Torts Flashcards
(39 cards)
What is a tort?
A civil wrong independent of contract.
Protects consumers from business negligence, imposing a duty of care.
What is fault liability?
Example of negligence.
Someone at fault, enabling injured party to seek compensation for resultant loss/injury.
What is the time limit regarding Torts law?
Action bought within 6yrs of occurred date.
Claim for personal injury within 3yrs of date committed or from when injury to tortfeasor became known.
What is the difference between contract and tort law?
Contracts:
- Parties voluntarily accept contractual obligations.
- Breach of contractual obligations, motive/excuse irrelevant.
- Damages put parties in pre-contractual position.
Torts:
- A duty of care established on parties by law.
- Liability usually fault based.
- Damages put parties in pre-tort position
What is Lord Atkin’s neighbour priniciple?
Reasonable care must be taken to avoid any foreseeable actions which would likely cause injury to a person closely and directly effected by your act in question.
What is the 3 stage test?
Claimant to prove defendant is liable of a tort, must show:
- Defendant owed them a duty of care
- There was a breach of their duty
- Claimant suffered reasonably foreseeable damages as a result of the breach
What is considered in the first stage of the three stage test?
Is there a duty of care?
- The proximity of relationship - use neighbour test (Donoghue v Stevenson, 1932).
- Foreseeability of loss (Bourhill v Young, 1942).
- Is it fair, just, and reasonable to impose duty (Caparo, 1990).
- Is there accepted duty in regards to the relationship? If so, three stage test may be skipped all together. (Darnley v Croydon Health Service NHS Trust, 2018).
What is considered in the second stage of the three stage test?
Is there a breach of their duty?
- Courts apply reasonable man test objectively. Defendant must have considered short comings of others, no allowance for lack of experience/intelligence in the circumstances.
- Courts weigh up likelihood of harm and potential seriousness against cost of prevention by defendants actions.
Objective standards = Nettleship v Weston, 1971.
Higher standards expected of professionals = Botton v Stone, 1951.
What is considered in the third principle in the three stage test?
Where the damages foreseeable?
- Claimants must show they would not have been injured but for defendants behaviour (‘but for’ principle).
- Unbroken chain of causation. Barnett v Chelsea Hospital, 1969.
- Damage must not be too remote = The Wagon Mound, 1961.
- The eggshell skull rule = Smith v Leech Brain, 1962.
What is the eggshell skull rule in tort law?
A defendant will be responsible for the damage caused as-is, even if the victim had a pre-existing condition that made him or her predisposed to serious injury.
What are defences against claims of negligence?
Complete or partial defences which effects extent of liability:
- Illegality
- Consent
- Contributory negligence
- Necessity
How is illegality a defence against negligence?
Where the claimant has committed an illegal act they may be prevented from raising a negligence action.
Example case = Ashton v Turner, 1980
Exemption case = Moore Stephens v Stone & Rolls Ltd, 2009
How is consent a defence against negligence?
- Complete defence.
- Express agreement to particular risk of damage (surgery consent form).
- Implied from the conduct of the claimant due to the actions of volunteering.
- Merely participating in a regulated, physical sport such as rugby does not mean participant agrees to suffer injury and not seek a remedy.
How is contributory negligence a defence against negligence?
Law Reform Act, 1945:
Where claimant has suffered damage as a result of their actions and that of the defendant, their damages recoverable will be reduced to such extent as the court thinks just and equitable.
“Contributed to their own misfortune”
Jackson v Murray & another, 2015
How is necessity a defence against negligence?
- Defendents actions necessary to prevent imment threat from worsening and their were no alternative course of action.
- Subjective tests that will be assessed by the court.
Necessity cannot succeed as a defence where situation leading to emergency arose due to defendants own actions.
What are the remedies of damages for tort law?
Aims to place injured party in pre-tort position.
Damages are not subject to tax.
Where tortious act involves no real loss to claimant (trespassing), court may award nominal damages.
- Law Reform (Miscellaneous Provisions) Act, 1934 - Where injured party has died, financial support for family including lost earnings & funeral expenses.
- Fatal Accidents Act, 1976 - provides spouses and parents of deceased minor statutory claim (£11,800).
What is involved in the remedies of damages in tort law?
- Physical & mental damages
- Tortious act involves no real loss to claimant
- Death to injured party = compensation to family
What are the remedies of injunctions for tort law?
- Injunctions awarded at discretion of court and require a court order to stop subject from committing the tort.
- Failure results in fine/imprisonment.
- Prohibitory, Mandatory, Interim injunctions.
What is a prohibitory injunction?
Requires that defendant ceases the action that is causing the tort.
What is a mandatory injunction?
Requires defendant to act in a way to prevent tort being committed.
What is an interim injunction?
Prevents a tort from being committed and any further damage being sustained until the case comes to court.
How does tort law deal with economic loss?
- Pure economic loss is not recoverable.
Economic loss is recoverable if:
- The loss is based on physical damage to claimants property.
- Negligence caused claimant to acquire defective goods or property.
- It stems from a negligent mistatement.
How does tort law deal with professional advice?
Bolam Test -
Business specialists/advisors who cause their client loss due to negligence won’t be guilty if they acted in accordance with a practice of competent, professional opinion.
(Unlike, Bolam v Hospital Management Committee, 1957).
If client is called upon to exercise some discretion/autonomy in making a decision, they will not be guilty of economy loss.
O’Hare v Coutts & CO, 2016.
How does tort law deal with negligent mistatements?
An inaccurate statement made honestly but carelessly in the form of advice given by an expert party, to a novice party.
Defendent owes claimant a duty of care.
Candler v Crane, Christmas & Co, 1951.
Hedley Byrne v Heller & Partners, 1963.
