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Tort weaker areas Flashcards

1
Q

Illegality defence

A

Must be a close connection between illegal activity of C and injury they suffer
* So that the damage arises in such a way it would be contrary to public policy to allow C a remedy

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2
Q

Relevant factors when considering standard of care

A
  1. Cost of precautions
  2. Social value
  3. Likelihood of harm
  4. Seriousness of injury
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3
Q

Factual causation

A

But for D’s negligence, would C have suffered harm?
* On balance of probabilities i.e. more than 50%
* Most suitable to single cause harm situations

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4
Q

Can but for test be used re competing causes of harm (e.g. 20% chance it caused blindness)?

A

No - does not meet more than 50% required

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5
Q

How can but for test be satisfied re clinical negligence where breach is a failure to advise on a risk

A

If C can prove that they would not have had the treatment / deferred it had they been told of risk

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6
Q

How can factual causation for material contribution test (cumulative causes acting together) be satisfied?

A
  1. Starting point is ‘but for’ test
  2. If not, satisfied if D’s breach could be proved to have materially contributed to C developing disease where multiple causes operated together
    * i.e. ‘more than negligible’ contribution
    * also applies if sequential cumulative causes
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7
Q

How can factual causation be satisfied in industrial disease single-agency cases?

A
  1. Starting point is ‘but for’ test
  2. If not, can apply material increase in risk test
    * ONLY applicable to industrial disease, single-agency cases!
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8
Q

What is the specific mesothelioma exception?

A

Where multiple employers which exposed to asbestos, apply the material increase in risk test (even where unable to determine which employer responsible)
* Held jointly + severally liable (can recover damages from one or all)

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9
Q

How does the mesothelioma exception compare to Cs who developed lung cancer due to asbestos?

A

Can still apply material increase in risk test but damages will be apportioned relating to how long C worked at each employer (unlike mesothelioma)

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10
Q

Apportionment re consecutive causes of harm

A

Original D will remain responsible for harm, and later D only responsible to extent they make damage worse

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11
Q

Apportionment re non-tortious / unrelated subsequent harm

A

If fails to meet ‘but for’ test, original D will NOT be liable for that subsequent harm (e.g. unrelated work back injury), but will be up to the event.

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12
Q

Apportionment re equal / proportionate causes of harm (e.g. C hit by two negligent motorists)

A

But for test resulted in 50/50 liability - both Ds equally liable for material increase in harm

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13
Q

Factual causation re lost chance (e.g. boy fell out of tree and doctors’ failure to diagnose led to paralysis, would have been 25% chance of prevention)

A

Failed but for test due to likelihood of it happening
* If ‘lost chance’ is less than 50%, then on balance of probabilities, court is unlikely to find for C

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14
Q

What are general damages

A
  • Non-pecuniary loss
  • Future pecuniary loss
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15
Q

What are special damages

A

Past pecuniary loss

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16
Q

How to calculate future loss of earnings (general damages)

A
  1. Multipicand (gross annual loss and deduct things like tax, NI and incr. for e.g. likely promotion = net annual loss)
  2. Multiplier (period of time C not expected to work = period of future loss)
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17
Q

How to calculate future loss of earning ‘the lost years’ (general damages)

A

Loss of future earnings for lost years MINUS amount which C would have spent on themselves
* Deduct 25% for married person with dependants, and
* Deduct 33% for those with no dependents

Deduction only if C expected to die during period for which damages are calculated

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18
Q

What 3 things will be deducted from damages and in relation to what type of loss

A

The following will be deducted:
* state benefits
* contractual sick pay
* redundancy payments

RE:
* loss of earnings
* cost of care
* loss of mobility

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19
Q

What 4 things will not be deducted from damages

A
  1. Insurance payments
  2. Ill-health pensions
  3. Charitable payments
  4. Gifts
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20
Q

Aim of damages in tort claims

A

Backwards-looking: put C in position they would have been in but for D’s tortious act

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21
Q

LR(MP)A 1934 - which claims does this not apply to

A
  1. Defamation
  2. Bereavement damages claims
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22
Q

LR(MP)A 1934 - which sums will not be taken into account / deducted from damages

A
  1. Sums like insurance money payable on death or lump sum pension payments do NOT reduce damages
  2. Sums taken out of estate due to death will NOT be taken into account
    * EXCEPT reasonable funeral expenses paid for by estate
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23
Q

Grounds to bring claim under Fatal Accidents Act 1976

A
  1. Dependants must meet statutory definition, and
  2. Have reasonable expectation of financial benefit from deceased (not just monetary e.g. childcare, gardening)
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24
Q

How is claim calculated under FAA 1976

A

Also uses multiplier / multipland approach with same deductions made
* However, multiplier does not take into account remarriage prospects / any likely inheritance
* Multiplier based on period for which dependence might have continued i.e. until 18 / finished full-time education

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25
Statutory meaning of 'dependant'
1. Spouse / CP (incl. ex) 2. Cohabitee in 2 years immediately before 3. Person treated as parent by deceased 4. Child / other descendant 5. Any person treated as a child re marriage / CP 6. Issue of or / brother / sister / uncle / aunt of deceased
26
What can be claimed for under LR (MP)A 1934
1. Pain, suffering & loss of amenity 2. Loss of earnings 3. Care / services 4. Damages to personal property 5. Reasonable funeral expenses (*if paid for by estate)*
27
What can be claimed for under FAA 1976
1. Bereavement award 2. Dependency claim 3. Funeral expenses (*paid by dependants ONLY not estate)* 4. Loss of consortium (personal affection)
28
Only whom is entitled to bring claim for bereavement damages
1. Spouse / CP 2. Parents of unmarried minor (or mother if child illegitimate) 3. Cohabiting partner of deceased
29
Can you claim for damage to property belonging to another?
No
30
Negligent misstatements exception re pure economic loss - 3 requirements
1. **Special relationship** of trust/confidence between parties 2. Party preparing statement **voluntarily assumed risk** 3. **Reasonable reliance** on statement * *D knew or ought to have known that C was relying on it*
31
Test for voluntary assumption of risk re negligent misstatements
1. D knew the **purpose** for which the advice was required 2. D knew that the advice would be **communicated** to C (either specifically or as a member of an ascertainable class) 3. D knew that C was **likely to act** on the advice *without reasonable inquiry* 4. Advice was acted on by C to its **detriment** | PCLD
32
3 examples of pure economic loss
1. Economic loss not flowing from damage to person or property 2. Loss arising from damage to property of another 3. Defective items
33
Requirements to rely on exclusion notice
1. **Reasonable steps** must have been taken to bring the exclusion notice to C’s attention before tort was committed 2. The wording of the notice must **cover the loss** suffered by C
34
What should court consider when determining if disclaimer is reasonable?
1. Whether parties were of **equal bargaining power** 2. Whether it would have been **reasonably practicable to obtain alternative advice** 3. How **difficult** the task being undertaken is (for which liability is being excluded) 4. **Practical consequences**
35
Extent to which damages should be reduced re contributory negligence
To extent the court thinks **just and equitable**, considering causation & culpability
36
OLA 1957 - type of damage covered
1. Personal injury incl. death 2. Property damage
37
OLA 1957 - requirements to fall within Act
1. Suffered **loss** due to *state of premises* 2. Identify **occupier** 3. Prove they are a **visitor** 4. Establish that occupier **failed to take reaosnable care for visitor's safety**
38
OLA 1957 - duty of care
To take such care as is **reasonable in all the circumstances** of the case to see that the **visitor is reasonably safe** in using the premises for the purpose for which they are permitted to be there * directed at *visitors NOT premises*
39
OLA 1957 - 3 requirements to have discharged duty of care to independent contractor
1. **Entrusted work** to independent contractor (i.e. be reasonable) 2. Taken *reasonable steps* to ensure the contractor was **competent** 3. Taken *reasonable care* to ensure work was **properly done**
40
OLA 1984 - type of damage covered
Personal injury incl. death ONLY (NOT property)
41
OLA 1984 - what 3 conditions must be met for duty of care to arise
1. Occupier is **aware of the danger** / has reasonable grounds to believe it exists 2. Occupier knows / has reasonable grounds to **believe trespasser is in vicinity of danger** 3. Risk is one which in all the circumstances the occupier may **reasonably be expected to offer some protection** * *risk must be from state of premises NOT activity*
42
OLA 1984 - duty of care
Take such care as is reasonable in all the circumstances
43
Which defences apply to OLA 1957?
* Consent * Restriction / exclusion of duty * Warnings * Contributory negligence
44
Which defences apply to OLA 1984?
* Consent * Warnings * Contributory negligence * Illegality
45
Test for duty of care to arise re product liability under negligence
1. D is the **manufacturer** (anyone working on product before it reaches consumer) 2. Item causing damage is a **product** (incl. any packaging) 3. C is a **consumer** (anyone foreseeably protected) 4. Product reached consumer in the form which it left the manufacturer with **no reasonable possibility of 'intermediate examination'** (if examination would not have revealed defect, still liable) *NB: must prove all elements of negligence i.e. duty, breach, causation & loss* | CIMP ## Footnote Onus on claimant
46
RE product liability in negligence - if there is a warning to test product / use in particular way and C fails to do this, does this contitute an intervening act?
Yes - breaks chain of causation
47
Product liability under negligence - defences
1. Consent 2. Exclusion of liability (reasonable / fair) 3. Contributory negligence
48
CPA 1987 - what can be recovered?
1. Death + personal injury (no limit) 2. Property damage (must exceed £275 and not be business property) *damage to defective product NOT covered*
49
CPA 1987 - what type of liability does the Act impose
Strict liability and where multiple - joint + several
50
4 elements to be proved by C under CPA 1987 to bring claim
1. C has **suffered damage** (*not confined to buyer nor direct user, need not even be foreseeable V)* 2. **Caused by** 3. A **defect** (*i.e. safety not such as persons generally entitled to expect*) 4. In a **product** ## Footnote Burden on claimant
51
Can liability be excluded under CPA 1987
No
52
Limitation period re CPA 1987 claim
Within **3 years of**: * Injury / damage, or * When C knew or ought to have known Subject to **long stop of 10 years** from date of circulation of product *cf. negligence which allows 6 years unless PI*
53
Defences under CPA 1987
1. Defect is attributable to compliance with legal requirements 2. D did not supply the product (e.g. stolen goods) 3. D did not supply the product in course of business 4. Defect did not exist in product at time of supply (e.g. misuse of product, best before dates on goods, fair wear & tear) 5. State of scientific knowledge such that defect was not known and unforeseeable at date of circulation 6. Manufacturer of component parts is not liable if the finished product is defective, and the defect is due to the design of the finished product in line with instructions by the manager of the finished product *NB: contributory negligence also applies*
54
What is private nuisance?
An 'unlawful (substantial & unreasonable) interference with a person's use or enjoyment of land, or some right over, or in connection with it
55
Who can sue / be sued re private nuisance
Only those with exclusive possession rights can sue The following people can be sued: * Creator of nuisance * Occupier of land from which nuisance originates * LL that authorises nuisance
56
3 circumstances an occupier of land may be liable for private nuisances created by others
1. Created by **employee** *acting in course of their employment* 2. Created by **independent contractor**, *provided the nature of the work carried a special danger* of nuisance being created 3. Nuisance created by a **visitor, predecessor in title or trespasser, or by some natural occurrence**, provided the occupier *adopted or continued the nuisance* (subject to occupier’s means – fair & reasonable steps)
57
Only when is LL liable for authorising a private nuisance
1. They expressly or impliedly authorised the nuisance (i.e. inevitable result of the letting) 2. The nuisance existed at the start of the letting & LL knew or ought reasonably to have known of it 3. They covenanted to repair the premises, or has the right to enter to do so, & in either case, fails to make repairs, giving rise to the nuisance
58
3 different types of unlawful interference re private nuisance
1. Encroachment onto neighbour's land 2. Direct physical injury to neighbour's property 3. Interference with quiet enjoyment of land (*must materially interfere with ordinary human comfort)*
59
6 factors court will consider when deciding whether interference is substantial and unreasonable (private)
1. Duration / frequency of nuisance 2. Excessiveness of conduct / extent of harm (*how far removed D's conduct is from normal behaviour* 3. Character of neighbourhood 4. Sensitivity of C / property (*does not become unreasonable due to the fact it affects a sensitive user)* 5. Malice of D / extent of harm 6. Public benefit (rarely considered)
60
2 elements of public nuisance
1. An act or omission that **materially affects the reasonable comfort & convenience** of life of a group or class of people 2. C MUST have suffered **special damage**
61
Who can sue under public nuisance
1. Anyone affected by the public nuisance (NEED NOT have an interest in land) 2. Attorney General (on behalf of affected class) 3. Local authority (on behalf of residents OR itself) 4. An individual (if they have suffered special damage)
62
Who can be sued re public nuisance
1. Creator of nuisance 2. Person responsible for nuisance
63
Public nuisance - what is special damage?
Interference / inconvenience suffered by the class must be **over & above** the inconvenience caused to the class
64
Public nuisance - types of losses recoverable
1. Property damage 2. Consequential economic loss 3. Personal injury (unlike private / Rylands) *NB: type of loss must be reasonably foreseeable* *NB: unlike private nuisace, public nuisance can be a one-off, isolated event*
65
What losses are recoverable re private nuisance
1. Property damage 2. Consequential economic loss *NB: type of damage must be reasonably foreseeable*
66
Who can sue / be sued re Rylands v Fletcher
Who can sue? * Only those with exclusive possession rights Who can be sued? * D who brought the thing onto the land and/or owner-occupier (regardless of whether actually at fault)
67
Rule in Rylands v Fletcher
1. Did D bring & collect something onto the land likely to do **mischief**? 2. Did it **escape**? 3. Did it represent a **non-natural** use of the land? 4. Did it cause **foreseeable damage**? (*strict liability)* | MENF
68
Types of losses recoverable under Rylands v Fletcher
1. Property damage 2. Consequential economic loss
69
Defences to Rylands v Fletcher
1. Consent 2. Contributory negligence 3. Statutory authority 4. Act of God 5. Unforeseeable act of a stranger
70
Remedies re Rylands v Fletcher
Damages
71
Remedies for public and private nuisance
1. **Damages** (physical damage to C's and plus personal discomfort / inconvenience) 2. **Injunctions** (clean hands, where damages not adequate)*Only remedy available to A-G / local authority* 3. **Abatement** / self-help (must normally give prior notice except in emergency / can be abated without entry onto land)
72
Defences for public and private nuisance
1. 20 years' prescription (*PRIVATE ONLY)* 2. Statutory authority 3. Consent 4. Contributory negligence 5. Unforeseeable act of stranger 6. Act of God

SQE 2 (21 decks)

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