Authorities Flashcards

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1
Q

Trespass to the Person > Steps

A

Step 1: State, ‘The claimant may sue the defendant in tort of trespass to the person for [insert conduct from facts]
Step 2: Define relevant tort, assault or battery
Step 3: Consider what defences are available to the defendant

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2
Q

Trespass to the Person > Step 1 > State?

A

‘The claimant may sue the defendant in tort of trespass to the person for [insert conduct from facts]

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3
Q

Trespass to the Person > Step 1 > Assault and Battery

A

Both assault and battery are actionable per se, so there is no need to prove the physical harm

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4
Q

Assault > Define

A

An intentional act by the defendant causing the claimant to reasonably apprehend the immediate infliction of unlawful force

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5
Q

Assault > Intentional Act > Letang v Cooper

A

Intentional conduct is essential, if not, relevant tort is negligence

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6
Q

Assault > Intentional Act > Intentional conduct is essential, if not, relevant tort is negligence

A

Letang v Cooper

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7
Q

Assault > Intentional Act > R v Ireland

A

Words, as well as actions, may constitute an assault. ‘A thing said is a thing done.’

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8
Q

Assault > Intentional Act > Words, as well as actions, may constitute an assault. ‘A thing said is a thing done.’

A

R v Ireland

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9
Q

Assault > Intentional Act > Tuberville v Savage

A

However, words may also negate an assault, e.g. ‘if we weren’t being watched…’

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10
Q

Assault > Intentional Act > However, words may also negate an assault, e.g. ‘if we weren’t being watched…’

A

Tuberville v Savage

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11
Q

Assault > Immediate > R v Ireland

A

Means within a minute or so

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12
Q

Assault > Immediate > Means within a minute or so

A

R v Ireland

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13
Q

Battery > Define

A

The intentional direct application of unlawful force to another person

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14
Q

Battery > Define > Wilson v Pringle

A

‘Intentional’: the defendant must intend his actions only, not the consequences.

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15
Q

Battery > Define > ‘Intentional’: the defendant must intend his actions only, not the consequences.

A

Wilson v Pringle

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16
Q

Battery > Define > Direct application of force

A

Force must flow almost immediately and without intervention. Physical contact is not necessary

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17
Q

Battery > Define > F v West Berkshire Health Authority

A

‘Unlawful force’: physical contact which is generally acceptable in the ordinary conduct of everyday life will not be unlawful

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18
Q

Battery > Define >

A

F v West Berkshire Health Authority

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19
Q

Trespass to the Person > Defences > List of defences

A

Consent
Defence of the person
Defence of property
Necessity

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20
Q

Trespass to the Person > Defences > Co-operative Group Ltd v Pritchard

A

Defendant cannot allege contributory negligence as a defence to claims for assault and battery

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21
Q

Trespass to the Person > Defences > Defendant cannot allege contributory negligence as a defence to claims for assault and battery

A

Co-operative Group Ltd v Pritchard

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22
Q

Trespass to the Person > Defences > Consent

A

May be implied or express consent

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23
Q

Trespass to the Person > Defences > Consent > Chatterson v Gerson

A

Medical cases – a patient is deemed to have consented to a medical treatment once informed in broad terms of the nature of procedure intended

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24
Q

Trespass to the Person > Defences > Consent > Medical cases – a patient is deemed to have consented to a medical treatment once informed in broad terms of the nature of procedure intended

A

Chatterson v Gerson

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25
Q

Trespass to the Person > Defences > Consent > Chester v Afshar

A

Medical cases – a doctor’s failure to disclose risks will NOT invalidate the patient’s consent

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26
Q

Trespass to the Person > Defences > Consent > Medical cases – a doctor’s failure to disclose risks will NOT invalidate the patient’s consent

A

Chester v Afshar

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27
Q

Trespass to the Person > Defences > Consent > Condon v Basi

A

A sports competitor consents not only to all conduct within the rules of the sport, but also, the conduct outside the rules, but within the spirit of the sport

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28
Q

Trespass to the Person > Defences > Consent > A sports competitor consents not only to all conduct within the rules of the sport, but also, the conduct outside the rules, but within the spirit of the sport

A

Condon v Basi

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29
Q

Trespass to the Person > Defences > Defence of the Person > Cockroft v Smith

A

The defendant must establish that the force was:

(a) used in self-defence
(b) reasonable; and
(c) proportionate to the force used/threatened by the claimant

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30
Q

Trespass to the Person > Defences > Defence of the Person >
The defendant must establish that the force was:
(a) used in self-defence
(b) reasonable; and
(c) proportionate to the force used/threatened by the claimant

A

Cockroft v Smith

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31
Q

Trespass to the Person > Defences > Defence of Property > 2 rules

A

(a) One may take reasonable steps to defend one’s property

b) This includes taking reasonable steps to eject a trespasser (which might mean first asking trespasser to leave

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32
Q

Trespass to the Person > Defences > Defence of Property > Green v Goddard

A

(b) This includes taking reasonable steps to eject a trespasser (which might mean first asking trespasser to leave)

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33
Q

Trespass to the Person > Defences > Defence of Property >

b) This includes taking reasonable steps to eject a trespasser (which might mean first asking trespasser to leave

A

Green v Goddard

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34
Q

Trespass to the Person > Defences > Necessity > What must the defendant show?

A

(a) the defendant must show that:
1. that a situation of necessity existed, and
2. that his actions were reasonable

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35
Q

Trespass to the Person > Defences > Necessity > F v West Berkshire Health Authority

A

Identified two situations where defence of necessity could justify treating an adult medically without consent:

i. An emergency situation where patient is unconscious
ii. a state of affairs (e.g. stroke) rendering patient incapable of giving consent.

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36
Q

Trespass to the Person > Defences > Necessity > Identified two situations where defence of necessity could justify treating an adult medically without consent:

i. An emergency situation where patient is unconscious
ii. a state of affairs (e.g. stroke) rendering patient incapable of giving consent.

A

F v West Berkshire Health Authority

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37
Q

Trespass to the Person > Defences > Necessity > 2 situations identified without consent

A

F v West Berkshire Health Authority
Identified two situations where defence of necessity could justify treating an adult medically without consent:
i. An emergency situation where patient is unconscious
ii. a state of affairs (e.g. stroke) rendering patient incapable of giving consent.

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38
Q

Tort under the Rule in Wilkinson v Downtown > Rule

A

Only consider this rule if assault and battery are ruled out

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39
Q

Tort under the Rule in Wilkinson v Downtown

A

Established a separate tort, in cases where the defendant intends to cause shock to the claimant, who suffers tangible damage as a result.

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40
Q

What is the alternative tort to assault or battery?

A

Wilkinson v Downtown Established a separate tort, in cases where the defendant intends to cause shock to the claimant, who suffers tangible damage as a result.

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41
Q

Tort under the Rule in Wilkinson v Downtown > Rhodes v OPO

A

Reformulated Wilkinson v Downtown to comprise the following elements:
• Conduct requiring words or conduct directed at the claimant for which there was no justification or excuse
• An intention to cause at least severe mental or emotional distress and
• Cause physical harm or recognised psychiatric illness

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42
Q

Tort under the Rule in Wilkinson v Downtown > Causation

A

Not actionable per se, must cause damage

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43
Q

Defamation (Essay Only) > Steps

A

Intro

  1. State claimant may sue defendant for damages in the tort of defamation for [insert conduct from the facts]
  2. Consider whether the elements of defamation are present
  3. Consider what defences are available
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44
Q

Defamation > Libel

A

Defamation in permanent form (actionable per se);

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45
Q

Defamation > Slander

A

Defamation in transient or temporary form (requires loss)

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46
Q

Defamation > Defamation Act 2013

A

Consider the changes this bought into force, particularly ss.1 and 8

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47
Q

Defamation > Defamation Act 2013 > s.1

A

Serious harm

  1. A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
  2. For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
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48
Q

Defamation > Defamation Act 2013 > s.8

A

Single publication rule

  1. This section applies if a person—
    a. publishes a statement to the public (“the first publication”), and
    b. subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.
  2. In subsection (1) “publication to the public” includes publication to a section of the public.
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49
Q

Defamation > Defamation Act 2013 > pursuant to s.1…

A

Pursuant to s.1, a statement will be defamatory if its publication has or is likely to cause serious harm to the claimant’s reputation (this rules out trivial claims)

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50
Q

Defamation > Defamation Act 2013 > Difference between Libel and Slander

A

Defamation in the form of libel is actionable per se – the claimant does not need to show tangible loss.

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51
Q

Defamation > 2. Elements of defamation

A
  1. Defendants words are defamatory
  2. The words are to REFER TO the claimant
  3. The words have been published
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52
Q
  1. Defendants words are defamatory. Words will be defamatory if: > Sim v Stretch
A

They lower the claimant in the eyes of right-thinking members of society;

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53
Q
  1. Defendants words are defamatory. Words will be defamatory if: > They lower the claimant in the eyes of right-thinking members of society;
A

Sim v Stretch

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54
Q
  1. Defendants words are defamatory. Words will be defamatory if: > Youssoupoff v MGM
A

They cause the claimant to be shunned/avoided;

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55
Q
  1. Defendants words are defamatory. Words will be defamatory if: > They cause the claimant to be shunned/avoided;
A

Youssoupoff v MGM

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56
Q
  1. Defendants words are defamatory. Words will be defamatory if: > Parmiter v Coupland
A

The expose the claimant to hatred/contempt/ridicule

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57
Q
  1. Defendants words are defamatory. Words will be defamatory if: > The expose the claimant to hatred/contempt/ridicule
A

Parmiter v Coupland

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58
Q

Defamation > 2. The words are to REFER TO the claimant. Where the claimant is not named, the relevant test is: > J’Anson v Stewart

A

Whether the description is so detailed, and the resemblance so strong, that a reasonable person who knew the claimant would assume the article is about him (intention not required)

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59
Q

Defamation > 2. The words are to REFER TO the claimant. Where the claimant is not named, the relevant test is: Whether the description is so detailed, and the resemblance so strong, that a reasonable person who knew the claimant would assume the article is about him (intention not required) > Authority?

A

J’Anson v Stewart

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60
Q

Defamation > 3. The words have been published

A

i.e. communication to a third party

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61
Q

Defamation > Step 3. Defences > List

A

Truth
Fair Comment
Qualified Privilege

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62
Q

Defamation > Step 3. Defences > Truth > s.2 Defamation Act 2013

A

The defendant has a complete defence if his statement is factual, and the facts are substantially true

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63
Q

Defamation > Step 3. Defences > Truth > The defendant has a complete defence if his statement is factual, and the facts are substantially true

A

s.2 Defamation Act 2013

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64
Q

Defamation > Step 3. Defences > Fair Comment > 2 factors

A

(a) an EXPRESSION of OPINION (rather than fact), as set out in s.3
(b) On a matter of PUBLIC INTEREST

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65
Q

Defamation > Step 3. Defences > Fair Comment > (a) an EXPRESSION of OPINION (rather than fact), as set out in s.3

A

Defamation Act 2013. In particular, the statement will have to fulfil the following conditions:

  1. The statement was a statement of opinion
  2. The statement set out the basis of the opinion expressed therein; and
  3. An honest person could have held the opinion on the basis of:
    i. Any fact which existed at the time the statement complained of was published
    ii. Anything asserted to be a fact in a privileged statement published before the statement complained of
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66
Q

Defamation > Step 3. Defences > Fair Comment > Note

A

This defence will be defeated if the claimant is able to show that the defendant did not hold the opinion.

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67
Q

Defamation > Step 3. Defences > Fair Comment > s.3(6) Defamation Act 2013

A

Pursuant to s.3(6) Entities reproducing someone else’s statement (for instance a newspaper publishing a letter from a reader) would only be liable if the claimant is able to show that the publisher knew that the author of the statement did not hold the opinion expressed.

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68
Q

Defamation > Step 3. Defences > Fair Comment > Entities reproducing someone else’s statement would only be liable if the claimant is able to show that the publisher knew that the author of the statement did not hold the opinion expressed.

A

s.3(6) Defamation Act 2013

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69
Q

Defamation > Step 3. Defences > Fair Comment > s.4 Defamation Act 2013

A

(b) On a matter of PUBLIC INTEREST – a defendant has a valid defence against an action for defamation for both statements of facts and statements of opinion if he can show that:
1. the statement complained of was on a matter of public interest; and
2. the defendant reasonably believed that publishing the statement complained of was in the public interest

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70
Q

Defamation > Step 3. Defences > Fair Comment > (b) On a matter of PUBLIC INTEREST – a defendant has a valid defence against an action for defamation for both statements of facts and statements of opinion

A

s.4 Defamation Act 2013

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71
Q

Defamation > Step 3. Defences > Fair Comment > under s4 Defamation Act 2013 what must the defendant show to prove it is a matter of public interest?

A
  1. the statement complained of was on a matter of public interest; and
  2. the defendant reasonably believed that publishing the statement complained of was in the public interest
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72
Q

Defamation > Step 3. Defences > Fair Comment > Moreover, under s.4 Defamation Act 2013

A

Moreover, under Section 4, the court must:

i. have regard to all circumstances of the case, and
ii. make allowances for editorial judgement when determining whether or not the defendant reasonably believed that publishing the statement complained of was in the public interest

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73
Q

Defamation > Step 3. Defences > Qualified Privilege

A

Applies to statements of both fact and opinion
There is a defence where the maker of a statement has a duty (legal, moral or social) to make the statement, and the recipient has an interest in receiving the information.
This defence does not apply if the claimant can show that the defendant acted with malice and making the statement

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74
Q

Defamation > Step 3. Defences > Qualified Privilege > What does it apply to?

A

Applies to statements of both fact and opinion

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75
Q

Defamation > Step 3. Defences > Qualified Privilege > What is the defence?

A

There is a defence where the maker of a statement has a duty (legal, moral or social) to make the statement, and the recipient has an interest in receiving the information.

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76
Q

Defamation > Step 3. Defences > Qualified Privilege > When does it not apply?

A

This defence does not apply if the claimant can show that the defendant acted with malice and making the statement

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77
Q

Defamation > Missuse of Private Information > Following Campbell v MGM Ltd

A

The action for misuse of private information will succeed if the claimant can show the two conditions are satisfied:

  1. The information divulged must be private. this can be established by analysing whether the claimant had a reasonable expectation of privacy in relation to the information disclosed.
  2. There must not be a legitimate public interest in disclosure of the information. for example, there would be legitimate public interest in the disclosure of the private information if publication would
    i. show that the claimant had previously lied on the matter disclosed
    ii. that the claimant had engaged in illegal or iniquitous behaviour
    iii. where it concerns political figures in their public role
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78
Q

Defamation > Misuse of Private Information > Following Campbell v MGM Ltd, contractual duty of confidence

A

If private information is divulged in breach of a confidential relationship (especially a contractual duty of confidence) then it is more likely that this tort has been committed.

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79
Q

Defamation > Misuse of Private Information Authority

A

Campbell v MGM Ltd

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80
Q

Negligence > Steps

A
  1. state - The claimant can consider suing the defendant for [insert harm] in the tort of negligence
  2. Consider whether the defendant owes the claimant a legal DUTY OF CARE
  3. Consider whether there has been a breach of that duty of care – apply two stage test.
  4. Causation – did the defendant’s breach of duty CAUSE the harm suffered by the claimant?
  5. Defences – consider whether the defendant can raise any defences
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81
Q

Negligence > 1. State?

A

State - The claimant can consider suing the defendant for [insert harm] in the tort of negligence
Claimant v Defendant [insert the relevant names]

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82
Q

Negligence > 1. State > Define Negligence

A

A breach by the defendant of a legal duty of care owed to the claimant that results in actionable damage to the claimant unintended by the defendant

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83
Q

Negligence > 1. State > 4 elements

A

For a negligence claim, run through the four elements: duty of care, breach, causation, defences

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84
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations

A

(a) one road user to another
(b) teacher to pupil
(c) doctor to patient
(d) manufacturer to the ultimate consumer of the product
(e) defendant to RESCUER, where the defendant has created a dangerous situation so that it is reasonable that somebody will attempt to resuce
(f) Driver to pedestrians and passengers
(g) Referee to Sports Player
(h) Parent/adult in loco parentis to child
(i) Advocate to client
(j) In limited circumstances, ambulance service to emergency callers

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85
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > London Passenger Transport Board v Upson

A

(a) one road user to another

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86
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > (a) one road user to another

A

London Passenger Transport Board v Upson

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87
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > Baker v Hopkins

A

(e) defendant to RESCUER, where the defendant has created a dangerous situation so that it is reasonable that somebody will attempt to rescue

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88
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > (e) defendant to RESCUER, where the defendant has created a dangerous situation so that it is reasonable that somebody will attempt to rescue

A

Baker v Hopkins

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89
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > Nettleship v Weston

A

(f) Driver to pedestrians and passengers

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90
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > (f) Driver to pedestrians and passengers

A

Nettleship v Weston

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91
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > Vowles v Evans

A

(g) Referee to Sports Player

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92
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > (g) Referee to Sports Player

A

Vowles v Evans

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93
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > Arthur J S Hall and Co. v Simmons

A

(i) Advocate to client

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94
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > (i) Advocate to client

A

Arthur J S Hall and Co. v Simmons

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95
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > Kent v Griffiths

A

(j) In limited circumstances, ambulance service to emergency callers

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96
Q

Negligence > 2. Legal Duty of Care > Established Duty Situations > (j) In limited circumstances, ambulance service to emergency callers

A

Kent v Griffiths

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97
Q

Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Mulcahy v Ministry of Defence

A

Soldier to Colleague

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98
Q

Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Soldier to Colleague

A

Mulcahy v Ministry of Defence

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99
Q

Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Capital and Counties v Hampshire County Council

A

Fire Service to Emergency Caller

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100
Q

Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Fire Service to Emergency Caller

A

Capital and Counties v Hampshire County Council

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101
Q

Negligence > 2. Legal Duty of Care > NO Established Duty Situations > Morris

A

You can discharge your duty of care if you ask your supervisor for advice.

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102
Q

Negligence > 2. Legal Duty of Care > NO Established Duty Situations > You can discharge your duty of care if you ask your supervisor for advice.

A

Morris

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103
Q

Negligence > 2. Legal Duty of Care > Police > Hill v Chief Constable of West Yorkshire

A

General Rule: Public policy driven – The Police do NOT owe A duty of care to individuals, only to the public at large.

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104
Q

Negligence > 2. Legal Duty of Care > Police > General Rule: Public policy driven – The Police do NOT owe A duty of care to individuals, only to the public at large.

A

Hill v Chief Constable of West Yorkshire

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105
Q

Negligence > 2. Legal Duty of Care > Police > Brooks and Osman

A

confirmed Hill’s General Rule: The Police do NOT owe A duty of care to individuals, only to the public at large.

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106
Q

Negligence > 2. Legal Duty of Care > Police > confirmed Hill’s General Rule: The Police do NOT owe A duty of care to individuals, only to the public at large.

A

Brooks and Osman

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107
Q

Negligence > 2. Legal Duty of Care > Police > Robinson v Chief Constable of West Yorkshire Police

A

However, in 2018 the Supreme Court held unanimously that was a misrepresentation of the law and there is no general rule that, in the prevention and investigation of the crime, the police are free from liability. the police owe a duty of care to avoid causing by a positive action foreseeable personal injury to another person

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108
Q

Negligence > 2. Legal Duty of Care > Police > However, in 2018 the Supreme Court held unanimously that was a misrepresentation of the law and there is no general rule that, in the prevention and investigation of the crime, the police are free from liability. the police owe a duty of care to avoid causing by a positive action foreseeable personal injury to another person

A

Robinson v Chief Constable of West Yorkshire Police

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109
Q

Negligence > 2. Legal Duty of Care > Police > Main Exception > Kirkman

A

Where the police have assumed responsibility for someone, or someone who’s been entrusted to their care the police owe a duty of care to that person

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110
Q

Negligence > 2. Legal Duty of Care > Police > Main Exception > Where the police have assumed responsibility for someone, or someone who’s been entrusted to their care the police owe a duty of care to that person

A

Kirkman

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111
Q

Negligence > 2. Legal Duty of Care > Police > Other Exceptions > Rigby

A

to take action with reasonable care

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112
Q

Negligence > 2. Legal Duty of Care > Police > Other Exceptions > to take action with reasonable care

A

Rigby

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113
Q

Negligence > 2. Legal Duty of Care > Police > Other Exceptions > Swinney

A

to keep the identity of informants safe

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114
Q

Negligence > 2. Legal Duty of Care > Police > Other Exceptions > to keep the identity of informants safe

A

Swinney

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115
Q

Negligence > 2. Legal Duty of Care > Police > Other Exceptions > The Worboys Case

A

HOWEVER, throws into doubt the established duty for police a test cases needed to fully interpret the decision.

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116
Q

Negligence > 2. Legal Duty of Care > Police > Other Exceptions > HOWEVER, throws into doubt the established duty for police a test cases needed to fully interpret the decision.

A

The Worboys Case

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117
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations > Steps

A

(a) Starting point (AKA the neighbour principle)
(b) explain how the Donoghue v Stevenson ratio was redefined in Caparo and apply the three part test for whether a duty of care is owed.

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118
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations > Donoghue v Stevenson

A

(a) Starting point (AKA the neighbour principle)
‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’

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119
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations > (a) Starting point (AKA the neighbour principle)
‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’

A

Donoghue v Stevenson

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120
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations > Caparo Industries plc v Dickman and others

A

i. Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant? (Bourhill v Young)
ii. is there sufficient proximity of relationship between the claimant and defendant?
iii. is it fair just and reasonable to impose a duty? E.g. it may not be fair if the defendant is a non-profit organization or acting in a quasi-public capacity (Marc Rich v Bishop Rock Marine Co)

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121
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations > i. Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant? (Bourhill v Young)

ii. is there sufficient proximity of relationship between the claimant and defendant?
iii. is it fair just and reasonable to impose a duty? E.g. it may not be fair if the defendant is a non-profit organization or acting in a quasi-public capacity (Marc Rich v Bishop Rock Marine Co)

A

Caparo Industries plc v Dickman and others

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122
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations > Bourhill v Young

A

Caparo:

i. Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant? (Bourhill v Young)

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123
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations > Caparo:
i. Is it reasonably foreseeable that the defendant’s actions will affect this particular claimant?

A

Bourhill v Young

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124
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations >
Caparo:
iii. is it fair just and reasonable to impose a duty? E.g. it may not be fair if the defendant is a non-profit organization or acting in a quasi-public capacity

A

Marc Rich v Bishop Rock Marine Co

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125
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations >

Marc Rich v Bishop Rock Marine Co

A

Caparo:
iii. is it fair just and reasonable to impose a duty? E.g. it may not be fair if the defendant is a non-profit organization or acting in a quasi-public capacity

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126
Q

Negligence > 2. Legal Duty of Care > Novel Duty Situations > Robinson

A

[For extra points, note that] the court has confirmed in Robinson that where the courts have already determined that a duty exists it is unnecessary to accept to assess whether it should exist using the Caparo test. Caparo should be used as a framework to analyse whether it is fair and reasonable that a duty come into existence in law it will only be used where a novel situation arises and the law needs to develop (albeit in line with existing authorities.

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127
Q

Negligence > 2. Legal Duty of Care > Omissions > Stovin v Wise

A

General Rule: there is no liability for pure omissions, and you do not owe a duty to the world for doing nothing to prevent harm.

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128
Q

Negligence > 2. Legal Duty of Care > Omissions > General Rule: there is no liability for pure omissions, and you do not owe a duty to the world for doing nothing to prevent harm.

A

Stovin v Wise

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129
Q

Negligence > 2. Legal Duty of Care > Omissions > East Suffolk Rivers Catchment Board v Kent

A

This rule applies if you decide to act despite no duty to do so, even if you act carelessly – UNLESS you make matters worse

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130
Q

Negligence > 2. Legal Duty of Care > Omissions > This rule applies if you decide to act despite no duty to do so, even if you act carelessly – UNLESS you make matters worse

A

East Suffolk Rivers Catchment Board v Kent

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131
Q

Negligence > 2. Legal Duty of Care > Omissions > Exceptions > Home office v Dorset Yacht

A

There is a duty to act positively in some cases where a person has a special relationship of control over another (Smith v Littlewoods – but this duty does not extend to cover actions of third parties who are OUTSIDE the defendant’s control.)

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132
Q

Negligence > 2. Legal Duty of Care > Omissions > Exceptions > There is a duty to act positively in some cases where a person has a special relationship of control over another (Smith v Littlewoods – but this duty does not extend to cover actions of third parties who are OUTSIDE the defendant’s control.)

A

Home office v Dorset Yacht

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133
Q

Negligence > 2. Legal Duty of Care > Omissions > Exceptions > Smith v Littlewoods

A

this duty [to positively act] does not extend to cover actions of third parties who are OUTSIDE the defendant’s control

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134
Q

Negligence > 2. Legal Duty of Care > Omissions > Exceptions > this duty [to positively act] does not extend to cover actions of third parties who are OUTSIDE the defendant’s control

A

Smith v Littlewoods

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135
Q

Negligence > 3. Breach of Duty > 2. Stage Test

A
  1. How OUGHT the defendant have behaved? Identify the standards of care expected in the circumstances; a question of law.
  2. How did the defendant behave? Identify whether the defendant fell below the relevant standard of care; a question of fact.
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136
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved?

A

(a) General Standard: standard of the REASONABLE PERSON

(b) Where the defendant is a PROFESSIONAL

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137
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > Blyth v Birmingham Waterworks

A

(a)General Standard: standard of the REASONABLE PERSON

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138
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON

A

Blyth v Birmingham Waterworks

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139
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON > Glasgow Corp v Muir

A

i. This is an objective test

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140
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON > i. This is an objective test

A

Glasgow Corp v Muir

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141
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON > Roe v Ministry of Health

A

ii. The defendant’s conduct should be considered in relation to the state of knowledge at the time of the event only

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142
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (a)General Standard: standard of the REASONABLE PERSON > ii. The defendant’s conduct should be considered in relation to the state of knowledge at the time of the event only

A

Roe v Ministry of Health

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143
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > Bolam v Friern Hospital Management Committee

A

(b) Where the defendant is a PROFESSIONAL: the standard of the defendant’s profession/ a reasonably competent professional in the circumstances.

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144
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved >
(b) Where the defendant is a PROFESSIONAL

A

Bolam v Friern Hospital Management Committee

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145
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > Bolam

A

i. The Courts will consider compliance with common practice in the relevant profession as strong evidence that the defendant is not negligent

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146
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > i. The Courts will consider compliance with common practice in the relevant profession as strong evidence that the defendant is not negligent

A

Bolam

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147
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > Bolitho

A

ii. BUT – the final decision whether a skilled defendant’s behaviour is reasonable is the court’s

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148
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > the final decision whether a skilled defendant’s behaviour is reasonable is the court’s

A

Bolitho

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149
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > Re the Herald of Free Enterprise

A

iii. Common practice won’t necessarily justify the taking risks, as the courts can reject ‘expert evidence’ and condemn commonly accepted practice as negligent

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150
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (b) Where the defendant is a PROFESSIONAL > iii. Common practice won’t necessarily justify the taking risks, as the courts can reject ‘expert evidence’ and condemn commonly accepted practice as negligent

A

Re the Herald of Free Enterprise

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151
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Nettleship v Weston

A

there is no allowance for inexperience

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152
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > there is no allowance for inexperience

A

Nettleship v Weston

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153
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Nettleship

A

E.g. care drivers must reach the standard of a reasonably competent driver, even if learners

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154
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > E.g. care drivers must reach the standard of a reasonably competent driver, even if learners

A

Nettleship

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155
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Mansfield v Weetabix

A

EXCEPTION: Where the defendant suffers from an unexpected disability

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156
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > EXCEPTION: Where the defendant suffers from an unexpected disability

A

Mansfield v Weetabix

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157
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Wilsher v Essex Area Health Authority

A

Rule also applies in cases of professional inexperience

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158
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Rule also applies in cases of professional inexperience

A

Wilsher v Essex Area Health Authority

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159
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Wells v Cooper

A

Rule applies for cases of Home DIY – requires certain level of expertise

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160
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (c) Where the defendant is INEXPERIENCED > Rule applies for cases of Home DIY – requires certain level of expertise

A

Wells v Cooper

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161
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > Mullin v Richards

A

(d) Where the defendant is a CHILD: reasonable child of the defendant’s age

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162
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 1. How OUGHT the defendant have behaved > (d) Where the defendant is a CHILD: reasonable child of the defendant’s age

A

Mullin v Richards

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163
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave

A

Consider the following factors in deciding if there has been breached?

(a) If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.
(b) If there is a VERY SERIOUS HARM, one must take appropriate steps to mitigate
(c) Consider the COST AND PRACTICABILITY of solutions. If taking precautions would have been impracticable and incurred great expense, this may excuse the defendant for not doing so, provided the risk of harm is small.
(d) If the defendant’s actions are in the PUBLIC INTEREST/ have substantial social utility, this may justify the defendant’s taking greater risk
(e) There is no duty on the defendant to protect against “fantastic” probabilities
(f) The defendant is not liable if his actions were due to a sudden incapacity
(g) Res Ipsa Loquitor – the defendant may be liable even if there is no conclusive proof of blame (in limited situations only).

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164
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Bolton v Stone

A

(a) If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.

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165
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (a) If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.

A

Bolton v Stone

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166
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Paris v Stepney Borough Council

A

(b) If there is a VERY SERIOUS HARM, one must take appropriate steps to mitigate

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167
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (b) If there is a VERY SERIOUS HARM, one must take appropriate steps to mitigate

A

Paris v Stepney Borough Council

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168
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Latimer v AEC Ltd

A

(c) Consider the COST AND PRACTICABILITY of solutions. If taking precautions would have been impracticable and incurred great expense, this may excuse the defendant for not doing so, provided the risk of harm is small.

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169
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (c) Consider the COST AND PRACTICABILITY of solutions.

A

Latimer v AEC Ltd

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170
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Watt

A

(d) If the defendant’s actions are in the PUBLIC INTEREST/ have substantial social utility, this may justify the defendant’s taking greater risk

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171
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (d) If the defendant’s actions are in the PUBLIC INTEREST/ have substantial social utility, this may justify the defendant’s taking greater risk

A

Watt

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172
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Fardon v Harcourt-Rivington

A

(e) There is no duty on the defendant to protect against “fantastic” probabilities

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173
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (e) There is no duty on the defendant to protect against “fantastic” probabilities

A

Fardon v Harcourt-Rivington

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174
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Waugh v James K Allen

A

(f) The defendant is not liable if his actions were due to a sudden incapacity

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175
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (f) The defendant is not liable if his actions were due to a sudden incapacity

A

Waugh v James K Allen

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176
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > Scott v London and St Katherine’s Docks

A

(g) Res Ipsa Loquitor – the defendant may be liable even if there is no conclusive proof of blame (in limited situations only).

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177
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > (g) Res Ipsa Loquitor – the defendant may be liable even if there is no conclusive proof of blame (in limited situations only).

A

Scott v London and St Katherine’s Docks

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178
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > s.11 Civil Evidence Act 1968

A

If guilty in criminal proceedings, the defendant is also presumed liable in tort.

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179
Q

Negligence > 3. Breach of Duty > 2. Stage Test > 2. How DID the defendant behave > If guilty in criminal proceedings, the defendant is also presumed liable in tort.

A

s.11 Civil Evidence Act 1968

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180
Q

Negligence > 4. Causation

A

Causation is only established once all three elements are satisfied: FACTUAL CAUSATION, INTERVENING ACT, LEGAL CAUSATION

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181
Q

Negligence > 4. Causation > Factual > Barnett

A

(a) Apply the ‘BUT FOR’ test – actual causation is established if, ‘but for the defendant’s breach, the claimant would not have sustained the harm.’

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182
Q

Negligence > 4. Causation > Factual > (a) Apply the ‘BUT FOR’ test – actual causation is established if, ‘but for the defendant’s breach, the claimant would not have sustained the harm.’

A

Barnett

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183
Q

Negligence > 4. Causation > Factual > Approaches to the BUT FOR test.

A
  1. All or nothing approach (standard) – the claimant must show on the balance of probabilities that the defendant caused harm.
  2. Modified Test (often employed where multiple causes have together contributed to the harm) – the claimant must show the defendant’s breach:
    i. MATERIALLY CONTRIBUTED to the harm
    ii. MATERIALLY CONTRIBUTED TO THE RISK of harm through recent decisions
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184
Q

Negligence > 4. Causation > Factual > Hotson

A
  1. All or nothing approach (standard) – the claimant must show on the balance of probabilities that the defendant caused harm.
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185
Q

Negligence > 4. Causation > Factual > 1. All or nothing approach (standard) – the claimant must show on the balance of probabilities that the defendant caused harm.

A

Hotson

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186
Q

Negligence > 4. Causation > Factual > Bonnington Castings Ltd v Wardlaw

A

i. MATERIALLY CONTRIBUTED to the harm

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187
Q

Negligence > 4. Causation > Factual > i. MATERIALLY CONTRIBUTED to the harm

A

Bonnington Castings Ltd v Wardlaw

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188
Q

Negligence > 4. Causation > Factual > McGhee v National Coal Board

A

ii. MATERIALLY CONTRIBUTED TO THE RISK of harm through recent decisions

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189
Q

Negligence > 4. Causation > Factual > ii. MATERIALLY CONTRIBUTED TO THE RISK of harm through recent decisions

A

McGhee v National Coal Board

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190
Q

Negligence > 4. Causation > Factual > Sienkiewicz v Grieff

A

Appear to have the restricted the application of this second limb only to cases where there is scientific uncertainty on causation (mesothelioma)

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191
Q

Negligence > 4. Causation > Factual > Appear to have the restricted the application of this second limb only to cases where there is scientific uncertainty on causation (mesothelioma)

A

Sienkiewicz v Grieff

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192
Q

Negligence > 4. Causation > Factual > (b) Where the claimant’s harm has more than one cause > Holtby v Bigham

A

If the harm is DIVISIBLE, court will apportion damages accordingly

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193
Q

Negligence > 4. Causation > Factual > (b) Where the claimant’s harm has more than one cause > If the harm is DIVISIBLE, court will apportion damages accordingly

A

Holtby v Bigham

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194
Q

Negligence > 4. Causation > Factual > (b) Where the claimant’s harm has more than one cause > Civil Liability (Contribution) Act 1978

A

If the harm is INDIVISIBLE (more than one party is responsible for the same harm), the claimant may sue any one defendant for the whole loss – but under the Civil Liability (Contribution) Act 1978, the defendant may seek a just and equitable contribution from other liable parties.

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195
Q

Negligence > 4. Causation > Factual > (b) Where the claimant’s harm has more than one cause > If the harm is INDIVISIBLE the claimant may sue any one defendant for the whole loss.

A

Civil Liability (Contribution) Act 1978

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196
Q

Negligence > 4. Causation > Factual > Mesothelioma Cases > Fairchild v Glenhaven Funeral Services Ltd.

A

If more than one employer is being sued, the responsibility of each employer need not be categorically proven

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197
Q

Negligence > 4. Causation > Factual > Mesothelioma Cases > If more than one employer is being sued, the responsibility of each employer need not be categorically proven

A

Fairchild v Glenhaven Funeral Services Ltd.

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198
Q

Negligence > 4. Causation > Factual > Mesothelioma Cases > Barker v Corus UK Ltd

A

Awarded damages for creation of risk, and in proportion to the extent each defendant added to it.

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199
Q

Negligence > 4. Causation > Factual > Mesothelioma Cases > Awarded damages for creation of risk, and in proportion to the extent each defendant added to it.

A

Barker v Corus UK Ltd

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200
Q

Negligence > 4. Causation > Factual > Mesothelioma Cases > s.3 Compensation Act 2006

A

BUT, this act overruled Barker v Corus and each employer will now be wholly liable (contribution can then be sought from other parties.)

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201
Q

Negligence > 4. Causation > Factual > Mesothelioma Cases > BUT, this act overruled Barker v Corus and each employer will now be wholly liable (contribution can then be sought from other parties.)

A

s.3 Compensation Act 2006

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202
Q

Negligence > 4. Causation > Factual > Intervening Act

A

Causation can only be established if the chain of causation has not been broken by an intervening event:

(a) Intervening events by third parties
(b) Intervening acts by the claimant

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203
Q

Negligence > 4. Causation > Factual > Intervening Act > Knightley v Johns, Rouse v Squires

A

i. NEGLIGENT ACTS – only break the chain if unforeseeable

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204
Q

Negligence > 4. Causation > Factual > Intervening Act > i. NEGLIGENT ACTS – only break the chain if unforeseeable

A

Knightley v Johns, Rouse v Squires

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205
Q

Negligence > 4. Causation > Factual > Intervening Act > Lamb
Stansbie v Troman

A

ii. RECKLESS or INTENTIONAL ACTS – more likely to break the chain (Lamb), unless unforeseeable (Stansbie v Troman)

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206
Q

Negligence > 4. Causation > Factual > Intervening Act > ii. RECKLESS or INTENTIONAL ACTS – more likely to break the chain (X), unless unforeseeable (Y)

A

Lamb

Stansbie v Troman

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207
Q

Negligence > 4. Causation > Factual > Intervening Act > Scott v Shepherd

A

iii. INSTINCTIVE/ NATURAL RESPONSE ACTS – will not break the chain

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208
Q

Negligence > 4. Causation > Factual > Intervening Act > iii. INSTINCTIVE/ NATURAL RESPONSE ACTS – will not break the chain

A

Scott v Shepherd

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209
Q

Negligence > 4. Causation > Factual > Intervening Act > Rahman v Arearose Ltd

A

iv. Negligent MEDICAL TREATMENT – will not usually break the chain

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210
Q

Negligence > 4. Causation > Factual > Intervening Act > iv. Negligent MEDICAL TREATMENT – will not usually break the chain

A

Rahman v Arearose Ltd

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211
Q

Negligence > 4. Causation > Factual > Intervening Act > McKew and Wieland

A

(b) Intervening acts by the claimant – will only break the chain if ENTIRELY UNREASONABLE in all the circumstances.

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212
Q

Negligence > 4. Causation > Factual > Intervening Act > (b) Intervening acts by the claimant – will only break the chain if ENTIRELY UNREASONABLE in all the circumstances.

A

McKew and Wieland

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213
Q

Negligence > 4. Causation > Legal

A

The defendant can only be said to have caused the harm in question if it is not too REMOTE.

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214
Q

Negligence > 4. Causation > Legal > The Wagon Mound (No.1)

A

Remoteness Rule: the defendant is ONLY liable for REASONABLY FORESEEABLE DAMAGE – i.e. damage is only recoverable if a reasonable man could have foreseen it

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215
Q

Negligence > 4. Causation > Legal > Remoteness Rule: the defendant is ONLY liable for REASONABLY FORESEEABLE DAMAGE – i.e. damage is only recoverable if a reasonable man could have foreseen it

A

The Wagon Mound (No.1)

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216
Q

Negligence > 4. Causation > Legal > Jolley

A

Applied Wagon Mound (No.1)’s Remoteness Rule

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217
Q

Negligence > 4. Causation > Legal > Applied Wagon Mound (No.1)’s Remoteness Rule

A

Jolley

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218
Q

Negligence > 4. Causation > Legal > 2 Provisos > Hughes v Lord Advocate

A

It is not necessary to foresee the precise WAY in which the harm is caused, provided the TYPE OF HARM is reasonably foreseeable;

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219
Q

Negligence >4. Causation > Legal > 2 Provisos > It is not necessary to foresee the precise WAY in which the harm is caused, provided the TYPE OF HARM is reasonably foreseeable;

A

Hughes v Lord Advocate

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220
Q

Negligence > 4. Causation > Legal > 2 Provisos > Robinson v Post Office

A

The Egg Shell Skull Rule: Take your victim as you find them. If the claimant suffers from a particular disability or condition, the claimant may recover in full from the defendant, even where the defendant could not have foreseen the claimant’s losses.

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221
Q

Negligence > 4. Causation > Legal > 2 Provisos > The Egg Shell Skull Rule

A

Robinson v Post Office

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222
Q

Negligence > 5. Defences

A
  1. VOLUNTARY ASSUMPTION OF RISK (Complete defence volenti non fit injuria)
  2. ILLEGALITY
  3. CONTRIBUTORY NEGLIGENCE
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223
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Nettleship v Weston

A

The defendant must prove:

i. The claimant had FULL KNOWLEDGE of nature and extent of risk; and
ii. The claimant WILLINGLY ACCEPTED THE RISK of being injured due to the defendant’s negligence (hard to show)

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224
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk >
The defendant must prove:
i. The claimant had FULL KNOWLEDGE of nature and extent of risk; and
ii. The claimant WILLINGLY ACCEPTED THE RISK of being injured due to the defendant’s negligence (hard to show)

A

Nettleship v Weston

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225
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Smith v Baker

A

(b) Rare for employers to succeed with defence against employees because of doubts as to whether truly voluntary.

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226
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk > (b) Rare for employers to succeed with defence against employees because of doubts as to whether truly voluntary.

A

Smith v Baker

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227
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Haynes v Harwood

A

(c) Rare for defence to succeed against rescuers, who are deemed to be ‘compelled by moral instinct’

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228
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk > (c) Rare for defence to succeed against rescuers, who are deemed to be ‘compelled by moral instinct’

A

Haynes v Harwood

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229
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk >

Ratcliff v McConnell and another

A

More successful against trespassers

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230
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk > More successful against trespassers

A

Ratcliff v McConnell and another

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231
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Dann v Hamilton

A

Knowledge must be sufficient to inform the consent for voluntary assumption of risk, BUT this was a drunk driver case. Following Road Traffic Act 1988 s.149, consent will not be a valid defence for motor vehicle cases (still valid for other cases)

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232
Q

Negligence > 5. Defences > 1. Voluntary Assumption of Risk > Knowledge must be sufficient to inform the consent for voluntary assumption of risk, BUT this was a drunk driver case. Following Road Traffic Act 1988 s.149, consent will not be a valid defence for motor vehicle cases (still valid for other cases)

A

Dann v Hamilton

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233
Q

Negligence > 5. Defences > 2. Illegality > Pitts v Hunt

A

The defendant may have a defence if the claimant was involved in an illegal enterprise when injured.

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234
Q

Negligence > 5. Defences > 2. Illegality > The defendant may have a defence if the claimant was involved in an illegal enterprise when injured.

A

Pitts v Hunt

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235
Q

Negligence > 5. Defences > 2. Illegality > Revill v Newbury

A

The injury must directly flow as a result of the criminal act.

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236
Q

Negligence > 5. Defences > 2. Illegality > The injury must directly flow as a result of the criminal act.

A

Revill v Newbury

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237
Q

Negligence > 5. Defences > 3. Contributory Negligence

A

(a) To prove contributory negligence, the defendant must show that:
i. The claimant was careless; and
ii. The claimant’s careless behaviour contributed to the claimant’s harm.

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238
Q

Negligence > 5. Defences > 3. Contributory Negligence > s.1(1) Law Reform (Contributory Negligence) Act 1945

A

(b) Operates to reduce the claimants’ damages, if shown

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239
Q

Negligence > 5. Defences > 3. Contributory Negligence > (b) Operates to reduce the claimants’ damages, if shown

A

s.1(1) Law Reform (Contributory Negligence) Act 1945

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240
Q

Negligence > 5. Defences > 3. Contributory Negligence > Caswell

A

(c) Employees: courts typically generous and rarely reduce employees’ damages, particularly where the work involved is dull/repetitive

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241
Q

Negligence > 5. Defences > 3. Contributory Negligence > (c) Employees: courts typically generous and rarely reduce employees’ damages, particularly where the work involved is dull/repetitive

A

Caswell

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242
Q

Negligence > 5. Defences > 3. Contributory Negligence > Gough v Thorne

A

(d) Children: judged according to their own standard – would a child of that age have taken more care for his safety

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243
Q

Negligence > 5. Defences > 3. Contributory Negligence > (d) Children: judged according to their own standard – would a child of that age have taken more care for his safety

A

Gough v Thorne

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244
Q

Negligence > 5. Defences > 3. Contributory Negligence > Baker v TE Hopkins and Sons Ltd

A

(e) Rescuers: findings of contributory negligence are very rare – only where rescuer has shown a ‘wholly unreasonable disregard for his/her own safety.’

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245
Q

Negligence > 5. Defences > 3. Contributory Negligence > (e) Rescuers: findings of contributory negligence are very rare – only where rescuer has shown a ‘wholly unreasonable disregard for his/her own safety.’

A

Baker v TE Hopkins and Sons Ltd

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246
Q

Negligence > 5. Defences > 3. Contributory Negligence > Jones v Boyce

A

(f) Situations of imminent danger: where the claimant’s response is reasonable there will be no finding of contributory negligence

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247
Q

Negligence > 5. Defences > 3. Contributory Negligence > (f) Situations of imminent danger: where the claimant’s response is reasonable there will be no finding of contributory negligence

A

Jones v Boyce

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248
Q

Negligence > 5. Defences > 3. Contributory Negligence > Froom v Butcher

A

(g) passengers and drivers will be liable for not wearing seatbelts

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249
Q

Negligence > 5. Defences > 3. Contributory Negligence > (g) passengers and drivers will be liable for not wearing seatbelts

A

Froom v Butcher

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250
Q

Negligence > 5. Defences > 3. Contributory Negligence > Capps v Miller

A

(g) passengers and drivers will be liable for not wearing helmets

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251
Q

Negligence > 5. Defences > 3. Contributory Negligence > (g) passengers and drivers will be liable for not wearing helmets

A

Capps v Miller

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252
Q

Negligence > 5. Defences > 3. Contributory Negligence > Owens v Brimmell

A

Passengers who accept ride with drunken drivers can see damages reduced, even if themselves are highly intoxicated

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253
Q

Negligence > 5. Defences > 3. Contributory Negligence > Passengers who accept ride with drunken drivers can see damages reduced, even if themselves are highly intoxicated

A

Owens v Brimmell

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254
Q

Negligence > 5. Defences > 3. Contributory Negligence > Capps v Miller

A

Manufacturers can be liable, e.g. helmets (Capps v Miller) or seatbelts (Froom v Butcher)

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255
Q

Negligence > 5. Defences > 3. Contributory Negligence > Reductions

A
  • 25% reduction if injury could have been avoided
  • 15% reduction if injury would have been less servere
  • 0% reduction if it made no difference
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256
Q

Pure Economic Loss > Steps

A

Step One: state – the claimant can consider suing the defendant for [insert harm] in the tort of NEGLIGENCE
Step Two: Is the Harm in question Pure Economic Loss (PEL)
Step Three: Is a DUTY OF CARE owed?
Step Four: has there been a BREACH of this duty?
Step Five: CAUSATION – did the defendant’s breach of duty CAUSE the harm suffered by the claimant?
Step Six: Consider whether the defendant may raise any defences

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257
Q

Pure Economic Loss > 1. State?

A

the claimant can consider suing the defendant for [insert harm] in the tort of NEGLIGENCE

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258
Q

Pure Economic Loss > 2. Define and Apply

A

PEL = Financial Loss that does not flow from: (a) physical injury or (b) property damage

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259
Q

Pure Economic Loss > 3. Duty of Care > Murphy v Brentwood District Council

A
  1. GENERAL RULE: no duty of care is owed in tort in respect of PEL
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260
Q

Pure Economic Loss > 3. Duty of Care > 1. GENERAL RULE: no duty of care is owed in tort in respect of PEL

A

Murphy v Brentwood District Council

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261
Q

Pure Economic Loss > 3. Duty of Care > Weller & Co v Foot and Mouth Disease Research Institute

A

(a) illustrated that a duty is not owed if financial loss is caused by actions rather than physical damage

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262
Q

Pure Economic Loss > 3. Duty of Care > (a) illustrated that a duty is not owed if financial loss is caused by actions rather than physical damage

A

Weller & Co v Foot and Mouth Disease Research Institute

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263
Q

Pure Economic Loss > 3. Duty of Care > Spartan Steel & Alloys v Martin & Co. (Contractors) Ltd.

A

(b) recovered consequential economic loss that stemmed from the property damage but not pure economic loss

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264
Q

Pure Economic Loss > 3. Duty of Care > (b) recovered consequential economic loss that stemmed from the property damage but not pure economic loss

A

Spartan Steel & Alloys v Martin & Co. (Contractors) Ltd.

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265
Q

Pure Economic Loss > 3. Duty of Care > Hedley Byrne & Co Ltd v Heller & Partners Ltd

A
  1. Exception: in cases of NEGLIGENT MISSTATEMENT, a duty of care is owed if there is a SPECIAL RELATIONSHIP between the parties.
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266
Q

Pure Economic Loss > 3. Duty of Care > 2. Exception: in cases of NEGLIGENT MISSTATEMENT, a duty of care is owed if there is a SPECIAL RELATIONSHIP between the parties.

A

Hedley Byrne & Co Ltd v Heller & Partners Ltd

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267
Q

Pure Economic Loss > 3. Duty of Care > Two elements to the exception
(Exception: in cases of NEGLIGENT MISSTATEMENT, a duty of care is owed if there is a SPECIAL RELATIONSHIP between the parties. (Hedley Byrne))

A

(a) An ASSUMPTION OF RESPONSIBILITY to the claimant by the defendant
(b) REASONABLE RELIANCE on the defendant’s statement, by the claimant

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268
Q

Pure Economic Loss > 3. Duty of Care > Elements to the Hedley Byrne Exception> (a) An ASSUMPTION OF RESPONSIBILITY to the claimant by the defendant > Caparo Industries plc v Dickman and others

A

The four criteria required to establish an ‘assumption of responsibility’ are:

i. Adviser knew the purpose for which the advice was required
ii. Adviser knew the advice would be communicated to the advisee
iii. Adviser knew the advisee was likely to act on the advice without further inquiry; and
iv. Advisee acted on the advice to his detriment

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269
Q

Pure Economic Loss > 3. Duty of Care > Elements to the Hedley Byrne Exception> (a) An ASSUMPTION OF RESPONSIBILITY to the claimant by the defendant > The four criteria

A

Caparo Industries plc v Dickman and others

The four criteria required to establish an ‘assumption of responsibility’ are:

i. Adviser knew the purpose for which the advice was required
ii. Adviser knew the advice would be communicated to the advisee
iii. Adviser knew the advisee was likely to act on the advice without further inquiry; and
iv. Advisee acted on the advice to his detriment

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270
Q

Pure Economic Loss > 3. Duty of Care > Elements to the Hedley Byrne Exception> (a) An ASSUMPTION OF RESPONSIBILITY to the claimant by the defendant > “knew”

A

Constructive Knowledge will suffice

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271
Q

Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle > White v Jones; Henderson v Merritt Syndicates Ltd

A

(a) Extends Hedley Byrne to the negligent provision of professional services, providing there is an assumption of responsibility and clearly foreseeable damage (no need for reliance)

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272
Q

Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle >
(a) Extends Hedley Byrne to the negligent provision of professional services, providing there is an assumption of responsibility and clearly foreseeable damage (no need for reliance)

A

White v Jones; Henderson v Merritt Syndicates Ltd

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273
Q

Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle >
Spring v Guardian Assurance Plc

A

(b) Extends Hedley Byrne to cases where the negligent misstatement is made to a THIRD PARTY (not to the claimant), provided the third party relies on it to the detriment of the claimant

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274
Q

Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle >
(b) Extends Hedley Byrne to cases where the negligent misstatement is made to a THIRD PARTY (not to the claimant), provided the third party relies on it to the detriment of the claimant

A

Spring v Guardian Assurance Plc

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275
Q

Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle > Desmond v Chief Constable

A

Narrows the Spartan ruling (recovered consequential economic loss that stemmed from the property damage but not pure economic loss) – the duty to act in the public interest overrides the duty of care owed to the claimant. If there is a conflict between Common Law duty and statue, statute prevails.

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276
Q

Pure Economic Loss > 3. Duty of Care > Extending the Hedley Byrne principle >

A

Desmond v Chief Constable

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277
Q

Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle

A

(a) The duty will NOT be owed in a SOCIAL SITUATION
(b) Insufficient proximity of relationship defeats a negligent misstatement PEL claim (James McNaughton Papers Group Ltd v Hicks Anderson & Co)

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278
Q

Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (a) The duty will NOT be owed in a SOCIAL SITUATION > i. Unless – the defendant’s advice has gone beyond social advice, and he has assumed a responsibility.

A

Chaudhry v Prabhakar

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279
Q

Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (a) The duty will NOT be owed in a SOCIAL SITUATION > Chaudhry v Prabhakar

A

i. Unless – the defendant’s advice has gone beyond social advice, and he has assumed a responsibility.

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280
Q

Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (a) The duty will NOT be owed in a SOCIAL SITUATION > (Chaudhry v Prabhakar) This will be the case where?

A
  • It was clear that the claimant would be relying on advice; and
  • The defendant has more experience/knowledge
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281
Q

Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (a) The duty will NOT be owed in a SOCIAL SITUATION > Full Limitation

A

(a) The duty will NOT be owed in a SOCIAL SITUATION
i. Unless – the defendant’s advice has gone beyond social advice, and he has assumed a responsibility. This will be the case where:
- It was clear that the claimant would be relying on advice; and
- The defendant has more experience/ knowledge

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282
Q

Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > James McNaughton Papers Group Ltd v Hicks Anderson & Co

A

(b) Insufficient proximity of relationship defeats a negligent misstatement PEL claim

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283
Q

Pure Economic Loss > 3. Duty of Care > Limitations to the Hedley Byrne Principle > (b) Insufficient proximity of relationship defeats a negligent misstatement PEL claim

A

James McNaughton Papers Group Ltd v Hicks Anderson & Co

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284
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY

A

To rely on a disclaimer/exclusion notice as a defence

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285
Q

Pure Economic Loss > 6. Defences > To rely on a disclaimer/exclusion notice as a defence

A

EXCLUSION OF LIABILITY

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286
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > Two Criteria:

A

INCORPORATION and CONSTRUCTION

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287
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > INCORPORATION

A

a) The defendant must have taken reasonable steps to bring it to the claimant’s attention before the tort was committed

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288
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > CONSTRUCTION

A

b) The wording of the clause/notice must cover the loss

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289
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > C =

A

UCTA 1977

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290
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977

A

c) Applies to the exclusion notice (provided the defendant is acting in the course of a business, the claimant may be a consumer or trader)

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291
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > s.2(1) UCTA 1977

A

I. The defendant cannot exclude liability for death or personal injury

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292
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > I. The defendant cannot exclude liability for death or personal injury

A

s.2(1) UCTA 1977

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293
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > II. In order to exclude liability for other loss or damage, the clause must be reasonable

A

s.2(2) UCTA 1977

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294
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > s.2(2) UCTA 1977

A

II. In order to exclude liability for other loss or damage, the clause must be reasonable

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295
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > s.11(3) UCTA 1977

A

III. Defines reasonableness: must be fair and reasonable to allow reliance on the clause, having regard to all circumstances

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296
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > c) UCTA 1977 > III. Defines reasonableness: must be fair and reasonable to allow reliance on the clause, having regard to all circumstances

A

s.11(3) UCTA 1977

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297
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > UCTA > Reasonableness > Smith v Eric S Bush

A

In deciding reasonableness, take into account the following:

  1. Were the parties of equal bargaining power?
  2. In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source?
  3. How difficult is the task from which liability is excluded?
  4. What are the practical consequences – are the parties able to bear the loss?
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298
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > UCTA >
In deciding reasonableness, take into account the following:
1. Were the parties of equal bargaining power?
2. In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source?
3. How difficult is the task from which liability is excluded?
4. What are the practical consequences – are the parties able to bear the loss?

A

Smith v Eric S Bush

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299
Q

Pure Economic Loss > 6. Defences > EXCLUSION OF LIABILITY > UCTA > Reasonableness

A

Smith v Eric S Bush

In deciding reasonableness, take into account the following:

  1. Were the parties of equal bargaining power?
  2. In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source?
  3. How difficult is the task from which liability is excluded?
  4. What are the practical consequences – are the parties able to bear the loss?
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300
Q

Pure Psychiatric Harm > Steps

A

Step One: State: the Claimant can consider suing the defendant for [insert harm] in the tort of negligence.
Step Two: Is the harm in Question ‘Pure Psychiatric Harm’?
Step Three: Is there a Duty of Care Owed?
Step Four+: Breach, Causation, Defences

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301
Q

Pure Psychiatric Harm > Define

A

Psychiatric harm that stands alone, i.e. does not flow from physical injury

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302
Q

Pure Psychiatric Harm > Requirements to be PPH

A

(a) caused by sudden shock to the nervous system; and
(b) either a medically recognised psychiatric illness, OR a shock induced physical condition (no gradual build up) e.g. miscarriage, heart attack.

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303
Q

Pure Psychiatric Harm > 3. Duty of Care Owed?

A

This depends on whether the claimant is a primary or secondary victim

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304
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Steps to determining a primary or secondary victim

A
  1. Is the harm medically recognised
  2. Caused by sudden shock?
  3. In the area of danger? If YES = Primary / If NO = Secondary
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305
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Primary Victims > Page v Smith

A

To be a primary victim, the claimant must have:

i. been in the actual area of danger; OR
ii. reasonably believed he was in danger

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306
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Primary Victims >
To be a primary victim, the claimant must have:
i. been in the actual area of danger; OR
ii. reasonably believed he was in danger

A

Page v Smith

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307
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Primary Victims > Page v Smith, Dulieu v White & Sons

A

A duty of care is owed to a primary victim in respect of PPH if the risk of PHYSICAL injury is FORESEEABLE.
• (For primary victims it is not necessary for the risk of psychiatric harm to be foreseeable)

308
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Primary Victims > A duty of care is owed to a primary victim in respect of PPH if the risk of PHYSICAL injury is FORESEEABLE.

A

Page v Smith, Dulieu v White & Sons

309
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Primary Victims > Bourhill v Young

A

If not foreseeable, no duty is owed –> consider whether the claimant was a secondary victim

310
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Primary Victims > If not foreseeable, no duty is owed

A

Bourhill v Young

311
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims >
Page v Smith

A

To be a secondary victim, the claimant must have:

i. Witnessed injury to someone else; and
ii. Feared for the safety of that person

312
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims >
To be a secondary victim, the claimant must have:
i. Witnessed injury to someone else; and
ii. Feared for the safety of that person

A

Page v Smith

313
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims >
Authority and Criteria to be a secondary victim

A

Page v Smith

To be a secondary victim, the claimant must have:

i. Witnessed injury to someone else; and
ii. Feared for the safety of that person

314
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > NORMAL FORTITUDE, CLOSE RELATIONSHIP OF LOVE AND AFFECTION, PRESENT, OWN SENSES

A

Alcock v Chief Constable of South Yorkshire Police

A duty is owed for PPH suffered by a secondary victim if the following criteria are satisfied (NORMAL FORTITUDE, CLOSE RELATIONSHIP OF LOVE AND AFFECTION, PRESENT, OWN SENSES)

315
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > A duty is owed for PPH suffered by a secondary victim if the following criteria are satisfied?

A

NORMAL FORTITUDE, CLOSE RELATIONSHIP OF LOVE AND AFFECTION, PRESENT, OWN SENSES

Alcock v Chief Constable of South Yorkshire Police

316
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims >
Alcock v Chief Constable of South Yorkshire Police

A

i. It is reasonably foreseeable that a person of NORMAL FORTITUDE in the claimants position would suffer a psychiatric illness
ii. The claimant has a CLOSE RELATIONSHIP OF LOVE AND AFFECTION with the person endangered by the claimants negligence
iii. The Claimant was PRESENT at the accident or its immediate aftermath
iv. The claimant saw/heard the accident, or its immediate aftermath with his OWN SENSES

317
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > Close relationship > Alcock

A

Such relationships are presumed with a parent-child, husband-wife, fiancé-fiancée relationships

318
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > Close relationships > Such relationships are presumed with a parent-child, husband-wife, fiancé-fiancée relationships

A

Alcock

319
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > Present > McCloughlin v O’Brian

A

One hour after accident with victims in the same state deemed to be ‘immediate aftermath’

320
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > Present > One hour after accident with victims in the same state deemed to be ‘immediate aftermath’

A

McCloughlin v O’Brian

321
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > own senses > McCloughlin

A

The shock must come to the claimant through sight or hearing of the event, or its immediate aftermath

322
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > own senses > The shock must come to the claimant through sight or hearing of the event, or its immediate aftermath

A

McCloughlin

323
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > own senses > Alcock

A

Seeing the event on TV will not be sufficient – unless the impact of a Live TV broadcast is as great or greater than seeing the actual accident

324
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Secondary Victims > Own senses > Seeing the event on TV will not be sufficient – unless the impact of a Live TV broadcast is as great or greater than seeing the actual accident

A

Alcock

325
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Rescuers > White v Chief Constable of the South Yorkshire Police

A

Where the claimant is a rescuer, there are no special rules. A rescuer will therefore, fall into the category of either primary or secondary victim, as any other person would.

326
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Rescuers >
Where the claimant is a rescuer, there are no special rules. A rescuer will therefore, fall into the category of either primary or secondary victim, as any other person would.

A

White v Chief Constable of the South Yorkshire Police

327
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Rescuers > Chadwick v British Railway Board

A

Where a rescuer was a primary victim

328
Q

Pure Psychiatric Harm > 3. Duty of Care Owed > Rescuers >

Where a rescuer was a primary victim

A

Chadwick v British Railway Board

329
Q

Pure Psychiatric Harm > Problems with Existing Status of law

A

(exam questions sometimes touch upon the satisfaction with the current state of the law)
• What is immediate?
• Why must the harm be caused by sudden shock when mesothelioma and asbestos can be cumulative harm?
• What about stress which is not medically recognised, as in Walker?
• Why must the claimant hear/see the shock through his own senses? i.e. what if a mother heard of her child’s accident over the phone?
• Why a person of ‘normal fortitude’, when the egg shell skull rule is normal in tort?

330
Q

Pure Psychiatric Harm > Problems with Existing Status of law > Walker v Northumberland County Council

A

• What about stress which is not medically recognised, as in Walker?

331
Q

Pure Psychiatric Harm > Problems with Existing Status of law >
• What about stress which is not medically recognised, as in Walker?

A

Walker v Northumberland County Council

332
Q

Remedies > Steps (all)

A

Step One: State the principle of Remedies in Tort
For non-fatal claims
Step Two: Set out the two heads of NON-PECUNIARY Losses, and consider whether they apply to the facts
Steps Three: Set out the PECUNIARY Heads of Loss and consider whether they apply to the facts
Step Four: note (1) deductions that will be made from the claimant’s damages, and (2) exceptions to the ‘one action rule’
For Fatal Claims
Step Two: Consider what claims may be brought under the LR(MP)A 1934
Step Three: Consider what claims may be brought under the FAA 1976

333
Q

Remedies > Steps (non-fatal claims)

A

Step One: State the principle of Remedies in Tort
Step Two: Set out the two heads of NON-PECUNIARY Losses, and consider whether they apply to the facts
Steps Three: Set out the PECUNIARY Heads of Loss and consider whether they apply to the facts
Step Four: note (1) deductions that will be made from the claimant’s damages, and (2) exceptions to the ‘one action rule’

334
Q

Remedies > Steps (fatal claims)

A

Step One: State the principle of Remedies in Tort
Step Two: Consider what claims may be brought under the LR(MP)A 1934
Step Three: Consider what claims may be brought under the FAA 1976

335
Q

Remedies > 1. Principles > Damages

A

Damages are awarded to put the claimant in the position he would have been in had the tort not been committed

336
Q

Remedies > 1. Principles > One Action Rule

A

The claimant may bring only one claim based on one set of facts –> one lump sum is awarded to the claimant to cover both past and future losses

337
Q

Remedies > 1. Principles > Mitigation of Loss

A

The claimant has a duty to take reasonable steps to avoid losses –> the claimant should not profit from the incident

338
Q

Remedies > 1. Principles > Contributory Negligence

A

Any Damages will be reduced for any findings of contributory negligence

339
Q

Non-Fatal Remedies > 2. Non-Pecuniary

A

One Figure is generally given to cover pain and suffering and loss of amenity. Lawyers use Kemp and Kemp (also – JSB guidelines) as a guide to come to this figure

340
Q

Non-Fatal Remedies > 2. Non-Pecuniary > Pain and Suffering

A

a) Covers: past, present and future pain, physical and mental anguish, fear of future surgery etc.
b) A SUBJECTIVE test is used to award damages for pain and suffering. Thus, the claimant must be aware of his injuries to claim (wise v Kaye) –> The claimant cannot claim for a period where he was unconscious (e.g. in a coma)
c) Consider facts such as: whether the injury was to a dominant/ non-dominant limb; the number of operations required; recovery time; the permanence of any disability; any scarring.

341
Q

Non-Fatal Remedies > 2. Non-Pecuniary > Pain and Suffering > Wise v Kaye

A

b) A SUBJECTIVE test is used to award damages for pain and suffering. Thus, the claimant must be aware of his injuries to claim -> The claimant cannot claim for a period where he was unconscious (e.g. in a coma)

342
Q

Non-Fatal Remedies > 2. Non-Pecuniary > Pain and Suffering > b) A SUBJECTIVE test is used to award damages for pain and suffering. Thus, the claimant must be aware of his injuries to claim -> The claimant cannot claim for a period where he was unconscious (e.g. in a coma)

A

Wise v Kaye

343
Q

Non-Fatal Remedies > 2. Non-Pecuniary > Loss of Amenity

A

a) Covers: loss of enjoyment of life, e.g. inability to pursue hobbies, loss of sight/smell/freedom of movement/marriage prospects etc…
b) An OBJECTIVE test used to award damages for Loss of Amenities. The Claimant may claim for periods where he was unconscious/unaware of his own loss of enjoyment of life (West v Shepherd)
c) Consider: how active was the claimant? If very active, likely to receive more than if not active.

344
Q

Non-Fatal Remedies > 2. Non-Pecuniary > Loss of Amenity > West v Shepherd

A

b) An OBJECTIVE test used to award damages for Loss of Amenities. The Claimant may claim for periods where he was unconscious/unaware of his own loss of enjoyment of life

345
Q

Non-Fatal Remedies > 2. Non-Pecuniary > Loss of Amenity >
b) An OBJECTIVE test used to award damages for Loss of Amenities. The Claimant may claim for periods where he was unconscious/unaware of his own loss of enjoyment of life

A

West v Shepherd

346
Q

Non-Fatal Remedies > 3. Pecuniary Heads of Losses

A
  1. Medical Expenses
  2. Loss of Earnings Pre-Trial
  3. Loss of Earnings Post-Trial
  4. Loss of Earnings – THE LOST YEARS
  5. Loss of Earnings – CHILDREN
  6. THE COST OF CARE
  7. LOSS OF EARNING CAPACITY
  8. OTHER PECUNIARY EXPENSES
347
Q

Non-Fatal Remedies > 3. Pecuniary > Medical Expenses

A

a) Covers all those reasonably incurred resulting from accident (e.g. prescription charges)
b) If pre-trial = special damages
c) If post-trial = general damages: use multiplier method (annual cost of treatment X number of years your treatment is likely to continue
d) Under s.2(4) Law Reform (Personal Injuries) Act 1948 one may recover reasonable cost of PRIVATE medical treatment

348
Q

Non-Fatal Remedies > 3. Pecuniary > Medical Expenses > Under s.2(4) Law Reform (Personal Injuries) Act 1948

A

d) One may recover reasonable cost of PRIVATE medical treatment

349
Q

Non-Fatal Remedies > 3. Pecuniary > Medical Expenses > One may recover reasonable cost of PRIVATE medical treatment

A

Under s.2(4) Law Reform (Personal Injuries) Act 1948

350
Q

Non-Fatal Remedies > 3. Pecuniary > 2. Loss of Earnings Pre-trial

A

a) Covers net loss of earnings from date of accident, to date of trial. (includes bonuses/perks)
b) Special damages (i.e. capable of being calculated precisely at the time of trial)

351
Q

Non-Fatal Remedies > 3. Pecuniary > 3. Loss of Earnings Post-Trial

A

a) Lump sum which when invested, aims to provide claimant with income for the rest of his life
b) General Damages (i.e. not capable of being calculated precisely at time of trial –> left for court to determine)
c) Worked out using the multiplier method

352
Q

Non-Fatal Remedies > 3. Pecuniary > 3. Loss of Earnings Post-Trial > The method – damages for loss of future earnings

A

MULTIPLICAND X MULTIPLIER

Multiplicand (= net annual loss of earnings) X Multiplier (= actual period of loss from trial)

353
Q

Non-Fatal Remedies > 3. Pecuniary > 3. Loss of Earnings Post-Trial > The method – damages for loss of future earnings >
MULTIPLICAND

A

= net annual loss of earnings

Adjusted (increased) for bonuses/perks and the likelihood of promotion, but ignoring inflation

354
Q

Non-Fatal Remedies > 3. Pecuniary > 3. Loss of Earnings Post-Trial > The method – damages for loss of future earnings >
MULTIPLIER

A

= actual period of loss from trial
Reduced for early receipt (claimant assumed to invest money at standard rate of return for low risk investment – minus 0.75%) and for the ‘contingencies of life’ (e.g. possibilities of redundancy.)
Ogden tables are used to determine reductions

355
Q

Non-Fatal Remedies > 3. Pecuniary > 4. Loss of Earnings – THE LOST YEARS

A

a) The claimant may claim for ‘lost years’, i.e. where the claimant’s life expectancy, and therefore number of years he would have worked, has been shortened (Pickett v British Rail Engineering)
b) But deduct from this figure the amount that the claimant would have spent on self (25% if married with dependant children; 33% if no dependants)

356
Q

Non-Fatal Remedies > 3. Pecuniary > 4. Loss of Earnings – THE LOST YEARS > Pickett v British Rail Engineering

A

a) The claimant may claim for ‘lost years’, i.e. where the claimant’s life expectancy, and therefore number of years he would have worked, has been shortened

357
Q

Non-Fatal Remedies > 3. Pecuniary > 4. Loss of Earnings – THE LOST YEARS > a) The claimant may claim for ‘lost years’, i.e. where the claimant’s life expectancy, and therefore number of years he would have worked, has been shortened

A

Pickett v British Rail Engineering

358
Q

Non-Fatal Remedies > 3. Pecuniary > 5. Loss of Earnings – CHILDREN

A

a) Children may also be compensated for loss of earnings
b) Calculation will be based on factors such as: national average salary, parents’ earnings, typical earnings for area of work in which child has shown potential

359
Q

Non-Fatal Remedies > 3. Pecuniary > 6. THE COST OF CARE > (a) Schneider v Eistovich

A

i. The claimant may recover for necessary post-injury care services, provided the need for services follows from the injuries caused by the defendants negligence.
ii. How it works: Carer him/herself doesn’t claim – rather the claimant claims on behalf of claimant and holds on trust

360
Q

Non-Fatal Remedies > 3. Pecuniary > 6. THE COST OF CARE >

i. The claimant may recover for necessary post-injury care services, provided the need for services follows from the injuries caused by the defendants negligence.
ii. How it works: Carer him/herself doesn’t claim – rather the claimant claims on behalf of claimant and holds on trust

A

(a) Schneider v Eistovich

361
Q

Non-Fatal Remedies > 3. Pecuniary > 6. THE COST OF CARE > (b) Housecroft v Burnett

A

A RELATIVE who gives up work to take care for the claimant may also be compensated according to their loss of earnings, but only up to a commercial cost ceiling (s/he may only recover commercial rates)

362
Q

Non-Fatal Remedies > 3. Pecuniary > 6. THE COST OF CARE >
A RELATIVE who gives up work to take care for the claimant may also be compensated according to their loss of earnings, but only up to a commercial cost ceiling (s/he may only recover commercial rates)

A

(b) Housecroft v Burnett

363
Q

Non-Fatal Remedies > 3. Pecuniary > 6. THE COST OF CARE > Two Cases

A

(a) Schneider v Eistovich

(b) Housecroft v Burnett

364
Q

Non-Fatal Remedies > 3. Pecuniary > 7. LOSS OF EARNING CAPACITY > AKA?

A

Smith v Manchester Award

365
Q

Non-Fatal Remedies > 3. Pecuniary > 7. LOSS OF EARNING CAPACITY

A

Smith v Manchester

a) Damages are awarded where the claimant is still able to work and continues to work in original job but is now disadvantaged in the job market or has a reduced ability to earn highly
b) Award: typically 0-2 net annual loss of earnings (speculative head of damages)

366
Q

Non-Fatal Remedies > 3. Pecuniary > 7. LOSS OF EARNING CAPACITY > Smith v Manchester Award

A

a) Damages are awarded where the claimant is still able to work and continues to work in original job but is now disadvantaged in the job market or has a reduced ability to earn highly
b) Award: typically 0-2 net annual loss of earnings (speculative head of damages)

367
Q

Non-Fatal Remedies > 3. Pecuniary > 8. OTHER PECUNIARY EXPENSES > Definition

A

Any reasonable loss, such as damage to property or cost of household aids (e.g. dishwasher) will be awarded.

368
Q

Non-Fatal Remedies > 4. Deductions and Exceptions > Deductions

A

a) Tax and National Insurance contributions will ALWAYS be deducted
b) Insurance payments, charitable/family help and ill-health pension payments are NEVER deducted (this is an exception to the principle of not over-compensating claimants, justified on public policy grounds)

c) STATE BENEFITS received as a result of the tort are to be deducted from:
i. Loss of earnings
ii. Cost of care
iii. Loss of mobility
iv. But NOT from pain and suffering or Loss of Amenity

369
Q

Non-Fatal Remedies > 4. Deductions and Exceptions > Method of payment

A

One Action Rule = one lump sum to be awarded for the rest of the claimants life

370
Q

Non-Fatal Remedies > 4. Deductions and Exceptions > Exceptions to the One Action Rule > s.32A Senior Courts Act 1981

A

PROVISIONAL DAMAGES: In cases of personal injury, where there’s a chance the claimant’s condition will deteriorate in the future, damages are awarded to the claimant assuming this won’t happen. If it DOES happen at a later date, courts may award another sum of damages.

371
Q

Non-Fatal Remedies > 4. Deductions and Exceptions > Exceptions to the One Action Rule > PROVISIONAL DAMAGES: In cases of personal injury, where there’s a chance the claimant’s condition will deteriorate in the future, damages are awarded to the claimant assuming this won’t happen. If it DOES happen at a later date, courts may award another sum of damages.

A

s.32A Senior Courts Act 1981

372
Q

Non-Fatal Remedies > 4. Deductions and Exceptions > Exceptions to the One Action Rule > s.2 Damages Act 1996

A

PERIODIC PAYMENT: Allows court to order periodic pay,ent of damages for personal injury

373
Q

Non-Fatal Remedies > 4. Deductions and Exceptions > Exceptions to the One Action Rule > PERIODIC PAYMENT: Allows court to order periodic pay,ent of damages for personal injury

A

s.2 Damages Act 1996

374
Q

Non-Fatal Remedies > 4. Deductions and Exceptions > What are the two Exceptions to the One Action Rule?

A

PROVISIONAL DAMAGES

PERIODIC PAYMENT

375
Q

Fatal Remedies > LR(MP)A 1934

A

Law Reform (Miscellaneous Provisions) Act 1934

376
Q

Fatal Remedies > 2. LR(MP)A 1934

A
  1. State: where the claimant has died, the claimant’s ESTATE can continue/commence a claim on his behalf
  2. How it works: PR’s bring a claim on behalf of the estate
  3. What can be recovered:
    a. SURVIVAL PERIOD LOSSES (losses between tort and death)
    i. All pecuniary losses up to the date of death; and
    ii. All non-pecuniary losses up to the date of death
    b. Property damage
    c. Reasonable funeral expenses incurred by the estate
377
Q

Fatal Remedies > 2. LR(MP)A 1934 > 1. State

A
  1. State: where the claimant has died, the claimant’s ESTATE can continue/commence a claim on his behalf
378
Q

Fatal Remedies > 2. LR(MP)A 1934 > How it works

A

PR’s bring a claim on behalf of the estate

379
Q

Fatal Remedies > 2. LR(MP)A 1934 > What can be recovered

A
  1. What can be recovered:
    a. SURVIVAL PERIOD LOSSES (losses between tort and death)
    i. All pecuniary losses up to the date of death; and
    ii. All non-pecuniary losses up to the date of death
    b. Property damage
    c. Reasonable funeral expenses incurred by the estate
380
Q

Fatal Remedies > 2. LR(MP)A 1934 > BUT

A

LR(MP)A 1934 DOES NOT allow any surviving DEPENDENTS of the claimant to be compensated

381
Q

Fatal Remedies > 3. FAA 1976

A

Fatal Accidents Act 1976

382
Q

Fatal Remedies > 3. FAA 1976 > Steps

A
  1. State: the FAA allows DEPENDANTS to sue for the death of a person on whom they were dependent.
  2. How it works: PR’s bring a claim on behalf of the DEPENDANTS
  3. Who qualifies as a dependant?
    To claim, the person:
    • Must fall within the class of dependants listed in s.1(3) FAA; and
    • Must have been actually financially dependent on the deceased
    If these conditions are satisfied, the following three claims may be brought under the Act:
    a) Damages for LOSS OF DEPENDANCY. Assessed using the Multiplier Method (see below)
    b) BEREAVEMENT ALLOWANCE: fixed sum of £12,980 (but only available to deceased’s spouse, or, if deceased was an unmarried minor, for his parents)
    c) Reasonable FUNERAL EXPENSES incurred by the dependants
383
Q

Fatal Remedies > 3. FAA 1976 > 1. State

A
  1. State: the FAA allows DEPENDANTS to sue for the death of a person on whom they were dependent.
384
Q

Fatal Remedies > 3. FAA 1976 > 2. How it works

A

PR’s bring a claim on behalf of the DEPENDANTS

385
Q

Fatal Remedies > 3. FAA 1976 > 3, Who qualifies as a dependant?

A

To claim, the person:
• Must fall within the class of dependants listed in s.1(3) FAA; and
• Must have been actually financially dependent on the deceased

386
Q

Fatal Remedies > 3. FAA 1976 > If these conditions are satisfied, the following three claims may be brought under the Act:

A

a) Damages for LOSS OF DEPENDANCY. Assessed using the Multiplier Method (see below)
b) BEREAVEMENT ALLOWANCE: fixed sum of £12,980 (but only available to deceased’s spouse, or, if deceased was an unmarried minor, for his parents)
c) Reasonable FUNERAL EXPENSES incurred by the dependants

387
Q

Fatal Remedies > 3. FAA 1976 > The Multiplier Method – damages for loss of dependency

A

MULTIPLICAND X MULTIPLIER

Multiplicand = salary
x
Multiplier = the period of dependency

388
Q

Fatal Remedies > 3. FAA 1976 > The Multiplier Method – damages for loss of dependency > MULTIPLICAND

A

Multiplicand = salary

Figure reduced by

(a) the amount decease would have spent on himself – 25% if married with children, 33% where no dependants – and
(b) any finding of contributory negligence against the deceased.

Figure may be increased to take account of value of household work.

389
Q

Fatal Remedies > 3. FAA 1976 > The Multiplier Method – damages for loss of dependency > MULTIPLIER

A

Multiplier = the period of dependency

For the deceased’s spouse = retirement age;
for the deceased’s children = date at which they leave education

390
Q

Fatal Remedies > 3. FAA 1976 and LR(MP)A 1934 > Remember

A

Limitation period for either act is THREE YEARS

391
Q

Employer’s Liability > Three areas of potential liability for employers

A
  1. Health and Safety
  2. Common Law Negligence
  3. Vicarious Liability
392
Q

Employer’s Liability > Steps

A
  1. Statutory Health and Safety Regulations
  2. Common Law Negligence:
    Step One: DUTY OF CARE – set out the duties the employer owed to their employee
    Step Two: Has there been a breach of this duty?
    Step Three: Did the breach of Duty CAUSE the harm in question?
    Step Four: Are any DEFENCES available to the employer?
  3. Vicarious Liability
    Step One: Define the principle of vicarious liability
    Step Two: Has a tort been committed by an Employer or by someone in a relationship akin to employment?
    Step Three: Was this IN THE COURSE OF EMPLOYMENT?
    Step Four: Consider the Employer’s Indemnity
393
Q

Employers Liability > Statutory Health and Safety Regulations > ERRA 2013

A

Enterprise and Regulatory Reform Act 2013

394
Q

Employers Liability > Statutory Health and Safety Regulations > Impact of s.69 ERRA 2013

A

Has made employers criminally liable for breaches of regulations relating to Health and Safety, relating to the Health and Safety at Work Act 1974.

This means that employees who have suffered damage because of their employer’s non-compliance can no longer action these breaches under a civil claim for breach of statutory duty. Wronged employees are still able to bring a claim against their employer in negligence however.

395
Q

Employers Liability > Statutory Health and Safety Regulations > How the courts assess a claim for breach of duty in negligence

A

The court assessing a claim for breach of duty in negligence by an employer will most likely look answer two questions:

  1. Which risks the employer should have foreseen; and
  2. Which precautions should he have taken to respond to those risks?

Where relevant, existing statutory Health and Safety regulations will likely be used by the courts to answer those questions.

396
Q

Employers Liability > Common Law Negligence > Steps

A

Step One: DUTY OF CARE – set out the duties the employer owed to their employee
Step Two: Has there been a breach of this duty?
Step Three: Did the breach of Duty CAUSE the harm in question?
Step Four: Are any DEFENCES available to the employer?

397
Q

Employers Liability > Common Law Negligence > 1. Duty of Care

A

An employer owes its employees a duty to take reasonable care of their safety while at work (non-delegable). This established duty situation involves four separate, non-delegable, duties.

398
Q

Employers Liability > Common Law Negligence > 1. Duty of Care > Memorise first sentence

A

An employer owes its employees a duty to take reasonable care of their safety while at work (non-delegable). This established duty situation involves four separate, non-delegable, duties.

399
Q

Employers Liability > Common Law Negligence > 1. Duty of Care > Lord Wright’s judgement in Wilsons & Clyde Coal Co. v English

A
  1. A duty to provide COMPETENT STAFF
  2. A duty to provide ADEQUATE PLANT, EQUIPMENT AND MACHINERY
  3. A duty to provide A SAFE SYSTEM OF WORK AND SUPERVISION; and
  4. A duty to provide a SAFE WORKPLACE (added by Latimer v AEC Ltd)
400
Q

Employers Liability > Common Law Negligence > 1. Duty of Care >

  1. A duty to provide COMPETENT STAFF
  2. A duty to provide ADEQUATE PLANT, EQUIPMENT AND MACHINERY
  3. A duty to provide A SAFE SYSTEM OF WORK AND SUPERVISION; and
  4. A duty to provide a SAFE WORKPLACE (added by Latimer v AEC Ltd)
A

Lord Wright’s judgement in Wilsons & Clyde Coal Co. v English

401
Q

Employers Liability > Common Law Negligence > 1. Duty of Care > Latimer v AEC Ltd

A

Added:

4. A duty to provide a SAFE WORKPLACE

402
Q

Employers Liability > Common Law Negligence > 1. Duty of Care > Added:
4. A duty to provide a SAFE WORKPLACE

A

Latimer v AEC Ltd

403
Q

Employers Liability > CL Negligence > 1. Duty of Care > 1. Competent Staff > Hudson v Ridge Manufacturing Co. Ltd (Confirmed in Waters)

A

a) This duty arises when an employer KNOWS OR OUGHT TO KNOW of the RISK posed by an employee

404
Q

Employers Liability > CL Negligence > 1. Duty of Care > 1. Competent Staff >
a) This duty arises when an employer KNOWS OR OUGHT TO KNOW of the RISK posed by an employee

A

Hudson v Ridge Manufacturing Co. Ltd (Confirmed in Waters)

405
Q

Employers Liability > CL Negligence > 1. Duty of Care > 1. Competent Staff > Waters v Commissioner for Police of the Met

A

b) The Risk posed by the employee may be one of psychiatric harm (e.g. bullying)

406
Q

Employers Liability > CL Negligence > 1. Duty of Care > 1. Competent Staff >
b) The Risk posed by the employee may be one of psychiatric harm (e.g. bullying)

A

Waters v Commissioner for Police of the Met

407
Q

Employers Liability > CL Negligence > 1. Duty of Care > 1. Competent Staff

A

a) This duty arises when an employer KNOWS OR OUGHT TO KNOW of the RISK posed by an employee
(Hudson v Ridge Manufacturing Co. Ltd (Confirmed in Waters))

b) The Risk posed by the employee may be one of psychiatric harm (e.g. bullying)
(Waters v Commissioner for Police of the Met)

408
Q

Employers Liability > CL Negligence > 1. Duty of Care > 2. Adequate plant, equipment and machinery > Relevant where?

A

a) Relevant where:
i. Employer provides plant/equipment which is inadequate in some way
ii. Employer does not supply ALL the plant/equipment required for the job

409
Q
Employers Liability > CL Negligence > 1. Duty of Care > 2. Adequate plant, equipment and machinery > 
Employers Liability (Defective Equipment) Act 1969, s.1
A

i. Relevant where a defect in equipment was caused by a third party (manufacturer/supplier)
ii. If injured by this defect, employee must sue EMPLOYER themselves, provided he can establish:
1. Fault on the part of someone; and
2. This fault CAUSED employee’s injury

410
Q

Employers Liability > CL Negligence > 1. Duty of Care > 2. Adequate plant, equipment and machinery >

i. Relevant where a defect in equipment was caused by a third party (manufacturer/supplier)
ii. If injured by this defect, employee must sue EMPLOYER themselves, provided he can establish:
1. Fault on the part of someone; and
2. This fault CAUSED employee’s injury

A

Employers Liability (Defective Equipment) Act 1969, s.1

411
Q

Employers Liability > CL Negligence > 1. Duty of Care > 3. Safe System of work and Supervision

A

a) Employer must not only devise a safe system of work, but take reasonable steps to ensure that it is complied with. Covers: physical lay-out, training, warnings, notices, safety equipment etc.
b) Duty extends to stress-induced (psychiatric) harm (Walker v Northumberland County Council)
c) Confirmed Walker, but added the rule – the employer’s duty only arises where injury to health through stress at work is REASONABLY FORESEEABLE. (Hatton v Sutherland)
d) Most Commonly Invoked Duty

412
Q

Employers Liability > CL Negligence > 1. Duty of Care > 3. Safe System of work and Supervision > Walker v Northumberland County Council

A

b) Duty extends to stress-induced (psychiatric) harm

413
Q

Employers Liability > CL Negligence > 1. Duty of Care > 3. Safe System of work and Supervision >
b) Duty extends to stress-induced (psychiatric) harm

A

Walker v Northumberland County Council

414
Q

Employers Liability > CL Negligence > 1. Duty of Care > 3. Safe System of work and Supervision > Hatton v Sutherland

A

c) Confirmed Walker, but added the rule – the employer’s duty only arises where injury to health through stress at work is REASONABLY FORESEEABLE.

415
Q

Employers Liability > CL Negligence > 1. Duty of Care > 3. Safe System of work and Supervision >
c) Confirmed Walker, but added the rule – the employer’s duty only arises where injury to health through stress at work is REASONABLY FORESEEABLE.

A

Hatton v Sutherland

416
Q

Employers Liability > CL Negligence > 1. Duty of Care > 4. Safe Workplace

A

Overlap with duty under Occupier’s Liability Act, but common law duty:

i. Applies WHEREVER employees are at work; not just premises of employer (General Cleaning Contracts v Christmas); and
ii. Cannot be delegated to an independent contractor

417
Q

Employers Liability > CL Negligence > 1. Duty of Care > 4. Safe Workplace > General Cleaning Contracts v Christmas

A

Applies WHEREVER employees are at work; not just premises of employer

418
Q

Employers Liability > CL Negligence > 1. Duty of Care > 4. Safe Workplace > Applies WHEREVER employees are at work; not just premises of employer

A

General Cleaning Contracts v Christmas

419
Q

Employers Liability > CL Negligence > 2. Breach of Duty

A

Has the employer reached the standard of a REASONABLE EMPLOYER? Duty is owed to each individual employee, taking into account their individual circumstances.

420
Q

Employers Liability > CL Negligence > 2. Breach of Duty > Bolton v Stone

A

(a) If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.

421
Q

Employers Liability > CL Negligence > 2. Breach of Duty >
(a) If the RISK OF HARM is particularly small, and neglect is reasonable, it is justifiable not to take steps to mitigate.

A

Bolton v Stone

422
Q

Employers Liability > CL Negligence > 2. Breach of Duty > Paris v Stepney BC

A

(b) If there is a VERY SERIOUS HARM, one must take appropriate steps to mitigate

423
Q

Employers Liability > CL Negligence > 2. Breach of Duty >

(b) If there is a VERY SERIOUS HARM, one must take appropriate steps to mitigate

A

Paris v Stepney BC

424
Q

Employers Liability > CL Negligence > 2. Breach of Duty > Latimer v AEC Ltd

A

(d) If the defendant’s actions are in the PUBLIC INTEREST/ have substantial social utility, this may justify the defendant’s taking greater risk

425
Q

Employers Liability > CL Negligence > 2. Breach of Duty >
(d) If the defendant’s actions are in the PUBLIC INTEREST/ have substantial social utility, this may justify the defendant’s taking greater risk

A

Latimer v AEC Ltd

426
Q

Employers Liability > CL Negligence > 2. Breach of Duty > Fardon v Harcourt-Rivington

A

(e) There is no duty on the defendant to protect against “fantastic” probabilities

427
Q

Employers Liability > CL Negligence > 2. Breach of Duty >

(e) There is no duty on the defendant to protect against “fantastic” probabilities

A

Fardon v Harcourt-Rivington

428
Q

Employers Liability > CL Negligence > 2. Breach of Duty >

Waugh v James K Allen

A

(f) The defendant is not liable if his actions were due to a sudden incapacity

429
Q

Employers Liability > CL Negligence > 2. Breach of Duty >

(f) The defendant is not liable if his actions were due to a sudden incapacity

A

Waugh v James K Allen

430
Q

Employers Liability > CL Negligence > 2. Breach of Duty >

Scott v London and St Katherine’s Docks

A

(g) Res Ipsa Loquitor – the defendant may be liable even if there is no conclusive proof of blame (in limited situations only).

431
Q

Employers Liability > CL Negligence > 2. Breach of Duty >
(g) Res Ipsa Loquitor – the defendant may be liable even if there is no conclusive proof of blame (in limited situations only).

A

Scott v London and St Katherine’s Docks

432
Q

Employers Liability > CL Negligence > 4. Defences

A
  1. Consent

2. Contributory Negligence

433
Q

Employers Liability > CL Negligence > 4. Defences > Consent > Smith v Baker

A

Rarely allowed, employees not deemed to have freely consented to risk of being injured by employer’s negligence – rather, are obliged to

434
Q

Employers Liability > CL Negligence > 4. Defences > Consent >
Rarely allowed, employees not deemed to have freely consented to risk of being injured by employer’s negligence – rather, are obliged to

A

Smith v Baker

435
Q

Employers Liability > CL Negligence > 4. Defences > Contributory Negligence

A

Available to Employers under Law Reform (Contributory Negligence) Act 1945

436
Q

Employers Liability > CL Negligence > 4. Defences > Contributory Negligence > Caswell v Powell Duffryn Associated Collieries Ltd

A

Courts will make allowances for employees working in noisy conditions.

437
Q

Employers Liability > CL Negligence > 4. Defences > Contributory Negligence > Courts will make allowances for employees working in noisy conditions.

A

Caswell v Powell Duffryn Associated Collieries Ltd

438
Q

Employers Liability > 3. Vicarious Liability > Steps

A

Step One: Define the principle of vicarious liability

Step Two: Has a tort been committed by an Employer or by someone in a relationship akin to employment?

Step Three: Was this IN THE COURSE OF EMPLOYMENT?

Step Four: Consider the Employer’s Indemnity

439
Q

Employers Liability > 3. Vicarious Liability > Define > Various Claimants v Catholic Child Welfare Society and Others

A

Vicarious liability is not a tort, but a principle of law. If the claimant can show that a tort has been committed by an employee in the course of employment (or in the course of a relationship akin to employment [case]), then the claimant can sue the employer.

440
Q

Employers Liability > 3. Vicarious Liability > Define >
Vicarious liability is not a tort, but a principle of law. If the claimant can show that a tort has been committed by an employee in the course of employment (or in the course of a relationship akin to employment [case]), then the claimant can sue the employer.

A

Various Claimants v Catholic Child Welfare Society and Others

441
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin

A

a) Firstly, apply all tests below and determine whether you are dealing with an employer or an independent contractor
b) If the tortfeasor if an independent contractor, explain that following [Barclays Bank Plc v Various Claimants], the Court of Appeal has said employers are vicariously liable for the torts of independent contractors (such as a self-employed roofer) if there is a relationship akin to employment.

442
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin > Employees will have the following characteristics:

A

• They are usually employed under a contract of service, i.e. they:
o Provide work (in the performance of a service of employer) for remuneration.
o Agree that they are subject to sufficient control of another in the performance of this service; and
o Other provisions of the contract are consistent with a contract of service
(Ready Mixed Concrete v Minister of Pensions and National Insurance)

  • They work for only one person (the employer)
  • They work for the employer’s business interests
443
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin > Employees characteristic > Ready Mixed Concrete v Minister of Pensions and National Insurance

A

• They are usually employed under a contract of service, i.e. they:
o Provide work (in the performance of a service of employer) for remuneration.
o Agree that they are subject to sufficient control of another in the performance of this service; and
o Other provisions of the contract are consistent with a contract of service

444
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin > Employees characteristic >
• They are usually employed under a contract of service, i.e. they:
o Provide work (in the performance of a service of employer) for remuneration.
o Agree that they are subject to sufficient control of another in the performance of this service; and
o Other provisions of the contract are consistent with a contract of service

A

Ready Mixed Concrete v Minister of Pensions and National Insurance

445
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin > Independent contractors will have the following characteristics:

A
  • They are employed under a contract for services and/or work for several people.
  • They work in their own business interests
446
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin > part b

A

b) If the tortfeasor if an independent contractor, explain that following [Barclays Bank PLC v Various Claimants], the Court of Appeal has said employers are vicariously liable for the torts of independent contractors (such as a self-employed roofer) if there is a relationship akin to employment.

447
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin > Barclays Bank PLC v Various Claimants

A

b) If the tortfeasor if an independent contractor, explain that following [Barclays Bank PLC v Various Claimants], the Court of Appeal has said employers are vicariously liable for the torts of independent contractors (such as a self-employed roofer) if there is a relationship akin to employment.

448
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin > Various Claimants v Catholic Child Welfare Society and Others

A

Test for: AKIN TO EMPLOYMENT:
• The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
• The tort will have been committed as a result of activity being taken by the employee on the employer’s behalf;
• The activity is part of the business activity of the employer
• The employer, by employing the employee to carry on the activity, will have created the risk of the tort being committed by the employee; and
• The employee will, to a greater or lesser degree, have been under the control of the employer.

449
Q

Employers Liability > 3. Vicarious Liability > 2. Employer or akin > Test for: AKIN TO EMPLOYMENT

A

Various Claimants v Catholic Child Welfare Society and Others

Test for: AKIN TO EMPLOYMENT:
• The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
• The tort will have been committed as a result of activity being taken by the employee on the employer’s behalf;
• The activity is part of the business activity of the employer
• The employer, by employing the employee to carry on the activity, will have created the risk of the tort being committed by the employee; and
• The employee will, to a greater or lesser degree, have been under the control of the employer.

450
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment > Lister Test

A

Salmond’s classic definition, given common law authority in Lister v Hesley Hall Ltd – employer will be liable for:
• Wrongful ACTS it has authorised (Poland v Parr); and
• Wrongful/unauthorised MODES of carrying out authorised acts (Century Insurance v NI Road Transport Board)

451
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment > Poland v Parr

A

employer will be liable for:

• Wrongful ACTS it has authorised;

452
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment >
employer will be liable for:
• Wrongful ACTS it has authorised;

A

Poland v Parr

453
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment >
Century Insurance v NI Road Transport Board

A

employer will be liable for:

• Wrongful/unauthorised MODES of carrying out authorised acts

454
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment >
employer will be liable for:
• Wrongful/unauthorised MODES of carrying out authorised acts

A

Century Insurance v NI Road Transport Board

455
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment > Poland v Parr

A

Off-duty employee protecting his employer’s property deemed to have IMPLIED PERMISSION to protect master’s property

456
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment > Off-duty employee protecting his employer’s property deemed to have IMPLIED PERMISSION to protect master’s property

A

Poland v Parr

457
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment > Century Insurance v NI Road Transport Board

A

Oil Tanker drivers smoking while unloading Tank of Oil

458
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment > Oil Tanker drivers smoking while unloading Tank of Oil

A

Century Insurance v NI Road Transport Board

459
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment > Century Insurance v NI Road Transport Board

A

Oil Tanker drivers smoking while unloading Tank of Oil

460
Q

Employers Liability > 3. Vicarious Liability > 3. In the course of Employment > Oil Tanker drivers smoking while unloading Tank of Oil

A

Century Insurance v NI Road Transport Board

461
Q

Employers Liability > 3. Vicarious Liability > 3. NOT In the course of Employment > Warren v Henleys Ltd

A

Employee’s punching customer in the face after insult deemed as a PERSONAL ACT

462
Q

Employers Liability > 3. Vicarious Liability > 3. NOT In the course of Employment > Employee’s punching customer in the face after insult deemed as a PERSONAL ACT

A

Warren v Henleys Ltd

463
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition

A
  1. INTENTIONAL torts committed purely for employee’s benefit
  2. Torts expressly PROHIBITED by employer
  3. ‘FROLIC’ cases
464
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit

A

Salmond definition suggests would NOT be in the course of employment – but employer CAN be vicariously liable for employee’s intentional torts, provided:

i. Tort STEMMED from an act authorise by employer (Lloyd Grace v Smith)
ii. Tort was SUFFICIENTLY CONNECTED to the work employee is employed to do. (Lister v Hesley)

465
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit > Lloyd Grace v Smith

A

i. Tort STEMMED from an act authorise by employer

466
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit >
i. Tort STEMMED from an act authorise by employer

A

Lloyd Grace v Smith

467
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit > Lister v Hesley

A

ii. Tort was SUFFICIENTLY CONNECTED to the work employee is employed to do.

468
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit >
ii. Tort was SUFFICIENTLY CONNECTED to the work employee is employed to do.

A

Lister v Hesley

469
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit > Mattis v Pollock

A

Can be interpreted widely

470
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit > Can be interpreted widely

A

Mattis v Pollock

471
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit > Mohamud v WM Morrison Supermarkets Plc

A

Is authority that in order to apply the Lister test, the courts must first ask:
• What function(s) was(were) entrusted to the employee?
• Was there a sufficient connection between the function an the wrongful conduct such that it is fair/just that his employer should be held liable.

472
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 1. INTENTIONAL torts committed purely for employee’s benefit > ?? Is authority that in order to apply the Lister test, the courts must first ask:
• What function(s) was(were) entrusted to the employee?
• Was there a sufficient connection between the function an the wrongful conduct such that it is fair/just that his employer should be held liable.

A

Mohamud v WM Morrison Supermarkets Plc

473
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 2. Torts expressly PROHIBITED by employer >

A

a) Where an act is done to further employer’s business, it may be deemed as done in the course of employment.
(Rose v Plenty)

b) Where act is something employee had no right to do, and act NOT done to further employees business, NOT done in the course of employment (no vicarious liability)
(Twine v Bean’s Express)

474
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 2. Torts expressly PROHIBITED by employer > Rose v Plenty

A

a) Where an act is done to further employer’s business, it may be deemed as done in the course of employment.

475
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 2. Torts expressly PROHIBITED by employer >
a) Where an act is done to further employer’s business, it may be deemed as done in the course of employment.

A

Rose v Plenty

476
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 2. Torts expressly PROHIBITED by employer > Twine v Bean’s Express

A

b) Where act is something employee had no right to do, and act NOT done to further employees business, NOT done in the course of employment (no vicarious liability)

477
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 2. Torts expressly PROHIBITED by employer > b) Where act is something employee had no right to do, and act NOT done to further employees business, NOT done in the course of employment (no vicarious liability)

A

Twine v Bean’s Express

478
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 3. ‘FROLIC’ cases

A

(e.g. where employee deviates from a driving route authorised by employer and thus acts outside the course of his employment.)

479
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 3. ‘FROLIC’ cases > Joel v Morrison

A

a) Is the employee in a ‘frolic of his own?’

480
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 3. ‘FROLIC’ cases >
a) Is the employee in a ‘frolic of his own?’

A

Joel v Morrison

481
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 3. ‘FROLIC’ cases > Hilton v Thomas Burton (Rhodes) Ltd

A

Question of degree/ Consider

i. EXTENT of the deviation (major departure or minor detour?); and
ii. PURPOSE of the deviation – if employee was still going about the employer’s business at time of tort, not on ‘frolic of his own.’

482
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 3. ‘FROLIC’ cases >
Question of degree/ Consider
i. EXTENT of the deviation (major departure or minor detour?); and
ii. PURPOSE of the deviation – if employee was still going about the employer’s business at time of tort, not on ‘frolic of his own.’

A

Hilton v Thomas Burton (Rhodes) Ltd

483
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 3. ‘FROLIC’ cases > Harvey v R G O’Dell

A

b) Consider whether deviation was REASONABLY INCIDENTAL to one’s work

484
Q

Employers Liability > 3. Vicarious Liability > Development and extension of the Salmond definition > 3. ‘FROLIC’ cases >
b) Consider whether deviation was REASONABLY INCIDENTAL to one’s work

A

Harvey v R G O’Dell

485
Q

Employers Liability > 4. Employers Indemnity > Lister v Romford Ice & Cold Storage Co Ltd

A

Employers have the right at common law to claim an indemnity (full loss) from the employee who committed the tort. But, gentleman’s agree-ment not to pursue claim unless misconduct by employee was wilful

486
Q

Employers Liability > 4. Employers Indemnity >
Employers have the right at common law to claim an indemnity (full loss) from the employee who committed the tort. But, gentleman’s agree-ment not to pursue claim unless misconduct by employee was wilful

A

Lister v Romford Ice & Cold Storage Co Ltd

487
Q

Occupier’s Liability > VISITORS – OLA 1957 > Steps

A

Step One: State the COMMON DUTY OF CARE as an occupier
Step Two: Does the defendant owe the claimant a DUTY OF CARE?
Step Three: Has the defendant BREACHED this duty of care?
Step Four: Did the defendant’s breach of duty CAUSE the claimant’s harm?
Step Five: Consider the defences that may be available to the defendant
Step Six: Conclude – explain the liability of the occupier to the visitor

488
Q

Occupier’s Liability > VISITORS – OLA 1957 > 1. State

A

Under s.2(2) OLA 1957
(Occupier’s Liability Act) the occupier owes a duty to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which he is permitted to be there.

489
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > The claimant must show what?

A
  1. The claimant has suffered loss due to the STATE OF THE PREMISES
  2. The defendant is an OCCUPIER
  3. The Claimant is a VISITOR
490
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 1. The claimant has suffered loss due to the STATE OF THE PREMISES > s.1(3)(a) OLA 1957

A

Broad definition of premises = open land; fixed and movable structures (included vessels, vehicles)

If the claimant is injured due to naturally occurring features (e.g. rabbit holes), his injuries may not be due to the state of the premises

491
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 1. The claimant has suffered loss due to the STATE OF THE PREMISES > Broad definition of premises = open land; fixed and movable structures (included vessels, vehicles)

A

s.1(3)(a) OLA 1957

If the claimant is injured due to naturally occurring features (e.g. rabbit holes), his injuries may not be due to the state of the premises

492
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 2. The defendant is an OCCUPIER > Wheat v E Lacon & Co Ltd

A

An occupier is ‘anyone with a ‘sufficient degree of control over the premises’, including:

i. Someone other than the owner;
ii. Multiple individuals; and,
iii. An independent contractor working on another person’s premises (if have required degree of control over area working in – a question of degree)

493
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 2. The defendant is an OCCUPIER >
An occupier is ‘anyone with a ‘sufficient degree of control over the premises’, including:
i. Someone other than the owner;
ii. Multiple individuals; and,
iii. An independent contractor working on another person’s premises (if have required degree of control over area working in – a question of degree)

A

Wheat v E Lacon & Co Ltd

494
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 2. The defendant is an OCCUPIER

A

Wheat v E Lacon & Co Ltd

An occupier is ‘anyone with a ‘sufficient degree of control over the premises’, including:

i. Someone other than the owner;
ii. Multiple individuals; and,
iii. An independent contractor working on another person’s premises (if have required degree of control over area working in – a question of degree)

495
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 2. The defendant is an OCCUPIER > AC Billings & Sons Ltd v Riden

A

It was held that where a contractor is not an occupier under the 1957 or 1984 Acts, he may still be liable for negligence under the established duty to take reasonable care to avoid harm to people he could reasonably expect to be affected by his work.

496
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 2. The defendant is an OCCUPIER > It was held that where a contractor is not an occupier under the 1957 or 1984 Acts, he may still be liable for negligence under the established duty to take reasonable care to avoid harm to people he could reasonably expect to be affected by his work.

A

AC Billings & Sons Ltd v Riden

497
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 2. The defendant is an OCCUPIER > Buckland v Guildford Gaslight & Coke Co

A

this could include trespassers

498
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 2. The defendant is an OCCUPIER > this could include trespassers

A

Buckland v Guildford Gaslight & Coke Co

499
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 3. The Claimant is a VISITOR

A

a) Anyone with express or implied permission is allowed to be there (s.1(2) OLA 1957)
b) Implied permission could be permission:
i. In exercise of legal right, e.g. firemen; (s.2(6) OLA 1957) or
ii. Under terms of a contract (s.5(2) OLA 1957)
c) If the claimant has exceeded his permission, he becomes a trespasser –> OLA 1984 applies instead

500
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 3. The Claimant is a VISITOR > s.1(2) OLA 1957

A

Anyone with express or implied permission is allowed to be there

501
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 3. The Claimant is a VISITOR > Anyone with express or implied permission is allowed to be there

A

s.1(2) OLA 1957

502
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 3. The Claimant is a VISITOR > s.2(6) OLA 1957

A

a) Implied permission could be permission:

i. In exercise of legal right, e.g. firemen; or

503
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 3. The Claimant is a VISITOR >

a) Implied permission could be permission:
i. In exercise of legal right, e.g. firemen; or

A

s.2(6) OLA 1957

504
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 3. The Claimant is a VISITOR > s.5(2) OLA 1957

A

b) Implied permission could be permission:

ii. Under terms of a contract

505
Q

Occupier’s Liability > VISITORS – OLA 1957 > 2. Duty of Care > 3. The Claimant is a VISITOR >

b) Implied permission could be permission:
ii. Under terms of a contract

A

s.5(2) OLA 1957

506
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty

A
  1. State test
  2. Standard owed to ‘special visitors’
  3. Warning notices
  4. Where visitor has been injured by faulty work of INDEPENDENT CONTRACTORS
507
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 1. State Test > Authority

A

s.2(2) OLA 1957

508
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 1. State Test > s.2(2) OLA 1957

A

‘The defendant will have breached the duty of care owed to the claimant if his conduct fell below the standard of the reasonable occupier.’
Factors to consider and assessing whether there has been a breach
a) NATURE of the danger
b) PURPOSE of the visit; and
c) HOW LONG the danger had been on the premises

509
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 1. State Test > ‘The defendant will have breached the duty of care owed to the claimant if his conduct fell below the standard of the reasonable occupier.’

A

s.2(2) OLA 1957

510
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 1. State Test > Factors to consider and assessing whether there has been a breach

A

a) NATURE of the danger
b) PURPOSE of the visit; and
c) HOW LONG the danger had been on the premises

s.2(2) OLA 1957 ‘The defendant will have breached the duty of care owed to the claimant if his conduct fell below the standard of the reasonable occupier.’

511
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > S.2(3)(a) OLA 1957

A

a) CHILDREN are owed a higher standard of care

512
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > a) CHILDREN are owed a higher standard of care

A

S.2(3)(a) OLA 1957

513
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > Glasgow Corporation v Taylor

A

If the danger is an allurement (e.g. red berries) occupier must do even more to protect child safety

514
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > If the danger is an allurement (e.g. red berries) occupier must do even more to protect child safety

A

Glasgow Corporation v Taylor

515
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > Phillips v Rochester Corporation

A

BUT Very young children: if the occupier makes the premises reasonably safe for a young child AS ACCOMPANIED by the sort of guardian they could reasonably expect in the circumstances, this will amount to compliance with this duty.

516
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > BUT Very young children: if the occupier makes the premises reasonably safe for a young child AS ACCOMPANIED by the sort of guardian they could reasonably expect in the circumstances, this will amount to compliance with this duty.

A

Phillips v Rochester Corporation

517
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > Bourne Leisure Ltd v Marsden

A

Will not be liable of dangers so obvious that adults should be present

518
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > Will not be liable of dangers so obvious that adults should be present

A

Bourne Leisure Ltd v Marsden

519
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > s.2(3)(b) OLA 1957

A

b) VISITORS coming to exercise their skills

520
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > b) VISITORS coming to exercise their skills

A

s.2(3)(b) OLA 1957

521
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > Roles v Nathan

A

the occupier can expect these visitors to appreciate and safeguard against risks that are incidental to their job (but must be linked to their job)

522
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 2. Standard owed to ‘special visitors’ > the occupier can expect these visitors to appreciate and safeguard against risks that are incidental to their job (but must be linked to their job)

A

Roles v Nathan

523
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 3. Warning notices

A

Warning notices will amount to compliance with, and will discharge an occupier’s common duty of care providing the following:
(s.2(4)(a) OLA 1957)
The warning is SUFFICIENT to enable the visitor to be reasonably safe

In consideration of the following factors:

  1. Location of the notice (near the danger, or not)?
  2. How specific is the warning?
  3. Is the danger hidden or obvious?
  4. Who is the visitor in question (e.g. consider reading ability of children)?
524
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 3. Warning notices > s.2(4)(a) OLA 1957

A

The warning is SUFFICIENT to enable the visitor to be reasonably safe

525
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 3. Warning notices > The warning is SUFFICIENT to enable the visitor to be reasonably safe

A

s.2(4)(a) OLA 1957

526
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 3. Warning notices > consider the following factors

A
  1. Location of the notice (near the danger, or not)?
  2. How specific is the warning?
  3. Is the danger hidden or obvious?
  4. Who is the visitor in question (e.g. consider reading ability of children)?
527
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 4. Where visitor has been injured by faulty work of INDEPENDENT CONTRACTORS > S.2(4)(b) OLA 1957

A

Occupier will not be liable for injury to a visitor caused by faulty work done by independent contractors if:

a) The occupier ACTED REASONABLY in entrusting work to contractor;
b) The occupier took reasonable steps to check CONTRACTOR WAS COMPETENT; and
c) The occupier took reasonable steps to check the WORK WAS COMPLETED PROPERLY

528
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 4. Where visitor has been injured by faulty work of INDEPENDENT CONTRACTORS >
Occupier will not be liable for injury to a visitor caused by faulty work done by independent contractors if:
a) The occupier ACTED REASONABLY in entrusting work to contractor;
b) The occupier took reasonable steps to check CONTRACTOR WAS COMPETENT; and
c) The occupier took reasonable steps to check the WORK WAS COMPLETED PROPERLY

A

S.2(4)(b) OLA 1957

529
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 4. Where visitor has been injured by faulty work of INDEPENDENT CONTRACTORS >
Occupier will not be liable for injury to a visitor caused by faulty work done by independent contractors if:

A

a) The occupier ACTED REASONABLY in entrusting work to contractor;
b) The occupier took reasonable steps to check CONTRACTOR WAS COMPETENT; and
c) The occupier took reasonable steps to check the WORK WAS COMPLETED PROPERLY

530
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 4. INDEPENDENT CONTRACTORS > Checking the work > Haseldine v Daw & Son Ltd

A

Work of a technical nature (e.g. servicing a lift) cannot be reasonably checked by an occupier

531
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 4. INDEPENDENT CONTRACTORS > Checking the work > Work of a technical nature (e.g. servicing a lift) cannot be reasonably checked by an occupier

A

Haseldine v Daw & Son Ltd

532
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 4. INDEPENDENT CONTRACTORS > Checking the work > Woodward v The Mayor of Hastings

A

Work of non-specialist nature (e.g. de-icing steps can be reasonably checked by occupier

533
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 4. INDEPENDENT CONTRACTORS > Checking the work > Work of non-specialist nature (e.g. de-icing steps can be reasonably checked by occupier

A

Woodward v The Mayor of Hastings

534
Q

Occupier’s Liability > VISITORS – OLA 1957 > 3. Breach of Duty > 4. INDEPENDENT CONTRACTORS > Conclude

A

Has the occupier breached his duty of care to ensure a visitor is reasonably safe in using the premises for the purpose for which he is permitted to be there?

535
Q

Occupier’s Liability > VISITORS – OLA 1957 > 4. Causation > Jolley v Sutton London BC

A

The test for remoteness is ‘reasonable foreseeability’

536
Q

Occupier’s Liability > VISITORS – OLA 1957 > 4. Causation > The test for remoteness is ‘reasonable foreseeability’

A

Jolley v Sutton London BC

537
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences

A
  1. Consent
  2. Contributory Negligence
  3. Exclusion of Liability
538
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 1. Consent > s.2(5) OLA 1957

A

Usual rules – the claimant must have known of the precise risk that caused injury, and, as shown by his conduct, must have willingly accepted the legal risk

539
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 1. Consent > Usual rules – the claimant must have known of the precise risk that caused injury, and, as shown by his conduct, must have willingly accepted the legal risk

A

s.2(5) OLA 1957

540
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > s.2(1) OLA 1957

A

a) On breach of the common duty of care, the defendant may rely on an exclusion notice to escape liability

541
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability >
a) On breach of the common duty of care, the defendant may rely on an exclusion notice to escape liability

A

s.2(1) OLA 1957

542
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > White v Blackmore

A

a) A notice is valid if:
i. It is CLEARLY WORDED
ii. Reasonable steps are taken to DRAW VISITOR’S ATTENTION TO NOTICE

543
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability >

a) A notice is valid if:
i. It is CLEARLY WORDED
ii. Reasonable steps are taken to DRAW VISITOR’S ATTENTION TO NOTICE

A

White v Blackmore

544
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > s.2 UCTA 1977

A

c) In the case of business occupiers, exclusion of liability to non-consumers (i.e. other business) s.2 UCTA 1977 applies:
i. Can’t exclude liability for personal injury or death (s.2(1))
ii. Can exclude for other loss, if satisfies the UCTA reasonableness test: (s.2(2))

545
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability >
c) In the case of business occupiers, exclusion of liability to non-consumers (i.e. other business) s.2 UCTA 1977 applies:

A

s.2 UCTA 1977

546
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > s.2(1) UCTA 1977

A

a) In the case of business occupiers, exclusion of liability to non-consumers (i.e. other business) s.2 UCTA 1977 applies:
i. Can’t exclude liability for personal injury or death

547
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > i. Can’t exclude liability for personal injury or death

A

s.2(1) UCTA 1977

548
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > s.2(2) UCTA 1977

A

a) In the case of business occupiers, exclusion of liability to non-consumers (i.e. other business) s.2 UCTA 1977 applies:
ii. Can exclude for other loss, if satisfies the UCTA reasonableness test:

549
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > ii. Can exclude for other loss, if satisfies the UCTA reasonableness test

A

s.2(2) UCTA 1977

550
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > s.11 UCTA

A

Defines reasonableness: must be fair and reasonable to allow reliance on the clause, having regard to all circumstances

551
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > Defines reasonableness: must be fair and reasonable to allow reliance on the clause, having regard to all circumstances

A

s.11 UCTA

552
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > Smith v Eric S Bush

A

In deciding reasonableness, take into account the following:

  1. Were the parties of equal bargaining power?
  2. In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source?
  3. How difficult is the task from which liability is excluded?
  4. What are the practical consequences – are the parties able to bear the loss?
553
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability >
In deciding reasonableness, take into account the following:
1. Were the parties of equal bargaining power?
2. In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source?
3. How difficult is the task from which liability is excluded?
4. What are the practical consequences – are the parties able to bear the loss?

A

Smith v Eric S Bush

554
Q

Occupier’s Liability > VISITORS – OLA 1957 > 5. Defences > 3. Exclusion of Liability > 2 authorities for the reasonableness test

A

s.11 UCTA and

Smith v Eric S Bush

555
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > Steps

A

Step One: State – ‘under Occupier’s Liability Act 1984, an occupier may owe a TRESPASSER a duty of care in certain situations.
Step Two: Does the defendant owe the claimant a DUTY OF CARE?
Step Three: Has the defendant BREACHED his duty of care
Step Four: Did the defendant’s breach of duty CAUSE the claimants harm?
Step Five: Consider the defences that might be available to the defendant.
Step Six: Conclude – explain the liability of the occupier to the trespasser

556
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 1. State

A

‘under Occupier’s Liability Act 1984, an occupier may owe a TRESPASSER a duty of care in certain situations.’

557
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > Claimant must show the following

A
  1. The defendant is an OCCUPIER
  2. The Claimant is a TRESPASSER
  3. The claimant suffered loss due to the state of the premises
  4. And, per se s.1(3)
558
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 1. The defendant is an OCCUPIER > Wheat v E Lacon & Co Ltd

A

An occupier is ‘anyone with a ‘sufficient degree of control over the premises’, including:

i. Someone other than the owner;
ii. Multiple individuals; and,
iii. An independent contractor working on another person’s premises (if have required degree of control over area working in – a question of degree)

559
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 1. The defendant is an OCCUPIER >
An occupier is ‘anyone with a ‘sufficient degree of control over the premises’, including:
i. Someone other than the owner;
ii. Multiple individuals; and,
iii. An independent contractor working on another person’s premises (if have required degree of control over area working in – a question of degree)

A

Wheat v E Lacon & Co Ltd

560
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 2. The Claimant is a TRESPASSER > s.1(1)(a) OLA 1984

A

a) A person ‘other than a visitor’

561
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 2. The Claimant is a TRESPASSER > a) A person ‘other than a visitor’

A

s.1(1)(a) OLA 1984

562
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 2. The Claimant is a TRESPASSER > Robert Addie & Sons (Colliery) Ltd v Dumbreck

A

b) One who goes upon land without invitation and whose presence is either unknown to the occupier, or if known, practically objected to.

563
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 2. The Claimant is a TRESPASSER >
b) One who goes upon land without invitation and whose presence is either unknown to the occupier, or if known, practically objected to.

A

Robert Addie & Sons (Colliery) Ltd v Dumbreck

564
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 3. The claimant suffered loss due to the state of the premises > Tomlinson v Congleton BC

A

a) If the claimant is injured due to naturally occurring features (e.g. rabbit holes), his injuries will NOT have been due to ‘the state of the premises’

565
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 3. The claimant suffered loss due to the state of the premises >
a) If the claimant is injured due to naturally occurring features (e.g. rabbit holes), his injuries will NOT have been due to ‘the state of the premises’

A

Tomlinson v Congleton BC

566
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 3. The claimant suffered loss due to the state of the premises > s.1(8) OLA 1984

A

b) N.B. the claimant may only claim damages for injury (not property damage)

567
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 3. The claimant suffered loss due to the state of the premises > b) N.B. the claimant may only claim damages for injury (not property damage)b) N.B. the claimant may only claim damages for injury (not property damage)

A

s.1(8) OLA 1984

568
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 4. And, per se s.1(3)

A

a) Occupier is aware of danger/has reasonable grounds to believe it exists
b) Occupier knows/has reasonable grounds to believe the trespasser is in/may come into the vicinity of danger
c) Risk is one against which occupier may reasonably be expected to offer trespasser some protection

569
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 4. And, per se s.1(3) > a) Occupier is aware of danger/has reasonable grounds to believe it exists > Rhind v Astbury Water Park

A

No reasonable grounds for the occupier to believe there was an obstruction to the lake –> no duty of care owed.

570
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 4. And, per se s.1(3) > a) Occupier is aware of danger/has reasonable grounds to believe it exists > No reasonable grounds for the occupier to believe there was an obstruction to the lake –> no duty of care owed.

A

Rhind v Astbury Water Park

571
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 4. And, per se s.1(3) > b) Occupier knows/has reasonable grounds to believe the trespasser is in/may come into the vicinity of danger > Donoghue v Folkestone Properties

A

Man dived into water and hit head on pole; as it was on a winter’s night, no reasonable grounds to believe anyone would be in the vicinity of danger.

572
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 4. And, per se s.1(3) > b) Occupier knows/has reasonable grounds to believe the trespasser is in/may come into the vicinity of danger > Man dived into water and hit head on pole; as it was on a winter’s night, no reasonable grounds to believe anyone would be in the vicinity of danger.

A

Donoghue v Folkestone Properties

573
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 4. And, per se s.1(3) > c) Risk is one against which occupier may reasonably be expected to offer trespasser some protection > Grimes v Hawkins

A

ii. Swimming pool was not inherently dangerous, and the injury was caused by the claimant’s actions, not the ‘state of the premises.’ The defendant was not required to adopt a ‘paternalistic approach’ to his visitors. All of whom are adults, all of whom were making choices about their behaviour, exercising their free will.

574
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 2. Duty of Care > 4. And, per se s.1(3) > c) Risk is one against which occupier may reasonably be expected to offer trespasser some protection > The defendant was not required to adopt a ‘paternalistic approach’ to his visitors. All of whom are adults, all of whom were making choices about their behaviour, exercising their free will.

A

Grimes v Hawkins

575
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > s.1(4) OLA 1984

A
  1. Standard: take such care as is reasonable in the circumstances
576
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 1. Standard: take such care as is reasonable in the circumstances

A

s.1(4) OLA 1984

577
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 2. Children > S.2(3)(a) OLA 1957

A

CHILDREN are owed a higher standard of care

578
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 2. Children > CHILDREN are owed a higher standard of care

A

S.2(3)(a) OLA 1957

579
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 2. Children > Glasgow Corporation v Taylor

A

if the danger is an allurement (e.g. red berries) occupier must do even more to protect child safety

580
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 2. Children > if the danger is an allurement (e.g. red berries) occupier must do even more to protect child safety

A

Glasgow Corporation v Taylor

581
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 2. Children > Phillips v Rochester Corporation

A

BUT Very young children: if the occupier makes the premises reasonably safe for a young child AS ACCOMPANIED by the sort of guardian they could reasonably expect in the circumstances, this will amount to compliance with this duty.

582
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 2. Children > BUT Very young children: if the occupier makes the premises reasonably safe for a young child AS ACCOMPANIED by the sort of guardian they could reasonably expect in the circumstances, this will amount to compliance with this duty.

A

Phillips v Rochester Corporation

583
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 2. Children > Bourne Leisure Ltd v Marsden

A

Will not be liable of dangers so obvious that adults should be present

584
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 2. Children > Will not be liable of dangers so obvious that adults should be present

A

Bourne Leisure Ltd v Marsden

585
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 3. Warnings > s.1(5) OLA 1984

A

Occupiers may discharge a duty by taking reasonable steps to:

a) Give warning of danger; and
b) Discourage persons from incurring the risk (e.g. putting barriers in place)

586
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 3. Breach > 3. Warnings >
Occupiers may discharge a duty by taking reasonable steps to:
a) Give warning of danger; and
b) Discourage persons from incurring the risk (e.g. putting barriers in place)

A

s.1(5) OLA 1984

587
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 5. Defences

A
  1. Consent
  2. Contributory Negligence
  3. Exclusion of Liability
  4. Illegality
588
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 5. Defences > 1. Consent > s.1(6) OLA 1984

A

Usual rules apply

589
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 5. Defences > 1. Consent > Usual rules apply

A

s.1(6) OLA 1984

590
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 5. Defences > 1. Consent > Ratcliff v McConnell and another

A

Example of successful reliance on consent. Claimant was aware of risk of voluntarily

591
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 5. Defences > 1. Consent > Example of successful reliance on consent. Claimant was aware of risk of voluntarily

A

Ratcliff v McConnell and another

592
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 5. Defences > 3. Exclusion of Liability

A

Position is unclear, as OLA 1984 is silent on whether liability can be excluded

593
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 5. Defences > 4. Illegality > Revill v Newberry

A

If the trespasser entered onto land for a criminal purpose, the court may thwart Parliament’s intention to provide a protection to trespassers.

594
Q

Occupier’s Liability > TRESPASSERS – OLA 1984 > 5. Defences > 4. Illegality > If the trespasser entered onto land for a criminal purpose, the court may thwart Parliament’s intention to provide a protection to trespassers.

A

Revill v Newberry

595
Q

Defective Products > Four possible claims a person effected by a defective product may bring

A

Negligence
Consumer Protection Act 1987
Breach of contract
Breach of statutory duty

596
Q

Defective Products > Contract Law > Steps

A

Step One: Introduce the claim by stating the parties and the type of contract that exists
Step Two: Identify the relevant EXPRESS and IMPLIED terms. Have these been breached.
Step Three: What remedies are available? (Damages)

597
Q

Defective Products > Contract Law > Criteria for bringing a claim in Contract Law

A

a) The claimant is the buyer of the product (or comes within the Contracts (Rights of Third Parties) Act 1999)
b) The defendant is the supplier of the defective product – not manufacturer
c) Supplier has not gone out of business

598
Q

Defective Products > Contract Law > Types of contract relevant for a claim

A

a) Contract for the sale or goods

b) Contract for the sale of goods and services

599
Q

Defective Products > Contract Law >

s.14(2) Sale of Goods Act 1979

A

Goods must be of a satisfactory quality

600
Q

Defective Products > Contract Law >

s.4(2) Supply of Goods and Services Act 1982

A

Goods must be of a satisfactory quality

601
Q

Defective Products > Contract Law >

s.9 Consumer Rights Act 2015

A

Goods must be of a satisfactory quality

602
Q

Defective Products > Contract Law >

Goods must be of a satisfactory quality

A

s. 14(2) Sale of Goods Act 1979
s. 4(2) Supply of Goods and Services Act 1982
s. 9 Consumer Rights Act 2015

603
Q

Defective Products > Contract Law > Aim of Damages

A

Put the claimant in the position as if contract had been fulfilled

604
Q

Defective Products > Contract Law > Hadley v Baxendale

A

a) Losses flowing naturally from the breach; and
b) Losses within reasonable contemplation of the parties at the time of the contract;
c) Including pure economic loss.

605
Q

Defective Products > Contract Law >

a) Losses flowing naturally from the breach; and
b) Losses within reasonable contemplation of the parties at the time of the contract;
c) Including pure economic loss.

A

Hadley v Baxendale

606
Q

Defective Products > CPA 1987 > Steps

A

Step One: Can the claimant bring a claim? State – to bring a claim under s.2(1) CPA 1987, the claimant must show that they…
Step Two: Is the defendant liable? State, to be liable under s.2(2) CPA 1987, the defendant must be…
Step Three: What defences are available to the defendant?
Step Four: Conclude as to what is recoverable under the CPA 1987

607
Q

Defective Products > Negligence > Steps

A

Step One: Introduce negligence claim – see WS2 (duty and breach)
Step Two: Is a duty of care owed?
Step Three: has the defendant Breached this duty
Step Four: Did the defendant’s breach cause the claimant’s loss?
Step Five: Are any defences available to the defendant?
Step Six: What Remedies are available to the claimant?

608
Q

Defective Products > Breach as Statutory Duty > Steps

A

Step One: Does the statute, if breached, allow a claim in tort?
Step Two: Is there a duty under statue?
Step Three: Has there been a breach of this specific statutory duty?
Step Four: Damage
Step Five: Causation – did the defendant’s breach of statutory duty cause the claimant’s harm?
Step Six: Consider relevant defences

609
Q

Defective Products > CPA 1987 > State

A

To bring a claim under s.2(1) CPA 1987, the claimant must show that they…

  1. Have suffered Damage
  2. Caused by
  3. A defect
  4. In a product
610
Q

Defective Products > CPA 1987 > Bring a claim under which provision

A

s.2(1) CPA 1987

611
Q

Defective Products > CPA 1987 > Suffered Damage > s.5 CPA 1987

A

What is included as damage suffered is outlined in s.5 CPA 1987.

a) Death and Personal Injury (‘any disease and any other impairment of a person’s physical or mental condition.’ s.45 CPA1987)
b) Private property damage – but –
i. S.5(4) – only if £275 or over (in aggregate); and
ii. S.5(3) – damage to business property is not recoverable (must be ‘property ordinarily intended for private use, occupation or consumption.’ s.5(3)(a))
c) Unlike in contract law, X cannot recover pure economic loss (s.5(2) CPA 1987, Murphy v Brentwood)

612
Q

Defective Products > CPA 1987 > Suffered Damage > s.45 CPA 1987

A

‘any disease and any other impairment of a person’s physical or mental condition.’

613
Q

Defective Products > CPA 1987 > Suffered Damage > ‘any disease and any other impairment of a person’s physical or mental condition.’

A

s.45 CPA 1987

614
Q

Defective Products > CPA 1987 > Suffered Damage > S.5(4) CPA 1987

A

Private property damage – but – only if £275 or over (in aggregate)

615
Q

Defective Products > CPA 1987 > Suffered Damage > Private property damage – but – only if £275 or over (in aggregate)

A

S.5(4) CPA 1987

616
Q

Defective Products > CPA 1987 > Suffered Damage > S.5(3) CPA 1987

A

Damage to business property is not recoverable (must be ‘property ordinarily intended for private use, occupation or consumption.’ s.5(3)(a))

617
Q

Defective Products > CPA 1987 > Suffered Damage > Damage to business property is not recoverable (must be ‘property ordinarily intended for private use, occupation or consumption.’ s.5(3)(a))

A

S.5(3) CPA 1987

618
Q

Defective Products > CPA 1987 > Suffered Damage > s.5(3)(a) CPA 1987

A

must be ‘property ordinarily intended for private use, occupation or consumption.’

619
Q

Defective Products > CPA 1987 > Suffered Damage > must be ‘property ordinarily intended for private use, occupation or consumption.’

A

s.5(3)(a) CPA 1987

620
Q

Defective Products > CPA 1987 > Suffered Damage > s.5(2) CPA 1987, Murphy v Brentwood

A

Unlike in contract law, the claimant cannot recover pure economic loss

621
Q

Defective Products > CPA 1987 > Suffered Damage > Unlike in contract law, the claimant cannot recover pure economic loss

A

s.5(2) CPA 1987, Murphy v Brentwood

622
Q

Defective Products > CPA 1987 > Caused by > Causation rules for the CPA 1987

A

a) But for the defect, would the claimant have suffered the damage in question?
b) The Act is silent on the rules for remoteness, therefore the defendant will likely be found liable for all ‘direct consequences’ of the defect, regardless of whether foreseeable or not (Re Polemis).

623
Q

Defective Products > CPA 1987 > Caused by > Re Polemis

A

The Act is silent on the rules for remoteness, therefore the defendant will likely be found liable for all ‘direct consequences’ of the defect, regardless of whether foreseeable or not

624
Q

Defective Products > CPA 1987 > Caused by > The Act is silent on the rules for remoteness, therefore the defendant will likely be found liable for all ‘direct consequences’ of the defect, regardless of whether foreseeable or not

A

Re Polemis

625
Q

Defective Products > CPA 1987 > A defect > s.3(1) CPA 1987

A

Defective means that the safety of the product is, ‘not such as persons generally are entitled to expect.’

626
Q

Defective Products > CPA 1987 > A defect > Defective means that the safety of the product is, ‘not such as persons generally are entitled to expect.’

A

s.3(1) CPA 1987

627
Q

Defective Products > CPA 1987 > A defect > s.3(2) CPA 1987

A

In applying this definition consider: the whole get-up and presentation of the product taking into account its expected use and age

628
Q

Defective Products > CPA 1987 > A defect > In applying this definition consider: the whole get-up and presentation of the product taking into account its expected use and age

A

s.3(2) CPA 1987

629
Q

Defective Products > CPA 1987 > A defect > A v National Blood Authority

A

Strict Liability: even where the risk is unavoidable, the courts may still find a defect, providing the public would reasonably expect the product to be safe.

630
Q

Defective Products > CPA 1987 > A defect > Strict Liability: even where the risk is unavoidable, the courts may still find a defect, providing the public would reasonably expect the product to be safe.

A

A v National Blood Authority

631
Q

Defective Products > CPA 1987 > In a Product > s.1(2) CPA 1987

A

the meaning of product is a very wide category and includes goods, electricity, component part of a product, raw material and even blood (A v National Blood Authority).

632
Q

Defective Products > CPA 1987 > In a Product > the meaning of product is a very wide category and includes goods, electricity, component part of a product, raw material and even blood (A v National Blood Authority).

A

s.1(2) CPA 1987

633
Q

Defective Products > CPA 1987 > In a Product > A v National Blood Authority

A

Property includes blood

634
Q

Defective Products > CPA 1987 > In a Product > Property includes blood

A

A v National Blood Authority

635
Q

Defective Products > CPA 1987 > Is the defendant liable? State:

A

To be liable under s.2(2) CPA 1987, the defendant must be…

  1. Producer: if a component part is faulty, both the manufacturer of part AND the manufacturer of the whole will be liable.
  2. An own-brander: person who is putting their trademark on the product holds himself out as being its producer.
  3. An importer: person who imports the product into an EU member state from a Non-EU member state.
  4. Supplier: but only under s.2(3), only where the supplier is ‘forgetful’ i.e. unable to meet victim’s request to identify any of the other people involved in the chain of supply.
636
Q

Defective Products > CPA 1987 > Defences > What are the two defences?

A

s.4 Complete Defence (including s.4(1)(e) developmental risk)
Contributory negligence under s.6(4)

637
Q

Defective Products > CPA 1987 > Defences > s.4 CPA 1987

A
  1. S.4 Complete Defences
    • Defect was an inevitable consequence of compliance with legal requirements.
    • The defendant did not supply the product to another (e.g. the claimant obtained the product from someone who had stolen it.)
    • The defendant did not supply the product in the course of business (e.g. solf between two friends). Defect did not exist when the defendant supplied the product (was instead caused by fair wear and tear or missuse)
    • A manufacturer of a component part is not liable if the defect in the finished product is wholly attributable to design of finished product/compliance with instructions given by the manufacturer of the finished product.
    • DEVELOPMENTAL RISK s.4(1)(e)
638
Q

Defective Products > CPA 1987 > Defences > s.4(1)(e) CPA 1987

A

DEVELOPMENTAL RISK
o The defendant must prove that the state of knowledge at the time the product was supplied, amongst producers of product in question, was not such as to allow a producer of the product to discover the defect.
o Commission v UK: state of knowledge interpreted to mean the highest standard of knowledge accessible anywhere in the world at that time.
o A v National Blood Authority: only available where defect/risk was unforeseeable (this is not equivalent to the risk being unavoidable.)

639
Q

Defective Products > CPA 1987 > Defences > Developmental Risk s.4(1)(e) > Commission v UK

A

state of knowledge interpreted to mean the highest standard of knowledge accessible anywhere in the world at that time.

640
Q

Defective Products > CPA 1987 > Defences > Developmental Risk s.4(1)(e) > state of knowledge interpreted to mean the highest standard of knowledge accessible anywhere in the world at that time.

A

Commission v UK

641
Q

Defective Products > CPA 1987 > Defences > Developmental Risk s.4(1)(e) > A v National Blood Authority

A

only available where defect/risk was unforeseeable (this is not equivalent to the risk being unavoidable.)

642
Q

Defective Products > CPA 1987 > Defences > Developmental Risk s.4(1)(e) > only available where defect/risk was unforeseeable (this is not equivalent to the risk being unavoidable.)

A

A v National Blood Authority

643
Q

Defective Products > CPA 1987 > Defences > s.6(4) CPA 1987

A

Contributory Negligence is available

644
Q

Defective Products > CPA 1987 > Defences > Contributory Negligence is available

A

s.6(4) CPA 1987

645
Q

Defective Products > CPA 1987 > Defences > s.7 CPA 1987

A

Exclusion of liability and consent are not available as defences

646
Q

Defective Products > CPA 1987 > Defences > Exclusion of liability and consent are not available as defences

A

s.7 CPA 1987

647
Q

Defective Products > Negligence > Duty owed > Donoghue v Stevenson

A

a) A manufacturer owes a duty of care to his ultimate consumer; or
b) “A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care,”

648
Q

Defective Products > Negligence > Duty owed > State

A

a duty of care will be owed under the narrow rule in Donoghue v Stevenson if the claimant can show the following:

(a) The defendant is a Manufacturer
(b) The item causing the damage is a Product
(c) The claimant is a Consumer
(d) The product reached the Consumer in the form which it left the manufacturer

649
Q

Defective Products > Negligence > Duty owed > a duty of care will be owed under the narrow rule in Donoghue v Stevenson if the claimant can show the following:

A

(a) The defendant is a Manufacturer
(b) The item causing the damage is a Product
(c) The claimant is a Consumer
(d) The product reached the Consumer in the form which it left the manufacturer

650
Q

Defective Products > Negligence > Duty owed > Haseldine v Daw & Son Ltd

A

‘Manufacturer’ includes repairers

651
Q

Defective Products > Negligence > Duty owed > ‘Manufacturer’ includes repairers

A

Haseldine v Daw & Son Ltd

652
Q

Defective Products > Negligence > Duty owed > Stennett v Hancock

A

‘Manufacturer’ includes installers

653
Q

Defective Products > Negligence > Duty owed > ‘Manufacturer’ includes installers

A

Stennett v Hancock

654
Q

Defective Products > Negligence > Duty owed > Andrews v Hopkinson

A

‘Manufacturer’ includes suppliers of products if they ought reasonably to inspect or test the products which they supply

655
Q

Defective Products > Negligence > Duty owed > ‘Manufacturer’ includes suppliers of products if they ought reasonably to inspect or test the products which they supply

A

Andrews v Hopkinson

656
Q

Defective Products > Negligence > Duty owed > Kulbach v Hollands

A

The product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination.

657
Q

Defective Products > Negligence > Duty owed > The product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination.

A

Kulbach v Hollands

658
Q

Defective Products > Negligence > Breach > Standard of care

A

To exercise reasonable care; that of a reasonable manufacturer in the circumstances, taking into account the magnitude of the risk, gravity of the potential injury, cost and practicality of precautions.

659
Q

Defective Products > Negligence > Breach > Donoghue v Stevenson (obiter)

A

the claimant must prove the defendant’s breach, as res ipsa loquitur will not apply in product liability, the breach cannot be inferred.

660
Q

Defective Products > Negligence > Breach > the claimant must prove the defendant’s breach, as res ipsa loquitur will not apply in product liability, the breach cannot be inferred.

A

Donoghue v Stevenson (obiter)

661
Q

Defective Products > Negligence > Breach > Establish in Grant v Australian Knitting Mills and followed in Carroll v Fearon

A

Unlike Contract Law and the CPA 1987 claims, there is no strict liability, however the courts will sometimes infer a breach if the defect would have been averted, had the manufacturers taken reasonable care

662
Q

Defective Products > Negligence > Breach > Unlike Contract Law and the CPA 1987 claims, there is no strict liability, however the courts will sometimes infer a breach if the defect would have been averted, had the manufacturers taken reasonable care

A

Establish in Grant v Australian Knitting Mills and followed in Carroll v Fearon

663
Q

Defective Products > Negligence > Causation > Evans v Triplex Safety Glass Co Ltd

A

‘But for’ test applies as illustrated

664
Q

Defective Products > Negligence > Causation > ‘But for’ test applies as illustrated

A

Evans v Triplex Safety Glass Co Ltd

665
Q

Defective Products > Negligence > Causation > Wagon Mound

A

Test for legal causation

666
Q

Defective Products > Negligence > Causation > Test for legal causation

A

Wagon Mound

667
Q

Defective Products > Negligence > Defences > Grant v Australian Knitting Mills

A

Consent is available, but typically hard to show.

668
Q

Defective Products > Negligence > Defences > Consent is available, but typically hard to show.

A

Grant v Australian Knitting Mills

669
Q

Defective Products > Negligence > Defences > s.2(1) CPA 1987

A

Exclusion of liability is available, but consider the following:
Liability in negligence for death/personal injury cannot be excluded

670
Q

Defective Products > Negligence > Defences > Exclusion of liability is available, but consider the following:
Liability in negligence for death/personal injury cannot be excluded

A

s.2(1) CPA 1987

671
Q

Defective Products > Negligence > Defences > s.2(2) CPA 1987

A

Exclusion of liability is available, but consider the following:
Liability for loss/damage, other than death or personal injury may only be excluded if the reasonableness test is satisfied.

672
Q

Defective Products > Negligence > Defences > Exclusion of liability is available, but consider the following:
Liability for loss/damage, other than death or personal injury may only be excluded if the reasonableness test is satisfied.

A

s.2(2) CPA 1987

673
Q

Defective Products > Negligence > Remedies > State what the claimant can and can’t recover

A
  1. Losses within the scope of the duty: personal injury; property damage
  2. Cannot claim for pure economic loss (Murphy v Brentwood), but can claim for consequential economic loss.
674
Q

Defective Products > Negligence > Remedies > Murphy v Brentwood

A

Cannot claim for pure economic loss in negligence

675
Q

Defective Products > Negligence > Remedies > Cannot claim for pure economic loss in negligence

A

Murphy v Brentwood

676
Q

Defective Products > Breach of statutory duty > Lonrho Ltd v Shell Petroleum

A

If the statute protects a limited, ascertainable class, a claim in tort can be brought

677
Q

Defective Products > Breach of statutory duty > If the statute protects a limited, ascertainable class, a claim in tort can be brought

A

Lonrho Ltd v Shell Petroleum

678
Q

Defective Products > Breach of statutory duty > Groves v Lord Wimborne

A

Where the statute imposes a sanction, it is less likely that Parliament intended it to give rise to a civil claim in tort but according to Groves v Lord Wimborne, this is rebuttable where:

i. The size of the penalty is inadequate considering the claimant’s loss;
ii. The victim is not entitled to receive all of this fine.

679
Q

Defective Products > Breach of statutory duty > Where the statute imposes a sanction, it is less likely that Parliament intended it to give rise to a civil claim in tort but according to Groves v Lord Wimborne, this is rebuttable where:

i. The size of the penalty is inadequate considering the claimant’s loss;
ii. The victim is not entitled to receive all of this fine.

A

Groves v Lord Wimborne

680
Q

Defective Products > Breach of statutory duty > O’Rourke v Camden LBC

A

Context gives rise to a statutory duty (e.g. legislation which serves a general social welfare function is unlikely to give rise to a claim)

681
Q

Defective Products > Breach of statutory duty > Context gives rise to a statutory duty (e.g. legislation which serves a general social welfare function is unlikely to give rise to a claim)

A

O’Rourke v Camden LBC

682
Q

Defective Products > Breach of statutory duty > Wilsons duties

A

Where the statutory duty coincides with the common law (see Wilsons duties below), it is more likely that Parliament intended a Civil claim to be available.

683
Q

Defective Products > Breach of statutory duty > is there a duty? > Hartley v Mayoh & Co

A

Does the claimant fall within the protected class?

684
Q

Defective Products > Breach of statutory duty > is there a duty? > Does the claimant fall within the protected class?

A

Hartley v Mayoh & Co

685
Q

Defective Products > Breach of statutory duty > is there a duty? > Smith v Northampton County Council

A

Do the facts fall within the statutory wording

686
Q

Defective Products > Breach of statutory duty > is there a duty? > Do the facts fall within the statutory wording

A

Smith v Northampton County Council

687
Q

Defective Products > Breach of statutory duty > breach of duty? > Stark v Post Office

A

The duty is absolute. (Check the wording of statute. If mandatory language is used (e.g. ‘shall’, ‘must’) this imposes strict liability)

688
Q

Defective Products > Breach of statutory duty > breach of duty? > The duty is absolute. (Check the wording of statute. If mandatory language is used (e.g. ‘shall’, ‘must’) this imposes strict liability)

A

Stark v Post Office

689
Q

Defective Products > Breach of statutory duty > Damage > Gorris v Scott

A

The damage or harm must be of the kind that the statute was trying to prevent.

690
Q

Defective Products > Breach of statutory duty > Damage > The damage or harm must be of the kind that the statute was trying to prevent.

A

Gorris v Scott

691
Q

Defective Products > Breach of statutory duty > Causation >

A
  • Apply the but for test, and consider whether there were any intervening events?
  • No need to consider the remoteness rule, as this has been dealt with under ‘Damage’
692
Q

Defective Products > Breach of statutory duty > Defences > Caswell v Powell Duffryn Associated Collieries Ltd

A

Contributory negligence is available as a defence, but courts slower to make a finding of CN against an employee working in factory-type conditions – noisy conditions, repetitive tasks

693
Q

Defective Products > Breach of statutory duty > Defences > Contributory negligence is available as a defence, but courts slower to make a finding of CN against an employee working in factory-type conditions – noisy conditions, repetitive tasks

A

Caswell v Powell Duffryn Associated Collieries Ltd

694
Q

Private Nuisance > Steps

A

Step One: Heading – Claimant v Defendant
Step Two: State – the claimant can consider suing the defendant in the tort of private nuisance for [insert conduct]
Step Three: Consider what the claimant has to prove
Step Four: Consider who can be sued
Step Five: Are there any defence
Step Six: What are the available Remedies?
Step Seven: Conclude

695
Q

Private Nuisance > State

A

the claimant can consider suing the defendant in the tort of private nuisance for [insert conduct]

696
Q

Private Nuisance > Define > Winfield & Jolowicz on Tort, used in Read v Lyons & Co Ltd

A

Define Private nuisance: an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.’

697
Q

Private Nuisance > Define > Define Private nuisance: an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.’

A

Winfield & Jolowicz on Tort, used in Read v Lyons & Co Ltd

698
Q

Private Nuisance > What must the claimant prove?

A
  1. Does the Claimant have locus standi?
  2. Has there been an actionable interference with the claimant’s land?
  3. Is this interference ‘unlawful’?
  4. Has the claimant suffered damage that is recoverable?
  5. Causation and Remoteness
699
Q

Private Nuisance > Locus Standi > Hunter v Canary Wharf

A

The claimant must have a proprietary interest in the land – freeholders and tenants and occupiers in exclusive possession e.g. not licenses [case]

700
Q

Private Nuisance > Locus Standi > The claimant must have a proprietary interest in the land – freeholders and tenants and occupiers in exclusive possession e.g. not licenses [case]

A

Hunter v Canary Wharf

701
Q

Private Nuisance > Locus Standi > Malone v Laskey

A

• Neither children nor spouse [case] of owner-occupier of land can sue in private nuisance

702
Q

Private Nuisance > Locus Standi > • Neither children nor spouse [case] of owner-occupier of land can sue in private nuisance

A

Malone v Laskey

703
Q

Private Nuisance > actionable interferences > Three types of nuisance according to Hunter v Canary Wharf:

A

a) Encroachment on the neighbour’s land (must be permanent)
b) Direct physical injury to land; and
c) Interference with quiet enjoyment of the land, a.k.a loss of amenity (inc. smells, dust, vibration, noise)

704
Q

Private Nuisance > NON-actionable interferences > Hunter v Canary Wharf

A

• Disruption to TV Reception

705
Q

Private Nuisance > NON-actionable interferences > Disruption to TV Reception

A

Hunter v Canary Wharf

706
Q

Private Nuisance > NON-actionable interferences > Walter v Selfe

A

• Interferences with ‘elegant or dainty models of living.’

707
Q

Private Nuisance > NON-actionable interferences > • Interferences with ‘elegant or dainty models of living.’

A

Walter v Selfe

708
Q

Private Nuisance > NON-actionable interferences > Aldred’s Case

A

• Right to view is not actionable

709
Q

Private Nuisance > NON-actionable interferences > Right to view is not actionable

A

Aldred’s Case

710
Q

Private Nuisance > actionable interferences > Walter v Selfe

A

Must be something that materially interferes with ‘ordinary conduct.’

711
Q

Private Nuisance > actionable interferences > Must be something that materially interferes with ‘ordinary conduct.’

A

Walter v Selfe

712
Q

Private Nuisance > ‘unlawful’ interference > Sedleigh-Denfield v O’Callaghan

A

(a) Unlawful means ‘substantial and unreasonable.’
• State test for unlawfulness: ‘what is reasonable according to the ordinary usages of mankind living in… a particular society.’
(b) This is a question of fact. Factors the court will consider are:
(i) Frequency and duration
(ii) Excessiveness of conduct/extent of harm
(iii) Abnormal Sensitivity (an application of the egg shell skull rule)
(iv) Character of neighbourhood
(v) Public Benefit
(vi) Malice on part of defendant

713
Q

Private Nuisance > ‘unlawful’ interference > Define

A

Sedleigh-Denfield v O’Callaghan
(a) Unlawful means ‘substantial and unreasonable.’
• State test for unlawfulness: ‘what is reasonable according to the ordinary usages of mankind living in… a particular society.’
(b) This is a question of fact. Factors the court will consider are:
(i) Frequency and duration
(ii) Excessiveness of conduct/extent of harm
(iii) Abnormal Sensitivity (an application of the egg shell skull rule)
(iv) Character of neighbourhood
(v) Public Benefit
(vi) Malice on part of defendant

714
Q

Private Nuisance > ‘unlawful’ interference > (i) Frequency and duration > Miller v Jackson (cricket ball case)

A

The longer the duration and frequency of the interference, the more likely the court will consider it to be unreasonable.

715
Q

Private Nuisance > ‘unlawful’ interference > (i) Frequency and duration > The longer the duration and frequency of the interference, the more likely the court will consider it to be unreasonable.

A

Miller v Jackson (cricket ball case)

716
Q

Private Nuisance > ‘unlawful’ interference > (i) Frequency and duration > Spicer v Smee

A

An isolated event will be unlawful ONLY if it emanates from a continuous state of affairs on the defendant’s property.

717
Q

Private Nuisance > ‘unlawful’ interference > (i) Frequency and duration > An isolated event will be unlawful ONLY if it emanates from a continuous state of affairs on the defendant’s property.

A

Spicer v Smee

718
Q

Private Nuisance > ‘unlawful’ interference > (ii) Excessiveness of conduct/extent of harm

A
  1. Behaviour of the defendant – how far removed from ‘normal’ behaviour is it (objective test)?
    a) Noise from 8am-6pm is excessive (Matania v National Provincial Bank)
    b) Physical damage to the land is usually excessive
  2. Impact on the claimant (subjective test)
719
Q

Private Nuisance > ‘unlawful’ interference > (iii) Abnormal Sensitivity (an application of the egg shell skull rule)

A
  1. The Claimant’s claim will only succeed if the interference in question would have affected a normal user. (Robinson v Kilvert – claim failed because the interference would not have affected a normal user).
  2. If (1) can be shown, the claimant can recover for all loss, even if it is due to his abnormal sensitivity (McKinnon v Walker – claim succeeded because fumes would have damaged regular plants, not just the claimant’s sensitive orchids, so the claimant recovered for his loss.
720
Q

Private Nuisance > ‘unlawful’ interference > (iv) Character of neighbourhood > Sturges v Bridgman

A
  1. What might be considered nuisance in a fancy area, might not be in another area (e.g. does the area have an undue amount of noise anyway?)
721
Q

Private Nuisance > ‘unlawful’ interference > (iv) Character of neighbourhood >
1. What might be considered nuisance in a fancy area, might not be in another area (e.g. does the area have an undue amount of noise anyway?)

A

Sturges v Bridgman

722
Q

Private Nuisance > ‘unlawful’ interference > (iv) Character of neighbourhood > Halsey v Esso Petroleum Co

A
  1. But, is only relevant to an interference which causes personal discomfort – i.e. of the claimant has incurred physical loss, character of neighbourhood is not considered.
723
Q

Private Nuisance > ‘unlawful’ interference > (iv) Character of neighbourhood >
2. But, is only relevant to an interference which causes personal discomfort – i.e. of the claimant has incurred physical loss, character of neighbourhood is not considered.

A

Halsey v Esso Petroleum Co

724
Q

Private Nuisance > ‘unlawful’ interference > (iv) Character of neighbourhood > Gillingham BC v Medway Docks Co Ltd

A
  1. Whether planning permission has been given, this may be deemed to have changed the character of the neighbourhood: an interference that would have been unlawful in the old neighbourhood is now lawful.
725
Q

Private Nuisance > ‘unlawful’ interference > (iv) Character of neighbourhood >
3. Whether planning permission has been given, this may be deemed to have changed the character of the neighbourhood: an interference that would have been unlawful in the old neighbourhood is now lawful.

A

Gillingham BC v Medway Docks Co Ltd

726
Q

Private Nuisance > ‘unlawful’ interference > (iv) Character of neighbourhood > Coventry v Lawrence

A
  1. The court should start from the proposition that the defendant’s activities are taken into account when assessing the character of the locality. However, such activity should only be considered to the extent to which they would not cause a nuisance to the claimant
727
Q

Private Nuisance > ‘unlawful’ interference > (iv) Character of neighbourhood >
4. The court should start from the proposition that the defendant’s activities are taken into account when assessing the character of the locality. However, such activity should only be considered to the extent to which they would not cause a nuisance to the claimant

A

Coventry v Lawrence

728
Q

Private Nuisance > ‘unlawful’ interference > (v) Public Benefit

A
  1. A smelly chip shop can have a benefit to the community (Adams v Ursell)
  2. But, public benefit is more likely to be considered by the court during the discussion of remedies, as courts consistently take the view that public benefit cannot exonerate the defendant of liability for private nuisance (see below)
729
Q

Private Nuisance > ‘unlawful’ interference > (vi) Malice on part of defendant > Hollywood Silver Fox Farm v Emmett

A

If the defendant has been trying to annoy the claimant, interference more likely to be considered unreasonable and therefore unlawful.

730
Q

Private Nuisance > ‘unlawful’ interference > (vi) Malice on part of defendant > If the defendant has been trying to annoy the claimant, interference more likely to be considered unreasonable and therefore unlawful.

A

Hollywood Silver Fox Farm v Emmett

731
Q

Private Nuisance > 4. Has the claimant suffered damage that is recoverable?

A

a) Nuisance is not actionable per se – the claimant must prove that he has suffered any damage to the land itself/buildings, or any interference with quiet enjoyment of the land.
b) No claims for personal injury (Hunter v Canary Wharf) or for personal property (sometimes exceptions – Halsey v Esso Petroleum Co Ltd). In reality the claimant would run negligence claims for both
c) Can recover for consequential economic loss, where has flowed from damage to property and/or personal discomfort (Andreae v Selfridge & Co Ltd)

732
Q

Private Nuisance > Causation and Remoteness

A

(a) Did the unlawful interference cause the claimant’s damage?
i. But for test (Barnett) for factual causation
ii. NAI
(b) Was the kind of damage reasonably foreseeable to someone in the defendant’s position at time acts we’re done? have (Wagon Mound No.1 test for remoteness and legal causation as confirmed by Cambridge Water Co v Eastern Counties Leather plc.)

733
Q

Private Nuisance > Who can be sued?

A
  1. The CREATOR of the nuisance
  2. The current OCCUPIER of the land
  3. The LANDLORD
734
Q

Private Nuisance > Who can be sued? > The Creator of the nuisance

A

Liable, even if land now owned by someone else

735
Q

Private Nuisance > Who can be sued? > The current OCCUPIER of the land

A

Liable for nuisances he created (either positively or by failing to take steps). Also liable for the following nuisances created by other persons:

a) Nuisance created by employee acting in the course of his employment (vicarious liability)
b) nuisance created by independent contractor, provided the nature of the work carries a special danger of the nuisance being created; and
c) nuisance created by visitor (Lippiatt v South Gloucestershire CC), predecessor in title (St Anne’s Well Brewery Co v Roberts), trespasser (Sedleigh-Denfield v O’Callaghan) or natural event (Leakey v National Trust) where occupier has adopted the nuisance i.e. made use of it or continued it I eat failed to take reasonable steps to end the nuisance (Sedleigh-Denfield v O’Callaghan).

736
Q

Private Nuisance > Who can be sued? > The LANDLORD

A

Generally, it is the tenant that is liable, but the landlord is liable for nuisances that:

a) he has impliedly/expressly authorised through letting out the premises (Tetley v Chitty)
b) Existed at the start of tenancy that he ought to reasonably have known about
c) He has promised to repair but fails to repair (Payne v Rogers)

737
Q

Private Nuisance > Defences > Effective

A

(a) Prescription
(b) Statutory Authority
(c) Contributory Negligence
(d) Consent
(e) Act of God/Nature

738
Q

Private Nuisance > Defences > Effective > (a) Prescription > Sturges v Bridgman

A

Provided the actual nuisance has been continued against the claimant for at least 20 years and therefore the right to commit the nuisance has been acquired.

739
Q

Private Nuisance > Defences > Effective > (a) Prescription > Provided the actual nuisance has been continued against the claimant for at least 20 years and therefore the right to commit the nuisance has been acquired.

A

Sturges v Bridgman

740
Q

Private Nuisance > Defences > Effective > (b) Statutory Authority > Allen v Gulf Oil Refining Ltd

A

Provided the defendant can show nuisance was inevitable consequence of doing what the statute authorised.

741
Q

Private Nuisance > Defences > Effective > (b) Statutory Authority > Provided the defendant can show nuisance was inevitable consequence of doing what the statute authorised.

A

Allen v Gulf Oil Refining Ltd

742
Q

Private Nuisance > Defences > Effective > (e) Act of God/Nature > Wringe v Cohen

A

Provided that the defendant has not adopted or continued the nuisance.

743
Q

Private Nuisance > Defences > Effective > (e) Act of God/Nature > Provided that the defendant has not adopted or continued the nuisance.

A

Wringe v Cohen

744
Q

Private Nuisance > Defences > Effective > (e) Act of God/Nature > Provided that the defendant has not adopted or continued the nuisance.

A

Wringe v Cohen

745
Q

Private Nuisance > Defences > Ineffective

A

(a) The claimant came to the nuisance
(b) Public Benefit
(c) Contributory actions of others
(d) Planning permission

746
Q

Private Nuisance > Defences > Ineffective > (a) The claimant came to the nuisance > Miller v Jackson

A

• Even if the nuisance existed before the claimant, for example, built his house on the polluted land, the claimant can still sue.

747
Q

Private Nuisance > Defences > Ineffective > (a) The claimant came to the nuisance > • Even if the nuisance existed before the claimant, for example, built his house on the polluted land, the claimant can still sue.

A

Miller v Jackson

748
Q

Private Nuisance > Defences > Ineffective > (a) The claimant came to the nuisance > Coventry v Lawrence

A

• Provided a claimant in private nuisance uses his or her property for essentially the same purpose as his/her predecessors before the nuisance started, the defendant cannot rely on the excuse that the claimant, ‘came to the nuisance.’

749
Q

Private Nuisance > Defences > Ineffective > (a) The claimant came to the nuisance > Provided a claimant in private nuisance uses his or her property for essentially the same purpose as his/her predecessors before the nuisance started, the defendant cannot rely on the excuse that the claimant, ‘came to the nuisance.’

A

Coventry v Lawrence

750
Q

Private Nuisance > Defences > Ineffective > (b) Public Benefit > Miller v Jackson; Kennaway v Thomson

A

The claimant may be deprived of an injunction where the public benefit in question is considered to prevail over the claimant’s private interests.

751
Q

Private Nuisance > Defences > Ineffective > (b) Public Benefit > The claimant may be deprived of an injunction where the public benefit in question is considered to prevail over the claimant’s private interests.

A

Miller v Jackson; Kennaway v Thomson

752
Q

Private Nuisance > Defences > Ineffective > (d) Planning permission > Wheeler v Saunders

A

i. Will not legitimise a nuisance

753
Q

Private Nuisance > Defences > Ineffective > (d) Planning permission > i. Will not legitimise a nuisance

A

Wheeler v Saunders

754
Q

Private Nuisance > Defences > Ineffective > (d) Planning permission > Gillingham BC v Medway Docks Co Ltd

A

ii. May operate to change character of neighbourhood

755
Q

Private Nuisance > Defences > Ineffective > (d) Planning permission > ii. May operate to change character of neighbourhood

A

Gillingham BC v Medway Docks Co Ltd

756
Q

Private Nuisance > Defences > Ineffective > (d) Planning permission > Coventry v Lawrence

A

iii. Where planning permission stipulates limits as to the frequency and intensity of noise, then such conditions within a planning permission may be relevant in assisting the claimant’s action in private nuisance

757
Q

Private Nuisance > Defences > Ineffective > (d) Planning permission > iii. Where planning permission stipulates limits as to the frequency and intensity of noise, then such conditions within a planning permission may be relevant in assisting the claimant’s action in private nuisance

A

Coventry v Lawrence

758
Q

Private Nuisance > Defences > Ineffective > Apply to facts

A

Ineffective defences will not enable the defendant to escape liability, but will be considered when considering the type of remedy.

759
Q

Private Nuisance > Remedies

A

Distinguish between past and future nuisances. For example, if the claimant has put up with the nuisance for (1) two weeks, but anticipates the nuisance lasting (2) two years, there are two claims in question. First, he may want to claim damages for the past nuisance in negligence. Secondly, he may want an injunction to prevent the future nuisance. N.B. negligence claims always relate to past nuisances and so there is no scope for an injunction only damages.

760
Q

Private Nuisance > Remedies > Damages for:

A

a) Physical damage to the claimant’s land – damages to reflect cost of repair, or if not possible, loss in value of land.
b) Personal discomfort – difficult to assess, might be based on loss of amenity value of the land. (Hunter v Canary Wharf)

761
Q

Private Nuisance > Remedies > Injunction

A

Court order regulating the defendants future conduct. Will not be awarded where damages are an adequate remedy; will be awarded where a claimant seeks to prevent future breaches.

762
Q

Private Nuisance > Remedies > Types of Injunction

A

a) Prohibitory Injunction: forbids the defendant from continuing a nusiance
b) Mandatory Injunction: the defendant is required to take positive steps to rectify consequences of actions
c) A ‘quia timet’ injunction: i.e. before the nuisance has been committed, in anticipation of it. Unusual Remedy.
Conditions:
1. Claimant is almost certain to incur damage without injunction
2. such damage is imminent; and
3. the defendant will not stop his course of conduct without court order

763
Q

Private Nuisance > Remedies > Damages in Lieu of Injunction

A

Shelfer v City of London Electric Lighting Co:

Appropriate where:
a) Case is suitable for an injunction in the first place;
b) injury to the claimants legal right’s/damage -
• is small;
• can be estimated in money;
• can be adequately compensated by a small payment, and
c) would be oppressive to the defendant to grant an injunction

764
Q

Private Nuisance > Remedies > Damages in Lieu of Injunction > Authority

A

Shelfer v City of London Electric Lighting Co

765
Q

Private Nuisance > Remedies > Public Benefit and Injunctions > Miller v Jackson

A
  • Injunction refused because it was considered appropriate that the public interest should prevail over the private interest of the claimants.
  • Court also found that the claimant ‘came to the nuisance’ and deciding that damages were an adequate remedy.
766
Q

Private Nuisance > Remedies > Public Benefit and Injunctions > Kennaway v Thomson

A
  • The public benefit of power boat racing was not sufficient to deprive the claimant of an injunction
  • Granted a prohibitory injunction to restrict the defendant’s activities and the noise level
767
Q

Private Nuisance > Remedies > Abatement

A

a) the removal of the interference by the victim
b) normally victim has to give prior notice to the defendant accept an emergency or nuisance can be removed without entering the wrongdoers land (Lemmon v Webb)
c) the interference must be returned to the defendant (Mills v Brooker)