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115 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Tortfeasor |
A person who commits a tort, whose liability is tortious |
Gives rise to a claim in the civil courts |
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Example of when an unrecognised harm claim fails |
Bradford v. Pickles [1895], where Pickles maliciously drained his land and the House of Lords refused to grant an injunction |
Dry reservoir |
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ECHR 2, 5, 6, 8, 10 |
2 - Right to life 5 - Right to liberty 6 - Right to a fair trial 8 - Right to respect for private and family life 10 - Right to freedom of expression |
12 - Right to marry |
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HRA 1998 enforcement chain |
s 6 provides that it is unlawful for a public authority (including courts) to act incompatibly with the ECHR
s 7 allows a victim to bring proceedings against a public body
s 8 gives the court power to award a remedy |
Do right, can claim, can remedy |
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HRA 1998 enforcement chain |
s 6 provides that it is unlawful for a public authority (including courts) to act incompatibly with the ECHR
s 7 allows a victim to bring proceedings against a public body
s 8 gives the court power to award a remedy |
Do right, can claim, can remedy |
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Parents and guardians liability for child's actions |
Litigation Friends are not legally or financially liable for the torts of their children |
Don't sue poor children |
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Parents and guardians liability for child's actions |
Litigation Friends are not legally or financially liable for the torts of their children |
Don't sue poor children |
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How to sue a collection of individuals that call themselves a partnership or firm |
Procedural litigation rules allow you to sue or to be sued in the partnership's name |
Act as a firm to be sued as a legal personality |
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Parents and guardians liability for child's actions |
Litigation Friends are not legally or financially liable for the torts of their children |
Don't sue poor children |
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How to sue a collection of individuals that call themselves a partnership or firm |
Procedural litigation rules allow you to sue or to be sued in the partnership's name |
Act as a firm to be sued as a legal personality |
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How soon must claims in tort be commenced? |
Six years as set out in the Limitation Act 1980
Defamation is one year
Personal injury three years |
Limitation periods |
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Parents and guardians liability for child's actions |
Litigation Friends are not legally or financially liable for the torts of their children |
Don't sue poor children |
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How to sue a collection of individuals that call themselves a partnership or firm |
Procedural litigation rules allow you to sue or to be sued in the partnership's name |
Act as a firm to be sued as a legal personality |
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How soon must claims in tort be commenced? |
Six years as set out in the Limitation Act 1980
Defamation is one year
Personal injury three years |
Limitation periods |
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How late can a child make a claim in tort? |
The relevant period of time starts when the child reaches 18 years of age |
Under 18 claimant |
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When an employee commits a tort in the course of his employment |
Vicarious liability allows any injured party to sue the tortfeasor's employer as well as or instead of the employee |
Company car |
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The neighbour principle |
Lord Atkins said in Donoghue v Stephenson [1932] that: 1. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. 2. Neighbours are so closely and directly affected by my act that I ought to reasonably have them in my contemplation |
Reasonable care of closely and directly affected neighbours |
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Caparo Industries v Dickman [1990] three duty of care points |
1. Reasonable foresight of harm 2. Sufficient proximity of relationship 3. Fair, just and reasonable to impose a duty |
Add one to Donoghue v Stevenson |
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Five typical policy considerations regarding duty of care |
1. Floodgates 2. Deter others 3. Resources of defendant 4. Public benefit (like "safer") 5. Uphold law (regardless) |
Soft guidance |
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Rescuer and rescued's duty of care |
Rescuer does not have to act unless there is proximity. The rescuer must then not make things worse
The rescued does have a duty of care if it is foreseeable that someone would attempt a rescue. |
Police in the tunnel |
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Rescuer and rescued's duty of care |
Rescuer does not have to act unless there is control. The rescuer must then not make things worse
The rescued does have a duty of care if it is foreseeable that someone would attempt a rescue. |
Police in the tunnel |
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Four checks for duty of care |
1. Claimant must show the defendant owes a duty of care 2. Use case law precedent if available 3. For novel cases, use Caparo (foresight, proximity, fair) 4. Generally no duty with omissions, except Dorset Yacht control |
How is it my problem? |
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Two-stage breach test |
1. Law. How should the defendant have acted (what standard of care)?
2. Fact. Did the defendant's conduct fall below the required standard? |
Should have / did |
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Reasonable person |
Average person, objectively seen.
Not subjective "she is always like that".
Reasonable in the defendants position (child, wheelchair or electrician). |
Joe or Mr Average |
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Is impecuniosity a defence? |
No, lack of resources is not a defence for failing to exercise reasonable care |
No cash |
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Is impecuniosity a defence? |
No, lack of resources is not a defence for failing to exercise reasonable care |
No cash |
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Three conditions for rep ipsa loquitur (the thing speaks for itself) |
1. Defendant in control 2. Abnormal event unless negligence 3. No direct evidence |
Bag of sugar from hoist (Scott v London [1865]) |
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Battery |
Intentional direct application of unlawful force to another person |
Not accidentally bounced |
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Assault |
Intentional act that causes another person to reasonably apprehend the immediate infliction of a battery upon him |
Reasonably apprehend |
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Scare with effect |
Wilkinson v Downton [1897]
Evil joke backfired when claimant suffered physical consequences
Law changed to introduce new tort |
New cause of action |
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Scare with effect |
Wilkinson v Downton [1897]
Evil joke backfired when claimant suffered physical consequences
Law changed to introduce new tort |
New cause of action |
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'Similar in type' |
Hughes [1963] showed that leaving paraffin lamps where children might play gives rise to reasonably foreseeable burn injury risks
The children were unlucky, but it was reasonably foreseeable that young Mr Hughes might somehow get burned |
Paraffin manhole explosion |
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Three questions for causation of damage |
Negligence caused harm (fact)
No intervening act
Not too remote |
But for broken chains, so long |
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But for |
But for the breach of duty of care - no harm. Causation.
But for breach, harm anyway? No causation. |
Necessarily satisfied or failed |
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But for |
But for the breach of duty of care - no harm. Causation.
But for breach, harm anyway? No causation. |
Necessarily satisfied or failed |
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Divisible injury / proportionate damages |
Holtby v Brigham and Cowan [2000]
Material contribution made the judge apportion damages to be paid by length of time per employer |
Asbestos |
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Indivisible injury: full damages |
Multiple negligent entities cause one harm. Sue one of them only to recover the full amount.
If multiple people are responsible, the court can apportion damages based on share of responsibility between the defendants |
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Indivisible injury: full damages |
Multiple negligent entities cause one harm. Sue one of them only to recover the full amount.
If multiple people are responsible, the court can apportion damages based on share of responsibility between the defendants |
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Compensation Act 2006 s 3 |
Defendants found liable for mesothelioma are each liable for the whole amount (usual apportionment among defendants afterwards).
Perhaps stretchable towards additional cases of scientific uncertainty in the future |
Material increase is strictly limited to scientific uncertainty |
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Indivisible injury: full damages |
Multiple negligent entities cause one harm. Sue one of them only to recover the full amount.
If multiple people are responsible, the court can apportion damages based on share of responsibility between the defendants |
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Compensation Act 2006 s 3 |
Defendants found liable for mesothelioma are each liable for the whole amount (usual apportionment among defendants afterwards).
Perhaps stretchable towards additional cases of scientific uncertainty in the future |
Material increase is strictly limited to scientific uncertainty |
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Basic factual causation claim |
1. Claimant must prove breach caused loss.
2. But for:
But for the breach, would there be this loss?
That's usually sufficient. |
Simple for most cases |
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Advanced partial factual causation |
Modified test applied to show that the defendant's breach materially contributed to loss.
It is a scientific exception only. |
Exception. Strictly confined to scientific uncertainty |
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Advanced partial factual causation |
Modified test applied to show that the defendant's breach materially contributed to loss.
It is a scientific exception only. |
Exception. Strictly confined to scientific uncertainty |
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Multiple factual causation |
If there are multiple causes to one harm:
- If divisible harm, apportioned damages like Bonnington's grinder and hammer
- If indivisible, recover from one defendant. Then the Civil Liability (Contribution) Act [1978] applies between defendants |
Grinder/hammer or recover fully from the rich |
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The Civil Evidence Act 1968 s11 |
A defendant who has been convicted of a criminal offence is subsequently presumed to have committed said offence in civil proceedings |
Criminal proceedings provide starting points for civil proceedings |
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Four points to summarise proof of breach |
1. Claimant has the burden of proving that the defendant was negligent
2. Prove on balance of probabilities
3. In limited circumstances, res ipsa loquitur
4. If available, relevant criminal conviction |
Essential elements |
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Four elements of a Negligence claim |
1. Duty of care
2. Breach of duty
3. Causation of damage
4. Defences |
Basic structure for all Negligence claims |
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Civil Liability (Contribution) Act 1978 ss 1(1) and 2(1) |
One full claim from one defendant
Where multiple persons are responsible for the same damage, the court can apportion damage
Applies only between defendants |
Does not affect damages recovered by the claimant |
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Holtby v Brigham and Cowan [2000] |
The defendant employer in Holtby argued that it should only be responsible for a proportion of harm.
The court agreed |
Claimant must sue each defendant |
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The standard case for remoteness of damage |
The Wagon Mound (No 1) [1961]
Would a reasonable person have foreseen it? Who knew the Sydney harbour oil slick would ignite? |
Should have guessed |
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'Egg-shell skull' |
Take your victim as you find him.
Slight injury - tetanus - allergy. |
Not my fault I have a high salary |
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Three elements of causation of damage |
Factual causation - 'But for' test - Modified test: Material contribution Intervening acts Remoteness of damage |
Three main causation considerations |
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Three elements of causation of damage |
Factual causation - 'But for' test - Modified test: Material contribution Intervening acts Remoteness of damage |
Three main causation considerations |
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1 + 3 elements of causation of damage |
Factual causation - 'But for' test - Modified test: Material contribution Intervening acts Remoteness of damage |
Three main causation considerations |
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Four defences to Negligence |
1. Voluntary assumption of risk 2. Illegality 3. Excluding liability 4. Contributory negligence |
I would break the law to avoid being involved |
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Four defences to Negligence |
1. Voluntary assumption of risk 2. Illegality 3. Excluding liability 4. Contributory negligence |
I would break the law to avoid being involved |
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Voluntary assumption of risk |
1. The claimant had full knowledge of the nature and extent of the risk
2. The claimant willingly consented to accept the risk of being injured due to the defendant's negligence |
He knew she might harm him |
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Voluntary assumption of risk as a defence |
1. The claimant had full knowledge of the nature and extent of the risk
2. The claimant willingly consented to accept the risk of being injured due to the defendant's negligence |
He knew she might harm him |
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Two classic cases of not voluntary risk |
Employees (knowing the risk is not consent)
Rescuers (predictably did their duty / legal social moral) |
Dependable duty |
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Illegality as defence |
No action arises from a disgraceful act
A negligent getaway car driver is not liable to his fellow burglar |
Blow lock off safe |
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Excluding liability as defence |
"No liability is accepted for ..." |
Pub notice |
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Contributory negligence as defence |
Partial defence based on facts |
"Both as bad as each other" |
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Contributory negligence as defence |
Partial defence based on facts X |
"Both as bad as each other" |
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How to claim if someone else is contributorily negligent |
Claim under the Civil Liability (Contributions) Act [1978] to involve non-participants |
Parents negligence contributed to child's negligence |
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Duty of care - Established duty - Novel duty test? |
Caparo v Dickman [1932] 1. Reasonable foresight of harm 2. Sufficient proximity of relationship 3. Fair, just and reasonable to impose a duty |
3 point neighbour principle |
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Breach of duty Test? |
Breach a standard of care which is that of a reasonable person in the defendants position |
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Breach of duty Test? |
The claimant must show a breach of a standard of care which is that of a reasonable person in the defendants position |
Balance of probabilities |
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Breach of duty Test? |
Breach a standard of care which is that of a reasonable person in the defendants position - on balance of probabilities |
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Causation of damage - Causation in fact Basic test? Modified test? |
Basic test: But for is usually sufficient
Modified test: Material contribution.
1. Divisible means courts apportion damages 2. Indivisible means recovering in full from one claimant and the defendants then using the Civil Liabilities (Contribution) Act [1978] |
But for a Divided or Indivisible |
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Causation of damage - Causation in fact Basic test? Modified test? |
Basic test: But for is usually sufficient
Modified test: Material contribution.
1. Divisible means courts apportion damages 2. Indivisible means recovering in full from one claimant and the defendants then using the Civil Liabilities (Contribution) Act [1978] |
But for a Divided or Indivisible |
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Causation of damage - Causation in fact Basic test? Modified test? |
Basic test: But for is usually sufficient
Modified test: Material contribution.
1. Divisible means courts apportion damages 2. Indivisible means recovering in full from one claimant and the defendants then using the Civil Liabilities (Contribution) Act [1978] |
But for a Divided or Indivisible |
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Causation of damage - Causation in fact Basic test? Modified test? |
Basic test: But for is usually sufficient
Modified test: Material contribution.
1. Divisible means courts apportion damages 2. Indivisible means recovering in full from one claimant and the defendants then using the Civil Liabilities (Contribution) Act [1978] |
But for a Divided or Indivisible |
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Causation of damage - New intervening act Act of third party test? Act of claimant test? |
If the third party action was a likely consequence, the chain of causation is unbroken
If the claimants action was not entirely unreasonable, it does not break the chain of causation |
Police tunnel and walking down stairs in a neck brace |
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Causation of damage - Remoteness of damage Basic test? Proviso 1? Proviso 2? |
Wagon Mound (No 1) [1961] oil spill: If a reasonable person would not have foreseen the damage, it cannot be recovered
Proviso 1: Similar in type
Proviso 2: Egg-shell skull |
Don't leave harbour oil near firelighters and people who easily get cold |
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Causation of damage - Remoteness of damage Basic test? Proviso 1? Proviso 2? |
Wagon Mound (No 1) [1961] oil spill: If a reasonable person would not have foreseen the damage, it cannot be recovered
Proviso 1: Similar in type
Proviso 2: Egg-shell skull |
Don't leave harbour oil near firelighters and people who easily get cold |
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Economic loss unconnected to physical damage to the claimants person or property can be either: |
Economic loss caused by damage to the property of a third party; or
Economic loss caused where there is no physical damage. |
I missed the train due to someone else's accident and had to buy a new ticket |
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Why can I not recover my loss if you damage someone else's property and that causes economic loss for me? |
Because no duty of care is owed |
Pure economic loss |
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When does a duty of care arise in a case of negligent statements that lead to pure economic loss? |
Hedley Byrne v Heller [1964] established that a duty of care is owed if there is a special relationship:
1. An assumption of responsibility by the defendant
2. Reasonable reliance by the claimant |
Personal advice |
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What four criteria should be satisfied for a defendant to have assumed a responsibility towards a claimant? |
Caparo v Dickman [1990]:
1. The adviser knew the purpose for the advice
2. The adviser knew the advice would be communicated
3. The adviser knew the advisee was likely to act without independent inquiry
4. The advisee acted on the advice to its detriment
Was it reasonable for the claimant to rely on the advice? |
Know the likely chain of events |
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Example of a negligent statement to a third party causing a breach of duty of care |
Spring v Guardian [1994]:
The claimant asked for a reference from an ex-employer to be given to a prospective employer.
The ex-employer incurred a duty of care by accepting and performing the task |
References |
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What prevents businesses from unreasonably excluding liability? |
Unfair Contract Terms Act [1977]:
1. Cannot exclude liability for death or personal injury
2. Can disclaim liability for other damage, providing the disclaimer is reasonable |
Too wide is unreasonable |
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What prevents businesses from unreasonably excluding liability? |
Unfair Contract Terms Act [1977]:
1. Cannot exclude liability for death or personal injury
2. Can disclaim liability for other damage, providing the disclaimer is reasonable
Reasonable ... equal bargaining power ... alternatives possible ...amount of money |
Too wide is unreasonable |
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How to view economic loss caused by acquiring a defective item of property |
Murphy v Brentwood [1990]
Pure economic loss. No duty of care in cases like the local authority's negligence causing Maria's swimming pool to leak |
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How to view economic loss caused by acquiring a defective item of property |
Murphy v Brentwood [1990]
Pure economic loss. No duty of care in cases like the local authority's negligence causing Maria's swimming pool to leak |
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How to view economic loss unconnected to physical damage to the claimants person or property, caused by damage to 3rd party property |
Spartan Steel v Martin [1973]
Spartan did not own the cable, and could not recover for losses caused by the electricity being off |
Damage to my property means we are close |
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How to view economic loss unconnected to physical damage to the claimants person or property, caused without physical damage |
Actions: Weller v Foot & Mouth Virus caused closure, not physical, no recovery
Statements: Hedley and Caparo Journalist, not physical
Extension of special relationship: Spring v Guardian Undertake a responsibility, close, recover |
Indirect, disclaimers, just for you |
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To recover for pure psychiatric harm, the injury must be one plus one of two things: |
Caused by sudden shock; and either
a medically recognised psychiatric illness; or
a shock-induced physical condition (e.g. heart attack).
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Not gradual depression |
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Definition of primary and secondary victims of psychiatric harm |
A primary victim was in the actual area of danger and reasonably believed he was in danger
A secondary victim witnessed injury and feared for another person |
I felt hurt, or he felt hurt |
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Definition of primary and secondary victims of psychiatric harm |
A primary victim was in the actual area of danger and reasonably believed he was in danger
A secondary victim witnessed injury and feared for another person |
I felt hurt, or he felt hurt |
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Two foreseeable requirements for there to be a duty of care to primary victims of pure psychiatric harm |
Foreseeable risk of physical injury
Foreseeable or not foreseeable risk of psychiatric harm |
Put at risk, taken as he is |
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Four foreseeable requirements for there to be a duty of care to secondary victims of pure psychiatric harm |
Foreseeability of psychiatric harm
Proximity of relationship
Proximity in time and space
Proximity of perception (own senses) |
Did you hear about my friend? |
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Compensatory damages Two segmentations |
Special (precise) and General (future and not definitive)
Pecuniary and Non-pecuniary Losses |
NPV Ogden |
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Law Reform Act 1934 effect on claims after death |
Existing causes of action continue after death, on behalf of his estate, except:
A. Claims in defamation B. Claims for bereavement damages C. Claims for loss of income by the deceased |
Claimant or defendant is no more |
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Fatal Accidents Act 1976 |
As of then, claims can be made:
A. On behalf of dependants B. For bereavement (limited) C. For funeral expenses |
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Compensatory damages Two segmentations |
Special (precise) and General (future and not definitive)
Pecuniary and Non-pecuniary Losses |
NPV Ogden |
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Law Reform Act 1934 effect on claims after death |
Existing causes of action continue after death, on behalf of his estate, except:
A. Claims in defamation B. Claims for bereavement damages C. Claims for loss of income by the deceased |
Claimant or defendant is no more |
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Fatal Accidents Act 1976 |
As of then, claims can be made:
A. On behalf of dependants B. For bereavement (limited) C. For funeral expenses |
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Under which statute are most employers required to take out insurance against claims by employees? |
Employers' |
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Compensatory damages Two segmentations |
Special (precise) and General (future and not definitive)
Pecuniary and Non-pecuniary Losses |
NPV Ogden |
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Law Reform Act 1934 effect on claims after death |
Existing causes of action continue after death, on behalf of his estate, except:
A. Claims in defamation B. Claims for bereavement damages C. Claims for loss of income by the deceased |
Claimant or defendant is no more |
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Fatal Accidents Act 1976 |
As of then, claims can be made:
A. On behalf of dependants B. For bereavement (limited) C. For funeral expenses |
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Under which statute are most employers required to take out insurance against claims by employees? |
Employers' Liability (Compulsory Insurance) Act 1969 |
Employer should have the means to pay |
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Two areas of employer liability in tort in respect of employees |
1. Liability in Negligence for breach of personal duty
2. Vicarious liability for employee tort in the course of employment |
Take care and hope for no damage |
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Three employer common law duties towards employees |
Wilson & Clyde Coal v. English 1937:
1. Competent staff 2. Adequate material 3. Proper system of work and supervision
Plus from 1953:
4. A safe place of work |
No delegation and Teflon shoulders |
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Compensatory damages Two segmentations |
Special (precise) and General (future and not definitive)
Pecuniary and Non-pecuniary Losses |
NPV Ogden |
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Law Reform Act 1934 effect on claims after death |
Existing causes of action continue after death, on behalf of his estate, except:
A. Claims in defamation B. Claims for bereavement damages C. Claims for loss of income by the deceased |
Claimant or defendant is no more |
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Fatal Accidents Act 1976 |
As of then, claims can be made:
A. On behalf of dependants B. For bereavement (limited) C. For funeral expenses |
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Under which statute are most employers required to take out insurance against claims by employees? |
Employers' Liability (Compulsory Insurance) Act 1969 |
Employer should have the means to pay
Does not protect contractors |
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Two areas of employer liability in tort in respect of employees |
1. Liability in Negligence for breach of personal duty
2. Vicarious liability for employee tort in the course of employment |
Take care and hope for no damage |
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Three employer common law duties towards employees |
Wilson & Clyde Coal v. English 1937:
1. Competent staff 2. Adequate material 3. Proper system of work and supervision
Plus from 1953:
4. A safe place of work |
No delegation and Teflon shoulders |
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Hatton guidelines for employer's duty of care for stress at work |
If injury to health through stress at work is reasonably foreseeable, then:
1. Nature and extent of work 2. Signs from employee at face value |
Personal problems not an employer's duty |
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After establishing an employer's duty of care; which three shall be considered? |
Causation
Novus actus interveniens
Remoteness |
Apply usual tests |
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Three ways a defendant can interfere with a claimant's use of land |
1. Dispossession, like squatting (trespass to land)
2. Direct interference with possession, like fishing (trespass to land)
3. Indirect interference with land, like fumes (nuisance) |
Squatter fishes and sings |
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Show these two things as the basis for a private nuisance claim: |
1. There is interference with the claimant's use and enjoyment of land
2. The interference is unlawful |
Mess with some rights I enjoy over land - and do it unlawfully |
