Tort Law - FLK 1
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230 Terms
What is trespass to land?
An unlawful direct interference with the claimant’s possession of land.
What must a claimant have to bring an action for trespass to land?
Exclusive possession of the land.
What does "land" include for the purposes of trespass?
The surface, sub-soil, buildings erected on the land, and airspace necessary for ordinary use of the land and buildings.
Give examples of trespass to land involving sub-soil or airspace (2)
Digging a tunnel underneath a neighbour’s land, or swinging a crane/flying a drone through a neighbour’s airspace
What amounts to direct interference with land?
Entering on foot, driving/riding over land, taking possession, placing or fixing something on it, or throwing something onto it
When is interference with land unlawful?
When it is without the owner’s permission or causes damage to the land
What intention is required for trespass to land?
A volitional act of entering the land or causing an object to enter it
Must the defendant intend to commit trespass or know the land belongs to another?
No
What three torts make up trespass to the person?
Battery, assault, and false imprisonment
Define battery
The intentional direct application of unlawful force to the claimant’s person
What is unlawful force for battery?
Any unwanted physical contact that is not generally acceptable in everyday life
Can kissing or touching someone without consent amount to battery?
Yes
What is meant by direct contact in battery?
Contact with the claimant’s person through the application of force
Give examples of direct contact in battery (4)
Striking the claimant
taking hold of them
throwing something that hits them
making contact with their clothing
Does throwing paint that splashes a claimant’s jacket amount to battery?
No
What intention is required for battery?
The act applying force must be voluntary (volitional).
Must the defendant intend to harm the claimant for battery?
No. They only need to intend the application of force.
Does Battery require injury?
No
Define assault.
An intentional act causing the claimant reasonably to apprehend the immediate and direct infliction of unlawful force.
What intention is required for assault?
The defendant must intend the claimant to apprehend the use of force
Must the claimant be aware of the threat for assault?
Yes
If the defendant approaches from behind and immediately strikes the claimant, is there an assault?
No, because the claimant was unaware of the threat. There is only a battery.
Does "apprehension" mean the claimant must be afraid?
No
Exam Tip:
Do not confuse apprehension with fear. The claimant only needs awareness of the threatened force.
Define false imprisonment.
The unlawful constraint of the claimant’s freedom of movement from a particular place.
Why is it called "false" imprisonment?
Because the constraint must be unlawful
What intention is required for false imprisonment?
The defendant must intentionally constrain the claimant’s freedom of movement
Must the defendant intend the constraint to be unlawful?
No
What does "imprisonment" mean in this tort? (False Imprisonment)
Because the constraint must be unlawful
What intention is required for false imprisonment?
The defendant must intentionally constrain the claimant’s freedom of movement
Must the defendant intend the constraint to be unlawful?
No
What does "imprisonment" mean in this tort?
Deprivation of freedom of movement
What level of restriction is required for false imprisonment?
Complete constraint in every direction
Is there false imprisonment if the claimant can leave in one direction?
No
Is there false imprisonment if the claimant is given a reasonable means of escape?
No
Exam Tip:
Always check whether the claimant had a reasonable route of escape. If they did, false imprisonment is unlikely.
Define trespass to goods
An intentional and direct interference with the claimant’s possession of goods.
What is interference for the purposes of trespass to goods?
An act upon another’s goods that goes beyond what is acceptable in everyday life
Give examples of trespass to goods
Deliberately scratching a car or unlawfully applying a wheel clamp
What intention is required for trespass to goods?
Intention to do the act of interference
Must the defendant intend to commit the tort of trespass to goods?
No
Define conversion
Dealing with another person’s goods in a way that is seriously inconsistent with the rights of the owner
What intention is required for conversion?
Intention to do the act of interference with the goods.
Must the defendant intend to infringe the claimant’s rights for conversion?
No
When does an act become conversion?
When it excludes the owner from use and possession of the goods
What are examples of acts of conversion?
Wrongful acquisition (theft), wrongful transfer, wrongful detention, substantially changing goods, severely damaging goods, or misusing a chattel
What is the key difference between trespass to goods and conversion?
Trespass to goods involves interference with possession, whereas conversion involves dealing with goods in a way seriously inconsistent with the owner's rights
Can trespass to goods and conversion exist at the same time?
Yes
Distinguish the intentional torts.
Tort | Key Definition |
|---|---|
Trespass to land | Unlawful direct interference with possession of land |
Battery | Intentional direct application of unlawful force |
Assault | Intentionally causing apprehension of immediate unlawful force |
False imprisonment | Unlawful complete restriction of freedom of movement |
Trespass to goods | Intentional direct interference with possession of goods |
Conversion | Dealing with goods inconsistently with the owner’s rights |
What is negligence?
Negligence is the breach by the defendant of a legal duty to take care which causes damage to the claimant
To establish negligence, the claimant must prove:
Duty of care
Breach of duty
Damage caused by the breach
What is a duty of care?
A legal obligation requiring the defendant to take reasonable care to avoid causing harm to the claimant
What are established duties of care?
Situations and relationships where case law has already recognised that a duty of care exists
What is a novel duty situation?
A situation where there is no previous authority establishing or denying a duty of care.
Courts develop the law incrementally by analogy with established cases
What three requirements must be satisfied for a duty of care in a novel situation? (3)
The claimant must show:
Foreseeability
Proximity
It is fair, just and reasonable to impose a duty
What is foreseeability in duty of care?
The claimant must be a foreseeable victim of the defendant's negligence.
The defendant's conduct must create a foreseeable risk of harm to that claimant.
What is proximity?
There must be a sufficiently close relationship between claimant and defendant.
What does "fair, just and reasonable" mean?
The court considers policy factors and whether imposing a duty of care is appropriate in all the circumstances
Is there generally a duty to act or rescue someone?
No.
Generally there is no legal duty to act or rescue a person in danger.
When can a duty arise because of a special relationship?
Where there is a special relationship between the parties, such as parent and child
When can control create a duty of care?
Where the defendant exercises control over the claimant, e.g. a police officer arresting someone
When can a defendant be liable for the actions of a third party?
Where the defendant has control over the third party or has assumed responsibility for them.
Example: a parent controlling a young child.
What duty is owed by someone who voluntarily undertakes a rescue?
A limited duty not to make the situation worse.
What rescue situation is commonly tested?
Where the defendant starts a rescue and then unreasonably abandons it.
If others fail to help because they believe the defendant will complete the rescue, the defendant may have made the claimant's position worse and breached a duty.
What is meant by the scope of a duty of care?
The claimant's harm must fall within the scope of the duty owed.
If it does not, damages are not recoverable even if:
A duty existed;
The defendant acted negligently;
The defendant actually caused the harm.
What is the standard of care in negligence?
The standard of the reasonable person in the defendant's position
Is the standard of care subjective or objective?
Objective and impersonal.
The defendant's own lack of skill or experience is generally irrelevant.
How does the court determine whether there has been a breach of duty?
By balancing:
Magnitude of the risk
Practicability of precautions
What factors determine the magnitude of risk? (2)
Likelihood of harm occurring
Seriousness of potential harm
How does likelihood of harm affect breach?
If the risk of harm was very low, the defendant may not be in breach even if harm actually occurs.
How does seriousness of potential harm affect breach?
The greater the possible harm, the greater the precautions expected of the defendant
What is meant by practicability of precautions?
The court considers how practical it would have been for the defendant to take precautions against the risk
What is social utility?
The court considers the social value of the defendant's conduct.
People acting in emergencies or rescue situations may be expected to take fewer precautions
Can an under-skilled defendant rely on their lack of experience?
No.
They must meet the standard expected of a reasonably competent person undertaking that activity.
What standard applies to learner drivers?
The standard of a competent qualified driver.
Their inexperience is irrelevant.
What standard applies to professionals?
The standard of a reasonably competent member of that profession
How is breach assessed for professionals?
By asking whether the defendant acted in accordance with a responsible body of professional opinion
Can a doctor avoid liability for failing to warn of treatment risks by relying on professional opinion?
No.
The duty is to take reasonable care to warn of material risks.
Materiality depends on what the patient would consider important, not what professionals think.
What standard applies to children?
The standard of a reasonable child of the same age.
Is there a minimum age for tort liability?
No.
However, the standard of care is adjusted according to the child's age.
Who bears the burden of proving breach of duty?
The claimant
What is res ipsa loquitur?
"The thing speaks for itself."
A doctrine allowing the court to infer negligence from the circumstances of the accident.
What three conditions must be satisfied for res ipsa loquitur? (3)
No explanation for the incident
The thing causing the accident was under the defendant's control
The accident would not normally occur if proper care had been taken
What is the effect of res ipsa loquitur?
It allows the court to infer negligence unless the defendant can show they exercised reasonable care.
Are criminal convictions involving negligence admissible in civil proceedings?
Yes.
They can be used as evidence in a civil claim arising from the same incident.
Is damage an essential element of negligence?
Yes.
Without damage, there is no claim in negligence.
Who bears the burden of proving causation?
The claimant.
What are the three stages of causation? (3)
Causation in fact
No new intervening act
Damage not too remote
What is the "but for" test?
Would the loss have occurred but for the defendant's breach?
If the answer is yes, causation is not established.
What standard of proof applies to causation?
Balance of probabilities.
The claimant must show it is more likely than not that the defendant caused the harm.
When is the material contribution test used?
Where a single injury results from multiple causes acting together.
What must the claimant prove under the material contribution test?
That the defendant's breach made a material contribution to the injury.
What causation distinction is commonly tested?
Whether the facts involve:
Alternative causes → apply the but for test
Multiple causes acting together → apply material contribution
Choosing the wrong test can change the outcome.
What is a divisible injury?
An injury where damages can be apportioned between defendants according to the harm each caused.
What happens in contribution between tortfeasors?
A defendant who pays damages may recover a contribution from other defendants according to what is just and equitable.
What are successive injuries?
Separate injuries occurring one after another.
The second defendant is liable only for the extent to which their negligence worsened the claimant's condition.
What is a novus actus interveniens?
A new intervening act or event that breaks the chain of causation
When will a third party's act break the chain of causation?
Only if it was not reasonably foreseeable
When will the claimant's own act break the chain of causation?
Only if the claimant acted entirely unreasonably
Can a natural event break the chain of causation?
Yes.
A natural event may sever liability for subsequent damage.
What is the test for remoteness in negligence?
Was the damage a reasonably foreseeable consequence of the defendant's negligence?
What happens if damage is too remote?
The defendant is not liable
What is the egg shell skull rule?
The defendant must take the claimant as they find them.
A pre-existing condition making injuries worse does not reduce liability.