TORT

Question 1

CAUSATION IN FACT- WHAT IS THE BUT FOR TEST AND WHEN DO YOU USE IT?

Answer 1

FOR CAUSATION OF DAMAGE

• BUT FOR D’S ACTIONS, WOULD THAT THING HAVE HAPPENED

Question 2

what is the standard of proof in a negligence case

Answer 2

on a balance of probabilities- so more likely than not

Question 3

what happens to damages if there are 2 people that contributed to the injury

Answer 3

• damages are apportioned between them
• so if one person is 90% to blame and someone else is 10% to blame, they pay in those proportions

Question 4

when is something considered an intervening act?

• instinctive interventions
• negligent intervention of a third party
• reckless or intentional intervention of 3rd party
• actions of the claimant

Answer 4

chain of causation broken

• does not break
• unlikely to break if D should have seen it as a likely consequence
• more likely to break chain- but not if there was a relationship between D and C
• only breaks chain if C’s actions are unreasonable

Question 5

remoteness of damage- what is the rule for when damage is seen as too remote

Answer 5

can’t be blamed for it
- if a reasonable person would not have foreseen the damage it cannot be recovered

Question 6

what are the two exceptions to the ‘remoteness of damage’ rule?

Answer 6

• egg shell skull- take your victim as you find him- Jehovahs witness etc
• similar in type rule-

Question 7

what is the test for factual causation if there are 2 separate simultaneous torts

Answer 7

• did D make a material contribution to the damage caused

Question 8

PURE ECONOMIC LOSS- what types of losses are not recoverable under this

Answer 8

economic loss caused by:
- acquiring a defective item or property
- damage to the property of a third party
- where there is no physical damage (actions/statements)
- unconnected to a personal injury to the claimant or physical damage to claimants property

Question 9

negligent statements- exceptions to general rule you can’t claim for PEL

Answer 9

• when there is a special relationship between C and D
• criteria:
• did D assume responsibility
• did D know the purpose for the advice
• did D know C would get the info
• did D know C would act on advice without independent research
• was advice acted on by C to their detriment
• was it reasonable for C to rely on D for advice

Question 10

what do you have to show you suffered for psychiatric injury

Answer 10

either
- a medically recognised psych illness
or
- a shock-induced physical condition

Question 11

primary victim- psych illness

Answer 11

• actually involved in the incident (in the area of danger or reasonably believed they were in danger)
• risk of injury has to be foreseeable

Question 12

secondary victim criteria- psych illness

Answer 12

• foreseeability of harm
• proximity of relationship
• proximity in time and space
• proximity of perception
• actual psych illness

Question 13

employers common law duty- need to take reasonable steps to provide… 4 things

Answer 13

• competent staff
• adequate material
• a proper system of work and supervision
• a safe place of work

Question 14

employers liability- when is an employer liable for incompetent staff

Answer 14

• if the employer knows about the incompetence and or ought to reasonably know about it

Question 15

employers liability- if someone blames their employer for stress caused by the job but the employer had checked on them and offered solutions- is the employer liable?

Answer 15

no- can take staff’s word at face value and if they said they were fine then they don’t have to take any further steps

Question 16

employers liability- duty of the employer to take such steps that are..

Answer 16

reasonable

Question 17

employers liability defences

Answer 17

• cont neg
• consent (voluntary assumption of risk)

Question 18

complete defence examples

Answer 18

• consent
• illegality
• if proven then no compensation is owed

Question 19

what needs to be proven for consent to apply

Answer 19

• claimant had full knowledge of the nature and extent of risk
• and
• claimant willingly consented to accept the risk of being injured due to claimants negligence

Question 20

what needs to be proven for illegality to succeed

Answer 20

• there is a very close connection between the illegal activity of the claimant and the injury they suffer
• so that the damage arises directly out of the illegal activity in a way that it would be contrary to public policy to give them a remedy

Question 21

partial defence example

Answer 21

• cont neg

Question 22

what needs to be proven for cont neg to succeed

Answer 22

d must establish
- carelessness on c’s part
and
- that carelessness contributed to c’s damage

• only c can be contributorily negligent

Question 23

can you prove cont neg if the person gets in a car with a drunk driver

Answer 23

yes as long as they reasonably should have known

Question 24

what are the 3 things that a lawyer should consider before advising a client in tort

Answer 24

• which tort deals with the kind of harm this c has suffered?
• what do they have to prove to establish a claim?
• what remedy can they expect to obtain?

Question 25

- what is a non pecuniary loss? - and what makes up a non-pecuniary loss? - what type of damages are they?

Answer 25

- not capable of being calculated in money terms- main example of this is the personal injury - made up of pain and suffering, and loss of amenity - general

Question 26

can you claim for pain and suffering if unconscious?

Answer 26

- no you have to be aware of it

Question 27

pain and suffering vs loss of amenity- objective or subjective tests?

Answer 27

- p and s - subjective - loss of amen- objective

Question 28

what is a pecuniary loss? and example

Answer 28

- capable of mathematical calculation in money terms - loss of earnings/medical bills

Question 29

medical expenses- general damages or special damages?

Answer 29

- pre trial- special- just add them up - post trial- general- have to guess

Question 30

what is the formula for working out future loss of earnings

Answer 30

multiplier (years they would have worked for) x multiplicand (current salary)

Question 31

what can the estate of the deceased claim for if the deceased was in the middle of a claim when they died

Answer 31

- deceased non-pec losses to date of death - deceased pec losses to date of death - cost of deceased funeral

Question 32

what can you claim for if someone died due to a tort?

Answer 32

- loss of dependency - have to be financially dependent on deceased - bereavement award - funeral expenses

Question 33

what needs to happen for an employer to be vicariously liable for a tort

Answer 33

- relationship akin to employment - tort committed within the course of this employment - one of five things have to apply

Question 34

What does the employee have to have done for employer to be vicariously liable

Answer 34

- employee carried out wrongful activity that had been authorised - employee carried out wrongful and unauthorised mode of carrying out an authorised act - employee carried out an act expressly prohibited but furthered employers business - employee deviated from instructions but carried out employers business - employee committed intentional tort where there is a close connection to work employed to do

Question 35

occupiers liability act 1957

Answer 35

duty of care is owed automatically by an occupier to a visitor the duty is to make the visitor reasonably safe, not the premises safe

Question 36

occupiers liability act 1984

Answer 36

duty of care doesnt arise automatically and is subject to conditions difficult for a trespasser to reach those conditions only covers injury not property damage

Question 37

what do you have to consider when establishing whether or not there was a doc owed in product liability

Answer 37

- is D a "manufacturer"- can include repairers, installers and suppliers - is the item that caused damage a product - is the claimant a consumer - was there no reasonable possibility of an intermediate examination before the product reached the consumer that would have revealed the defect

Question 38

what do you have to consider when establishing whether or not there was a breach of duty in product liability

Answer 38

- was the D in breach of duty (must reach the standard of a reasonable manufacturer) - consider factors- magnitude of risk, warnings - consider whether the claimant can prove facts on which the court can base an inference of breach

Question 39

5 steps for product liability- negligence

Answer 39

step 1- duty of care owed by manufacturer to a consumer to supply goods in a safe state step 2- must be property damage or PI caused by defective product- can't claim for PEL step 3 - standard of care- reasonable manufacturer step 4- establish factual causation (but for), legal causation (no intervening event) and remoteness (loss must be reasonably foreseeable) step 5- defences- consent and cont neg but can't exclude or limit liability

Question 40

how is the chain of causation broken with product liability

Answer 40

- if the product reaches consumer in a state the manufacturer didn't intend or - if the manufacturer intended the product would be worked on in the supply chain before it reached consumer or - the product was installed incorrectly

Question 41

what do you need in order to establish the elements of a claim in private nuisance

Answer 41

- prop interest in land - show the interference is unlawful - show d is a person liable for the interference

Question 42

what are the types of interference that can be counted as a private nuisance?

Answer 42

- encroachment - indirect physical damage - interference with C's quiet enjoyment of land

Question 43

4 steps for working out if there is a claim for private nuisance

Answer 43

- does c have right to exclusive possession of the land affected? - is the interference unlawful? - causation? - defences?

Question 44

6 questions to satisfy for Rylands v fletcher

Answer 44

- does C have a right to exclusive possession of the land affected? - was the interference due to an isolated escape of something dangerous from D's land? - did D bring something to their land that would cause a nuisance if it escaped? - was there an escape? - was there a non-natural use of D's land? - did the escape cause damage of a foreseeable type? - defences

Question 45

public nuisance- 2 questions to ask

Answer 45

- did D's conduct materially affect the reasonable comfort and convenience of a 'class of their majesty's subjects'? - has C suffered particular harm over and above that suffered by the public at large?

Question 46

can you claim damages for just a loss of profit due to negligence

Answer 46

no if there is no damage to your property

Question 47

do you have a duty to warn against obvious risks

Answer 47

no- under OLA 57 you have to ensure the visitor is safe not the premises - if the risk of injury is obvious and foreseeable by the visitor then no duty to warn against obvious risks

Question 48

if you bring a flammable thing onto your land and it catches fire and the fire spreads, can you be liable under rylands v fletcher

Answer 48

no as you did not bring the fire onto the land- you brought the flammable thing