Negligence and Occupier's liability Flashcards
1
Q
Definition of Negligence
A
a claim where the defendant has breached a legal duty to take care
AND as a result of that breach,
damage or injury has been caused to the claimant.
2
Q
Three elements of the tort of negligence
A
- Defendant must OWE the claimant a duty of care.
- Defendant must BREACH that duty of care.
- Breach must cause DAMAGE to the claimant.
3
Q
Which three harms does negligence protect?
A
- Personal injury
- Damage to property
- Economic loss
4
Q
What are the three elements of a negligence claim.
A
Duty of care + Breach of the duty + Causation of damage.
5
Q
What is a duty of care?
A
a legal concept
where one party can be liable to another party in negligence.
6
Q
Will an established duty of care precedent suffice?
A
yes
7
Q
What happens if there is no established duty of care precedent?
A
duty of care test will be applied to new situations
8
Q
current test for duty of care?
A
Caparo v Dickman:
Damage foreseeable?
Court will ask, ‘would a reasonable person in the defendant’s position have foreseen the damage/harm?’
9
Q
Is a duty of care owed to people in general?
A
NO
Duty of care is owed to a person or a category of people
10
Q
Is duty to a particular kind of harm rather than any kind of harm?
and what case supports this.
A
yes
Donoghue v Stevenson
11
Q
What are the 2 rules regarding relationship of proximity?
A
between claimant and the defendant
AND
must be sufficiently close.
12
Q
Does it have to be just and reasonable to impose a duty?
A
yes
13
Q
Who will the policy be considered by?
A
the court.
14
Q
Which three implications will the court consider when finding a duty of care.
A
Ethical
Economic
Social implications
15
Q
Which three situations has the duty of care test been modified for.
A
- Omissions
- Economic loss
- Psychiatric injury.
16
Q
Is duty of care generally owed to omissions?
A
no
17
Q
What are the situations
where defendant can be held liable for an omission to act
A
Defendant has a high degree of control over the claimant.
police and prisoner
parents and children etc.
18
Q
Will the defendant be liable if he has assumed responsibility for the claimant?
A
yes
19
Q
How has the defendant assumed responsibility for the claimant?
A
assumed responsibility for the safety of the claimant in some way.
20
Q
What happens when the defendant creates a dangerous situation and fails to deal with it OR makes it worse?
A
defendant has a positive duty to deal with the danger.
21
Q
Claims for pure economic loss arise from?
A
either a negligent act or misstatement.
22
Q
Can claims be made for psychiatric harm?
A
yes
23
Q
How must the claimant prove that the defendant breached the duty of care?
A
by failing to meet the desired standard of care.
24
Q
Is the general standard of care objective or subjective?
And what is it known as?
A
objective
The standard of reasonableness.
25
Defendant must meet the standard of care that which would be expected of a .....
reasonable person
26
Does the court take into account the personal qualities of the defendant?
no
27
Person exercises a special professional skills, or knowledge,
that person will be judged according to ....
the degree of skill OR knowledge expected from a person who has that skill OR knowledge.
28
Generally, if defendant’s actions supported by a reasonable body of professional opinion...
should not be judged negligent.
29
Court not obliged to find a professional not liable for negligence because...
other experts in the same field have testified that his actions were correct.
30
Defendant exercising a particular skill, expected to do so to the standard...
of a reasonable person at the same level within that field.
31
The court will take into account 4 factors when deciding the standard of care to be expected.
* Magnitude of risk
* Cost and practicability to prevent the risk
* Common practice in the relevant trade or profession
* Any potential benefits to society from the defendant’s activity that caused the risk.
32
Claimant must prove the breach of duty on...
the balance of probabilities.
33
The claimant can rely on two types of witnesses?
witnesses of fact
expert witnesses
34
Event where there are no witnesses AND insufficient facts to prove negligence,
claimant can seek to rely on the following to prove negligence:
(2 elements)
Res Ipsa Loquitor
The Civil Evidence Act 1958
35
What does Res Ipsa Loquitor do to prove negligence?
and what must the court find for this to apply?
raises a prima facie case of negligence against the defendant.
Accident must be of a kind which doesn’t normally happen without negligence.
Cause of the accident must have been under the defendant’s control.
36
When is The Civil Evidence Act 1958 used?
defendant who has committed a criminal offence, presumed to have committed that offence in any subsequent civil proceedings.
37
What must be proved for the chain of causation (factual and legal) between the claimant and the defendant?
the defendant’s breach of duty actually caused the damage by the claimant,
and that the damage suffered was not too remote from the breach.
38
But for the defendant’s breach of duty, would the damage OR harm to the claimant have happened?
If yes...
If no...
If yes, causation not been established AND there is no liability in negligence.
If not, causation has been established.
39
What must the claimant show for multiple causes?
and what doesn't need to be shown.
that the defendant’s breach materially contributed to the damage.
Doesn’t need to show that the defendant’s breach was the ONLY cause of the damage.
40
Actions of a third party can break the chain of causation if...
the third party acted intentionally OR recklessly,
Or if it’s not a foreseeable consequence of the defendant’s negligence.
41
Intervening act gives rise to a liability for negligence.
correct?
no
42
What is an intervening act?
and what will the courts look to see?
something that the claimant does.
courts will look to see if it’s fair to hold them responsible for the damage caused by that act.
43
Intervening act will be assessed to see if it’s...
reasonable.
44
If chain of causation is broken...
defendant only liable for damage up until the second event by the claimant.
45
What must the claimant prove regarding remoteness?
the damage wasn’t too remote from the defendant’s breach.
46
Test in negligence is...
and what is it?
reasonable foreseeability
defendant will be liable for damage which was reasonably foreseeable at the time when the defendant breached their duty.
47
so long as the type of damage is reasonably foreseeable the defendant is liable, EVEN IF...
the way it occurred wasn’t.
48
Egg Shell Rule?
defendant liable for the full extent of harm EVEN IF the extent of the harm wasn’t foreseeable,
due to some weakness in the claimant.
49
Main remedy in tort for PI or death claims?
payment of damages
50
Damages are...
AND are intended to...
compensatory
restore to the claimant what he’s lost.
51
General Damages?
presumed to result from the tort such as pain and suffering from the PI and loss of future earnings.
52
Special Damages?
don’t naturally arise from the tort
BUT must be listed in court pleadings AND proved in court such as specific expense as a result of the injury.
53
What is the purpose of measure of damages?
and what steps will the courts take to avoid...
put the claimant in the position they would’ve been if the tort hadn’t been committed.
Where the payment of damages can’t restore the claimant’s position,
the purpose of damages is compensatory.
overcompensation
54
Mitigation of loss?
claimant must take all reasonable steps to keep the losses that he is claiming to a minimum.
55
One Action Rule?
award of damages must cover both losses suffered up to trial and losses the claimant is expected to suffer in the future.
56
When can the claimant not ask the court to revisit the award of damages?
when his position later worsens.
57
Pecuniary damages?
and what will this consist of?
losses which are mathematically calculatable in money terms.
Compensate for actual financial loss.
special damages AND general damages for future loss AND any post trial settlement.
58
Non-pecuniary damages?
Examples?
and which two ways will it be determined by?
losses which aren’t mathematically calculatable in money terms AND cover other types of loss OR damage
(e.g., pain and suffering, stress, and loss of amenity).
using the Judicial College Guidelines and previous case law etc.
59
Three facts about Damages on Death Under the Law Reform (Miscellaneous Provisions) Act 1934:
Allows existing cause of action to continue after death.
Claim by the claimant survives for the benefit of their estate.
Also, a claim against the defendant survives against their estate.
60
3 facts regarding the deceased claimant?
Claim for loss will end at the date of death.
The claim is brought by the estate.
Damages awarded to estate.
61
Damages – non-pecuniary losses
Examples:
Pain and suffering
Loss of amenity
62
Damages – pecuniary losses
Examples:
Damage to property
Medical and other expenses (up to death)
Loss of income (up to death)
Cost of funeral (if paid by estate).
63
Three facts about Damages on death under the Fatal Accidents Act 1976:
Allows those who are financially dependent on the deceased to have a benefit of a claim against the wrongdoer,
provided that the deceased himself would have a claim if he hadn’t died.
Creates a new cause of action BUT dependent on the original cause of action.
Dependents include a spouse, civil partner/cohabitee, children, parents etc.
64
2 elements regarding the dependant's claim?
Claim is dependent on being able to show that the deceased would’ve been able to bring a claim themselves (the original cause of action).
Any contributory negligence by the deceased regarding his death will be taken into account.
65
Damages – loss of support:
Reasonable expectation of support by...
deceased for dependants (on statutory list) AND financially dependent on him.
66
Damages – bereavement:
Lump sum payable to?
cost of funeral is paid by a...
spouses and parents of a minor who has never married (single award, must be shared).
dependent.
67
What remedies is the tort of negligence for?
physical AND property damage
68
Difficult to recover compensation for...
pure economic loss
69
General rule -
no duty of care to a claimant not to cause
pure economic loss
70
Examples of pure economic losses that aren’t recoverable include:
(4 elements)
* Economic loss caused by acquiring a defective item of property.
* Economic loss unconnected to physical damage to the claimant’s person/property.
* Economic loss caused by damage to the property of a third party.
* Economic loss where there is no physical damage caused by actions OR statements.
71
Negligent misstatement provides a major exception to the exclusions regarding...
pure economic loss
AND
a duty of care will be imposed when the Hedley Byrne v Heller special relationship is established.
72
4 elements of the Hedley Byrne v Heller special relationship
*Special relationship between the parties.
*Voluntary assumption of responsibility by the defendant.
*Reliance on that advice by the claimant
*Reasonable to rely on that advice.
73
Any disclaimer attached to a negligent misstatement made under the Hedley Byrne special relationship would be subject to...
the test of fairness under the CRA 2015.
74
Only claims for a... will be allowed.
medically recognised psychiatric illness
75
Claims for... will not be allowed.
grief, sorrow AND depravation
76
The psychiatric harm MUST be caused by:
* Sudden shock.
AND be either:
* Medically recognised psychiatric illness
OR
* Shock induced physical condition (e.g., heart attack)
77
Primary victim?
and they are owed a duty of care not to cause...
actually involved in the incident by being in the actual area of danger OR reasonably believed he was in danger.
psychiatric harm to them provided the risk of physical injury was foreseeable.
78
Secondary victim?
must suffer...
not involved in the incident in some way.
psychiatric harm
79
secondary victims must meet the requirements of the...
Alcock control mechanisms
80
The 4 elements of the Alcock control mechanisms:
* Foreseeability of psychiatric harm – must show that the psychiatric injury was foreseeable consequence of defendant’s negligence.
* Proximity of relationship – for example (child and parent, husband, and wife) OR
prove relationship of close love and affection existed.
* Proximity in time and space – must be present at the accident OR its immediate aftermath.
* Proximity of perception – must see or hear the accident OR its immediate aftermath with their own senses.
81
Employer owes an employee a duty of care to reasonable care of its...
employee’s safety while at work.
82
Duty to take reasonable care doesn't mean to...
eliminate all potential risks
83
Does the special qualities of the individual need to be considered in Employers' primary liability.
yes
84
take reasonable steps to provide -
competent staff?
duty arises where employer knows OR ought to know about the risk a worker poses to his colleagues.
Harm could be physical OR psychological.
Creates an obligation on employer to carefully select, train, supervise AND (if necessary), dismiss staff.
85
take reasonable steps to provide - Adequate materials such as, equipment and machinery?
includes providing protective devices, clothing, AND maintaining of equipment to a safe standard.
86
take reasonable steps to provide -Proper system of work and supervision?
employer must devise a safe system of work AND ensure compliance by training, supervision, AND monitoring.
87
take reasonable steps to provide - Safe place of work?
employer must take reasonable steps to ensure a safe system of work BUT it doesn’t mean every foreseeable risk MUST be eliminated if it would be unreasonably onerous.
88
What is consent AKA volenti?
voluntary assumption of risk.
89
Consent absolves defendant from legal consequences of any harm OR damage on ground that...
claimant voluntarily assumed risk involved.
90
Consent prevents claimant from?
recovering at all from the defendant.
complete defence.
91
Two requirements for consent to succeed as a defence is:
* Claimant’s knowledge of risk – claimant must have full knowledge of BOTH nature and extent of the risk.
Mere knowledge of risks exists not sufficient.
AND
* Claimant’s consent – defendant must prove claimant freely consented to risk of injury.
Knowledge of risk is NOT consent.
92
Contributory negligence?
claimant partly to blame for damage OR its extent.
Partial defence
93
If contributory negligence is successful claimant’s damages award reduced by court by:
(2 elements)
* Calculating full amount of damages which would have been payable had it not been for the contributory negligence
AND
* Reducing the award regarding contributory negligence.
94
Requirement for the contributory negligence as a defence is:
(2 elements)
* Carelessness on claimant’s part – claimant failed to take reasonable care for their own safety
AND
* Carelessness contributed to claimant’s damage – did claimant’s carelessness contribute to damage suffered by claimant?
95
Court’s will not assist a claimant to obtain damages who has been injured by an act of...
complete defence?
illegal conduct.
yes
96
The requirement for illegality as a defence to a claim is:
(2 elements)
* Close connection – can defendant establish that there is a close connection between illegal activity of the claimant AND injury claimant has suffered?
AND
* Public policy – contrary to public policy to allow the claimant a remedy?
97
Necessity raised as defence justifying course of action in response to...
threat of greater harm.
98
How is necessity construed and applied?
Strictly construed
AND narrowly applied.
99
Defence of necessity to trespass to the person may be invoked where...
example?
where the defendant acts for purpose of protecting claimant’s own health OR safety.
force feeding prisoner
100
Defence of necessity to trespass land can be invoked where...
no reasonable alternative course of action open to the defendant.
101
Meaning of vicarious liability
employer held liable to third party for tort committed by their employee.
Form of joint liability.
102
vicarious liability imposes liability without need to prove...
fault on part of employer
103
The three-stage test on whether vicarious liability should be applied.
* Tortfeasor employee of defendant?
Distinguish employees and independent contractors.
Must look at circumstances such as:
Who had control over the work?
OR
Terms of contract
OR
Whether tortfeasor in business on his own account OR did they receive wage from employer?
104
Certain situations, the employer can be held jointly liable with independent contractor IF...
employer owes non-delegable duty to claimant AND independent contractor’s act puts them in breach of that duty.
105
Agency worker or loan of an employee, MUST be determined which of the two organisations is employer...
vicariously liable
106
Did employee commit a tort?
Must establish that they committed a tort such as negligence.
107
Tort committed in course of employment?
(5 situations)
Situations include:
Wrongful act authorised by employer will be in course of employment
OR
Authorised act committed in wrongful/unauthorised way will be in the course of employment
OR
Act expressly prohibited by employer BUT which furthered employer’s business will be in the course of business.
OR
Intentional tort – close connection between work the employee was employed to do AND the tort they commit.
Employer will be held vicariously liable IF it is fair and just.
OR
Employers not liable for acts done by employees which have nothing to do with their work, EVEN IF it’s in work time.
108
Tort hasn’t taken place OR there is no employment relationship?
Vicarious liability can’t be imposed on an employer
109
Occupiers of land owe a duty to people who come onto their land under the following Acts:
(2 acts)
* Occupiers’ Liability Act 1957
AND
* Occupiers’ Liability Act 1984
110
Occupier?
person who controls the land OR premises.
Doesn’t need to be the owner.
Whether person who exercises a sufficient degree of control to allow OR prevent others entering.
Control doesn’t need to be exclusive.
Can be more than one occupier of the same premises.
111
Acts apply to land, buildings AND other fixed OR immovable structures such as...
vessel, vehicle, OR aircraft.
112
Occupiers’ Liability Act 1957 - covers their duty to visitors
Visitor?
people expressly OR impliedly permission to be on the occupiers’ land.
Includes people who under the terms of a contract OR a right conferred by law.
People who use the right to roam under the Countryside and Rights of Way Act 2000 aren’t visitors.
113
Occupiers’ Liability Act 1957 -
Duty of Care?
take such care as is reasonable in the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted there.
114
Occupiers’ Liability Act 1957 -
Children?
occupier must be prepared for children to be less careful THAN adults.
Children are very young; occupiers are entitled to assume that responsibility for their safety lies with the parents the premises are reasonably safe for a child.
115
Occupiers’ Liability Act 1957 -
Skilled visitors?
occupier can expect that a person, in the exercise of his calling,
will appreciate AND guard against any special risks ordinarily incident to it.
116
Occupiers’ Liability Act 1957 -
Warnings?
occupier can use warnings to assist in discharging his duty of care provided they are adequate.
Warning given by the occupier MUST be sufficient to enable the visitor to be reasonably safe.
Warning should warn of the specific danger OR harm AND consider the type of visitor.
117
Occupiers’ Liability Act 1957 -
Independent contractors?
(includes two-stage test:
occupier who has engaged an independent contractor to carry on work on the premises won’t be liable for injury caused by the workmanship of the contractor if they had:
taken such steps as they REASONABLY ought in order to satisfy themselves THAT the contractor was competent
AND
such steps as they are REASONABLY ought in order to satisfy themselves that the work had been properly done.
118
Occupier’s Liability Act 1984 –
covers their duty to trespassers (non-visitors)
trespasser?
anyone who goes onto land WITHOUT permission,
occupier objects to OR doesn’t know of their presence.
119
Occupier’s Liability Act 1984 – Standard of duty of care?
duty to take care which is reasonable in the circumstances to see that trespassers DON’T suffer injury on the premises by reason of any danger due to the state of the premises OR
to things done OR omitted to be done on them.
120
Occupier’s Liability Act 1984 –
Duty of care applies where?
(three-stage test)
Aware of the danger OR has reasonable grounds to believe that it exists
AND
Knows OR has reason to believe that the trespasser is OR can come within the vicinity of the danger
AND
Risk is one which the occupier can reasonably be expected to offer protection from,
considering all the circumstances.
121
Occupier’s Liability Act 1984 – Warnings?
An Example?
Act provides that occupier discharges their duty by taking such steps as are REASONABLE in all the circumstances to give warning of the danger
OR discourage people from taking the risk.
General warnings aren’t enough.
Must be sufficiently clear to ensure the risk is obvious.
Warning will often be inadequate for children.
e.g., occupier should consider putting up a barrier which is too high for children to climb.
122
Defences under the Occupiers’ Liability Act 1957 -
Contributory negligence?
normal principles of contributory negligence apply.
123
Defences under the Occupiers’ Liability Act 1957 -
Consent?
no liability for risks WILLINGLY accepted by visitor.
Visitor won’t be deemed to have accepted a risk because occupier displays
‘enter at your own risk’ sign at the entrance of the premises.
The visitor MUST know of the precise risk AND that by their conduct they willingly accepted the risk.
124
Defences under the Occupiers’ Liability Act 1957 -
Use of warnings?
warnings won’t absolve occupier of liability
UNLESS in all the circumstances of the case warning was ENOUGH to enable the visitor to be reasonably safe.
125
Defences Under The Occupiers’ Liability Act 1984 -
Contributory negligence?
normal principles of contributory negligence will apply
126
Defences Under The Occupiers’ Liability Act 1984 -
Consent?
no liability for risks WILLINGLY accepted by visitor.
Visitor won’t be deemed to have accepted a risk because occupier displays
‘enter at your own risk’ sign at the entrance of the premises.
The visitor MUST know of the precise risk AND that by their conduct they willingly accepted the risk.
127
Defences Under The Occupiers’ Liability Act 1984 -
Use of warnings?
warning act as a defence IF reasonable steps are taken to warn the trespasser of the danger.
Don’t need to make non-visitor reasonably safe.
128
Exclusion of Liability under the Occupiers’ Liability Act 1957 -
(2 elements):
Occupier (private occupiers) can restrict, modify OR exclude liability
Business occupier
129
Occupier (private occupiers) can restrict, modify OR exclude liability subject to:
(2 elements)
* Reasonable steps MUST have been taken to bring the exclusion notice to the claimant’s attention BEFORE tort was committed.
AND
* Wording of the notice MUST cover the loss suffered by the claimant.
130
Business occupier, any such exclusion clause is subject to:
(2 elements)
* UCTA 1977 – prevents a business occupier from excluding from death OR PI caused by negligence to non-consumers.
Occupier is acting in the course of business, OR from premises used for business purposes.
Liability for damage only be excluded IF it’s reasonable.
AND
* CRA 2015 – where the premises are used for the purposes of a consumer transaction.
Trader can’t exclude OR restrict liability for death OR PI resulting from negligence.
131
Private occupiers aren’t subject to?
UCTA 1977 OR CRA 2015.
132
Exclusion of Liability under the Occupiers’ Liability Act 1984?
This Act is silent as to whether OR not liability can be excluded
AND unclear whether duty can be excluded.
