W200 Exam Review, Unit 14 Tort 2

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G tortious principles

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What refers to the circumstances in which one person can be made liable in tort for the actions of another

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principles of vicarious liability

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What refers to where more than one person is potentially liable in respect of the same tort

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multiple tortfeasors

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vicarious liability is the liability of

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one person for a tort or torts committed by another.

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vicarious liability is especially relevant in cases where

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employers are held responsible for the actions of their employers

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Employers are responsible if it is shown

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(i) that the other person was an employee (as opposed to an independent contractor)

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(ii) who has committed the tort

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(iii) in the course of his employment

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What refers the relationship between employer and employee

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contract of service

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What refers to the relationship between a independent contractor and a company

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contract for services

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What refers to the situation where an employee and employer may be liable

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course of employment

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wrongs are within the course of employment if:

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(i) expressly or impliedly authorised by the employer

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(ii) is an unauthorised manner of doing something which is unauthorised, or

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(iii) is necessarily incidental to something which the employee is employed to do

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What refers to when a employee does something that is outwith his course of employment

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A frolic of his own'

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What refers to the right of the claimant to claim all the compensation from one party involved or divided between multiple defendants

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Claimants rights

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the right of one tortfeasor to claim compensation form another torfeasor is called

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Rights between tortfeasors

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What section of the Civil Liability (Contribution) Act 1978 states a person liable for any damage suffered by another person (the claimant) may recover a contribution from any other person liable for the same damage

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Section 1

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H Exemption from liability

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What is a clause inserted into a contract intended to exclude or limit liability for breach of that contract called

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an exemption or exclusion clause

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What refers to whether there has been any real breach of contract

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Establishing liability

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Although freedom of contract allows whatever terms to be put into contract judges through common law and the Unfair Contracts Terms Act 1977 have tried

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to restrict terms which exempt liability

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Common law tests refers to

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the guidlines for defining whether an exemption exists or not which are:

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(i)incorporation

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(ii) construction

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4 Unfair Contract Terms Act 1977

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What deals with exemption clauses in contracts

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UCTA 1977

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under the UCTA 1977 an exemption clause can sometimes be automatically void or valid if

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the defendant proves it to be reasonable

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always define the breach of contract first when

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looking at the validity of an exemption

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What section of the UCTA defines what an exemption clause is

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s13

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under the UCTA 1977 on the party relying on the clause has

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the burden of proof

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any breach of any obligation arising from the express or implied terms of of a contract to take reasonable care or exercise reasonable skill is defined as negligence under sections

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s1 and s2

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What section provides that it is impossible to exclude or restrict liability for death and personal injury resulting from negligence

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s2 (1)

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What section provides that other damage may be excluded if the exemption is proved reasonable

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s2 (2)

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faulty goods which result in injury do not automatically come under

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negligence and s2

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What section relates to clauses realting to sale of goods

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s6

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What section is applied in cases which involve injury and but do not involve negligence

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s6

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s6 does not depend on injury or damage but only that the buyer is a

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consumer

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What section voids any clause relating to the SGSA 1982 where the problem is found in the goods themselves and if the claimant 'deals as consumer'

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s7 of the UCTA

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in a case of personal injury you must define what caused the breach e.g:

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Lack of reasonable care and skill in the performance of the contract s2 or

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unsatisfactory goods, only where the claimant was a consumer s7

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What refers to the technical term for ownership of goods

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Title

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What section is applied in cases of loss and damage which deal with the reasonableness of any exemption term

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s11

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s12 defines

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someone deals as consumer:

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(i) he does not make the contract in the course of a business or hold himself out as doing so

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(ii) the other party does make a contract in the course of a business

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(iii) if the contract is a sale of goods or hire-purchase contract (both governed by s7 of the UCTA 1977, the goods are of a type ordinarily supplied for private use or consumption

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I Remedies and enforcement

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A victim of 'breach of contract' will have to prove:

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(i) that the breach of contract caused the loss suffered (principle of causation)

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(ii) that the loss which was suffered was not too remote (principle of remoteness of damage)

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What refers to the need to prove that a breach of contract caused them loss

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Causation

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What refers to the limit of damages that can be claimed in proportion to actual lossess incurred

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Remoteness

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What refers to the responsibility of the victim to make a reasonable claim

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Mitigation

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What refers to the possibility of claiming damages in certain types of contract i.e. service elements for distress or disappointment

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Compensation for 'distress'

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What refers to the law on guarantee providing that a written guarantee is legally binding

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Manufacturers' guarantees

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What provides that a buyer can sue the credit card company in addition to, or even instead of the supplier of the goods and services

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s75 of the CCA 1974