Tort Flashcards
1
Q
What must one prove for negligence?
A
Duty of Care
Breach
Causation
Remoteness
2
Q
To determine duty of care (after no precedent found), what test is applied?
A
- Foreseeability of harm: must have been reasonably foreseeable that D’s lack of care would cause harm
- Proximity: relationship of sufficient proximity between D & C
- Fair, Just & Reasonable to impose duty
3
Q
What policy considerations are considered when determining what is ‘fair, just and reasonable’ for DoC?
A
Floodgates
Insurance (more likely to be liable if D is insured or should have been)
Crushing liability
Deterrence
Maintenance of high standards
Defensive practice
4
Q
What is the general position on duty of care for omissions?
A
No such duty is imposed on failure to act
(But would go through precedent & 3-stage test)
5
Q
What exceptions are there on the general rule for DoC for omissions?
A
Statutory duty
Contractual duty
Sufficient control over claimant
Assume responsibility for claimant
Defendant creates the risk
6
Q
What precedents are there for DoC for ambulance, fire brigade and police?
A
Ambulance: to respond to a 999 call, within a reasonable time
Fire Brigade: no DoC to attend fire, but if they do, owe duty to not make situation worse than positive act
Police: NO duty to respond to emergency calls - duty to public to prevent them for reasonably foreseeable injury when arresting
7
Q
What is the general rule for DoC for 3rd parties?
A
No liability imposed on someone for failure to prevent a 3rd party from causing harm
8
Q
What exceptions are there for general rule for DoC for the 3rd parties?
A
Sufficient proximity between D & C
Sufficient proximity between D & 3rd party
D created danger
Risk on D’s premises
9
Q
What is the position on public bodies owing a DoC?
A
May owe duty where principles applicable to private individuals would
Very hard to argue for omissions
Must consider policy considerations
10
Q
What are the 2 stages for considering whether D has breached DoC?
A
- Standard of Care
- Has D fallen below standard of care?
11
Q
What is the position on ‘standard of care’?
A
That of a reasonably competent person
Professionals: standard of a reasonable professional, focusing on act, not actor (standard not lowered/raised for experience)
For professionals, apply Bolam test: not in breach where they’ve acted in accordance w/ practice accepted by responsible body skilled in that field
12
Q
When is the Bolam test not applied for professionals?
A
For medical professionals who failed to advise a patient properly of material risks - must make patient aware of material risks & any reasonable alternative treatments (particularly ones they’d attach significance to)
13
Q
How does illness/disability affect standard of care imposed?
A
When they’re aware of impairment, should act accordingly - failure to do so, may mean they’re negligent
If they had no idea before act, SoC adjusted
14
Q
What factors are considered when determining if the D fell below the SoC?
A
Likelihood of harm
Magnitude of harm
Practicality of precautions
Benefit of D’s conduct
Common practice (court can rule the common practice itself is negligent)
‘State of the art’ defence: assess D’s knowledge against that of profession
Sport
15
Q
How does the ‘state of the art’ defence work under breach?
A
Unforeseeable risks can’t be anticipated so failing to guard against them won’t be negligence
16
Q
How does sport work as a factor considered under breach?
A
Nothing short of reckless disregard for C’s safety would constitute a breach
Heat of the moment risks allowed
17
Q
What is the meaning of ‘res ipsa loquitur’?
A
Where only plausible explanation for C’s injury is D’s negligence:
a) thing causing damage controlled by D
b) accident wouldn’t normally happen w/o negligence
c) cause of accident unknown to C
18
Q
What 2 things are required to prove causation?
A
Factual causation
Legal causation
19
Q
What is factual causation and how is it satisfied?
A
Establishing link between breach & damage
Apply ‘but for’ test: on balance of probabilities, but for D’s breach, would C have suffered their loss at that time, and in that way? If yes = satisfied
20
Q
Where breach is failure to advise on risks, how is the ‘but for’ test satisfied?
A
Where C can prove they wouldn’t have had the treatment or would’ve deferred it had they been told
21
Q
What test is used to satisfy factual causation for multiple causes operating together?
A
Material contribution test: ‘more than negligible’ contribution
Also applies to sequential cumulative cases
22
Q
What test is used for factual causation for industrial disease, single agency cases?
A
Material increase in risk test
23
Q
What must be applied if necessary once factual causation is satisfied, where there are multiple tortious factors?
A
Apportionment: apportion liability between defendants
In abestos cases, D’s are jointly and severally liable
24
Q
What happens where there are 2 distinct events that cause the same damage, or worsen existing damage, but events are not linked? (for factual consideration)
A
No damage could be held for 2nd event
25
How does one prove legal causation?
That there was a NAI that broke the chain of causation:
- Act of God: exceptional natural event (not if foreseen)
- Acts of 3rd Parties: highly unforeseeable (unlikely where 3rd party is medical treatment unless so gross & egregious)
- Acts of Claimant: highly unreasonable (rare)
26
What is 'remoteness' and how is it proved?
C only recovers if the type of damage suffered was reasonably foreseeable at time D breached DoC - broad approach mostly used
1. D need not foresee the exact way damage occurs
2. D need not foresee extent of the type of damage, even if damage aggravated by C's own weakness (thin skull rule)
27
What different types of losses are there?
Personal injury
Consequential economic loss
Psychiatric harm
Property damage
Pure economic loss
28
What are the 2 main remedies for personal injury & death?
Damages
Injunctions (rare)
29
What are the 2 types of damages for personal injury/death?
Special damages: specifically provable & quantifiable financial losses at time of trials
General damages: future financial losses, which can't be specifically proven & non-quantifiable losses e.g. compensation for injury
30
What deductions are made for calculating damages?
State benefits received as result of injury
Contractual sick pay received due to injury
Redundancy payment
31
What can be claimed by estate/family for death by way of compensation?
Estate can claim for any losses suffered by deceased up to date of death
Certain family can claim compensation if they depended on deceased
May also be able to claim bereavement aware and/or funeral expenses
32
What is pure economic loss and what is the general rule regarding it?
PEL: economic loss that does not flow from damage to C's person or property
General Rule: no DoC owed
33
What are examples of PEL?
Made bad investment
Loss arising from damage to property from another
Defective items
34
What are the exceptions to the general rule on PEL?
1. Negligent statement or act: w/ act, no DoC owed, w/ statement, may be owed
2. Negligent will
3. Negligent reference
35
What 3 tests can be applied to determine if a DoC is owed for a negligent statement?
1. Reasonable Reliance
2. Voluntary assumption of responsibility
3. Special relationship of trust and confidence
36
What is necessary to satisfy the reasonable reliance test?
1. C relied on D's advice
2. Reasonable for C to rely on D's advice: consider special skill/knowledge of D & C; general context in which advice given; nature of advice; potential risk to C; availability of 2nd opinion
3. D knew or ought to have known C was relying on their advice
37
What is necessary to satisfy the voluntary assumption of responsibility test?
Main Question: was relationship equivalent to a contract?
1. D communicates advice to C
2. D knows purpose for C will use advice
3. D knows/reasonably believes C will rely on advice w/o enquiry
4. C acted upon advice
38
What is necessary to satisfy the special relationship of trust and confidence test?
1. Party seeking advice trusted the other to exercise care
2. Reasonable for them to do that
3. Other gave advice knowing/ought to have known C was rely on it
39
How do disclaimers work re negligent statements?
D has taken positive steps against assuming responsibility for their words
Must be reasonable to avoid a DoC:
- parties of equal bargaining power?
- reasonably practical to get advice from another source?
- how difficult was task done by D?
- practical consequences?
40
What are the basic requirements for claims for psychiatric harm?
1. Suffered from a medically recognised psychiatric illness or shock induced physical condition
2. Categorise claimant
41
What is not sufficient to prove a medically recognised psych illness (for psych harm claims)?
Grief
Fear
Isolated flashbacks
Distress
42
What are the different categories of claimant?
1. Actual Victim
2. Primary Victim: someone caught up in incident but escapes physical injury, but suffers psych harm due to reasonable fear for their own safety
3. Secondary Victim: not caught up in incident & no physical harm, but suffer psych harm due to fear for someone else's safety
4. Beyond primary & secondary victims: where D assumed responsibility to ensure C avoids reasonably foreseeable psych harm
43
What are the requirements for a primary victim?
1. Must show physical harm was reasonably foreseeable
2. If yes, normal principles to establish DoC considered
44
What are the requirements for a secondary victim?
1. Psych harm reasonably foreseeable in person of ordinary fortitude in same circumstances
2. Proximity of relationship between C & victim: one of close ties & affection; rebuttably presumed for parent/child; husband/wife & engaged couples
3. Proximity in time & space: must be presence at scene/immediate aftermath & must see/hear it
4. Injury result of sudden shock
5. Fair, just & reasonable
45
What are occupational stress claims?
46
What are occupational stress claims?
Pysch harm caused by work stress:
1. Psych harm reasonably foreseeable to employer
2. Foreseeability depends on relationship between C's characteristics & employer's requirements (nature of work, signs of stress, size/scope of business/availability of resources)
47
What is employers' primary liability?
Where an employee sues their employer for breaching DoC owed to employee - duty is personal & non-delegable
48
What are the 4 obligations of employers (under EPL)?
1. Safe & Competent employees: where incompetent person employed = breach
2. Safe/Proper Plant & Equipment: owes duty to provide & maintain (incl. necessary safety features & protective clothing)
3. Safe Place of Work (access & way out): take reasonable care to ensure premises are safe, extends to 3rd party premises
4. Safe System of work (incl supervision & instruction): employer must take reasonable steps it's complied with; where employees refuse to use safety equipment, may not be negligent
49
What is the standard of care for EPL?
To take reasonable care, taking into account an employee's personal characteristics
50
What is applied to prove factual causation for EPL?
But For test
Employer may not be liable where show, even if safety equipment were provided, employee wouldn't have used it
May be necessary to give specific instructions about equipment in more dangerous situations
51
What defences apply for EPL?
Normal ones (although consent is rare) - contributory negligence most common
52
What possible defences are there for negligence & what type of defence are they?
1. Consent: complete defence
2. Illegality: complete
3. Contributory Negligence: partial
4. Necessity: complete
53
What are the requirements for consent defence?
1. Mental capacity
2. Full knowledge of risks
3. Agreed
4. Voluntary agreement
For sport, players consent to risks inherent in that sport
Cannot be used by motorists with claims from passengers
54
What are the requirements for an illegality defence?
C involved in illegal act at time loss suffered
1. C done illegal act
2. Consider: underlying purpose of prohibition; relevant public policy; is denial of claim proportionate to illegality
Where loss caused directly by illegal act, defence applies - where just context, won't apply
55
What are the requirement for a defence of contributory negligence?
C has some responsibility for damage suffered & deduction made to damages to reflect this
1. C failed to take reasonable steps for own safety (that of a reasonable & prudent person)
2. Failure contributed to damage
56
What allowances are there for the C for contributory negligence?
C placed in emergency
C is a child (take age into account)
Rescuers generally protected unless created the risk
Nature of duty considered
57
What is required to prove a necessity defence?
1. Acted in an emergency to prevent harm to C, 3rd party or themselves
2. They didn't cause the emergency
58
What is vicarious liability?
Where one party is held liable for torts of another, because of their specific relationship - here in employer context
59
What test is applied for vicarious liability?
1. Tort committed (by employee)
2. Employee is an employee of employer, or in a relationship akin to employment
3. Tort committed in course of employment
60
What factors are considered when identifying an employment relationship?
a. Remuneration & mutuality of obligations: employee being paid & employer providing work that the employee must do (0 hour contracts unlikely to be held as employment)
b. Control: the more control, the likelier an employee relationship
c. All other contractual factors consistent with employment e.g. tools & equipment provided; tax/PAYE treatment; benefits
61
What factors are considered for doubtful cases, to determine a relationship akin to employment?
Must be sufficiently analogous to employment to make it fair, just & reasonable
- Employer more likely to be able to compensate C
Tort committed due to activity undertaken by tortfeasor on their behalf
- Tortfeasor under employer's control
- Tortfeasor activity part of employer's business activity
62
Where an employer lends an employee, who is vicarious liable?
Still the original employer (although both employers could be)
63
What test is applied to show the tort was committed in course of employment? (for vicarious liability)
1. What functions entrusted to employee?
2. Was there sufficient connection between position in which they were employed & the wrongful conduct to make it fair, just & reasonable to hold employer liable?
Lunch breaks reasonably expected; are they going about employer's business at time?
If act unauthorised/specifically prohibited, seen as 'frolic of their own'
64
What is occupiers liability for visitors?
Occupier of premises owes common DoC to all visitors to take such care as is reasonable to see that the visitor will be reasonably safe in using premises for purpose, for which they were permitted
65
What can be claimed for under OLA 1957?
Personal injury
Property damage
66
What are the requirements to prove a DoC for occupiers liability for visitors?
1. Is D an occupier?
2. Is D occupier of premises?
3. Is C a visitor?
67
How is 'occupier' defined?
Someone w/ sufficient degree of control over premises - doesn't have to owner, can be occupier
4 Categories:
1. If landlord doesn't live there, tenant is occupier
2. If landlord retains some part of premises, they're occupier of those parts
3. If landlord issues a licence, they remain occupier
4. If occupier employs independent contractor, generally remain responsible
68
How is 'premises' defined?
Any fixed or moveable structure including vessels, vehicles or aircraft
69
How are 'visitors' defined?
Any person w/ express or implied permission to be on premises
This can be limited by notice, so visitor becomes trespasser e.g. by area, time or purpose
70
What standard of care is owed to visitors under OLA 1957?
To take such care as is reasonable so visitor will be reasonably safe in using premises for purpose for which they were permitted
Where occupier is aware of certain vulnerabilities, they can reasonably be expected to take such steps to guard against it
71
How is standard of care for OLA 1957 changed for children and persons entering in exercise of their calling?
Children: higher standard of care (where reasonable, can assume a child subject to parental care)
Persons Entering etc: lower SoC - reasonably expect them to appreciate & guard against risks incidental to their job
72
How can duty be discharged under OLA 1957?
With warnings: if they warn visitor of danger & are enough to be reasonably safe by describing what & where danger is, and how to avoid it
This will satisfy common DoC
Very obvious dangers don't always require warnings
73
How can duty owed to visitors be discharged through independent contractors?
General Rule: duty owed to visitors is non-delegable
Exception: independent contractors
a) Hiring IC must be reasonable
b) Selecting IC - must be reasonable choice
c) Supervising & Checking work: only what is reasonable
74
Once loss and breach shown for OLA 1957, what is assumed?
Causation & remoteness to be satisfied
75
What can be claimed under OLA 1984 by non-visitors?
Personal injury only
76
What's the definition of a trespasser under OLA 1984?
Someone who goes onto land w/o invitation & whole presence is either unknown to proprietor or if known, practically objected to
77
For a trespasser to be owed a DoC, what is required?
1. D aware of danger/reasonable grounds to believe it existed (requires actual knowledge)
2. D aware/reasonable grounds that C was in vicinity of danger or may come into vicinity, and knew this at time of accident (requires actual knowledge)
3. Danger one reasonable to expected D to protect trespasser from
78
What is the SoC for OLA 1984 for non-visitors?
That of a reasonable occupier - court considers normal factors plus:
- Nature of danger
- C is child or adult
- Nature of premises
- Purpose of C
- Whether occupier could/should have foreseen trespassing
79
What defences are there for both OLA 1957 and 1984?
Consent: must be fully aware of particular risk & shown through conduct
Contributory negligence (where C is a child, judged against reasonable child of same age)
80
What's the difference between the effect of a warning notice vs an exclusion notice?
Warning Notice: relevant to breach & whether D discharged DoC
Exclusion Notice: operates as potential defence once claim established
81
What restrictions are there on occupiers who can restrict/modify their liability?
a) Occupier can't, by contract, exclude/restrict common DoC which they owe to a 3rd party i.e strangers to contract who must be allowed to enter
b) Restricts use of clauses for B2B for personal injury/death or is not reasonable
c) for B2C, trader can't exclude/restrict liability if term/notice is unfair
d) Principle of common humanity
82
For product liability, how is 'product' defined?
Any good or electricity, including product comprised in another
83
How is 'defect' defined for product liability?
If safety of product is not such as persons generally are entitled to expect
84
What damage can be claimed for product liability?
Death
Personal injury
Property damage (not unless > £275 or where property intended for private use * intended by person suffering loss for private use)
85
Who may be liable for product liability?
The producer
Anyone who held themselves out as the producer
Anyone who imported product into the UK
86
When will someone who supplied a defective product be liable for product liability?
Where victim asks for producer's details w/in a reasonable time, they can't identify them & supplier fails to identify them
87
Who can bring a claim for product liability?
Anyone suffering damage due to defect
88
What defences are there for product liability?
Defect did not exist in product at relevant time
State of scientific/technical knowledge at relevant time
Contributory negligence
(Exemption clauses are not valid)
89
What time limitations are there for product liability claims?
Claim must be brought w/in 3 years from later of:
(i) Date damage occurred
(ii) C became aware/reasonably should have, of the damage
Long stop of 10 years after product put into circulation by D
90
What is private nuisance?
Any continuous activity causing substantial & unreasonable interference with a C's land or their use/employment of that land
91
Who can sue for private nuisance?
Must have a legal interest in the land, either possessionary or proprietary
92
Who can be sued for private nuisance?
Creator of nuisance
Occupier of land from which nuisance originates
Owner of the land
E.g. independent contractors (if occupier asks); trespassers/visitors/predecessors in title (occupier liable if adopt nuisance); naturally occurring nuisances (occupier liable where they knew & failed to take reasonable steps to abate it)
93
When can a landlord be liable for a tenant's nuisance?
Where they authorised it, by actively participating or by leasing, where there was a very high probability that leasing would create the nuisance
94
What losses are recoverable for private nuisance?
Property damage (more than de minimus)
Sensible personal discomfort (more than fanciful & must materially interfere with ordinary human comfort)
Consequential econ loss
95
What are the requirements for private nuisance?
1. Indirect Interference (intangible e.g noise, fumes)
2. Recognised Damage (that is reasonable foreseeable)
3. Continuous Act (unless a single incident caused by underlying state of affairs or for Ryland v Fletcher)
4. Unlawful Interference: must be unreasonable considering ordinary usage of a man living in a particular society (consider time/duration; area, abnormal sensitivity; malice; excessive behaviour)
96
What defences are there for private nuisance?
20 Years' Prescription: length of time C could have complained - no action taken within that time
Statutory Authority: where all due care has been exercised & nuisance is an inevitable consequence
Consent: C specifically agrees to D causing nuisance, or shown willingness
Contributory Neglignece
Act of 3rd Party: not liable unless adopt/continue nuisance
Act of God: not liable unless adopt/continue it
Necessity
97
What remedies are there for private nuisance?
Injunction (most common): full or partial
Damages: where nuisance caused physical damage
Abatement: self-help
98
What is public nuisance?
Any act or omission that materially affects a class of people
99
Who can sue for public nuisance?
An individual (who suffered special damage, over/above rest of class)
Local authority
Attorney General (where no individual action is possible)
100
Who can be sued for public nuisance?
Creator of the nuisance
Any person responsible for the nuisance
101
What must be satisfied for a public nuisance claim?
1. Act or Omission
2. One of Event or Continuous
3. Class: effect must be sufficiently widespread
4. Materially affects comfort & convenience (annoyance/irritation sufficient as long as it's material; loss must be reasonably foreseeable)
102
What damage is recoverable for public nuisance?
Personal injury
Property damage
Consequential econ loss
Pure econ loss
103
What defences are there for public nuisance?
same for private minus prescription
104
What remedies are there for public nuisance?
Damages (only for individual claims)
Injunction
105
What is the rule in Rylands v Fletcher?
Where something escapes from D's land to C's land causing foreseeable damage
106
Who can sue under Rylands v Fletcher?
Must have proprietary interest in land affected
107
Who can be sued under Rylands v Fletcher?
Person who brings, collects & keeps the thing onto the land
Person who has control over the land (owner/occupier)
108
What damage is recoverable for Rylands v Fletcher?
Property damage
Consequential econ loss
109
What are the requirements for Rylands v Fletcher?
1. C must suffer some damage
2. D brings thing onto land & accumulates there for own purposes
3. The thing is likely to do mischief if it escapes (must be exceptionally high risk)
4. Escape (can be slow, over a period of time)
5. Escape causes foreseeable harm
6. Non-natural use of land (must be extraordinary & unusual)
110
What defences are there for Rylands v Fletcher?
Same for public nuisance &:
Common benefit
Act of claimant caused escape
Statutory authority
Act of 3rd party (unforeseeable act of a stranger over whom they had no control)
Act of God (unforeseeable natural event)
Consent
Contributory negligence
111
What remedies are there for Rylands v Fletcher?
Damages
Injunction
