IBL Week 4

26 flashcards · Other · by Daniel F.

1. Tort

   civil wrong that causes harm to a person or property personal injury, property damage, and economic loss When a tort is committed, the victim can sue the tortfeasor (the person who committed the tort) for damages

2. Crimes vs torts

   Crimes: wrongs that are punished by the state aim of criminal law is to punish the wrongdoer and deter future crime Torts: civil wrongs that are compensated by damages aim of tort law is to compensate the victim for the harm they have suffered

3. Torts vs. Breaches of Contract

   Torts: breach of a duty fixed by law Breaches of contract: a breach of a duty that the parties have voluntarily agreed to assume e.g we all have a duty not to trespass on other people's land, If we trespass, we have committed a tort If you agree to mow someone's lawn and then fail to do so, you have not committed a tort. You have simply breached your contract

4. Types of torts

   Intentional tort Implies that the wrongdoer knew or should have known their action would likely cause harm e.g. battery, assault, defamation Focus: the deliberate nature of the act, not necessarily the desire to cause the specific harm tort of negligence Failure to exercise the level of care that a reasonable person would Whether the harm was foreseeable and preventable with reasonable caution strict liability strict liability imposes liability without the requirement of proving negligence or f…

5. Elements of tort of negligence!!

   The defendant owed the claimant a duty of care The defendant broke that duty of care The claimant suffered loss or damage because of the breach of duty

6. owing a Duty of Care

   First the Neighbourhood principle Donoghue v Stevenson (1932) legal duty of care we owe to others, even in the absence of a contractual relationship "must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour" neighbour: anyone who could foreseeably be affected by the defendant’s actions Then negligence law was created so duty of care is based on previous case law 3-stage Caparo test

7. The Caparo test

   Caparo Industries v Dickman (1990) Reasonable foreseeability plaintiff must prove that the harm they suffered was reasonably foreseeable by the defendant e.g. Margereson v JW Roberts Ltd (1996), asbestos child the concept of legal proximity Relevant factors: personal relationship b/n parties, length of time b/n events, whether goods may have been tampered with e.g. Caparo v Dickman, auditors could not reasonably foresee that prospective investors would rely on general company audits when decidi…

8. owing Duty of care special cases

   the damage was caused by a failure to act (liability for omissions) the damage caused is purely economic loss; the damage caused is psychiatric (rather than physical) injury;

9. owing a Duty of care: Omissions

   Duties of care =/= duties actively to help others tort law is liability for what you do and not what you dont do No liability for ‘pure’ omissions

10. owing a Duty of care: pure economic loss

    precise meaning in tort law: cases where a claimant has suffered financial damage that does not directly result from personal injury or damage to property pure economic loss/profit is rarely recovered No contract, no physical damage: Generally no duty of care e.g. Weller v Foot and Mouth Research Institute (1966) White v Jones (1995) duty of care not to cause pure economic loss arises only where there is ‘special relationship of proximity’ between the claimant and the defendant e.g Hedley Byrne…

11. owing a duty of care: Psychiatric Injury

    Requires evidence of a recognized psychiatric illness (higher burden of proof). Primary victim: Directly involved in the accident, or reasonably believed to be. medically recongnized Secondary victim: Witnesses the accident or aftermath close tie to victim, geo proximity, medically recognised

12. Breach of a duty of care

    occurs when the defendant's conduct falls below the expected standard of behaviour for someone in their position e.g. careless driving, bad medical tratement

13. breach of general standards of care

    the defendant's conduct is measured against what a reasonable person would do in the same situation lower standards for chirdler law sets a general standard of reasonable care, regardless of whether someone is experienced, inexperienced, or even a learner e.g.Nettleship v Weston (1971), a learner driver was held to the standard of a reasonably competent driver

14. breach of skilled standards of care

    Special skill = higher standard of care A duty of care is breached if the defendant did something that a reasonably competent person in that profession would not have done Level of qualification (not amount of experience)

15. Factors Affecting Standard of Care

    Probability of harm: Higher probability = higher caution required. Potential seriousness: Small risk, but grave consequences if it occurs. Practicalities/cost: Simple, low-cost precautions should be taken. Social value/usefulness: More latitude for emergencies or socially beneficial activities. Reasonable risks in emergencies: Not a breach if reasonable risks are taken.

16. Aids for the claimant in proving breach of duty

    Civil Evidence Act 1968, s 11: Criminal conviction is proof of the offense. Res ipsa loquitur: "The thing speaks for itself" - applies when: Defendant controlled the situation/thing causing damage. Damage wouldn't normally occur without negligence. The exact cause is unknown. Shifts the burden of proof to the defendant.

17. Damage and causation suffered because of breach of duty

    Damage: Even if a duty of care exists and is breached, without damage, there is no negligence claim. Purely hypothetical or theoretical harm is not actionable. Causation: To succeed in a negligence claim, the plaintiff must prove that the defendant's breach of duty caused their harm.

18. But-For Test for Damage and causation suffered because of breach of duty

    method to assess causation in negligence law asks: "but for" the defendant's breach of duty, would the harm to the plaintiff have occurred? e.g. Barnett V Chelsea & Kensington Hospital 1969, Claimant went to hospital complaining of vomiting but was sent home by hospital doctor, died limitations multiple causes, Uncertainty

19. what claimant has to prove regarding damage and causation

    Multiple Causes: Defendant's breach must have materially contributed to the loss (significantly increased the risk). If multiple possible causes exist, the claimant must prove the defendant's action was the material cause. Exception: If the injury is proven to be caused by a specific factor (e.g., asbestos), the employer may be liable even if the specific employee responsible is unknown. Remoteness of Damage: Damage must be objectively reasonably foreseeable. The exact type of injury need not b…

20. Eggshell Skull Principle

    Defendant is liable for the full extent of the claimant's injuries, even if they are more severe due to pre-existing conditions (physical or psychiatric).

21. Intervening acts for Damage and causation

    The defendant’s negligence triggers a sequence of events leading to the harm suffered by the claimant Where an intervening act interrupts the chain of causation, the defendant is liable for damage caused to the claimant prior to the intervening act e.g.Mckew v Holland (1969) defendant negligently injured the claimant’s leg claimant attempted, unassisted , to descend a steep flight of stairs. He fell and suffered additional injuries defendant not liable for additional injuries after stairs

22. Product liability

    If a claimant suffers loss as a result of a defective product, they seek redress though: Product liability in contract Product liability in negligence The Consumer Protection Act 1987

23. Product liability in contract

    who can sue Historically: only the direct buyer could sue for breach of contract (Privity of Contract) e.g. Mrs. Donoghue couldnt Contracts (Rights of Third Parties) Act 1999: Allows third parties to enforce contract terms in some cases who can be sued Only the direct seller can be sued under a contract claim What must be proved only a breach of contract terms Types of products & defects covered Products: Product liability claims in contract apply to any type of product. Defects: Covers perform…

24. Product liability in negligence

    who can sue Broad range of plaintiffs: Direct purchasers, recipients of defective products, those injured as bystanders Who can be sued Anyone in the supply chain may be liable: Manufacturers, Repairers, Assemblers, Distributors, Sellers Products and Defects Covered also dangerous defects, not just performance or quality issues Wide range of products included (not just food/drink): Defective underpants, tombstones, packaging, etc Harm must be actual, not merely potential What must be proved Sta…

25. The CPA 1987

    Consumer Protection Act 1987 Potential claimants: any person injured or whose property is damaged by a defective product Potential defendants: producer, own brander, importer, supplier Time limits: three years from discovering the defect, incurring the damage, or ascertaining the identity of the producer what to prove The product contained a defect; The claimant suffered damage; The damage was caused by the defect The defendant was either a producer; a marketer (own-brander); an importer; or a…

26. product libility in contract vs product libility in negligence vs the CPA 1987