Match: FLK1 - Tort | Quizlet

What are the 6 elements of an actionable claim in negligence?

1. loss or damage

2. duty

3. breach

4. causation

5. remoteness

6. defences

What is the neighbour principle?

the general duty of care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (ie persons I ought reasonably to have in contemplation)

What is the 3 stage test in Caparo v Dickman?

where there is no precedent (ie an analogy with an established authority), the following three steps apply:

1. is the harm foreseeable

2. is there a relationship of sufficient proximity

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

What is the general rule for liability for omissions?

the law of tort only imposes liaiblity on those who cause injury or damage to another; no such duty is imposed on a mere failure to act

There is no duty to avoid omissions (Smith) except.... (5 things)

1. where there is a statutory duty

2. where there is a contractual duty

3. where D has sufficient control over the C

4. where D assumes responsibility for C

5. where D creates the risk

What is the general rule regarding liability for acts of third parties?

the law of tort only imposes liability on those who directly cause injury or damage to another; no such duty is imposed on a failure to prevent a third party causing harm to another

There is duty for failing to prevent a third party from causing harm (Smith) except where.... (4 things)

1. there is sufficient proximity between D and C

2. there is sufficient proximity between D and T

3. D created the danger

4. the risk was on D's premises

What is the general rule regarding the standard of care owed?

the usual starting point is that D must behave as a reasonable person would in all circumstances

While the reasonable person test is _________________, the court's will have regard to ______________.

objective

the particular circumstances which D faced

What is the professional standard principle?

a professional should act with the care and skill expected of a reasonable professional in that field

What is the standard of care expected of children?

that of a reasonable child of D's age carrying out the relevant act

Defence of illness or disability only works if his incapability amounts to ______________.

a total loss of consciousness or control

What is the rule regarding likelihood of harm?

The more likely someone is to get injured, the more likely it is that there will be a breach.

What is the rule regarding magnitude of harm?

If any injury that may occur would be serious, greater care will be needed than if the risk was of a more minor injury.

What is the rule regarding practicality of precautions?

To satisfy the duty of care, a defendant need only act reasonably. If it would be unreasonable to require them to take the necessary precautions, even against a clearly foreseeable risk, the court will accordingly not impose liability.

What is the rule regarding potential benefit of D's conduct?

The value to society of the defendant's activity is a factor the courts consider. In effect, the potential benefits to safety are weighed against any possible damage that may result if the risk is taken.

According to s 1 Compensation Act 2006, a court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might... (2 things)

1. prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

2. discourage persons from undertaking functions in connection with a desirable activity

What is the rule regarding common practice?

If a defendant can show they have acted in accordance with a practice usually followed by others in that field, this will be an argument in the defendant's favour, and the defendant may escape liability.

However, note that the court can always rule that the common practice is itself negligent, as it did in the case of Re Herald of Free Enterprise

What is the rule regarding negligence in sport?

When the defendant is participating in sport, the demands of the game will be foremost in their mind and they are likely to take risks in the heat of the moment.

Who bears the burden of proof with respect to breach?

The burden is on the claimant to prove that the defendant breached the duty of care.

What is the principle of res ipsa loquitur?

where the only plausible explanation for C's injuries is negligence by D, then it will be for D to adduce evidence that shows they were not negligent

What is the Bolam test?

Whenever a professional standard of care has been set, the starting point for a negligence claim is to determine whether D has fallen below this standard.

What is the rule regarding professional opinion? What is the Bolitho qualification to this rule?

if a professional can show that he acted in accordance with a responsible body of professional opinion, they will not be in breach of duty

the opinion in question must withstand logical analysis

What is a material risk?

on which a reasonable person would be likely to attach significance to

Medical professionals are under a duty to take reasonable care to ensure that_______________ (Montgomery).

the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments

What is the but for test?

on the balance of probabilities, but for D's breach of duty, would C have suffered their loss at that time and in that way

What is the test for factual causation?

but for causation

What is the effect of having several potential causes of damage which are all equally as likely to have been the cause of damage?

but for causation cannot be used to find one of those causes as solely liable, rather liability will be apportioned

What is the material contribution test?

where there are multiple causes which operated together to cause C's loss, the courts will depart from but for causation to see whether D's conduct or omission amounts to a material contribution

What is the material increase in risk test?

where there are several potential causes of C contracting an industrial disease (eg asbestos), the courts will depart from but for causation to see whether D's conduct or omission amounts to a material increase in the risk of C contracting that disease

What is the rule regarding second causes and damage?

if the D2 has not caused any additional damage to C, they will not be liable

if D2 has caused individual damage to C, then he will be liable only for that additional damage

What is the rule regarding a tort followed by a natural event?

if D causes damage to C but then C suffers a further injury, D is only liable for damage up to the natural event

What are the 3 types of novus actus interveniens?

1. act of God or natural events

2. acts of third parties

3. acts of the claimant

What is an Act of God?

some exceptional natural event

Where the subsequent event is the act of a third party, the courts have viewed it as breaking the chain of causation if it was ______________.

highly unforeseeable

The legal test for an act of the claimant breaking the chain of causation is that the act must be ______________.

highly unreasonable

What is the effect of a novus actus interveniens?

it breaks the chain of causation, D will still be responsible for any loss before the novus actus event but will not be responsible for any loss after it

Once it is established that the type of damage was reasonably foreseeable, there is no need for the defendant to foresee _____________.

the exact way in which the damage occurred

Once it is established that the type of damage was reasonably foreseeable, the defendant is liable for the _______________, even if ______________.

full extent of those damages

the extent is greater than that which would normally be expected

What is the eggshell skull rule?

the no need to foresee the extent of damage principle applies even if the damage or extent of injury has been aggravated by C's own weakness; D must take the victim as he finds him

What is the defence of volenti non fit injuria? What must D show in order for this defence to succeed (4 things)?

that to which a man consents cannot be considered an injury

1. C had capacity to give valid consent to the risks

2. C had full knowledge of the nature and extent of the risks

3. C agreed to the risks of injury

4. C agreed voluntarily

The defence of consent cannot be used by ______________.

motorists facing claims from passengers

The Unfair Contract Terms Act 1977 and Consumer Rights Act 2015 provide that being aware of a term limiting/excluding liability for certain losses does not mean _______________.

the party consents to those risks/losses

What is the legal test for contributory negligence? What are the two steps for a finding of contributory negligence?

where any person suffers damage as the result partly of his own fault and partly of the fault of any other person

1. that C failed to take reasonable steps for their own safety; and

2. that this failure contributed to C's damage

If contributory negligence is established, then the damages are reduced by a percentage which is _________________, and the court has considerable discretion.

just and equitable

When does the defence of illegality apply?

when C was involved in an illegal activity at the time they suffered their loss

What is the Patel v Mirza test for the illegality defence? (3 things)

Consider...

1. what was the underlying purpose of the prohibition transgressed and will that purpose be enhanced by denying the claim;

2. other relevant public policy on which denial of the claim may have an impact; and

3. whether denying the claim would be proportionate to the illegality

What is the legal test for the necessity defence? (2 things)

D must prove that they...

1. were acting in an emergency to prevent harm to C, a third party and/or D themselves;

2. were not at fault in causing the emergency

When does the defence of necessity apply?

where D acted to save life, limb, or property (eg acting in an emergency) so long as the situation in which D was acting was not created by D's own negligence

What are compensatory damages?

damages awarded to compensate C for the harm they have suffered

What do special damages cover?

specifically provable and quantifiable financial losses at the time of trial

What do general damages cover?

future financial losses, which cannot be specifically proven, and non-quantifiable losses (eg compensation for physical injury)

What are the 2 principal remedies that a court can award in a successful negligence action?

1. damages

2. injunctions

If someone dies as a result of a tort....

Under the Law Reform (Miscellaneous Provisions) Act 1934, their estate can claim for _________________.

Under the Fatal Accidents Act 1976, certain family members may be able to claim compensation if they ______________. They may also be able to claim a ________________ and/or ______________.

any losses suffered by the deceased up to the date of death

depended on the deceased

bereavement award

funeral expenses

What is vicarious liability?

where one part is held liable for the torts of another due to a particular relationship (eg employer - employee)

What is employer's liability?

where an employee sues their employee for breaching their duty of care to the employee

What are the 4 obligations within an employer's general duty of care?

1. employ safe/competent employees

2. provide safe/proper plant and equipment

3. provide safe place of work / premises

4. provide safe systems of work

_______________ is hard for an employer to establish as a defence.

Consent

What is strict liability?

where one party is liable despite the absence of any fault

B is vicariously liable for a tort committed by A where the following is established.... (3 things)

1. a tort has been committed by A

2. A is an employee of B, or in a relationship akin to employment; and

3. the tort was committed in the course of that employment/quasi-emoloyment

With respect to vicarious liability, a tort will be committed in the course of employment if there is _______________ between the wrongful act and the employment.

a sufficiently close connection

With respect to vicarious liability, what are the 2 steps of the close connection test?

1. what functions/filed of activities has the employer entrusted to the employee

2. is there a sufficient connection between the position in which the employee was employed and the wrongful conduct to make it just for the employer to be held liable

What is a contract of services? What is a contract for services?

a contract under which services are provided in an employer/employee relationship

a contract under which services are provided by an independent contractor, not in an employer/employee relationship

With respect to vicarious liability, what is the test for a relationship akin to employment? (5 things)

1. the employer is more likely to have the means to compensate the claimant than the tortfeasor

2. the tort has been committed as a result of an activity being undertaken by the tortfeasor on the employer's behalf

3. the tortfeasor's activity is part of the business activity of the employer

4. by allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed; and

5. the tortfeasor is, to a greater or lesser degree, under the control of the employer

What is the general rule regarding lending employees (VL)?

that the employer will remain vicariously liable for the lent employee unless this presumption is rebutted (which is difficult to do)

What are the 2 types of psychiatric harm recognised by the courts?

1. a medically recognised psychiatric illness; or

2. a shock-induced physical condition

What is a primary victim?

someone who suffers psychiatric harm as a result of reasonable fear for their own physical safety (objective test)

they are involved in the traumatic event and are therefore in the area of danger

What is a secondary victim?

someone who suffers psychiatric harm due to fear for someone else's safety, normally a close relative

they are not in reasonable fear for their own physical safety

What is an actual victim?

a person who has suffered physical harm only or physical harm and psychiatric harm

What is the test for whether primary victims are owed a duty of care?

D must reasonably have foresee that C might suffer physical injury as a result of their negligence

What is the test for whether secondary victims are owed a duty of care (ie Alcock criteria, 4 things)?

1. was psychiatric harm reasonably foreseeable in a person of ordinary fortitude

2. was there proximity of relationship between the claimant and the victim

3. was there proximity in time and space to the accident or its immediate aftermath

4. was the psychiatric harm shock-induced

What is pure economic loss?

economic loss that arises where there has been no damage to C's property or injury to their person

What is the general rule regarding pure economic loss? What are the exceptions to this rule (3 things)?

that no duty of care will be owed in respect of pure economic loss

1. a negligent misstatement

2. a negligently drafted will

3. a negligently drafted reference

What are the 3 Hedley Byrene criteria for negligent misstatement? How many of these criteria must C satisfy?

1. whether there was reasonable reliance on the statement

2. whether there was an assumption of responsibility on the part of D

3. whether there was a special relationship of trust and confidence between the parties

These three 'tests' often overlap and a claimant need only satisfy one in order for a duty of care to be owed.

With respect to the Hedley Byrene criteria, what is the reasonable reliance test? (3 things)

1. C relied on D's advice

2. it was reasonable for D to have done so

3. D knew/ought to know C was relying on the advice

With respect to the Hedley Byrene criteria, what is the test for a voluntary assumption of responsibility? (2 things)

1. is there a special relationship of trust and confidence between the parties

2. is there a valid disclaimer which negates a duty of care

With respect to the Hedley Byrene criteria, what is the test for whether there is an assumption of responsibility? (4 things)

1. D must communicate the advice to C or know that it will be communicated to them

2. D must know the purpose for which C will use this advice

3. D must know or reasonably believe, that C will rely on this advice without independent enquiry; and

4. C must have acted upon that advice to their detriment

What is private nuisance?

any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant's land or their enjoyment of that land

Who can sue in private nuisance?

C must have legal interest in land - possessionary or proprietary interest

mere permission to use or occupy the land is insufficient

Who can be sued in private nuisance?

1. Creator of the nuisance;

2. Occupier of the land from which the nuisance originates; and

3. Owner of the land

An indirect interference occurs where _____________.

the nuisance starts on the defendant's land but then causes damage to some aspect of the claimant's use or enjoyment of their land

What are the 2 types of recognised damage/loss in private nuisance?

1. physical damage

2. sensible personal discomfort

What is the general rule regarding the frequency of a private nuisance? What are the exceptions to this rule? (2 things)

the nuisance must be continuous; a one-off isolated event is not normally actionable in private nuisance

1. a single incident caused by an underlying state of affairs; and

2. an activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material

The nuisance must constitute an unlawful interference with the claimant's land or use or enjoyment of the land. The term 'unlawful' in this context denotes _______________.

unreasonableness

There are various factors that the courts will consider when deciding whether the defendant's interference with the claimant's land is unreasonable/unlawful. This includes.... (6 things)

1. time and duration

2. locality

3. abnormal sensitivity

4. malice

5. D's lack of care

6. excessive behaviour

What is the prescription defence to private nuisance?

if D's activity has been an actionable nuisance for 20 years or more but no such action has been taken, D will have earned the right to continue to commit the nuisance

What is the statutory authority defence to private nuisance?

where D's activity is being carried out on the basis of statutory authority, they will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of that activity

What is the act of a third party defence to private nuisance?

where the nuisance has been created by a third party for whom D bears no responsibility, D will not be liable unless they adopt or continue the nuisance

What is the act of God defence to private nuisance?

where the nuisance results from an act of God, D will not be liable unless they adopt or continue the nuisance

What are the 3 remedies available for a successful claim in private nuisance?

1. injunction

2. damages

3. abatement (where C is permitted to act to stop the nuisance)

What is a public nuisance?

acts or omissions of D that materially affects the reasonable comfort and convenience of life of a class of HM's subjects

it is also a criminal offence

Who can sue for public nuisance? (3 things)

1. a local authority

2. the Attorney General

3. an individual (in certain circumstances)

When can a private individual sue in public nuisance?

when they have suffered special damage, ie damage over and above the rest of the class

Who can be sued in public nuisance?

the creator of the nuisance or any person who is responsible for the nuisance

What are the 4 elements of a public nuisance?

1. act or omission

2. one off event or contentious

3. class of HM's subjects

4. materially affects comfort and convenience

What kinds of damage are recoverable in public nuisance? (3 things)

1. property damage

2. consequential economic loss

3. personal injury

What remedies are available for public nuisance? (2 things)

1. injunctions

2. damages

What is the rule in Rylands v Fletcher?

D will liable for an isolated escape of some material from his land where it causes damage to C's land

What are the 5 elements of the rule in Rylands v Fletcher?

1. D brings something onto land and accumulates it there

2. the thing is brought for their own purposes and it must be anything likely to do mischief if it escapes

3. it does escape

4. the escape caused foreseeable harm

5. it was a non-natural use of land

Who can sue in Rylands v Fletcher?

someone with a proprietary interest in the affected land