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23 Cards in this Set
- Front
- Back
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What is the Law of Torts?
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'Tort' is a French word meaning 'a wrong'. The law of torts is about CIVIL wrongs.
A tort is a CIVIL wrong rather than a crime because it is committed by a private person against another private person. |
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What 3 elements must a tort have?
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~ Human behaviour that the law classess as wrongful.
~ Such behaviour infringes on the interests of another person. ~ The person suffering the wrong can seek redress through the civil courts. |
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What are the common torts?
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~ Negligence
~ Trespass ~ Nuisance ~ Occupiers Liability ~ Rylands v Fletcher ~ Defamation ~ Deceit (Fraud) |
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What is NEGLIGENCE?
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Negligence is where the act in question is performed to a standard less than expected.
Negligence can be definded as a breach of a legal duty of care owed by the defendant to the claimant - resulting in damage. MUST prove 3 things: ~ the defendant owed the claimant a duty of care. ~ the defendant was in breach of that duty. ~ the claimant suffered damage as a result. |
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What is Trespass?
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This covers direct interferance with the land/goods or person of others.
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What is Nuisance?
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Private nuisance protects a person in the use and enjoyment of land or property through the activities of neighbours.
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What is Rylands Vs Fletcher
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A tort based on the case that imposes liability on a person if something dangerous escapes from their land and causes damage.
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What is defamation?
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Publication of an untrue statement which lowers another person in the eyes of right thinking people.
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What is deceit? (FRAUD)
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A false statement made willfully or recklessly and causes loss to others.
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What is duty of care?
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A duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others.
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What are the four factors which are relevant to whether a duty will be imposed?
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1. Forseeability - could the claimant have forseen that the result could have happened through their act or omission.
2. Proximity - Is there sufficient relationship of proximity so that the injured party could have been forseen by the claimant. 3. Just and Reasonableness - this is the limit on the liability linked to the two points above. Essentially for a case of negliagence to succeed there must be proximity and foreseeability. |
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What concept do the courts use in deciding whether there is a breach of duty of care?
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'Reasonable Person'
A person is regarded as negligent if failing to reach the standard of conduct that a reasonable person would reach. To carry out a duty of care you have to show reasonable competance to carry out your job. |
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How are DAMAGES proven?
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A claimant must prove damage, but mot all damage is actionable if it is too remote.
The general rule is that the defendant is only liable for damages that a 'reasonable person' should forsee. |
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What are the primary cases where property valuers have been held negligent in reporting to buyers of property?
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Smith V Eric S Bush [1989]
and Harris v Wyre Forest District Council [1989] |
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What is negliegent Mis-statement?
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If questions are asked and the agent does not know the answer, they would be expected to say so and either find out or make it clear that the prospective tenant would have to make their own enquiries to avoid negliegent Mis-statement.
Statements can be made orally or in writing. The usual remedies are available to the party who suffers the loss. |
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What is Occupiers Liability?
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This relates to the fact that the law expects occupiers to ensure that visitors are safe when on the land or property of the occupier.
The liability of the occupier depends on whether or not the visitor is lawful or unlawful. There are 2 pieces of legislation that cover this: Occupiers Liability Act 1957 - lawful visitors Occupiers Liability Act 1984 - unlawful visitors/ trespassers. |
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Regarding Occupiers Liability -What are the 6 categories of Visitor?
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INVITEES - People allowed to enter for special purposes - of the interest of the occupier.
LICENCEES - People who have permission to enter but hold no interest to the occupier e.g. kids/ball. CONTRACTORS - those who enter land by virtue of a contract e.g. window cleaner. ENTRANTS - those who have rights under statutory/common law e.g. policemen. PEOPLE EXCERSISING PUBLIC/PRIVATE RIGHT - right of ways, the occupier must not actively do anything to make entry dangerours. TRESPASS - Unlawful visitors. |
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What does the Occupiers Liability Act 1957 state?
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The act retains the concept that as the occupier is the person in control of the premises, they would be able to make sure the premises are safe to anyone entering. The occupier should be especially prepared for children to be less careful than adults.
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What are the defences that can be put forward?
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~ Warnings - these need to be reasonable and prominant.
~ Contract - exclusion clauses can be inserted into contracts but these must satisfy under the 'Unfair Contract Terms Act 1977'. ~ Consent |
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What does the Occupiers Liability Act 1984 state?
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In common law a trespasser is deemed to take land/premises as they find it. BUT the 1984 act replaces this and places a duty on the occupiers to ses that land and premises are safe.
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When is a DUTY owed by the occupier regarding trespassers to property?
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~ They are aware of a danger/have reasonable grounds to believe that a danger exists.
~ They believe that others in the vicinity may come into the vicinity of the danger. ~ The risk is such that they may reasonably be expected to offer the other person protection. |
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What is Vicarious Liability?
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This arrises where there is a 'master-servent' relationship, i.e employer and employee.
Where there is this relationship the employer will be liable for the torts committed by the employee as long as these were during the course of employment. |
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What is the reasoning behind Vicarious Liability?
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~ to stop an employer hiring an employee to commit a tort.
~ to encourage employers to maintain a safe system of operation. ~ Employer is in a better financial position and can arrange insurance. ~ It is the employer who benefits from the work of the employee. ~ The employer can pass on costs to customers but the victim can not. ~ It provides a clear and identifiable party to sue. |
