Chapter 3 - Law Of Torts

Front 1

Define tort

Back 1

Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and it's breach is redressable by an action for unliquidated damages

Front 2

What is the general purpose of the law of torts?

Back 2

To protect people's rights by allowing them to sue if their interests are invaded, threatened or harmed

Front 3

Is injury or damage required in tort?

Back 3

Normally unless actionable per se (I.e. trespass)

Front 4

What characteristics are seen in the event of trespass?

Back 4

1. The act must be direct

2. The act of the defendent must be intentional

3. The tort is actionable per se

Hint 4

There are 3

Front 5

What 3 main forms does trespass take?

Back 5

1. Trespass to person

2. Trespass to goods

3. Trespass to land

Front 6

What 3 forms does trespass to person take?

Back 6

1. Assault (directly causes claimant to fear an attack on their person)

2. Battery (hostile application by defendent of physical force)

3. False imprisonment (total bodily restraint by defendent of claimant preventing them from going where they want to go.

Front 7

Define trespass to goods

Back 7

Trespass to goods occurs where the defendant directly and intentionally interferes with Goods which are in the possession of another.

This includes conversion (stealing of goods)

Front 8

Define trespass to land

Back 8

Trespass to land is the direct interference with land which is in the possession of another.

Actionable per se and no damage need occur but must be intentional

Front 9

Name the 3 forms that trespass to land takes

Back 9

1. Unlawful entry onto land of another

2. Unlawfully remaining on land of another

3. Unlawfully placing or throwing any material object upon the land of another

Front 10

Define the term Negligence

Back 10

Negligence is essentially a failure to take care in circumstances where the law demands that care should be taken giving rise to a claim for damages by the person who suffers harm as a result

Front 11

Name the 3 essentials for an action in negligence to succeed

Back 11

1. A duty of care owed to claimant by defendent

2. A breach of that duty by defendent

3. Damage suffered as a result

Front 12

Donoghue v. Stevenson (1932)

Back 12

- General principle of duty of care was established (manufacturer owed consumer duty of care).

Front 13

What did the Neighbour Test/Principle establish?

Back 13

That the duty of care needs to be one that is reasonable foreseeable. I.e. a duty of care is owed to another person if it is reasonably foreseeable that they will be affected by one's acts or omissions

Front 14

Breach of duty

Back 14

Defendant fails to do what a reasonable man would have done in the circumstances, or does what a reasonable man would not have done. I.e fails to make reasonable precautions

Front 15

What did the Hedley Byrne Rule establish?

Back 15

This is one surrounding negligent misstatement and liability arises under this rule when:

- there is a special relationship between the parties (but not a contract) where it is reasonable for the claimant to rely on the advice given

- the giver of the advice can reasonably foresee that the advice is likely to be acted upon and that the recipient is likely to suffer if it is inaccurate

- the advice is, in fact, acted upon, causing loss to the claimant

Front 16

Is a defendant liable for Economic (or financial) loss?

Back 16

- yes, where economic or financial loss accompanies physical damage and results directly from it, the defendant is liable for such loss, provided the economic loss is not too remote.

- note, the courts have been reluctant to allow claims in tort for pure economic loss (losses not accompanied by damage) (apart from that noted in the Hedley Byrne case)

Front 17

Can people sue in negligence for psychiatric illness?

Back 17

A person who suffers bodily injury will always be allowed to recover damages for any psychiatric harm that accompanies it

Front 18

When can a person sue for psychiatric illness when there is no bodily injury?

Back 18

1. Nervous shock cases

- primary victims (persons who suffer shock through fear of own safety

- secondary victims (persons who suffer shock through fear of safety of others)

The latter requires close tie of affection and love, must have been close to incident in both space and time and must have been witnessed through their own unaided senses

2. Stress at work

3. Phobia

Front 19

What two forms can Nuisance take?

Back 19

- public nuisance

- private nuisance

Front 20

What is Public Nuisance?

Back 20

- the carrying out of an activity which is likely to cause inconvenience or annoyance to the public, or a section of the public, or interference with the right common to all

- is treated as a crime because it affects public at large

Front 21

What is Private Nuisance?

Back 21

An unlawful interference with a person's use or enjoyment of their land

Includes noxious things escaping and interference with rights of way/lights/land and damage must occur for interference to be actionable

Front 22

What factors are assessed when considering whether interference in nuisance is reasonable?

Back 22

1. Continuity or repetition of interference

2. Locality (next to ones property)

3. Must not be sensitive

4. If malice involved then may be deemed unreasonable.

Hint 22

There are 4

Front 23

What are the defences and remedies for nuisance?

Back 23

Defences

- Prescription Act 1832 (must habe been a nuisance for 20 years)

- no defence that 'the claim came to the nuisance'

- no defence to claim that the activity is a benefit to the community

Remedies

- damages

- injunction

- employment of reasonable 'self help' to stop nuisance

Front 24

What rule did Rylands v Fletcher create?

Back 24

The rule of strict liability where liability can arise even where there is no fault or negligence.

Front 25

What two points must apply in the rule of Rylands v Fletcher?

Back 25

1. There must be an escape of the damage causing 'thing' from the defendant's land (electricity, gas, fire, sewage, explosive and anything unnatural)

2. There must be non-natural use of land (storage of water, gas, operation of fairground, blowlamps to thaw pipes and storage of flammables in a barn)

Front 26

What defences are available in the rule of Rylands v Fletcher?

Back 26

1. Consent of the claimant

2. Act of God

3. Unexpected act of stranger

4. Statutory Authority

Hint 26

There are 4

Front 27

What 5 points does the claimant need to establish to succeed in an action for breach of statutory duty?

Back 27

1. That the statute was intended by Parliament to allow a civil remedy

2. The statute must impose a duty on the defendant and not merely a power

3. The claimant must prove that the statutory duty was owed to them

4. There must be a breach of the duty by the defendant

5. The damage suffered by the claimant must be caused by the breach and be of a kind which was contemplated by the statute

Front 28

An employer must take reasonable care to:

Back 28

1. Select competent staff

2. Provide and maintain proper plant, premises and equipment

3. Provide safe system of work

Front 29

What penalties can be given to employers for not complying with the health and safety at work etc act 1974?

Back 29

- criminal penalties

- unlimited fines

- imprisonment up to two years

Front 30

What is vicarious liability?

Back 30

When one person is held liable for the wrongs committed by another (master and servant)

Front 31

What was the purpose of the Occupiers liability Act 1957?

Back 31

To create a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there

Front 32

What was the purpose of the Occupiers Liability Act 1984?

Back 32

- extend the duty of care to trespassers and other uninvited entrants, however

- a duty is owed only if the occupy knows or has reasonable grounds to believe that the danger exists and the trespasser is/may come into its vicinity

- the risk must also be one against which the occupier may reasonably be expected to offer a trespasser some protection

Front 33

What is an action in tort for defective products based on?

Back 33

1. Negligence (any person who suffers harm due to defective product can sue)

2. Consumer Protection Act 1987 (strict liability for defective products originally from an EC Directive). Liable for personal injury or damage over £275 to property used for private purposes

Front 34

Define defamation

Back 34

A false statement about a person which causes injury to that person's reputation

Front 35

Define libel and whether there needs to be proof of damage or not

Back 35

Libel is where the defamatory statement is in a permanent form.

Libel has always been actionable per se (without proof)

Front 36

Define slander and whether there needs to be proof of damage or not

Back 36

Slander is where the statement is in a transient (non-permanent) form.

Slander is not generally actionable per se and damage must be proved

Front 37

Name the essentials of defamation

Back 37

1. A defamatory statement

2. Reference to the claimant

3. Publication of the defamatory statement

4. Damage in cases of slander not actionable per se

Hint 37

There are 4

Front 38

Name the defences in defamation

Back 38

- truth

- honest opinion

- publication on a matter of public interest

- innocent defamation

- privilege

Hint 38

There are 5

Front 39

Name the 6 defences in tort

Back 39

1. Self-defence

2. Necessity

3. Statutory authority

4. Consent and volenti non fit injuria (no legal wrong is done to a person who consents)

5. Contributory negligence

6. Reduction of liability

Front 40

What are the main limitation periods for claims based in tort and set out by the Limitation Act 1980?

Back 40

- one year where the claim is for libel and slander

- 3 years for personal injury

- six years for most other tort actions

Front 41

Name the 5 types of categories of Damages in tort

Back 41

1. Special damages (precise financial assessment

2. Aggravated damages (I.e. damage to dignity and pride on top of injury)

3. Exemplary (punitive) damages (exceed loss as punishment)

4. Nominal damages

5. Contemptuous damages (low opinion of claim)

Front 42

Define damage in a remedy of tort

Back 42

An award of Damages is to compensate the claimant by paying for the loss which the defendant has caused by their wrongful act

Front 43

Name the two types of injunction

Back 43

1. Prohibitory

2. Mandatory