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DP1 - Principles of Insurance > Torts > Flashcards

Torts Flashcards

1
Q

What is a tort?

A

A civil wrong for which the remedy is an action in common law.

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2
Q

What is usually the source of tort law?

A

Generally from past decisions of the civil court.

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3
Q

What is the principle of damnum sine injuria?

A

Harm done without any legal wrong doing, eg there is no legal duty to save a drowning man even if you can swim

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4
Q

Torts may be broadly classified as the following;

A
  1. Negligence
  2. Nuisance
  3. Trespass
  4. Strict Liability
  5. Statutory liability
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5
Q

Negligence was defined in what case?

A
  • Blyth v Birmingham Waterworks Co 1856 as ‘the omission to do something which a prudent and reasonable man would not do.’
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6
Q

Blyth v Birmingham Waterworks Co 1856;

A
  1. Water company whose pipes allowed water to escape & flood a man’s house during an extreme frost.
    “an omission to do something which a prudent & reasonable man would not do.”
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7
Q

In order to prove negligence, the planitiff must have (DCB)

A
  1. Defendant owes him a DUTY of care
  2. Defendant was in breach of that duty
  3. Plaintiff suffered loss or damage as a result of the breach
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8
Q

Donoghue v Stevenson (1932)?

A
  • Duty of care, neighbour test.
  • Ginger beer drank by D, couldn’t see contents, decomposed snail within, personal injury as a result.
    “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
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9
Q

Petrovitch v Callinghams (1969)?

A
  • Duty of care
  • Decorators working in house left front door unlocked, while away thief stole jewellery.
  • Court found decorators owed duty of care to householder and that loss was reasonably foreseeable.
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10
Q

What is the standard for a duty of care?

A
  • Objective
  • Determined on the facts of each case
  • The greater the risk of injury or damage, the greater the duty of care owed.
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11
Q

The court will consider 3 factors in relation to duty of care;

A
  1. Magnitude of risk
  2. The ease of which the risk could be eliminated
  3. The state of technical or scientific knowledge
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12
Q

Plaintiff will have to prove defendant owed him duty of care. What defences are available to the defendant to avoid liability? (8)

A
  1. Self defence
  2. Inevitable accident
  3. Act of God
  4. Volenti non fit injuria
  5. Necessity
  6. Statutory Authority
  7. Limitation
  8. Contributory Negligence
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13
Q

Self defence - to avoid liability - what is it?

A
  • Person may use force to protect self and family/ property & possessions
  • Force used must be reasonable in response to harm that they would suffer & be proportionate in the circs
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14
Q

Inevitable accident - to avoid liability - what is it?

A

Accident occurred could not be avoid even with any reasonable precautions.

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15
Q

Act of God - to avoid liability - what is it?

A

Must involve natural forces (eg earthquake, exceptional strong rain/winds) without the any human involvement.

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16
Q

Volenti non fit injuria - to avoid liability - what is it?

A

Person aware of the risk and voluntarily accepts it. Must be demonstrated that the claimant knew the risks and accepted orally, in writing or by conduct.

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17
Q

Necessity - to avoid liability - what is it?

A

If defendant carries out acts which are reasonable to prevent a person or property from danger, a defence of necessity may be argued.

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18
Q

Statutory Authority - to avoid liability - what is it?

A

If it can be demonstrated that a statue permits the negligent act, it can be a defence to an action

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19
Q

Limitation - to avoid liability - what is it?

A

Claim may be statute barred in the plaintiff brings the action outside the period of time allowance by law.
- Limitation Act 1980; property damage within 6 years of the date of the incident.
- Personal injury; within 3 years of the cause of action occurring.

20
Q

Contributory Negligence - to avoid liability - what is it?

A
  • No longer a defence to liability
  • Damages can be reduced
  • Froom v Butcher (1976), motor accident, no seat belt, reduction in 25% of damages awarded.
21
Q

What is nuisance? (3)

A
  • Concentrates in a protection or right of interest
  • Usually associated with land
  • Looks at persons actions as an outcome rather than whether that person confirmed to any particular standard of conduct or duty of care
22
Q

What are the two types of nuisance?

A
  1. Public nuisance
  2. Private nuisance
23
Q

What is a public nuisance? (3)

A
  • Involves carrying on any activity or inconvenience to the public or section of the public
  • Usually a crime and dealt with by the police
  • Public nuisance may be dealt with under private if individual suffers extensive damage in comparison to the public.
24
Q

What is a private nuisance? (2)

A
  • Unlawful interference with the use or enjoyment of a person’s land
  • Needs to be damage to property and needs to be shown to have been going on for period of time and not a ‘one off.’
25
Q

What are the defences available to nuisance? (4)

A
  1. Statutory Authority
  2. Prescription
  3. Lawful use of land
  4. Triviality
26
Q

Statutory Authority - defence to nuisance - what is it?

A
  • If actions of defendant are authorised by the statutory there may be a defence.
27
Q

Prescription - defence to nuisance - what is it?

A
  • Prescription Act 1832, if nuisance has existed constistently for over 20 years, the nuisance cannot be challenged under this act.
  • Defence not effective if there is a change in circumstances
28
Q

Lawful use of land - defence to nuisance - what is it?

A

Defendant may prove that use of his land does not prove to be a nuisance.

29
Q

Triviality - defence to nuisance - what is it?

A

Defendant may prove that the omission or act is small and trivial and does not cause any damage.

30
Q

Remedies in action on nuisance? (3)

A
  1. Damages; payment of compensation in respect of damage caused.
  2. Injunction; Application may be made for court to enforce that the defendant stop any further acts that would continue or perpetrate the nuisance.
  3. Abatement; Injured party can take steps to stop or remove nuisance, but most not infringe the others rights. Everything to be returned to neighbour.
31
Q

Trespass?

A
  • Direct interference with someone’s property, it’s person, land or goods.
32
Q

Trespass to the person?

A

May involve;
1. Assault
2. Battery
3. False Imprisonment

33
Q

Trespass to the land?

A

Direct interference with land belonging to another

34
Q

Trespass to land can arise through; (3)

A
  1. Unlawfully entering the land of another.
  2. Unlawfully remaining on land where permission is revoked or time limit present has expired.
  3. Unlawfully throwing objects or rubbish onto ones land.
35
Q

Trespass to goods? (2)

A
  • Negligent interference with the possession of goods belonging to another.
  • Selling borrowed items, receiving stolen property or theft.
36
Q

Strict liability?

A
  • Strict liability may be imposed on the defendant in circs where there is no breach in the duty of care
  • Onus will shift to the defendant to prove a defence applies rather than the plaintiff having to prove a fault
37
Q

Rylands v Fletcher (1868)?

A
  • DEFINITION OF STRICT LIABILITY
  • Established that occupier of land who brings onto the land something which is likely to cause damage (something dangerous) if it escapes is liable for the damage as a result of it’s escape.
  • Defendant engaged contractors to build a reservoir on land to provide water to his mill. Contractor filled reservoir with water and it escaped, flooding the plaintiffs mine. No negligence on behalf of contractor or defendant, but claim succeeded and defendant was held liable.
38
Q

Possible defences to a strict liability claim? (4)

A
  1. Statutory Authority; actions of defendant are authorised by an Act of Parliament may be a defence to action under Rylands v Fletcher, but claim may still proceed if there is negligence.
  2. Consent; if there is consent by plaintiff to the actions of the defendant. It may be possible to show that the risk of escape was accepted. May be implied but not stated.
  3. Act of a stranger; if occupier has no control over a stranger eg trespasser and could not have foreseen or prevented the escape.
  4. Act of God; event that couldn’t of been foreseen or guarded against.
39
Q

Liability for spread of a fire?

A
  • Does not follow same definition of Rylands v Fletcher
  • Under s86 of the Fires Prevention (Metropolis) Act 1774, no liability in respect of a spread of fire from an accidental cause.
  • If fire starts accidently but then spreads through negligence then liability will attach (Musgrove v Pandelis (1919)
40
Q

Musgrove v Pandelis (1919)?

A
  • Relates to liability for spread of fire
  • Car went on fire, ignition accidental and no negligence.
  • If driver turned off petrol supply, fire would have stopped
  • Didn’t and therefore allowed it to negligently spread, therefore court found that although accidental, liability was attached to negligent spreading.
41
Q

Statutory Liability?

A

There may be instances where liability attaches to a defendant by virtue of a Statute (Act of
Parliament).
- The plaintiff would need to demonstrate is that the statute applied in the circumstances, and that they had suffered loss or damage allowed for by the Statute. It would not be
necessary to prove negligence or other breach of duty on the part of the defendant.

42
Q

Water Industry Act 1991?

A
  • Act imposes strict liability on a water supplier in respect of damage caused by water escaping from mains supply pipe.
  • Defences available, one includes losses caused wholly by the action of the party who sustained the damage.
  • Only applies to leaks from supply pipes
  • If damage from surcharge or leak from a drain/sewer, need to prove negligence or breach on fault of the water undertaking.
43
Q

Riot Compensation Act 2016?

A
  • Where damaged caused by riot (Public Order Act 1986), subject to certain requirements & limits, the Police have a liability in respect of the damaged caused.
44
Q

Animals Act 1971?

A
  • Imposes strict liability in respect of injury or damage caused by a dangerous species and in some circs other animals.
  • Liability will also attach in respect of injury done to livestock by dogs & damage caused by straying animals.
45
Q

Hotel Proprietors Act 1956?

A
  • Does not impose liability
  • However, allows the hotelier or innkeeper to limit their liability to £50 for any one item or £100 in total for any guest subject to their compliance with e requirements set out in the Act.

DP1 - Principles of Insurance (22 decks)

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