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Tort flashcards

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The rules of tort law

What is a tort?: A civil wrong, other than a breach of contract, for which the claimant can sue the defendant for a remedy such as damages or an injunction.
What is the burden and standard of proof in tort?: The claimant must prove the case on the balance of probabilities: that it is more likely than not.
What are the three stages of negligence?: Duty of care, breach of duty, and damage caused by the breach (causation and remoteness), in that order.

Theory of tort law

What policy factors limit the duty of care?: Fear of opening the floodgates to many claims, the effect on public services and defensive practice, and whether it is fair, just and reasonable to impose a duty.
Why does the law restrict claims for pure economic loss and psychiatric injury?: To prevent indeterminate liability to an unlimited class of claimants, and because such losses are harder to prove and to foresee than physical harm.
What is the purpose of vicarious liability?: To make sure the victim can be compensated by someone able to pay (the employer, usually insured), and to place the cost on the business that created the risk and profits from the work.
What is the balance between fault and compensation in tort?: Tort mainly compensates for harm caused by fault, but fault is judged objectively, and some liability (Rylands v Fletcher, vicarious liability) arises without personal fault.

Liability in negligence for physical injury to people and damage to property

How is a duty of care established in negligence?: Where precedent already recognises a duty, it applies (Robinson v Chief Constable of West Yorkshire Police, 2018). In novel situations the Caparo test is used: foreseeability of harm, proximity, and that it is fair, just and reasonable (Caparo Industries v Dickman, 1990).
What is the standard of care, and how is it adjusted?: The reasonable person doing the activity. Learners are judged as competent (Nettleship v Weston, 1971); professionals by a responsible body of professional opinion (Bolam, 1957); children by a reasonable child of the same age (Mullin v Richards, 1998).
Which risk factors decide breach of duty?: Likelihood of harm (Bolton v Stone, 1951), seriousness of harm and special characteristics of the claimant (Paris v Stepney Borough Council, 1951), cost of precautions (Latimer v AEC, 1953) and social benefit of the activity (Watt v Hertfordshire County Council, 1954).
What is factual causation in negligence?: The “but for” test: the harm would not have happened but for the breach. In Barnett v Chelsea and Kensington Hospital (1969) the patient would have died anyway.
What is the test for remoteness of damage in negligence?: The type of damage must be reasonably foreseeable (The Wagon Mound (No 1), 1961). The precise way it happens need not be (Hughes v Lord Advocate, 1963), and the thin skull rule applies (Smith v Leech Brain, 1962).

Liability in negligence for economic loss and psychiatric injury

Can pure economic loss caused by a negligent act be recovered?: No. In Spartan Steel v Martin (1973) the claimant recovered for damaged metal and the profit on it, but not for profit lost while the power was off.
When is there liability for a negligent misstatement?: Hedley Byrne v Heller (1964): where there is a special relationship, the defendant has special skill, the claimant reasonably relies on the advice, and the defendant knew they would rely on it.
Who is a primary victim of psychiatric injury?: Someone in the zone of physical danger, or who reasonably believed they were. If physical injury was foreseeable, they can recover for psychiatric injury (Page v Smith, 1996).
What must a secondary victim prove for psychiatric injury?: Alcock v Chief Constable of South Yorkshire (1992): a recognised psychiatric illness, a close tie of love and affection, presence at the event or its immediate aftermath, and perceiving it with their own unaided senses.

Occupiers' liability

Who is an occupier?: Whoever has sufficient control over the premises; there can be more than one occupier (Wheat v E Lacon, 1966). Premises include fixed or movable structures.
What duty is owed to lawful visitors?: The common duty of care under s2(2) Occupiers’ Liability Act 1957: to take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which they are permitted to be there.
How does the 1957 Act treat children and skilled visitors?: Children: the occupier must be prepared for them to be less careful than adults (s2(3)(a); Glasgow Corporation v Taylor, 1922). Skilled visitors: they are expected to guard against risks of their trade (s2(3)(b); Roles v Nathan, 1963).
When is an occupier not liable for the work of an independent contractor?: Under s2(4)(b) Occupiers’ Liability Act 1957, if it was reasonable to give the work to a contractor, the occupier took reasonable steps to check the contractor was competent, and, where possible, checked the work was properly done (Haseldine v Daw, 1941).
When is a duty owed to trespassers?: Under s1(3) Occupiers’ Liability Act 1984: the occupier knows of the danger, knows or has reasonable grounds to believe a trespasser is or may come near it, and the risk is one against which the occupier may reasonably be expected to offer some protection.
Why did the claimant fail in Tomlinson v Congleton Borough Council (2003)?: He was injured diving into a shallow lake against warning signs. The danger came from his own choice to take an obvious risk, not from the state of the premises, so there was no liability.

Nuisance and the escape of dangerous things

What is private nuisance and who can sue?: An unlawful interference with a person’s use or enjoyment of land. Only someone with a legal interest in the land, such as an owner or tenant, can sue (Hunter v Canary Wharf, 1997).
Which factors decide whether an interference is unreasonable?: The locality (Sturges v Bridgman, 1879), duration and frequency, the sensitivity of the claimant, and malice. Overlooking from a public viewing platform was held a nuisance in Fearn v Tate Gallery (2023).
What are the defences to private nuisance?: Prescription (the nuisance has been actionable for 20 years), statutory authority (Allen v Gulf Oil Refining, 1981) and consent. Coming to the nuisance is not a defence (Miller v Jackson, 1977).
What must be proved under the rule in Rylands v Fletcher (1868)?: The defendant brought something onto their land in the course of an extraordinary and unusual (non-natural) use, it was likely to do mischief if it escaped, it escaped, and it caused foreseeable damage of the relevant type (Cambridge Water, 1994; Transco v Stockport MBC, 2003).
What are the defences to Rylands v Fletcher?: Act of a stranger (Rickards v Lothian, 1913), act of God (Nichols v Marsland, 1876), consent, statutory authority and the claimant’s own default.

Vicarious liability

What is vicarious liability?: Liability of one person (usually an employer) for a tort committed by another (usually an employee) in the course of employment, though the employer did nothing wrong.
How do the courts decide whether someone is an employee?: Using tests such as control and the economic reality (multiple) test in Ready Mixed Concrete v Minister of Pensions (1968): wages paid, control, and whether the terms are consistent with employment.
When is a tort committed in the course of employment?: When it is an authorised act done in an unauthorised way (Limpus v London General Omnibus, 1862; Rose v Plenty, 1976), not a “frolic of his own” (Hilton v Thomas Burton, 1961).
When is an employer liable for an employee’s deliberate wrongdoing?: When there is a close connection between the wrongdoing and the job (Lister v Hesley Hall, 2001; Mohamud v Morrison Supermarkets, 2016).
Can there be vicarious liability for people who are not employees?: Yes, where the relationship is “akin to employment” (Cox v Ministry of Justice, 2016). There is no vicarious liability for a genuinely independent contractor (Various Claimants v Barclays Bank, 2020).

Defences

What is contributory negligence and what is its effect?: A partial defence: the claimant’s own failure to take care contributed to the damage, so damages are reduced to the extent the court thinks just (Law Reform (Contributory Negligence) Act 1945; Froom v Butcher, 1976).
What is consent (volenti non fit injuria)?: A full defence where the claimant knew of the precise risk and freely and voluntarily agreed to accept it. Knowledge alone is not enough (Smith v Baker, 1891); it succeeded in Morris v Murray (1991), a drunk pilot.
Why is consent rarely a defence for rescuers or employees?: A rescuer acts under a moral compulsion and an employee often has little real choice, so neither is treated as having freely accepted the risk.

Remedies

What is the aim of compensatory damages in tort?: To put the claimant, as far as money can, in the position they would have been in if the tort had not been committed.
What is the difference between pecuniary and non-pecuniary loss?: Pecuniary: financial losses, such as lost earnings, medical costs and property damage. Non-pecuniary: pain, suffering and loss of amenity.
What is mitigation of loss?: The claimant must take reasonable steps to reduce their loss; damages are not given for loss that could reasonably have been avoided.
When is an injunction granted in tort?: It is an equitable, discretionary remedy ordering a defendant to stop (prohibitory) or to do something (mandatory), mainly in nuisance. The court may award damages instead (Shelfer v City of London Electric Lighting, 1895; Coventry v Lawrence, 2014).