2. Legal and liabilities Flashcards
Who is responsible for trees and their overhanging branches into neighbouring property?
Landowners
What is strict liability?
The legal responsibility under tort for damages or injury even when the person that is found strictly liable was not at fault or negligent. Commonly this relates to the unnatural escape of something such as water or animals which then cause damage. This was illustrated by the Ryland and Fletcher case. The landowner Rylands was found strictly liable, even though they were not at fault, it was the contractor who had led to the water flooding onto neighbouring land.
What is the law of tort?
A tort is an act which leads to legal liability under common law in the absence of a contract.
There are six types of tort these include trespass, nuisance, defamation (libel/slander), negligence, strictly liability and vicarious liability
What is tort?
Tort is a wrongful act other than a breach of contract that results in injury to another’s body, property, dignity or reputation and it is recognised by statute or common law.
What is the master servant relationship?
It is a concept underpinning vicarious liability. The superior person takes responsibility for the act of their subordinate for example, a manager takes responsibility for the employees they manage.
What is the controlling mind?
This relates to how people act in regard to the companies controlling mind and carrying out acts that can be attributed to the company. For example manslaughter. If an employee was doing their work as they have been told in line with company instructions and methods and caused death, then this is corporate manslaughter.
What actions from a landscape architect might give rise to liability claims?
If not carried out with reasonable care:
Incompetent design, including taking account of relevant risks
Negligent survey
In adequate inspection
Negligent financial advice
Negligent legal advice
Negligence certify payments
The risk of this can be minimised if we act in accordance with the landscape institutes code of practice.
What is the difference between suing in contract or in tort?
Both come under civil law, but there is a difference between contract law and the law of tort. You can only be sued in contract if there is a breach in that contract between the parties involved.
What is liability?
Liability is defined us having a legal responsibility for something
What does a landscape architect need to know about the law?
It is necessary in order to carry out our responsibility to client the profession and society as set out in the code of practice. It is part of our professional competency and ignorance of the law is no excuse.
What is the difference between civil and criminal law?
Civil law is for dispute between individuals or organisations and aims to write the wrongdoing through compensation. The wrong doer is not punished. They only have to make good the wrong civil law includes contract law and the law of tort.
Criminal law on the other hand is for looking after the public interests whereby police and prosecutors are hired by government using public funds. Wrongdoers are punished whether via fines or prison sentences.
What is legislation?
Legislation are written rules and laws made by government. It is enacted via an act of parliament such as the town and country planning act and the countryside and rights of way act. These acts are comprised of regulations orders and rules.
What is negligence?
Negligence is an act either in tort or under contract whereby there is a careless infliction of harm or damage. There are three essential elements these include the existence of illegal duty of care, a breach of that duty, damage caused. They can be applicable to landscape architect in addition to contractual obligations personal injury or defects.
The law for this is Donahue versus Stevenson. Donahue drank a drink with a snail and was ill. The House of Lords held that Stevenson owed duty of care to Donoghue despite not having a contract it was foreseeable that a snail could end up in the drink and that could result in injury.
What is nuisance?
Nuisance is a tort (a wrongful act in the absence of a contract) whereby an unreasonable interference causes damage. The interference is something that could be foreseen such as a contractor leaving mud on the road or blocking roads with lorries. encroachment is a type of nuisance such as tree branches overhanging neighbouring land and causing damage. It can be prevented by being mindful of others and their land and property.
What is trespass?
Trespass is a tort (a wrongful act in the absence of a contract) whereby there is an intentional entering onto land remaining on land or causing anything to come into contact with land which is in possession of another this includes the air above and the soil below the land. It can also include equipment to rest or hang over another person‘s property, in England and Wales, no proof is needed to action on trespass.
What is defamation?
Defamation is a tort (a wrongful act in the absence of a contract) whereby there is a publication of a false statement which damages the reputation of another unfairly. It includes libel and slander.
What is a duty of care?
A duty of care is an unwritten responsibility that you will make a reasonable effort to do the best for the environment, end users, communities, the profession and the client. Every professional owes a duty of care to anyone who might reasonably rely on their service or advice whether or not it is paid.
Who do we as landscape architect owe a duty of care to?
We owe a duty of care to the client, society, environment, landscape profession, company, employer, employees, and other professionals. A breach of a duty of care can lead to negligence and consequent claims.
What liabilities do landscape architects have?
We have professional liabilities in contract and tort as an employee, employer and occupier.
What is the difference between strict duty and duty of care?
Strict duty is a promise that something will happen with a desired result. A duty of care is an unwritten responsibility that you will make a reasonable effort to do the best for the environment, end users, communities, profession, and the client.
How long are you liable for?
Under contract, six years
Contract under seal, 12 years
Tort, six years
Professional injury, three years from date of injury
Latent damage, 15 years
Defamation, one year
What is the current court structure?
Initially there is a magistrates court for criminal law and county court common law. Then there is the court of appeal, the UK Supreme Court and the court of Justice of the EU which still applies following Brexit.
What are the two sources of law in England and Wales?
Criminal written enacted law
Common civil unwritten law
What European laws govern the way in which we work as landscape architect and how may these have changed post Brexit?
CDM regulations and EIA regulations have been embedded into UK law following Brexit
What is a contract?
A contract is a legal agreement between individuals. This legal relationship between parties can be enforced by law if breached by either party. To be bound by law it must have an offer, consideration, and acceptance. As set out in the code of practice, contracts that we enter into as landscape architects must be in writing.
What are the essentials of a valid contract?
The intention to create legal relations
The consideration
An agreement
What are the terms of a contract?
The terms of a contract established the obligations of each party. Both parties are legally bound to those terms.
In a contract, what are expressed and implied terms?
Express terms are formally agreed and set out in writing, for example what you agreed to do, who for, when by.
Implied terms are not written within the contract, but the landscape architect should be aware that they exist . These can include terms implied by law, custom and professionalism.
Give an example of implied terms of contract
That the landscape architect will carry out all tasks with the appropriate and required level of skill and care
What are standard term contracts?
These are standardised contracts that reduce the chance of terms being misunderstood, for example the landscape consultants appointment. These are essentially a pro forma that prevent us from making mistakes.
What is a restrictive covenant?
A restrictive covenant restricts the way that party can act. In landscape architects work this is normally away in which the land can be used. This applies even when land changes hands. Examples are restrictions on alterations to buildings, building on the land, prohibiting certain uses of land. A project at Define that has a covenant is groveley. Part of the site is owned by Cadbury and they protect the intention and the right of the land.
What is an easement?
An easement is right, which a landowner may hold over the land of another such as access
What legislation covers public rights of way across land?
Public rights of way are covered under the countryside and rights of way act as well as the wildlife and countryside act
Can a public right-of-way be rerouted?
Yes public rights of way can be rerouted using a diversion order as long as the new route is not significantly different or is not less convenient to the public
What is open access land?
Open access land is that which comes under part of the countryside and rights of way act and includes areas of mountains, moorland and land around the English coast path, et cetera
What kind of liability is a landscape architect subject to?
A landscape architect can have a professional liability as an employer and employee and an occupier as well as under contract and tort.
They can be statutory example CDM and EIA
Individual
Jointly liable for example partnership
Or vicarious, i.e. master servant relationship or employer employee
What insurances do landscape practices need?
Professional indemnity insurance
Public liability
Employers liability
Motor
Buildings and contents
What is professional indemnity insurance?
Professional indemnity insurance protects you against claims for loss or damage made by clients or third parties as result of the impact of negligent services that you have provided or advised. This is required by the landscape Institute as part of the code of practice. claims can be made for six years in tort, 12 years in contract. It is calculated by looking at recent projects, conditions of appointment, forms of contract, number of employees, turnover, nature of work, historic claims. If a company ceases trading professional indemnity insurance must be taken out for at least 12 to 15 years after completion of the last project.
What are the employers duties under health and safety law?
The health and safety at work act requires employers to have written statement of safety policies and arrangements, provide appropriate first-aid facilities and training, and insuring employees are aware of health and safety procedures including fire procedures.
What are the employees duties under the health and safety law?
The health and safety work act requires employees to exercise reasonable care to themselves and fellow employees and to cooperate with employers health and safety procedures
What are the principles of employment law?
Employment law covers things such as fairness, reasonableness, equal treatment, correct training, remediation when necessary.
What health and safety legislation should landscape architect be aware of at work?
The health and safety at work act
CDM regulations
What is the health and safety executive?
The health and safety executive is the body that’s responsible for regulating, enforcing and encouraging health, safety and welfare in the workplace
When would you need to notify HSE?
HSE must be notified for most types of health and safety incidents in the workplace including accidents resulting in hospital treatment, death and anything resulting in a worker being off sick for eight days or more
What are collateral warranties and they’re relevant to landscape architect?
Collateral warranties are legal relationship with a third-party for example the future tenants, or purchases of a building. Standard forms exist. Define have had collateral warranties but it is rare. These must be flagged immediately and reviewed by managers, legal team and insurers as there is a financial that was whacked out. I think it risk. As landscape architects we can be sued if latent damages which are our fault come to light, even though the third-party was not in the original contract.
What are the principles and privity of contract and the contract act 1999?
This gives third-party the right to sue under a contract they were not party to. Many standard documents and contracts, for example JCLI and the landscape consultants appointment, were updated to exclude these rights and use collateral warranties instead.
What is liability for breach of contract?
Breach of contract occurs when a party refuses fails or performs defectively as per the contract without a lawful excuse. they would then be liable for the breach of contract legal relations and contractual relations must exist for this to apply
What is the difference between suing in tort or under contract?
Tort relates to duty of care, breach of duty or damage and is not limited to parties with legal relations. suing under contract can happen when parties in contractual relations do not perform under this contract in both express and implied terms. This is the case unless a collateral warranty is used.
What are some ways in which landscape architects actions can give rise to liability claims?
If not carried out with care or skill, our work can lead to claims based on the following,
Negligent surveys or inspections
Incompetent design and not taking into account risk
Negligent financial or legal advice
And negligence in certify payments
What is the difference in liability between a landscape architect in a public versus private practice?
In a private practice landscape architect may have a legal responsibility for other employees such as their partners or other employees and may be liable for the debts of the practice.
In a public landscape architects can only be responsible for their own act relating to their own profession.
How long does liability last in tort and contract?
Both six years less under seal, which is 12 years
What is employers liability insurance?
Employers liability insurance is a legal requirement to protect an employer against any claim brought about by its employees due to employers breach of duty. All UK employers are required to take this out.
What is public liability insurance?
This is insurance to cover damaged to 3rd parties
How long would you be liable for if something went wrong on a project?
Under contract or taught it’s six years
A contract under seal is 12 years
Latent damages is 15 years
Personal injury is three years from the date of injury
And defamation is one year
Why is the case of Ryland versus Fletcher relevant to landscape architect?
This is the key case law relating to strict liability. The outcome of the Rylands versus Fletcher case means landowners are liable for the escape of materials from their land if they cause damage to other peoples property or people. Recent case law has also established that the landowner is not liable if the escape could not have reasonably been foreseen.
Explain the relevance of the copyright design and patents act to landscape architects.
This act restrict the use, copying or distributing of your work as a landscape architect and also gives your employer right over the work that you produce while employed by them.
How many strict liability be relevant under contract?
You may be subject to claims under vicarious liability if your client is under strict liability. under your duty of care, it may also be necessary to ensure the client is aware of strict liability and their responsibilities as a landowner if they are a landowner.
What are the different types of tort?
Negligence
Nuisance
Trespass
Defamation
Strictly liability
Vicarious liability
What is strict liability?
Liability is a form of tort relating to damage caused by the escape of something into another’s land that causes damage
The law for this is Ryland versus Fletcher where by contaminated water flooded from a disused into the neighbouring property.
What is vicarious liability?
Vicarious liability is a form of tort relating to the master servant role. Someone can liable for someone else’s work if damage was caused by an error for example a landowner can be liable for damaged caused by a contractor or a supervisor liable for a juniors error.
What constitutes negligence?
All four of the below elements must exist
A duty of care present under contract or not
The breach of that duty of care
As a result of the breach damages incurred
And this is due to the defendants act or omission
