SQE

tort

involves the infringement of a legal right (or a breach of a legal duty) and it gives rise to a claim in the civil courts

tortfeasor

person who commits a tort

tort of negligence

A breach of a legal duty of care owed to a claimant that results in harm to the claimant, undesired by the defendant

foreseeability

Reasonable foresight of harm to claimant

“Floodgates” argument

If one case is allowed to succeed, floodgates will open to admit hundreds of other similar claims

witness of fact

people who saw what happened

res ipsa loquitur

“the thing speaks for itself”

The “but for” test

“As a matter of fact, was the defendant’s negligence a cause of the claimant’s damage?”

The material contribution approach

Where there are multiple causes in a case, case law makes it clear that the claimant need not show that the defendant’s breach of duty was the only cause of the damage to the claimant, or even the main one. The claimant simply has to show that it materially contributed to the damage.

divisible injury

proportionate damages

indivisible injury

contributions between tortfeasors

novus actus interveniens

A new intervening act

remoteness of damage

When a court decides that damage is too far removed, so that a defendant should not be responsible for it

The ‘Wagon Mound’ rule for remoteness of damage

If a reasonable person would not have foreseen the damage, it cannot be recovered

The ‘similar in type’ rule

If the claimant suffers an injury of a type that was foreseeable, it does not matter that the precise way in which the claimant was injured was not foreseeable

the ‘egg-shell skull’ rule

If a claimant suffers a particular disability or has a particular condition, they can recover in full from the defendant for their losses, even though the defendant could not have foreseen the full extent of the claimant’s loss

pure economic loss (requirement for tort)

Requires a sufficiently proximate relationship between the claimant and defendant

consequential economic loss

Money loss following physical damages

consequential psychiatric harm

No special rules – but generally consists of pure psychiatric harm that accompanies physical harm (e.g., nightmares following a vehicle crash)

pure psychiatric harm

Caused without any physical impact or injury to the Claimant

primary victim

Someone who was actually involved in the incident:

• Was in the actual area of danger; or

• Reasonably believed that they were in danger.

secondary victim

Someone who is not involved in the accident in the same way:

• WItnesses injury to someone else; or 

• Fears for the safety of another person.

remoteness of damage for pure psychiatric harm

Damage is too remote if it is not a reasonably foreseeable consequence of the defendant’s negligence

duties owed by an employer to its employees

providing competent staff; adequate material; and a proper system of work and supervision

material increase in risk

Extends material contribution approach even further by covering creation of a material increase in the risk of injury, rather than a material contribution to the injury itself. Best viewed as an exception to the usual rules of causation, strictly confined to cases of scientific uncertainty like mesothelioma

The Employers’ Liability (Defective Equipment) Act 1969

prevents an injured employee from having to potentially sue the (often difficult to identify/contact) manufacturer of faulty equipment when the equipment is supplied by the employer. Requires employee to establish fault on the part of a 3rd party and causation

defence

Arguments a defendant may raise (in negligence claims and otherwise) that may either reduce or eliminate the liability a defendant may otherwise have to compensate a claimant for their losses.

Defendant must establish:

• That the claimant had full knowledge of the nature and extent of the risk, and

• That the claimant willingly consented to accept the risk of being injured due to the defendant's negligence.

volenti non fit injuria

consent (voluntary assumption of risk). Operates as a complete defence for the defendant, preventing the claimant recovering at all for the defendant’s breach of duty.

ex turpi causa non oritur actio

‘No action arises from a disgraceful cause.’

Illegality - The fact that the claimant was involved in an illegal enterprise at the time they were injured can operate as a complete defence for the defendant, preventing the claimant from recovering at all from the defendant’s breach of duty. For this defence to succeed, there must be a very close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to allow the claimant a remedy.

compensatory damages

also known as actual damages. These are damages awarded by a court equivalent to the loss a party suffered

generic damages

Refer to losses which are not capable of being calculated precisely and are left to the court to decide. They must still be stated but no definitive figure can be placed on them.

• Ex., pain, suffering, loss of amenity, and losses incurred after the trial (future losses).

special damages

Losses which are capable of being calculated precisely at the time of trial.

• Ex., financial losses incurred before trial, like loss of earnings.

non-pecuniary loss

Not capable of being calculated in money terms. Ex., personal injury. Made up of claimant's pain and suffering, plus ‘loss of amenity’ caused by injury

pain and suffering

Covers past, present, and future pain, physical and mental anguish, the fear of future surgery, etc.

• Also includes claimant’s anguish knowing their life expectancy has been shortened because of the accident.

• A claimant must be aware of the injuries to claim for pain and suffering; an unconscious claimant could not recover these damages (subjective test).

loss of amenity

Aims to compensate claimant for loss of enjoyment of life – covers wide area of loss, e.g., loss of freedom of movement, loss of sight, loss of smell, loss of marriage prospects, inability to pursue hobbies, etc.

• Objective test – a claimant will be able to recover these damages whether conscious or not.

pecuniary loss

Capable of being mathematically calculated in money terms. Ex., claimant’s loss of earnings and medical expenses

medical expenses

Claimant can claim for any reasonable medical expenses which result from the accident – e.g., cost of wheelchairs, adapting their house, special dietary needs, travelling to / from hospital to receive treatment.

loss of earnings pre-trial

Necessary to ascertain net earnings (after tax and national insurance deductions, so claimant receives as compensation the same sum of money they would have taken home had they been able to work).

• Includes job perks like company car, reduced rate mortgage, share options, regular overtime bonuses. 

multiplicand

Net annual loss (determined by gross estimated salary minus tax, national insurance, and pension contributions). If the claimant was likely to have been promoted, this can be taken into account. Salary cannot be increased to counteract inflation.

multiplier

The period of future loss, aka how long the claimant will lose money. 

• Using Ogden tables for current discount rate will increase number of years (lost) using current discount rate of -0.25%.

loss of earnings

lost years – refer to loss of years of earning potential due to damages that shorten their life expectancy.

• Necessary to deduct (average of 25% for married person with children; 33% for those with no dependents) amount which the claimant would have spent on themselves from loss of earnings figure; only balance of earnings should be awarded as damages.

estate

All property belonging to the deceased person. Includes land, buildings, money, shares, cars, jewellery, etc.

will

Document in which a person sets out their wishes as to the distribution of their estates on death.

intestate

A person who has died without leaving a will.

executors

People appointed under the will to administer the distribution of the estate according to the deceased’s wishes.

administrators

People who administer the distribution of the estate in an intestacy. They are appointed according to statute.

personal representatives

Generic term – includes executors if the deceased left a will, or the administrators in the case of an intestacy.

beneficiaries

Persons named in the will or who satisfy the rules of intestacy and who inherit all or part of the deceased’s estate

dependants

Persons for whom the deceased used to provide finances

intentional torts

Often also criminal acts (e.g., fraud). Classic definition suggests employer would not be vicariously liable for such acts, as they would neither be authorised acts nor unauthorised ways of doing authorised acts

Lister principle

The requirement for a close connection between the work an employee is employed to do and the tort they commit (for an employer to be deemed vicariously liable).

1957 Act (the Occupiers’ Liability Act 1957)

governs an occupier’s duties to ‘visitors’

The Occupiers’ Liability Act 1984 (the 1984 Act)

governs an occupier’s duties to others (mostly trespassers)

occupier

someone who has a ‘sufficient degree of control over premises.’

An independent contractor, working on another person’s premises, would be an occupier for the duration of the building work.

visitor (defined under 1957 Act)

a person who has express or implied permission to be on the occupier’s land

trespasser

any person who does not have permission to be on the premises; does not matter if they are aware that they are trespassing

premises (defined under 1957 Act)

open land; fixed or moveable structures; vessels; vehicles; or aircrafts (wide definition)

common duty of care (for visitors)

the duty to take such care as is reasonable in all circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there

allurement

a temptation (could refer to the risk / danger for young children)

manufacturer

includes repairers or products, installers of products, and even suppliers of products

product

Refers to almost any item which is capable of causing damage. extends to items supplied with the product – packaging, containers, labels, instructions for use

Caparo test

• Involves 3 questions to be considered:

1. Reasonable foresight of harm to the claimant;

2. Sufficient proximity of relationship between the claimant and the defendant; and 

3. That it is fair, just, and reasonable to impose a duty.

Alcock control mechanisms

Requirements to narrow down the number of secondary victims to whom a duty of care is owed. Includes

• foreseeability of psychiatric harm

• proximity of relationship to endangered person

• proximity in time and space (to accident)

• proximity of perception

Consumers

The ultimate user of the product, but also anyone whom the defendant should reasonably have in mind as likely to be injured by the defendant’s negligence (the ‘neighbour principle’).

Res ipsa loquitur

‘The thing speaks for itself.’

Usually used to infer negligence from the nature of the injury in the absence of direct evidence.

Private nuisance

An “unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.”

Exists to protect an individual in their enjoyment of their own property.

prescription

Arises if the defendant can show that they have been continuing the nuisance of a period of at least 20 years against the claimant.

The effect is that the claimant has ‘acquired’ the right to commit the nuisance.

prohibitory injunction

Prohibits defendant from acting in a particular way.

mandatory injunction

Orders the defendant to take some positive action to rectify the consequences of what they have done.

Quia timet injunction

An injunction granted in anticipation of the commission of the tort by the defendant, in order to prevent the claimant suffering any damage. Claimant must demonstrate:

• They are almost certain to incur damage without the injunction; and

• Such damage is imminent; and

• The defendant will not stop their course of conduct without the order.

abatement (self-help)

A remedy whereby the interference is removed by the victim.

public nuisance (a crime)

An act or omission that endangers the life, health, property, or comfort of the public, or obstructs the public in the exercise of rights common to all His Majesty’s subjects.

jurisdiction

Most commonly refers to a political entity where a particular law has application.

‘golden thread’ of justice

that the accused is innocent until proven guilty

Parliamentary sovereignty

Parliament is supreme; it can pass, change, or appeal whatever laws it likes.

Green Paper

a consultation document on possible new law

White Paper

incorporates the government’s firm proposals for the new law

Bill

The document an Act will start as. Following this, Parliament will debate the Bill and deliberate whether it will become an Act.

guillotine

Imposition of a timeline for a Bill.

Royal Assent

Final stage where the monarch approves a Bill and makes it an Act of Parliament.

equity

Fairness. Arriving at a resolution that is fair to all parties, taking into account a mix of considerations such as the facts, the behaviour of those involved, and the respective situations of the parties.

Civil law

Code-based system derived from traditional Roman law and concepts.

hereditary peers

Previously dominated the House of Lords.

Martial law

A summary form of criminal justice, exercised under direct or delegated royal authority by the military or police forces of the Crown, which is independent of the established processes of the common law courts.

habeas corpus

‘You shall have the body.’ Traceable to 1305, it is the principle that someone cannot be detained and deprived of their freedom unless there is a lawful reason for it.

clemency

A form of sympathetic leniency in recognition of the circumstances of the crime.

Acts of Parliament

Primary legislation that go through a particular process culminating in the Royal Assent.

Statutory Instruments

Secondary, subordinate, or delegated legislation; effectively works of ministers and civil servants, requiring no discussion before becoming law.

byelaws

• Local laws made by local councils under an enabling provision granted by an Act of Parliament.

  • Typically relate to open spaces, parks, burial grounds, and marketplaces.

  • Cannot take effect until they are confirmed by the appropriate minister.

public bills

concern matters affecting the public as a whole.

government bills

introduced by a minister as part of the government’s legislative programme, prompted by medium- and long-term planning or short-term responses to emergency (like COVID).

Private Member Bills

non-government-sponsored bills introduced by backbench MPs.

private bills

affect particular people, organisations, or localities.

hybrid bills

combine elements relevant to both the general public and private or commercial organisations.

consolidation (of legislation)

where one statute reenacts law that was previously contained in several different statutes. Does not include case law.

rules of construction

A method used by lawyers and academics to assist in the interpretation, understanding, and administration of legislation.

the literal rule

States that words in a statute must be given their plain, ordinary, and literal meaning; if the words are clear, they must be applied, even though the intention of the legislator may have been different, or the result harsh or undesirable.

the golden rule (of construction)

An adaptation of the literal rule. Where there are two meanings of a words or words, they should be given their ordinary meaning as far as possible, but only to the extent they do not produce an absurd or totally obnoxious result.

• Use of the rule – narrow sense: If a word is capable of more than one meaning, you can choose between those meanings, ‘but beyond this you cannot go.’

• Use of the rule – wide sense: To avoid a result that is obnoxious to the principles of public policy (‘obnoxious’ meaning contrary to good governance in the broadest sense), even when words have only one meaning.