Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

COMP3219 > Week 9 Tort Law > Flashcards

Week 9 Tort Law Flashcards

1
Q

Tort definition

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Crime definition

A

Act that harms society as a whole

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Tort case claimant

A

Person who was wronged

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Tort case defendant

A

Wrongdoer

May not be the person who committed the tort

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Intentional Torts

A

Civil wrongs resulting from a deliberate act.

No intent to cause harm is required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Negligence

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Strict Liability

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Contractual liability

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Tortious liability

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

To prove a tort of negligence:

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

How to prove duty of care exists?

A

Use the caparo test

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Caparo test

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Relationship of proximity (Caparo test)

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Damage must be foreseeable (Caparo test)

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Imposition is fair, just and reasonable (Caparo test)

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

How to prove that someone breached their duty of care?

A

Reasonable persons test

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Reasonable persons test

A

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 well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

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

A

But-for test

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

But-for test

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

But-for test is too narrow

A

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 well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

How to prove defendant is legally responsible?

A

Consider ‘new intervening acts’ and remoteness

22
Q

New intervening acts

A

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

23
Q

Remoteness

A

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

24
Q

Limits of liability for negligence

A

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

25
Q

Defences to claims of negligence

A

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)

26
Q

Aim of damages

A

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

27
Q

Remedies for negligence

A

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

28
Q

Damages to persons

A

Direct losses incurred (income, medical, travel)

May also seek damages for pain and suffering and loss of amenity

29
Q

Damages in case of death

A

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

30
Q

Damages to property

A

Cost of restoration

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

31
Q

Prohibitory injunction

A

Requires that defendant ceases action that is causing the tort

32
Q

Mandatory injunction

A

Requires the defendant to act to prevent the tort being committed

33
Q

Interim injunction

A

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

34
Q

Limitations Act on torts

A

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

35
Q

Vicarious liability

A

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

36
Q

Vicarious liability for employers and employees

A

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

37
Q

Arguments for vicarious liability

A

Consent argument
Enterprise risk argument
Deeper pockets argument
Deterring effect argument

38
Q

Consent argument

A

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

39
Q

Enterprise risk argument

A

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

40
Q

Deeper pockets argument

A

Employer tends to have more money than the employee

41
Q

Deterring effect argument

A

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

42
Q

How to establish vicarious liability?

A

Show that the worker is an employee (multifactorial test)

Show tort was committed in the course of employment

43
Q

Authorised act

A

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

44
Q

Prohibited act

A

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)

45
Q

Act incident to the employment

A

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

46
Q

Unlawful act

A

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)

47
Q

Independent contractors liability

A

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

48
Q

Defective products liability claims

A 
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
49
Q

Defective product definition

A

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

50
Q

Damages for defective products

A

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

51
Q

Defective product liability defences

A

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)

COMP3219 (14 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions