Tort Law: Negligence, Liability, and Nuisance

This set of vocabulary flashcards covers key concepts, legal tests, and case law definitions for the law of torts, including Negligence, Occupiers' Liability, Private Nuisance, Rylands v Fletcher, and Vicarious Liability.

Negligence

A legal concept defined in Blyth v Birmingham Waterworks as "failing to do something which the reasonable person would do or doing something which the reasonable person would not do."

Duty of Care

A step in establishing negligence that aims to create a legal relationship between parties and acts as a tool for widening the scope of liability.

The Robinson Approach

The principle that a judge should first look to existing precedent or a statutory obligation when deciding whether a duty of care exists.

The Caparo Test

A $3$ part test applied in novel situations where no precedent exists to determine a duty of care, involving reasonable foreseeability, proximity, and whether it is fair, just, and reasonable to impose a duty.

Reasonable Foreseeability

An objective test asking if a reasonable person in the defendant’s position would have foreseen that their act or omission might harm others.

Proximity

The 'closeness' between the claimant and defendant, which can be established in a physical sense (time and space) or through a legal relationship.

Fair, Just and Reasonable

The final part of the Caparo test involving a policy-based decision by judges to consider the best interests of society and limit the scope of negligence claims.

Breach of Duty

Occurs when a defendant fails to act as a reasonable person would, involving a comparison of conduct against the standard of care and consideration of risk factors.

The Reasonable Person

A person of average intelligence, self-control, skill, and experience who is neither excessively cautious nor unusually risk-taking.

Factual Causation

Determined by the 'but for' test, asking whether the claimant would have suffered damage but for the defendant's act or omission.

Novus Actus Interveniens

An intervening act that breaks the chain of causation, such as the unreasonable conduct of a third party in Knightley v Johns.

Remoteness of Damage

A rule stating that a claimant can only recover loss that is a reasonably foreseeable result of the defendant's breach.

Egg-shell Skull Rule

The principle that if the type of injury is foreseeable, the defendant is liable for the full extent of the harm even if the claimant had a pre-existing condition, such as in Smith v Leech Brain ($1962$).

Occupier

In Occupiers’ liability, the person who has a sufficient degree of control over the premises, as established in Wheat v Lacon.

Premises

Broadly defined in s.$1(2)$ of the Occupiers' Liability Act to include land, buildings, vehicles, and fixed or moveable structures like lifts or ladders.

Lawful Visitor

A person with express or implied permission, or a contractual or legal right, to enter a premises.

Standard of Care (OLA $1957$)

Under s.$2(2)$, the duty to take such care as is reasonable to keep the visitor reasonably safe for the purpose for which they are invited.

Independent Contractor Defence

Under s.$2(4)(b)$ of OLA $1957$, an occupier is not liable for contractor negligence if it was reasonable to hire them, they were competent, and work was inspected if possible.

Trespasser

A person who has no permission to be on the premises or one who has exceeded the permission granted.

Occupiers' Liability Act $1984$

Legislation governing the duty owed to trespassers for personal injury, provided the occupier is aware of the danger and the trespasser's proximity.

Private Nuisance

As defined in Fearn v Tate Gallery, a use of land which substantially interferes with the ordinary use and enjoyment of neighbouring land.

Loss of Amenity

A form of substantial interference in nuisance involving inconvenience that affects the ordinary comfort of human existence, such as smells or noise.

Prescription

A defence in private nuisance where the defendant has carried out the activity for at least $20$ years without complaint after it became an actionable nuisance.

Statutory Authority

A defence used when the nuisance is created by a public body acting under an Act of Parliament, such as in Allen v Gulf Oil.

Abatement

A remedy in nuisance allowing the claimant to take reasonable steps to deal with the nuisance themselves, such as unblocking a drain.

Rylands v Fletcher

A tort of strict liability where a person who brings a dangerous thing onto their land for a non-natural use is liable if it escapes and causes foreseeable damage.

Non-natural Use

An extraordinary and unusual use of land that brings increased danger to others, rather than ordinary domestic use.

Vicarious Liability

A form of liability where an employer is held liable for a tort committed by an employee in the course of their employment.

Control Test

A traditional test for employment focusing on the employer’s power to direct the way work is performed, as in Mersey Docks.

Integration Test

A test for employment status where a worker is an employee if their work is fully integrated into the business rather than just accessory to it.

Economic Reality Test

A test for employment status considering if the worker provides skill for a wage and is subject to employer control and other contractual factors.

Close Connection Test

Used to determine if a tort was committed in the course of employment by asking if the wrongful conduct is closely connected to authorized acts.

Frolic of their own

An instance where an employee causes damage while doing something unrelated to their employment, relieving the employer of vicarious liability.