TORT LIABILITY Flashcards
LIABLE?
DUTY + BREACH + DAMAGE = LIABLE
NEGLIGENCE
Negligence is the omission to do something as a reasonable man.
DUTY
CONNNECTION BETWEEN C AND D
CAPARO TEST- FPF
[ROBINSON] - The analogy of previous cases
BREACH
[BLYTH V BIRMINGHAM] -REASONABLE MAN TEST
inc. special characters of both defendant and claimant. [BOLAM &BILITHO]
BREACH
(Risk factors etc)
Size of risk [PARIS]
All practical precautions followed out [BOLTON V STONE]
Benefits of taking risks [WATT V HERTFORFSHIRE]
DAMAGE
Causation in fact, but for test. [BARNETT V CHELSEA & KENSINGTON]
Remoteness, the type of damage must be foreseeable [THE WAGON MOUND]
NAI- was the damage foreseeable of the original act.
DEFENCES
CONTRIBUITING NEGLIGENCE AND CONSENT
CONTRIBUITING NEGLIGENCE
-Was the claimant negligent?
-Did this contribute to their harm?
-If yes, what proportions of harm was their fault?
[SAYERS V HARLOW]
CONSENT
-Knows specific risk [STERMER V LAWSON]
-Voluntarily accept risk [SMITH V BAKER]
-Agreement to all risks
[ICI V SHATWELL]
REMEDIES
DAMAGES AND INJUNCTIONS
PURPOSE OF DAMAGES
To put the claimant back in the position they were in prior to their negligent act.
MITIGATING OF LOSS
The claimant has a duty to minimise their loss by taking reasonable actions.
HEADS OF DAMAGES
General and special damages
GENERAL DAMAGES
Non pecuniary such as pain, amenity and affecting everyday life.
[WEST V SHEPERD]
SPECIAL
DAMAGES
Pecuniary such as loss to date of trial e.g. loss of earnings, property etc.
TYPES OF PAYMENT
LUMP SUM AND STRUCTURED SETTLEMENT
LUMP SUM
MOST COMMON WAY OF PAYMENT. COURTS ONLY OPTION FOR AWARING GENERAL.
STRUCTURED SETTLEMENT
Paying damages periodically.
