Obligations 1A Sec B

Question 1

What does ‘damage’ cover?

Answer 1

CPA 1987 s5(1) Death or personal injury or any loss of or damage to property.

Question 2

What is a product under CPA 1987?

Answer 2

s1(2c) ‘Any goods, or electricity and includes a product which includes comprised in another product’. Anything that an end-user uses is a product.

Question 3

Who is liable under s2 of the CPA?

Answer 3

Producers - anyone who manufactures the product

Importers - those who bring it to the UK

Branders - trademark etc…

Retailers…

Question 4

When are retailers liable under s2 of the CPA 1987?

Answer 4

If the victim requests them to identify those identified in s2 and they do not respond in a reasonable time then they can be liable for defective products.

Question 5

What is a ‘defect’ under CPA 1987?

Answer 5

s3 - “if there is a defect in a product for the purposes of this part if the safety of the product is not such as persons generally are entitled to expect”

Question 6

The court’s judgement on what is a defect?

Answer 6

The court will look at the consumer’s expectation and state whether their product expectations are too high or low, it is an evaluated judgement from the courts, not about the popular opinion of the court from the public.

Question 7

common law authority for s3 claims, what is expected of a product?

Answer 7

A v National Blood Authority 2001 (for medical defects)

Abouxaid v Mothercare (pushchair strap)

Question 8

What must you prove in terms of a s3 defect and its standards?

Answer 8

Probable Causation, the pursuer must demonstrate causation

Ide v ATB Sales Ltd & Anor 2008

Question 9

What are the six defences under the CPA 1987?

Answer 9

S4

s4(1a)You manufactured the product inline with the product safety requirements

Under s4(1b) that they didn’t supply the product to the person

that the defect did not exist in the product at the relevant time s4(1d)

s4(1e) scientific discovery clause

s4(1f) subsequent products in the product which have defects.

Question 10

Limitations in the CPA 1987?

Answer 10

s5 (2) can’t claim on the product damage from defect.

s5 (3) property provided by a business is not covered (business is not a consumer)

s5 (4) damage must be more than £275 to property

Question 11

What act to refer to for Occupier’s liability?

Answer 11

Occupier’s liability (s) Act 1960

Question 12

What are premises under the Occupier’s liability (s) Act 1960?

Answer 12

• s 1 (3) says, “…any fixed or moveable structure, including any vessel, vehicle or aircraft…” or something like a tree, which is a fixed structure.

Question 13

Who is an Occupier?

Answer 13

Occupier’s liability (s) Act 1960?

s1 (1) “person occupying or having control of land or other premises.”

Physical residence is not required to be an occupier (Dawson v Page 2012 - holiday, builders, owner sued.)

Question 14

Are Landlords responsible for their residences when they have tenants?

Answer 14

Landlords are responsible for their residences and are prohibited from contracting out of their responsibilities. s3(1)

Question 15

Who is owed a duty under Occupier Liability?

Answer 15

Persons entering on the premises 1 (1)

All visitors, including trespassers

property that people use to enter your property (cars etc…)

Question 16

What is the standard of care for Occupier’s liability?

Answer 16

“Be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.” s2(1)

Duty is to take care, but not ensure no injury (M’Glone v British Railways Board 1966)

Question 17

How can liability be avoided for Occupier Liability?

Answer 17

s 16 (1), Unfair Contract Terms Act 1977 (you can’t restrict for PI or death but yes for property) Often places will claim they have no liability for death, personal injury, etc…

you cannot exclude liability from the 1960 act, however, if they have taken reasonable steps then that is different.

Also refer to Titchener v British Railways Board, have respect of the risks associated with the property.

Question 18

General duty of employer under common law authority

Answer 18

Stokes v Guest

1. Conduct of the reasonable and prudent employer
2. recognised and general practice which must be followed in similar practices. (Without mishap)
3. Unless in newer knowledge where it is bad, they must follow.
4. must be on top of new knowledge
5. if they have greater knowledge of risks, they must use it and stay above or more the general expectations.
6. must weigh up the risks of his actions and workplace standards and what is probable for injury.
7. must balance 6. against practical precautions.

Question 18

Statutory authority for unfair contracting out

Answer 18

Unfair contract terms 1977 s 16

… shall be void in any case where such exclusion or restriction is in respect of death or personal injury.

Question 19

delegation for employers liability authority

Answer 19

Wilsons and Clyde Coal co ltd 1938

“although the negligence be the negligence of another servant acting under the master’s authority”

IH

Question 20

Non-delegable DoCs in employer’s liability legal test and authority…

Answer 20

Woodland v Essex County Council 2013

1. it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant.
2. Protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury.”
3. the duty itself remains the defendant’s. its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own

Question 21

Safe Machinery authority

Answer 21

Davie v New Merton Board Mills Ltd and Another Respondents 1959

Employers argued they had done everything to maintain a safe environment for their employee here. They had taken every precaution and since the machine only broke the first time, they weren’t reliable.

Statutory position…

The Employer’s Liability (defective equipment) act 1969

1. Suffered an injury
2. In the course of employment
3. Where defective equipment provided by his employer
4. For the purposes of the employer’s business
5. The defect is attributable wholly or partly to the fault of a third party
6. the injury shall be deemed to be also attributable to negligence on the part of the employer

Question 22

Safe system of working standard of care…

Answer 22

McGregor v AAH Pharmaceuticals Ltd 1996

Workplace must not incentivise unsafe working, regardless of how it looks on paper, it must actively be safe…

Also refer to Paris v Stepney Borough Council… (worker with one good eye, not supplied goggles, went blind)

Question 23

Competent Employees authority…

Answer 23

Waters v Commissioner of Police for the Metropolis

If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee.

foreseeability as well.

Question 24

Workplace stress requirement to be recognised.

Answer 24

must be a recognised psychiatric condition caused by the demands of the workplace.

its the relationship with the job, not the details of the job.

Rory Keen v Tayside Contracts 2003

Question 25

Foreseeability authority for employer’s liability…

Answer 25

Hatton v Sunderland 2002

Knowledge of a particular vulnerability

occupations that are intrinsically stressful

nature and extent of the work being done

signs from the employee himself.

Question 26

Causation requirements and authority for employer’s liability

Answer 26

Hatton v Sunderland

*Pursuer must prove causation

*May be various possible causes

*Employee “does not have to show that the breach of duty was the whole cause of his ill-health: it is enough to show that it made a material contribution”

Question 27

Barber v Sommerset takeaways which will be useful requirements to establish mental harm for employers liability…

Answer 27

an employer is entitled to assume that the standard pressures of the job can be withstood unless explicitly mentioned otherwise due to vulnerabilities.

Employer is entitled to see their employees at face value, unless there is a good reason to assume the contrary.

claimant must prove suffering from the breach of duty - causation.

Question 28

General rule of thumb for mental harm authority…

Answer 28

Flood v UofG 2010

As soon as the employer becomes aware that the usual stress of the job is becoming too much for the employee, they are on notice, that there is the potential for injury, but until they are given something to raise this alarm, they are entitled to expect employees to discharge their duties and withstand occupational stress.

Question 29

Contract authority for professional’s liability…

Answer 29

Wylie v Grosset [2011] CSOH 89 para 21 (Drugs trial) ($) (Sued under contract rather than delict) (Could not sue under delict as they would not have been able to establish a breach of the duty of care, but they tried to establish a breach of a promise made by medical professionals)

Question 30

Delict authority for suing under professional liability …

Answer 30

Henderson v Merrett Syndicates Ltd [1994] UKHL 5 p 15-17 (Professionals may be sued by third parties rather other than clients, and therefore rely on a DOC as there is no contract; also may sue under contact as the delictual claim is time-barred; and there is the potential for higher damages under the law of delict c/f contract) ($)

Question 31

Definition of a ‘professional’

Answer 31

“Someone part of a collective organisation that sets standards and professional codes”. ICL Tech Ltd & others v Johnston Oils ltd 2012)

Question 32

Three steps to establish for professional liability…

Answer 32

1. that there is a usual and normal practice;
2. that the defender did not adopt that practice; and
3. that the course the doctor adopted was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.

Maynard v West Midlands regional Health Authority 1984

Question 33

Who decides what is professionally liable?

Answer 33

The court - Bolitho v City and Hackney Health Authority 1998

despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence

in some cases it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible

But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”

Question 34

What are the courts asking when it comes to professional opinion evidence?

Answer 34

Stevens v Yorkhill NHS Trust 2006

• Professional opinion has overlooked a clear precaution to avoid adverse outcome?
• Professional opinion strikes balance between a conflict of resources and duty?
• Professional opinion fails to sufficiently weight up the risks and benefit to patient?
• Professional opinion contravenes public opinion and expectations?

Question 35

Diagnosis, advice and treatment authority…

Answer 35

Montgomery v Lanarkshire health board 2015

a doctor needs to take reasonable care to ensure that the consent of the patient is fully informed which does mean telling them about otherwise low risks.

disagrees with Hunter v Hanley - The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care

Question 36

Overall points for professional’s liability…

Answer 36

Is your challenge contractual or delictual?

NHS generally delict as there will be no contract.

Two key questions: (1) Is the person a professional according to the law of delict? (2) What is the standard of care?

Remember that you still need to establish causation and loss before you will succeed.

Question 37

Authority for solicitor liabilities in third party issues (wills etc…)

Answer 37

White v Jones 1995

the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably perceive) may, as a result of the solicitor’s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor

Question 38

Do solicitors and advocates have immunity in criminal proceedings in Scotland?

Answer 38

YES

Trevor Rush McCafferty Wright v Paton Farrell and Robert Paton 2006

Question 39

Immunity in civil proceedings of advocate and solicitor?

Answer 39

NO/MAYBE, it is very difficult to prove causation and under Rondel v Woolsey, a barrister and solicitor ought to be able to carry out their duty fearlessly and independently.