Tort law Flashcards
(26 cards)
What is Tort law?
Tort law is a civil wrong. It protects individuals from harm.
What are the 7 most common Torts?
- Negligence
- Defamation
- Private nuisance
- Assault/battery- trespass to the person
- Dangerous animals
- Consumer liability
- Product liability
Explain Negligence and the reasonable man test
Negligence is an omission or breach of duty of care that a majority person would provide.
What three things must the Claimant prove on the balance of probabilities for liability in negligence to be established?
- Duty of care
- Breach
- Causation
What is the neighbor principle?
It established if there is a duty of care
The legal basis for finding a duty of care has its roots in Donoghue v Stevenson [1932] AC 562
- commonly referred to as the “snail in a bottle case”, whereupon it was held that a general duty of care could be said to exist between two parties under the ‘neighbor principle’.
Explain the Caparo three-part test
Used to determine a duty of care
- Proximity (Alcock v Chief Constable of South Yorkshire Police [1991])
- Fairness
- Feasibility
What are the exceptions to the general rule in the Caparo test?
- Third-party
- Public sector
- Omission to act if you do not have a position of responsibility/authority/created a risk
What is meant by the reasonable man?
The majority person and how he would act in a situation
(Hall v Brooklands Auto-Racing Club [1933])
Explain what is meant by the Standard of Care and the breach of that duty
Standard of care is what a reasonable person would do in that situation and a breach is a failure to do so
(Dunnage v Randall and another [2015])
5 important factors to consider when considering a breach of duty
- Magnitude of the risk
- Predictability of precautions
- Social utility of the activity- did they act to avoid greater harm
- Inexperience
- Bolam for medical professionals
2 legal principles to prove causation
Factual causation- but for test (Barnett v Chelsea and Kensington Hospital Management Committee [1969])
Legal causation- remoteness (The Wagon Mound [1961])
What would a break in the chain mean for the case?
This would mean an unsuccessful claim- it is where the defendant’s actions cannot be said to be the sole cause of the loss
3 things to consider when determining if something is an intervening act
- Foreseeable
- In the contemplation of the parties
- Just the sort of thing likely to happen
What amounts to a break in the chain
- Caused by the claimant Spencer v Wincanton [2009] EWCA Civ 1404
- Caused by a third-party The Oropesa [1943] p32
- Natural (Carslogie Steamship Co v Royal Norwegian Government [1951])
4 common defences in negligence
- Limitation
- Mitigation.
- Contribution (partial defence)
- Consent (volenti non fit injuria)
Remedies available to the claimant
- Damages
- Injunctions
- Restitution
In a claim for Housing Disrepair in what situation would negligence apply?
If personal loss has come about as a result of a breach of a duty of care
In a claim for Housing Disrepair in what situation would the Tort of Private Nuisance apply? (Section 4 of the Defective Premises Act)
If there has been a defect in the premises in a block of flats for example which has impacted your home
In a claim for Housing Disrepair in what situation would the Tort of Statutory Nuisance apply (Environmental Protection Act 1990)
If the disrepair is so bad that it is harmful to health
What Duty of Care is owed to the Claimant by the Landlord?
To provide safe housing in accordance with the right to enjoyment. A landlord’s duty of care to a claimant is to take reasonable care to prevent personal injury or property damage caused by defects in the property
Public Nuisance
This is where the comfort or quality of life of the public or a group of people is affected.
General damages
General damages can be categorised as monetary compensation for assessed future pecuniary loss and past and future non-pecuniary losses.
o Loss of future income;
o Pain and suffering;
o Loss of amenity including loss of hobbies;
o Costs associated with treatment – nursing, equipment, possible alterations to house;
o Costs of bringing up child.
Special damages
Special Damages are monetary compensation for actual pecuniary loss to date of trial.
* Loss of income – date of accident to date of trial;
* Costs of treatment – to trial;
* Expenses resulting from accident to date of trial etc.
Eggshell or thin skull rule
R v Blaue [1975] take your client as you find them
