Graduate Diploma in Law (GDL) Tort Law Flashcards

24 sample cards from the Tort Law deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. Explain the defence of contributory negligence and its statutory effect.

   Where the claimant's own fault contributed to their damage, damages are reduced by a just and equitable proportion reflecting their share of responsibility, under the Law Reform (Contributory Negligence) Act 1945, s.1. It is a partial defence, not a complete bar.

2. State the elements and effect of the defence of volenti non fit injuria (consent).

   A complete defence requiring the claimant: (1) had full knowledge of the nature and extent of the risk; and (2) voluntarily and freely agreed to run that risk (impliedly waiving the right to sue). Rarely succeeds; limited by statute for road users.

3. What is the effect of the illegality defence (ex turpi causa) in negligence?

   A complete defence: the court will not assist a claimant whose claim is founded on their own illegal or immoral act. Applied via a policy-based 'range of factors' test (Patel v Mirza).

4. Who is an 'occupier' and a 'visitor' under the Occupiers' Liability Act 1957?

   An occupier is anyone with sufficient control over premises (Wheat v Lacon). A visitor is a person with express or implied permission/lawful authority to be there. The 1957 Act governs the duty owed to lawful visitors.

5. State the 'common duty of care' owed to visitors under s.2(2) of the Occupiers' Liability Act 1957.

   A duty to take such care as is reasonable in all the circumstances to see that the visitor will be reasonably safe in using the premises for the purposes for which they are permitted to be there.

6. How do the 1957 Act provisions treat child visitors and skilled visitors (s.2(3))?

   s.2(3)(a): an occupier must be prepared for children to be less careful than adults (higher care; beware allurements). s.2(3)(b): an occupier may expect a person exercising a calling to guard against risks ordinarily incident to it.

7. When does an occupier owe a duty to TRESPASSERS, and what is its content, under the Occupiers' Liability Act 1984?

   A duty arises if (s.1(3)): the occupier is aware of the danger, knows/believes the trespasser may come into its vicinity, and the risk is one against which it is reasonable to offer protection. The duty (s.1(4)) is to take reasonable care to prevent injury from the danger.

8. What types of loss are recoverable by trespassers under the 1984 Act versus visitors under the 1957 Act?

   The 1984 Act covers death and personal injury only — NOT property damage. The 1957 Act covers personal injury AND damage to property of visitors.

9. Define private nuisance and identify who may sue.

   An unlawful, indirect interference with a person's use or enjoyment of land, or some right over or in connection with it. Only a person with a legal interest in the affected land (e.g., owner/tenant in possession) may sue (Hunter v Canary Wharf).

10. List the key factors used to determine whether an interference is 'unreasonable' in private nuisance.

    Duration and frequency, the character/locality of the neighbourhood, the claimant's abnormal sensitivity, malice on the defendant's part, and any social utility of the activity. Physical damage to land usually overrides locality considerations.

11. State the rule in Rylands v Fletcher and its essential requirements.

    A person who brings onto their land and accumulates a dangerous thing in the course of a NON-natural use is strictly liable if it escapes and causes foreseeable damage. Requirements: (1) accumulation; (2) likely to do mischief if it escapes; (3) non-natural use; (4) escape; (5) foreseeable harm of the relevant type (Cambridge Water).

12. How does liability under Rylands v Fletcher differ from negligence and private nuisance?

    Rylands imposes STRICT liability (no need to prove fault/breach) for an isolated ESCAPE, whereas negligence requires breach of a duty and nuisance typically requires a continuing state of affairs. Rylands is now treated as a sub-species of nuisance.

13. What are the three forms of trespass to the person?

    (1) Assault — causing the claimant to reasonably apprehend immediate unlawful force; (2) Battery — the infliction of unlawful force on another; and (3) False imprisonment — the unlawful, complete restriction of the claimant's freedom of movement.

14. What distinguishes trespass to the person from negligence regarding fault and damage?

    Trespass to the person requires an INTENTIONAL (and direct) act and is actionable PER SE (without proof of damage). Negligence requires only careless conduct but the claimant MUST prove actual damage.

15. Define trespass to land.

    The direct and unjustifiable interference with land in the possession of another (e.g., entering without permission, placing objects on it, remaining after permission ends). It is intentional and actionable per se, without proof of damage.

16. What two requirements must be satisfied for an employer to be vicariously liable for a tort?

    (1) The tortfeasor must be an employee (or in a relationship 'akin to employment'); and (2) the tort must be committed in the course of employment (a sufficiently 'close connection' with the employment).

17. State the 'close connection' test for course of employment from Lister v Hesley Hall and Mohamud v Morrison Supermarkets.

    The employer is liable where the wrongful conduct is so closely connected with acts the employee was authorised to do that it may fairly and properly be regarded as done in the ordinary course of employment — even for some intentional/criminal acts.

18. How do the courts identify a relationship 'akin to employment' (Various Claimants v Catholic Child Welfare Society)?

    By examining policy factors: the employer can meet a claim (insurance), the tort arose from activity on the employer's behalf, the activity was part of the employer's business, the employer created the risk, and the employer controlled the tortfeasor.

19. Distinguish vicarious liability from an employer's PRIMARY liability.

    Vicarious liability is secondary/no-fault liability for the tort of ANOTHER (the employee). Primary liability is the employer's OWN breach of a personal, non-delegable duty owed directly to the employee.

20. State the four aspects of an employer's non-delegable primary duty to employees (Wilsons & Clyde Coal v English).

    To provide: (1) competent staff/fellow employees; (2) a safe place of work; (3) safe plant, equipment and materials; and (4) a safe system of work (including supervision). The duty is personal and cannot be discharged by delegation.

21. What are the two main categories of damages in tort, and what is their overarching aim?

    Special damages (precisely quantifiable past losses, e.g., lost earnings/expenses to trial) and general damages (non-precisely quantifiable, e.g., pain, suffering, loss of amenity, future loss). The aim is restitutio in integrum — to put the claimant in the position they would have been in had the tort not occurred.

22. How is the multiplier/multiplicand method used to calculate future loss of earnings in a personal injury claim?

    Future loss = multiplicand × multiplier. The multiplicand is the annual net loss; the multiplier is the number of years of loss adjusted (using Ogden Tables and the discount rate) for accelerated receipt and contingencies. Expressed as $\text{Award} = \text{multiplicand} \times \text{multiplier}$.

23. Distinguish libel from slander in defamation, and state defamation's serious harm threshold.

    Libel is defamation in permanent form (writing, broadcast) and is actionable per se; slander is in transient form (spoken words) and generally requires proof of special damage. Under the Defamation Act 2013 s.1, a statement is not defamatory unless it has caused or is likely to cause 'serious harm' to reputation.

24. Name the principal defences to defamation and the basis for protecting privacy in English law.

    Defamation defences (Defamation Act 2013): truth (s.2), honest opinion (s.3), and publication on a matter of public interest (s.4); plus absolute/qualified privilege. Privacy is protected via the tort of misuse of private information (Campbell v MGN), balancing Article 8 (privacy) against Article 10 (expression).

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