Torts

Question 1

What is a tort?

Answer 1

A civil wrong independent of contract.
Protects consumers from business negligence, imposing a duty of care.

Question 2

What is fault liability?

Answer 2

Example of negligence.
Someone at fault, enabling injured party to seek compensation for resultant loss/injury.

Question 3

What is the time limit regarding Torts law?

Answer 3

Action bought within 6yrs of occurred date.
Claim for personal injury within 3yrs of date committed or from when injury to tortfeasor became known.

Question 4

What is the difference between contract and tort law?

Answer 4

Contracts:
- Parties voluntarily accept contractual obligations.
- Breach of contractual obligations, motive/excuse irrelevant.
- Damages put parties in pre-contractual position.

Torts:
- A duty of care established on parties by law.
- Liability usually fault based.
- Damages put parties in pre-tort position

Question 5

What is Lord Atkin’s neighbour priniciple?

Answer 5

Reasonable care must be taken to avoid any foreseeable actions which would likely cause injury to a person closely and directly effected by your act in question.

Question 6

What is the 3 stage test?

Answer 6

Claimant to prove defendant is liable of a tort, must show:
- Defendant owed them a duty of care
- There was a breach of their duty
- Claimant suffered reasonably foreseeable damages as a result of the breach

Question 7

What is considered in the first stage of the three stage test?
Is there a duty of care?

Answer 7

• The proximity of relationship - use neighbour test (Donoghue v Stevenson, 1932).
• Foreseeability of loss (Bourhill v Young, 1942).
• Is it fair, just, and reasonable to impose duty (Caparo, 1990).
• Is there accepted duty in regards to the relationship? If so, three stage test may be skipped all together. (Darnley v Croydon Health Service NHS Trust, 2018).

Question 8

What is considered in the second stage of the three stage test?
Is there a breach of their duty?

Answer 8

• Courts apply reasonable man test objectively. Defendant must have considered short comings of others, no allowance for lack of experience/intelligence in the circumstances.
• Courts weigh up likelihood of harm and potential seriousness against cost of prevention by defendants actions.

Objective standards = Nettleship v Weston, 1971.
Higher standards expected of professionals = Botton v Stone, 1951.

Question 9

What is considered in the third principle in the three stage test?
Where the damages foreseeable?

Answer 9

• Claimants must show they would not have been injured but for defendants behaviour (‘but for’ principle).
• Unbroken chain of causation. Barnett v Chelsea Hospital, 1969.
• Damage must not be too remote = The Wagon Mound, 1961.
• The eggshell skull rule = Smith v Leech Brain, 1962.

Question 10

What is the eggshell skull rule in tort law?

Answer 10

A defendant will be responsible for the damage caused as-is, even if the victim had a pre-existing condition that made him or her predisposed to serious injury.

Question 11

What are defences against claims of negligence?

Answer 11

Complete or partial defences which effects extent of liability:
- Illegality
- Consent
- Contributory negligence
- Necessity

Question 11

How is illegality a defence against negligence?

Answer 11

Where the claimant has committed an illegal act they may be prevented from raising a negligence action.

Example case = Ashton v Turner, 1980
Exemption case = Moore Stephens v Stone & Rolls Ltd, 2009

Question 12

How is consent a defence against negligence?

Answer 12

• Complete defence.
• Express agreement to particular risk of damage (surgery consent form).
• Implied from the conduct of the claimant due to the actions of volunteering.
• Merely participating in a regulated, physical sport such as rugby does not mean participant agrees to suffer injury and not seek a remedy.

Question 13

How is contributory negligence a defence against negligence?

Answer 13

Law Reform Act, 1945:
Where claimant has suffered damage as a result of their actions and that of the defendant, their damages recoverable will be reduced to such extent as the court thinks just and equitable.

“Contributed to their own misfortune”

Jackson v Murray & another, 2015

Question 14

How is necessity a defence against negligence?

Answer 14

• Defendents actions necessary to prevent imment threat from worsening and their were no alternative course of action.
• Subjective tests that will be assessed by the court.

Necessity cannot succeed as a defence where situation leading to emergency arose due to defendants own actions.

Question 15

What are the remedies of damages for tort law?

Answer 15

Aims to place injured party in pre-tort position.
Damages are not subject to tax.
Where tortious act involves no real loss to claimant (trespassing), court may award nominal damages.

• Law Reform (Miscellaneous Provisions) Act, 1934 - Where injured party has died, financial support for family including lost earnings & funeral expenses.
• Fatal Accidents Act, 1976 - provides spouses and parents of deceased minor statutory claim (£11,800).

Question 16

What is involved in the remedies of damages in tort law?

Answer 16

• Physical & mental damages
• Tortious act involves no real loss to claimant
• Death to injured party = compensation to family

Question 17

What are the remedies of injunctions for tort law?

Answer 17

• Injunctions awarded at discretion of court and require a court order to stop subject from committing the tort.
• Failure results in fine/imprisonment.
• Prohibitory, Mandatory, Interim injunctions.

Question 18

What is a prohibitory injunction?

Answer 18

Requires that defendant ceases the action that is causing the tort.

Question 19

What is a mandatory injunction?

Answer 19

Requires defendant to act in a way to prevent tort being committed.

Question 20

What is an interim injunction?

Answer 20

Prevents a tort from being committed and any further damage being sustained until the case comes to court.

Question 21

How does tort law deal with economic loss?

Answer 21

• Pure economic loss is not recoverable.

Economic loss is recoverable if:
- The loss is based on physical damage to claimants property.
- Negligence caused claimant to acquire defective goods or property.
- It stems from a negligent mistatement.

Question 22

How does tort law deal with professional advice?

Answer 22

Bolam Test -
Business specialists/advisors who cause their client loss due to negligence won’t be guilty if they acted in accordance with a practice of competent, professional opinion.
(Unlike, Bolam v Hospital Management Committee, 1957).

If client is called upon to exercise some discretion/autonomy in making a decision, they will not be guilty of economy loss.
O’Hare v Coutts & CO, 2016.

Question 23

How does tort law deal with negligent mistatements?

Answer 23

An inaccurate statement made honestly but carelessly in the form of advice given by an expert party, to a novice party.
Defendent owes claimant a duty of care.

Candler v Crane, Christmas & Co, 1951.
Hedley Byrne v Heller & Partners, 1963.

Question 24

What constitutes a special relationship in tort law?

Answer 24

• Claimant relied on defendant’s skill and judgment.
• It was reasonable in the circumstances for the claimant to rely on the defendant.
• Defendant knew, or reasonably should have known, that the claimant was relying on them.

Question 25

Example cases based on the liability of accountants/professionals where special relationships were considered…

Answer 25

• Accountants = Caparo Industries v Dickman, 1990.
• Lawyers = Ross v Caunters, 1979.
• Surveyors = Smith v Eric Bush; HArris v Wyre Forest District Council, 1989.

Question 26

How does tort law deal with non-physical psychiatric damage?

Answer 26

• Psychiatric injuries in businesses due to increased stress and burdens placed on employees.
• Businesses held liable they don’t action a sufficient remedy for employees psychiatric injuries. Duty to protect health and safety of employees.
• Businesses entitled to expect employees to -withstand normal pressures of job.

Intel Corp v Daw, 2007.
Barber v Somerset County Council, 2004.

Question 27

How does tort law distinguish a primary victim?

Answer 27

Claimants who have suffered some form of psychiatric injury as a result of being in the zone of physical danger of fearing for their own safety.
Page v Smith, 1995.

Question 28

How does tort law distinguish a secondary victim?

Answer 28

Must exist some direct relationship between injured party and claimant (close proximity).
No physical injury and no fear for safety.

Alcock v Chief constable of South Yorkshire.

Question 29

How did the House of Lords establish liability as a secondary victim?

Answer 29

• Must exist close proximity between claimant and injured party.
• Claimant must have been present at scene of accident or in the immediate aftermath.
• Claimant must have percieved directly the events of the accident or immediate aftermath.

Question 30

What is Occupiers Liability?

Answer 30

Occupiers of premises owes a duty of care to visitors and trespassers. Premises must be reasonably safe for its purposes.

Wheat v Lacon (1966) - occupier is who has a degree of control over the state of the premises.

Question 31

How does Occupiers Liability vary with visitors?

Answer 31

• Visitor = person who comes onto premises with express/implied permission of the occupier.
• Express permission = determined on a question of fact, because person was invited onto premises, they are not invited to all parts of the premises (trespassing).
  Implied permission = when an occupier knows their land is being used by trespassers, but does nothing to prevent their activities.

Obligation to ensure safety of non-safety (s.(14)), unless there had been adequate warning/protective measures to minimize risk (s.1(15)).

Question 32

What is considered to “reduce the risks” in Occupiers Liability?

Answer 32

Risk assessments, identify specific dangers, take preventative measures.

Question 33

What is Vicarious Liability?

Answer 33

Vicarious = second-hand/indirect
Employers are vicariously liable for torts committed by employees and may have to compensate the injured party, unless employers can prove:
- The worker was an independent contractor, not an employee.
- Tort was not committed in the course of employment.

Question 34

How is Vicarious Liability defined in Hudson v Ridge Manufacturing?

Answer 34

A doctrine whereby an employer will be held liable for the torts of his employees.
Only requires employer to have some relationship with tortfeasor for the law to hold them responsible.
If a claim is successfully made against employer, they can bring an action to recover from the employee under the Civil Liability (Contribution) Act 1978.

Question 35

Example cases of Vicarious Liability in the course of employment?

Answer 35

• Century Insurance Co. v Northern Ireland Road Transport Board, (1942).
• Limpus v London General Omnibus Co. (1862).
• Crook v Derbyshire Stone Ltd (1956).

Question 36

What were the House of Lords rules regarding Vicarious Liability establised in the case of Smith v Stages?

Answer 36

• Employees travel between their ordinary residence and work are not considered to be acting in the course of employment unless contractually obliged to do so.
• Travelling between workplaces is in the course of employment.
• Employee paid to travel by any means/time, journey is in the course of their employment.
• Employee travels from ordinary residence to an unusual place of work or to an emergency, employee is acting in course of their employment
• Deviation/Interruption of journey would for that time take employee out of course of their employment.

Question 37

How does deviation from a task effect Vicarious Liability?

Answer 37

Not acting in the course of their employment if they are doing the opposite of what they are instructed. Employer not held liable.
Storey v Ashton [1869]

Question 38

How does criminal acts effect Vicarious Liability?

Answer 38

Where employee acts outside of their employment, no liability for employer.
Daniels v Whetstone Entertainments and Allender (1962).