Tort

Question 1

What is trespass to land?

Answer 1

Direct interference with the claimant’s exclusive possession of the land.

Question 2

What does trespass include?

Answer 2

Direct physical interference by persons, machines they control and their animals.

Question 3

Is indirect interference a trespass?

Answer 3

No.

Question 4

Is smell/noise/vibration a trespass?

Answer 4

No, it’s a nuisance.

Question 5

What intention is required for trespass?

Answer 5

None - just intent to enter into the land.

Question 6

What is battery?

Answer 6

Intentional direct application of force to claimant’s person.

Question 7

What is ‘force’ for battery?

Answer 7

Unwarranted physical contact beyond what is generally acceptable in ordinary conduct of life.

Question 8

What is the intention required for battery?

Answer 8

D must have intended the application of force.

Question 9

When is there negligence?

Answer 9

Person owes duty of care and breaches duty - breach causes damage.

Question 10

When will courts imply a duty of care?

Answer 10

1. Foreseeable claimant.
2. Relationship of sufficient proximity.
3. Fair, just, reasonable to impose duty.

Question 11

When will a person be liable for an omission?

Answer 11

1. Special relationship between the parties.
2. Defendant has control over the victim.
3. Harm caused by TP under D’s control.

Question 12

What is the standard if there is a duty to act with reasonable care?

Answer 12

Objective standard - likelihood of harm, seriousness of potential harm, practicability of precautions.

Question 13

What is res ipsa loquitur?

Answer 13

1. Accident would not normally happen without negligence.
2. No explanation for how the accident occurred.
3. Thing causing the accident is within the control of the defendant.

Question 14

What must claimant show for causation and what standard?

Answer 14

1. Balance of probabilities that but for the defendant’s breach, the claimant would not have suffered harm.
2. No new act intervened between breach and injury.
3. Harm was reasonably foreseeable - not too remote.

Question 15

When will intervening act break causal chain?

Answer 15

Only if unforeseeable.

Question 16

What is the egg shell skull doctrine?

Answer 16

Take your victim as you find them.

Question 17

What happens if 2 or more defendants breached duty leading to indivisible injury?

Answer 17

Can seek contribution if paid more than their share of fault.

Question 18

What happens if 2 or more defendants breached duty leading to divisible injury?

Answer 18

Each D liable for their proportion only.

Question 19

What happens if 2 or more defendants breached duty leading to successive injuries?

Answer 19

Claimant can recover from each defendant only for the injury caused by them.

Question 20

How to make out voluntary assumption of risk?

Answer 20

Claimant has full knowledge of risk and freely and voluntarily assumes.

Question 21

What exclusions of liability will be excluded?

Answer 21

Contractual exclusion of liability for death or personal injury will not be enforced; others only if reasonable.

Question 22

When is illegality a complete defence?

Answer 22

If defendant negligently injures claimant whilst they were undertaking criminal activity - illegality is complete defence.
- But will not apply if guilty of only minor criminal activity that does not significantly contribute to injury.

Question 23

Is pure economic loss recoverable in negligence?

Answer 23

No.

Question 24

What are examples of pure economic loss?

Answer 24

1. Damages to property not belonging to claimant.
2. Cost of damage suffered by defective product.
3. Financial loss not flowing from damage to the claimant’s person or property.

Question 25

When can consequential economic loss be claimed?

Answer 25

Alongside damages for physical injury or physical damage to claimant's property.

Question 26

When can damages for pure economic loss be recovered?

Answer 26

If they arise from negligent misstatements by the defendant and D knew claimant likely to rely on advice and advice required for purpose made known to D.

Question 27

What is pure psychiatric harm?

Answer 27

Harm not accompanied by physical impact.

Question 28

What is a primary victim?

Answer 28

In actual area of danger caused by defendant - in the danger zone.

Question 29

What is a secondary victim?

Answer 29

Person outside that area of danger created by defendant.

Question 30

When can secondary victim claim for psychiatric damages?

Answer 30

Must show: - Present at accident/immediate aftermath. - Sudden shock. - Close ties with person endangered by negligence. - Psychiatric harm was foreseeable.

Question 31

What is required to recover damages for psychiatric harm?

Answer 31

Must be medically recognised psychiatric conditions.

Question 32

What must employer provide employee?

Answer 32

1. Take reasonable care. 2. Safe system of work. 3. Competent staff. 4. Safe plant and equipment. 5. Safe workplace.

Question 33

What complete defence does employer have against employee for liability?

Answer 33

Voluntary assumption of risk is complete defence.

Question 34

When is employer vicariously liable for torts committed by employee?

Answer 34

Acts closely connected to employee employed to do.

Question 35

Will vicarious liability attach for employee's tort if criminal act?

Answer 35

Yes, if closely connected to employment.

Question 36

Will there be vicarious liability if there was disobedience of employer's instruction?

Answer 36

Takes outside scope of employment only if instruction limits scope of employment.

Question 37

What about frolics?

Answer 37

If employee deviates from route needed to achieve employment objective and injures someone - can be VL if deviation is minor.

Question 38

Do tort victims have duty to mitigate losses?

Answer 38

Yes.

Question 39

What are recoverable pecuniary losses from negligently inflicted injury?

Answer 39

1. Loss of past income between injury and trial or settlement based on net wages lost. 2. Loss of future income - difference in income before and after injury X years income will be lost. 3. Past and future expenses of medical treatment, costs of care, modifications to home.

Question 40

What are recoverable non-pecuniary losses?

Answer 40

Past and future pain and suffering and loss of amenity.

Question 41

How is damage to property measured?

Answer 41

By replacement costs + consequential costs.

Question 42

What are special damages?

Answer 42

Those that can be precisely calculated at time of trial - loss of earnings and past expenses.

Question 43

What are general damages?

Answer 43

Assessed by court - future loss of earnings and expenses and damages for pain and suffering or loss of amenity.

Question 44

What are the damages if the victim dies?

Answer 44

1. Bereavement damages. 2. Loss of dependency damages.

Question 45

Who can claim bereavement damages?

Answer 45

Only by spouse or civil partner or cohabitant of more than 2 years or parents if deceased was under 18 and never married. Children not entitled.

Question 46

Who can claim loss of dependency damages?

Answer 46

If dependant and financially dependent.

Question 47

What does the Occupiers' Liability Act 1957 govern?

Answer 47

Liability for injuries to visitors.

Question 48

What does the Occupier's Liability Act 1984 govern?

Answer 48

Liability for injuries to non-visitors.

Question 49

When is a duty of care owed to trespasser?

Answer 49

1. Occupier aware of danger. 2. Occupier aware of trespasser AND danger is one it is reasonable to expect occupier to offer protection. 3. Duty to take care is reasonable in circumstances. 4. Warning sufficient to discharge duty.

Question 50

Can occupier exclude duty of care by contract or notice?

Answer 50

Yes, but cannot exclude for death or personal injury from negligence; wording must be clear and brought to attention of visitor.

Question 51

What is required under the Defective Premises Act 1972?

Answer 51

Landlord obliged to carry out repairs to premises - has duty of care re: defects.

Question 52

What duty does manufacturer owe to consumer?

Answer 52

Duty of reasonable care - owed to anyone whom could reasonably foresee likely to be affected by defect in the product; not owed by retailer unless inspection is expected.

Question 53

How to show manufacturer breached duty - what damages are owed?

Answer 53

Manufacturing defect or design defect - personal injury and consequential economic loss.

Question 54

What defences are available for manufacturing defects?

Answer 54

Assumption of risk and contributory negligence.

Question 55

How can Consumer Protection Act 1987 be established?

Answer 55

Strict liability - no need to prove fault.

Question 56

How can product be defective under CPA 1987?

Answer 56

1. Instructions and warnings insufficient. 2. Product packaging or marketing implied product can be used something it cannot be safely used for. 3. Not safe to use.

Question 57

When can supplier be defendant under CPA 1987?

Answer 57

1. Claimant requests name of manufacturer/anyone who holds themselves out as manufacturer. 2. Not reasonably practicable for claimant to identify those persons independently. 3. Supplier does not identify the manufacturer or importer.

Question 58

What damages are recoverable under CPA 1987?

Answer 58

Damages for personal injury and property damage - damages for private personal property must exceed 275 to be recoverable. Not pure economic damage, not damage to business property.

Question 59

What are defences available under CPA 1987?

Answer 59

- D was not acting in course of business when supplied. - Contributory negligence. - Liability cannot be excluded or limited under CPA.

Question 60

How to establish a breach of statutory duty?

Answer 60

1. Within class of persons intended to be protected by statute. 2. Damage suffered is one of the type which statute was designed to prevent.

Question 61

What is a public nuisance?

Answer 61

Unreasonable interference with the comfort and convenience of life of a class of the public.

Question 62

When can a private citizen bring an action for public nuisance?

Answer 62

Only if the private citizen has suffered particular damage beyond that suffered by the general public.

Question 63

What is private nuisance?

Answer 63

Defendant uses land in a way which unlawfully or unreasonably interferes with the claimant's use and enjoyment of their land.

Question 64

What constitutes interference for private nuisance?

Answer 64

Physical damage - flooding, vibration; damage to enjoyment (amenity); encroachment.

Question 65

Is intangible damage sufficient for an action in tort of nuisance or tort of negligence?

Answer 65

Tort of nuisance only. For negligence - must be physical or economic harm.

Question 66

What do the courts look at for intangible amenity damage?

Answer 66

- Intensity and duration. - Character of neighbourhood. - Whether claimant is abnormally sensitive. - Whether interference was undertaken with malice.

Question 67

What are the defences for nuisance?

Answer 67

1. Prescription. 2. Use permitted by statute.

Question 68

What are the non-defences for nuisance?

Answer 68

- Planning permission granted for use. - Nuisance already in existence before claimant to it.

Question 69

What are the remedies for nuisance?

Answer 69

Injunction ordering to cease the activity - within court's discretion or damages.

Question 70

What is the rule in Rylands v Fletcher?

Answer 70

Strict liability when there is an escape of a dangerous thing from the defendant's land in the course of non-natural use of the land.

Question 71

What are the conditions for liability in Rylands v Fletcher?

Answer 71

1. D brings something onto their land likely to cause harm if it escapes. 2. D engaged in non-natural use of land. 3. Thing gathered on land does escape and causes damage.

Question 72

What defences are available to a claim under Rylands v Fletcher?

Answer 72

- Escape caused by unforeseeable act of stranger. - Escape was caused by unforeseeable natural circumstance. - Claimant's contributory negligence. - Statutory authority.