Week 9 Tort Law Flashcards
Tort definition
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
Crime definition
Act that harms society as a whole
Tort case claimant
Person who was wronged
Tort case defendant
Wrongdoer
May not be the person who committed the tort
Intentional Torts
Civil wrongs resulting from a deliberate act.
No intent to cause harm is required
Negligence
A civil wrong suffered when someone falls short of the ‘degree of care’ expected by a reasonable person in the circumstances
Strict Liability
This refers to imposing liability on a defendant without having to find fault (negligence or intent), such as data protection
Contractual liability
Two parties accept their obligations and the consequences in the event of a breach
Tortious liability
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.
To prove a tort of negligence:
Duty of care owed
Duty of care broken
Factual causation
Legal causation/remoteness
How to prove duty of care exists?
Use the caparo test
Caparo test
Relationship of proximity
Damage must be foreseeable
Imposition is fair, just and reasonable
Relationship of proximity (Caparo test)
Neighbour principle - sufficiently close such that tortfeasor should’ve had their interest in mind
Damage must be foreseeable (Caparo test)
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
Imposition is fair, just and reasonable (Caparo test)
If imposing liability would open the floodgates to an indeterminate number of claims, the courts may decide that liability should not be imposed
How to prove that someone breached their duty of care?
Reasonable persons test
Establish whether one’s behaviour fell below the standard of care expected
Reasonable persons test
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
How to prove causal link between the behaviour and the injury (for which compensation is sought)
But-for test
But-for test
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
But-for test is too narrow
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)
How to prove defendant is legally responsible?
Consider ‘new intervening acts’ and remoteness
New intervening acts
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
Remoteness
Consider the extent of the damage suffered by the claimant which should be attributable to the defendant
Limits of liability for negligence
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
Defences to claims of negligence
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)
Aim of damages
Place the claimant in the position they were before the tort was committed
Remedies for negligence
Damages to persons
Damages in case of death
Damages to property
Injunctions
Damages to persons
Direct losses incurred (income, medical, travel)
May also seek damages for pain and suffering and loss of amenity
Damages in case of death
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
Damages to property
Cost of restoration
Cost if replacement of goods/property was difficult/impossible to achieve
Prohibitory injunction
Requires that defendant ceases action that is causing the tort
Mandatory injunction
Requires the defendant to act to prevent the tort being committed
Interim injunction
Aims to prevent a tort being committed and any (further) damage sustained until the case comes to court
Limitations Act on torts
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
Vicarious liability
One party has the responsibility for a wrong committed by someone else
Vicarious liability for employers and employees
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
Arguments for vicarious liability
Consent argument
Enterprise risk argument
Deeper pockets argument
Deterring effect argument
Consent argument
Employer has expressly/implicitly authorised the employees actions by hiring them or failing to control them
Enterprise risk argument
Employer derives financial benefit from the work of the employee; so they should be responsible for the losses
Deeper pockets argument
Employer tends to have more money than the employee
Deterring effect argument
Holding an employer financially liable provides them with an incentive to stop torts from being committed
How to establish vicarious liability?
Show that the worker is an employee (multifactorial test)
Show tort was committed in the course of employment
Authorised act
If employee performs an authorised act and commits a tort, the employer is liable
Prohibited act
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)
Act incident to the employment
If an employee commits an act incident to the employment, the employer may be liable
Unlawful act
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)
Independent contractors liability
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
Defective products liability claims
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
Defective product definition
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
Damages for defective products
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
Defective product liability defences
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)
