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Law > Paper 2 Section B > Flashcards

Paper 2 Section B Flashcards

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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, Harris v Birkenhead)

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 and vessels’** (London Graving Dock v Horton), (Hartwell v Grayson), (Haseldine v Daw)

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, Rochester v Debell)

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

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), (Jolley v SBC), (Phipps)

OLA 1957 - Lawful Visitors

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9
Q

Tradespeople

OLA 1957 - Lawful Visitors

A

Take care of themselves (Roles v Nathan)

OLA 1957 - Lawful Visitors

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10
Q

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)
b) ** Specialist work (Haseldine v Daw)
c) Somone has inspected the work to make sure they think its done correctly (Woodward)

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)
b) believes that another person may come within the vicinity of the danger (Donoghue v Folkstone), (Higgs v Foster) and they might be expected to offer some protection against the risk (Tomlinson v Congleton BC)

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)

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)

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) 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)

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)

Private Nuisance

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20
Q

Interference

Private Nuisance

A

Can be direct/indirect - Leakey v National Trust

Private Nuisance

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21
Q

Unreasonable?
5 Factors

Private Nuisance

A
  1. Local area - Sturges v Bridgman
  2. Time of day and duration - Crown River Cruises
  3. Malicious Defendant - Hollywood Silver Fox Farm v Emmett, Christie v Davey
  4. Sensitive Claimant - Network Rail v Morris, Robinson v Kilvert
  5. Social benefit - Miller v Jackson
22
Q

Defences

Private Nuisance

A
  • Consent (Volenti)
  • Prescription (20 years with no complaints) Sturges v Bridgman
  • Statutoy authority - Allen v Gulf Oil
  • Planning permission - Gillingham, Coventry v Lawrence

Private Nuisance

23
Q

Remedies

Private Nuisance

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

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
Q

Duty of Care

Negligence

A

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
Q

Caparo v Dickman Test

Negligence

A
  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
Q

Breach of Duty - Objective standard

Negligence

A

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
Q

Breach of Duty - 6 risks

Negligence

A
  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
Q

Damage - Causation

Negligence

A
  • Factual (breach caused the damage) - **Barnett v Chelsea and Kensington Hospital Management Committee **
  • Legal - no intervening events

Negligence

30
Q

Damage - Remoteness of damage

Negligence

A
  • 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
Q

Claimant

Rylands v Fletcher

A

Person who can take an action has to have an interest in the land affected (Read v Lyons)

Rylands V Fletcher

32
Q

Defendant

Rylands v Fletcher

A

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
Q

a) Bringing onto the land

Rylands v Fletcher

A

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
Q

b) The thing is likely to do mishief if it escapes

Rylands v Fletcher

A

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
Q

c) Non-natural use of land

Rylands V Fletcher

A

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
Q

2 other points for c) non-natural use of land

Rylands v Fletcher

A
  • 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
Q

d) Escapes and causes forseeable damage

Rylands v Fletcher

A

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
Q

Defences

Rylands v Fletcher

A
  • 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
Q

Vicarious Liability

Vicarious Liability

A

An employer is liale if a tort is commiteed by an employee in the course of their employment

Vicarious Liability

40
Q

Employee

Vicarious Liability

A

3 tests - clear employment

Vicarious Liability

41
Q

Control Test

Vicarious Liability

A

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
Q

Integrated Test

Vicarious Liability

A

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
Q

Multiple/Economic Reality Test

Vicarious Liability

A

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
Q

‘Akin to Employment’ - Christian Brothers Test

Vicarious Liability

A
  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
Q

‘Akin to Employment’ Cases

Vicarious Liability

A
  • E v English Province
  • Catholic Child Welfare Society
  • Cox v MOJ
  • Barclays Bank v Various
  • Muhamed v Morrisons

Vicarious Liability

46
Q

Extra ‘Akin to employment’

Vicarious Liability

A
  • 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
Q

Connected to Employment

Vicarious Liability

A

Employee must commit the wrongdoing during employment

Vicarious Liability

48
Q

Connected to employment - Acting against orders

Vicarious Liability

A

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
Q

Connected to employment - Committing a criminal act

Vicarious Liability

A

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
Q

Connected to employment - Negligent act

Vicarious Liability

A

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
Q

Connected to employment - Acting on a ‘frolic’ of their own

Vicarious Liability

A

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
Q

Connection to employment - Acting outside employment

Vicarious Liability

A

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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