Torts Flashcards
When are bereavement damages available to a parent?
Bereavement damages are only open to a parent where the deceased was a minor (and unmarried).
Who can make a claim for bereavement damages?
- Spouse or Civil Partner
- Cohabiting partner of deceased (as spouse for at least 2 years immediately before death)
- Parents of a minor, unmarried child
What is Pure Economic Loss
1) Damage to property that does not belong to the claimant
2) Damage to defective product acquired by claimant
3) Financial loss not flowing from damage to the claimant’s person or property
Younder brother often used older brother’s lawn mower but it began showing signs of wear. He went to get it fixed, and the repairman negligently reinstalled the blade. When younger brother next used the mower, the blade flew off, irreparably damaging the mower and cutting an unsightly gash in a tree on the younger brother’s property. The younger brother had to purchase a replacement mower to finish mowing his lawn.
What can the younger brother recover from the repairman?
CANNOT RECOVER:
- Damages for the broken lawn mower (pure economic loss)
- Replacement lawn mower (did not flow from damage to his own property)
CAN RECOVER:
- The damage to his tree (his property and is not pure economic loss)
What is the effect of a deceased claimant’s contributory negligence when the decedent’s estate brings a claim for the benefit of the estate and for the benefit of their dependants?
The deceased claimant’s contributory negligence will reduce both the damages awarded in the claim for the benefit of his estate and the damages in the claim for his dependants.
If an employee commits a tort while in breach of company policy, how does this effect the employee’s/the company’s liability?
It doesn’t!
The company will still be vicariously liable if the employee’s disobedience was for a purpose which furthered the company’s business, so long as it was not outside the scope of the employment.
EXAMPLE: Employee brings a passenger with them while delivering packages, against company policy, then hits a pedestrian. While in breach of this policy, the employee still furthered the company’s business- the policy only limited the way in which the employment was carried out rather than the SCOPE of the employment.
How do courts assess whether there has been a breach of duty in a negligence case?
In assessing whether D’s conduct fell below the reasonable standard of care, court will balance:
- Magnitude of the risk (likelihood and/or seriousness)
- The practicability of taking precautions (cost, acting in emergency?)
Could D rely on the defense of contributory negligence here:
D was driving a lorry with unsecured cargo in the back. A piece of cargo falls out and goes through the windscreen of the car behind, injuring the driver, P.
P was not wearing a seatbelt, but was otherwise driving carefully.
No. Contributory negligence requires that the claimant (1) failed to take reasonable care for her own safety, and (2) that failure contributed to the harm suffered.
Here, the car driver did fail to take reasonable care by failing to wear a seat belt, but that failure did NOT contribute to her head injury.
What is required for the defence of contributory negligence to apply?
Contributory negligence requires that the claimant (1) failed to take reasonable care for her own safety, and (2) that failure contributed to the harm suffered.
Could D rely on the defence of contributory negligence here:
A nanny was looking after a young child, but was not paying attention to them. The child jumps into a canal nearby, and D negligently hits the child with their boat.
No. The defence of contributory negligence requires the CLAIMANT to be negligence.
Here, the claimant would be the young child, who could not be found negligent. The other negligence here came from the nanny.
D would therefore need to seek contribution from the nanny, if the childs injuries were the result of multiple, indivisible causes.
When is an UNLAWFUL INTERFERENCE for the purposes of a nuisance claim.
Reminder: Private niusance is an unlawful interference with the claimant’s use and enjoyment of land.
An interference is unlawful when it is SUBSTANTIAL and UNREASONABLE. Consider:
- Intensity, duration, time of day
- Character of neighbourhood
- Claimant’s abnormal sensitivity (not an unreasonable interference)
- Maliciousness of conduct
By statute, who may claim bereavement damages?
- Spouse or civil partner
- Cohabiting partner living with deceased for at least 2 years before death
- Parents of an unmarried minor
Who may claim for loss of dependency?
Anyone who is:
- An eligible dependent (same people who can recover bereavement damages + children of deceased)
- Financially dependedent on the deceased.
What two claims can arise on death?
- The deceased existing cause of action may continue for the benefit of the estate
- If the claimant dies as the result of a tort, a new cause of action may arise for the benefit of their dependents and for bereavement.
What are the 2 kinds of liability for defective products?
- Liability based on NEGLIGENCE
- Liability based on CPA
From/To is the duty of care owed in cases of defective products based on NEGLIGENCE?
From the manufacturer of the product (or those who install/repair products) to any reasonably foreseeable person likely to be affected by a defect in the product.
A retailer/supplier of the product will generally NOT have a duty of care in negligence. However, they do if they reasonably ought to have inspected the product for defects before supplying it.
How does liability for defective products differ under the CPA (compared to common law negligence)?
CPA creates strict liability for damage caused by defective products.
- Fault on the part of D not required
- P just needs to prove defect in the product
Who may be a defendant in a products liability suit based on the CPA?
- Producer/ manufacturer
- Any person holding themselves out as the producer
- Suppliers, if the supplier fails to identify the producer after P requests, and P cannot practicably identify the supplier themselves.
Defences to products liability suits under the CPA
- No defect when product firts put into circulation
- D did not supply the product in the course of business
- “State of the Art” defence (i.e., the technology at the time the product was produced would not have allowed D to find the defect or it’s risks. NOTE: If the risks are known but undetectable, D cannot rely on this defence).
Can an employer be relieve of vicarious liability for negligence by showing that an employee underwent rigorous background checks, but still committed a tort in the course of their employment?
No.
Who may sue for private nuisance?
Anyone with a proprietary interest in the land.
- Includes tenants who do not own the land.
