Tort Flashcards
1
Q
A tort is a civil wrong
A
2
Q
Establishing a common law negligence claim
A
Duty of care owed
Breach of duty of care
Causation
Defences?
3
Q
Intentional torts
A
- Trespass to land
- Trespass to perosn
a. Battery
b. Assault
c. False imprisonment - Trespass to goods and conversion
4
Q
Trespass to land
A
Unlawful
Direct (indirect = private nuisance or negligence e.g. branches of tree growing over land, smoking drifting over land)
Intentional - intent of entering the land NOT intent to commit to tort of trespass - does NOT need to know that the land belongs to another
Interference with
Claimant’s possession of
Land: includes airspace above and ground below to a useable height
Entering land involuntarily does NOT amount to a trespass e.g. pushed onto land or car crashed onto land
5
Q
Defences to trespass of land
A
- Lawful entry i.e. permission granted by statute
- Necessity i.e. to preserve life or property
Not a defence that you think you own the land or that you had authority to be on the land
6
Q
Remedies to trespass to land
A
- Injunction
- Damages
Claimant does NOT need to prove any actual damage BUT can claim nominal damages even if no damage occurred
7
Q
Trespass to the person
A
Battery
Assault
False imprisonment
8
Q
Battery
A
Elements:
- Direct
- Intentional application of
- Unlawful (not wanted and not consented to)
- Force to
- The claimant’s person
The application of unlawful force to the claimant’s person may be to an object that the claimant is holding e.g. phone in their hand
9
Q
Doctrine of transferred intent
A
An intent to apply force to one person may be transferred to a different person
10
Q
Assault
A
Apprehension of a battery
Elements:
- Intentional act
- Causes claimant
- Reasonably to apprehend
- Immediate and direct
- Infliction of unlawful force
- To claimant’s person
Words alone can amount to an assault
11
Q
False imprisonment
A
Elements:
- Intentional
- Unlawful constraint
- Of claimant’s freedom of movement
- From a particular place
Examples: unlawful arrest
Defence: lawful arrest
12
Q
Defences to trespass to the person
A
- Consent e.g playing football
- Self-defence
- Lawful arrest - defence to false imprisonment
13
Q
Remedies for trespass to the person
A
- Damages
a. Nominal
b. Compensatory
14
Q
Trespass to goods and conversion
A
Elements:
- Intentional and direct
- Interference with
- Claimant’s possession of goods
Example: taking someones keys and hiding them
15
Q
Conversion
A
Elements:
- Dealing with goods
- In a way which is
- Seriously inconsistent with
- The rights of the owner
Example: taking someones keys and throwing them in a pond
Need only intend to do the act that constitute conversion and need not intend to interfere with the owners rights in the property e.g. purchasing stolen goods without knowing they were stolen WOULD interfere with the right of the actual owner
16
Q
Remedies for conversion
A
- Deliver goods to rightful owner
- Damages
17
Q
Negligence: liability based on fault
Fault = careless conduct by defendant
Intent is usually irrelevant
A
18
Q
Negligence: elements
A
Owed a duty of care
Breached duty of care
Breach was the cause of claimant’s injury (causation)
Example: road traffic accident
19
Q
Negligence: duty of care
A
Onus on claimant to estbalish defendant owed a duty of care
Established duties of care:
- Doctor and patient
- Drive and pedestrian
- Employer and employee
20
Q
Unintentional but careless damage = potential claim in negligence = novel duty situations
A
21
Q
Negligence: Novel duty requirements
A
- Foreseeability - claimant has to show that defendant must have reasonably foreseen that damage would occur to claimant
- Proximity - sufficiently close relationship to give rise to a duty of care for the injury that occurs
- Fair, just and reasonable (duty of care)
- Legal and policy matters considered
- Flood gates: fear that courts will be overloaded with litigation if duty is cast too wide
- Whether imposition of a duty can be practically and fairly implemented
22
Q
Negligence: omissions to act
A
General rule against imposing a duty of care in an omission/failure to act e.g. under no duty of care to rescue a drowning person
Exceptions;
1. Exercise a high degree of control over someone e.g. prison officer holding someone in custody
- Assumed responsibility for another well-being e.g. in contractual or employment situations - lifeguard has responsibility to assist swimmers in peril
- Created or adopted a risk i.e. individual who seeks to carry out a rescue has a duty not to make the situation worse
23
Q
Negligence: standard of care: reasonable person test
A
Reasonable person test - defendant must act the way a reasonable person and prudent person would do in similar circumstances
Personal characteristics of defendant not taken into account - examples:
a. Learner driver judged by the standard of a driver of ordinary skill and experience - inexperience is no excuse
b. Person having a psychiatric episode and injures someone - judges by the standard of the ordinary reasonable person
24
Q
Negligence: standard of care: special standards
A
- Children: judged on the level of foresight and prudence of a normal child of that age
- Professionals: judged on the knowledge and skill of an ordinary skilled person in that profession at that time e.g. ordinary doctor
The state of knowledge at the time the injury occurred is considered - onus on skilled professionals to keep up to date with relevant knowledge
Trainee professionals must exercise the same high standard of care as those who are proficient in that profession
25
Negligence: breach of duty
Deciding if the defendant has failed to act as a reasonable person: carry out balancing test:
1.Magnitude of risk vs burden of taking precautions
Magnitude of risk - greater the risk of injury the more the defendant will have to do to fulfil their duty and avoid liability:
a. Liklihood of injury
b. Gravity of the likely harm
Burden of taking precautions against the risk:
a. Cost
b. Practicability
If the costs of the measures outweigh the risk defendant will likely not be in breach of duty for failing to carry out precautionary measures
If defendant can show they took all precautions commonly taken in the situation then demonstrates a proper standard of care has been exercised
2. Magnitude of risk vs social utility of conduct
Onus on the claimant to show what the defendant specifically did to breach their duty BUT exception = res ipsa loquitut
26
Res ipsa loquitut
The things speaks for itself i.e inference of negligence can be drawn from the facts
Example: bit on a cake and break took on rock - rock would not be in cake if it were not for negligence - res ipsa loquitut may be used to infer negligence
Can only be used when the sole explanation for what happened appears to be the negligence of the defendant yet the claimant has insufficient evidence
If the defendant can rebut the presumption of negligence the claimant can still try to establish negligence in the normal way
27
Requirements for res ipsa loquitur
1. Cause of incident unknown - if defendant can put forward explanation which shows no negligence on their parent then doctrine doesn't apply
2. Thing causing damage under sole control of defendant e.g. product in defendants warehouse
3. Type of occurrence would not happen without negligence - if there are other possible explanation doctrine doesn't apply
28
Negligence: causation
Claimant needs to show that the defendants breach of duty caused the claimant to suffer harm, no intervening acts broke the chain of causation and the harm was not too remote
Types of causation:
1. Causation in fact: but for test
2. Causation in law
29
Negligence: causation in fact
But for test: but for the defendant's actions the damage would not have occurred
When there are multiple causes: must show that the defendant's act materially contributed to harm e.g. two causes acted together to cause the harm
30
Negligence: causation in fact
But for test: but for the defendant's actions the damage would not have occurred
When there are multiple causes: must show that the defendant's act materially contributed to harm e.g. two causes acted together to cause the harm
31
Negligence: causation in law
1. Break in chain of causation: whether the whole sequence of events is the probable consequence of the defendant's actions and whether it is reasonably foreseeable that the events may happen
Examples:
Natural event e.g. earthquake
Act of third party
Act of claimant
2. Remoteness of damage: whether the damage is a foreseeable result of the defendant's negligence
32
Negligence defences
1. Contributory negligence: damages reduced according to claimant's share of fault - onus on defendant to show claimant was at fault and that contributed to injury i.e. reduces liability
2.
33
A claimant’s contributory negligence, even if greater than the defendant’s, will only reduce the amount of the claimant’s recovery rather than bar it
34
Types of economic loss
1. Consequential economic loss e.g. car accident - personal injury, damage to personal property, loss of profit on damaged goods
2. Pure economic loss: only recoverable if claimant can show that there was a special relationship between claimant and defendant in which defendant assumed responsibility for the claimants economic welfare e.g. economic loss from negligent misstatements
Special relationship:
- Defendant has specialist knowledge
- Defendant is aware claimant will rely on information
- Reasonable for claimant to rely on information provided (misstatement) by defendant
35
Psychiatric harm
Form of personal injury
Two types:
1. Consequential psychiatric harm
2. Pure psychiatric harm: harm caused without any physical impact e.g. shock of being placed in danger leading to PTSD
Must take the form of a recognised mental illness or shock-induced physical condition e.g. miscarriage.
Mental suffering by itself e.g. grief or freight is generally not recoverable
Type of victim
1. Primary: person in danger who suffers psychiatric harm from a near miss - psychiatric harm stemming from reasonable fear for their safety - foreseeable risk of injury
2. Secondary: bystander who suffers psychiatric harm from witnessing injury to another
Four requirements for secondary victim to recovery:
1. Psychiatric harm was reasonably foreseeable for person of normal fortitude
2. Secondary victim had close/ loving relationship with person harmed e.g. mother/child
3. Present at scene of accident or immediate aftermath - outside area of danger
4. Directly witnessed events
36
Employers liability
Duty of care employers owe to employees
Duty of care only owed when acting in the course of their employment i.e. not liable in the course of going to and from work
Three types:
1. Breach of personal duty of care and breach resulted in injury to employee
2. Breach of specific statutory duty and breach resulted in injury to employee
3. Vicarious liability for employee tort and breach resulted in injury to employee
Standard of care: take reasonable care in the way it conducts its operations so as not to subject its employees to unnecessary risk
Four requirements for employer duty of care:
1. Competent fellow employees
2. Safe plant and equipment
3. Safe place of work e.g. protect from effects of passive smoking
4. Safe system of work e.g. ensuring safety equipment is available and also worn, reasonable steps to reduce stress at work if reasonably foreseeable
Defence: contributory negligence by employee
Employers duty of care to employee can't be delegated to anyone else i.e. if employer delegated task to contractor employer is still liable if contractor didn't take reasonable care
37
Vicarious liability
When one person incurs liability for tort committed by someone else e.g. employers liability for torts of their employees
38
An action can be brought in both vicarious liability and personal liability
39
Employer's vicarious liability
Elements:
1. Employer/employee relationship
2. Employee committed tort
3. Tort committed during course of employment - even if a criminal act
40
Factors indicating employer/employee relationship (instead of independent contractor)
(some employers will claim an employee is an independent contractor to avoid vicarious liability)
1. Employee agrees to personally provide their skill and work for employer
2. Employee agrees to be subject to employees control
3. Contractual terms are consistent with employment
Other factors:
1. Requirement to wear employers uniform
2. Which party owns and provides the work equipment
41
"Acting within course of their employment" (can sue under vicarious liability if proven)
One of the following must be established:
1. Act must be incidental to employee's job
2. Act expressly or impliedly authorised by employer
3. Authorised act carried out in a wrongfully, negligent or unauthorised manner
Examples that fall outside scope:
1. Employee travelling for work purposes but makes a significant deviation to route
2. An employee’s minor deviation from her route, not amounting to a new and separate journey, is unlikely to take the employee outside the course of employment.
42
Courts have shown willingness to find vicarious liability outside the traditional employer/employee relationship IF relationship is analogous
Example: prisoner working in kitchen dropped pan on contractors foot - prison service held vicariously liable - not an employer/employee relationship but analogous
43
An employer’s breach of its personal duty of care constitutes direct liability for the employer’s conduct
44
An employer may be vicariously liable for an employee’s intentional torts if the employee’s tort was so closely connected with the task the employee was employed to do that it would be considered to be incidental to the employee’s job
45
Remedies - damages for personal injury
1. Damages: place claimant in position they would have been had the tort not been committed
Types of damages:
a. Pecuniary losses - financial losses
- Loss of past incomes (special damages - can be precisely calculated):
income lost from being unable to work - from date of injury to date of trial/settlement - calculation = net losses minus sick pay
- Loss of future income: awarded as one lump sum calculated at time of trial/settlement - calculation: pre accident annual income x predicted number of years of lost income (reduced to reflect chance claimant may lose employment in future regardless of injuries caused by defendant = contingencies of life) - if claimant can return to work but to a different job at a reduced salary then the difference between the original job salary and new job salary is calculated to reflect the lower rate of annual salary i.e. amount missed out on for having to take lower paid job
If a claimant has a shortened life expectancy due to the injury sustained. Damages can be claimed for lost years but reduced by amount claimant would have spent on living expenses during those years
- Expenses: costs of treatment, care, necessary equipment, adaptions to home, necessary travel costs
a. Past expenses - special damages - calculated up to date of settlement/trial
b. Future damages - general damages - assessed by court based on medical evidence provided
b. Non-pecuniary losses - general losses as can't be precisely calculated:
- Pain and suffering
- Loss of amenity: effects of claimants ability to enjoy their life e.g. inability to enjoy sports or other hobbies - account for past and future losses
c. Damages for damage to property: replacement or reduction in value including costs of repair
2. Injunction
46
Shortened life expectancy is a pecuniary loss because it results in financial harm, specifically a loss of future earnings
47
Loss of amenity, which is the loss of the claimant’s ability to enjoy life, is a non-pecuniary loss because it is not monetary in nature.
48
Loss of future income is a pecuniary loss because it constitutes financial harm, reflecting losses that will occur in the future
49
Damages on death
Two types:
1. Claims that survive the claimant's death: claimant has a cause of action but later dies from injuries - claim continues for benefit of estate
- Doesn't matter what cause of death was so even if claimant dies of other causes then claim will continue BUT dependants can't have a claim against defendant as they didn't cause death
2. Claims by the dependants of the deceased victim - include:
- Loss of dependency benefits
- Bereavement damages
Elements:
- MUST be financially dependant on deceased
- Deceased could have brought claim if they survived
- Any reductions for contributory negligence are accounted for
50
No claim for death itself i.e. if injury caused instant death with no pain or suffering, no damage to property BUT claim by dependants can be brought
51
Loss of future income is a type of general damages because it is difficult to precisely calculate and so must be assessed by the court
52
Module 6 - Occupiers Liability
53
Occupiers liability
The liability of an occupier for harm done to person who have entered the premises
Premises: land and fixed and moveable structures
Occupier: person with control over premises - can be occupier without being an owner if they have sufficient control
e.g. builder who takes over control of premise to carry out work
- Owner who doesn't retain control over premises is not an occupier e.g. landlord who has let to tenant
- Can be more than one occupier
- Physical occupation isn't necessary for an occupier to have sufficient degree of control
Harm done: applies only to conditions of premises and not activities carried out on premises (these fall under normal negligence analysis) e.g. cutting down trees doesn't count but leaving tree trunks on middle of driveway does count
Person who has entered the premises
Occupiers Liability Act 1957: visitors
Occupiers Liability Act 1984 : trespassors
(earlier act came first as visitors have priority over trespassors)
Elements of act:
1957:
- Invited or permitted on premises by occupier
- Permitted on premises by statute e.g. police
1984: non-visitors = trespassor
Visitors exceeding scope of permission may become trespassers
54
Occupiers liabilty act 1957: Standard of care owed to visitors - reasonable care under circumstances so visitors will be reasonably safe using premises
55
Occupiers liability act 1957: negligence balancing test
Magnitude of risk v practicability of taking precautions
56
Ways to keep vistiors reasonably safe
- Fix hazards BUT no requirement to remove or rectify all dangers on premises
- Erect barriers around hazards
- Warn visitors of hazard
57
Occupiers Liability Act 1957: two specicfic classes of visitors
1. Children: heightened standard for parents BUT can account for what prudent parents would do in a situation
2. Skilled visitors: can expect that a skilled individual carrying out their skilled activity would appreciate and guard against special risks e.g. electrician turn off electricity
58
Occupiers Liability Act 1957: occupier MAY discharge their duty by having an effective warning sign
Examples when warning would not discharge duty: sign indicating hazard of slippery steps into a shop but there are no other steps to enter the property
59
Occupiers Liability Act 1957: occupiers can discharge their duty of care by engaging independent contractors
Occupiers are not liable for negligence of independent contractors that cause harm to visitors on premises
To avoid liability occupiers must:
- Engage competent independent contractors
- When work is of a simpler nature check that work is carried out properly
60
Occupiers Liability Act 1957: defences
1. Contributory negligence
2. Exclusion of liability for loss or damage to property
Restrictions on exclusion:
Occupier acting in the course of a business can't exclude liability for death or personal injuries caused by negligence
61
Occupiers Liability act 1984: Trespassers
Trespassers are only protected for personal injury but not property damage
62
Occupiers Liability Act 1984: conditions for duty of care to trespassors
Three conditions:
1. Occupier knows or should know of danger on premises
2. Occupier knows or should know trespasser in vicinity
3. Occupier reasonably could be expected to offer protection against danger
63
Liability for defective products
64
Negligence liability: product manufacturer's duty of care
Elements:
1. Put out product in final form intended to reach customer
2. No reasonable expectation of inspection by intermediary e.g. retailer not expected to check product before sale
Manufacturer and not retailer who is liable for negligence
65
Negligence liability: different ways of proving breach of duty
1. Show manufacturer failed to exercise reasonable care (hard to prove)
2. Infer breach of duty because defect exists (res ipsa locutur)
66
Negligence liability: elements of Consumer Protection Act 1987
1. Product contained defect - safety not as expected (consider marketing, instructions, warnings etc)
2. Claimant suffered damage - personal injury or death and property damage if for private use and damage OVER £275 - can't recover damage to defective product
3. Damage caused by defect - causation
4. Defendant is manufacturer, producer, own brander or importer of product
(Claimant must show all elements)
No requirement that defendant was at fault
Claimant can be anyone e.g. received item as gift so doesn't have to show that it was reasonably foreseeable that they would be injured by product
67
Defences under Consumer Protection Act 1987
- Defect did not exist when producer supplied product e.g. age of product caused defect or product altered by consumer or third party
- Product not supplied in course of business e.g. friends
- Existence of defect not discoverable at time product supplied - development risks or state of the art defence
68
Negligence liability: damages
1. Personal injury
2. Damage to property
3. Consequential economic loss
BUT not pure economic loss
69
Breach of statutory duty
Some statutes state that a violation of the statute does NOT give rise to a civil claim
If statute is silent as to whether it gives rise to a civil claim - need to consider if parliament intended for statute to give rise to civil claim - statute must include all three elements:
70
Breach of statutory duty: requirements for statute to apply
1. Claimant falls within class protected by statutory duty
2. Statutory duty breached by defendant
3. Claimant suffered type of damage statute intended to protect against
71
The Consumer Protection Act 1987 is a strict liability statute; it does not require the claimant to establish that the defendant was at fault
72
Public nuisance
Unreasonable interference with recognised public rights e.g. obstructing a road
A private person cannot sue only public authorities may unless the private person has suffered special damage over and above that of the community at large.
Can only claim if suffered special damage over and above that of community at large
73
Types of special damage that constitute a public nuisance action
1. Damage to property
2. Personal injury
3. Loss of profits
74
Private nuisance
Unlawful interference with person's use or enjoyment of land
Interference must be substantial and unreasonable - factors considered:
- Locality e.g. residential area lower tolerance to nuisance
- Utility e.g. power plant critical to needs of the region then less likely fumes created will be deemed unreasonable
- Duration
- Abnormal sensitivity - won't account for personal sensitivities rather consider whether it is objectionable to a reasonable person
- Malice on part of defendant e.g. if claimant can show nuisance was done for deliberate purpose of upsetting claimant
- Foreseeability of damage
75
Ways private nuisance may arise
1. Encroachment on land e.g. tree roots growing across a boundary
2. Physical damage to property e.g. noxious fumes which damage plants
3. Interference with comfort or convenience e.g. loud noise at night
76
Parties to a private nuisance
Claimant: owner or occupier with a recognised legal interest in land i.e. tenants and landlords but not guests or employees working on property
Defendants:
- Creator of nuisance
- Occupier of land containing nuisance
- Landlord of land occupier (limited circumstances)
77
Public nuisance defences
Prescription e.g. continuance of a nuisance for 20 years without action entitles defendant to claim a prescriptive right to continue
Statutory authority: defendants not liable for nuisances which are the inevitable result of a statute e.g. construction and operation of a power plant
78
Rylands v Fletcher Rule
Imposes strict liability (liability without claimant having to show any fault on part of defendant)
Escape of dangerous thin from defendant's lan in course of a non-natural use of the land
Elements:
1. Defendant brought something on land likely to cause harm if it escapes
2. Defendant engaged in non-natural use of land
3. Thing on land escapes and causes harm
79
Defences to Rylands and Fletcher Rule
1. Unforeseeable act of God e.g. earthquake
2. Unforeseeable act of third party
