Tort Christmas Exam review

Question 1

What is the primary distinction between a primary and secondary victim?

Answer 1

direct involvment with the event in question

explanation: A primary victim is someone who has been directly involved in an accident, whereas a secondary victim is someone who has witnessed the distressing events but has not been directly involved.

Question 2

What are the areas of limited duty?

Answer 2

Omissions
Mental injury

explanation
omissions: english law does not recognise liability for pure omissions
mental injury: there is no libality for pure shock or grief, must be a recnognised phyciatric condition. Proximity and policy considerations still remain

Question 3

liability for mental injury
what is the criteria and what case does it come from?

Answer 3

1. Foreseeability of psychiatric harm;
2. close tie of love and affection with the person endangered;
3. Proximity to the incident or immediate aftermath; and
4. The psychiatric injury must be caused by a shocking event.
5. Must see or hear the incident, or immediate aftermath.

Alcock v cheif constable

note: liability for mental injury has a huge amount of case law and as such can also be analysied on a case-by-case basis

Question 4

can you be liable for omissions?

Answer 4

no liability for pure omissions but Subject to the exceptions of duties of affirmative action

Question 5

what are the elements of a successful claim for mental injury?

Answer 5

passes the criteria of alcock

Question 6

What are the circumstances that means you DONT have a DOC?

Answer 6

You don’t have a DOC to perform a positive action (unless if falls under the affirmative actoins).

Question 7

What will the court rule/consider when considering sudden shock?

i.e why is sudden shock an important consideration?

Answer 7

1. Primary victims do not have to establish that their aprecaiont of the event was through sudden shock, secondary victims do
2. shock is the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind.
3. BASED ON FORESEEABILITY and other alcock criteria

e.g. there can be no claim for depression caused by looking after a victim injured by someone else’s negligence.

Question 8

When can a rescuer claim to be a primary victim?

Answer 8

they have to fall within the normal rules of primary vs secondary victims

Question 9

Which case(s) give us the current tests for establishing DOC?

Answer 9

Robinson
Caparo (only for new relationships of DOC).

Question 10

What case gives us the criteria for secondary victims, and what are those criteria?

Answer 10

Alcock v Chief constable

1. A close tie of love and affection to a primary victim
2. Appreciation of the event with their own unaided senses
3. Proximity to the event or its immediate aftermath
4. The psychiatric harm must be caused by a sufficiently shocking event.

Question 11

do the police owe a DOC?
what is the case authority?

Answer 11

No. only if acting as private individuals. (Tindall), ancell v McDermont, Michael v Cheif constable

Question 12

what is the interference principle?
what case does it come from?

Answer 12

the duty of care not to make matters worse by acting in a way that creates an unreasonable and reasonably foreseeable risk of physical injury to the claimant.

Tindall

Question 13

do ambulances have a DOC?
what is the case authority?

Answer 13

kent v griffiths

Yes they do

Question 14

do the fire service have a DOC?
what is the case authority?

Answer 14

no duty of care owed by fire services

capital counties v hants Cc 1997

Question 15

what are the affirmative actions that make you liable for an omission?

Answer 15

• creating a situation of danger
• Dangers on ones land
• assumption of responsabililty
• duty to control a third party

Question 16

what is customary phlegm?

Answer 16

When considering whether an injury was reasonably foreseeable, would a person of normal fortitude (customary phlegm) suffer psychiatric injury?

Question 17

What are the two sub issues when considering standard of care?

Answer 17

1. standard of care
2. breach of standard

Question 18

how do we work out if the standard of care has been breached?

Answer 18

1. multi factor analusis for normal cases
2. for special cases: multi-factor analysis + professional tests (e.g. bolam or montgomery test)

Question 19

what consitutes a special case when considering standard of care?

Answer 19

professional standards (e.g. doctors)
different enviornment (sports)
age (children held to a different standard)

Question 20

what is the ordinary standard of care?

Answer 20

care depends not on your characteristics, but on what the law expects generally of people in the situation at hand. (reasonable person).

Question 21

who is the reasonable person?

Answer 21

1. Objective
2. Hypothetical – not ‘average’ person or ‘most’ people
3. minimum standard
4. Reasonable person might have many options

Question 22

what are the four components of a multi-factor analysis?

bonus points for naming the cases attached to each factor

Answer 22

1. Foreseeable likelihood of harm occurring * E.g. Bolton v Stone (1951); Hilder v Associated Portland Cement (1961)
2. Foreseeable magnitude of the harm (if it occurs) * E.g. Paris v Stepney BC (1951)
3. Cost of precautions * E.g. Latimer v AEC (1953); The Wagon Mound (No 2) (1967)
4. Social utility * Daborn v Bath Tramways Motor Co (1946); Tomlinson v Congleton BC (2003) * Sec. 1, Compensation Act 2006 + Social Action, Responsibility and Heroism Act 2015

Question 23

which case gives us the principle of SOC for leaner drivers and what is that standard?

Answer 23

Nettleship
learner drivers held to the same standard as any reasonable competent driver

Question 24

which case tells us about the duty to inform? What is that test caled?

Answer 24

Montgomery, Montgomery test

Question 25

what is the bolam test?

Answer 25

if a practice was in agreement with a responsible body of other medical professionals, then it cannot be a breach of standard of care.

Question 26

what is the bolithio test? how has it modified or interacted with the bolam test?

Answer 26

The House of Lords clarified the Bolam test to include a provison that the practice accepted as proper by a responsible body of professionals must be based on logical and defensible grounds.

Question 27

How does A honore describe causation

Answer 27

“to insist on causal connection between conduct and harm ensures that in general we impose liability only on those who, by intervening in the world, have changed the course of events for the worse.”

Question 28

BFT and its key cases?

Answer 28

Can it be said that if D had not acted, C’s loss would not have occurred? I.e would the claimants loss still have happened even without the defendant's conduct? Barnett v Chelsea and Kensington Hospital, McWilliams v Sir William Arrol Ltd.

Question 29

all or nothing approach

Answer 29

Apply the BFT C must show on the balance of probabilities that it was the defendant's breach that caused the loss. (It’s all or nothing because a probability of greater than 50% is treated as a certainty).

Question 30

what is material contribution to injury and WHEN can this test be used (what type of injury/case)?

Answer 30

- A forensic device for analysing indivisible injuries. - Under this principle, the defendant is held liable for having part-caused the claimants' injury.

Question 31

What is the principle of the Loss of Chance of recovering from physical injury

Answer 31

If on the balance of probabilities C was going to suffer physical consequences regardless of the actions of the defendants then the only existing claim could be for loss of chance, which then comes down to the statistical analysis of the courts.

Question 32

what does chester v Afshar tell us?

Answer 32

a Doctor who doesn’t warn a patient about a complication from treatment must compensate the patient for the consequences of that complication materialising.

Question 33

what is the balance of probabilities?

Answer 33

“The law operates a binary system in which the only values are 0 and 1. If the evidence that something happened satisfies the burden of proof…then it is assigned a value of 1 and treated as definitely having happened. If the evidence does not discharge the burden of proof, the event is assigned a value of 0 and treated as definitely not having happened. There is no forensic space for the conclusion that something which has to be proved may have happened.”

Question 34

What are the principles of the performance cars v Abraham case?

Answer 34

This case gives us the Orthodox rule: Where the damage is divisible, the defendant will only be liable for the part they cause.

Question 35

Orthodox rule of divisble injury?

Answer 35

Where the damage is divisible, the defendant will only be liable for the part they cause.

Question 36

difference between divisible and indivisible injury?

Question 37

what is the balance of probability standard?

Answer 37

The balance of probability standard means that a court is satisfied a fact or event occurred if the court considers that, on the evidence, the occurrence of the fact or event was more likely than not.

Question 38

What are the 3 types of concurrent cases?

Question 39

what is an indeterminate cause what is the key case?

Answer 39

One operant cause but more than one defendant. Summers v Tice, Cook v Lewis

Question 40

what is a cumulative cause what is the key case?

Answer 40

Multiple operant causes and multiple defendants that mingle to create damage. Effectively the cumulative effect of two tortious acts combining together to create one, worsened injury. Key cases: The Koursk

Question 41

what is a successive case?

Answer 41

Two tortious actions that happen in succession to each other in such a way that it raises queries as to which defendant should be liable for the tort and whether the second action overrides the first. Key cases: Performance Cars (Divisible) , Baker v Willoughby (Indivisible)

Question 42

What are some exception to the but for test?

Question 43

What is the basic test of remoteness and what key case does it stem from?

Question 44

What is Novus actus interveniens? what are the 3 types?

Question 45

What is the eggshell rule/thin skull rule?

Question 46

What is contributory negligence?

Question 47

What are the requirements of contributory negligence?

Question 48

What is apportionment? give one example (key cases?) What statute is used to determine apportionment?

Question 49

What is volenti non fit injuria?

Question 50

What are the key cases of non fit injuria and what legal rules/ideas do they give us?

Question 51

What are the requirements of a sucesfull defensce of non fit injuria

Question 52

What are the restriction of volenti (think statutes)

Question 53

what is the defence of illegality?

Question 54

what are some instances in which the defence of illegality would not apply?

Question 55

why is the Patel v Mirza case so important?

Question 56

what are some common aplications of the illegality defence?

Question 57

how is volenti different from disclaimer of liability?

Question 58

why is Jones v Livox an important case? legal rules/ideas etc?

Question 59

Why is Pitts v hunt such an importance case? legal rules/ideas?

Question 60

Why is Jackson v Murray such an importance case? legal rules/ideas?

Question 61

can kids be liable for contributory negligence? what case law dictates this principle?

Question 62

what is the public interest test and what case does it come from?

Question 63

what is vicarious liability?

Question 64

how are VL and personal liablity and third party affirmative action different?

Question 65

why do we use VL? what are the justifications

Question 66

what is the legal test for VL?

Question 67

what relationship must exist for a claim of VL to succeed?

Question 68

Which case gave us the core principles of relationship akin to employment?

Question 69

what are some established relationships akin to employment?

Question 70

what is the control test? What is its application/use in modern tort law?

Question 71

what is the economic reality test, and which case gave us this test?

Question 72

how is VL applied when there are multiple employers?

Question 73

what is sufficient connection?

Question 74

what tests are used to determine sufficient connection?

Question 75

what is the relationship between case-law and the close connection test?

Question 76

can you give one key case that represents: Acts for employee’s own comfort or convenience, Expressly prohibited acts Criminal Acts?

Question 77

what are non-delegable duties?

Question 78

what are some cases in which VL can stretch to third parties?

Question 79

what are compensatory damages?

Question 80

what does it mean to restore a C back to where they were?

Question 81

what are the two main ways in which damages can be awarded?

Question 82

Special damages vs general damages?

Question 83

what are pecuniary damages?

Question 84

what are non-pecuniary damages? name the three distinctions...?

Question 85

where would one find the tariffs for non-pecuniary losses? name the four distinctions?

Question 86

what is meant by pain and suffering? what is the key case?

Question 87

what is meant by loss of amenity? key case?

Question 88

what happens in cases of permamnent unconsciousness? key case?

Question 89

what happens in a case of diminished life expectancy? key case?

Question 90

how does compensation for medical care work? key case?

Question 91

what are collateral benefits and how do they affect the damages that are awarded?

Question 92

how do the courts award compensation for future loss of earnings?

Question 93

what is the multiplier method and how is it calculated?

Question 94

what damages are available when teh injured party has died?