Law of Tort and Easement for LLB 1 Shart Q and Short Answer

1. An Overview of the Law of Tort

1. What is a tort?

A tort is the breach of a non-contractual civil duty owed to another.

2. What is strict liability?

Liability which is imposed without the claimant having to prove that the defendant was at fault.

3. Name five objectives often attributed to the law of torts.

·         Compensation

·         Deterrence

·         Vindication

·         Loss distribution

·         Punishment

4. What is the collective name given to contract, tort and restitution?

The law of obligations

5. Name instances in which insurance is compulsory.

Car drivers against injury to third parties and passengers; and manufacturers against injuries caused by their products.

2. Introduction to the Tort of Negligence

1. Who in law is your neighbour?

Anyone whom you should reasonably foresee will be affected by your actions.

2. What are the three requirements of the Caparo test?

·         Foresight

·         Proximity

·         Justice

3. What is privity of contract?

The principle that only those who are parties to a contract may sue on it, now subject to the Contracts (Rights of Third Parties) Act 1999.

4. What are the five main constituents of the tort of negligence?

5. Which statute has confirmed the common laws approach to manufacturers who allow foreign bodies into the foodstuffs they supply?

Consumer Protection Act 1987

3. Duty of Care: General Principles

1. This is the technical term used to described those who are acting in the place of a child's parents.

in loco parentis

2. What term has been used as a synonym for foreseeability and for referring to the entire relationship between a claimant and a defendamt in a negligence action?

Proximity

3. What three concepts make up the final stage of the Caparo test?

Fair, just and reasonable

4. Which argument, forming part of judicial policy, is used when the court fears there will be an indeterminate number of claims in a particular duty situation?

Floodgates

5. What is meant by the “deepest pocket” principle?

The imposition of liability on those best able to afford the loss.

6. Which term refers to the courts' approach whereby they reason by analogy with existing case law?

Incremental

6. Which term refers to those decisions in which the judges do not acknowledge the true reason for their decision?

Latent policy decision

7. What is the name of the test for the duty of care which has been superseded by Caparo?

The two-stage test from Anns

4. Duty of Care: Psychiatric Injury

1. What is the general and somewhat outdated term sometimes still used to refer to various kinds of psychiatric injury?

2. What is PTSD?

It stands for post-traumatic stress disorder, which is a recognised medical condition lasting for a long time after a stressful event.

3. What term do the courts use to describe the hypothetical person who is not particularly vulnerable to psychiatric harm?

Reasonable fortitude

4. What is the legally relevant distinction between a primary and a secondary victim?

A primary victim is one who apprehends immediate harm to himself as a direct result of the event caused by the negligence.

5. What technical term is used to describe the period of time after an incident, during which a secondary victim must be exposed to the effects in order to claim?

Immediate aftermath

5. In which case did Lord Wilberforce apply his two stage test of liability for psychiatric injury?

McLoughlin v O'Brian

6. Which case signalled the start of the contraction of liability for psychiatric injury?

5. Duty of Care: Economic Loss

1. What are the three main elements necessary for a situation to be covered by Hedley Byrne-type liability in tort?

A special relationship, reliance and that reliance being reasonable.

2. Which case outlines an exception to the rule that, generally, social situations do not give rise to a special relationship?

Chaudhry v Prabhaker

3. What was the nature of the claimant's actionable damage in McFarlane v Tayside Health Board?

Wrongful birth

4. Which case is generally regarded as the ‘high-water’ mark of liability for economic loss in negligence?

Junior Books v Veitchi Co Ltd

5. Which of their Lordships in Caparo outlined the five particular circumstances in which liability for economic loss can lie?

Lord Oliver

6. The courts are reluctant to allow claims for economic loss in tort generally because they say that claimants will often have a more appropriate form of redress; what is this?

A claim in contract

7. Which activity was involved in the facts of Spring v Guardian Assurance?

The writing of an employment reference.

6. Miscellaneous Situations

1. What is the legally significant difference between a large group of persons and an indeterminate group of persons?

An indeterminate group is one whose membership cannot be foreseen.

2. Which case formed the principle that the police owe no duty of care to individual members of the public?

3. What alternative means of recovery is open to victims of torts which are also crimes?

Compensation from the Criminal Injuries Compensation Board

4. What was the public policy decision made in McKay v Essex AHA?

That someone cannot claim in tort for having been born (a wrongful life claim).

5. Is there ever a duty to rescue in the tort of negligence?

Only where party has made some undertaking to another, or where the law imposes such a duty (such as parents to their children).

7. Breach of Duty: The Standard of Car