Tort Law Flashcards
(169 cards)
1
Q
What is the first step in establishing a duty of care?
A
Determine if a duty of care is owed by the defendant to the claimant
2
Q
What are ‘established duty situations’?
A
- Road users
- Employer and employee
- Manufacturer and consumer
- Doctor and patient
- Solicitor and client
3
Q
What case established the duty of care between road users?
A
Dulieu v White & Sons [1901] 2 KB 669
4
Q
What case established the duty of care between employers and employees?
A
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57
5
Q
What case established the duty of care between manufacturers and consumers?
A
Donoghue v Stevenson [1932] AC 562
6
Q
What are the three criteria from Caparo Industries plc v Dickman [1990] 2 AC 605 to extend duty relationships?
A
- Reasonable foreseeability of harm
- Sufficient proximity within the relationship
- Fair, just and reasonable to impose a duty
7
Q
True or False: The Caparo criteria apply to established duty situations.
A
False
8
Q
What is a ‘pure omission’?
A
Failure to act that does not give rise to liability
9
Q
What are exceptions to the general rule of pure omissions?
A
- Created a risk of danger
- Special relationship between parties
10
Q
What is required for a defendant to owe a duty of care concerning the acts of a third party?
A
- Special relationship with the claimant
- Special relationship with the third party
- Created a source of danger
- Failed to take steps to abate known danger
11
Q
What is the significance of the Social Action, Responsibility and Heroism Act 2015?
A
It provides some protection to rescuers from civil liability
12
Q
What is the general stance of courts regarding public bodies and duty of care?
A
More reluctant to recognize a duty of care exists
13
Q
What is the two-stage test to establish a breach of duty?
A
- How should a person in the defendant’s position have behaved?
- How did the defendant actually behave?
14
Q
What is the standard of care?
A
The level of care a defendant is required to meet, which is objective
15
Q
What defines the standard of care expected from children?
A
The standard of care of an ordinary, careful and reasonable child of their age
16
Q
How are skilled defendants judged in terms of standard of care?
A
According to the standard of an ordinary skilled person in their profession
17
Q
What are the factors considered by courts when determining reasonable behavior?
A
- Risk of damage
- Seriousness of damage
- Social utility of the defendant’s activity
- Whether ‘the thing speaks for itself’
- Cost of prevention
18
Q
What must a claimant prove to establish causation?
A
- Causation in fact
- Causation in law (remoteness)
19
Q
What is the ‘but for’ test?
A
A test to determine if the claimant would have suffered damage but for the defendant’s breach
20
Q
What happens if the ‘but for’ test cannot be satisfied?
A
The claimant’s claim will fail
21
Q
What is a cumulative condition in terms of causation?
A
A condition that worsens with increased exposure to harmful substances or activities
22
Q
In cases of cumulative conditions, what is the standard for proving causation?
A
Whether the breach made a ‘material contribution’ to the damage
23
Q
What is the approach to causation in cumulative conditions?
A
The test becomes whether, on the balance of probabilities, the breach of duty made a ‘material contribution’ to the damage.
Cumulative diseases worsen with increased exposure to harmful substances or activities.
24
Q
How does the court treat each possible defendant in cumulative conditions?
A
Each defendant is treated separately and will be liable proportionately for their own contribution only.
This means that liability is divided based on each defendant’s individual impact on the harm.
25
What is the requirement for demonstrating causation in non-cumulative conditions?
It may be sufficient for a claimant to demonstrate that the defendant made a material contribution to the risk of harm.
## Footnote
Non-cumulative conditions can be triggered by a specific exposure, such as a single asbestos fibre.
26
What is the joint and several liability concept in non-cumulative conditions?
There may be joint and several liability for any defendants who contributed to the risk, but the contribution must be demonstrated on the balance of probabilities.
## Footnote
This allows claimants to seek full damages from any defendant who contributed to the risk.
27
What challenge arises when an individual has worked for multiple employers in a similar industry?
It may be difficult to show which employer is responsible for the exposure to harmful substances.
## Footnote
This complicates the attribution of liability in cases of cumulative exposure.
28
How are damages awarded when multiple employers have contributed to the risk of harm?
The court will only award damages against each defendant in proportion to their relative contribution.
## Footnote
This ensures fair allocation of liability based on each employer's impact.
29
What is the statutory exception for mesothelioma cases?
Any single employer can be held jointly and severally liable for the full extent of the claimant's damage.
## Footnote
Mesothelioma is specifically linked to asbestos exposure, leading to different liability rules.
30
What is the principle regarding loss of a chance of recovery?
There will be no recovery on the basis of loss of a chance if the cause of damage is indeterminate.
## Footnote
This applies when a hospital fails to diagnose and treat a patient properly.
31
What is informed consent in medical treatment?
The defendant should warn the claimant of the risks prior to surgery when required surgery carries a risk.
## Footnote
Informed consent is crucial for ensuring that patients are aware of potential risks involved in medical procedures.
32
What is the 'material increase in the risk' approach?
It is an approach used by the court when multiple negligent defendants are involved, and it finds both liable if each defendant is equally likely to have caused harm.
33
What is the significance of the case Baker v Willoughby?
In this case, the court held that the original defendant remained liable for the claimant's injury even after a subsequent unrelated injury occurred.
34
What was the outcome in Jobling v Associated Dairies Ltd regarding defendant liability?
The court ended the defendant’s liability for the claimant’s injury at the point the claimant suffered a more serious unrelated disease.
35
What is the test used to determine causation in law?
The test of foreseeability is used to determine if the damage caused is of a type that is reasonably foreseeable.
36
Define the 'thin-skull rule'.
It is a legal principle stating that a defendant is liable for all injuries caused to a victim, even if the victim has a pre-existing condition that makes them more susceptible to injury.
37
What must a claimant prove to apply the thin-skull rule?
The claimant must prove:
* The defendant breached their duty
* It was foreseeable the claimant would suffer some physical injury
* The claimant's particular susceptibility led to a more serious injury.
38
What is a novus actus interveniens?
It is a new intervening act that may break the chain of causation between the defendant’s breach of duty and the damage caused.
39
True or False: Actions by a claimant can break the chain of causation.
True
40
What typically breaks the chain of causation in relation to actions by third parties?
Tortious conduct by a third party may break the chain if their negligence is greater than the original harm.
41
Why have claims for psychiatric harm traditionally been more difficult to succeed?
Courts are reluctant to recognize a duty of care for psychiatric harm to avoid opening the floodgates to numerous claims.
42
What is required for a claimant to recover for psychiatric harm?
The claimant must prove they have suffered a recognized psychiatric illness, such as depression or PTSD.
43
What distinguishes a primary victim from a secondary victim?
A primary victim is directly involved in the event and may have suffered physical harm, while a secondary victim witnesses an event causing harm to someone else.
44
List the key criteria for a secondary victim to claim psychiatric harm.
* A close tie of love and affection
* Proximity in time and space
* Shock caused by a sudden and immediate event.
45
What principle was established in Alcock v Chief Constable of the South Yorkshire Police?
It set the eligibility criteria for secondary victims, including proximity and relationship to the injured party.
46
How are rescuers classified in tort law?
Rescuers may be classified as primary victims if they expose themselves to danger, but often treated as secondary victims.
47
What are the usual remedies available in tort?
Damages and injunctions.
48
What is the primary aim of damages in tort?
To put the claimant in the position they would have been in if the tort had never happened.
49
Differentiate between general and special damages.
* Special damages: identifiable financial losses that can be precisely calculated.
* General damages: non-identifiable losses that cannot be precisely calculated.
50
What is the significance of the Judicial College guidelines?
They provide indicative damages awards for different types of injury.
51
What can relatives or dependants claim under the Fatal Accidents Act 1976?
They may claim for bereavement damages and/or financial loss due to the victim's death.
52
What is meant by nominal damages?
Nominal damages are awarded when a legal wrong has been committed, but the harm suffered is minimal.
53
What are contemptuous damages?
They are awarded when the court believes the action should not have been brought, despite establishing a legal wrong.
54
What should claimants do to minimize the amount they are claiming?
Claimants should seek suitable employment if part of a claim is for loss of earnings.
55
What are nominal damages?
Nominal damages are awarded when a legal wrong has been committed but the harm suffered is minimal.
56
What are contemptuous damages?
Contemptuous damages are awarded when the court feels a legal wrong was committed, but the action should not have been brought, resulting in a lower recovery.
57
What are aggravated damages?
Aggravated damages are awarded at a higher level than compensatory damages to recognize greater suffering due to the defendant's actions.
58
What are exemplary damages?
Exemplary damages are a sum higher than usual, intended to punish the defendant and make an example of their conduct.
59
What is an injunction?
An injunction is an equitable remedy awarded only if damages are not suitable.
60
What are the two types of injunctions?
Prohibitory injunction and mandatory injunction.
61
What does a prohibitory injunction do?
A prohibitory injunction prevents an individual from doing something.
62
What does a mandatory injunction do?
A mandatory injunction compels the defendant to take positive action.
63
What is an interim injunction?
An interim injunction prevents the continuation of a nuisance while the case is being heard.
64
What should you consider when assessing negligence?
Consider children or skilled defendants, vulnerable claimants, and the application of the thin-skull rule.
65
What is a novus actus?
A novus actus refers to a new intervening act that breaks the chain of causation.
66
When assessing psychiatric harm, what relationships should you examine?
The relationships between the injured party and a secondary victim.
67
What should be considered when determining remedies?
What is appropriate in the circumstances.
68
What is contributory negligence?
The principle that the claimant has, by their own fault, contributed to the damage suffered.
69
What is the effect of establishing contributory negligence?
It will reduce any damages payable proportionate to the claimant’s degree of fault.
70
What act enabled courts to reduce damages based on contributory negligence?
The Law Reform (Contributory Negligence) Act 1945.
71
What are the three things to examine in contributory negligence?
* Did the claimant fail to exercise care for their own safety?
* Did this failure contribute to the damage?
* By how much should the claimant’s award of damages be reduced?
72
What is the focus when assessing carelessness in contributory negligence?
What the claimant has done, rather than the cause of the accident.
73
Who must prove contributory negligence?
The defendant.
74
What happens if the defendant cannot prove contributory negligence?
There will be no reduction in the amount of damages awarded.
75
How is contributory negligence assessed for children?
A different standard is applied; younger children are less likely to be found contributorily negligent.
76
What is the principle of volenti non fit injuria?
The voluntary assumption of risk or consent.
77
What must the defendant show to establish consent (volenti)?
* Full knowledge of the nature of the risk
* Full knowledge of the extent of the risk
78
Does merely knowing of the risk constitute consent?
No, the claimant must freely and positively accept it.
79
What does the Road Traffic Act 1988 s 149 exclude?
The application of the consent defence in the case of motor vehicles in road traffic accidents.
80
In sporting activity, do spectators consent to injury?
No, spectators do not consent to being injured by negligence.
81
What is the significance of ex turpi causa non oritur actio?
An action will not arise from a dishonourable basis or illegal conduct.
82
Is illegality a complete defence?
Yes, it is a complete defence.
83
What does necessity refer to in tort law?
A situation where a defendant intentionally causes damage to avoid causing some other damage.
84
What is the general limitation period for bringing a claim?
6 years from when the tort occurred.
85
What is the time limit for personal injury claims?
3 years from when the damage was done or when the claimant had knowledge of the damage.
86
What is a non-delegable duty in employer's liability?
The obligation of the employer to ensure their employees’ safety by taking reasonable care.
87
What are the four main requirements of an employer's non-delegable duty?
* Provision of a safe place of work
* Safe system of work
* Competent fellow employees
* Adequate plant and material
88
What is meant by a safe system of work?
How the work is done, organized, and supervised.
89
What is the implication of defective equipment under the Employer’s Liability (Defective Equipment) Act 1969?
Strict liability is imposed on the employer if the equipment provided is defective.
90
What is the principle concerning mental health in workplace safety?
An employee should be protected against the risk of foreseeable psychiatric harm.
91
What is vicarious liability?
Liability of an employer for a tort committed by an employee in the course of their employment.
92
What must be established for vicarious liability to apply?
* The individual is an employee, not an independent contractor
* A tort has been committed
* The employee was within the course of their employment
93
What tests are used to determine if someone is an employee or independent contractor?
* Control test
* Integration test
* Economic reality test
94
What is vicarious liability?
Vicarious liability is the legal responsibility of an employer for the negligent acts of an employee performed in the course of employment.
95
What case established that clergy could be in a relationship akin to employment?
E v English Province of Our Lady of Charity [2013] QB 722.
96
Which types of relationships can give rise to vicarious liability?
Relationships akin to employment can give rise to vicarious liability, but contracts for services with independent contractors will not.
97
What is necessary to establish the status of an employee?
It is necessary to ascertain for whom the employee actually works, considering factors like control of payment and length of service.
98
Can both employers be vicariously liable in certain situations?
Yes, both employers can be vicariously liable for a tort of an employee.
99
What must be determined to establish vicarious liability?
It must be determined whether an actionable tort was committed in the course of employment.
100
What happens if an employee acts outside the course of their employment?
If an employee acts outside the course of their employment, they are deemed to be on a frolic of their own, and the employer will not be liable.
101
What is the 'close connection' test in vicarious liability?
The 'close connection' test determines if a tortious act is sufficiently connected to the employment for vicarious liability to apply.
102
What landmark case involved an employee's abusive conduct leading to employer liability?
Mohamud v WM Morrison Supermarkets plc [2016] AC 677; [2016] UKSC 11.
103
What constitutes being on a 'frolic of their own'?
An employee is on a frolic of their own if they are doing something that is not part of their job.
104
What is the implication of an employee committing a criminal act in relation to vicarious liability?
An employer may be held liable for a criminal act committed by an employee if there is a sufficiently close connection to the employment.
105
What should be checked if the elements of a tort are established?
Check whether a defense is available.
106
What should be considered regarding the claimant's vulnerability in employer liability?
Consider whether there is a vulnerable claimant.
107
What are the categories of individual status relevant to vicarious liability?
Categories include employee, independent contractor, worker, or a relationship akin to employment.
108
What duty does an occupier owe to lawful visitors under the OLA 1957?
To keep them 'reasonably safe'
## Footnote
This is defined in s 2(2) of the OLA 1957.
109
Who is considered an 'occupier' under the OLA 1957?
A person who has control of the premises
## Footnote
The OLA 1957 does not provide a strict definition; it refers to control of premises.
110
How does the OLA 1957 define 'premises'?
Any fixed or movable structure, including vessels, vehicles, or aircraft
## Footnote
This is outlined in s 1(3)(a) of the OLA 1957.
111
Who qualifies as a lawful visitor under the OLA 1957?
A person with permission from the occupier or a statutory right of entry
## Footnote
Permission can be time-limited or restricted to certain areas.
112
What is meant by 'implied permission' in the context of the OLA 1957?
Visitors may become trespassers if permission is not explicitly given
## Footnote
Prior to the OLA 1957, some courts recognized implied licensees.
113
What is the 'common duty of care' as defined in OLA 1957?
A duty to take reasonable care to ensure the visitor is safe using the premises
## Footnote
This is specified in s 2(2) of the OLA 1957.
114
What factors do courts consider to determine an occupier's duty of care?
* The risk present
* The cost of precautions
* What a reasonable person would do
## Footnote
The purpose for which the visitor is on the premises is also crucial.
115
What special consideration must occupiers take for children under the OLA 1957?
Children may not be as careful as adults and the duty of care is adjusted accordingly
## Footnote
The concept of 'allurements' is also relevant, such as swimming pools.
116
How does the OLA 1957 treat skilled visitors?
Assumes skilled visitors will take appropriate precautions against special risks
## Footnote
Courts consider the claimant's specialist skill when assessing breaches of duty.
117
What are the defences available under the OLA 1957?
* Contributory negligence
* Volenti
* Warnings
* Exclusion of duty of care
## Footnote
These are detailed in sections 2(3), 2(5), 2(4)(a), and 2(1) respectively.
118
What is the requirement for warnings under the OLA 1957?
Warnings must enable the visitor to be reasonably safe, and signs should be appropriate
## Footnote
The detail and type of warning depend on the audience and context.
119
When can an occupier be held liable for the actions of independent contractors?
If the occupier has not acted reasonably in checking the contractor's competence
## Footnote
This is addressed in s 2(4)(b) of the OLA 1957.
120
What does the OLA 1984 state about the duty owed to unlawful visitors?
The duty is to take reasonable care to prevent injury due to known dangers
## Footnote
This is defined in s 1(4) of the OLA 1984.
121
What are the criteria for the duty owed to unlawful visitors under the OLA 1984?
* Occupier is aware of the danger
* Occupier knows someone is near the danger
* Risk requires reasonable protection for non-visitors
## Footnote
These criteria are outlined in s 1(3) of the OLA 1984.
122
What types of damages does the OLA 1984 cover for unlawful visitors?
Only death and personal injury, not property damage
## Footnote
Property damage claims must go through common law.
123
What defences are available under the OLA 1984?
* Warnings
* Volenti
* Contributory negligence
## Footnote
Contributory negligence is not explicitly stated but can be inferred.
124
What should be checked regarding exclusion clauses under the OLA 1984?
Exclusion of liability is unclear and not explicitly contained within the OLA 1984
## Footnote
There is no established authority on this point.
125
What is the general rule regarding recovery for pure economic loss?
There is no recovery for pure economic loss unless there is a negligent act or misstatement.
126
What can lead to pure economic loss in the context of negligence?
A negligent act that damages the property of a third party, resulting in financial loss to the claimant.
127
Under what conditions can a buyer of a defective product sue the seller?
For breach of any relevant express terms in the contract and/or implied terms.
128
What constitutes a negligent misstatement?
Defective advice given to the claimant in a negligent manner, which the claimant relies upon and suffers damage.
129
What case established the principle of claiming pure economic loss for negligent misstatement?
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
130
What must a claimant prove to establish a claim for negligent misstatement?
The existence of a special relationship, voluntary assumption of risk, reliance on the statement, and reasonable reliance.
131
What are the key components in establishing a duty of care in product liability?
Duty of care, breach, causation, remoteness, and damage.
132
What landmark case established the duty of care in negligence for manufacturers?
Donoghue v Stevenson [1932] AC 562.
133
What does the term 'consumer' include in the context of the duty of care?
Anyone who ought to be foreseen as being affected by the product.
134
What factors are considered when assessing a breach of duty in product liability?
Presence of a defect, knowledge available at the time of manufacture, and actions taken after discovering a defect.
135
What must be proven regarding damage in a product liability claim?
The damage must be reasonably foreseeable.
136
What is the standard of liability under the Consumer Protection Act 1987?
Strict liability for death, personal injury, and some property damage caused by a defect in the product.
137
Who can bring a claim under the Consumer Protection Act?
Anyone who suffers damage as a result of a defective product.
138
What categories of people can be sued under the Consumer Protection Act?
* Producers
* Own branders
* Importers
* Other suppliers.
139
What defines a 'product' under the Consumer Protection Act?
Goods, electricity, components, and raw materials.
140
What constitutes a defect under the Consumer Protection Act?
If the safety of the product is not what persons generally are entitled to expect.
141
What factors are considered in determining product safety?
* Manner of marketing
* Packaging
* Quality marks
* Instructions or warnings
* Expected use
* Time of supply.
142
What is the burden of proof regarding defects in product liability claims?
The burden of proof is on the claimant.
143
What are some defenses available under the Consumer Protection Act?
* Compliance with statutory requirements
* Product not supplied by the defendant
* Not in course of business
* Defect did not exist at the relevant time
* Development risk defense
* Contributory negligence.
144
What is the limitation period for bringing a claim under the Consumer Protection Act?
3 years from the date of injury or damage or when the claimant became aware, with a long stop of 10 years after the product was put into circulation.
145
What is private nuisance?
The law between neighbours concerned with indirect and unlawful interferences with a person’s use or enjoyment of land.
146
What must a claimant have to establish a private nuisance claim?
A proprietary interest in the affected land.
147
What are examples of indirect interference in private nuisance?
* Smells
* Noise
* Vibrations
148
What makes a nuisance unlawful?
It must be both substantial and unreasonable.
149
What are the three elements of the tort of private nuisance?
* An interference with the claimant’s enjoyment of their land
* The unreasonableness of the interference
* The interference caused damage to the claimant’s enjoyment
150
What types of things can cause interference in private nuisance?
* Smells
* Noise
* A land slip
* Overflow water
* Japanese knotweed
* Tree roots
151
True or False: Being overlooked is an actionable interference.
False
152
What factors determine if an interference is unreasonable?
* Locality
* Duration
* Sensitivity
* Malice
* Type of damage caused
153
How does locality affect the assessment of a nuisance?
A complaint about noise from a factory is more likely to be a nuisance if the factory is in a residential area.
154
What is the significance of time/duration in assessing a nuisance?
The time of day and duration of the nuisance are considered; noise during the day may not be actionable, while the same noise at night could be.
155
How does sensitivity of the claimant affect a nuisance claim?
If a claimant is particularly sensitive or running a delicate trade, it may affect the nature of the nuisance.
156
What is malice in the context of nuisance?
Motive and whether a defendant is acting in bad faith, such as creating nuisances intentionally.
157
What are the categories of persons who can be held liable for nuisance?
* Owner of the land
* Occupier of the land
* Creator of the nuisance
158
What are the specific defences for nuisance claims?
* Statutory authority
* Prescription
159
What remedies are available for private nuisance?
* Injunction
* Damages
* Abatement
* Remedies under the Human Rights Act 1998
160
What does an injunction do in nuisance cases?
It asks the court to stop parts of the activity causing the nuisance.
161
True or False: Damages can be awarded for personal injury in private nuisance.
False
162
What is abatement in the context of nuisance?
A self-help remedy where the claimant takes steps to end the nuisance.
163
What is public nuisance?
A tort and crime that materially affects the reasonable comfort and convenience of a class of people.
164
What are examples of public nuisance?
* Obstruction of a highway
* Quarry blasting
* A badly organized festival
* Blocking a canal
165
What is the rule in Rylands v Fletcher concerned with?
The escape of dangerous things resulting from a non-natural use of land.
166
What are the four requirements to succeed in a claim under Rylands v Fletcher?
* The defendant must have brought something onto the land likely to do mischief if it escapes
* The dangerous thing must escape
* The use of the land by the defendant must have been non-natural
* There must have been damage as a result of the escape
167
What constitutes a 'non-natural use' of land?
Use that is not ordinary; courts consider the surrounding environment.
168
Who can sue under the rule in Rylands v Fletcher?
A party who either owns or has exclusive possession of the land onto which the thing escapes.
169
What are the defences available under Rylands v Fletcher?
* Volenti non fit injuria
* Contributory negligence
* Act of God
* Statutory authority
* Act of a stranger
