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Paper 2 Section B Flashcards

(52 cards)

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1
Q

Two types of Occupiers Liability

Occupiers Liability

A

Lawful Visitors (OLA 1957)
Tresspassers (OLA 1984)

Occupiers Liability

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2
Q

Define Lawful Visitors - OLA 1957

OLA 1957 - Lawful Visitors

A

Section 2(2) states that “The occupier of a premises must make sure that a visitor is reasonably safe while on their premises”

OLA 1957 - Lawful Visitors

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3
Q

Define Occupier

OLA 1957 - Lawful Visitors

A

Anyone with control over the property (Wheat v E Lacon - can have more than one occupier) (Harris v Birkenhead - the council can be an occupier)

OLA 1957 - Lawful Visitors

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4
Q

Define Premises

OLA 1957 - Lawful Visitors

A

S1(3) - ‘Fixed or moveable structure including vehicles, vessels and aircrafts’** (London Graving Dock v Horton - ship in dry dock), (Haseldine v Daw - lift)**

OLA 1957 - Lawful Visitors

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5
Q

Define Lawful Visitor

OLA 1957 - Lawful Visitors

A

Someone who is invited or has contractual or statutory permission to be there

OLA 1957 - Lawful Visitors

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6
Q

Define Duty of Care

OLA 1957 - Lawful Visitors

A

‘Occupier must ensure that the claimant is kept reasonably safe in using the premises’ (Laverton v Kiapasha Takeaway - took reasonable care with wet floor) (Rochester v Debell - reasonable safe even if visible minor defects which carry a froseeable risk of causing accident + injury)

OLA 1957 - Lawful Visitors

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7
Q

Loss?

OLA 1957 - Lawful Visitors

A

They can claim for personal injury and property damage

OLA 1957 - Lawful Visitors

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8
Q

s2(3)(a) Duty of Care for Children

OLA 1957 - Lawful Visitors

A

‘Occupier must be prepared for children to be less careful than adults’ - needs to be made safer if there are any allurements (Glasgow Corporation v Taylor - poison berries killed 7 year old - no fence even though council aware of it), (Jolley v SBC - abandoned boat - two boys seriously injured), (Phipps v Rochester Corporation - not liable as parents are expected to not allow children in unsafe places)

OLA 1957 - Lawful Visitors

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9
Q

s2(3)(b) Tradespeople

OLA 1957 - Lawful Visitors

A

Take care of themselves (Roles v Nathan - died due to carbon monoxide - occupier not liable as gave them warning)

OLA 1957 - Lawful Visitors

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10
Q

s2(3)(c) Liability for independent contractors

OLA 1957 - Lawful Visitors

A

Occupier can avoid liabilityif the injury/damage is to the claimant is caused by the work of a contractor.
Contractor will be liable if…
a) ** Competent contractor (Bottomley v Todmorden Cricket Club - had no insurance so cricket club was liable)
b) ** Specialist work (Haseldine v Daw - negligent repair of lift)
c) Somone has inspected the work to make sure they think its done correctly (Woodward - icy steps - occupier liable as didnt take reasonable steps )

OLA 1957 - Lawful Visitors

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11
Q

What must the occupier do?

OLA 1984 - Trespassers

A

Occupier must make sure that a trespasser is protected against any danger coming from the state of their premises.

OLA 1984 - Trespassers

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12
Q

Duty Of Care

OLA 1984 - Trespassers

A

Occupier owes a duty of care to a trespasser if they…
a)are aware of the danger (Rhind v Astbury Water Park - unaware of submerged fibre glass that injured C)
b) believes that another person may come within the vicinity of the danger (Donoghue v Folkstone - not liable as jumping into a harbour is not expected in middle of winter), (Higgs v Foster - not liable although they thought pit was a potential danger, didn’t expecrs officer to be there) and they might be expected to offer some protection against the risk (Tomlinson v Congleton BC - warning signs posted)

OLA 1984 - Trespassers

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13
Q

Obvious Dangers

OLA 1984 - Trespassers

A

Occupier doesn’t have to protect against obvious dangers (Ratcliff v McConell - not require to warn adult trespassers of risk - no hidden danger as obvious swimming pools range in depth)

OLA 1984 - Trespassers

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14
Q

Child Trespassers

OLA 1984 - Trespassers

A

Treated the same as adult trespassers (Keown v Coventry Healthcare NHS Trust - fell from fire escape showing off to friends - not liable as no danger due to state of premises it was what boy was doing)

OLA 1984 - Trespassers

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15
Q

Loss?

OLA 1984 - Trespassers

A

Only claim for personal injury

OLA 1984 - Trespassers

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16
Q

Defences

Occupiers Liability

A

Occupiers can avoid liability if they have put up warning signs (Westwood v Post Office - not liable as warning sign was sufficient) or if visitor has actually partially contributed to their own injury/damage (contributory negligence)

Occupiers Liability

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17
Q

What is Private Nuisance

Private Nuisance

A

‘An unlawful interference with a person’s use or enjoyment of land coming from the unreasonable use of neighbouring land.’

Private Nuisance

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18
Q

Claimant

Private Nuisance

A

Must have propietary interest in the land (Hunter V Canary Wharf - building work affected television recption but only C with interest in land not family members could bring a claim)

Private Nuisance

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19
Q

Defendant

Private Nuisance

A

Anyone causing, allowing or failing to deal with nuisance (no propietary interest needed) (Sedleigh - Dunfield v O’Callaghan - known risk of flooding)

Private Nuisance

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20
Q

Interference

Private Nuisance

A

Can be direct/indirect - Leakey v National Trust - slippage of earth

Private Nuisance

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21
Q

Unreasonable?
5 Factors

Private Nuisance

Study These Flashcards
A
  1. Local area - Sturges v Bridgman - vibrations in room - nusiance only begun when roomwas built so defence failed)
  2. Time of day and duration - Crown River Cruises (river barge on fire by firework display lastin 20 mins)
  3. Malicious Defendant - Hollywood Silver Fox Farm v Emmett, Christie v Davey (banged on walls with trays because music teacher’s lessons were noisy)
  4. Sensitive Claimant - **Network Rail v Morris (abnormally sensitive to use amplified guitars **
  5. Social benefit - Miller v Jackson (cricket balls in garden but due to high fence social benefit overrode private)
22
Q

Defences

Private Nuisance

Study These Flashcards
A
  • Consent (Volenti)
  • Prescription (20 years with no complaints) **Sturges v Bridgman **
  • Statutoy authority - Allen v Gulf Oil (nuisance was the inevitable consequence of operating the authorised refinery)
  • Planning permission - Coventry v Lawrence (bought house in 2006, stadium 864m away granted pp in 1975 for stadium to be used for speedway amd stock cars etc

Private Nuisance

23
Q

Remedies

Private Nuisance

Study These Flashcards
A
  • Injunctions (court forces the nuisance to stop - most common outcome)
  • Damages (especially if planning permission is in place - may still be a nuisance but would be reluctant to shut it down with an injunction)
  • Abatement (permission to enter neighbour’s land and deal with nuisance)

Private Nuisance

24
Q

What is the test for negligence?

Negligence

Study These Flashcards
A
  1. Does D owe C a duty of care?
  2. Has D breachedthe duty of care?
  3. Does the breach cause reasonably forseeable damage?

Negligence

25
Duty of Care | Negligence
a) Neighbour principle - **Donoghue v Stevenson** b) Is a DOC already established in precedent? - **Robinson**(only use C v D test in new and novel situations) c) Caparo v Dickman test **if needed** | Negligence
26
Caparo v Dickman Test | Negligence
1. Damage reasonably forseeable? - **Kent v Griffiths, Jolley v Sutton LBC, Topp v London Country Bus** 2. Proximate relationship - **Bourhill v Young, McLoughlin v O'Brien** 3. Fair, just and reasonable - **Hill v Chief Constable of West Yorkshire, Watt v Hertfordshire CC** | Negligence
27
Breach of Duty - Objective standard | Negligence
Broken based on an objective standard of care (the reasonable person) 1. Professionals - **Bolam v Friern Barnet Hospital ** 2. Learners - **Nettleship v Weston** 3. Children - **Mullin v Richards** | Negligence
28
Breach of Duty - 6 risks | Negligence
1. Special characteristics - **Paris v Stepney Borough Council ** 2. Small risk (Less precaution) - **Bolton V Stone** 3. Large risk (More precaution) - **Haley v London Electricty Board ** 4. Appropriate precautions - **Latimer v AEC Ltd** 5. Known risks - **Roe v Minister of Health** 6. Public benefit - **Watt v Hertfordshire CC** | Negligence
29
Damage - Causation | Negligence
* Factual (breach caused the damage) - **Barnett v Chelsea and Kensington Hospital Management Committee ** * Legal - no intervening events | Negligence
30
Damage - Remoteness of damage | Negligence
* Must be reasonably forseeable - **The Wagon Mound** * Type of injury - **Hughes v Lord Advocate, Bradford v Robinsons Rentals** * Egg shell skull - **Smith v Leech Brain** | Negligence
31
Claimant | Rylands v Fletcher
Person who can take an action has to have an interest in the land affected **(Read v Lyons)** | Rylands V Fletcher
32
Defendant | Rylands v Fletcher
D = owner/occupier of the land who satisfies all four aspects of the tort and must have some control over the land. | Rylands v Fletcher
33
a) Bringing onto the land | Rylands v Fletcher
D must bring something onto the land that is not naturally present e.g. not weeds **(Giles v Walker** or rainwater that accumulated naturally **(Ellison v MOD)** | Rylands V Fletcher
34
b) The thing is likely to do mishief if it escapes | Rylands v Fletcher
Escape doesn't have to be forseeable, damage must be e.g. gas **(Transco)**, a 'chair-o-plane' **(Hale v Jennings Bros)** or flammable materials **(LMS v Styrene Packaging) ** Has to be the **thing stored** that escapes not just a fire spreading **(Stannard v Gore)** | Rylands v Fletcher
35
c) Non-natural use of land | Rylands V Fletcher
**Rickards v Lothian** - "some special use bringing with it **increased danger** to others, and **not merely by the ordinary use ** of land or such a use as is proper for the general **benefit** of the community" e.g. a domestic water supply even if man made is ‘ordinary’ and therefore not non-natural **(Rickards v Lothian)** | Rylands v Fletcher
36
2 other points for c) non-natural use of land | Rylands v Fletcher
* If something benefits the community it may not be non-natural** (British Celanese v AH Hunt Ltd)** * If something is particularly dangerous then it is more likely to be non-natural - **Cambridge Water Co v Eastern Counties Leather** (chemicals polluting water) | Rylands v Fletcher
37
d) Escapes and causes forseeable damage | Rylands v Fletcher
Damage must be forseeable - e.g. **Cambridge Water Co -**(millions of pounds spent by the water company to move their business elsewehere was not forseeable) | Rylands v Fletcher
38
Defences | Rylands v Fletcher
* Consent (Volenti) * Contributory negligence * Statutory authority * Act of a stranger - **Perry v Kendricks Transport Ltd (1956)** * Act of God - **Nichols v Marsland (1876)** | Rylands v Fletcher
39
Vicarious Liability | Vicarious Liability
An employer is liale if a tort is commiteed by an employee in the course of their employment | Vicarious Liability
40
Employee | Vicarious Liability
3 tests - clear employment | Vicarious Liability
41
Control Test | Vicarious Liability
Independent contractor is someone who is told what to do, whereas an employee is also told how to do it - **Walker v Crystal Palace FC, Mersey Docks v Coggins** | Vicarious Liability
42
Integrated Test | Vicarious Liability
More closely a worker is involved with the core business of the employment the more likely he is to be an employee - **Cox v Ministry of Justice** | Vicarious Liability
43
Multiple/Economic Reality Test | Vicarious Liability
Considers various factors which may indicate employment/self-employment **(Ready Mixed Concrete v Minister of Pensions** Factors considered: * Ownership of tools/equipment * Method of payment * Tax and pension deducted from wages * Description of role * Independence and flexibilty | Vicarious Liability
44
'Akin to Employment' - Christian Brothers Test | Vicarious Liability
1. Means of compensation (e.g. insurance) 2. Tort was committed as a result of activity undertaken by the tortfeasor on behalf of D 3. Tortfeasor's activity is likely to be part of the D's business activity 4. D has created risk of the tort being committed by the tortfeasor by employing them 5. D maintains a degree of control over the tortfeasor | Vicarious Liability
45
'Akin to Employment' Cases | Vicarious Liability
* E v English Province * Catholic Child Welfare Society * Cox v MOJ * Barclays Bank v Various * Muhamed v Morrisons | Vicarious Liability
46
Extra 'Akin to employment' | Vicarious Liability
* Can be multiple employers - **Viasystems v Thermal Transfer Ltd** * If tortfeasor is deemed to be an **independent contractor** then the employer cannot be vicariously liable - **Barclays Bank v Various Claimants, Morrisons v Various Claimants **
47
Connected to Employment | Vicarious Liability
Employee must commit the wrongdoing during employment | Vicarious Liability
48
Connected to employment - Acting against orders | Vicarious Liability
Employee doing their job but acts against orders in the way they do it, employer can be liable (depends how explicitly forbidden) - **Limpus v London General, Rose v Plenty, Twine v Beans Express** | Vicarious Liability
49
Connected to employment - Committing a criminal act | Vicarious Liability
Employee commits a crime during his work, the employer can be liable to victim of ther crime if there is a **close connection** between the crime + what the employee was employed to do - **Lister v Hesley Hall, N v Chief Constable of Manchester Police, Mattis v Pollock** | Vicarious Liability
50
Connected to employment - Negligent act | Vicarious Liability
If employee does a job badly, the eomployer can be liabke for his actions which cause injury to another - **Century Insurance v NI Road Transport** | Vicarious Liability
51
Connected to employment - Acting on a 'frolic' of their own | Vicarious Liability
Employee causes a tort while doing something outside the area/time of their work, the employer will not be liable - **Smith v Stages, Hilton v Thomas Burton** | Vicarious Liabilitty
52
Connection to employment - Acting outside employment | Vicarious Liability
Employee commits a tort by doing something outside his employment, the employer will not be liable - **Beard v London General Omnibus ** | Vicarious Liability

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