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Tort Law Flashcards

1
Q

What is negligence?

A

It is based on a duty of care and has a 3 stage test

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2
Q

What is the first stage of negligence?

A

It must be proved that D owes the C a duty of care - In Donoghue v Stevenson, it was held that you owe a duty of care to anyone who is your neighbor; anyone directly affected by your actions

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3
Q

What are the two different ways to prove a duty of care for the first stage of negligence?

A

If there is an obvious duty of care, only Robinson needs to be applied, not the Caparo test
If the duty of care is not obvious, the Caparo v Dickman test must be applied

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4
Q

What is the Caparo v Dickman test?

A

a) Was the loss/damage reasonable foreseeable? (Kent v Griffiths)
b) Was there a relationship of close proximity; legal or physical? (Bourhill v Young)
c) Is it fair, just and reasonable to impose a duty of care? - based on public policy (Hill v Chief Constable)

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5
Q

What are the side rules for the Caparo test?

A

Police Officers - Robinson, owe a duty of care to avoid causing injury by positive act
Emergency worker - Osman v UK, they can be sued if risk of harm is substantially higher
Insurance - If D has insurance then it is usually fair

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6
Q

What is the second stage of negligence?

A

The D must have breached the duty to the C

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7
Q

What is a breach of duty and what comes under it?

A

Defined by Alderson B in Blythe v Birmingham as “Doing something a reasonable person would do or not doing something a reasonable person would do” and the D is judged by a reasonable person of a characteristic as well as risk factors which are taken into account

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8
Q

What are the three characteristics?

A

If D is an expert in a particular skill, they are judged by the standards of another expert (Bolam/Bolitho)(However, if another body of the medical profession agrees with the doctor, they are not negligent)
If D is inexperienced/learner, they will be judged by the standards of someone competent (Nettleship V Weston)
Children will be judged by the standards of another child (Mullins V Richard)

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9
Q

What are the three risk factors?

A

Magnitude of risk, Probability of harm, Cost and practicality of precautions

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10
Q

What is the magnitude of the risk?

A

The court needs to take into account the seriousness of the risk; the bigger the risk. the more precautions need to be put in place (Paris V Stepney council)

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11
Q

What is the probability of harm?

A

If there is a higher probability of harm, more care would need to be taken; a reasonable person need not take precautions against every small risks but against the big risks/ones more likely to occur (Bolton V Stone)

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12
Q

What is the cost and practicality of precautions?

A

If the cost of taking precautions to rewove the risk is too great, the D may not be in breach of duty (Latimer)

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13
Q

What is the side rule under stage 2 of negligence?

A

SIDE RULE: Social utility of the risk - If the risks have benefit for society, the D will not be in breach of duty (Watt v Herefordshire council)

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14
Q

What is the third stage of negligence?

A

The breach must cause the damage

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15
Q

What are factual and legal causation defined as?

A

Factual, “But for?” test (Barnett v Chelsea Hospital)
Legal, remoteness of the damage - reasonably foreseeable or too remote (Wagon Mound No. 1)

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16
Q

What is the side rule for the third stage of negligence?

A

SIDE RULE: D doesn’t need to foresee the manner in which the injury was caused as long as the injury type was foreseeable (Hughes v Lord Advocate)

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17
Q

What intervening act comes under the third stage of negligence?

A

Thin skull rule: you must take your C as you find them (Robinson V Post Office)(Smith v Leech Brain Co)

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18
Q

What is the first stage of psychiatric injury?

A

The C must be suffering from a recognised psychiatric injury, rather than just ordinary human emotion (Reilly v Merseyside Health Authority)
The C must show that this wads caused by a traumatic event or an “attack on the senses” (Sion v Hampstead Health Authority)

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19
Q

What is the second stage of psychiatric injury?

A

Was the C a primary or secondary victim?

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20
Q

What is a secondary victim and what comes under it?

A

Unwillling witnesses to the incident but not personally in danger of harm
Secondary victims must establish the “control mechanisms” as given by Alcock and updated in Paul, Polmear and Purchase

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21
Q

What is a primary victim and what comes under it?

A

Somebody who reasonable fears for their own safety or is within the zone of danger
Page v Smith established a 2 stage test: Must show that some type of physical injury was foreseeable, but not psychiatric
Don’t need to be a person of normal fortitude

22
Q

What are all the control mechanisms?

A

Love: must be close ties of love and affection between the primary victim
Witness: must witness the traumatic incident or its immediate aftermath with your own unaided senses (McLoughlin v O’Brian)
Witness: must have directly seen it; not heard through phone or seen on tv
Causation: Sufficient enough for there to be a link between incident and psychiatric injury with the incident as the cause

23
Q

What are the side rules for the second stage of psychiatric injury?

A

Rescuers: If they are a primary victim, they can claim; if they are secondary, they must fulfill control mechanisms (Chadwick v British Transport)
Bystanders: cannot claim unless they fulfill control mechanisms (McFarlane)

24
Q

What is nuisance and what comes under it?

A

The unlawful/unreasonable interference with a persons use or enjoyment of land
The C must demonstrate a legal interest in the land affected to claim (Hunter v Canary Wharf)
Lord Goff in Cambridge Water: the fact that the D has taken all reasonable steps will not exonerate him

25
Q

What is the first stage of nuisance?

A

Location: the locality of the area must be considered (Leeman V Montague)(A residential area will expect less noise whilst a commercial area with expect more)

26
Q

What is the side rule for the first stage of nuisance?

A

Damage to land: If the nuisance causes physical damage, the location is irrelevant (St Helens Smelting v Tipping)

27
Q

What is the second stage of nuisance?

A

Duration: The more long lasting the nuisance is, the more likely it is to be a nuisance (Cunard v Antifyre)

28
Q

What are the two side rules for the second stage of nuisance?

A

Time of day: even if interference is short, it may be unreasonable due to time of day (De Keysers Royal Hotel)
Damage to land: a short duration of time may still be a nuisance if it causes damge (Crown River Cruises v Kimbolton)

29
Q

What is the third stage of nuisance?

A

Motive and malice: If the activity of the D is motivated by malice, it is likely to be unreasonable (Christie v Davey)

30
Q

What is the side rule for the third stage of nuisance?

A

Interference with recreational activities: if the claim is for interreference with recreational activities, it will likely fail (Hunter v Canary Wharf)

30
Q

What are the defences for nuisance?

A

Statutory authority, planning permission, contributory negligence, prescription, volenti non fit injuria

31
Q

What is the defence of statutory authority for nuisance?

A

Where an Act of Parliament gives permission for the nuisance (Allen v Gulf Oil)

32
Q

What is the defence of planning permission for nuisance?

A

New builds mean the character of a location could change so the interference could be reasonable/unreasonable (Gillingham Council v Medway)

33
Q

What is the defence of prescription for nuisance?

A

If the C had tolerated the nuisance for a substantial amount of time (e.g 20 years) then there is no nuisance

34
Q

What is the defence of volenti-non-injuria for nuisance?

A

Where the C explicitly or impliedly consents to the nuisance

35
Q

What is contributory negligence for nuisance?

A

Law Reform (Contributory Negligence) Act 1945; C’s compensation is decreased by the same amount in which they contributed

36
Q

What are the remedies available for nuisance?

A

Abatement, Injunction, Compensation

37
Q

What is the remedy of abatement for nuisance?

A

A form of self help - a C can take reasonable steps to lessen the nuisance

38
Q

What is the remedy of injunctions for nuisance?

A

An equitable remedy (only given by courts if fair and just to do so) and the court may refuse if not in the public interest and award damages instead (Miller v Jackson)
Injunctions can be tailored to meet the exact need (Kennaway v Thompson)

39
Q

What is the remedy of damages for nuisance?

A

Compensation may be awarded where the damage done by the nuisance is quantifiable (an exact amount can be calculated)

40
Q

What is Rylands v Fletcher and what come under it?

A

Where the D brings something onto their land and stores it there; it escapes and causes damage to claimants land - this is a strict liability crime with 4 stages

41
Q

What is the first stage of Rylands v Fletcher?

A

A non-natural use of land; where the D brings something onto the land that was not naturally there due to what it is or its volume/quantity - (Transco) “extraordinary and unusual” or “special use bringing increased danger to others”

42
Q

What are some examples of a non natural use of land?

A

Oil, chemicals, poison, explosives, water, animals

43
Q

What is the second stage of Rylands v Fletcher?

A

An escape of the thing brought onto land; must be from a place that D had occupation of to a place D had no control over (Read v Lyons) - the thing itself must escape

44
Q

What is the third stage of Rylands v Fletcher?

A

Damage caused by the escape; in Rylands, Blackburn J said “D will be liable for all damage which is a natural consequence of its escape”

45
Q

What is the fourth stage if Rylands v Fletcher?

A

The damage is of a foreseeable type; must not be too remote (Cambridge Waters) if it can’t be predicted, it cant be prevented

46
Q

What are the defences for Rylands v Fletcher?

A

Acts of a third party, Acts of God, Statutory authority, Acts of the claimant, Consent

47
Q

What is Acts of God for Rylands v Fletcher?

A

The escape is due to natural causes that no human foresight could have guarded against (Nichols v Marsland)/(Greenock) Rare defence to get, typically for natural disasters

48
Q

What are acts of third parties for Rylands v Fletcher?

A

If a third party caused an escape, the D will not be held responsible if they could not have foreseen it and taken reasonable steps (Rickards v Lothian)

49
Q

What is statutory authority for Rylands v Fletcher?

A

If the escape is caused by something the D is legally obliged to do

50
Q

What is acts of the claimant for Rylands v Fletcher?

A

Where the damage is due to the fault of the C

51
Q

What is consent for Rylands v Fletcher?

A

Where the C expressly or impliedly consents to accumulating the thing

Law (12 decks)

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