An Overview of the Law of Tort

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 What is the name of the test for the duty of care which has been superseded by Caparo?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

1. What is the name of the objective test applied by the courts to establish whether or not a defendant has breached his duty of care?

The “reasonable man” test

2. What is important about the fact that this test is objective rather than subjective?

An objective test does not take the characteristics of the particular defendant into account; he is held to an externally defined standard.

3. What is the concept, used to describe a defendant's conduct, which is often considered by the courts to balance out the taking of risks by that defendant?

Utility

4. Which partial defence to a negligence action is governed by statute enacted by Parliament in 1945?

Contributory Negligence — Law Reform (Contributory Negligence) Act

5. Which test says that “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”?

The Bolam test, from Bolam v Friern HMC

6. Is it true that the Bolam test applies only to professional doctors?

No, it is a test for professional individuals in general.

7. Which case restricted the effects of the Bolam test?

Bolitho v City & Hackney HA

8. Which technical term means “the facts speak for themselves”?

res ipsa loquitur

9. What was the ratio of Nettleship v Weston?

That trainees and learners are subject to the same standards of care as those experienced in the activity; the objective test.

8. Causation and Remoteness of Damage

1. What is the basic test for factual causation in the tort of negligence?

2. What is the standard of proof in the context of causation?

3. What is the remarkable effect of the decision in Chester v Afshar?

4. What were the defendants held liable for in Fairchild v Glenhaven Funeral Services?

Materially increasing the risk that the claimants would develop mesothelioma.

5. What is a novus actus interveniens?

An act which breaks the chain of causation between the defendant's negligent act and the claimant's ultimate damage.

6. Why could the ‘but for’ test not be applied in Fairchild and Barker?

There was an evidentiary gap in that the court did not have enough information about the way in which the disease was contracted.

7. Is it true that the cases of Hotson v East Berkshire HA and Gregg v Scottestablish that loss of a chance is never recoverable in the tort of negligence?

No, loss of a chance is only irrecoverable in the context of personal injury and medical negligence.

8. What is it that must be foreseeable under the rule in The Wagon Mound (No. 1)?

The type or nature of the ultimate damage to the claimant, i.e. not its extent or how it happened.

9. What is the name of the rule which says that a tortfeasor must “take his victim as he finds him”?

The thin skull or eggshell skull principle.

10. Which statute has partially reversed the effects of the House of Lords' decision in Barker v Corus?

The Compensation Act 2006 (s.3)

9. Breach of Statutory Duty

1. What is the name of the Law Commission Report on this area of the law?

Accidents at Work

2. To whom must the statutory duty be owed for a claim of this nature to succeed?

The individual claimant

3. What is the technical term for the defence based on a claimant's voluntarily placing himself at risk of harm?

volenti non fit injuria

4. In which case was the defendant held vicariously liable for breach of statutory duty owed under the Protection from Harassment Act 1997 s.3 by one of its employees?

Majrowski v Guy's and St Thomas' NHS Trust

5. Which statutory provision was challenged in Davies v Health and Safety Executive?

Section 40 of the Health and Safety at Work Act 1974

10. Occupiers' Liability

1. What is the primary difference between the application of the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984?

The 1957 Act applies to lawful visitors and the 1984 Act to those other than visitors.

2. Is it true that ‘visitors’ for the purposes of the Occupiers' Liability Act 1957 includes users of public or private rights of way?

No

3. Which statutory provision deals with the specific nature of the duty owed by occupiers to children?

Section 2 (3) (a) of the Occupiers' Liability Act 1957

4. What is the name of the principle applied to situations in which occupiers have been deemed to allow children to be encouraged on to their land by a particular feature of it?

The allurement principle

5. Which statute, usually of more relevance to the law of contract, can affect an occupier's liability to affect his own liability?

The Unfair Contract Terms Act 1977

6. Is it true that the provisions of UCTA apply only to business occupiers?

Yes — private occupiers will be governed by the common law relating to such terms.

7. What, for these purposes, is a ‘trespasser’?

A person whose presence on land is unknown to the occupier or, if known, is objected to by the occupier in some practical way.

8. What is the name of the statute enacted in order to balance public access to common countryside with the rights of landowners?

9. What was the significance of the decision in Gwilliam v West Hertfordshire Hospital NHS Trust?

That occupiers have a duty to inquire as to the insured status of independent contractors on their land.

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 Care

1. What is the name of the objective test applied by the courts to establish whether or not a defendant has breached his duty of care?

The “reasonable man” test

2. What is important about the fact that this test is objective rather than subjective?

An objective test does not take the characteristics of the particular defendant into account; he is held to an externally defined standard.

3. What is the concept, used to describe a defendant's conduct, which is often considered by the courts to balance out the taking of risks by that defendant?

Utility

4. Which partial defence to a negligence action is governed by statute enacted by Parliament in 1945?

Contributory Negligence — Law Reform (Contributory Negligence) Act

5. Which test says that “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”?

The Bolam test, from Bolam v Friern HMC

6. Is it true that the Bolam test applies only to professional doctors?

No, it is a test for professional individuals in general.

7. Which case restricted the effects of the Bolam test?

Bolitho v City & Hackney HA

8. Which technical term means “the facts speak for themselves”?

res ipsa loquitur

9. What was the ratio of Nettleship v Weston?

That trainees and learners are subject to the same standards of care as those experienced in the activity; the objective test.

8. Causation and Remoteness of Damage

1. What is the basic test for factual causation in the tort of negligence?

2. What is the standard of proof in the context of causation?

3. What is the remarkable effect of the decision in Chester v Afshar?

4. What were the defendants held liable for in Fairchild v Glenhaven Funeral Services?

Materially increasing the risk that the claimants would develop mesothelioma.

5. What is a novus actus interveniens?

An act which breaks the chain of causation between the defendant's negligent act and the claimant's ultimate damage.

6. Why could the ‘but for’ test not be applied in Fairchild and Barker?

There was an evidentiary gap in that the court did not have enough information about the way in which the disease was contracted.

7. Is it true that the cases of Hotson v East Berkshire HA and Gregg v Scottestablish that loss of a chance is never recoverable in the tort of negligence?

No, loss of a chance is only irrecoverable in the context of personal injury and medical negligence.

8. What is it that must be foreseeable under the rule in The Wagon Mound (No. 1)?

The type or nature of the ultimate damage to the claimant, i.e. not its extent or how it happened.

9. What is the name of the rule which says that a tortfeasor must “take his victim as he finds him”?

The thin skull or eggshell skull principle.

10. Which statute has partially reversed the effects of the House of Lords' decision in Barker v Corus?

The Compensation Act 2006 (s.3)

9. Breach of Statutory Duty

1. What is the name of the Law Commission Report on this area of the law?

Accidents at Work

2. To whom must the statutory duty be owed for a claim of this nature to succeed?

The individual claimant

3. What is the technical term for the defence based on a claimant's voluntarily placing himself at risk of harm?

volenti non fit injuria

4. In which case was the defendant held vicariously liable for breach of statutory duty owed under the Protection from Harassment Act 1997 s.3 by one of its employees?

Majrowski v Guy's and St Thomas' NHS Trust

5. Which statutory provision was challenged in Davies v Health and Safety Executive?

Section 40 of the Health and Safety at Work Act 1974

10. Occupiers' Liability

1. What is the primary difference between the application of the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984?

The 1957 Act applies to lawful visitors and the 1984 Act to those other than visitors.

2. Is it true that ‘visitors’ for the purposes of the Occupiers' Liability Act 1957 includes users of public or private rights of way?

No

3. Which statutory provision deals with the specific nature of the duty owed by occupiers to children?

Section 2 (3) (a) of the Occupiers' Liability Act 1957

4. What is the name of the principle applied to situations in which occupiers have been deemed to allow children to be encouraged on to their land by a particular feature of it?

The allurement principle

5. Which statute, usually of more relevance to the law of contract, can affect an occupier's liability to affect his own liability?

The Unfair Contract Terms Act 1977

6. Is it true that the provisions of UCTA apply only to business occupiers?

Yes — private occupiers will be governed by the common law relating to such terms.

7. What, for these purposes, is a ‘trespasser’?

A person whose presence on land is unknown to the occupier or, if known, is objected to by the occupier in some practical way.

8. What is the name of the statute enacted in order to balance public access to common countryside with the rights of landowners?

9. What was the significance of the decision in Gwilliam v West Hertfordshire Hospital NHS Trust?

That occupiers have a duty to inquire as to the insured status of independent contractors on their land.

11. Torts Relating to Land

1. Name three statutes which add to the forms of trespass available at common law.

·         The Anti-Social Behaviour Act 2003

·         The Serious Organised Crime and Police Act 2005

·         The Criminal Law Act 1977

·         The Public Order Act 1986 and the Criminal Justice and Public Order Act 1994

2. The tort of trespass is actionable per se. What does this mean?

It means the tort is actionable without the claimant having to prove actionable damage.

3. What are the two main differences between the actions of trespass and nuisance?

Trespass is actionable per se, whilst nuisance requires damage to be proven. Trespass concerns direct interference with the claimant's land, whereas nuisance is concerned with indirect interferences.

4. What sort of interference must the claimant in a nuisance action prove, in relation to his land, in order to succeed?

The interference with his land must have been unreasonable.

5. What is the primary distinction between private nuisance and public nuisance?

Private nuisance is concerned with interferences with private land and public nuisance with interferences with public land.

6. In an action for public nuisance, what must a claimant have suffered in order to succeed?

Special damage

7. What must a claimant have in order to bring a successful claim in private nuisance?

A sufficient interest in the land concerned.

8. What sort of damage is not recoverable in private nuisance?

Personal Injury

9. What is meant, in the context of private nuisance, by the concept of hypersensitivity?

A claimant will be deemed hypersensitive if his land is affected only because of a particular vulnerability; where, in other words, a reasonably robust user of land would not be affected.

10. How is the notion of foreseeability relevant to an action in Rylands v Fletcher?

The ultimate damage must have been reasonably foreseeable by the defendant for the claimant to be able to recover for it. The escape need not have been foreseeable. Once that damage is deemed to be foreseeable, no amount of care on the part of the defendant will prevent liability if that damage ensues.

12. Liability for Animals

1. Who, in this context, is a ‘keeper’?

The owner or the animal or, if the owner is under 16, the head of the household. If the animal is a stray, the keeper will be deemed to be the previous keeper.

2. What is the nature of the liability in this context?

The liability is strict.

3. What amounts to a ‘dangerous species’?

One which is not commonly domesticated in the British Isles and which, when fully grown, is likely to cause severe damage.

4. In terms of a keeper knowing about an animal's unusual characteristics, is constructive knowledge sufficient?

No, it must be actual knowledge.

5. Can the owner of a parrot which makes defamatory statements be liable for those statements?

Yes

13. Trespass to the Person

1. What is an assault?

Putting someone in fear of an immediate battery.

2. What is a battery?

The application of direct physical force to the victim.

3. What was the definition of false imprisonment given in Collins v Wilcock?

“The unlawful imposition of restraint on another”

4. What was the ratio of Bird v Jones?

That, for there to be a false imprisonment, the claimant must have had no reasonable means of escape.

5. In order for behaviour to amount to Harassment under the Protection from Harassment Act 1997, what must the defendant's actions have amounted to?

A course of conduct.

6. What are the defences to an action in trespass to the person?

Necessity, self-defence, consent, statutory authority and reasonable chastisement.

7. True or False: the claimant need not have known that he was imprisoned in order to be successful in a claim for false imprisonment?

True

14. Employers Liability

1. What is the technical term for a duty which an employer cannot assign to anyone else?

A non-delegable duty.

2. True or False: an employer can be liable for the torts of an independent contractor whom he has employed?

3. What is an ultra-hazardous activity?

An activity which is inherently dangerous; responsibility for which cannot be delegated.

4. In which case was an employer held liable for the injury caused to one of his employees by violent customers, when he knew of the risks and the fact that other staff had been assaulted on previous occasions?

Rahman v Arearose

5. There is a mutual duty between employer and employee implied into every contract of employment. What is it?

A mutual duty of trust and confidence.

6. Name three of the recent cases concerning employers' liability for occupational stress.

·         Sutherland v Hatton

·         Barber v Somerset

·         Hartman v south Essex Community NHS Trust

·         Eastwood v Magnex Electric plc

15. Product Liability

1. Why has the regime of product liability developed outside of the realm of contract law?

Because contract remedies are limited to the parties to the contract.

2. What is the main statue governing this area?

Consumer Protection Act 1987

3. What is the term used to describe liability under which a claimant can sue all or any of the potential defendants, leaving those defendants to sue one another for their respective contributions?

Joint and several liability

4. How is a defect in goods defined?

A defective good is one whose safety is not such as “persons generally are entitled to expect, taking into account all the circumstances”.

5. On whom does the burden of proof lie?

6. The claimant What is the name of the defence based on the state of scientific or specialist knowledge at the time the product was supplied?

The development risks defence.

7. What is the limitation period for actions of product liability?

10 years from the date of supply.

16. Vicarious Liability

1. What is the principal limiting factor on situations in which employers can be vicariously liable for torts committed by their employees?

The tort must have been committed during the course of the employee's employment.

2. What is the principle, under which a term is implied into contracts of employment that an employee will exercise all reasonable care and skill during the course of his employment?

The Lister v Romford Ice Principle

3. When might the court be concerned with who owns the tools used by a particular individual?

It is one of the ways in which the court might differentiate between employees and independent contractors.

4. Which two questions were identified as important in Lister v Hesley Hallfor establishing vicarious liability?

1.    Was the person who committed the tort an employee?

2.    Was the employee acting in the course of employment when the relevant tort was committed?

5. What is one of the main practical problems with the control test?

In practical terms, many persons who are technically employees (such as doctors) are not in any real sense ‘controlled’ by their employer.

17. Trespass to Goods

1. What is a trespass to goods?

A “direct, immediate interference with personal property belonging to another person”.

2. What is a reversionary interest?

This is the interest retained by someone who does not currently have possession of them, or the right to immediate possession, but to whom such rights will revert when the current possessor's interest expires.

3. What is a conversion?

A “dealing with goods in a manner inconsistent with the rights of the true owner”.

4. What is the primary statute of relevance in this area?

The Torts (Interference with Goods) Act 1977

5. Who can sue in conversion?

Only the party currently in possession of the goods, or with the right to immediate possession, (even if this is not the owner).

6. What might be considered remarkable about the remedies available for conversion?

There is no automatic legal right for the claimant to have the goods returned to him; the general remedy is the market value of the goods. Once this has been paid, the claimant's title is extinguished, effectively facilitating a forced judicial sale of the goods in question.

7. What happened to the old action of detinue?

It was abolished in name by the Torts (Interference with Goods) Act 1977, but in substance is now covered by conversion.

8. True or False: contributory negligence is no defence to the tort of conversion?

True

9. What is trover?

It is the old name for conversion and is sometimes still used.

10. Is intention relevant to the tort of conversion?

Yes

18. Defamation and Other Torts Affecting the Reputation

1. What are the primary differences between libel and slander?

·         Libel has to exist in some permanent form; slander does not

·         Libel is actionable per se; slander is not

·         Libel can be a crime as well as a tort; slander is just a tort

2. True or False: only living persons can sue for defamtion?

True

3. What is meant in this context by ‘publication’?

It means the statement must be communicated to a third party.

4. In which case was the following definition of defamation offered?

“A statement which tends to lower the claimant in the estimation of right thinking members of society generally…”

Sim v Stretch

5. What technical term is used to refer to the situation where words are not defamatory on their face, but can be construed as such by people who know the claimant?

Innuendo

6. What is the material difference between qualified and absolute privilege?

In order successfully to plead qualified privilege, the defendant must prove that the statement was made without malice.

7. What remedies are available in defamation?

Injunction and damages

19. Remedies in Tort

1. What is the term used to refer to damages which are awarded where a claimant has proved his claim but suffered no loss?

Nominal damages

2. What is the general aim of tort damages?

Compensation

3. Which House of Lords' decision provides the current principles for determining when exemplary damages may be awarded in tort cases?

Kuddus v Chief Constable of Leicestershire Constabulary

4. What are special damages?

These are quantifiable pecuniary losses up to the date of trial.

5. Are pain and suffering considered subjectively or objectively when quantifying damages?

Subjectively

6. Under which statutory provision can damages for bereavement now be claimed in certain circumstances?

S 3 Administration of Justice Act 1982 (new s 1A Fatal Accidents Act 1976)

20. Defences

1. Following Froom v Butcher, what percentage reduction will now be made in a claimant's damages if he was not wearing a seatbelt when doing so would have prevented his injuries altogether?

25%

2. Under which statutory provision are defendants prevented from relying on the defence of volenti where insurance is compulsory?

S 149 of the Road Traffic Act

3. What is the name of the defence based on the defendant's engagement in an illegal act at the time he was injured?

Ex turpi causa non oritur actio

4. Is there a doctrine of ‘informed consent’ in English law?

No

5. What is the limitation period for tort actions?

Six years from the date at which the action accrued.

6. What is an ‘inevitable accident’?

An accident which no human foresight could have prevented.

7. What is the term used to describe damage which exists, but which cannot be detected straightaway, and what does this cause problems for?

Latent damage. It causes problems for limitation purposes (lessened somewhat by the Latent Damage act 1986).

21. Criticisms of Tort — Reforms

1. What is the name for the set of rules implemented as a result of The Woolf Report, Access to Justice?

Civil Procedure Rules 1998

2. Name four major criticisms often levelled at the tort system?

The need to prove fault, uncertainty for claimants, failure to meet its objectives and inefficiency.

3. What has replaced legal aid in personal injury claims?

The conditional fee system.

4. What alternative to the tort system was advocated in Halsey v Milton Keynes General NHS Trust?

Mediation

5. What is the most often mooted alternative for the tort system as it currently stands?

A no-fault compensation system.