Tort Law

Question 1

What are the elements needed for negligence

Answer 1

Duty of care, breach of duty, the breach cause the damage (and there was no break in the chain of causation, defences)

Question 2

What does tort law aim to do?

Answer 2

Put C back to where they were prior to the tort

Question 3

Give three examples of tort

Answer 3

Negligence, nuisance and defamation

Question 4

What is the legal action time limit for tort law given by the Limitation Act 1980?

Answer 4

3 years

Question 5

What is a tortfeasor

Answer 5

A person who commits a tort

Question 6

What does tortious mean

Answer 6

Constitutes a tort

Question 7

What does tortuous mean

Answer 7

Complex/full of twists

Question 8

Neighbour Principle case?

Answer 8

Donoghue v Stevenson 1932

Question 9

What is the neighbour principle

Answer 9

‘You owe a doc to your neighbour, someone who could foreseeably be injured by your act/omission’.

Question 10

True or false - you still need forseeability if the tort is one of strict liability

Answer 10

False

Question 11

What is the Caparo (1990) test?

Answer 11

Used when no legal DoC-

• Reasonable foreseeability? – Bourhill (1943)
• Sufficient relationship of proximity? -ie Evans 1936 – windshield bought too long ago for liability
• Fair, just and reasonable? – Hill 1989 (police duty of care)

Question 12

What does Robinson 2018 tell us about the fair just and reasonable clause?

Answer 12

Public authorities are subject to the same liabilities in tort law as private individuals. They are under a duty not to cause the public harm via their own actions, but are not under a duty to prevent harm from third parties. The Police are not exempt from claims in negligence.

Question 13

What does the East Suffolk Rivers Catchment Board v Kent and another (1940) case say about public authorities and omissions?

Answer 13

PA are generally NOT LIABLE for omissions

Question 14

What is consequential economic loss

Answer 14

A consequence of an effect (ie consequence of an injury, like physio bills)

Question 15

What is Pure Economic Loss

Answer 15

Where the loss isn’t connected to the PI of the claimant or property damage

Question 16

Is the scope for Pure Economic Loss limited?

Answer 16

YES- can usually only be claimed if a contract is involved

Question 17

What exemptions exists where you CAN claim pure economic loss without a contract?

Answer 17

• Close relationship - for example a solicitor and beneficiary relationship under a will.-
• See Ross v Caunters (1980). Relationship is one of trust therefore negligent advice may result in intended beneficiary losing out on inheritance
• Negligent statements – the HoL held in Hedley Byrne v Heller (1964) that there can be a duty of care for financial loss caused by a negligent statement, where there is a “special relationship”. (This case involved bankers and their clients)

Question 18

When can you claim for psychiatric injury?

Answer 18

C has to prove serious psych illness. If a claimant suffers pure psych injury and no phys harm then a distinction has to be made between being a primary victim or a secondary one (usually a witness).

Question 19

What is the distinction between a primary and secondary victim?

Answer 19

• A primary victim is a person who was under actual threat of bodily harm or reasonably believed themselves to be so, as a result of the negligent event
• A secondary victim is a person who suffers a psychiatric illness as a result of witnessing an accident or its ‘immediate aftermath’.

Question 20

True or false- A rescuer who suffers PI as a result at the scene of the accident can be classed as a primary victim IF they were or reasonably believed themselves to be in danger of physical injury.

Answer 20

True- White v Chief Constable South Yorkshire (1999)

Question 21

What does the aw say about the standard of care given by a skilled person?

Answer 21

If a person holds themselves out to have special skills the standard is that of a person having those skills

Question 22

What risk factors must the court take into account when deciding the element of a reasonable person of the claim

Answer 22

• Probability of harm
• Potential seriousness of harm
• Precautions/practicalities taken to prevent harm
• Value to society of what the defendant was attempting to achieve

Question 23

What are the 2 other ways a breach of duty can be proved?

Answer 23

• s11 of the Civil Evidence Act 1968 provides that a conviction for a criminal offence shall be proof that an offence was committed, so, e.g. the claimant may rely on the defendant’s conviction for careless driving in a road accident to prove negligence in a civil claim for damages
• Doctrine of res ipsa loquitur (the thing speaks for itself). The claimant may be able to prove that defendant was in breach but may not be able to prove exactly how injury was caused. The principle relies on the absence of knowledge. Burden of proof is reversed so the defendant will have to prove that a duty was not breached. Example of this is if a surgeon left an instrument in a patient for example.

Question 24

How do you prove that the breach caused the damage?

Answer 24

But for test - but for that breach, there would be no damage.

Question 25

How do you prove causation?

Answer 25

The damage must not be too remote in that it must have been reasonably foreseeable and it is an objective test (ie a reasonable person would see a waitress spilling hot coffee on a client would cause burns)

Question 26

What is the Eggshell Skull Principle

Answer 26

The defendant must take the victim as they find them so will be liable even if they suffer from a greater susceptibility or weakness to harm than a normal person

Question 27

What are intervening acts in causation?

Answer 27

The court has to decide if a new intervening act broke the chain of causation. If this is the case then the defendant will only be liable for the injury or harm caused by his negligent acts prior to the intervening act. Regarding the final loss the claimant may take action against the third party.

Question 28

Give 4 examples of defences to negligence

Answer 28

Contributory negligence Consent Illegality Consumer Protection Act 1987

Question 29

What is contributory negligence?

Answer 29

A partial defence- reduces % of damages D is liable for. How much C contributed to his own injuries.

Question 30

What is consent?

Answer 30

A complete defence. D is not liable for an injury where C consented ie sports when the sporting match follows all the rules.

Question 31

What is illegality?

Answer 31

A complete defence. A claimant cannot usually recover damages for injury or loss when the clamant was themselves engaged in illegal actions, as a matter of public policy.

Question 32

What is the Consumer Protection Act 1987

Answer 32

Claimant can take action against a defendant for a defective product where loss has been suffered in contract, tort or under the Consumer Protection Act 1987. Statutory duty, so liability is strict.

Question 33

What does Rylands v Fletcher 1968 say about occupiers?

Answer 33

Strict liability of the occupier being liable for damage regardless of fault. (1) The D brings onto their land for their own purposes something likely ‘to do mischief’ if it escapes (2) And which represents a non-natural use of land (3) And causes foreseeable damage of the relevant type Then that damage is their fault

Question 34

Define 'escape'

Answer 34

The substance/ item causing damage must actually move from the D’s premises to a place beyond their control or occupation.

Question 35

What does the case of Standard v Gore (2012) say about R V F?

Answer 35

Tyres stored on D’s land caught fire and destroyed the D’s premises and the C’s premises. However, the claim failed.While the fire had spread from the D’s land to the C’s land, the tyres themselves had not escaped.

Question 36

Here is an example of the R v F rule. How would you answer it? You act for the manufacturer of explosives used in warfare, located on an industrial estate. There is a small explosion at the factory that was not caused by the client, and bits of rubble and debris are blown over the retail park which is next to the factory. No one is hurt, but one potential claimant (one of the shops) has contacted your clients, seeking money to repair their roof and windows, which were damaged by bits of the rubble. Is your client liable in tort for this damage?

Answer 36

The making of explosives is likely to do mischief and it is likely to be held to be a non-natural use of land. The debris from the explosives has “escaped” and caused foreseeable harm to the shop owner. This therefore meets the rule in Rylands v Fletcher.

Question 37

Here's an example of Pure Economic Loss. How would you answer it? Fraud and Co, a firm of accountants and auditors, were employed to prepare the accounts and balance sheet of LotsofCash plc, knowing the accounts were to be sent to Bigboy, a private investor, who was thinking of buying a majority shareholding in LotsofCash plc. The accounts were negligently prepared and showed the company as financially stable, whereas in fact the opposite was true and the company had large debts outstanding. Bigboy showed the accounts to his friend Sidekick. Bigboy purchased £500,000 worth of shares and Sidekick purchased £75,000 worth of shares. Within six months, LotsofCash plc went into liquidation and both Bigboy and Sidekick lost their investments. Advise Bigboy and Sidekick on the likelihood of them succeeding in their actions against Fraud and Co.

Answer 37

* It may be possible to claim for pure economic loss where there has been a negligent misstatement, Hedley Byrne v Heller (1964) but there must be a ‘special relationship’ between the parties, Caparo v Dickman (1990). * In order to succeed the claimant must show that the defendant knew that the statement would be communicated to the claimant (either a named or unnamed individual or an identifiable group of persons). * The advice was given specifically in connection with an identifiable transaction or transactions of a particular kind. * The defendant reasonably anticipated that the claimant was likely to rely on the statement for the purpose of the transaction without seeking further independent advice. * Fraud and Co were aware that the accounts were being sent to Bigboy who was thinking to invest. Provided they reasonably anticipated that the claimant was likely to rely on the statement (and Bigboy did rely on it) then Bigboy may have a claim. Morgan Crucible v Hill Samuel Bank (1991), Sebry v Companies House (2015). * There appears to be no special relationship between Sidekick and Fraud and Co and therefore Sidekick will not be successful in an action for negligent misstatement,. James McNaughten v Hicks (1991).

Question 38

Can you claim for PEL when there has been a negligent misstatement?

Answer 38

Yes- Hedley Byrne 1964

Question 39

What does Caparo 1990 say about PEL and the two parties

Answer 39

There must be a special relationship

Question 40

Which act introduced Contributory Negligence as a defence?

Answer 40

Law Reform (Contributory Negligence) Act 1945

Question 41

What is a strict liability offence?

Answer 41

Strict liability offences are specific acts or omissions that automatically involve legal liability, even without proof of negligence or intent. These offences are usually considered inherently hazardous or pose significant risk to public safety, making it crucial to hold accountable those who engage in such activities. The following are some general characteristics of strict liability offences: No requirement to prove intent or negligence Automatically imposed liability upon the commission of a prohibited act or omission Usually involve inherently hazardous or risk-filled activities

Question 42

What are the 4 duties an employer must provide to their staff?

Answer 42

Duty to provide competent staff Duty to provide adequate material Duty to provide a proper system of work and supervision Duty to provide a safe place of work

Question 43

What is the measure of 'cost of cure' in damages

Answer 43

The amount required to rectify or correct a breach of contract

Question 44

On what basis can a claimant claim a right to withhold inspection of a letter

Answer 44

A letter is subject to litigation privilege - litigation privilege protects confidential communications between parties and their lawyers if created for the dominant purpose of ongoing litigation

Question 45

What is vicarious liability

Answer 45

Vicarious liability is when a supervisory party is liable for the negligent actions of a third party for whom they are responsible.

Question 46

True or false- vicarious liability will exist if the employee's act is sufficiently connected to his employment

Answer 46

true

Question 47

When can contrib neg not be claimed

Answer 47

When the person's injuries were not the cause/contributed to the injury

Question 48

Can damages be claimed from someone who did not owe you a direct duty of care

Answer 48

No