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Tort Law Topics Flashcards

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1
Q

What is negligence

A

This is the omission to do something which a reasonable man would normally do

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2
Q

Duty Of Care-Neighbour Principle

A

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

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3
Q

What three things must be proved for negligence

In terms of duty

A

Is the damage foreseeable
Proximity with the party
Is it fair, just and reasonable to impose a duty

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4
Q

Negligence

Foreseeability

A

Objective test: Would a reasonable person in D’s position foresee that someone in claimants position may be injured

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5
Q

Negligence

Proximity

A

Someone may suffer shock after seeing the aftermath of an accident but there is no liability if there is not a sufficient relationship between the parties

Bournhill V Young

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6
Q

Negligence

Reasonableness

A

This allows judges to make policy decisions. This balances the risk of fraudulent claims

is it fair just and reasonable

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7
Q

Negligence

Breach of duty

A

The standard of care that must be reached is that of the reasonable man.
He is expected to do this reasonably competently

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8
Q

Negligence

(Risk) Factors that affect the reasonable man standard

A

Special characters of the defendant and of claimant
Size of risk
Have all practical precautions been taken
What are benefits of taking risk

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9
Q

Negligence

Special characteristics of defendant

A

Meant to be reasonably competent in what they are doing

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10
Q

Negligence

Medical practitioners

A

Does the doctor conduct fall below that expected of an ordinary competent professional
Is there substantial body of opinion within the profession to support the action taken
Court could find the practice of the whole profession wrong and could therefore find that a duty had been breached even when following normal practice (Bolitho)

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11
Q

Negligence

Special Characteristics of Claimant

A

The reasonable man takes more care when the situation demands it

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12
Q

Negligence

Size of risk

A

The reasonable man takes more care when there is a greater risk does not have to take precautions against highly likely events

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13
Q

Negligence

Have all practical precautions been taken

A

Reasonable precautions do not always prevent injury.

Laitmer V AEC

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14
Q

Negligence

What are benefits of taking risks

A

Public utility. Lower standard will be required of reacting to an emergency

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15
Q

Negligence

Damage (Causation)

A

This is the caustion in fact and the remotness

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16
Q

Negligence

Remoteness of damage- Reasonably foresseable test

A

Type of damage must be reasonably foreseeable. Once damage of any kind is foreseeseable the D is liable for full extent of damage

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17
Q

Negligence

Thin Skull Rule

A

Take your victim as you find them

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18
Q

Negligence-Defences

Contributory Negligence

A

The C and D both were partly to blame for Injury/Loss

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19
Q

Negligence-Defences

Consent- Volenti non fit injuria

A

When the claimant voluntarily accepts the risk of the harm

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20
Q

Negligence

Damages

What do they do

A

This is to put the claimant in a position they would have been before the act or ommsion

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21
Q

Negligence

Mitigation of loss

A

The claimant has a duty to minimise their loss by taking reasonable action to do so.

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22
Q

Occupiers liabilty Act 1957

Who is it for

A

Visitors

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23
Q

OLA 1957

Lawful Visitor

Different types

A

Invitee-Have been invited
Licensee-implied permission to be there for a period of time
Statutory right of entry- Read a meter/ Police
Conctractual right of entry-ticket holder for an event

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24
Q

OLA 1957

Duty to keep the visitor reasonably safe

A

Reasonable warning signs are enough. Implied warnings and express warning

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25
# OLA 1957 For purposes for which they are invited | Common duty of care
The duty is varied for a specialist visistor undertaking his job
26
# OLA 1957 Other variation of duty
Children. The occupier must be prepared for children to be less careful than adults
27
# OLA 1957 Intervening causes | Damage
Natural Event can break the chain. 3rd party act Victims own act if not reasonable
28
Defences for OLA 1957
Contributory Negligence Independent contractors Consent Excluding liability
29
# OLA 1957 Defence Independent contractors | Statute
S2(4)b OLA 1957 occupier not liable if the visitor is injured by something dangerous that was created by the faulty work of an independent contractor
30
# OLA 1957 Defence Contributory Negligence
S2(3) OLA 1957 - consideration should be given to the standards of care expected by a ordinary visitor | D makes injuries worse D is partly to blame for injuries
31
# OLA 1957 Defence Consent
S2(5) OLA 1957 occupier not liable if the visitor willingly accepts risks.
32
# OLA 1957 Defence Excluding liability
S2(1) OLA 1957 occupier can restrict or exclude liability for visitors by putting up a sign. S.2(4) requires it to “in all the circumstances be enough to enable the visitor to be reasonably safe”
33
Who is the occupier in OLA 1984
Same defintion as the 1957 Act
34
# OLA 1984 To whom is duty owed
Tresspassers Person involuntraily on premises Person exercising a prtivate right of way Public entering under access agreement Public enetering under national parks and access to countyside Act 1949
35
# OLA 1984 In what circumstances is duty owed
s1(1) and s1(3) duty owed to persons other than visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done.
36
# OLA 1984 What is the Duty s1(4)
“to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.”
37
# OLA 1984 What damage is covered?
s1(1) duty owed in respect of “injury”. S1(9) defines this as death or personal injury including disease or any impairment of physical or mental condition. S1(8) not loss or damage to property.
38
# OLA 1984 Factors that Judge may consider as circumstances
Likelihood of tresspass Seriousness of injury risked Cost and practicality Likely age of tresspasser Visibility and attractiveness of danger
39
Defences OLA 1984
Contributory negligence Consent
40
Remedies OLA 1984
Damages for death and personal injury
41
What must be passed for Psychartic Harm
1. A recognised Psychiatric Illness 2. Was the Psychiatric injury caused by D's negligence 3. Is the C a primary or secondary victim
42
# Psychartic Harm Who is a primary victim
1. Someone who is dircetly invloved in an accident 2. Is a rescuer
43
# Psychartic Harm Who is the secondary victim
This is someone who was not in pyshical danger but who witnessed the accident or aftermath
44
# Psychartic Harm Secondary Victim Critera
Paul, Paulmere and Purchase states that there must be. * Close tie of love and affection * Proximity in time and space * Must witness with their own unaided senses
45
# Psychiatric harm Who else might claim
A person who thinks they have killed people through their act when in fact they died through the negligence of another
46
What is vicarious liabilty
Makes a person libale for another persons tort ( Employer)
47
What are the different stages in Vicarious liabilty
Stage 1: An underlying tort must be commmited Stage 2: Worker must be an employee Stage 3: Must be acting in the course of employment
48
# Vicarious liability What is the control test (Original approach )
An independant contractor is told what to do An employee is told what to do and how to do it
49
# Vicarious liabilty Intergration test
States the more closely the worker is involved in the core business of the employer the more likely he is to be an employee
50
# Vicarious Liability The mutiple test
1. Control: Is the employer to some degree in charge of the worker and the work being carries out. 2. Personal Performance: He can not delegate to someone else (Echo and Express Publications V Tanton) 3. Mutlality of obligation: This means that the employer is obliged to pay the worker and the worker has an obligation to be availbale under the terms of the contract (Carmicheal V National Power)
51
# Vicarious Liability Stage 3
Employee must be acting in the course of employment. This included: An authorised act An authorised act carried out in an unauthorised way An act while not part of employees job is nevertheless connected with the employemnt so is fair to hold employer liable
52
Who can be a claimant for private nusiance
Anyone with legal interest
53
Who can be the defendant for private nuisance
The creator nuisnace or the occupier if he adpots or continues the activities of the creator
54
# Private nuisance Interference
Must be unlawful. Physical damage: To land, no loss for personal injury
55
# Private nuisance Loss of amenity
Excessive noise preventing sleep, smells, fumes
56
# Private Nuisance Unlawfulness
The Locality of events The duration of Nuisance The degree to which the activity interfers with the neighbours The sensitivity of claimant Reasons for D's actions Motive of D acting out of Malice
57
# Private Nuisance What is the threshold for the loss of enjoyment
Real interference with comfort or convience of living as judged by the standards of a reasonable man | Murdoch V Glacier Metals- No one else had complained
58
# Private Nuisance Social utility of D
The usefulness to soicety does have a bearing on whether it is reasonable or the C to put up with it. Mainly helps grant damages but not injuctions | (Dennis V MOD)
59
# Private Nuisance Malice of D
Where D does something to annoy the C something which could be classified as unlawful | (Hollywood silver Fox Farm V Emmet)- Shot his gun scared animals.
60
# Private Nuisance-Defence Stautory Authority
Nuisance occurs a public body acting under legislation duty or power. As long as it is not carried out with negligence and with reasonable regard for others | Allen V Gulf oil ## Footnote Can not rasie claim if parliment has raised an alternative remedy ( Marcic V Thames water)
61
# Private Nuisance-Defence Prescription
A right to do something not otherwise permitted on the basis of the length of the time which the activity has been carried out unlawfully but without objection | Coventry V Lawrence
62
# Nuisance-Under Rylands Requirenments under Rylands V Flecther
* Accumilation * Non Natrual use of land * A dangerous thing * Did it escape and cause damage
63
# Nuisance-Under Rylands Accumilation
This is the artifcal accumilation of land but not natrual accumilation | Giles V Walker
64
# Nuisance-Under Rylands Non natural use of land
This means not in the common place | Rickards V Lothian
65
# Nuisance-Under Rylands A dangerous thing
Something likely to do mischief if it escapes. Chemicals, explosives and water.
66
# Private nuisance- Remedies Injunction
An order prohibiting or tightly controling an activity | Miller V Jackson
67
# Private nuisance- Remedies Damages
Awarded for conseqential damage to land, plant, building and goods | Hunter V Canary Wharf
68
# Private nuisance- Remedies Abatement
Self help remedy. C can do what is reasonable in the circumstances to deal with nuisance
69
# Nuisance-Under Rylands Escape
Move from the land the D controls to land he dosen't. In Read V Lyons claim failed as she was injuired whilst on D's site. Only reasonable foreseeable damage. | Cambridge Water V Eastern counties leather
70
# Nuisance-Under Rylands Damage
Is the same as private nuisance only damages to property not perosnal injury
71
# Nuisance-Under Rylands Defences to a claim under Rylands
Consent Contributory Negligence Act of stranger Act of God Statutory Authority
72
# Nuisance-Under Rylands Act of stranger Defence
D is not liable for a deliberate and unforseen act of a stranger | Perry V Kendricks
73
# Nuisance-Under Rylands Act of God
An event that is totally unpredictable
74
# Nuisance-Under Rylands Remedies
Damages for the cost of the repair or replacement of property only
75
# Economic Loss What can be claimed for Tort of Negligence
* Loss for personal Injury * Loss for damage to property * Consequential financial loss * You can not claim Pure Economic Loss
76
# Economic Loss Why do we not normally claim for economic loss
No liabilty for Pure Economic Loss resulting from neglignce. This is beacuse we have: * Contract Law * Insurance * And policy- Floodgates of litigation
77
# Economic Loss What are the three parts to the Spartan Steel V Martin and Co.
Damage to the melts-Physical damage Loss of profits- This could be claimed as conseqential loss Loss of profits- Did not pass as it was pure economic loss
78
# Economic Loss What is special relationship or sufficent proximity | Caparo V Dickman Test
1. The person giving advice must pass as having "special skill" or "expertise". Does not need to be proffesional 2. D must know it is highly likely that the C will rely on the statement * Advice is communicted directly to C * No disclaimer to act as defence * D must know that it will be acted upon without taking any further independent advice * It is a social situation 3. C does rely on it and therofre incurs financial loss 4. There is reasonble reliance

Tort Law (3 decks)

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