Authorities Flashcards

Question

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

Answer 1

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

Answer 2

Chester v Afshar

Answer 3

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 4

Condon v Basi

Answer 5

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 6

Cockroft v Smith

Answer 7

(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

Answer 8

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

Answer 9

Green v Goddard

Answer 10

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

Answer 11

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 12

F v West Berkshire Health Authority

Answer 13

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.

Answer 14

Only consider this rule if assault and battery are ruled out

Answer 15

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

Answer 16

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.

Answer 17

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

Answer 18

Not actionable per se, must cause damage

Answer 19

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

Answer 20

Defamation in permanent form (actionable per se);

Answer 21

Defamation in transient or temporary form (requires loss)

Answer 22

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

Answer 23

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

Answer 24

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

Answer 25

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)

Answer 26

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

Answer 27

1. Defendants words are defamatory 2. The words are to REFER TO the claimant 3. The words have been published

Answer 28

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

Answer 29

Sim v Stretch

Answer 30

They cause the claimant to be shunned/avoided;

Answer 31

Youssoupoff v MGM

Answer 32

The expose the claimant to hatred/contempt/ridicule

Answer 33

Parmiter v Coupland

Answer 34

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)

Answer 35

J’Anson v Stewart

Answer 36

i.e. communication to a third party

Answer 37

Truth Fair Comment Qualified Privilege

Answer 38

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

Answer 39

s.2 Defamation Act 2013

Answer 40

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

Answer 41

Defamation Act 2013. In particular, the statement will have to fulfil the following conditions: 1. The statement was a statement of opinion 2. The statement set out the basis of the opinion expressed therein; and 3. An honest person could have held the opinion on the basis of: i. Any fact which existed at the time the statement complained of was published ii. Anything asserted to be a fact in a privileged statement published before the statement complained of

Answer 42

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

Answer 43

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 44

s.3(6) Defamation Act 2013

Answer 45

(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 46

s.4 Defamation Act 2013

Answer 47

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 48

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 49

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 50

Applies to statements of both fact and opinion

Answer 51

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 52

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

Answer 53

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

Answer 54

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 55

Campbell v MGM Ltd

Answer 56

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

Answer 57

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

Answer 58

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 59

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

Answer 60

(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 61

(a) one road user to another

Answer 62

London Passenger Transport Board v Upson

Answer 63

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

Answer 64

Baker v Hopkins

Answer 65

(f) Driver to pedestrians and passengers

Answer 66

Nettleship v Weston

Answer 67

(g) Referee to Sports Player

Answer 68

Vowles v Evans

Answer 69

(i) Advocate to client

Answer 70

Arthur J S Hall and Co. v Simmons

Answer 71

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

Answer 72

Kent v Griffiths

Answer 73

Soldier to Colleague

Answer 74

Mulcahy v Ministry of Defence

Answer 75

Fire Service to Emergency Caller

Answer 76

Capital and Counties v Hampshire County Council

Answer 77

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

Answer 78

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

Answer 79

Hill v Chief Constable of West Yorkshire

Answer 80

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

Answer 81

Brooks and Osman

Answer 82

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 83

Robinson v Chief Constable of West Yorkshire Police

Answer 84

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 85

to take action with reasonable care

Answer 86

to keep the identity of informants safe

Answer 87

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

Answer 88

The Worboys Case

Answer 89

(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 90

(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 91

Donoghue v Stevenson

Answer 92

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 93

Caparo Industries plc v Dickman and others

Answer 94

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

Answer 95

Bourhill v Young

Answer 96

Marc Rich v Bishop Rock Marine Co

Answer 97

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 98

[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 99

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 100

Stovin v Wise

Answer 101

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 102

East Suffolk Rivers Catchment Board v Kent

Answer 103

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 104

Home office v Dorset Yacht

Answer 105

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

Answer 106

Smith v Littlewoods

Answer 107

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

Answer 108

(a) General Standard: standard of the REASONABLE PERSON | (b) Where the defendant is a PROFESSIONAL

Answer 109

(a)General Standard: standard of the REASONABLE PERSON

Answer 110

Blyth v Birmingham Waterworks

Answer 111

i. This is an objective test

Answer 112

Glasgow Corp v Muir

Answer 113

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

Answer 114

Roe v Ministry of Health

Answer 115

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

Answer 116

Bolam v Friern Hospital Management Committee

Answer 117

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

Answer 118

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

Answer 119

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 120

Re the Herald of Free Enterprise

Answer 121

there is no allowance for inexperience

Answer 122

Nettleship v Weston

Answer 123

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

Answer 124

Nettleship

Answer 125

EXCEPTION: Where the defendant suffers from an unexpected disability

Answer 126

Mansfield v Weetabix

Answer 127

Rule also applies in cases of professional inexperience

Answer 128

Wilsher v Essex Area Health Authority

Answer 129

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

Answer 130

Wells v Cooper

Answer 131

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

Answer 132

Mullin v Richards

Answer 133

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 134

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

Answer 135

Bolton v Stone

Answer 136

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

Answer 137

Paris v Stepney Borough Council

Answer 138

(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 139

Latimer v AEC Ltd

Answer 140

(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 141

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

Answer 142

Fardon v Harcourt-Rivington

Answer 143

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

Answer 144

Waugh v James K Allen

Answer 145

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

Answer 146

Scott v London and St Katherine’s Docks

Answer 147

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

Answer 148

s.11 Civil Evidence Act 1968

Answer 149

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

Answer 150

(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 151

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

Answer 152

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

Answer 153

i. MATERIALLY CONTRIBUTED to the harm

Answer 154

Bonnington Castings Ltd v Wardlaw

Answer 155

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

Answer 156

McGhee v National Coal Board

Answer 157

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

Answer 158

Sienkiewicz v Grieff

Answer 159

If the harm is DIVISIBLE, court will apportion damages accordingly

Answer 160

Holtby v Bigham

Answer 161

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 162

Civil Liability (Contribution) Act 1978

Answer 163

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

Answer 164

Fairchild v Glenhaven Funeral Services Ltd.

Answer 165

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

Answer 166

Barker v Corus UK Ltd

Answer 167

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

Answer 168

s.3 Compensation Act 2006

Answer 169

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 170

i. NEGLIGENT ACTS – only break the chain if unforeseeable

Answer 171

Knightley v Johns, Rouse v Squires

Answer 172

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

Answer 173

Lamb | Stansbie v Troman

Answer 174

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

Answer 175

Scott v Shepherd

Answer 176

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

Answer 177

Rahman v Arearose Ltd

Answer 178

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

Answer 179

McKew and Wieland

Answer 180

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

Answer 181

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 182

The Wagon Mound (No.1)

Answer 183

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

Answer 184

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

Answer 185

Hughes v Lord Advocate

Answer 186

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 187

Robinson v Post Office

Answer 188

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

Answer 189

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 190

Nettleship v Weston

Answer 191

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

Answer 192

Smith v Baker

Answer 193

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

Answer 194

Haynes v Harwood

Answer 195

More successful against trespassers

Answer 196

Ratcliff v McConnell and another

Answer 197

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 198

Dann v Hamilton

Answer 199

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

Answer 200

Pitts v Hunt

Answer 201

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

Answer 202

Revill v Newbury

Answer 203

(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 204

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

Answer 205

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

Answer 206

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

Answer 207

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

Answer 208

Gough v Thorne

Answer 209

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

Answer 210

Baker v TE Hopkins and Sons Ltd

Answer 211

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

Answer 212

Jones v Boyce

Answer 213

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

Answer 214

Froom v Butcher

Answer 215

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

Answer 216

Capps v Miller

Answer 217

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

Answer 218

Owens v Brimmell

Answer 219

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

Answer 220

* 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 221

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 222

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

Answer 223

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

Answer 224

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

Answer 225

Murphy v Brentwood District Council

Answer 226

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

Answer 227

Weller & Co v Foot and Mouth Disease Research Institute

Answer 228

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

Answer 229

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

Answer 230

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

Answer 231

Hedley Byrne & Co Ltd v Heller & Partners Ltd

Answer 232

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

Answer 233

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 234

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 235

Constructive Knowledge will suffice

Answer 236

(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 237

White v Jones; Henderson v Merritt Syndicates Ltd

Answer 238

(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 239

Spring v Guardian Assurance Plc

Answer 240

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 241

Desmond v Chief Constable

Answer 242

(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 243

Chaudhry v Prabhakar

Answer 244

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

Answer 245

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

Answer 246

(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 247

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

Answer 248

James McNaughton Papers Group Ltd v Hicks Anderson & Co

Answer 249

To rely on a disclaimer/exclusion notice as a defence

Answer 250

EXCLUSION OF LIABILITY

Answer 251

INCORPORATION and CONSTRUCTION

Answer 252

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

Answer 253

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

Answer 254

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 255

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

Answer 256

s.2(1) UCTA 1977

Answer 257

s.2(2) UCTA 1977

Answer 258

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

Answer 259

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

Answer 260

s.11(3) UCTA 1977

Answer 261

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

Answer 262

Smith v Eric S Bush

Answer 263

Smith v Eric S Bush In deciding reasonableness, take into account the following: 1. Were the parties of equal bargaining power? 2. In the case of advice – would it have been reasonably practicable to obtain the advice from an alternative source? 3. How difficult is the task from which liability is excluded? 4. What are the practical consequences – are the parties able to bear the loss?

Answer 264

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 265

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

Answer 266

(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 267

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

Answer 268

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

Answer 269

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 270

Page v Smith

Answer 271

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 272

Page v Smith, Dulieu v White & Sons

Answer 273

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

Answer 274

Bourhill v Young

Answer 275

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 276

Page v Smith

Answer 277

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 278

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 279

NORMAL FORTITUDE, CLOSE RELATIONSHIP OF LOVE AND AFFECTION, PRESENT, OWN SENSES Alcock v Chief Constable of South Yorkshire Police

Answer 280

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 281

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

Answer 282

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

Answer 283

McCloughlin v O’Brian

Answer 284

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

Answer 285

McCloughlin

Answer 286

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 287

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 288

White v Chief Constable of the South Yorkshire Police

Answer 289

Where a rescuer was a primary victim

Answer 290

Chadwick v British Railway Board

Answer 291

(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 292

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

Answer 293

Walker v Northumberland County Council

Answer 294

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 295

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 296

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 297

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

Answer 298

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 299

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

Answer 300

Any Damages will be reduced for any findings of contributory negligence

Answer 301

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 302

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 303

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 304

Wise v Kaye

Answer 305

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 306

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 307

West v Shepherd

Answer 308

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

Answer 309

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 310

d) One may recover reasonable cost of PRIVATE medical treatment

Answer 311

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

Answer 312

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 313

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 314

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

Answer 315

= net annual loss of earnings | Adjusted (increased) for bonuses/perks and the likelihood of promotion, but ignoring inflation

Answer 316

= 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 317

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 318

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 319

Pickett v British Rail Engineering

Answer 320

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 321

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 322

(a) Schneider v Eistovich

Answer 323

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 324

(b) Housecroft v Burnett

Answer 325

(a) Schneider v Eistovich | (b) Housecroft v Burnett

Answer 326

Smith v Manchester Award

Answer 327

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 328

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 329

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

Answer 330

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 331

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

Answer 332

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 333

s.32A Senior Courts Act 1981

Answer 334

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

Answer 335

s.2 Damages Act 1996

Answer 336

PROVISIONAL DAMAGES | PERIODIC PAYMENT

Answer 337

Law Reform (Miscellaneous Provisions) Act 1934

Answer 338

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

Answer 339

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

Answer 340

PR’s bring a claim on behalf of the estate

Answer 341

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

Answer 342

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

Answer 343

Fatal Accidents Act 1976

Answer 344

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

Answer 345

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

Answer 346

PR’s bring a claim on behalf of the DEPENDANTS

Answer 347

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 348

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 349

MULTIPLICAND X MULTIPLIER Multiplicand = salary x Multiplier = the period of dependency

Answer 350

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 351

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

Answer 352

Limitation period for either act is THREE YEARS

Answer 353

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

Answer 354

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

Answer 355

Enterprise and Regulatory Reform Act 2013

Answer 356

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 357

The court assessing a claim for breach of duty in negligence by an employer will most likely look answer two questions: 1. Which risks the employer should have foreseen; and 2. Which precautions should he have taken to respond to those risks? Where relevant, existing statutory Health and Safety regulations will likely be used by the courts to answer those questions.

Answer 358

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 359

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 360

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 361

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

Answer 362

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

Answer 363

Added: | 4. A duty to provide a SAFE WORKPLACE

Answer 364

Latimer v AEC Ltd

Answer 365

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

Answer 366

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

Answer 367

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

Answer 368

Waters v Commissioner for Police of the Met

Answer 369

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 370

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 371

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 372

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

Answer 373

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 374

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

Answer 375

Walker v Northumberland County Council

Answer 376

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 377

Hatton v Sutherland

Answer 378

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 379

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

Answer 380

General Cleaning Contracts v Christmas

Answer 381

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

Answer 382

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

Answer 383

Bolton v Stone

Answer 384

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

Answer 385

Paris v Stepney BC

Answer 386

(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 387

Latimer v AEC Ltd

Answer 388

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

Answer 389

Fardon v Harcourt-Rivington

Answer 390

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

Answer 391

Waugh v James K Allen

Answer 392

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

Answer 393

Scott v London and St Katherine’s Docks

Answer 394

1. Consent | 2. Contributory Negligence

Answer 395

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

Answer 396

Smith v Baker

Answer 397

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

Answer 398

Courts will make allowances for employees working in noisy conditions.

Answer 399

Caswell v Powell Duffryn Associated Collieries Ltd

Answer 400

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 401

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 402

Various Claimants v Catholic Child Welfare Society and Others

Answer 403

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 404

• 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 405

• 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 406

Ready Mixed Concrete v Minister of Pensions and National Insurance

Answer 407

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

Answer 408

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 409

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 410

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 411

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 412

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 413

employer will be liable for: | • Wrongful ACTS it has authorised;

Answer 414

Poland v Parr

Answer 415

employer will be liable for: | • Wrongful/unauthorised MODES of carrying out authorised acts

Answer 416

Century Insurance v NI Road Transport Board

Answer 417

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

Answer 418

Poland v Parr

Answer 419

Oil Tanker drivers smoking while unloading Tank of Oil

Answer 420

Century Insurance v NI Road Transport Board

Answer 421

Oil Tanker drivers smoking while unloading Tank of Oil

Answer 422

Century Insurance v NI Road Transport Board

Answer 423

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

Answer 424

Warren v Henleys Ltd

Answer 425

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

Answer 426

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 427

i. Tort STEMMED from an act authorise by employer

Answer 428

Lloyd Grace v Smith

Answer 429

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

Answer 430

Lister v Hesley

Answer 431

Can be interpreted widely

Answer 432

Mattis v Pollock

Answer 433

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 434

Mohamud v WM Morrison Supermarkets Plc

Answer 435

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 436

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

Answer 437

Rose v Plenty

Answer 438

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 439

Twine v Bean’s Express

Answer 440

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

Answer 441

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

Answer 442

Joel v Morrison

Answer 443

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 444

Hilton v Thomas Burton (Rhodes) Ltd

Answer 445

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

Answer 446

Harvey v R G O’Dell

Answer 447

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 448

Lister v Romford Ice & Cold Storage Co Ltd

Answer 449

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 450

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 451

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

Answer 452

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 453

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 454

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 455

Wheat v E Lacon & Co Ltd

Answer 456

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 457

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 458

AC Billings & Sons Ltd v Riden

Answer 459

this could include trespassers

Answer 460

Buckland v Guildford Gaslight & Coke Co

Answer 461

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 462

Anyone with express or implied permission is allowed to be there

Answer 463

s.1(2) OLA 1957

Answer 464

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

Answer 465

s.2(6) OLA 1957

Answer 466

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

Answer 467

s.5(2) OLA 1957

Answer 468

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

Answer 469

s.2(2) OLA 1957

Answer 470

‘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 471

s.2(2) OLA 1957

Answer 472

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 473

a) CHILDREN are owed a higher standard of care

Answer 474

S.2(3)(a) OLA 1957

Answer 475

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

Answer 476

Glasgow Corporation v Taylor

Answer 477

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 478

Phillips v Rochester Corporation

Answer 479

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

Answer 480

Bourne Leisure Ltd v Marsden

Answer 481

b) VISITORS coming to exercise their skills

Answer 482

s.2(3)(b) OLA 1957

Answer 483

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 484

Roles v Nathan

Answer 485

Warning notices will amount to compliance with, and will discharge an occupier’s common duty of care providing the following: (s.2(4)(a) OLA 1957) The warning is SUFFICIENT to enable the visitor to be reasonably safe In consideration of the following factors: 1. Location of the notice (near the danger, or not)? 2. How specific is the warning? 3. Is the danger hidden or obvious? 4. Who is the visitor in question (e.g. consider reading ability of children)?

Answer 486

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

Answer 487

s.2(4)(a) OLA 1957

Answer 488

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

Answer 489

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 490

S.2(4)(b) OLA 1957

Answer 491

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 492

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

Answer 493

Haseldine v Daw & Son Ltd

Answer 494

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

Answer 495

Woodward v The Mayor of Hastings

Answer 496

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 497

The test for remoteness is ‘reasonable foreseeability’

Answer 498

Jolley v Sutton London BC

Answer 499

1. Consent 2. Contributory Negligence 3. Exclusion of Liability

Answer 500

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 501

s.2(5) OLA 1957

Answer 502

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

Answer 503

s.2(1) OLA 1957

Answer 504

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

Answer 505

White v Blackmore

Answer 506

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 507

s.2 UCTA 1977

Answer 508

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 509

s.2(1) UCTA 1977

Answer 510

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 511

s.2(2) UCTA 1977

Answer 512

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

Answer 513

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

Answer 514

Smith v Eric S Bush

Answer 515

s.11 UCTA and | Smith v Eric S Bush

Answer 516

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 517

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

Answer 518

1. The defendant is an OCCUPIER 2. The Claimant is a TRESPASSER 3. The claimant suffered loss due to the state of the premises 4. And, per se s.1(3)

Answer 519

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 520

Wheat v E Lacon & Co Ltd

Answer 521

a) A person ‘other than a visitor’

Answer 522

s.1(1)(a) OLA 1984

Answer 523

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

Answer 524

Robert Addie & Sons (Colliery) Ltd v Dumbreck

Answer 525

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 526

Tomlinson v Congleton BC

Answer 527

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

Answer 528

s.1(8) OLA 1984

Answer 529

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 530

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

Answer 531

Rhind v Astbury Water Park

Answer 532

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 533

Donoghue v Folkestone Properties

Answer 534

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 535

Grimes v Hawkins

Answer 536

1. Standard: take such care as is reasonable in the circumstances

Answer 537

s.1(4) OLA 1984

Answer 538

CHILDREN are owed a higher standard of care

Answer 539

S.2(3)(a) OLA 1957

Answer 540

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

Answer 541

Glasgow Corporation v Taylor

Answer 542

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 543

Phillips v Rochester Corporation

Answer 544

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

Answer 545

Bourne Leisure Ltd v Marsden

Answer 546

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 547

s.1(5) OLA 1984

Answer 548

1. Consent 2. Contributory Negligence 3. Exclusion of Liability 4. Illegality

Answer 549

Usual rules apply

Answer 550

s.1(6) OLA 1984

Answer 551

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

Answer 552

Ratcliff v McConnell and another

Answer 553

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

Answer 554

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

Answer 555

Revill v Newberry

Answer 556

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

Answer 557

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 558

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 559

a) Contract for the sale or goods | b) Contract for the sale of goods and services

Answer 560

Goods must be of a satisfactory quality

Answer 561

Goods must be of a satisfactory quality

Answer 562

Goods must be of a satisfactory quality

Answer 563

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 564

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

Answer 565

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 566

Hadley v Baxendale

Answer 567

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 568

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 569

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 570

To bring a claim under s.2(1) CPA 1987, the claimant must show that they… 1. Have suffered Damage 2. Caused by 3. A defect 4. In a product

Answer 571

s.2(1) CPA 1987

Answer 572

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 573

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

Answer 574

s.45 CPA 1987

Answer 575

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

Answer 576

S.5(4) CPA 1987

Answer 577

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

Answer 578

S.5(3) CPA 1987

Answer 579

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

Answer 580

s.5(3)(a) CPA 1987

Answer 581

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

Answer 582

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

Answer 583

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 584

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 585

Re Polemis

Answer 586

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

Answer 587

s.3(1) CPA 1987

Answer 588

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

Answer 589

s.3(2) CPA 1987

Answer 590

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 591

A v National Blood Authority

Answer 592

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 593

s.1(2) CPA 1987

Answer 594

Property includes blood

Answer 595

A v National Blood Authority

Answer 596

To be liable under s.2(2) CPA 1987, the defendant must be… 1. Producer: if a component part is faulty, both the manufacturer of part AND the manufacturer of the whole will be liable. 2. An own-brander: person who is putting their trademark on the product holds himself out as being its producer. 3. An importer: person who imports the product into an EU member state from a Non-EU member state. 4. Supplier: but only under s.2(3), only where the supplier is ‘forgetful’ i.e. unable to meet victim’s request to identify any of the other people involved in the chain of supply.

Answer 597

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

Answer 598

1. S.4 Complete Defences • Defect was an inevitable consequence of compliance with legal requirements. • The defendant did not supply the product to another (e.g. the claimant obtained the product from someone who had stolen it.) • The defendant did not supply the product in the course of business (e.g. solf between two friends). Defect did not exist when the defendant supplied the product (was instead caused by fair wear and tear or missuse) • A manufacturer of a component part is not liable if the defect in the finished product is wholly attributable to design of finished product/compliance with instructions given by the manufacturer of the finished product. • DEVELOPMENTAL RISK s.4(1)(e)

Answer 599

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 600

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

Answer 601

Commission v UK

Answer 602

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

Answer 603

A v National Blood Authority

Answer 604

Contributory Negligence is available

Answer 605

s.6(4) CPA 1987

Answer 606

Exclusion of liability and consent are not available as defences

Answer 607

s.7 CPA 1987

Answer 608

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 609

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 610

(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 611

‘Manufacturer’ includes repairers

Answer 612

Haseldine v Daw & Son Ltd

Answer 613

‘Manufacturer’ includes installers

Answer 614

Stennett v Hancock

Answer 615

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

Answer 616

Andrews v Hopkinson

Answer 617

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

Answer 618

Kulbach v Hollands

Answer 619

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 620

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

Answer 621

Donoghue v Stevenson (obiter)

Answer 622

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 623

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

Answer 624

‘But for’ test applies as illustrated

Answer 625

Evans v Triplex Safety Glass Co Ltd

Answer 626

Test for legal causation

Answer 627

Wagon Mound

Answer 628

Consent is available, but typically hard to show.

Answer 629

Grant v Australian Knitting Mills

Answer 630

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

Answer 631

s.2(1) CPA 1987

Answer 632

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 633

s.2(2) CPA 1987

Answer 634

1. Losses within the scope of the duty: personal injury; property damage 2. Cannot claim for pure economic loss (Murphy v Brentwood), but can claim for consequential economic loss.

Answer 635

Cannot claim for pure economic loss in negligence

Answer 636

Murphy v Brentwood

Answer 637

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

Answer 638

Lonrho Ltd v Shell Petroleum

Answer 639

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 640

Groves v Lord Wimborne

Answer 641

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 642

O’Rourke v Camden LBC

Answer 643

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 644

Does the claimant fall within the protected class?

Answer 645

Hartley v Mayoh & Co

Answer 646

Do the facts fall within the statutory wording

Answer 647

Smith v Northampton County Council

Answer 648

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

Answer 649

Stark v Post Office

Answer 650

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

Answer 651

Gorris v Scott

Answer 652

* 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 653

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 654

Caswell v Powell Duffryn Associated Collieries Ltd

Answer 655

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 656

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

Answer 657

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 658

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

Answer 659

1. Does the Claimant have locus standi? 2. Has there been an actionable interference with the claimant’s land? 3. Is this interference ‘unlawful’? 4. Has the claimant suffered damage that is recoverable? 5. Causation and Remoteness

Answer 660

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

Answer 661

Hunter v Canary Wharf

Answer 662

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

Answer 663

Malone v Laskey

Answer 664

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 665

• Disruption to TV Reception

Answer 666

Hunter v Canary Wharf

Answer 667

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

Answer 668

Walter v Selfe

Answer 669

• Right to view is not actionable

Answer 670

Aldred’s Case

Answer 671

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

Answer 672

Walter v Selfe

Answer 673

(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 674

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 675

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

Answer 676

Miller v Jackson (cricket ball case)

Answer 677

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

Answer 678

Spicer v Smee

Answer 679

1. Behaviour of the defendant – how far removed from ‘normal’ behaviour is it (objective test)? a) Noise from 8am-6pm is excessive (Matania v National Provincial Bank) b) Physical damage to the land is usually excessive 2. Impact on the claimant (subjective test)

Answer 680

1. The Claimant’s claim will only succeed if the interference in question would have affected a normal user. (Robinson v Kilvert – claim failed because the interference would not have affected a normal user). 2. If (1) can be shown, the claimant can recover for all loss, even if it is due to his abnormal sensitivity (McKinnon v Walker – claim succeeded because fumes would have damaged regular plants, not just the claimant’s sensitive orchids, so the claimant recovered for his loss.

Answer 681

1. What might be considered nuisance in a fancy area, might not be in another area (e.g. does the area have an undue amount of noise anyway?)

Answer 682

Sturges v Bridgman

Answer 683

2. But, is only relevant to an interference which causes personal discomfort – i.e. of the claimant has incurred physical loss, character of neighbourhood is not considered.

Answer 684

Halsey v Esso Petroleum Co

Answer 685

3. Whether planning permission has been given, this may be deemed to have changed the character of the neighbourhood: an interference that would have been unlawful in the old neighbourhood is now lawful.

Answer 686

Gillingham BC v Medway Docks Co Ltd

Answer 687

4. The court should start from the proposition that the defendant’s activities are taken into account when assessing the character of the locality. However, such activity should only be considered to the extent to which they would not cause a nuisance to the claimant

Answer 688

Coventry v Lawrence

Answer 689

1. A smelly chip shop can have a benefit to the community (Adams v Ursell) 2. But, public benefit is more likely to be considered by the court during the discussion of remedies, as courts consistently take the view that public benefit cannot exonerate the defendant of liability for private nuisance (see below)

Answer 690

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

Answer 691

Hollywood Silver Fox Farm v Emmett

Answer 692

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 693

(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 694

1. The CREATOR of the nuisance 2. The current OCCUPIER of the land 3. The LANDLORD

Answer 695

Liable, even if land now owned by someone else

Answer 696

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 697

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 698

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

Answer 699

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 700

Sturges v Bridgman

Answer 701

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

Answer 702

Allen v Gulf Oil Refining Ltd

Answer 703

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

Answer 704

Wringe v Cohen

Answer 705

Wringe v Cohen

Answer 706

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

Answer 707

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

Answer 708

Miller v Jackson

Answer 709

• 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 710

Coventry v Lawrence

Answer 711

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 712

Miller v Jackson; Kennaway v Thomson

Answer 713

i. Will not legitimise a nuisance

Answer 714

Wheeler v Saunders

Answer 715

ii. May operate to change character of neighbourhood

Answer 716

Gillingham BC v Medway Docks Co Ltd

Answer 717

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 718

Coventry v Lawrence

Answer 719

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

Answer 720

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 721

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 722

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 723

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 724

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 725

Shelfer v City of London Electric Lighting Co

Answer 726

* 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 727

* 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 728

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)