College aantekeningen

Tort Law Outline

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Tort Law

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Tilburg University (UVT)

Schematic outline for the first-year course of Tort Law. Does not follow powerpoint slides, but has outlined the different torts for each jurisdiction with the requirements and provisions.

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Geupload op 15 maart 2021
Aantal pagina's 17
Geschreven in 2018/2019
Type College aantekeningen
Docent(en) Tfe tjong tjin tai.
Bevat Alle colleges

tort law
england
germany
netherlands
france
negligence
breach of a duty
trespass
nuisance
liability act
consumer protection
product liability
fault liability
verschuldenshaftung
strict liability
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ENGLAND

Tort of Negligence

• Duty of Care, Atkinian principle
o Caparo v Dickman
▪ Reasonably foreseeable harm. 3 requirements:
▪ Proximity: means that the parties are in such a relationship that an act of one party may
cause damage to the other (e.g. physical proximity, proximity in time and space).
▪ Fair, just and reasonable:
o Hedley Byrne case for assumption of responsibility. 4 requirements:
▪ Person holds himself out (expressly or impliedly) as having some kind of advantage over the
claimant, such as special skills or special knowledge.
▪ Claimant must have relied on this assumption and this reliance must be reasonable.
▪ The assumption does not have to be voluntarily.
▪ Assumption and reliance will usually follow from direct contact between the claimant and
the defendant but this is not necessary. See also: White v Jones
o Psychiatric injury
▪ Need to prove that they have a close tie of love and affection with the primary victim and
had personally witnessed the accident or its direct aftermath (rather than seeing it on
television as in case XX).m See also section 705-4
o Omissions
▪ In principle no duty to act, unless one of the exceptions established in the case law applies.
See section 808
o
o omic loss
▪ Duty of care if: The defendant has assumed responsibility for the claimant’s interests (e.g. a
bank)
▪ A duty of care to provide accurate information (Caparo)
▪ See sections 710-4 and 710-5
o Liability of public bodies
▪ See section 1804
• Breach of that Duty
o Seriousness of the expected damage
o Probability of Accident
o Burden of taking precautionary measures
o Character and Benefit of the Conduct
o Knowledge and Skills of the Defendant
• Damage (in principle limited to physical damage to property by Spartan Steel)
• Causation
o But for test (50% balance)
o Foreseeability (wagon mound case)
• Defenses
o New intervening act
▪ Reduce liability of D
o Someone or something that is acting to brak the chainof causation
▪ Third party
▪ External event
▪ Claimant (S 1 of law reform contributory negligence act 1945)

,Tresspass - do not requrie damage

Defenses big role (self-defense, consent)

• Trespass to the Person
o Claimant must prove that the defendant intentionally inflicted direct injury. Does not require
damage.
o Assault
▪ An act which causes the claimant reasonable apprehension of the infliction of a battery on
him by the defendant. The attempt or offer to beat another person without touching him.
The threat must be real. See also: protection harassment act.
▪ Defenses:
• Self-defense
o A plea of mistaken self-defense requires not only that the mistaken belief
that he had been under threat had been honestly held, but also that is had
been reasonably held
o Battery
▪ Intentional and direct application of force to another person. Unlawful contact must be
intended, not the consequential damage, within reason.
▪ Defenses:
• Self-defense
o A plea of mistaken self-defense requires not only that the mistaken belief
that he had been under threat had been honestly held, but also that is had
been reasonably held.
• Consent
o Consent to the contact means no battery
o To protect doctors, courts de facto reversed the burden of proof and left it
to the patient to show lack of effective consent by making lack of consent a
definitional element of the intentional tort.
o Mental Capacity Act 2005
• medical necessity
o Defendant must show that there was a necessity to act without it being
practicable to communicate with the victim, and that his intervention was in
the ‘best interests’ of the victim. Must not encroach upon the victim’s
personal autonomy. Personal autonomy prevails over benevolent
paternalism.
▪ Contact sports: section 809
o Defamation
▪ Libel: A defamatory statement was in permanent and visible form
▪ Slander: A temporary and audible statement is sufficient for liability
▪ Classic test: whether ‘the words tend to lower the plaintiff in the estimation of right-thinking
members of society generally.’ Lord Scrutton: “A man is liable for the reasonable
interferences to be drawn from the words he used, whether he foresaw them or not.”
▪ Defenses
• Absolute privilege for statements made in parliament
• Justification: if the statement is of a factual nature
• Fair comment: if the statement is a matter of opinion rather than fact
• Qualified privilege: applies if there is a professional or moral duty to communicate
and a public interest to receive the information

, o Was the manner in which the information was gathered and published
responsible and fair?
o False imprisonment
▪ Defendant will be liable if he has restricted the claimant’s movement in every direction and
irrespective of whether the claimant was aware of such a restriction
o Malicious prosecution
▪ The claimant must show that the defendant initiated an unsuccessful criminal prosecution
against him
• Defendant did not have an honest belief, based upon objective facts, as to the
claimant’s guilt
• The defendant’s initiation of the prosecution must have been inspired by a malicious
personal motive, alien to any genuine desire to assist the police in the enforcement
of justice
• Claimant must show that the proceedings had reached such a stage that they caused
damage to his reputation, his person (imprisonment or the threat of imprisonment)
or his property (costs and court expenses)
o Intentionally but indirectly caused damage to the person
▪ Defendant can be held liable for intentionally causing shock that indirectly caused damage
o Protection from harassment act 1997
▪ Protects a person from being harassed or stalked by another person without being assaulted
or beaten.
• Course of conduct
• Course of conduct must have alarmed the claimant
• Must have caused distress
• Impact component: reasonable person in possession of the same information would
have thought that the course of conduct amounted to harassment.

• Trespass to Land (actionable per se)
o That form of trespass which is constituted by unjustifiable interference with the possession of land.
▪ Trespasser acted voluntarily
▪ Trespasser caused the damage directly
▪ Trespass implies liability, intention is not required
o Can also be committed by entering into another person’s airspace. If an aircraft flies at reasonable
height, this does not create a trespass into the airspace. If anything falls onto the land from an
aircraft, it is a trespass. Damage is compensable without proof of fault.
o Defenses
▪ Permission: the claimant had granted him a license to enter the land
▪ Necessity: the necessary destruction of a building to prevent a fire from spreading
▪ Inevitable accident
o Actions
▪ Recovery of the land
▪ Damages in respect of loss (of profit) as a result of being kept out of possession
▪ Entitled to use reasonable force to eject a trespasser
▪ See also: private nuisance
• Trespass to Goods (actionable per se)
o Physical interference with goods that are in possession of another without lawful justification
o Mainly of strict nature: intention or negligence is not required.
o Requires proof of some damage
o If the owner lodges a claim for damages, he has to prove intention or negligence

, • Conversion:
o may be committed by wrongfully taking possession of goods, by wrongfully disposing of them, by
wrongfully misusing them, by wrongfully destroying them or by simply wrongfully refusing to give
them up when demanded.
o Liability is strict
▪ The defendant need only intend the voluntary act in question and not necessarily the
consequences of that act for the claimant

Nuisance

• Public Nuisance
o Interference with a public or common right. A claim can also be for personal injury.
▪ Implies an unlawful act or omission causing annoyance to the general public but the
nuisance needs to be so widespread that it would not be reasonable to expect one person to
bring proceedings.
▪ Further requires that the damage suffered is special (whenever the claimant can show that
the right he shares with others has been appreciably more affected by the defendant’s
behavior.
▪ Requires negligent conduct, but this is presumed and it is up to the defendant to prove that
he did not act negligently.
▪ (see also: 1504-2)
• Private Nuisance
o An act that is not trespass and interferes with a person in the enjoyment of his land or premises or a
right he has over the land of another person.
o May also play a role in liability for damage to the environment (see 1414-1)
o Requirements
▪ There must be a repetition or a continuing state of affairs (but a single act of nuisance may
fall within the scope of the statutory nuisance rule in §73(6) of the Environmental Protection
Act 1990 (1414-2)
▪ Only persons with a proprietary interest in land have standing to file a claim for private
nuisance
▪ Said to be strict, taking all reasonable care is no defense (may be different if caused by third
party or nature)
▪ The harm caused by the nuisance must be foreseeable (Cambridge Water)
o Covers only material damage, loss of amenities, diminution of the utility of the land (loss of property
value)
• Rylands v Fletcher
o See 1414-2

Other Torts

• Occupiers Liability Act 1957 / Occupiers’ Liability Act 1984 see section 1504-1

Requirements

o Damage caused on occupier’s premises
o Occupier needs to have control over premises
o Breach of duty of care to supervise the safety of the visitor on the premises
o Risk on premises was due to state of the premises
• Consumer Protection Act 1987
• Product Liability Directive
• Breach of a Statutory Duty

, • Liability for Animals (Animals Act 1971, common law tort law)
• Liability for other Persons
o Vicarious Liability (employer for employee)
• Infringement of privacy
•

Cases

• Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5
o Psychological harm requirements
▪ Medically recognized illness
▪ Proximity of relationship
▪ Proximity in time and space
▪ Cause: sudden horrific event
▪ Foreseeable to defendant that such an event may cause shock to a normal person
• Cambridge Water Co. Ltd v. Eastern Countries Leather plc [1994] 1 All ER 77
o Concerns a company that had leaked chemicals onto land in the 1970s, which ultimately caused
damage to adjacent land via underground streams. The HoL stated that a claim in private nuisance
required that the possibility of nuisance of this type was reasonably foreseeable for someone such
as the defendant. In this case, the harm was considered not to be foreseeable and therefore the
private nuisance claim was dismissed.
• Campbell v MGN [2004] UKHL 22
• Caparo Industries plc. v. Dickman [1990] 2 AC 269
o Duty of care
• Catholic Child Welfare Society v. The Institute of the Brothers of the Christian Schools [2013] 2 AC 1
• Donoghue v. Stevenson [1932] A.C. 562.
o Atkinian principle (not binding): implies that someone owes a duty of care to everyone who, by
negligent conduct, can suffer foreseeable damage provided there is sufficient proximity between the
wrongdoer and the victim.
• Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32.
o Speech of Lord Bingham of Cornhill regarding use of comparative law in a European context. In this
case, the claimants attempted to claim compensation for the damage they suffered from an
asbestos-related occupational disease (mesothelioma). They had worked for two employers, each of
whom was in breach of its duty to protect its employees from inhaling asbestos dust, but the
claimants could not prove whether their illness was caused by the first or the second employer, or
by both. For this reason, the Court of Appeal dismissed the claims. In the HoL, Lord Bingham of
Cornhill considered the way other jurisdictions had dealt with the issue. “Development of the law in
this country cannot of course depend on a head-count of decisions and codes adopted in other
countries around the world, often against a background of different rules and traditions. The law
must be developed coherently, in accordance with principle, so as to serve, even-handedly, the ends
of justice. If, however, a decisions is given in this country which offends one’s basic sense of justice,
and if consideration of international sources suggest that a different and more acceptable decision
would be given in most other jurisdictions, whatever legal tradition, this must prompt anxious
review of the decision in question.”
• Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] A.C. 465.
o (Assumption of responsibility) The advertising agency Hedley Byrne & Co. asked the Heller bank for
information about the solvency of one of his clients. The bank gave positive information based on
inadequate research. Shortly thereafter, the client went bankrupt and Hedley suffered damage. The
HoL decided unanimously, referring to the Atkinian Principle in Donogue v Stevenson that there can
be a duty of care in order to prevent third parties suffering economic loss from negligent

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