuer
Psychartic Harm
Who is the secondary victim
This is someone who was not in pyshical danger but who witnessed the accident or aftermath
Psychartic Harm
Secondary Victim Critera
Paul, Paulmere and Purchase states that there must be.
* Close tie of love and affection
* Proximity in time and space
* Must witness with their own unaided senses
Psychiatric harm
Who else might claim
A person who thinks they have killed people through their act when in fact they died through the negligence of another
What is vicarious liabilty
Makes a person libale for another persons tort ( Employer)
What are the different stages in Vicarious liabilty
Stage 1: An underlying tort must be commmited
Stage 2: Worker must be an employee
Stage 3: Must be acting in the course of employment
Vicarious liability
What is the control test
(Original approach )
An independant contractor is told what to do
An employee is told what to do and how to do it
Vicarious liabilty
Integartion test
States the more closely the worker is involved in the core business of the employer the more likely he is to be an employee
Vicarious Liability
The mutiple test
- Control: Is the employer to some degree in charge of the worker and the work being carries out.
- Personal Performance: He can not delegate to someone else (Echo and Express Publications V Tanton)
- Mutlality of obligation: This means that the employer is obliged to pay the worker and the worker has an obligation to be availbale under the terms of the contract (Carmicheal V National Power)
Vicarious Liability
Stage 3
Employee must be acting in the course of employment. This included:
An authorised act
An authorised act carried out in an unauthorised way
An act while not part of employees job is nevertheless connected with the employemnt so is fair to hold employer liable
Who can be a claimant for private nusiance
Anyone with legal interest
Who can be the defendant for private nuisance
The creator nuisnace or the occupier if he adpots or continues the activities of the creator
Private nuisance
Interference
Must be unlawful. Physical damage: To land, no loss for personal injury
Private nuisance
Loss of amenity
Excessive noise preventing sleep, smells, fumes
Private Nuisance
Unlawfulness
The Locality of events
The duration of Nuisance
The degree to which the activity interfers with the neighbours
The sensitivity of claimant
Reasons for D’s actions
Motive of D acting out of Malice
Private Nuisance
What is the threshold for the loss of enjoyment
Real interference with comfort or convience of living as judged by the standards of a reasonable man
Murdoch V Glacier Metals- No one else had complained
Private Nuisance
Social utility of D
The usefulness to soicety does have a bearing on whether it is reasonable or the C to put up with it. Mainly helps grant damages but not injuctions
(Dennis V MOD)
Private Nuisance
Malice of D
Where D does something to annoy the C something which could be classified as unlawful
(Hollywood silver Fox Farm V Emmet)- Shot his gun scared animals.
Private Nuisance-Defence
Stautory Authority
Nuisance occurs a public body acting under legislation duty or power. As long as it is not carried out with negligence and with reasonable regard for others
Allen V Gulf oil
Can not rasie claim if parliment has raised an alternative remedy ( Marcic V Thames water)
Private Nuisance-Defence
Prescription
A right to do something not otherwise permitted on the basis of the length of the time which the activity has been carried out unlawfully but without objection
Coventry V Lawrence
Nuisance-Under Rylands
Requirenments under Rylands V Flecther
- Accumilation
- Non Natrual use of land
- A dangerous thing
- Did it escape and cause damage
Nuisance-Under Rylands
Accumilation
This is the artifcal accumilation of land but not natrual accumilation
Giles V Walker
Nuisance-Under Rylands
Non natural use of land
This means not in the common place
Rickards V Lothian
Nuisance-Under Rylands
A dangerous thing
Something likely to do mischief if it escapes. Chemicals, explosives and water.
Private nuisance- Remedies
Injunction
An order prohibiting or tightly controling an activity
Miller V Jackson
Private nuisance- Remedies
Damages
Awarded for conseqential damage to land, plant, building and goods
Hunter V Canary Wharf
Private nuisance- Remedies
Abatement
Self help remedy. C can do what is reasonable in the circumstances to deal with nuisance
Nuisance-Under Rylands
Escape
Move from the land the D controls to land he dosen’t. In Read V Lyons claim failed as she was injuired whilst on D’s site. Only reasonable foreseeable damage.
Cambridge Water V Eastern counties leather
Nuisance-Under Rylands
Damage
Is the same as private nuisance only damages to property not perosnal injury
Nuisance-Under Rylands
Defences to a claim under Rylands
Consent
Contributory Negligence
Act of stranger
Act of God
Statutory Authority
Nuisance-Under Rylands
Act of stranger Defence
D is not liable for a deliberate and unforseen act of a stranger
Perry V Kendricks
Nuisance-Under Rylands
Act of God
An event that is totally unpredictable
Nuisance-Under Rylands
Remedies
Damages for the cost of the repair or replacement of property only
Economic Loss
What can be claimed for Tort of Negligence
- Loss for personal Injury
- Loss for damage to property
- Consequential financial loss
- You can not claim Pure Economic Loss
Economic Loss
What is Rule 1
No liabilty for Pure Economic Loss resulting from neglignce.
This is beacuse we have:
* Contract Law
* Insurance
* And policy- Floodgates of litigation
Economic Loss
What are the three parts to the Spartan Steel V Martin and Co.
Damage to the melts-Physical damage
Loss of profits- This could be claimed as conseqential loss
Loss of profits- Did not pass as it was pure economic loss
Economic Loss
What is Rule 2
Losses caused by negligence misstament.
2 Party liablity- Person A to Person B makes a statement and they suffer from loss by relying on it. B would need to show that A was negligent and had duty of care
3rd party liablity - A makes a statement to B who passes it onto C who relies and suffers loss
Economic Loss
What is special relationship or sufficent proximity
Caparo V Dickman Test
- The person giving advice must pass as having “special skill” or “expertise”. Does not need to be proffesional
- D must know it is highly likely that the C will rely on the statement
* Advice is communicted directly to C
* No disclaimer to act as defence
* D must know that it will be acted upon without taking any further independent advice
* It is a social situation - C does rely on it and therofre incurs financial loss
- There is reasonble reliance
