Tort Law Flashcards
(146 cards)
1
Q
What is a tort?
A
A tort is a civil wrong which entitles the injured party to a remedy
2
Q
What is the purpose of damages in tort?
A
To restore victims to position before tort
3
Q
What is negligence
A
The breach of a legal duty of care causing some recoverable damage to the claimant
4
Q
Car crash example
A
man stopped at traffic light and a car ran into him from behind, the other driver’s negligence caused damage and he owed a duty of care to others on the road which he was in breach of by failing to apply brakes
5
Q
Identifiers of negligence
A
- That there was a duty of care
- Duty of care has been breached
- Breach caused damage
- Damage isn’t too remote
If you meet all these you can qualify for negligence in tort
6
Q
What is the objective of negligence?
A
-compensating victims of injury and distributing payment from claimant who sustained injury to defendant who caused it (corrective justice)
7
Q
What doesn’t negligence do?
A
it doesn’t allocate blame, promote morality, vindicate rights or punish wrongdoers
8
Q
What is insurance about?
A
It is about purchasing a financial product that will payout when a particular thing happens
9
Q
What is first party insurance?
A
Insure yourself against suffering/harm (singer insuring voice)
10
Q
What is third party insurance?
A
Provides insurance to you in case you must pay compensation a 3rd who you injure (car insurance)
11
Q
How does insurance spread loss?
A
without it loss would be concentrated on victims but the tort of negligence shifts loss from claimant to defendant
12
Q
Types of loss (damage)
A
physical injury, psychiatric injury, damage to property, consequential economic loss, pure economic loss, distress, physical harm (suffering some damage to the body)
13
Q
How are damages for physical injury calculated?
A
if there is pain and suffering, loss of amenity, consequential economic loss. It aims to cover actual/prospective bodily hurt
14
Q
What is loss of amenity?
A
Damages awarded for loss of ability to enjoy life
15
Q
How are damages for psychiatric injury calculated?
A
calculated by pain/suffering, loss of amenity and has to go beyond distress
16
Q
What are aggravated damages?
A
compensating victims for mental distress where injury has been caused/increased by how defendant committed the wrong or their conduct afterward
17
Q
What are Exemplary damages?
A
oppressive/unconstitutional conduct by gov servants or conduct aimed at making profit in excess of compensation
18
Q
What are death claims?
A
When a person dies as a result of negligence of the defendant
19
Q
What happens when death claims are made?
A
3rd party affected by claims can bring claims or cause of action that would have happened if claimant were aliv would continue
20
Q
How do you qualify to make a death claim?
A
Must fall within list of dependants and must prove their financial dependent on the deceased and that the deceases would have sued for their injury if they were alive
21
Q
Who can qualify for bereavement damages?
A
don’t need proof of dependency but can only be claimed by spouse, civil partner or parents of unmarried minor
22
Q
What is vicarious liability?
A
liability of employer for tort of employee committed in the cause of employment e.g bus driver in an accident his company will be liable/pay compensation
23
Q
What doesn’t vicarious liability cover?
A
- doesn’t cover those who are truly employed
- employer won’t be liable if the tort isn’t related to company (uni isn’t responsible if professor is in car accident)
24
Q
what is contributory negligence? What does it do?
A
allowed claimant to have a fault that has a part to play in their injury (partially contribute) and damages will be reduced according to magnitude of their fault
25
What is contribution?
Two or more parties responsible in negligence for the same damage
26
Requesting contribution from more than one party for negligence
a claimant can choose to sue one defendant and request contribution from the other if they can prove their carelessness had a role in the carelessness of the the other defendant.
27
What is a duty of care?
A legal obligation placed on a person to take reasonable care when performing an activity
28
What makes someone liable to a claimant (tort of negligence)?
You can only be liable to a claimant after it has been proved that there was a duty of care they owed to the claimant
29
Lord Atkin's Neighbour Principle (neighbour test)
-used to demonstrate one's duty of care to the other party
'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question'
30
Two step test created in Anns v Merton (1978) (negligence)
- Was there a close relationship between the parties
| - If there was was there was a presumed duty of care unless defendant could come up with defense
31
Caparo's three stage test
| used in novel duty cases as method of constructing legal analysis
(a) damage must be reasonably foreseeable as a result of the defendant’s conduct, (b) the parties must be in a relationship of proximity or neighbourhood, and (c) it must be fair, just and reasonable to impose liability on the defendant
32
Two stage approach to Duty of Care (Robinson v Chief Constable of West Yorkshire
- look to see whether there is previously decided legal principle (case/common law) which determine whether duty of care is owed in situations like current case
- if there is proof of duty of care the courts will find closest analogies in existing law
33
Principles drawn from precedents (no need for stage two from Robinson case required)
- Damage (physical injury, property damage)
- Damage caused by omissions
- Injuries caused by shock
- Public authorities
- Pure economic loss
34
Duty of care for physical acts
defendant owes a duty of care to prevent all foreseeable injury caused by his/her acts
35
Duty of care for 'failure to act or confer a benefit' (omission)
-no liability resulting from omission unless there is a relationship of control between defendant and a third party
36
Duty of care for pure economic loss
no liability unless defendant has assumed responsibility to claimant and the claimant has reasonably relied upon the assumption of responsibility
37
What is a novel duty case?
Cases where the question of whether a duty of care arises has not previously been decided
38
Established duty of care scenarios
employer/employee, driver/others on the road, doctor/patient, solicitor/client, manufacturer/consumer, parent/guardian, teacher/child
39
Two main questions to judge a breach of duty case
1. What is the minimum that should be expected/should have happened?
2. What did happen?
40
What happens if defendant did more than the minimum level of competence expected?
There is no breach and claimant cannot get compensation for damages
41
What is 'res ipsa loquiter'
-the negligence speaks for itself
| if something falls on your head it is reasonable to assume it was because of someone else's negligence
42
What does it say in civil evidence act section 11
Allows us to rely on criminal convictions as evidence of breach of duty
43
How do we identify whether the defendant owes a duty of care to the claimant?
We must ask ourselves what a 'reasonable person' would do
44
What standard do we hold learner drivers to?
- According to 'reasonable man' principle the learner driver is measured objectively to the care expected of an experienced/skilled river
- According to Lord Denning; the learner driver's 'incompetent best is not enough'
- inexperience/inability for adults does not dispute reasonability
45
What standard of care do we hold children to?
Children cannot meet standards expected of a 'reasonable adult'
- there is no defence of childhood
- we hold them to standard of reasonable child their own age
46
What happens if a child is driving? Are they judged to standard of skilled driver or someone their own age?
-when a child engages in an adult activity (driving motor vehicle) they are held to the same standard as a reasonable adult because they are putting people at risk
47
What is an adult activity?
- 'an activity which is normally undertaken only by adults and for which qualifications are required'
- driving a motor-vehicle is the only well established adult activity
48
When might a parent be liable for acts of their children?
for failing to exercise proper supervision and control over the child
-parents are expected to meet standards of reasonable parents
49
when is incapacity labelled as a breach of duty?
if you knew about a pre-exisiting incapacity that makes it unsafe for you to do something and you still negligently do it (blind person driving)
50
When are you not liable for your incapacity? (breach of duty)
- if the action is involuntary--> you dont have physical control of what you're doing and so won't be liable if you cause harm to somebody else (sleepwalking)
- mental disorders that dont involve involuntary action are not considered
51
Should we expect experts of a certain skill to conform to a higher standard of care than others?
We judge them by the standard of an ordinary person who expresses expertise in that profession/who has that skill
52
How do you decide what a reasonable skilled person would do?
- expert evidence
- if you're a doctor a body of medical professionals should agree with your decision to show you acted at least according to what others in your profession would do
53
What is the Bolam test?
-it shows you what standard of care you should expect from a 'skilled' professional based on their expressed competence
54
Applying Bolam to omissions cases
-if you can prove a competent professional in your field would have refrained from treating patient in the same way you did there will not be liability
55
Bolam applies to non-medical skills
- applies generally to professionals
- ski instructors judged by standard of ski instructors
- barristers judged by standard of barristers
56
How do you calculate the standard of care?
- foreseeability, risk, practicality of precautions and social cost
- as foreseeability and risk increase the standard increases
- as practicality and risk increase standard lowers
57
When do we expect reasonable person to take precautions against risks?
you can only be expected to take care if you know that there is a particular risk which can only happen if you can foresee that risk or know it might happen
- if its completely unforeseeable the reasonable person will not take care against the risk
- if cost of precautions is more than the risk then no action should reasonably be taken
58
The greater the likelihood of harm...
the greater the care expected
59
the more socially useful the defendant's conduct...
the less it will be considered unreasonable
| -we don't want to prevent something we feel is important to set standard of care and prevent risk
60
Social activity responsibility and heroism act (2015)
1. if you were acting for the benefit of society
2. if you were protecting yourself/others or were acting heroically
in these cases courts shouldn't expect standard of care that people doing these things couldn't meet
61
Regulation and the reasonable man
-when regulation governs particular area these may be helpful in determining the standard of care because the reasonable person will follow them
62
Scientific understanding and precaution
- when science is common knowledge we would expect the defendant to be aware of this
- the more that science suggests something is dangerous the more we need to take precautions
63
What can happen when you don't adapt to changes in Common practice? (breach of duty)
- if everyone in industry is doing a particular thing it is likely that the reasonable person would do it also
- if everyone in industry takes precautions and you don't then you can be in breach
64
What is nervous shock?
injuries caused by shock, they can lead to physical injury but cannot be caused by direct touching
65
control mechanisms for shock cases
- you must have forseeability of injury caused by shock
- who do we owe a duty to? (Atkin's neighbour principle)
- actionable psychiatric injury
66
Special rules for duty of care in psychiaric injury/shock?
-claimant must show actionable psychiatric injury, forseeability, proximity (especially for secondary victims)
67
Why do special rules apply in psychiatric shock?
- floodgate argument--> don't want too many people to be able to claim for psych injury
- crushing liability--> everyone on road can claim psych injury from witnessing car accident (not reasonable)
- Fear of fraudulent claims--> psychiatric injuries were easier to fake but now we have advanced tests
- seriousness of psych injury--> wasn't taken as seriously in older cases
68
Concerns over trauma in litigation for shock cases?
courts concerned that by allowing recovery for psych injury it could interfere with rehabilitation by forcing victims to relive their trauma and worsen it and make it harder for them to cope/recover
69
What is the difference between a primary and secondary victim in shock?
- primary victims are personally in fear of their lives or are traumatised by the potential injury
- secondary victims are witnesses of traumatising events
70
Qualifications for pure psychiatric injury
You can only claim if you suffer a recognised psych injury which will be decided by the courts and and medicine jointly e.g PTSD, reactive depression
71
What about fear of injury in the future? (psychiatric shock)
no liability usually because the fear needs to be immediately forseeable and reasonable, there is no direct involvment
72
Qualifying as a primary victim (shock)
- Was it reasonable to assume that you could have been injured in the accident
- Was it reasonable for you to assume that you could have been injured based on proximity?
73
What is the 'initial control mechanism' for shock cases?
- you must have forseeability of injury caused by shock
| - who do we owe a duty to? (Atkin's neighbour principle)
74
Special rules for duty of care in psychiaric injury/shock?
-claimant must show actionable psychiatric injury, forseeability, proximity (especially for secondary victims)
75
Why do special rules apply in psychiatric shock?
- floodgate argument--> don't want too many people to be able to claim for psych injury
- crushing liability--> everyone on road can claim psych injury from witnessing car accident (not reasonable)
- Fear of fraudulent claims--> psychiatric injuries were easier to fake but now we have advanced tests
- seriousness of psych injury--> wasn't taken as seriously in older cases
76
Concerns over trauma in litigation for shock cases?
courts concerned that by allowing recovery for psych injury it could interfere with rehabilitation by forcing victims to relive their trauma and worsen it and make it harder for them to cope/recover
77
What is the difference between a primary and secondary victim in shock?
- primary victims are personally in fear of their lives or are traumatised by the potential injury
- secondary victims are witnesses of traumatising events
78
Qualifications for pure psychiatric injury
You can only claim if you suffer a recognised psych injury which will be decided by the courts and and medicine jointly e.g PTSD, reactive depression
79
What about fear of injury in the future? (psychiatric shock)
no liability usually because the fear needs to be immediately forseeable and reasonable, there is no direct involvment
80
Qualifying as a primary victim (shock)
- Was it reasonable to assume that you could have been injured in the accident
- Was it reasonable for you to assume that you could have been injured based on proximity?
81
What is the 'initial control mechanism' for shock cases?
- you must have forseeability of injury caused by shock
| - who do we owe a duty to? (Atkin's neighbour principle)
82
Special rules for duty of care in psychiaric injury/shock?
-claimant must show actionable psychiatric injury, forseeability, proximity (especially for secondary victims)
83
Why do special rules apply in psychiatric shock?
- floodgate argument--> don't want too many people to be able to claim for psych injury
- crushing liability--> everyone on road can claim psych injury from witnessing car accident (not reasonable)
- Fear of fraudulent claims--> psychiatric injuries were easier to fake but now we have advanced tests
- seriousness of psych injury--> wasn't taken as seriously in older cases
84
Concerns over trauma in litigation for shock cases?
courts concerned that by allowing recovery for psych injury it could interfere with rehabilitation by forcing victims to relive their trauma and worsen it and make it harder for them to cope/recover
85
What is the difference between a primary and secondary victim in shock?
- primary victims are personally in fear of their lives or are traumatised by the potential injury
- secondary victims are witnesses of traumatising events
86
Qualifications for pure psychiatric injury
You can only claim if you suffer a recognised psych injury which will be decided by the courts and and medicine jointly e.g PTSD, reactive depression
87
What about fear of injury in the future? (psychiatric shock)
no liability usually because the fear needs to be immediately forseeable and reasonable, there is no direct involvment
88
Qualifying as a primary victim (shock)
- Was it reasonable to assume that you could have been injured in the accident
- Was it reasonable for you to assume that you could have been injured based on proximity?
89
How to establish a secondary victim (shock) according to Alcock criteria
- foreseeability (of any harm)
- a close tie of love/affection
- closeness in time/space to incident
- perception by sight/hearing of event or consequences of event
- psychiatric harm caused by sudden shock
90
Presumed relationships with close ties of love and affection
parent/child, spouses, fiances, civil partners
- any other relationship you have to prove it
- rare for non presumed relationships to succeed
91
Easiest ways to demonstrate you were close in proximity of time and space
- being present at the scene of the incident at the time of the incident
- being present at the immediate aftermath of incident
- being there to see the victims being treated soon after the incident
92
What counts as the immediate aftermath?
- time where it is expected the claimant would come to the scene and see the person they have a close tie with still affected by the incident
- if the immediate victim is already dead according to Alcock this is not sufficient
93
What do you have to be close in space and time to qualify for secondary victimhood?
-the negligent act or the consequences of it
94
Why doesn't watching a traumatic event on tv/media satisfy the Alcock requirement of perception through unaided senses?
- tv is nothing like human perception, you can zoom in and repeat and amplify sound
- its hyperrealistic which can be more traumatising than perception through ordinary human senses
95
Criteria for sudden shock
- if there is a gradual buildup of psychiatric harm you can't bring claim
- must be a point that violent agitation of the mind causes you to go from not suffering to suffering
- this has to take place directly because of the negligent imperilment/aftermath
96
How does the assumption being of reasonably fortitude affect secondary victimhood?
- if a secondary victim suffers psychiatric injury only because they are especially sensitive then they can't bring a claim because the harm isn't reasonably foreseeable
- if someone of reasonable fortitude would have suffered psychiatric harm and pre-existing vulnerability makes it worse a duty of care arises and D has to compensate for ALL the claimant's injury
97
Who is a bystander?
an unwilling witness of a traumatic event for whom it is foreseeable may suffer psychiatric harm but they do not share a close tie of love/affection with immediate victims
98
Are bystanders able to have a claim for shock?
- according to Alcock they can't
| - Alcock leaves open the possibility of bystanders having a claim in exceptionally horrifying events
99
Criteria for rescuers to qualify for primary/secondary victimhood
- if you are in zone of danger you qualify as a primary victim and can recover for any personal injury
- if you are not in danger zone you are a secondary victim and have to meet all of the Alcock requirements
100
What is an involuntary participant?
- someone involved in the chain of events that causes someone to be injured but is in no way at fault and suffers psychiatric harm due to realistic feelings of guilt
- are able to recover
101
Criteria for involuntary participant
- must come from a realistic/reasonable feeling of guilt from a harm that was caused
- must be close physical connection with the involuntary participant and the injury is suffered that they feel guilty about
102
What duty of care to employers owe to employees?
- employers owe duty of care to ensure a safe work environment and prevent stress at work leading to psychiatric injury
- if its reasonably foreseeable that the conditions at work could lead to stress leading to psychiatric harm a duty may be owed to employee
103
how do you qualify for psychiatric harm due to endangerment of property?
if you can demonstrate that it is reasonable the claimant would suffer psychiatric harm they can recover according to Attia
104
What types of property count in psychiatric harm due to endangerment of property?
- dog, cat, car, personal painting, house, book you're writing
- no need to satisfy proximity rules like in Alcock
105
What are liabilities for omissions?
a liability for a failure to act or intervene problems occurring or failure to confer a benefit
106
What are pure omissions?
-failures to act
107
Why is there no liability in pure omissions cases?
-there is no duty of care to intervene to prevent someone from harm
108
What is the exception to the rule of liability in pure omissions cases?
-there could be liability if the claimant depended on the defendant's intervention and was left off worse because of it
109
How do we determine liability in omissions cases?
there is no liability for pure omissions so we must determine whether the omission is an ACT
-if they are part of a negligent act
110
Example of omission that would have liability
-failure to press brakes in a car will be treated as an act because of the foreseeability of physical damage and the omission is part of the train of events that led to the damage
111
why do we have special omission rules?
- harder to show you are harmed by failure to act than an actual act
- concern that liability will force people to act in certain ways
- don't want to sanction people for their choice not to do something
- if a 3rd party is liable it does not put the cost onto the person who caused the problem
112
exceptions to the rule of pure omissions
- D had control over 3rd party and should have forseen the likelihood of damage and taken reasonable car to avoid damage
- D assumes positive responsibility to safeguard C (police department and inmate in custody)
- D creates source of danger that can be forseeably sparked by 3rd party
113
Examples of sufficient control for duty of care to arise for omissions
- parent/school owe duty for conduct of child
| - hospital for psychiatric patient if they harmed someone they were likely to
114
What is the function of non-delegable duties?
- a mechanism for liability for failure to act
| - to ensure parties can be liable for the acts of independent contractors they hire to do work for them
115
Examples of relationships in which non-delegable duties exist
employer/employee, prison/prisoner, hospital/patient
116
What are non-delegable duties
-duties that if you hire someone else to perform and they don't complete the duty will still render you liable even if you haven't personally done anything wrong
117
Requirements for non-delegable duties according to Woodland v Swimming Teacher's Association
- claimant is especially dependent
- claimant has no control over the company handles their obligations
- D has delegated their positive duty to a 3rd party
- third party was negligence in their performance of the function assumed by D
- C is under custody/care of D
118
The rule for public authority (omission)
-if a public authority injures someone to be liable they need to prove they had control, assumed responsibility, control of property or creates source of danger which a 3rd party worsened
119
According to the poole borough council case do Public authorities owe a duty of care to protect members of their area from harm?
- they do now owe a duty of care because supreme courts did not deem it reasonable for the people to rely on the public authorities or to entrust them with their safety
- they may have a duty if it meets the criteria for negligent omission
120
Public authorities may be treated different if a duty of care interferes with...
statutory functions
| -if you can prove this courts cannot impose duty of care because it makes it harder for the authority to protect people
121
What was LJ Reed's obiter dictum in Hill v West Yorks Police ?
police should be immune from failures in relation to investigation of crime and no DOC should arise
122
What was said in terms of police liability in Michael & Ors v Chief constable?
- the duty of police is owed to the entire public and they have no special relationships to have a private DOC to individuals
- courts don't want police priorities to be affected by being sued for negligence
123
Can you claim damages through breach of HR law?
-right to bring damages for breach by public authority of human rights are in article 2 and 3 of HRA
124
What does the Osman case say about public authorities?
-if they "failed to take measures within the scope of their powers which judged reasonably, might have been expected to avoid that risk” they're in breach of article 2 ECHR
125
How do you qualify for Osman duty of care (HR)?
- show real/immediate risk to life of individual
| - show P.A know but failed to take measures which they were expected to
126
What is pure economic loss?
economic loss suffered by the claimant that is not consequent upon claimants' personal injury caused by D
127
What is the rule for pure economic loss?
-claimant cannot recover unless D has AoR to safeguard C from suffering such loss
128
Why is pure economic loss liability restricted?
- tort law ranks economic interests lower than property/personal injury
- floodgate argument
129
What was J Blackburn's reasoning in Cattle case?
- C couldn't recover because of PEL
- if courts allowed it if a mine flooded the defendant would be liable to every single mine worker
- bad idea
130
What is relational economic loss?
pure economic loss that occurs when D negligently damages a 3rd party's person/property which causes C loss by virtue of their relationship with 3rd party
131
What was Lord Denning's reasoning for denying PEL in Spartan case?
- if someone is injured by road accident by negligence of another driver
- driver would owe duty of care to the claimant themselves but not to the servant of the injured claimant who could potentially have PEL if employer is hurt
132
What is the scope of DOC for PEL identfied by HoL in SAAMCO case?
- HoL held the duty of D as valuers was just to provide accurate valuation
- D was only responsible for losses that were foreseeable
- C lost even more money because property market fell but according to HoL D was not responsible for that
- not within the scope of duty
133
What is consequential economic loss?
Economic loss which is consequential upon some physical harm and is recoverable without special difficulty unlike PEL
134
What do you need to qualify for CEL?
-IF you can establish DOC for physical harm then it can be recovered easily usually
135
What do you need to make a claim for property damage?
- C must establish DOC owed to them
- C had sufficient interest in the property damaged by D
- reasonably foreseeable that D's act would cause property damage to C
136
What is the rule for REL?
You usually cannot recover
137
How could you have actionable REL?
-AoR
138
Why do courts not usually allow recovery for REL?
They do not want 'widespread liability' (Lord penzance)
| -tort law does not recognize one person having legal compensable interest in one's physical wellbeing
139
When is there an exception to the no recovery rule of REL according to Morrison steamship?
‘where the plaintiff’s operations are so closely allied to the operations of the party suffering physical damage’--> it is unjust to deny them recovery because they are in a VERY similar position to the party who suffered direct damage
140
What is needed for actionable PEL according to Hedley Byrne v Heller?
- AoR
| - Reliance
141
what do you need for a qualifying AoR (pel)?
- MUST be voluntary
| - Must be fair, just and reasonable
142
consideration questions to decide whether there is AoR
- does the defendant have or hold themselves to have special skills?
- is the interaction betwen parties formal or informal?
- does D make representations to D to the effect that C can entrust the matter to them
143
What statement could rule out AoR? (PEL)
-Statements which disclaim responsibility will almost always lead courts to decide there is no AoR
144
According to Calvert v William Hill Credit Ltd what is another way outside of AoR to find DOC?
-if someone vulnerable asked for your help and you are aware they are vulnerable and will likely rely on your advice you probably owe DOC
145
How did claimants win in White v Jones if there was no reliance?
- according to lord Goff the lawyers were negligent but the person they were negligent to was dead and so there is an extended AoR
- Lorde BR said a special relationship was created by lawyers assuming responsibility for their interests and because of the special relationship the case is not reliant on reliance
146
How do you determine whether there is a duty of care?
1. Harm must be a "reasonably foreseeable" result of the defendant's conduct;
2. A relationship of "proximity" must exist between the defendant and the claimant;
3. It must be "fair, just and reasonable" to impose liability.
