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Tort Law > Tort Law Topics > Flashcards

Tort Law Topics Flashcards

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1
Q

What is negligence

A

This is the omission to do something which a reasonable man would normally do

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2
Q

Duty Of Care-Neighbour Principle

A

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

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3
Q

What three things must be proved for negligence

In terms of duty

A

Is the damage foreseeable
Proximity with the party
Is it fair, just and reasonable to impose a duty

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4
Q

Negligence

Foreseeability

A

Objective test: Would a reasonable person in D’s position foresee that someone in claimants position may be injured

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5
Q

Negligence

Proximity

A

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

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6
Q

Negligence

Reasonableness

A

This allows judges to make policy decisions. This balances the risk of fraudulent claims

is it fair just and reasonable

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7
Q

Negligence

Breach of duty

A

The standard of care that must be reached is that of the reasonable man.
He is expected to do this reasonably competently

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8
Q

Negligence

(Risk) Factors that affect the reasonable man standard

A

Special characters of the defendant and of claimant
Size of risk
Have all practical precautions been taken
What are benefits of taking risk

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9
Q

Negligence

Special characteristics of defendant

A

Meant to be reasonably competent in what they are doing

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10
Q

Negligence

Medical practitioners

A

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)

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11
Q

Negligence

Special Characteristics of Claimant

A

The reasonable man takes more care when the situation demands it

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12
Q

Negligence

Size of risk

A

The reasonable man takes more care when there is a greater risk does not have to take precautions against highly likely events

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13
Q

Negligence

Have all practical precautions been taken

A

Reasonable precautions do not always prevent injury.

Laitmer V AEC

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14
Q

Negligence

What are benefits of taking risks

A

Public utility. Lower standard will be required of reacting to an emergency

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15
Q

Negligence

Damage (Causation)

A

This is the caustion in fact and the remotness

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16
Q

Negligence

Remoteness of damage- Reasonably foresseable test

A

Type of damage must be reasonably foreseeable. Once damage of any kind is foreseeseable the D is liable for full extent of damage

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17
Q

Negligence

Thin Skull Rule

A

Take your victim as you find them

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18
Q

Negligence-Defences

Contributory Negligence

A

The C and D both were partly to blame for Injury/Loss

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19
Q

Negligence-Defences

Consent- Volenti non fit injuria

A

When the claimant voluntarily accepts the risk of the harm

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20
Q

Negligence

Damages

What do they do

A

This is to put the claimant in a position they would have been before the act or ommsion

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21
Q

Negligence

Mitigation of loss

A

The claimant has a duty to minimise their loss by taking reasonable action to do so.

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22
Q

Occupiers liabilty Act 1957

Who is it for

A

Visitors

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23
Q

OLA 1957

Lawful Visitor

Different types

A

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

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24
Q

OLA 1957

Duty to keep the visitor reasonably safe

A

Reasonable warning signs are enough. Implied warnings and express warning

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25
Q

OLA 1957

For purposes for which they are invited

Common duty of care

A

The duty is varied for a specialist visistor undertaking his job

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26
Q

OLA 1957

Other variation of duty

A

Children. The occupier must be prepared for children to be less careful than adults

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27
Q

OLA 1957

Intervening causes

Damage

A

Natural Event can break the chain.
3rd party act
Victims own act if not reasonable

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28
Q

Defences for OLA 1957

A

Contributory Negligence
Independent contractors
Consent
Excluding liability

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29
Q

OLA 1957 Defence

Independent contractors

Statute

A

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

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30
Q

OLA 1957 Defence

Contributory Negligence

A

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

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31
Q

OLA 1957 Defence

Consent

A

S2(5) OLA 1957 occupier not liable if the visitor willingly accepts risks.

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32
Q

OLA 1957 Defence

Excluding liability

A

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”

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33
Q

Who is the occupier in OLA 1984

A

Same defintion as the 1957 Act

34
Q

OLA 1984

To whom is duty owed

A

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

35
Q

OLA 1984

In what circumstances is duty owed

A

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.

36
Q

OLA 1984

What is the Duty s1(4)

A

“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.”

37
Q

OLA 1984

What damage is covered?

A

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.

38
Q

Factors that Judge may consider as circumstances

A

Likelihood of tresspass
Seriousness of injury risked
Cost and practicality
Likely age of tresspasser
Visibility and attractiveness of danger

39
Q

Defences OLA 1984

A

Contributory negligence
Consent

40
Q

Remedies OLA 1984

A

Damages for death and personal injury

41
Q

What must be passed for Psychartic Harm

A
  1. A recognised Psychiatric Illness
  2. Was the Psychiatric injury caused by D’s negligence
  3. Is the C a primary or secondary victim
42
Q

Psychartic Harm

Who is a primary victim

A
  1. Someone who is dircetly invloved in an accident
  2. Is a rescuer
43
Q

Psychartic Harm

Who is the secondary victim

A

This is someone who was not in pyshical danger but who witnessed the accident or aftermath

44
Q

Psychartic Harm

What is the 4 criteria for secondary victims
1st Criteria

A

Comply with rules from the Alock case. Close ties of love and affection,injury must occur at the scene or in the immediate aftermath must witness with their own undaided senses

45
Q

Psychartic Harm

What is the 4 criteria for secondary victims
2nd Critera

A

The claimant must be of reasonable fortitude

If it would have a harmed a reasonable perosn then Thin Skull Rule applies

46
Q

Psychartic Harm

What is the 4 criteria for secondary victims
3rd Critera

A

No claim can be made if the victim of the accident is the one who caused the accident

47
Q

Psychiatric harm

Who else might claim

A

A person who thinks they have killed people through their act when in fact they died through the negligence of another

48
Q

What is vicarious liabilty

A

Makes a person libale for another persons tort

49
Q

What are the different stages in Vicarious liabilty

A

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

50
Q

Vicarious liability

What is the control test
(Origanal approach )

A

An independant contractor is told what to do
An employee is told what to do and how to do it

51
Q

Vicarious liabilty

Integartion test

A

States the more closely the worker is involved in the core business of the employer the more likely he is to be an employee

52
Q

Vicarious Liability

The mutiple test

A
  1. Control: Is the employer to some degree in charge of the worker and the work being carries out.
  2. Personal Performance: He can not delegate to someone else (Echo and Express Publications V Tanton)
  3. 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)
53
Q

Vicarious Liability

Stage 3

A

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

54
Q

Who can be a claimant for private nusiance

A

Anyone with legal interest

55
Q

Who can be the defendant for private nuisance

A

The creator nuisnace or the occupier if he adpots or continues the activities of the creator

56
Q

Private nuisance

Interference

A

Must be unlawful. Physical damage: To land, no loss for personal injury

57
Q

Private nuisance

Loss of amenity

A

Excessive noise preventing sleep, smells, fumes

58
Q

Private Nuisance

Unlawfulness

A

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

59
Q

Private Nuisance

What is the threshold for the loss of enjoyment

A

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

60
Q

Private Nuisance

Social utility of D

A

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)

61
Q

Private Nuisance

Malice of D

A

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.

62
Q

Private Nuisance-Defence

Stautory Authority

A

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)

63
Q

Private Nuisance-Defence

Prescription

A

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

64
Q

Nuisance-Under Rylands

Requirenments under Rylands V Flecther

A
  • Accumilation
  • Non Natrual use of land
  • A dangerous thing
  • Did it escape and cause damage
65
Q

Nuisance-Under Rylands

Accumilation

A

This is the artifcal accumilation of land but not natrual accumilation

Giles V Walker

66
Q

Nuisance-Under Rylands

Non natural use of land

A

This means not in the common place

Rickards V Lothian

67
Q

Nuisance-Under Rylands

A dangerous thing

A

Something likely to do mischief if it escapes. Chemicals, explosives and water.

68
Q

Private nuisance- Remedies

Injunction

A

An order prohibiting or tightly controling an activity

Miller V Jackson

69
Q

Private nuisance- Remedies

Damages

A

Awarded for conseqential damage to land, plant, building and goods

Hunter V Canary Wharf

70
Q

Private nuisance- Remedies

Abatement

A

Self help remedy. C can do what is reasonable in the circumstances to deal with nuisance

71
Q

Nuisance-Under Rylands

Escape

A

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

72
Q

Nuisance-Under Rylands

Damage

A

Is the same as private nuisance only damages to property not perosnal injury

73
Q

Nuisance-Under Rylands

Defences to a claim under Rylands

A

Consent
Contributory Negligence
Act of stranger
Act of God
Statutory Authority

74
Q

Nuisance-Under Rylands

Act of stranger Defence

A

D is not liable for a deliberate and unforseen act of a stranger

Perry V Kendricks

75
Q

Nuisance-Under Rylands

Act of God

A

An event that is totally unpredictable

76
Q

Nuisance-Under Rylands

Remedies

A

Damages for the cost of the repair or replacement of property only

77
Q

Economic Loss

What can be claimed for Tort of Negligence

A
  • Loss for personal Injury
  • Loss for damage to property
  • Consequential financial loss
  • You can not claim Pure Economic Loss
78
Q

Economic Loss

What is Rule 1

A

No liabilty for Pure Economic Loss resulting from neglignce.
This is beacuse we have:
* Contract Law
* Insurance
* And policy- Floodgates of litigation

79
Q

Economic Loss

What are the three parts to the Spartan Steel V Martin and Co.

A

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

80
Q

Economic Loss

What is Rule 2

A

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

81
Q

Economic Loss

What is special relationship or sufficent proximity

Caparo V Dickman Test

A
  1. The person giving advice must pass as having “special skill” or “expertise”. Does not need to be proffesional
  2. 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
  3. C does rely on it and therofre incurs financial loss
  4. There is reasonble reliance

Tort Law (3 decks)

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