Authorities Flashcards

Question 1

Q

Trespass to the Person > Steps

Answer

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

Question 2

Q

Trespass to the Person > Step 1 > State?

Answer

A

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

Question 3

Q

Trespass to the Person > Step 1 > Assault and Battery

Answer

A

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

Question 4

Q

Assault > Define

Answer

A

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

Question 5

Q

Assault > Intentional Act > Letang v Cooper

Answer

A

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

Question 6

Q

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

Answer

A

Letang v Cooper

Question 7

Q

Assault > Intentional Act > R v Ireland

Answer

A

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

Question 8

Q

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

Answer

A

R v Ireland

Question 9

Q

Assault > Intentional Act > Tuberville v Savage

Answer

A

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

Question 10

Q

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

Answer

A

Tuberville v Savage

Question 11

Q

Assault > Immediate > R v Ireland

Answer

A

Means within a minute or so

Question 12

Q

Assault > Immediate > Means within a minute or so

Answer

A

R v Ireland

Question 13

Q

Battery > Define

Answer

A

The intentional direct application of unlawful force to another person

Question 14

Q

Battery > Define > Wilson v Pringle

Answer

A

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

Question 15

Q

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

Answer

A

Wilson v Pringle

Question 16

Q

Battery > Define > Direct application of force

Answer

A

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

Question 17

Q

Battery > Define > F v West Berkshire Health Authority

Answer

A

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

Question 18

Q

Battery > Define >

Answer

A

F v West Berkshire Health Authority

Question 19

Q

Trespass to the Person > Defences > List of defences

Answer

A

Consent
Defence of the person
Defence of property
Necessity

Question 20

Q

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

Answer

A

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

Question 21

Q

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

Answer

A

Co-operative Group Ltd v Pritchard

Question 22

Q

Trespass to the Person > Defences > Consent

Answer

A

May be implied or express consent

Question 23

Q

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

Answer

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

Question 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

Answer

A

Chatterson v Gerson

Question 25

Q

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

Answer

A

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

Question 26

Q

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

Answer

A

Chester v Afshar

Question 27

Q

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

Answer

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

Question 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

Answer

A

Condon v Basi

Question 29

Q

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

Answer

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

Question 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

Answer

A

Cockroft v Smith

Question 31

Q

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

Answer

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

Question 32

Q

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

Answer

A

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

Question 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

Answer

A

Green v Goddard

Question 34

Q

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

Answer

A

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

Question 35

Q

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

Answer

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.

Question 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.

Answer

A

F v West Berkshire Health Authority

Question 37

Q

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

Answer

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.

Question 38

Q

Tort under the Rule in Wilkinson v Downtown > Rule

Answer

A

Only consider this rule if assault and battery are ruled out

Question 39

Q

Tort under the Rule in Wilkinson v Downtown

Answer

A

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

Question 40

Q

What is the alternative tort to assault or battery?

Answer

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.

Question 41

Q

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

Answer

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

Question 42

Q

Tort under the Rule in Wilkinson v Downtown > Causation

Answer

A

Not actionable per se, must cause damage

Question 43

Q

Defamation (Essay Only) > Steps

Answer

A

Intro

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

Question 44

Q

Defamation > Libel

Answer

A

Defamation in permanent form (actionable per se);

Question 45

Q

Defamation > Slander

Answer

A

Defamation in transient or temporary form (requires loss)

Question 46

Q

Defamation > Defamation Act 2013

Answer

A

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

Question 47

Q

Defamation > Defamation Act 2013 > s.1

Answer

A

Serious harm

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
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.

Question 48

Q

Defamation > Defamation Act 2013 > s.8

Answer

A

Single publication rule

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.
In subsection (1) “publication to the public” includes publication to a section of the public.

Question 49

Q

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

Answer

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)

Question 50

Q

Defamation > Defamation Act 2013 > Difference between Libel and Slander

Answer

A

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

Question 51

Q

Defamation > 2. Elements of defamation

Answer

A

Defendants words are defamatory
The words are to REFER TO the claimant
The words have been published

Question 52

Q

Defendants words are defamatory. Words will be defamatory if: > Sim v Stretch

Answer

A

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

Question 53

Q

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

Answer

A

Sim v Stretch

Question 54

Q

Defendants words are defamatory. Words will be defamatory if: > Youssoupoff v MGM

Answer

A

They cause the claimant to be shunned/avoided;

Question 55

Q

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

Answer

A

Youssoupoff v MGM

Question 56

Q

Defendants words are defamatory. Words will be defamatory if: > Parmiter v Coupland

Answer

A

The expose the claimant to hatred/contempt/ridicule

Question 57

Q

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

Answer

A

Parmiter v Coupland

Question 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

Answer

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)

Question 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?

Answer

A

J’Anson v Stewart

Question 60

Q

Defamation > 3. The words have been published

Answer

A

i.e. communication to a third party

Question 61

Q

Defamation > Step 3. Defences > List

Answer

A

Truth
Fair Comment
Qualified Privilege

Question 62

Q

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

Answer

A

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

Question 63

Q

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

Answer

A

s.2 Defamation Act 2013

Question 64

Q

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

Answer

A

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

Answer 65

A

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

The statement was a statement of opinion
The statement set out the basis of the opinion expressed therein; and
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

Answer 66

A

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

Answer 67

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.

Answer 68

A

s.3(6) Defamation Act 2013

Answer 69

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

Answer 70

A

s.4 Defamation Act 2013

Answer 71

A

the statement complained of was on a matter of public interest; and
the defendant reasonably believed that publishing the statement complained of was in the public interest

Answer 72

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

Answer 73

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

Answer 74

A

Applies to statements of both fact and opinion

Answer 75

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.

Answer 76

A

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

Answer 77

A

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

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.
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

Answer 78

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.

Answer 79

A

Campbell v MGM Ltd

Answer 80

A

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

Answer 81

A

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

Answer 82

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

Answer 83

A

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

Answer 84

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

Answer 85

A

(a) one road user to another

Answer 86

A

London Passenger Transport Board v Upson

Answer 87

A

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

Answer 88

A

Baker v Hopkins

Answer 89

A

(f) Driver to pedestrians and passengers

Answer 90

A

Nettleship v Weston

Answer 91

A

(g) Referee to Sports Player

Answer 92

A

Vowles v Evans

Answer 93

A

(i) Advocate to client

Answer 94

A

Arthur J S Hall and Co. v Simmons

Answer 95

A

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

Answer 96

A

Kent v Griffiths

Answer 97

A

Soldier to Colleague

Answer 98

A

Mulcahy v Ministry of Defence

Answer 99

A

Fire Service to Emergency Caller

Answer 100

A

Capital and Counties v Hampshire County Council

Answer 101

A

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

Answer 102

A

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

Answer 103

A

Hill v Chief Constable of West Yorkshire

Answer 104

A

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

Answer 105

A

Brooks and Osman

Answer 106

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

Answer 107

A

Robinson v Chief Constable of West Yorkshire Police

Answer 108

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

Answer 109

A

to take action with reasonable care

Answer 110

A

to keep the identity of informants safe

Answer 111

A

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

Answer 112

A

The Worboys Case

Answer 113

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.

Answer 114

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.’

Answer 115

A

Donoghue v Stevenson

Answer 116

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)

Answer 117

A

Caparo Industries plc v Dickman and others

Answer 118

A

Caparo:

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

Answer 119

A

Bourhill v Young

Answer 120

A

Marc Rich v Bishop Rock Marine Co

Answer 121

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

Answer 122

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.

Answer 123

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.

Answer 124

A

Stovin v Wise

Answer 125

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

Answer 126

A

East Suffolk Rivers Catchment Board v Kent

Answer 127

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.)

Answer 128

A

Home office v Dorset Yacht

Answer 129

A

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

Answer 130

A

Smith v Littlewoods

Answer 131

A

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

Answer 132

A

(a) General Standard: standard of the REASONABLE PERSON

(b) Where the defendant is a PROFESSIONAL

Answer 133

A

(a)General Standard: standard of the REASONABLE PERSON

Answer 134

A

Blyth v Birmingham Waterworks

Answer 135

A

i. This is an objective test

Answer 136

A

Glasgow Corp v Muir

Answer 137

A

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

Answer 138

A

Roe v Ministry of Health

Answer 139

A

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

Answer 140

A

Bolam v Friern Hospital Management Committee

Answer 141

A

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

Answer 142

A

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

Answer 143

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

Answer 144

A

Re the Herald of Free Enterprise

Answer 145

A

there is no allowance for inexperience

Answer 146

A

Nettleship v Weston

Answer 147

A

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

Answer 148

A

Nettleship

Answer 149

A

EXCEPTION: Where the defendant suffers from an unexpected disability

Answer 150

A

Mansfield v Weetabix

Answer 151

A

Rule also applies in cases of professional inexperience

Answer 152

A

Wilsher v Essex Area Health Authority

Answer 153

A

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

Answer 154

A

Wells v Cooper

Answer 155

A

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

Answer 156

A

Mullin v Richards

Answer 157

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).

Answer 158

A

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

Answer 159

A

Bolton v Stone

Answer 160

A

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

Answer 161

A

Paris v Stepney Borough Council

Answer 162

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.

Answer 163

A

Latimer v AEC Ltd

Answer 164

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

Answer 165

A

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

Answer 166

A

Fardon v Harcourt-Rivington

Answer 167

A

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

Answer 168

A

Waugh v James K Allen

Answer 169

A

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

Answer 170

A

Scott v London and St Katherine’s Docks

Answer 171

A

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

Answer 172

A

s.11 Civil Evidence Act 1968

Answer 173

A

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

Answer 174

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.’

Answer 175

A

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

Answer 176

A

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

Answer 177

A

i. MATERIALLY CONTRIBUTED to the harm

Answer 178

A

Bonnington Castings Ltd v Wardlaw

Answer 179

A

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

Answer 180

A

McGhee v National Coal Board

Answer 181

A

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

Answer 182

A

Sienkiewicz v Grieff

Answer 183

A

If the harm is DIVISIBLE, court will apportion damages accordingly

Answer 184

A

Holtby v Bigham

Answer 185

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.

Answer 186

A

Civil Liability (Contribution) Act 1978

Answer 187

A

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

Answer 188

A

Fairchild v Glenhaven Funeral Services Ltd.

Answer 189

A

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

Answer 190

A

Barker v Corus UK Ltd

Answer 191

A

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

Answer 192

A

s.3 Compensation Act 2006

Answer 193

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

Answer 194

A

i. NEGLIGENT ACTS – only break the chain if unforeseeable

Answer 195

A

Knightley v Johns, Rouse v Squires

Answer 196

A

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

Answer 197

A

Lamb

Stansbie v Troman

Answer 198

A

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

Answer 199

A

Scott v Shepherd

Answer 200

A

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

Answer 201

A

Rahman v Arearose Ltd

Answer 202

A

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

Answer 203

A

McKew and Wieland

Answer 204

A

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

Answer 205

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

Answer 206

A

The Wagon Mound (No.1)

Answer 207

A

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

Answer 208

A

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

Answer 209

A

Hughes v Lord Advocate

Answer 210

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.

Answer 211

A

Robinson v Post Office

Answer 212

A

VOLUNTARY ASSUMPTION OF RISK (Complete defence volenti non fit injuria)
ILLEGALITY
CONTRIBUTORY NEGLIGENCE

Answer 213

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)

Answer 214

A

Nettleship v Weston

Answer 215

A

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

Answer 216

A

Smith v Baker

Answer 217

A

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

Answer 218

A

Haynes v Harwood

Answer 219

A

More successful against trespassers

Answer 220

A

Ratcliff v McConnell and another

Answer 221

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)

Answer 222

A

Dann v Hamilton

Answer 223

A

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

Answer 224

A

Pitts v Hunt

Answer 225

A

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

Answer 226

A

Revill v Newbury

Answer 227

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.

Answer 228

A

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

Answer 229

A

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

Answer 230

A

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

Answer 231

A

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

Answer 232

A

Gough v Thorne

Answer 233

A

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

Answer 234

A

Baker v TE Hopkins and Sons Ltd

Answer 235

A

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

Answer 236

A

Jones v Boyce

Answer 237

A

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

Answer 238

A

Froom v Butcher

Answer 239

A

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

Answer 240

A

Capps v Miller

Answer 241

A

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

Answer 242

A

Owens v Brimmell

Answer 243

A

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

Answer 244

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

Answer 245

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

Answer 246

A

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

Answer 247

A

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

Answer 248

A

GENERAL RULE: no duty of care is owed in tort in respect of PEL

Answer 249

A

Murphy v Brentwood District Council

Answer 250

A

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

Answer 251

A

Weller & Co v Foot and Mouth Disease Research Institute

Answer 252

A

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

Answer 253

A

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

Answer 254

A

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

Answer 255

A

Hedley Byrne & Co Ltd v Heller & Partners Ltd

Answer 256

A

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

Answer 257

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

Answer 258

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

Answer 259

A

Constructive Knowledge will suffice

Answer 260

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)

Answer 261

A

White v Jones; Henderson v Merritt Syndicates Ltd

Answer 262

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

Answer 263

A

Spring v Guardian Assurance Plc

Answer 264

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.

Answer 265

A

Desmond v Chief Constable

Answer 266

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)

Answer 267

A

Chaudhry v Prabhakar

Answer 268

A

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

Answer 269

A

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

Answer 270

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

Answer 271

A

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

Answer 272

A

James McNaughton Papers Group Ltd v Hicks Anderson & Co

Answer 273

A

To rely on a disclaimer/exclusion notice as a defence

Answer 274

A

EXCLUSION OF LIABILITY

Answer 275

A

INCORPORATION and CONSTRUCTION

Answer 276

A

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

Answer 277

A

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

Answer 278

A

UCTA 1977

Answer 279

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)

Answer 280

A

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

Answer 281

A

s.2(1) UCTA 1977

Answer 282

A

s.2(2) UCTA 1977

Answer 283

A

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

Answer 284

A

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

Answer 285

A

s.11(3) UCTA 1977

Answer 286

A

In deciding reasonableness, take into account the following:

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

Answer 287

A

Smith v Eric S Bush

Answer 288

A

Smith v Eric S Bush

In deciding reasonableness, take into account the following:

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

Answer 289

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

Answer 290

A

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

Answer 291

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.

Answer 292

A

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

Answer 293

A

Is the harm medically recognised
Caused by sudden shock?
In the area of danger? If YES = Primary / If NO = Secondary

Answer 294

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

Answer 295

A

Page v Smith

Answer 296

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)

Answer 297

A

Page v Smith, Dulieu v White & Sons

Answer 298

A

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

Answer 299

A

Bourhill v Young

Answer 300

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

Answer 301

A

Page v Smith

Answer 302

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

Answer 303

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)

Answer 304

A

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

Alcock v Chief Constable of South Yorkshire Police

Answer 305

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

Answer 306

A

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

Answer 307

A

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

Answer 308

A

McCloughlin v O’Brian

Answer 309

A

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

Answer 310

A

McCloughlin

Answer 311

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

Answer 312

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.

Answer 313

A

White v Chief Constable of the South Yorkshire Police

Answer 314

A

Where a rescuer was a primary victim

Answer 315

A

Chadwick v British Railway Board

Answer 316

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?

Answer 317

A

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

Answer 318

A

Walker v Northumberland County Council

Answer 319

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

Answer 320

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’

Answer 321

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

Answer 322

A

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

Answer 323

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

Answer 324

A

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

Answer 325

A

Any Damages will be reduced for any findings of contributory negligence

Answer 326

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

Answer 327

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.

Answer 328

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)

Answer 329

A

Wise v Kaye

Answer 330

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.

Answer 331

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

Answer 332

A

West v Shepherd

Answer 333

A

Medical Expenses
Loss of Earnings Pre-Trial
Loss of Earnings Post-Trial
Loss of Earnings – THE LOST YEARS
Loss of Earnings – CHILDREN
THE COST OF CARE
LOSS OF EARNING CAPACITY
OTHER PECUNIARY EXPENSES

Answer 334

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

Answer 335

A

d) One may recover reasonable cost of PRIVATE medical treatment

Answer 336

A

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

Answer 337

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)

Answer 338

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

Answer 339

A

MULTIPLICAND X MULTIPLIER

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

Answer 340

A

= net annual loss of earnings

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

Answer 341

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

Answer 342

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)

Answer 343

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

Answer 344

A

Pickett v British Rail Engineering

Answer 345

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

Answer 346

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

Answer 347

A

(a) Schneider v Eistovich

Answer 348

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)

Answer 349

A

(b) Housecroft v Burnett

Answer 350

A

(a) Schneider v Eistovich

(b) Housecroft v Burnett

Answer 351

A

Smith v Manchester Award

Answer 352

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)

Answer 353

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)

Answer 354

A

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

Answer 355

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

Answer 356

A

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

Answer 357

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.

Answer 358

A

s.32A Senior Courts Act 1981

Answer 359

A

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

Answer 360

A

s.2 Damages Act 1996

Answer 361

A

PROVISIONAL DAMAGES

PERIODIC PAYMENT

Answer 362

A

Law Reform (Miscellaneous Provisions) Act 1934

Answer 363

A

State: where the claimant has died, the claimant’s ESTATE can continue/commence a claim on his behalf
How it works: PR’s bring a claim on behalf of the estate
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

Answer 364

A

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

Answer 365

A

PR’s bring a claim on behalf of the estate

Answer 366

A

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

Answer 367

A

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

Answer 368

A

Fatal Accidents Act 1976

Answer 369

A

State: the FAA allows DEPENDANTS to sue for the death of a person on whom they were dependent.
How it works: PR’s bring a claim on behalf of the DEPENDANTS
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

Answer 370

A

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

Answer 371

A

PR’s bring a claim on behalf of the DEPENDANTS

Answer 372

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

Answer 373

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

Answer 374

A

MULTIPLICAND X MULTIPLIER

Multiplicand = salary
x
Multiplier = the period of dependency

Answer 375

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.

Answer 376

A

Multiplier = the period of dependency

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

Answer 377

A

Limitation period for either act is THREE YEARS

Answer 378

A

Health and Safety
Common Law Negligence
Vicarious Liability

Answer 379

A

Statutory Health and Safety Regulations
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?
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

Answer 380

A

Enterprise and Regulatory Reform Act 2013

Answer 381

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.

Answer 382

A

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

Which risks the employer should have foreseen; and
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.

Answer 383

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?

Answer 384

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.

Answer 385

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.

Answer 386

A

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

Answer 387

A

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

Answer 388

A

Added:

4. A duty to provide a SAFE WORKPLACE

Answer 389

A

Latimer v AEC Ltd

Answer 390

A

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

Answer 391

A

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

Answer 392

A

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

Answer 393

A

Waters v Commissioner for Police of the Met

Answer 394

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)

Answer 395

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

Answer 396

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

Answer 397

A

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

Answer 398

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

Answer 399

A

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

Answer 400

A

Walker v Northumberland County Council

Answer 401

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.

Answer 402

A

Hatton v Sutherland

Answer 403

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

Answer 404

A

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

Answer 405

A

General Cleaning Contracts v Christmas

Answer 406

A

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

Answer 407

A

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

Answer 408

A

Bolton v Stone

Answer 409

A

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

Answer 410

A

Paris v Stepney BC

Answer 411

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

Answer 412

A

Latimer v AEC Ltd

Answer 413

A

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

Answer 414

A

Fardon v Harcourt-Rivington

Answer 415

A

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

Answer 416

A

Waugh v James K Allen

Answer 417

A

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

Answer 418

A

Scott v London and St Katherine’s Docks

Answer 419

A

Consent

2. Contributory Negligence

Answer 420

A

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

Answer 421

A

Smith v Baker

Answer 422

A

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

Answer 423

A

Courts will make allowances for employees working in noisy conditions.

Answer 424

A

Caswell v Powell Duffryn Associated Collieries Ltd

Answer 425

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

Answer 426

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.

Answer 427

A

Various Claimants v Catholic Child Welfare Society and Others

Answer 428

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.

Answer 429

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

Answer 430

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

Answer 431

A

Ready Mixed Concrete v Minister of Pensions and National Insurance

Answer 432

A

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

Answer 433

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.

Answer 434

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.

Answer 435

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.

Answer 436

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.

Answer 437

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)

Answer 438

A

employer will be liable for:

• Wrongful ACTS it has authorised;

Answer 439

A

Poland v Parr

Answer 440

A

employer will be liable for:

• Wrongful/unauthorised MODES of carrying out authorised acts

Answer 441

A

Century Insurance v NI Road Transport Board

Answer 442

A

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

Answer 443

A

Poland v Parr

Answer 444

A

Oil Tanker drivers smoking while unloading Tank of Oil

Answer 445

A

Century Insurance v NI Road Transport Board

Answer 446

A

Oil Tanker drivers smoking while unloading Tank of Oil

Answer 447

A

Century Insurance v NI Road Transport Board

Answer 448

A

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

Answer 449

A

Warren v Henleys Ltd

Answer 450

A

INTENTIONAL torts committed purely for employee’s benefit
Torts expressly PROHIBITED by employer
‘FROLIC’ cases

Answer 451

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)

Answer 452

A

i. Tort STEMMED from an act authorise by employer

Answer 453

A

Lloyd Grace v Smith

Answer 454

A

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

Answer 455

A

Lister v Hesley

Answer 456

A

Can be interpreted widely

Answer 457

A

Mattis v Pollock

Answer 458

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.

Answer 459

A

Mohamud v WM Morrison Supermarkets Plc

Answer 460

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)

Answer 461

A

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

Answer 462

A

Rose v Plenty

Answer 463

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)

Answer 464

A

Twine v Bean’s Express

Answer 465

A

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

Answer 466

A

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

Answer 467

A

Joel v Morrison

Answer 468

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.’

Answer 469

A

Hilton v Thomas Burton (Rhodes) Ltd

Answer 470

A

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

Answer 471

A

Harvey v R G O’Dell

Answer 472

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

Answer 473

A

Lister v Romford Ice & Cold Storage Co Ltd

Answer 474

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

Answer 475

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.

Answer 476

A

The claimant has suffered loss due to the STATE OF THE PREMISES
The defendant is an OCCUPIER
The Claimant is a VISITOR

Answer 477

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

Answer 478

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

Answer 479

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)

Answer 480

A

Wheat v E Lacon & Co Ltd

Answer 481

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)

Answer 482

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.

Answer 483

A

AC Billings & Sons Ltd v Riden

Answer 484

A

this could include trespassers

Answer 485

A

Buckland v Guildford Gaslight & Coke Co

Answer 486

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

Answer 487

A

Anyone with express or implied permission is allowed to be there

Answer 488

A

s.1(2) OLA 1957

Answer 489

A

a) Implied permission could be permission:

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

Answer 490

A

s.2(6) OLA 1957

Answer 491

A

b) Implied permission could be permission:

ii. Under terms of a contract

Answer 492

A

s.5(2) OLA 1957

Answer 493

A

State test
Standard owed to ‘special visitors’
Warning notices
Where visitor has been injured by faulty work of INDEPENDENT CONTRACTORS

Answer 494

A

s.2(2) OLA 1957

Answer 495

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

Answer 496

A

s.2(2) OLA 1957

Answer 497

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.’

Answer 498

A

a) CHILDREN are owed a higher standard of care

Answer 499

A

S.2(3)(a) OLA 1957

Answer 500

A

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

Answer 501

A

Glasgow Corporation v Taylor

Answer 502

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.

Answer 503

A

Phillips v Rochester Corporation

Answer 504

A

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

Answer 505

A

Bourne Leisure Ltd v Marsden

Answer 506

A

b) VISITORS coming to exercise their skills

Answer 507

A

s.2(3)(b) OLA 1957

Answer 508

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)

Answer 509

A

Roles v Nathan

Answer 510

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:

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

Answer 511

A

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

Answer 512

A

s.2(4)(a) OLA 1957

Answer 513

A

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

Answer 514

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

Answer 515

A

S.2(4)(b) OLA 1957

Answer 516

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

Answer 517

A

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

Answer 518

A

Haseldine v Daw & Son Ltd

Answer 519

A

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

Answer 520

A

Woodward v The Mayor of Hastings

Answer 521

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?

Answer 522

A

The test for remoteness is ‘reasonable foreseeability’

Answer 523

A

Jolley v Sutton London BC

Answer 524

A

Consent
Contributory Negligence
Exclusion of Liability

Answer 525

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

Answer 526

A

s.2(5) OLA 1957

Answer 527

A

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

Answer 528

A

s.2(1) OLA 1957

Answer 529

A

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

Answer 530

A

White v Blackmore

Answer 531

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))

Answer 532

A

s.2 UCTA 1977

Answer 533

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

Answer 534

A

s.2(1) UCTA 1977

Answer 535

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:

Answer 536

A

s.2(2) UCTA 1977

Answer 537

A

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

Answer 538

A

s.11 UCTA

Answer 539

A

In deciding reasonableness, take into account the following:

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

Answer 540

A

Smith v Eric S Bush

Answer 541

A

s.11 UCTA and

Smith v Eric S Bush

Answer 542

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

Answer 543

A

‘under Occupier’s Liability Act 1984, an occupier may owe a TRESPASSER a duty of care in certain situations.’

Answer 544

A

The defendant is an OCCUPIER
The Claimant is a TRESPASSER
The claimant suffered loss due to the state of the premises
And, per se s.1(3)

Answer 545

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)

Answer 546

A

Wheat v E Lacon & Co Ltd

Answer 547

A

a) A person ‘other than a visitor’

Answer 548

A

s.1(1)(a) OLA 1984

Answer 549

A

b) One who goes upon land without invitation and whose presence is either unknown to the occupier, or if known, practically objected to.

Answer 550

A

Robert Addie & Sons (Colliery) Ltd v Dumbreck

Answer 551

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’

Answer 552

A

Tomlinson v Congleton BC

Answer 553

A

b) N.B. the claimant may only claim damages for injury (not property damage)

Answer 554

A

s.1(8) OLA 1984

Answer 555

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

Answer 556

A

No reasonable grounds for the occupier to believe there was an obstruction to the lake –> no duty of care owed.

Answer 557

A

Rhind v Astbury Water Park

Answer 558

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.

Answer 559

A

Donoghue v Folkestone Properties

Answer 560

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.

Answer 561

A

Grimes v Hawkins

Answer 562

A

Standard: take such care as is reasonable in the circumstances

Answer 563

A

s.1(4) OLA 1984

Answer 564

A

CHILDREN are owed a higher standard of care

Answer 565

A

S.2(3)(a) OLA 1957

Answer 566

A

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

Answer 567

A

Glasgow Corporation v Taylor

Answer 568

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.

Answer 569

A

Phillips v Rochester Corporation

Answer 570

A

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

Answer 571

A

Bourne Leisure Ltd v Marsden

Answer 572

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)

Answer 573

A

s.1(5) OLA 1984

Answer 574

A

Consent
Contributory Negligence
Exclusion of Liability
Illegality

Answer 575

A

Usual rules apply

Answer 576

A

s.1(6) OLA 1984

Answer 577

A

Example of successful reliance on consent. Claimant was aware of risk of voluntarily

Answer 578

A

Ratcliff v McConnell and another

Answer 579

A

Position is unclear, as OLA 1984 is silent on whether liability can be excluded

Answer 580

A

If the trespasser entered onto land for a criminal purpose, the court may thwart Parliament’s intention to provide a protection to trespassers.

Answer 581

A

Revill v Newberry

Answer 582

A

Negligence
Consumer Protection Act 1987
Breach of contract
Breach of statutory duty

Answer 583

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)

Answer 584

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

Answer 585

A

a) Contract for the sale or goods

b) Contract for the sale of goods and services

Answer 586

A

Goods must be of a satisfactory quality

Answer 587

A

Goods must be of a satisfactory quality

Answer 588

A

Goods must be of a satisfactory quality

Answer 589

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

Answer 590

A

Put the claimant in the position as if contract had been fulfilled

Answer 591

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.

Answer 592

A

Hadley v Baxendale

Answer 593

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

Answer 594

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?

Answer 595

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

Answer 596

A

To bring a claim under s.2(1) CPA 1987, the claimant must show that they…

Have suffered Damage
Caused by
A defect
In a product

Answer 597

A

s.2(1) CPA 1987

Answer 598

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)

Answer 599

A

‘any disease and any other impairment of a person’s physical or mental condition.’

Answer 600

A

s.45 CPA 1987

Answer 601

A

Private property damage – but – only if £275 or over (in aggregate)

Answer 602

A

S.5(4) CPA 1987

Answer 603

A

Damage to business property is not recoverable (must be ‘property ordinarily intended for private use, occupation or consumption.’ s.5(3)(a))

Answer 604

A

S.5(3) CPA 1987

Answer 605

A

must be ‘property ordinarily intended for private use, occupation or consumption.’

Answer 606

A

s.5(3)(a) CPA 1987

Answer 607

A

Unlike in contract law, the claimant cannot recover pure economic loss

Answer 608

A

s.5(2) CPA 1987, Murphy v Brentwood

Answer 609

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).

Answer 610

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

Answer 611

A

Re Polemis

Answer 612

A

Defective means that the safety of the product is, ‘not such as persons generally are entitled to expect.’

Answer 613

A

s.3(1) CPA 1987

Answer 614

A

In applying this definition consider: the whole get-up and presentation of the product taking into account its expected use and age

Answer 615

A

s.3(2) CPA 1987

Answer 616

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.

Answer 617

A

A v National Blood Authority

Answer 618

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).

Answer 619

A

s.1(2) CPA 1987

Answer 620

A

Property includes blood

Answer 621

A

A v National Blood Authority

Answer 622

A

To be liable under s.2(2) CPA 1987, the defendant must be…

Producer: if a component part is faulty, both the manufacturer of part AND the manufacturer of the whole will be liable.
An own-brander: person who is putting their trademark on the product holds himself out as being its producer.
An importer: person who imports the product into an EU member state from a Non-EU member state.
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.

Answer 623

A

s.4 Complete Defence (including s.4(1)(e) developmental risk)
Contributory negligence under s.6(4)

Answer 624

A

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)

Answer 625

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.)

Answer 626

A

state of knowledge interpreted to mean the highest standard of knowledge accessible anywhere in the world at that time.

Answer 627

A

Commission v UK

Answer 628

A

only available where defect/risk was unforeseeable (this is not equivalent to the risk being unavoidable.)

Answer 629

A

A v National Blood Authority

Answer 630

A

Contributory Negligence is available

Answer 631

A

s.6(4) CPA 1987

Answer 632

A

Exclusion of liability and consent are not available as defences

Answer 633

A

s.7 CPA 1987

Answer 634

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,”

Answer 635

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

Answer 636

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

Answer 637

A

‘Manufacturer’ includes repairers

Answer 638

A

Haseldine v Daw & Son Ltd

Answer 639

A

‘Manufacturer’ includes installers

Answer 640

A

Stennett v Hancock

Answer 641

A

‘Manufacturer’ includes suppliers of products if they ought reasonably to inspect or test the products which they supply

Answer 642

A

Andrews v Hopkinson

Answer 643

A

The product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination.

Answer 644

A

Kulbach v Hollands

Answer 645

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.

Answer 646

A

the claimant must prove the defendant’s breach, as res ipsa loquitur will not apply in product liability, the breach cannot be inferred.

Answer 647

A

Donoghue v Stevenson (obiter)

Answer 648

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

Answer 649

A

Establish in Grant v Australian Knitting Mills and followed in Carroll v Fearon

Answer 650

A

‘But for’ test applies as illustrated

Answer 651

A

Evans v Triplex Safety Glass Co Ltd

Answer 652

A

Test for legal causation

Answer 653

A

Wagon Mound

Answer 654

A

Consent is available, but typically hard to show.

Answer 655

A

Grant v Australian Knitting Mills

Answer 656

A

Exclusion of liability is available, but consider the following:
Liability in negligence for death/personal injury cannot be excluded

Answer 657

A

s.2(1) CPA 1987

Answer 658

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.

Answer 659

A

s.2(2) CPA 1987

Answer 660

A

Losses within the scope of the duty: personal injury; property damage
Cannot claim for pure economic loss (Murphy v Brentwood), but can claim for consequential economic loss.

Answer 661

A

Cannot claim for pure economic loss in negligence

Answer 662

A

Murphy v Brentwood

Answer 663

A

If the statute protects a limited, ascertainable class, a claim in tort can be brought

Answer 664

A

Lonrho Ltd v Shell Petroleum

Answer 665

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.

Answer 666

A

Groves v Lord Wimborne

Answer 667

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)

Answer 668

A

O’Rourke v Camden LBC

Answer 669

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.

Answer 670

A

Does the claimant fall within the protected class?

Answer 671

A

Hartley v Mayoh & Co

Answer 672

A

Do the facts fall within the statutory wording

Answer 673

A

Smith v Northampton County Council

Answer 674

A

The duty is absolute. (Check the wording of statute. If mandatory language is used (e.g. ‘shall’, ‘must’) this imposes strict liability)

Answer 675

A

Stark v Post Office

Answer 676

A

The damage or harm must be of the kind that the statute was trying to prevent.

Answer 677

A

Gorris v Scott

Answer 678

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’

Answer 679

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

Answer 680

A

Caswell v Powell Duffryn Associated Collieries Ltd

Answer 681

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

Answer 682

A

the claimant can consider suing the defendant in the tort of private nuisance for [insert conduct]

Answer 683

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.’

Answer 684

A

Winfield & Jolowicz on Tort, used in Read v Lyons & Co Ltd

Answer 685

A

Does the Claimant have locus standi?
Has there been an actionable interference with the claimant’s land?
Is this interference ‘unlawful’?
Has the claimant suffered damage that is recoverable?
Causation and Remoteness

Answer 686

A

The claimant must have a proprietary interest in the land – freeholders and tenants and occupiers in exclusive possession e.g. not licenses [case]

Answer 687

A

Hunter v Canary Wharf

Answer 688

A

• Neither children nor spouse [case] of owner-occupier of land can sue in private nuisance

Answer 689

A

Malone v Laskey

Answer 690

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)

Answer 691

A

• Disruption to TV Reception

Answer 692

A

Hunter v Canary Wharf

Answer 693

A

• Interferences with ‘elegant or dainty models of living.’

Answer 694

A

Walter v Selfe

Answer 695

A

• Right to view is not actionable

Answer 696

A

Aldred’s Case

Answer 697

A

Must be something that materially interferes with ‘ordinary conduct.’

Answer 698

A

Walter v Selfe

Answer 699

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

Answer 700

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

Answer 701

A

The longer the duration and frequency of the interference, the more likely the court will consider it to be unreasonable.

Answer 702

A

Miller v Jackson (cricket ball case)

Answer 703

A

An isolated event will be unlawful ONLY if it emanates from a continuous state of affairs on the defendant’s property.

Answer 704

A

Spicer v Smee

Answer 705

A

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
Impact on the claimant (subjective test)

Answer 706

A

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).
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.

Answer 707

A

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?)

Answer 708

A

Sturges v Bridgman

Answer 709

A

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.

Answer 710

A

Halsey v Esso Petroleum Co

Answer 711

A

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.

Answer 712

A

Gillingham BC v Medway Docks Co Ltd

Answer 713

A

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

Answer 714

A

Coventry v Lawrence

Answer 715

A

A smelly chip shop can have a benefit to the community (Adams v Ursell)
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)

Answer 716

A

If the defendant has been trying to annoy the claimant, interference more likely to be considered unreasonable and therefore unlawful.

Answer 717

A

Hollywood Silver Fox Farm v Emmett

Answer 718

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)

Answer 719

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.)

Answer 720

A

The CREATOR of the nuisance
The current OCCUPIER of the land
The LANDLORD

Answer 721

A

Liable, even if land now owned by someone else

Answer 722

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).

Answer 723

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)

Answer 724

A

(a) Prescription
(b) Statutory Authority
(c) Contributory Negligence
(d) Consent
(e) Act of God/Nature

Answer 725

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.

Answer 726

A

Sturges v Bridgman

Answer 727

A

Provided the defendant can show nuisance was inevitable consequence of doing what the statute authorised.

Answer 728

A

Allen v Gulf Oil Refining Ltd

Answer 729

A

Provided that the defendant has not adopted or continued the nuisance.

Answer 730

A

Wringe v Cohen

Answer 731

A

Wringe v Cohen

Answer 732

A

(a) The claimant came to the nuisance
(b) Public Benefit
(c) Contributory actions of others
(d) Planning permission

Answer 733

A

• Even if the nuisance existed before the claimant, for example, built his house on the polluted land, the claimant can still sue.

Answer 734

A

Miller v Jackson

Answer 735

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.’

Answer 736

A

Coventry v Lawrence

Answer 737

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.

Answer 738

A

Miller v Jackson; Kennaway v Thomson

Answer 739

A

i. Will not legitimise a nuisance

Answer 740

A

Wheeler v Saunders

Answer 741

A

ii. May operate to change character of neighbourhood

Answer 742

A

Gillingham BC v Medway Docks Co Ltd

Answer 743

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

Answer 744

A

Coventry v Lawrence

Answer 745

A

Ineffective defences will not enable the defendant to escape liability, but will be considered when considering the type of remedy.

Answer 746

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.

Answer 747

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)

Answer 748

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.

Answer 749

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

Answer 750

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

Answer 751

A

Shelfer v City of London Electric Lighting Co

Answer 752

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.

Answer 753

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

Answer 754

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)

Brainscape's Knowledge GenomeTM

Authorities Flashcards

Brainscape's Knowledge Genome^TM