Tort Flashcards
What must a claimant show for trespass of land?
Exclusive possession of land
- Land: including buildings, subsoil or airspace (up to hight necessary for ordinary use)
Direct Interference
- stepping foot on it, taking possession of it, placing something on it, throwing something on it, allowing animals to stray on it,encroachement of buildings
Intention
- D must only intend to enter land / do act of direct interference
What are the elements of trespass to goods?
Intentional and direct interference with C’s possession of goods
Interference
- taking goods, damaging goods, moving goods
Intention
- defendant must intend to interfere with goods
What is the tort of conversion (and elements)?
Deal with goods in what which is seriously inconsistent with the rights of the owner.
Intention
- must intend to do the act which interferes with goods But not to infringe C’s rights
Acts of Conversion
- theft, wrongful transfer, wrongful detention, substantially changing, securely damaging or misusing
How is a novel duty of care established (elements)?
Foreseeability
- C must be a foresee victim
- D’s negligence must have created a foreseeable risk of harm to C
Proximity
- must be a relationship of sufficient proximity between C and D
Just Fair and Reasonable
- court will consider if it just fair and reasonable in all circumstances to impose a duty of care
- includes policy factors
Can you breach duty of care through omission
No unless:
Special relationship between parties
- parent/child
- assumed responsibility towards claimant
Control
- if D exercises control over C
Effect
-controler is liable due to own negligence not to supervise
What will the court take into account in assessing if D’s conduct fell below the reasonable standard of care?
Magnitude of risk involved in the activity undertaken by the defendant
- likelihood of harm
- seriousness of potential harm
The practicality of taking precautions to avoid the risk
- court will balance the practicability of taking precautions against risk in question
- will also consider social utility
What is the test for causation in fact? (different situations)
But for test
If multiple possible causes:
- still but for test
- on balance of probabilities
If multiple causes working together
- material contribution test
If multiple defendants contribute to the same damage of the claimant how is this dealt with?(diviable or not, successive)
Divisable
- some injuries (deafness) are divisible so C can only recover proportionate damages from each defendant
Not Divisible
- can recover from either defendant
- that defendant can recover contribution from the other(s) in amount court considers just and equitable
Successive Injuries
- second defendant only liable to extent that their negligence made Cs damage worse than it already was
- so nothing recoverable if they did not make it worse
What might be considered as part of negligent misstatement?
Professional negligence claims for not properly executing will
- by beneficiaries
As special relationship exists between solicitors and and beneficiaries
Can vicarious liability exist even if the person is not an Employee?
Yes if it is a relationship making to employment.
Factors:
- the tort was committed as a result of an activity undertaken by the tortfeasor on behalf of the defendant
- tortfeasor’s activity is an integral part of the defendants business activity (rather than own business); and
- defendant created the risk of the tort by assigning the activity to tortfeasor.
Then must show
- the tort so closely connected with the task the employee was employed to do that it would be fair and just to hold the employer liable
What damages are available if only if claimant dies as a result of the tort? What are the requirements?
Bereavement only to:
- spouse/civil partner;
- cohabiting as spouse for 2+ year immediately before death; or
- parents (if deceased was a minor and never married)
Loss of Dependancy if:
Funeral expenses
What defences can an occupier use against claims of occupiers liability?
Exclusion of Liability
- statutory rules apply
Voluntary Assumption of Risk
Contributory Negligence
How can occupiers exclude liability for lawful visitors?
Must give effective notice. Must be:
clear that wording of the exclusion covers damage in question; and
exclusion must have been adequately brought to attention of claimant.
Contractual Exclusion
- must be incorporated into contract by being brought to attention before contract was made
Non-contractual Exclusion
- must take adequate steps to bring to the attention of visitors before the encounter risk for which liability is excluded
When does an occupier owe a duty to a trespasser?
Only if all below are satisfied:
- occupier is (or ought reasonably to be) aware of danger;
- Occupier is (or ought reasonably to be) aware that trespasser may come into the vicinity of the danger; and
- The danger is one against which it would, in all circumstances, be reasonable to expect the occupier to offer protection.
When does manufactureer owe duty of care?
Manufacturer of product owes duty of care to end consumer if:
- the manufacturer puts the product into circulation in the form in which it is intended to reach end consumer; and
- there is no reasonable expectation of an intermediate examination of product between leaving manufacturer and reaching consumer.
What constitutes a defect under strict liability regime?
If products safety is not such as persons generally are entitled to expect
All circumstances taken into account including:
- instructions and warnings provided;
- product packaging and purpose for which it is marketed;
- what might reasonably be expected to be done with product; and
- time when the product was supplied.
What types of damage cannot be recovered under strict liability regime?
damage to defective product itself
damage to business property
property damage that does not exceed £275
What defences are available under strict liability regime?
No defect when the product was first put into circulation
D to show there was no defect when product was supplied to consumer, importer or own brander
Defendant did not supply the product in the course of business.
State of the arm defence
Contributory negligence
What must a defendant show to prove a product was not supplied in the course of business
Defence to Strict Liability Regime
Defendant must show:
- D were not acting in the course of a business when they supplied the product; and
Either
- D either was not the producer (or own brander / importer) of product
- D was not acting with a view to profit
What are examples of damage suitable for private nuisance?
physical damage to land (eg. flooding, damage caused by vibrations)
amenity damage (eg. noise, dust and smells)
encroachment onto land (eg. overhanging tree branches)
Can an occupier of land be liable for private nuisance if this is created by trespassers or natural events?
Yes if the adopt or continue the nuisance
Adopt
- if occupier make use of the thing that constitutes the nuisance for there own use
Continue
- if once they know or ought to have know =n about it, they fail to take reasonable steps to deal with it
How is the reasonableness of interference with land assessed in private nuisance?
Factors taken into account:
- Intensity and duration
- including time of day or night - Character of Neighbourhood
- Malice
- something may become unreasonable if motived by malice
Not Taken into account
1. Abnormal Sensitivity
- does not play a factor
- OR reasonable care by d
What defences are available for nuisance
- Prescription
- if D has carried on the nuisance for at least 20 years (as actionable private nuisance) and no action taken
- requires that there was someone in occupation of nearby land who was effected - statutory aurhority
- courts to decided if nuisance itself is authorised by statute
When should you bring action for private nuisance vs public nuisance
Private
- if injury to person or persons property
Public
- no need to show legal interest in land
