3: Negligence II Forms of Liability Flashcards
What are the three elements of negligence - occupiers liability
- The defender had sole control of the offending thing
- That the incident would not have occurred had due care been taken
- No explanation given by the defenders as to how the incident happened.
Example: Ward v Tesco Stores [1976] 1 W.L.R. 810- Slipping onyoghurt
Who is an occupier?
An occupier is:
‘a person occupying or having control of land orother premises’- OL(S)A 1960, S1(1)
‘a person occupying or having control of any fixed ormoveable structure, including any vessel, vehicle oraircraft, and to persons entering thereon’- S(1)(3)(a)
What is the duty of care required by occupiers
‘a person occupying or having control of land or other premises (in this Act referred to as an “occupier of premises”) is required, by reason of such occupation or control, to show towards persons entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which he is in law responsible.’- s1(1)
- Positive duty on occupiers
- Burden of proof is on the pursuer
- Titchener v British Railways Board 1984 SC (HL) 34
What is the extent of duty of the occupier
except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that
What are the dangers regarding occupiers liability
- ‘Such care that is reasonable’ means taking into account the circumstances of the incident:
- Taylor v Glasgow Cooperation 1922 1 AC 44- A child eating poisonous berries
- There is no duty to take any extra steps in relation to obvious dangers arising from natural features of the landscape
- Tomlinson v Congleton [2004] 1 A.C. 46 – Swimming in a lake
- Michael Leonard v The Loch Lomond & The Trossachs National Park Authority [2014] CSOH 38- Falling down a hill
Defences available for occupiers liability
‘Nothing in the foregoing provisions of this Act shall beheld to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decidedon the same principles as in other cases in which one person owes to another a duty to show care.’- S2(3)
Volenti non fit injuria- Titchener v British Railways Board
Contributory Negligence- Taylor Neilson Barratt v SpiceLounge (Scotland) Ltd 2017
Describe the Consumer Protection Act 1987
Strict liability for harm suffered by consumers due to defective goods.
Consumers are required to establish that a product was defective and that that defect caused them harm.
Product= ‘any goods or electricity’ and includes component parts and raw materials- CPA 1987, s1(2)(c)
What is a defective product?
A product is defective ‘if the safety of the product is not such as persons generally are entitled to expect’- s3(1)
This is not a scientific test and the court will take into account the surrounding circumstances in determining whether the product is defective.
This includes; the marketing of the product and any attached warnings (s3(2)(a)), what could be reasonably expected to be done with the product (s3(2)(b)), and the time when the product was supplied (s3(2)(c)).
Who is liable for a defective product?
- The producer- s2(2)(a)
- Any person putting their name, trademark, or other distinguishing feature to the product, holding themselves out to be the producer of the product- s2(2)(b)
- The importer- s2(2)(c)
- No liability if the product itself is the only thing damaged-s5(2)
- No liability if property damaged is not for private use- s5(3)
- Property damage must exceed £275 (de minimis)- s5(4)
Who is a producer?
A producer is:
1. The manufacturer- s1(2)(a)
2. The person who own or abstracted the product- s1(2)(b)
3. The person who carried out the industrial process (e.g. agricultural goods)- s1(2)(c)
What happens if the producer cannot be identified?
If the producer cannot be identified, then the consumercan ask that the supplier identify the producer- s2(3)(a)
- This request must be made within a reasonable timeframe after the damage occurs- s(2)(3)(b)
- The supplier must then fail to identify the producer within a reasonable timeframe- s2(3)(c)
The supplier will then be liable.
Defences available under product liability
S4:
1. That the defect is due to compliance with another legal obligation-s4(1)(a)
2. That the person being preceded against did not supply the product to others- s4(1)(b)
3. That the product was not supplied for a profit or in the course ofbusiness- s4(1)(c)
4. Subsequent defects- s4(1)(d)
5. That the nature of the defect meant that a producer would not be expected to discover it due to the state of scientific/ technological understanding at the time- s4(1)(e)- The ‘state of the art’ defence
6. That the defective product was a component of another, final, product and that the defect was attributable to the design of the final product or to compliance with the instruction of the producer of the final product- s4(1)(f)
What does the Consumer Rights Act 2015 cover contracts for
The 2015 Act covers contracts for:
- Sales- s3(2)(a)
- Hire of goods- s3(2)(b)
- Hire-purchase agreements- s3(2)(c)
- Transfer of goods- s3(2)(d)
The Consumer Rights Act 2015 defines sales contracts as where:
- ‘The trader transfers or agrees to transfer ownership of goods to the consumer’- s5(1)(a)
- ‘The consumer pays or agrees to pay the price’- s5(1)(b)
What terms does the Consumer Rights Act 2015 imply into all sales contracts?
- That the goods will match their description- s11(1)
- That the quality of the goods is what the reasonable person would consider satisfactory- s9(2)
This includes:
- fitness for all the purposes for which goods of that kind are usually supplied-s9(3)(a)
- appearance and finish- s9(3)(b)
- freedom from minor defects- s9(3)(c)
- safety- s9(3)(d)
- durability- s9(3)(d)
If the purchaser makes it known to the trader that the goods are for a particular purpose, then it is implied that the goods will be fit for that purpose- s10(1)
