Week 9 Tort Law

Question 1

Tort definition

Answer 1

Civil wrong namely against an individual or entity, for which the law provides a remedy (civil suit)
Not every civil wrong is a tort, such as breaches of contract

Question 2

Crime definition

Answer 2

Act that harms society as a whole

Question 3

Tort case claimant

Answer 3

Person who was wronged

Question 4

Tort case defendant

Answer 4

Wrongdoer

May not be the person who committed the tort

Question 5

Intentional Torts

Answer 5

Civil wrongs resulting from a deliberate act.

No intent to cause harm is required

Question 6

Negligence

Answer 6

A civil wrong suffered when someone falls short of the ‘degree of care’ expected by a reasonable person in the circumstances

Question 7

Strict Liability

Answer 7

This refers to imposing liability on a defendant without having to find fault (negligence or intent), such as data protection

Question 8

Contractual liability

Answer 8

Two parties accept their obligations and the consequences in the event of a breach

Question 9

Tortious liability

Answer 9

Doesn’t depend on this pre-existing relationship (Two parties)
It is imposed on entites without their knowledge or awareness. The remedies are the same.

Question 10

To prove a tort of negligence:

Answer 10

Duty of care owed
Duty of care broken
Factual causation
Legal causation/remoteness

Question 11

How to prove duty of care exists?

Answer 11

Use the caparo test

Question 12

Caparo test

Answer 12

Relationship of proximity
Damage must be foreseeable
Imposition is fair, just and reasonable

Question 13

Relationship of proximity (Caparo test)

Answer 13

Neighbour principle - sufficiently close such that tortfeasor should’ve had their interest in mind

Question 14

Damage must be foreseeable (Caparo test)

Answer 14

Should a person have reasonably foreseen the harms that resulted from their actions?
If a reasonable prudent person would’ve seen the harms, then a duty of care is recognised

Question 15

Imposition is fair, just and reasonable (Caparo test)

Answer 15

If imposing liability would open the floodgates to an indeterminate number of claims, the courts may decide that liability should not be imposed

Question 16

How to prove that someone breached their duty of care?

Answer 16

Reasonable persons test

Establish whether one’s behaviour fell below the standard of care expected

Question 17

Reasonable persons test

Answer 17

How would a reasonable person have acted under the circumstances
Reasonably competent person undertaking the same activity
Standard of care accounts for those with the same skills/expertise, lack of experience is ignored

Question 18

How to prove causal link between the behaviour and the injury (for which compensation is sought)

Answer 18

But-for test

Question 19

But-for test

Answer 19

But for the defendant’s breach of duty of care, would the claimant have suffered the injury that they did?
Positive -> No causative link
Negative -> Causative link, defendant is liable

Question 20

But-for test is too narrow

Answer 20

Doesn’t account for multiple causes (If you contributed to the damage/increased the risk, you’re liable)
‘Lost chance’ of recovery (Courts tend to dismiss such cases if the balance of probabilities isn’t met)

Question 21

How to prove defendant is legally responsible?

Answer 21

Consider ‘new intervening acts’ and remoteness

Question 22

New intervening acts

Answer 22

If a new intervening act occurs, the chain of causation could be broken
For an act of the claimant, it must’ve been entirely unreasonable in all circumstances
For a third-party act, the defendant is liable if the intervening act doesn’t cause the loss

Question 23

Remoteness

Answer 23

Consider the extent of the damage suffered by the claimant which should be attributable to the defendant

Question 24

Limits of liability for negligence

Answer 24

Limited to those damages suffered by the claimant which the defendant could reasonably foresee at the time when the negligence occurred.
Type of injury, not severity

Question 25

Defences to claims of negligence

Answer 25

Complete or partial Illegality (Claimant has committed an unlawful act) Consent (Explicit or implicit to the particular risk) Contributory negligence (Defendant contributed to the extent of the damage but wasn't the root cause) Necessity (Defendant acted in a way to prevent an imminent danger)

Question 26

Aim of damages

Answer 26

Place the claimant in the position they were before the tort was committed

Question 27

Remedies for negligence

Answer 27

Damages to persons Damages in case of death Damages to property Injunctions

Question 28

Damages to persons

Answer 28

Direct losses incurred (income, medical, travel) | May also seek damages for pain and suffering and loss of amenity

Question 29

Damages in case of death

Answer 29

Deceased financially supporting their family, dependants can claim for lost earnings, including funeral expenses Parents of deceased minor can claim £11800 under Fatal Accidents Act 1976

Question 30

Damages to property

Answer 30

Cost of restoration | Cost if replacement of goods/property was difficult/impossible to achieve

Question 31

Prohibitory injunction

Answer 31

Requires that defendant ceases action that is causing the tort

Question 32

Mandatory injunction

Answer 32

Requires the defendant to act to prevent the tort being committed

Question 33

Interim injunction

Answer 33

Aims to prevent a tort being committed and any (further) damage sustained until the case comes to court

Question 34

Limitations Act on torts

Answer 34

Actions in tort must be brought within six years of the date giving rise to action. For minors, this time limit starts when they turn 18 Doesn't apply to claimaints with mental disorders

Question 35

Vicarious liability

Answer 35

One party has the responsibility for a wrong committed by someone else

Question 36

Vicarious liability for employers and employees

Answer 36

Employers can be responsible for the torts of employees | While the employer is jointly liable, they can claim back the damages from the employee later

Question 37

Arguments for vicarious liability

Answer 37

Consent argument Enterprise risk argument Deeper pockets argument Deterring effect argument

Question 38

Consent argument

Answer 38

Employer has expressly/implicitly authorised the employees actions by hiring them or failing to control them

Question 39

Enterprise risk argument

Answer 39

Employer derives financial benefit from the work of the employee; so they should be responsible for the losses

Question 40

Deeper pockets argument

Answer 40

Employer tends to have more money than the employee

Question 41

Deterring effect argument

Answer 41

Holding an employer financially liable provides them with an incentive to stop torts from being committed

Question 42

How to establish vicarious liability?

Answer 42

Show that the worker is an employee (multifactorial test) | Show tort was committed in the course of employment

Question 43

Authorised act

Answer 43

If employee performs an authorised act and commits a tort, the employer is liable

Question 44

Prohibited act

Answer 44

If the employee performs a prohibited act and commits a tort, the employer isn't liable if the act was outside the scope of work (liable if not outside the manner of work)

Question 45

Act incident to the employment

Answer 45

If an employee commits an act incident to the employment, the employer may be liable

Question 46

Unlawful act

Answer 46

If an employee commits an unlawful act, then the employer may be liable if the act is closely connected to acts which they have authorised (closeness of connection test)

Question 47

Independent contractors liability

Answer 47

No liability for torts committed by independent contractors (they have their own insurance to satisfy claims) - unless the contractor commits a tort and the employer subsequently ratifies and assents to said act

Question 48

Defective products liability claims

Answer 48

``` Strict liability regulated by the Consumer Protection Act 1997 Must bring claims within 3 years Product contained a defect Claimant suffered damage Damage was caused by defect Defendant involved in supply chain ```

Question 49

Defective product definition

Answer 49

Defect in a product will be present if it is unsafe Considering the ordinary use of the product The relevant marketing and provisions/warning The time when the product was supplied

Question 50

Damages for defective products

Answer 50

Death, personal injuries sustained and property damage used by claimant Damage to claimant must exceed a cost of £275, not including damage to the product itself

Question 51

Defective product liability defences

Answer 51

Compliance with the law Non-supply of the product Non-existence of defect at manufacture Technical and scientific developments (wasn't possible to detect defect)