Fichas
Law of tort: negligence, duty of care and key cases
Fichas del conjunto (58)
- 1What is a Tort?A civil wrong which can be worthy of compensation but not so serious that the Tortfeasor should be punished by the state
- 2Who is the Tortfeasor?The person who has committed the tort
- 3How is the law of tort different from other branches of civil law ie contract and employment?The Tortfeasor and the victim will not necessarily have any prior legal relationship with each other ie they do not know one another
- 4What are the three rules of conduct which the law of tort establishes and explain them?Normative – standard of behaviour
Compensation for the victim – a financial or an equitable remedy ie an injunction
Retribution against the Tortfeaser – tortfeasor’s punishment. - 5What is the significance of Rylands –v- Fletcher?It imposes a liability on a person who brings something on to his land that is “likely to do harm if it escapes”.
- 6Explain negligence, nuisance, trespass and defamation.Negligence – breaches a duty of care in such a way as to cause foreseeable harm to someone else.
Nuisance – not to interfere with someone’s enjoyment of his land.
Trespass – this is unauthorised entry onto someone else’s land.
Defamation – this is making damaging allegations about someone but not being able to prove that they are true. - 7Name the three torts that are forms of trespass to the person and describe them.Battery – intentional or reckless application of physical force to a person without his consent;
Assault – the intentional or reckless act that makes someone fear the immediate infliction of physical force;
False imprisonment – the unlawful restriction of someone’s freedom of movement. - 8What are the elements required to win a claim for negligence?owe the claimant a duty of care?
breach the duty of care?
did breach cause the claimant to suffer loss or damage? - 9What is the importance of the case of Glasgow Corporation v Muir?addressed the question of breach of duty and the reasonable person test. The defendant did not breach her duty of care as a reasonable person could not have foreseen the incident.
- 10What is the neighbour test?“you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.
- 11What is the leading case demonstrating the neighbour test?Donoghue v Stevenson [1932].
- 12Why is the neighbour principle significant?it opened the way for the future expansion of the tort of negligence by creating a general principle of liability for negligence.
- 13What is the test of foreseeability?objective test - whether a reasonable person in the defendant’s position would have foreseen that the claimant might be injured. If a reasonable person could not have foreseen injury or damage to a person in the claimant’s position, no duty of care is owed to the claimant.
- 14What is the test of proximity?the relationship between the parties. Was the claimant a member of a group to which a duty of care was owed?
- 15What is fair, just and reasonable?even when there is foreseeability and proximity between the parties, there is no duty of care as this would be not be fair, just and reasonable. Ie if someone was injured whilst carrying out a crime.
- 16What is meant by opening the floodgates?this is where the Courts have not allowed a claim for fear of “opening the floodgates” to other similar claims.
- 17What is the usual rule in relation to Rescuers?there is no general duty to rescue a person in distress, however, the defendant owes a duty of care to the rescuer, provided that a reasonable person in the rescuer’s situation would feel obliged to assist.
- 18What do you need to prove to bring a claim for psychological harm?firstly it needs to be established that the claimant suffers from a recognisable psychiatric disorder and thereafter that the defendant breached a duty of care that was owed to the claimant and that the psychiatric disorder was caused by the defendant’s negligent conduct.
- 19What is the difference between a primary and secondary victim when bringing a claim for psychological/psychiatric harm?A primary victim is someone directly involved in the accident or who is within “the zone of physical danger”.
A secondary victim is someone not directly involved in the accident (and in no physical danger) but who suffers psychiatric injury as a result of what he sees or hears happening to others. - 20What is the important principle of Page v SmithIf the person claiming is a primary victim (ie someone who has been directly involved in an accident) then they can recover damages if they can show that the defendant could have foreseen personal injury whether physical or psychiatric. So if some kind of injury is foreseeable the Court will not distinguish between physical or psychiatric.
- 21What is the important principle of Walker v Northumberland County CouncilThis case again deals with a primary victim where it was found that the defendant owed the claimant a duty of care which they had breached (ie they failed to provide him support after his first breakdown – which was not foreseeable) and they were held liable. It was reasonably foreseeable that the claimant was at risk of further mental illness.
- 22What is the important principle of Caparo Industries Plc v DickmanThis established the 3 stage test for the existence of a duty of care:
* That the injury to the claimant was foreseeable
* That there was sufficient proximity between the claimant and defendant;
* That it was fair, just and reasonable to impose liability on the defendant. - 23What is the important principle of Alcock v Chief Constable of South Yorkshiresets out the current law in relation to secondary victims. The following five factors apply to secondary victims:
* There must be sudden shock;
* Foreseeability – psychiatric harm must be reasonably foreseeable to the claimant in the circumstances;
* Proximity of relationship between the claimant and the primary victim;
* The physical proximity of the claimant to the accident or its aftermath;
* Proximity of perception – how the claimant became aware of the events. - 24What is the important principle of Watson v British Boxing Board of Controlproximity case – there was considered to be sufficient proximity between the defendants and the claimant boxer because injury to boxers at or during a fight was a foreseeable and inevitable consequence of such an activity.
- 25What is the important principle of Hinz v BerryDamages are not recoverable for normal sorrow and grief but they are recoverable for nervous shock and psychiatric illness.
- 26If something is said to be judged objectively. What does this mean?If you judge something objectively you are judging it against the standard of the reasonable person.
- 27What are the tests for breach of duty?assuming that a duty of care does exist it needs to be established the defendant breached that duty. This is determined by assessing the standard of care that should have been achieved. Blyth v Birmingham Waterworks Co
· i standard of the reasonable person;
· it is possible, in some circumstances, to be unintentionally negligent;
· was the harm reasonably foreseeable;
· it is not negligent to fail to protect against a very unlikely event.
vulnerability of the claimant;
the importance of the defendant’s objective when the tort occurred
the cost of avoiding the harm - 28What is the usual rule regarding Defendants with a particular experience or expertise and what is the main case illustrating this?If the Defendant has particular experience or expertise, the standard of care expected will be higher. A doctor would only be found liable if his actions fell below those of a reasonable doctor. The case which illustrates this point is Bolam v Friern Hospital Management Committee
- 29What other factors are taken into account in determining whether there has been a breach of duty of care and assessing the standard of care?· The vulnerability of the claimant;
· The importance of the defendant’s objective when the tort occurred;
· The cost of avoiding the harm. - 30Usually the Claimant has to prove that the Defendant was negligent. In what circumstances does the Defendant have to prove that he was not negligent?· If the defendant has been convicted of a criminal offence relate to the alleged negligence (s11(1) Civil Evidence Act 1968) and
· If res ipsa loquitur applies – “the thing speaks for itself”.. - 31What is causation?once a duty of care and breach of duty has been established it must be shown that the breach caused the Claimant to suffer some kind of loss/damage that the law deems to be worthy of compensation and that nothing else caused the loss.
- 32What is the difference between causation in fact and in law?· Causation in fact is a direct link between the defendant’s negligent act and the damage suffered by the Claimant;
· Causation in law requires that the damage is not too remote from the negligence. - 33What test is used to determine factual causation?the “but for” test. Would the Claimant have suffered the loss “but for” the Defendant’s negligence?
- 34What does novus actus interveniens mean and what are the three types?· An intervening act of the claimant or victim;
· An intervening act of nature;
· An intervening act of a third party. - 35What is the basic rule regarding causation in law?damages will only be given for the type of injury that is a foreseeable result of the breach of duty. If the injury is not foreseeable it will be too remote from the breach of duty and damages will not be awarded.
- 36What is the leading case dealing with remoteness of damage?The “Wagon Mound” [1961] – which is the commonly used name for Overseas Tankship (UK) Limited v Morts Dock & Engineering Co.
- 37What is the “thin skull” rule?If an injured person suffers more than would be expected because he is more vulnerable, the defendant will be liable, provided the type of injury suffered was foreseeable.
- 38What is the key point in the case of McGhee v National Coal Board?it was held that the defendant’s were liable to the claimant because they had materially increased the risk of injury to him because they had failed to provide any washing facilities which had contributed to his injury.
- 39what are the 3 requirements for the existence of vicarious liability?1. a tort has been committed;
2. by an employee;
3. the person who committed the tort was acting in the course of employment - 40how do you know if the defendant was in the course of employment?1. a wrongful act authorised by the employee;
2. a lawful act authorised by the employer but carried out in a wrongful and unauthorised way;
an act which is closely connected to the tortfeassors role in the organisation - 41what are the tests used to determine whether or not the person is an employee with a contract of service?1. control test;
2. organisation test;
3. multiple test - 42when is a tortious act held to be in the course of employment1. a wrongful act authorised by the employer;
2. a lawful act authorised by th employer but carried out in a wrongful and unauthorised way;
an act which is closely connected with the tortfeasors role in the organisation - 43when is an employer not liablewhen the employee is on a frolic of his own
- 44if an employee is on loan who is held liablethe organisation which has control over him at the time of the tort
- 45what is the function and nature of defencesto reduce or eliminate the defendant's liability for the damages suffered by the Claimant
- 46what are the common law defences1. ex turpi causa non oritur actio;
2. volenti non fit injuria - 47what is the test for ex turpi causa non oritur actio1. there is a very close connection between the illegal activity of the claimant and;
2. the injury which he suffers;
3. so that the damage arises directly out of the illegal activity;
4. in such a way that it would be contrary to public policy to allow the claimant a remedy - 48what must be proven to establish contributory negligence1. is partly to blame for the accident;
2. puts himself in a dangerous position;
3. increases the extent of the injury - 49when will the courts be reluctant to hold that a claimant has been contributory negligent?1. the claimant is a child;
2. the claimant is an employee;
3. the claimant was a rescuer;
4. dilemma principle - 50define negligenceit occurs when a person breaches a duty a duty of care in such a way as to cause forseeable harm to someone else
- 51Explain whether, in mesothelioma cases, a claimant may recover damages from more than one employer.Under S3 of the Compensation Act 2006 if a claim for damages is made as a result of contact with asbestos a person will be held jointly and severally responsible if he materially increased the risk of such exposure
- 52define vicarious liabilityimposes liability on employers for the wrongful acts of another
- 53Explain the effect of contributory negligencea partial defence - a reduction of the amount of damages which must be paid by the defendant
- 54State what is meant by special damages and give one example.quantifiable financial losses which the claimant can prove were incurred as a consequence of the tort and before the trial - transport costs to and from hospital
- 55Identify two statutory tortsConsumer Protection Act 1987
Occupiers Liability Act 1957
Animals Act 1971 - 56A claimant has established that damage was reasonably foreseeable and that there is sufficient proximity for a duty of care to exist. Why may a court still refuse to find that a duty of care exists?fair, just and reasonable - Capario Industries v Dickman
- 57Explain the two factors stated in s1 Compensation Act 2006, that give courts power to consider wider implications in claims in negligenceprevent a desirable activity from being undertaken
discourage persons from undertaking functions - 58Explain the difference between a ‘primary’ victim and a ‘secondary’ victim.
Información
- Descripción
- Diploma/Certificado de qualificação profissional de nivel 3 tort Fichas sobre Sin título, creado por Stacie Mcdonnell el 04/10/2015.
- Creado por
- Stacie Mcdonnell
- Visitas
- 0
- Valoración