4 - Tort Law Flashcards
Describe the basic principals of tort law.
Allows a person to sue someone for causing them a loss, injury, or damage.
Holds people accountable, upholds standards in business etc.
Explain negligence.
E1) D owes C a duty of care.
Initial principle (‘neighbour principle’) given in Donoghue V Stevenson.
Since Robinson the courts use existing precedent to decide if their is a duty and if there is none then the Caparo Test is used.
Caparo Test
1) Harm must be foreseeable, objective reasonable person test, (Jolley V Sutton LBC).
2) The parties must be sufficiently proximate, in time, space, or relationship (Bourhill V Young)
3) It must be fair, just and reasonable to impose a duty (Hill V CC of W Yorkshire Police). It is not fair to impose a duty on large public bodies, the police, or councils as it would case too many cases being made.
E2) The duty of care must have been breached.
D did do what a reasonable person wouldn’t do or did not do what a reasonable person would do. (Blyth V Birmingham Waterworks Company Ltd.)
For the reasonable person test age is considered (Mullins V Richards), however inexperience isn’t (Nettleship V Western). Professionals are judged up to the standard of their profession (Bolam), for DIY D is judged up to standard of a normal DIY enthusiast (Wells V Cooper).
Risk factors are considered: likelihood of harm (Haley V London Electricity Board), magnitude of harm (Paris V Stepney), the practicality of taking precautions (Latimer V AEC)m and the benefits of the risk for society (Watt V Hertfordshire CC).
E3) The breach must have caused the loss, must be factual - but for test (Barnett V Chelsea & Kensington Hospitals)
Legal - the damage mustn’t be too remote from D’s act (Wagon Mound).
Thin skull rule applies (Smith V Leech Brain).
Describe Occupiers’ Liability 1957.
Comes from Occupiers’ Liability Act 1957.
Type of negligence.
Occupier has a duty towards lawful visitors.
Explain Occupiers’ Liability 1957.
1) Occupier - No statutory definition, comes from common law (Wheat V Lacon). Act says that occupiers are people who have a degree of control over the premises. Ownership not required.
Multiple people can have ‘control’ - judge decides who has control based on case facts (Wheat V Lacon)
2) Premises - s1(3) explains premises are any fixed or moveable structure, including any vessel, vehicle, or aircraft.
3) Lawful visitor - those who are on a premises with the occupier’s invitation (s1(2)), occupiers’ expressed or implied permission. Lawful if they are under a contract or have acquired a licence over the premises (were trespassers but the owner didn’t object to it, developed a right over the premises) (Lowery V Walker)
4) Duty owed to lawful visitors. set out in s2(2), take care to ensure the visitor is reasonably safe in using the premises.
5) Standard of Care must6 be breached/ Objective test - has D done something a reasonable occupier would or wouldn’t have done. Standard of care for children is higher than adults (Jolley V Sutton).
Standard of care lowered for workmen (Roles V Nathan).
An occupier can discharge their duty by providing a warning - s2(4)(a) says a warning must be effective. Warnings don’t have to protect against an obvious risk (Derby V National Trust - shouldn’t have to say you can drown in a pond). Airport signs should be in different languages, some signs should provide alternatives (e.g. escalator broken - use stairs).
s2(4)(b) - occupier not liable for loss or injuries caused by an independent contractor, if it was reasonable to trust the contractor (Haseldene V Daw) and the occupier has taken reasonable steps to satisfy that the contractor was competent and the work was done properly (Bottomley V Todmorden Crickey Club - didn’t check contractor’s insurance).
C can claim for death injury or loss (includes damage to property).
Defences - contributory negligence (s2(3)), volenti non fit injuria (s2(5)).
Describe Occupiers’ Liability 1984.
Occupiers’ Liability Act 1984
Occupiers owe some care to trespassers.
Explain Occupiers’ Liability 1984
1) D must be an occupier (Wheat V Lacon) - someone who has some degree of control over a premises.
2) Trespasser - someone who doesn’t have or exceeds permission.
3) Premises - Include any land or property, includes outdoor fire escape (Keown V Coventry NHS Trust).
4) Duty - s1(3) - duty is owed to nno-visitors to prevent serious injury caused by something inherently dangerous.
Occupier only owes duty to trespasser if:
s1(3)(a) - is aware that the danger exists.
s1(3)(b) - is aware that the victim is in the vicinity of the danger
s1(3)(c) - the occupier can prevent the risk.
There is no duty if it is not inherently dangerous.
5) Standard of care - s1(4) did D take reasonable precautions to keep the trespasser free from injury/
6) Damage must be foreseeable
7) s1(5) - an occupier can use warnings to avoid liability (Tomlinson - almost any sign is reasonable for an adult).
C can only claim for personal injury or death.
Defences - volenti.
Evaluate negligence.
Common law - judge made decisions - means that the law changes slowly. - may not be democratic, judgement may not reflect society, judges are experts and generally don’t make errors.
Proving fault - difficult and costly, takes a long time, requires lawyers (legal aid not provided - some lawyers will do CFAs).
Duty of Care - problem with the 3rd part ‘fair just and reasonable’ - subjective, puts greater good of society over individual rights, prevents people from suing public bodies
Breach of Duty - allows for some characteristics but not all, inexperience not counted (Nettleship V Western), court considering risk factors mean it is inconsistently applied however fair.
Proposal’s for reform - creation of a state run scheme to provide people with compensation or everyone have liability insurance which pays out if they are injured. ADR should be encouraged to reduce the claims being made.
Evaluate OPA 1957 & 1984
Raises standards,
In statute so is clear and easily accessible - but can’t change with the times.
1957 and 1984 Acts made quite far apart so reflect different societies.
Occupiers’ actions judged objectively - fair on claimant, but could be unfair for the occupier if they didn’t know of a danger.
Fair as occupier’s can negate their responsibility with signage, and workmen have to accept some responsibility for their work.
1984 Act recognises common humanity, not all trespassers are doing it intentionally.
Broad interpretations of occupier and premises - this could make it harsh on Ds.
Trespasser only claim for personal injury strikes a balance between D and C.
Quite easy to avoid liability, this makes it fair for D but unfair for C.
Some argue it is inherently unjust for someone to be liable for trespassers.
Describe Private Nuisance.
Common law.
Tort against land.
Prof. Winfield said it is an indirect and unlawful interference with the claimant’s quiet enjoyment of land.
Balance competing interests.
Explain Private Nuisance.
E1) Parties
C - must gave an interest in the land (owner, tenant - legal interest). Is not a family member, guest or employee (Malone V Laskey - Wife hit on head with toilet which fell due to rumbling from neighbour, wasn’t on lease so couldn’t have private nuisance
D - the creator, adopter, or continuer of the nuisance
E2) Must be an unlawful interference.
An annoyance is not (Hunter V Canary Wharf - loss of TV signal).
Court considers:
Duration - the longer a nuisance last the less likely it is unreasonable, most nuisances or ongoing interferences but can be one offs (Crown River Cruises V Kimbolton Fireworks - firework debris cause damage).
Locality - reasonableness of nuisance depends on location. (Sturges V Bridgman - ‘what would be a nuisance in Belgravia would not be in Bermondsey’). Not considered if is damage to property (St Helens Smoking Co. V Tippling).
Sensitivity - Not considered (Robinson V Kilvert). If it would have damaged an ordinary thing then it is private nuisance.
Motive - If it is malicious it is more likely to be nuisance (Hollywood Silver Fox Farm V Emmett)
Planning Permission - does not change the locality (Coventry V Lawrence).
Public Utility - not considered in verdict but is in remedy (Miller V Jackson - house next to cricket field damaged, damages awarded rather than injunction).
E3) Forseeability of Harm
The damage caused by the nuisance must be foreseeable (Cambridge Water Co. V Eastern Counties Leather - chemicals leaked through permeable concrete, went into the soil and were carried to a water pump).
DEFENCES:
Prescription - if D’s nuisance has existed for 20 years (Sturges V Bridgman).
Statutory Authority - parliament said so (Allen V Gulf Refining Ltd.)
Coming to a nuisance is not a defence.
Remedies - injunction or damages
NOTHING FOR PERSONAL INJURY
Describe Rylands v Fletcher.
Strict liability offence (no fault needed to be proved)
For one off incidents.
Created in industrial revolution to protect environment and working conditions.
Explain Rylands V Fletcher.
Parties - C is a person who has an interest in the effected land. D is the accumulator of something likely to cause mischief.
1) Accumulation.
The thing must have accumulated on D’s land. Must be none natural, and for D’s benefit (Dunne V North West Gas Board). D must bring something and keep it (Giles V Walker).
2) Likely to cause mischief upon its escape.
Doesn’t have to be inherently dangerous (Rylands V Fletcher - water). Escape doesn’t have to be likely.
3) Non-natural.
This means not commonplace (Rickards V Lothian) and extraordinary (Transco V Stockport). Any storage of dyes and chemicals is non-natural (Cambridge Water V Eastern Counties Leather). Possessing large quantities of something is non-natural (Harooni V Rustins).
4) Substance must escape.
Must have left D’s property (Read V Lyons)
5) Damage must not be too remote (Cambridge Water V Eastern Counties Leather).
DEFENCES
Act of Stranger - D had no control over escape (Perry V Kendricks Transport LTD.)
Act of God - event independent of humans (Carstairs V Taylor).
Statutory Authority - (Green V Chelsea Waterworks).
Consent - If C receives a benefit from the accumulation they may have deemed to have consented (Peters V Prince of Wales Theatre).
C’s fault - (Dunn V Birmingham Canal Co.)
Damages awarded, can’t claim for personal repair or pure economic loss.
Describe vicarious liability.
Not a tort in itself.
It is imposing liability on the person who did not commit the tort.
Common in employment.
Common law.
Explain vicarious liability.
Parties - D is employer, C is victim, Tort Feasor is employee
E1) Tort feasor must have done a tort, usually negligence (Barnett V Chelsea & Kensington Hospitals), can be a crime (Mohamud V Morrisons), C suffers a loss or personal injury.
E2) D employs tort feasor.
Three traditional tests:
1) Control test - master-servant relationship, can tell what to do, sack etc. (Yewens & Noaks).
2) Integration test - How integrated is employee in D’s business (Jordan & Stephens).
3) Multiple Reality test - contract, pension, tax, uniform, equipment (Ready Mix Concrete).
However, there are more modern ways of deciding employment:
Akin to employment test - created in Lister V Hesley Hall. Confirmed by Ames V Nottingham County Council.
Cox V Ministry of Justice - D’s organisation doesn’t have to be commercial or for profit (prisoners working in prison kitchen injured an assistant).
E3) Employee was acting in the course of their employment.
Is usually if:
Doing an authorised act in an authorised way.
Doing an authorised act in an unauthorised way (Century insurance),
Doing an unauthorised act that benefits employer (Rose V Plenty).
If they employee detoured but was still on employer’s business (Joel V Morrison)
Authorised act done over zealously (Vasey V Surrey Inns).
Not generally liable if:
Outside scope of employment (Stoney V Ashton).
Expressly prohibited act (Iqbal V London Bus Company).
Employee going for a frolic on their own (Rose V Plenty).
Describe and Explain the defence of contributory negligence.
Statutory - Law Reform Act 1945
Must be proved that the C’s own behaviour fell below the standard of a reasonable person, and that this contributed to C’s loss.
Before the defence is considered the damages are decided, then if the defence is successful it is decided to what % C is at fault and the damages D has to pay are reduced by that much. (Sayers V Harlow Urban District Council - Trapped in toilet cubicle, tried to use the toilet role holder to climb out, it broke and she fell. It was decided that the injury was 25% her own fault so D paid 75% of the damages).
There can be a 100% reduction (Jayes V IMI Ltd.)
C may not be to blame but their conduct made it worse (e.g.. not wearing a seatbelt). (Froom V Butcher)
