Tort Revision

Question 1

Damage to property which did not belong to the claimant is classed as pure economic loss and cannot be recovered

Question 2

The general rule is that no duty of care is owed in respect of pure economic loss. There is an exception to this rule for pure economic loss caused by negligent statements where there is a special relationship between the defendant and claimant. The following conditions need to be established for a special relationship to arise:
1. The advice is required for a purpose made known to the defendant
2. The defendant knows that the advice will be communicated to the claimant and will be relied on
3. The claimant must have relied on the information and
4. It must have been reasonable for the claimant to do so.

Question 3

A primary victim is someone in the actual area of danger created by the defendant’s negligence

Question 4

A primary victim is owed a duty of care in respect of psychiatric harm, provided that there was a foreseeable risk of physical injury but it is not necessary for psychiatric harm to be foreseeable

Question 5

For a successful claim in false imprisonment, the defendant’s actions in confining the claimant must be intentional

Question 6

In a claim for false imprisonment, the claimant would not need to show that they suffered harm

Question 7

A battery can be committed by striking someone with an object

Question 8

The duty of the occupier to his lawful visitors in respect of damage caused by the state of the premises is governed by the Occupiers’ Liability Act 1957. It is a duty to take reasonable care to see that the visitor will be reasonably safe in using the premises for the permitted purpose

Question 9

An occupier owes a duty of care to a trespasser provided they are aware of the danger, and that the trespasser may come into the vicinity of it, and the danger is one against which it would, in all the circumstances, be reasonable to expect them to offer protection.

If these conditions are satisfied, the occupier’s duty is to take reasonable care to see that the trespasser is not injured by the danger. The Act provides that the duty may be discharged by taking such steps as are reasonable in all the circumstances of the case, such as giving warning of the danger concerned or discouraging persons from incurring the risk.

Question 10

Only actions of the claimant themselves can give rise to contributory negligence

Question 11

For a successful claim under the Consumer Protection Act 1987 (‘CPA’), the claimant needs to show that they had suffered damage caused by a defect in a product. The Act provides that there is a defect in a product if its safety is not as they generally are entitled to expect

Question 12

If the deceased would have been able to bring a tort claim on account of a negligent act that caused their death, dependants may be able to seek damages for bereavement and/or loss of dependency

Question 13

Bereavement damages are recoverable only by the deceased’s spouse or civil partner or cohabitant of more than 2 years, or the deceased’s parents if the deceased was under 18 and never married. Children of the deceased are not entitled to bereavement damages.

Question 14

Loss of dependency damages are available if the claimant was a dependent (i.e. below 18) of the decedent and was financially dependent on the deceased

Question 15

For a duty of care to be owed to a secondary victim, they must suffer from a medically diagnosed psychiatric condition.

They must also satisfy all of the following:
1. There must be a close tie of love and affection between the claimant and the person injured by the defendant
2. The claimant must have been present at the accident or its immediate aftermath
3. The claimant must have witnessed the events with their own senses
4. It must be reasonably foreseeable that a person of normal fortitude in the position of the claimant would suffer a psychiatric injury.

Question 16

As a general rule, the damage suffered by the claimant must have been a reasonably foreseeable consequence of the defendant’s negligence. One of the exceptions to this is the requirement for the defendant to ‘take their victim as they find them’, also known as the egg shell skull rule. If the claimant suffers from a pre-existing condition that causes the harm from the defendant’s negligence to be more severe, the claimant can still recover for the damage. A further exception to the rule that damage must be reasonably foreseeable is the ‘similar in type’ rule. Provided the type of harm was reasonably foreseeable, the precise manner in which it occurs, and the precise extent of the harm, does not need to be foreseeable.

Question 17

The duty owed by the employer is one of reasonable care. So, the employer owes a duty to see that reasonable care is taken to provide a safe place of work

Question 18

An employer owes his employees a duty of care in respect of their place of work. The duty is personal to the employer and non-delegable so they must ensure reasonable care is taken by others. So, if the employer delegates a task to someone, such as an independent contractor, if that person fails to take reasonable care, the employer’s duty is breached

Question 19

In general, an employer is not liable for torts of independent contractors. However, as an exception, an employer can be liable for the tort of an independent contractor where the relationship is ‘akin’ to employment. For such a relationship to arise it must be shown that: the tort was committed as a result of an activity undertaken by the tortfeasor on behalf of the defendant; the tortfeasor’s activity was part of the business activity of the defendant; and the defendant, by engaging the tortfeasor to carry on the activity, created the risk of the tort. In addition, there must be close connection between the relationship and the tort.

Question 20

Liability under the Consumer Protection Act (CPA) is strict; it is not necessary to prove fault on the part of the manufacturer

Question 21

The Consumer Protection Act does apply where damage is caused by a defective product, even if the product is used for business purposes

Question 22

The Consumer Protection Act does not apply to damage caused to business property

Question 23

A trespassory assembly includes any assembly of 20 or more persons on land to which the public have no right of access, which is likely to be held without the permission of the occupier, and which may cause significant damage to buildings of scientific importance.

Question 24

If the police wish to ban a trespassory assembly they must make an application to:
- Home Secretary (if held within London)
- Local council (if held outside London)

Question 25

Trespass to land is an intentional unlawful direct interference with the claimant’s possession of land.

Question 26

Contribution for damages only applies where both defendants are liable for the same damage.
In the case of a divisible injury, the defendants are not both liable for the same damage. They are each liable only for the share of the damage which they caused

Question 27

Pure economic loss is generally not recoverable in the tort of negligence. However, an exception applies where a person providing a service, such as drafting a will, has undertaken a responsibility towards those benefiting from it, such as the beneficiaries under the will.

Question 28

Bereavement damages are only open to a parent where the deceased was a minor (and unmarried)

Question 29

If an individual was killed instantly with no pain, no damage to property, and no loss of earnings, he has not suffered any actionable damage so there is no claim in respect of the death itself

Question 30

Damages for psychiatric injury that accompanies physical injury can be recovered in a negligence action along with the physical injury

Question 31

Damage to property which did not belong to the claimant is classed as pure economic loss and cannot be recovered

Question 32

Where the damages in a claim for the estate would be reduced for contributory negligence, the damages in the claim for the benefit of dependants is also to be reduced.

Question 33

The Occupiers’ Liability Acts deal with harm caused by the state of the premises and not the harm caused by an activity

Question 34

Throwing rubbish on someone could amount to the application of unlawful force as required for trespass to the person BUT the application of force must be intentional

Question 35

A duty of care is likely to be owed in situations where the defendant is a private individual who has committed a positive act (as compared to an omission) resulting in foreseeable physical harm e.g. damage to clothing

Question 36

When the injury is not divisible, the claimant is entitled to recover damages in full from either tortfeasor. By statute, the first tortfeasor may seek a contribution from the second because both are liable in respect of the same damage. However, this does not affect the liability of either tortfeasor to the claimant.

Question 37

A deceased’s estate should recover damages for the deceased’s pain, suffering and loss of wages up to death and NOT their dependents etc.

Question 38

A manufacturer owes a duty of care to the end consumer if the product was put into circulation in the form in which it was intended to reach the end consumer with no reasonable probability of an intermediate examination.

Question 39

An occupier owes a duty of care in respect of the condition of the premises. That duty may be discharged by employing an independent contractor to carry out work of construction, maintenance, or repair, provided that the occupier acted reasonably in entrusting the work to an independent contractor and took reasonable steps to confirm that the contractor was competent and the work properly done.

Question 40

A defendant owes a claimant a duty of care in respect of psychiatric harm because it was consequent on physical injury not because they witnessed events with her own senses or because she was in the area of danger.

Question 41

A visitor does not need an occupier’s express permission to be deemed a visitor. Provided they have implied permission, this will be enough.

Question 42

Any child engaged in an adult activity (like driving a car) will be held to the adult standard

Question 43

The defence of contributory negligence refers to a failure by the claimant to take reasonable care for their own safety.

For example, if the claimant is a child the defence of contributory negligence is not available against the child’s nanny who is in breach and contributed to the child’s injury

Question 44

Liability under the Consumer Protection Act is strict; it is not necessary to prove that the defect was caused by any fault on the part of the manufacturer i.e. negligence. The manufacturer’s ability to discover defect is irrelevant as liability under the CPA is strict

Question 45

While the Consumer Protection Act does not apply to damage caused to property used for business, it does apply when a personal injury is caused by a defective product, even if the product is used for business purposes

Question 46

For a successful claim in false imprisonment, the defendant’s actions in confining the claimant must be intentional.

Question 47

Trespass does require intention. However, the defendant only needs to intend their actions. They do not need to know that the land belonged to another or intend to commit a trespass.

Question 48

Where the claimant is a primary victim, it is not necessary for psychiatric harm to be foreseeable as a result of the defendant’s actions.

Question 49

A battery can be committed by striking someone with an object. There does not have to be a direct touch.

Question 50

A claimant cannot recover for the cost of any replacement car which does not flow from damage to their own property

For example, the cost of replacing a damaged hire car cannot be recovered as the care does not belong to the claimant

Question 51

The 1957 Occupiers Liability Act provides that an occupier owes: “the same duty, the ‘common duty of care’, to all his visitors …”. The duty is ‘common’ because it applies to all classes of lawful visitors in common. It is not a duty imposed by common law.

Question 52

An occupier has a duty to take reasonable care to see that the visitor will be reasonably safe in using the premises for the permitted purpose under the Occupiers Liability Act 1957

Question 53

The duty of care owed by someone who manufactures goods and puts them into circulation is not limited to commercial manufacturers. Including if the defendant was not acting in the course of a business or for profit.

For example, baking a cake and donating it to a charity cake sale.

Question 54

Liability under the rule in Rylands v Fletcher is strict

For example, the landowner can be liable despite the fact that the weakened condition of the container holding the chemical which escaped could not have been discovered.

Question 55

A claim in private nuisance requires there to be a continuing state of affairs and not a single isolated incident

Question 56

Where the damages on the claim for the estate would be reduced for contributory negligence, the damages under the claim for the benefit of dependants is also to be reduced.

Question 57

A claim pursued by a deceased’s estate cannot recover for future loss of earnings

Question 58

For a successful claim under the Consumer Protection Act 1987 (‘CPA’), the claimant would need to show that they suffered damage caused by a defect in a product. The Act provides that there is a defect in a product if its safety is not such as persons generally are entitled to expect.

Question 59

Strict liability under the CPA only applies where a product is shown to be defective. If the design of the product means that it was as safe as persons generally are entitled to expect, then it was not defective under the CPA.

Question 60

In a negligence claim by a child the actions of the child’s mother/father cannot give rise to the defence of contributory negligence. Only actions of the claimant themselves can give rise to contributory negligence. (However, the mother would owe a duty of care to the child, which she may have breached. So, the manufacturer might seek to rely on the statutory provisions for contribution between tortfeasors.)

Question 61

The Consumer Protection Act does not apply to damage to business property caused by a defective product, the claimant would need to pursue a claim in the tort of negligence for the damage to business property.

Question 62

As producer of the product, the manufacturer can be liable under the CPA to anyone who suffers damage caused by a defect in the product. It is not necessary for the manufacturer to have supplied the product to that person.

Question 63

If an employer delegates a task to someone, such as an independent contractor, if that person fails to take reasonable care, the employer’s duty is breached.

Question 64

Throwing water over someone could amount to the application of unlawful force as required for trespass to the person, but the application of force must be intentional

Question 65

A duty of care is likely to be owed in situations where the defendant is a private individual who has committed a positive act (as compared to an omission) resulting in foreseeable physical harm.

Question 66

For a successful negligence claim, it must be shown that the breach of duty was the cause of the damage suffered. That ‘but for’ the defendant’s breach of duty the claimant would not have suffered the damage caused.

For example, if evidence shows that the claimant would have died in any event, even if the doctor was not negligent, the claim would fail.

Question 67

Trespass to goods can be committed by taking goods belonging to another. It is no defence that the defendant mistakenly believed that the goods were their own.

Question 68

Conversion takes place when a person deals with goods in a way which is seriously inconsistent with the rights of the owner. The act needs to be so extensive an encroachment on the rights of the owner that it excludes the owner from the use and possession of the goods. Mistake as to ownership is no defence.

Question 69

If a defendant’s contact was not hostile it will not amount to a battery e.g. grabbing someone’s shoulder to prevent them from falling on the bus is not a battery

Question 70

Battery is the intentional direct application of unlawful force to the claimant’s person.

Question 71

In general, an employer is not liable for the torts of its independent contractors. However, as an exception, an employer can be liable for the tort of an independent contractor where the relationship between them is ‘akin’ to employment. For such a relationship to arise it must be shown that: the tort was committed as a result of an activity undertaken by the tortfeasor on behalf of the defendant; the tortfeasor’s activity was part of the business activity of the defendant; and the defendant, by engaging the tortfeasor to carry on the activity, created the risk of the tort. In addition, there must be close connection between the relationship and the tort.

Question 72

An occupier owes a duty of care in respect of the condition of the premises. That duty may be discharged by employing an independent contractor to carry out work of construction, maintenance, or repair, provided that the occupier acted reasonably in entrusting the work to an independent contractor and took reasonable steps to satisfy himself that the contractor was competent and the work properly done.

Question 73

Liability for breach of statutory duty is NOT always strict. The standard of liability depends on the wording of the particular statute in question.

Question 74

To be actionable, a nuisance must be unreasonable. In assessing reasonableness, the industrial character of the neighbourhood is not relevant where the alleged nuisance is physical damage to the land. It may be relevant in the case of the amenity damage.

Question 75

Interference with the use and enjoymennt of land is deemed unlawful, provided it is substantial and unreasonable.

Question 76

Under the Occupiers Liability Act 1984 for a duty to arise, the following must be satisfied: the occupier was aware of the danger (or ought to have been), the occupier was aware that the trespasser might come into the vicinity of the danger (or ought to have been aware), and the danger was one against which she might reasonably be expected to have offered the trespasser some protection.

Question 77

Special damages are those which can be precisely calculated at the time of trial

Question 78

General damages are those which need to be assessed by the court

Question 79

Nuisance is an unlawful interference with the claimant’s use and enjoyment of land. To be unlawful, the interference must be substantial and unreasonable. One factor in assessing reasonableness is the intensity and duration of the interference.

For example, a smell emitted once a month, at night, may very well not be a substantial and unreasonable interference.

Question 80

Liability in private nuisance does not depend on establishing that a duty of care was owed. Liability in private nuisance is based on unlawful interference with land, and intangible damage such as interference by bad smells is actionable.

Question 81

The general rule is that a person is not liable for the torts of their independent contractor. However, as an exception to this, an occupier of land is liable for a nuisance created by an independent contractor where the work for which the contractor was engaged carried a special danger of creating a nuisance.

Question 82

Trespass to land deals with intentional and direct interference with the claimant’s possession of land. In contrast, the tort of nuisance covers damage which is indirect

Question 83

The defence of illegality is a rule of public policy which prevents a claimant from recovering compensation for damage suffered as a result of their own illegal actions. So, the claimant cannot recover damages for harm suffered whilst taking part in criminal activity. The defence is a complete defence.

Question 84

The defendant owes a duty of care in respect of a primary victims psychiatric harm because it is consequent on physical injury. If the claimant had been in the same place but had not suffered physical injury, then it would be correct to say that a duty was owed in respect of the victims psychiatric harm because he was in the area of danger

Question 85

An employer owes its employees a duty to take reasonable care to provide them with safe work equipment. This duty is expanded by statute: The Employers’ Liability (Defective Equipment) Act 1969 (‘the 1969 Act’) provides that where an employee suffers personal injury in the course of his employment caused by defect in equipment provided by his employer for the purposes of the employer’s business, and the defect is attributable to the fault of a third party (whether identified or not), the injury shall be deemed to be also attributable to negligence on the part of the employer. However, if the employee cannot prove that the failure was caused by fault of anyone, there is no fault to be attributed to the employer under the statute, the employer will not be in breach of its duty and is not likely to be liable to the employee.

Question 86

The defence of illegality applies where the claimant seeks to rely on their criminal activity as the basis for their claim

Question 87

Mere disappointment and embarrassment are not a kind of harm that is recoverable in the tort of negligence.

Question 88

The Latent Damage Act 1986 provides that a claim can be brought within six years of the date of accrual or three years from the earliest date on which the claimant knew, or reasonably ought to have known, material facts necessary to bring an action alleging negligence (the starting date). However, there also is a longstop provision of 15 years.

Question 89

The mother/father has a relationship of control over their young child and therefore a duty to take reasonable care to prevent them from causing harm. The mother/father will breach this duty by failing to take reasonable care to supervise their child, and therefore their breach can be deemed to be be the cause of damage, death etc.

Question 90

While a defendant generally does not owe a duty to exercise control over a third party to prevent them from causing harm to the claimant, such a duty may arise when the defendant has control over the third party or has assumed responsibility for the third party’s actions. For example, a parent has control over their young child and has a duty to take reasonable care to prevent the child from causing harm to others.

Question 91

Trespass to land is an unlawful direct interference with the claimant’s possession of land. The defendant’s actions must be intentional, but the defendant need not intend to trespass