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Law > Tort > Flashcards

Tort Flashcards

1
Q

What case was the modern law of negligence established

A

Donoghue v Stevenson

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2
Q

What four things need to be established by the claimant for negligence

A

D owed claimant duty of care

D was in breach of duty of care

D caused damage

Damage was not too remote

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3
Q

What test is used to establish duty of care

A

Caparo test

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4
Q

What elements are in the caparo test

A

Harm was reasonably forseeable

There was a relationship of proximity

It’s fair just and reasonable to impose a duty of care

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5
Q

What is meant by breach of duty - negligence

A

Not caring for claimant

Vaughan v Menlove

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6
Q

What is meant by factual causation - negligence

A

Applying the but for test

Barnett v Chelsea & Kensington Hospital

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7
Q

What is remoteness of damage - negligence

A

The defendant is only liable for loss which was of a forseeable kind or if the loss was much greater than expected

Wagon mound no 1

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8
Q

When does the caparo test not need to be used

A

When there is already an established principle

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9
Q

Which cases link to the caparo test

A

Harm was reasonably forseeable - Bourhill v Young

Relationship of proximity - McLoughlin v O’Brian

Fair just and reasonable - hill v chief Constance of West Yorkshire police

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10
Q

What is proximity (caparo test) and who defined it

A

Proximity is a convenient shorthand for a relationship between two parties who owe each other a duty of care

Closeness between C and D in time and space and relationship

Lord Nicholls

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11
Q

What is the objective test

A

What would the reasonable competent person in D’s position have done

RISK OF HARM

REASONABLE PRECAUTIONS

SOCIAL UTILITY

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12
Q

What is risk of harm - objective test

A

Small risk & reasonable precautions = no breach

Large risk and no precautions = breach

Bolton v Stone

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13
Q

Explain reasonable precautions - objective test

A

Only reasonable precautions required

No duty to eliminate all risks

Latimer v AEC

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14
Q

What is meant by social utility - objective test

A

If D’s conduct is of to benefit the society there may not be a breach of this outweighs the risks

No breach of duty where D acts to prevent greater harm, if social utility of action outweighs risks

Watt v Hertfordshire

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15
Q

What is meant by remoteness of damages

A

The requirement damage must be of a foreseeable type

Claimant must demonstrate damage was not too remote

Also needed to claim under occupiers liability

Often viewed as an additional mechanism of controlling tortious liability - not every loss will be recoverable. D is only liable for losses which were a direct consequence of the breach of duty

The wagon mound no 1 - damage must be of a kind which was forseeable

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16
Q

What did the wagon mound test state about remoteness

A

Damage must be of a kind which was foreseeable

Thin Skull rule

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17
Q

What is the thin skull rule

A

Defendant must take their victims as they find them

e.g if vicrim is particularly vulnerable that results in them suffering greater damage, defendant remains responsible for full extent of injury

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18
Q

What act is occupiers liability under

A

Occupiers liability act 1957

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19
Q

What does occupiers liability mean

A

The duty owed by land owners to those who come onto their land.

The duty imposed on land owners can be extended beyond simple land ownership and duty’s can be transferred hence term occupiers liability and not owners liability.

A distinct form of negligence as must be duty of care, breach of duty, causation of damage

Rules of remoteness apply in same way as to negligence claims

Must ensure the visitors are reasonably safe

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20
Q

What comes under occupiers liability act 1957

A

Obligation on occupiers with regard to lawful visitors

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21
Q

What comes under occupiers liability act 1984

A

Liability on occupiers with regard to persons other than visitors

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22
Q

What are occupiers

A

The question of whether a particular person is an occupier is a question of fact and depends on the degree of control exercised. There may be more than one occupier

Wheat v E Lacon & Co

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23
Q

Describe occupiers liability act 1957

A

Occupiers must impose a common duty of care to lawful visitors. The act is not only land but also fixed and moveable structures including any vessel, vehicle or aircraft.

Protected damage includes death. Personal injury and damage to property

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24
Q

Describe lawful visitors - OLA 1957

A

Invitees - those who have been invited to come into the land and have express permission to be there

Licensees - those who have express or implied permission to be there

Those who enter to pursue a contract - eg cinema ticket

Those entering in exercising a right conferred by laws - eg entering to read gas metres

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25
Q

Describe implied licence at commen law -OLA 1957

A

In absence of express permission to be on land, a licence may be implied at common law where there exists repeated trespass and no action is taken by the occupier to prevent people coming on to the land.
Requires awareness of trespass and danger

Lowery v Walker

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26
Q

What is the allurement principle - OLA 1957

A

Courts are more likely to imply a license if there is something on the land which is particularly attractive and acts as an allurement to draw people on to the land

Taylor v Glasgow city council

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27
Q

What are non lawful visitors - OLA 1957

A

1957 act does not extend protection to
Trespassers
Invitees who exceeded their permission
Person on land exercising public or private right of way HOLDEN V WHITE

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28
Q

What is the common duty of care - OLA 1957

A

Common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there

TWO PARTICULAR SITUATIONS WHERE STANDARD VARIES
- occupier must make child reasonably safe as a child of that age
- may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it

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29
Q

Describe child visitors - OLA 1957

A

Courts will account child’s age and level of understanding a child of that age may have

Jolley v Sutton

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30
Q

What is common calling - OLA 1957

A

Applies where occupier employs expert to come on premises to undertake work.
Expert can be taken to know and safeguard themselves against any dangers that arose from the premises

Roles v Nathan

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31
Q

Describe warnings and warning signs - OLA 1957

A

Possible for an occupier to discharge their duty by giving a warning of the danger

Roles v Nathan

Warning must cover danger that arises

White v Blackmore

No duty is needed to warn against obvious risks

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32
Q

Describe dangers arising from actions undertaken by independent contractors - OLA 1957

A

S2 (4)(b) OLA 1957

Occupier not liable for dangers created by independent contractors if occupier acted reasonably in all the circumstances in entrusting the work to the independent contractor and took reasonable steps to satisfy himself that work was carried out properly and contractor was competent

Ferguson v Welsh

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33
Q

What are defences against occupiers liability act 1957

A

Volenti non fit injuria - common duty of care does not impose obligation on occupiers in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles

Contributory negligence - damages may be reduced under law reform act 1945 where visitor fails to take reasonable care for their own safety

Exclusion of liability - allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so

White v Blackmore

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34
Q

What comes under the occupiers liability act 1984

A

Occupiers
Trespassers
Preconditions
Duty
Discharge of duty
Defences

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35
Q

What is the description of the OLA 1984

A

Occupier owes a duty to persons other than his visitors to take such care as is reasonable in all the circumstances to see that they do not suffer injury on the premises

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36
Q

What is a trespasser - OLA 1984

A

Anyone who
Enters without in station

Whose presence is unknown by the occupier or known to the occupier but he has objected in a practical was such as locking a gate or giving a verbal warning

Pearson v Coleman brothers

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37
Q

What was said about trespassers in Wood v Leadbitter

A

A visitor who stays longer than they should becomes a trespasser

38
Q

What is meant by exceeding the limits of permission

A

Exceeding permission

Limits as to area

Limits as to time

Limits as to purpose

Tomlinson v Congleton

39
Q

What is meant by preconditions - OLA 1984

A

Claim must arise from dangerous state of the premises or things done or omitted to be done on them

Occupier owes a duty of care in respect of a fangs on his premises if
A) he is aware of the danger or has reasonable grounds to believe it exists
B) he knows or has reasonable grounds to believe someone else is in the bin city of the danger or may come into it
C) and the risk in one against which in all the circumstances of the case, he may reasonably be expected to offer the other some protection

Donoghue c Folkestone properties

40
Q

Describe duty - OLA 1984

A

Duty to trespassers for injury in the premises by reason of any danger due to the state of the premises or things done or omitted to them

To take such care as in reasonable in all circumstances to see that the trespasser does not suffer injury on the premises because of the danger

Ratcliff v McConell

41
Q

What is meant by discharging the duty

A

Has D taken reasonable care?
Likelihood of trespass
Cost and practicality of precautions
Visibility and attractiveness of any danger
Common sense

An occupier should not have to guard against an irresponsible minority

Platt v Liverpool city council

42
Q

Explain reasonable steps to warn or discourage - OLA 1984

A

Occupier must be able to discharge his duty by taking steps as are reasonable in all circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk

43
Q

Defences to OLA 1984

A

Contributory negligence - young v Kent county council

Consent - D owes no duty on respect of risks willingly accepted by trespasser

44
Q

Remedies for OLA 1984

A

Damages for personal injury and death

Can not claim damages for loss to property

45
Q

What is private nuissance

A

Concerned with protecting the rights of an occupier in respect of unreasonable interference with the enjoyment or use of his land

Generally neighbours

46
Q

What is public nuissance

A

A crime but becomes actionable in tort law if the claimant suffers particular damage over and above the damage suffered by the public generally

47
Q

What are some examples of public nuissance

A

Flooding

Smells

Cricket balls

Brothels

48
Q

What must someone have to claim private nuissance

A

A claimant must have interest in the land in which he asserts his enjoyment t or use has been unreasonably interfered with

Malone v Laskey

Claimants right to enjoy land is deprived

Bury v Pope

49
Q

What is meant by unlawful interference - private nuissance

A

Unreasonable use of land by defendant which leads to unreasonavle interference with claimants use or enjoyment of land

Courts account
Nature of locality
Duration
Sensitivity
Malice

50
Q

What is meant by locality / neighbourhood

A

Reasonableness of use of land assessed with regard to natural or locality

Sturges v Bridgman

Planning permission may affect change of locality
Gillingham Borough council v Medway docks

51
Q

What is meant by duration - pub nuissance

A

Nuisances consist of a continuing state of affairs
Claimant is seeking injunction to prevent continuance of nuissance

Longer the nuissance lasts greater the interference

Spicer v Smee

52
Q

What is meant by sensitivity - pub nuissance

A

Claimant abnormally sensitive or their use of land is D will not be liable unless activity would have amounted to a nuissance to a reasonable person using the land in a normal manner

Robinson v Kilvert

53
Q

What is meant by malice - pub nuissance

A

Where D acts out of malice, actions held are unreasonable

Christie v DAVEY

54
Q

What are remedies of public nuissance

A

Damages
Abatement
Injunctions

55
Q

What are defences of pub nuissance

A

Prescription not available
Harvey v Truro

Statutory authority not available
A-G v Burridge

56
Q

What is tort under Rylands V fletcher

A

A form of strict liability in that the defendant may be liable in the absence of any negligent conduct on their part.

Imposing liability without proof of negligence is controversial and therefore restrictive approach

57
Q

What are requirements of Rylands v Fletcher

A

Accumulation on the defendants land

A thing likely to do mischief if it escapes

Escape

Non-natural use of land

Damage not too remote

58
Q

What is meant by accumulation R v F

A

D must bring hazardous material on to his land and keep it there
If thinf is already on land or there naturally no liability will arise

Rylands v Fletcher

Giles v Walker

59
Q

What is meant by a thing likely to do mischief R v F

A

Thing need not be inherently hazzardous, it need only be a thing likely to cause damage if it escapes

Hale v Jennings Bros

60
Q

What is meant by escape R v F

A

Must be an escape from defendants land. An injury inflicted by accumulation of hazzardous substance on land itself will not invoke liability

Ponting v Noamez

61
Q

What is meant by non natural use R v F

A

Open fire in a domestic fire grate does not constitute as non natural

Sochacki v Sas

62
Q

What is meant by remoteness of damage R v F

A

Subject to rules on remoteness of damage point established in Cambridge water case

63
Q

What are defences R v F

A

Act of stranger - escape caused by stranger and D has no control, D escapes liability Box v Jubb

Wrongful act of third party - Rickards v Lothian

Act of God - Nichols v Marsland

Statutory authority - Green v Chelsea Waterworks

Consent / benefit - if claimant receives benefits from tbinf accumulated they may have consented to accumulation

Peter v prince of wales

64
Q

What is vicarious liability

A

Claimant suffers loss or injury + employer / employee relationships + tort is committed within course of employment

= defendant liable for torts of employee

65
Q

Who is the d responsible for in vicarious liability

A

Employees - employer responsible

Independent contractor - employer not responsible

66
Q

How do we know if someone is an employee

A

‘The multiple’ test

Uber case

If told what to do and how to do it = employee

67
Q

What are the three factors in the multiple test

A

Control - is the employer in charge of the worker and the work

Personal performance - is the work capable of being delegated
Express & echo publications v Taunton

Mutuality of Obligations - worker and employee owe obligations to each other
Carmichael v National power

68
Q

6 traits of an employee

A

Premises and equipment supplied

Paid salary

Not personally affected by desicions

Pays tax as employee

Needs permission to delegate work

Described as employee on contract

69
Q

Traits of independent contractor

A

Pays tax as self employed

Own premises of equipment

Paid commission

Personally affected by seismic ions

Can’t delegate work without permission

Not described as employee

70
Q

What happens in vicarious liability if there is an employment relationship

A

Connection between tortious act and the relationship

71
Q

What test is used to see if a tort is committed in course of employment

A

Tort is committed in course of employment if it is

a) a wrongful act authorised by the master or
b) a wrongful act and unauthorised mode of going some act authorised by the master

(Authorised act done in unauthorised way or authorised act done in forbidden way)
(Century insurance v NI road transport)

72
Q

What if an act is unauthorised - VL

A

Not in course of employment - unless benefits employer

(Twine v Bean)

73
Q

What is the enterprise risk

A

Various claimants V CCWS

Where D is in a position to use employee to further its business interests and has done so in a way created or significantly enhance the risk the victim would suffer wrong doing. They are likely to be held vicariously liable for tort in question

74
Q

What is the lister test

A

Used to establish close connections between emoloyees torts and their job - makes it fair and just to hold D liable

75
Q

What are general defences for tort

A

Contributory negligence

Consent

76
Q

What act did contributory negligence fall under

A

Law reform (contributory negligence) act 1945

77
Q

What did the law reform contributory negligence act 1954 state

A

D must establish contributory negligence
At C’s own behaviour fell below standard of a reasonable person

Was damage reasonably forseeable consequence of the breach

78
Q

Where is contributory negligence seen

A

Where claimant partly to blame for incident occurring in first place

( Brannan)

Where claimants conduct made injuries or losses worse
(Froom v Butcher)

79
Q

What is defence of consent

A

Volenti non fit injuria

He who consents cannot he regarded as having been done an injury

Consent applies where claimant knows there is a risk of defendant acting in a negligent way and freely consents to that risk
Morris v Murray

80
Q

What are remedies in tort

A

Damages

Injunctions

81
Q

What are the types of damages

A

Compensatory damages

Spexial damages

General damages

82
Q

What is the aim of compensatory damages

A

To put C back into position they were in before tort took place

Not to punish D, sum awarded does not reflect D’s level of fault

83
Q

What are special damages

A

Awarded for losses that can be precisely calculated

For precuniary losses

Incurred between incident and date of judgment
e.g repair costs

(Povey v Goveners of Rydal school)

84
Q

What are general damages

A

Awarded for losses that cannot be precisely calculated

e.g pain, suffering, loss of amenity

85
Q

What is future loss calculated

A

Future loss of earnings + cost of further medical care multiplied

Multiplier represents years claimant would have worked and earned a living but now isn’t able too

86
Q

How is compensatory damages given

A

Damages act 1996

Parties can agree all or part of the sun will be awarded will be paid at periodical payments or at regular intervals

87
Q

What is a structured settlement

A

May be fairer to claimant whose condition may deteriorate over time

May be fair to D if claimant condition improves and no longer requires same level of support

Courts no power to award structured settlement

88
Q

What is mitigation of loss

A

C must keep his or her losses to a reasonable level

HL motor works LTD v Alwahabi

89
Q

What’s an injunction

A

Court order to stop D doing something

If breached subject of order will be in contempt of court

90
Q

Where are injunctions often used

A

Nuissance cases

Coventry v Lawrence

91
Q

What is a mandatory injunction

A

Orders made force D to do something

e.g soundproof noisy factory

Law (10 decks)

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