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SQE1 - Flashcards > Tort 1 > Flashcards

Tort 1 Flashcards

(73 cards)

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1
Q

What is Negligence?

A

Is the breach of a legal duty to take care by the defendant resulting in loss or damage to the Claimant.

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2
Q

What are the 6 steps in general negligence?

A
  1. Loss of Damage
  2. Duty of Care
  3. Breach
  4. Causation
  5. Remoteness
  6. Defences
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3
Q

Who holds the burden of proof in Tort?

A

Claimant - on the balance of probabilities.

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4
Q

How to determine if a duty of care is owed?

A
  1. Precedent
  2. Loss is reasonably foreseeable
  3. Relationship between the parties (proximity)
  4. Fair, just and reasonable (policy)
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5
Q

What is the general rule regarding duty for omission?

A

There is no duty imposed for omission, except in specific circumstances.

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6
Q

What are the exceptions to the general rule of omission?

A
  1. Where there is statutory duty
  2. Where there is contractual duty
  3. Where D has sufficient control
  4. Where D assumes responsibility
  5. Where D creates a risk
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7
Q

What are the types of losses in general negligence?

A
  1. Physical Injury
  2. Psychiatric harm
  3. Property damage
  4. Economic Loss - consequential from personal injury or damage to property
  5. Pure economic loss
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8
Q

What is the key case in duty of care?

A

Caparo v Dickman

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9
Q

What is the 3 stage approach from Caparo v Dickman?

A
  1. Foreseeability
  2. Proximity
  3. Fair, just and reasonable
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10
Q

What are some policy considerations for determining if the duty was fair, just and reasonable?

A
  1. Floodgates
  2. Insurance
  3. Crushing liability
  4. Deterrence
  5. Maintenance of high standards
  6. Defensive practices
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11
Q

What is the duty of care for acts of 3rd parties?

A

No such duty is imposed on failure to prevent a third party causing harm to another.

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12
Q

What are the exemptions on duty of care from acts of 3rd parties?

A
  1. Sufficient proximity between the parties
  2. Sufficient proximity between Defendant and 3rd party.
  3. Defendant created the danger
  4. Risk was on Defendant’s premises
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13
Q

What are the stages to determine breach of duty?

A
  1. Standard of care to be expected of the defendant must be established. THIS IS A QUESTION OF LAW.
  2. All facts and circumstances must be examined to see if the defendant has fallen below the standard. THIS IS A QUESTION OF FACT.
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14
Q

What does the standard of care mean?

A

The starting point is that the defendant must behave as a reasonable person would in all the circumstances.

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15
Q

What is the professional standard?

A

It is based on what the reasonable professional in that field would have done. THE BOLAM TEST!

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16
Q

What is the Bolam test?

A

A professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of the professional field.

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17
Q

When does the Bolam test not apply in professional negligence?

A

When considering whether a medical professional is in breach of duty for a failure to warn of risks of procedures.

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18
Q

What is causation?

A

It is the link or nexus between breach and damage. The factual causation and legal causation must be determined.

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19
Q

What is factual causation?

A

The ‘but for test’ - on the balance of probabilities, but for the defendant’s breach of duty would the claimant have suffered their loss at that time and in that way? - 51% or more.

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20
Q

When does the ‘but for test’ not apply?

A

In cases where it is not possible to establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible.

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21
Q

What is apportionment?

A

Calculation to apply once factual causation has been established. Where there are multiple tortious factors which are known to have caused part of the loss, the courts apportions liability between all defendants.

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22
Q

What are multiple sufficient causes?

A

When the claimant suffers damage and a few weeks later suffers the same damage from a different defendant.

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23
Q

What is legal causation?

A

Involves considering whether there are any grounds upon which the link should be regarded as having been broken and as a matter of law, the defendant may be held liable.

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24
Q

What is Novus Actus Interveniens?

A

An intervening act that breaks causation: 1. Acts of God or natural events 2. Acts of the Claimant 3. Acts of 3rd parties

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25
What is remoteness in tort?
To examine the defendant's extent to its liability. Policy dictates that limits must be placed on the extent of loss recoverable.
26
What is the test of reasonable foreseeability?
A claimant only recovers if the type of damage suffered was reasonable foreseeable.
27
What is the thin skull rule?
The D must take V as he finds him. This means if the V has something unusual about his physical or mental state which makes an injury more serious, the defendant is liable for the more serious injury.
28
What are the types of defences in tort?
1. Consent 2. Contributory Negligence 3. Illegality 4. Necessity
29
What is the Defence of Consent?
Volenti non fit injuria - to which a man consents cannot be considered an injury.
30
What must D show for the defence of consent to be successful?
1. C had capacity to give valid consent to the risks 2. C agreed to the risks of injury 3. C had full knowledge of the nature and extent of the risks 4. C agreed voluntarily ## Footnote s149 Road Traffic Act 1998 - prevents the use of consent by motorists facing claims from their passengers.
31
What is the legal test for the defence of Contributory Negligence?
Where any person suffers damage as the result partly of his own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage but the damages recoverable shall be reduced to such extent as the court thinks just and equitable.
32
What is the defence of Illegality?
No action may be based in illegal cause. This defence applies when the claimant was involved in an illegal activity at the time they suffered their loss.
33
What is the test for the defence of illegality?
Step 1 - has C committed an illegal act at the time they suffered their loss caused by D? Step 2 - whether allowing recovery for something which was illegal would produce inconsistency and disharmony in law.
34
What is the defence of necessity?
When D's actions were necessary to prevent greater harm or to protect their own property or life.
35
What are the remedies in tort that court can award?
Injunctions and damages.
36
What is the aim of damages in tort?
To put the claimant in the same position they would have been in if the tort had not been committed.
37
What are the types of damages?
1. Special damages - provable and quantifiable financial losses at the time of trial. 2. General damages - future financial losses, which cannot be specifically proven. 3. Pain, suffering, loss of amenity award - expressed as a single lump sum.
38
How to calculate future losses?
Multiplier/multiplicand approach: take annual expense and multiply it by the number of years the loss will continue.
39
What is deducted from damages?
State benefits, contractual sick pay, redundancy payment received as a result of injury.
40
What are the damages when claimant dies?
The state can bring a claim and will be calculated on the same basis as a normal PI. There is no claim for future losses.
41
What are the bereavement damages?
Spouse, civil partner, cohabiting partner of the deceased or parents of an unmarried minor can claim it. This comes as a fixed sum.
42
Do employers have a duty to their employees?
Yes, this duty is personal and non-delegable.
43
What are types of employer's duties?
1. Safe and competent employers 2. Safe and proper plant and equipment 3. Safe place of work/premises 4. Safe systems of work, with adequate supervision and instructions
44
What is vicarious employer's liability?
When one party is held liable for the torts of another in the course of employment.
45
What is strict liability?
When one party is liable despite the absence of any fault.
46
What is needed for the employer to be vicariously liable for employee's actions?
Has to be an employment relationship, done in the course of employment.
47
What is employer's indemnity?
The employer may be entitled to seek indemnity from their employee should they be forced to pay damages in respect of the employee's tort.
48
What is an employment relationship?
It is one where there is a contract service.
49
How to identify the employment relationship?
1. Remuneration and mutuality of obligations 2. Control 3. All other contractual factors consistent with an employment relationship
50
What is the test to satisfy the employment relationship?
1. The employer is more likely to have the means to compensate the claimant than the tortfeasor. 2. The tort has been committed as a result of an activity being undertaken by the tortfeasor on employment's behalf. 3. The tortfeasor's activity is part of the business activity of the employer.
51
What is psychiatric harm?
It is a form of psychiatric illness that the claimant has suffered as a result of the perception of traumatic events.
52
Who is a primary victim in psychiatric harm?
Someone who suffers psychiatric harm as a result of reasonable fear to their own physical safety.
53
What is a secondary victim in psychiatric harm?
Suffers psychiatric harm due to fear for someone else's safety.
54
What is the test for primary victim?
To determine whether a primary victim is owed a duty of care, D must have reasonably foreseen that the claimant might suffer physical injury as a result of their negligence.
55
What is the secondary victims criteria?
Alcock criteria: a. psychiatric harm must be reasonably foreseeable b. proximity of relationship between C and victim (love and affection) c. proximity in time and space of the accident
56
What does the assumption of responsibility mean in psychiatric harm cases?
The defendant will owe a duty of care not to cause psychiatric harm where D has assumed responsibility to ensure that C avoids reasonably foreseeable psychiatric harm.
57
What is recoverable from Pure Economic Loss?
Refers to financial harm that is not the direct result of physical injury or damage to property caused by a defendant's negligence.
58
What are examples of pure economic loss?
1. Loss of profits due to a negligent act that doesn't cause physical damage. 2. Loss of value of a property due to a defective design or construction. 3. Financial losses incurred due to negligent advice.
59
Is duty of care owed for pure economic loss?
No.
60
What is pure economic loss?
Refers to financial harm that is not the direct result of physical injury or damage to property caused by a defendant's negligence.
61
What are the 3 exceptions to the general rule on pure economic loss?
1. Pure economic loss by negligent statements. 2. Wills - a solicitor owes a duty to the beneficiary. 3. References - duty of care is owed to the subject of the reference.
62
How can duty of care arise in pure economic loss from negligent statements?
1. Reasonable reliance. 2. Assumption of responsibility. 3. Special relationship of trust and confidence between the parties.
63
What are disclaimers?
Clauses used in statements, such as 'without responsibility', to avoid responsibility in certain situations.
64
What does the court take into account when reviewing disclaimers?
1. Were the parties of equal bargaining power? 2. Would it have been reasonably practical to obtain advice from an alternative source? 3. How difficult was the task being undertaken by D? 4. What are the practical consequences?
65
What is the definition of private nuisance?
Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant's land or their use or enjoyment of that land.
66
Who can sue in private nuisance?
Claimant must have a legal interest in the land, such as an owner, tenant in possession, grantees of an easement, or licensee with exclusive possession.
67
Who can be sued in private nuisance?
1. Creator of nuisance. 2. Occupier of land. 3. Owner of land if they authorized the nuisance or reasonably knew it would happen.
68
Who can be an occupier of the land?
Independent contractors working on a property, trespassers.
69
When is an owner of land liable for private nuisance?
Only if they authorized it by actively participating in it or by leasing the property in circumstances where there was a high probability that leasing would result in that nuisance.
70
What are the 4 elements that constitute private nuisance?
1. Indirect interference - sounds, smell, fumes, and vibrations. 2. Recognized damage - physical damage to property or sensible personal discomfort (SPD). 3. Continuous act - nuisance must be continuous. 4. Unlawful interference - factors include time and duration, locality, abnormal sensitivity, malice, D's lack of care, and excessive behavior.
71
What is sensible personal discomfort (SPD)?
Refers to an interference with a person's enjoyment of their land or property, not necessarily physical damage but rather an interference with their senses or well-being.
72
What are the defenses in private nuisance?
1. 20 years prescription. 2. Statutory authority - if all due care is exercised. 3. Consent from C. 4. Contributory negligence. 5. Act of a 3rd party. 6. Act of God.
73
What are the remedies for private nuisance?
1. Injunction. 2. Damages. 3. Abatement.

SQE1 - Flashcards (5 decks)

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