Tort Overview

Question 1

What types of claims are there in tort?

Answer 1

Negligence
Nuisance
Trespass
Defamation
Trespass to the person.

Question 2

How is negligence defined in Blyth v Birmingham Waterworks Co [1856]

Answer 2

Omitting to do which a reasonable would do or doing something a reasonable man would not do.

Question 3

What are three elements for claim in negligence?

Answer 3

1. The defendant owes a recognized duty of care to the claimant.
2. The defendant breached that duty.
3. The breach caused the claimant loss/harm/damage.

Question 4

How is a duty of care established under Caparo PLC v Dickman [1990]?

Answer 4

No single general principle that can be used to establish a duty of care.
Court will first consider if there is a direct or close analogous precedent where a duty has been imposed.
If none exist court will consider three criteria as to if a new duty should be created.

Question 5

What three criteria are used to establish a new duty of care under Caparo PLC v Dickman [1990]?

Answer 5

1. Reasonable foreseeability;
2. Legal proximity;
3. It is fair just and reasonable for a duty of be imposed in light of policy considerations.

Question 6

What is reasonable forseeability?

Answer 6

Would a reasonable man consider that the breach would lead to harm to the claimant.

Question 7

What is legal proximity?

Answer 7

Do the defendant and claimant have a close direct relation whereby the actions of the defendant may reasonably be considered to directly affect the claimant.

Question 8

What policy considerations would the court have regard to when considering if to impose a duty of care?

Answer 8

Floodgate argument.
Imposition would inhibit certain private functions (social workers/landlords).
Imposition would inhibit the actions of those that carry out a certain public function such as policing.
Imposition on a public authority would impact on the resources of a public authority to carry out their duties.

Question 9

What is the standard of care?

Answer 9

Test of reasonable man - Would a reasonable man have acted in manner that the claimant acted at the time of the alleged negligence.
Does not consider the idiosyncrasies of the person.

Question 10

What is the standard of care of a professsional?

Answer 10

Professionals are compared to the standard expected of a similar professional with the same skill and ability.

Question 11

What three things should be considered to establish causation?

Answer 11

1. Factual causation.
2. Breaks in the chain of causation.
3. Legal causation/remoteness.

Question 12

What it factual causation?

Answer 12

There must be a link between the breach and the harm caused.

Question 13

What is the test for factual causation?

Answer 13

“but for” test - Would the damage have happened but for the fault of the defendant?

Question 14

What other approaches to factual causation do the court use?

Answer 14

1. Material contribution to injury.
2. Material increased risk.

Question 15

What is the material contribution to injury approach?

Answer 15

Where the damage is caused by the cumulative effect of an agent, which is only partly contributable to the defendant’s breach, the court will consider if the defendant’s actions made a material contribution to the injury.

Question 16

What is the “material increase to risk” approach?

Answer 16

Where the whole damage is caused by a single agent, at a specific time in the past, and scientific knowledge cannot show which agent, out of a number of agents (or different agents acting in the same causative way) caused the damage, the court will consider if the defendant’s actions materially increased the risk.
Asbestos claims.

Question 17

How can the chain of causation be broken?

Answer 17

A new intervening act or event “a novus actus interveniens” may break the chain of causation.

Question 18

When will a third party act break the chain of causation?

Answer 18

When it is a completely independent act, and not reasonably foreseeable.
Some hospital negligence is to be expected, but not gross negligence.
Negligent driving is foreseeable but not reckless driving.

Question 19

What is the eggshell skull rule?

Answer 19

You take your victim as you find them, with all underlying weaknesses (mental or physical).
Claimant is still liable even if an unforeseeable predisposition greatens the extent of the injury.

Question 20

What is the test for legal causation/remoteness (Wagon Mound Cases)?

Answer 20

The kind or type of damage must be reasonable foreseeable.
The seriousness/extent of damage need not be.
For physical injury, the exact injury need not be foreseeable, if some injury is foreseeable.

Question 21

When will the conduct of the claimant break the chain of causation?

Answer 21

The claimant’s conduct must be so unreasonable that the injury can no longer be attributed to the negligence of the defendant.

Question 22

What is employer’s liability?

Answer 22

An employer has a non-delegable duty of care towards their employees.

Question 23

What standard of care does an employer have towards their employee (Harris v Bright Asphalt Contractors [1953]?

Answer 23

A duty not to subject an employee to any risk which the employer can reasonably foresee, and which can be guarded against by measures which are not entirely disproportionate in expense and convenience to the risk.

Question 24

What three key areas does the employer have a duty to their employee (Wilson & Clyde Coal Co Ltd v English)?

Answer 24

1. Provision of competent staff.
2. Provision of adequate materials and plant/premises.
3. Provision of a proper system of work and supervision.

Question 25

What does the provision of competent staff include?

Answer 25

Employees should not pose a risk to other employees.
Staffing levels should be sufficient.

Question 26

What does the provision of adequate material and plant/premises include?

Answer 26

Employer must:
- Install necessary safety devices on dangerous machinery;
- Provide protective clothing and other safety equipment;
- Maintain equipment.

Question 27

What does the provision of a proper system of work and supervision include?

Answer 27

Employer must consider any potential risk and devise suitable safety precautions.
Systems should minimize the danger of an employee’s own carelessness and/or failure to take reasonable care to ensure compliance with necessary safety precautions.

Question 28

What duty of care does an occupier have towards visitors under the Occupier’s Liability Act 1957?

Answer 28

An occupier of land owes a duty of care to make a visitor reasonably safe in using the premises for the purposes for which they are invited or permitted.

Question 29

How can an occupier be absolved of liability under the Occupier’s Liability Act 1957?

Answer 29

1. If they give an effective warning, that would make a visitor reasonably safe.
2. Where the visitor is aware and fully appreciated the risk, and entered the premises anyway.

Question 30

What duty does an occupier have towards persons other than visitors under the Occupier’s Liability Act 1984?

Answer 30

Duty to take reasonable care to ensure the person does not suffer injury on the premises by reason of the danger concerned.

Question 31

What three conditions are there for a duty to be imposed under the Occupier’s Liability Act 1984?

Answer 31

1. Occupier must have knowledge or foresight of the danger.
2. Occupier must have knowledge or foresight of the presence of non-visitor.
3. The risk must be one against which the occupier could reasonably be expected to offer protection.

Question 32

How can a occupier be absolved of liability under the Occupier’s Liability Act 1984?

Answer 32

1. By taking reasonable steps to give a warning of the danger or discourage persons from incurring risks.
2. Where the non-visitor willingly accepts the risk.

Question 33

What is vicarious liability?

Answer 33

General doctrine of law whereby the legal responsibility for one party’s wrongful acts are imposed upon another.

Question 34

When can vicarious liability be used to make an employer responsible for the employee’s actions?

Answer 34

A wrongful act of an employee can be imposed upon an employer, if the employee was acting in the course of employment when the wrong occurred.

Question 35

What is the salmond test?

Answer 35

A person is acting in the course of employment if:
- Their conduct is authorised by the employer; or
- Their conduct is an unauthorized means of performing the job which they are employed.

Question 36

How has the salmond test been extended by the HoLs in Lister v Hesley Hall [2001]?

Answer 36

Where an intentional tort is closely connected to the work the perpetrator was employed to do, it would be fair and just to impose vicarious liability on their employer.

Question 37

What is the purpose of a defence in tort?

Answer 37

To reduce or eliminate the defendant’s liability for the damage or suffered.
Can be partial or whole.

Question 38

What defences are available for a tort claim?

Answer 38

1. Ex-Turpi (illegal act)
2. Volenti (consent)
3. Contributory Negligence
4. Limitation
5. Exclusion clause

Question 39

What is the defence of ex-turpi?

Answer 39

A claimant cannot pursue a cause of action, if the claim is based on their own illegal act.

There must be a close connection between the illegal activity and the injury suffered, such that damage arises from that activity.

It is against public policy for court to allow a claim formed on an illegal act of a claimant.

Question 40

What is the defence of Volenti?

Answer 40

Consent.
Applies where claimant knew of the risk and freely consented to them.
Does not apply to employer-employee.

Question 41

What is test for the defence of contributory negligence?

Answer 41

If the claimant failed to take reasonable care for their own safety and that failure contributed to the damage suffered.

Question 42

What requirements are there for exclusion clauses?

Answer 42

The claimant must have sufficient notice of the term.
The term must conform to statute (Unfair Contracts Term Act 1977; Consumer Rights Act (2015).

Question 43

What will damages include where a tort has caused death?

Answer 43

1. Damages for the claimant’s estate under the Law Reform (Miscellaneous Provisions) Act 1934.
2. Damages for the dependents’ loss of financial support under the Fatal Accidents Act 1976.
3. Bereavement damage for spouses, civil partners, and parents.