Paper 2 Tort Flashcards
What is the burden of proof
On the balance of probibilities
How is negligence defined
Blyth v Birmingham ‘failing to do something or doing something the reasonable person would not do’
What is duty of care?
Donogue v Stevenson Neighbour test Caparo v Dickman Harm forseseeable- Kent v Griffiths Proximity- Bourhill v Young, Mcloughlin Fair, just and reasonable Hill v Chief
Breach of duty
Bolam reasonable person, man on the clapham omnibus Maurice 1. Competent professional 2. Body of opinion Mullin- Age Nettleship- Learner Rick factors Special characteristics Paris v Stepney Size of risk Bourhill v Young, Haley Appropriate precautions Latimer Unknown Roe Public benefit Day
Damage
Causation But For Barnett v Chelsea
Intervening remoteness of damage Wagon Mound
Foreseeable- Hughs, Bradford
Egg Shell Rule Leech Brain
Res Ispa ‘the thing speaks for itself’
St Katharine Docks
C has to show D was in control and accident would not have occured if not for negligence
Defences- contributory negligence
Law Reform Act 1945
Sayers 25% way tried to escape
Jayes 100% took guard off
Defences- Consent volenti
Stermer- understood risk
Smith- voluntarily undertaken
Hayes- no consent public duty
Sidway- not all risks need to be explained medical
What is an occupier and premises
Wheat v Lacon can be more than one
Harris v Birkenhead Court decided council had control
Bailey v Armes control over means of access not sufficient to make defendants liable
Premises fixed or moveable structure Wheeler even a ladder premises
Lawful Visitor 1957
S2(1) common duty of care
Adult visitors 1957
s2(2) ‘reasonably safe in using the premises for purposes invited there’
Laverton CoA decided shop owners took reasonable precautions
Dean slipping an everyday occurrence and not foreseeable
Liability to children 1957
S2(3) ‘must be prepared for children to be less careful’
Glasgow council should be aware berries are alluring
Phipps council not liable because parents have a responsibility
Jolly v Sutton not necessary to foresee specific outcome
Liability to people carrying out trade 1957
S2(3)B ‘a person in exercise of their calling will appreciate ordinary risks’
Roles v Nathan occupier not liable where tradesman fails to guard against risks they are expected to know of
Haseldine work was given to a specialist hired must be competent Bottomley
Occupier must check work is done properly Woodward
Defences to claim under 57 Act
warning notices
Rae deep pit, warning notice alone not enough
Staples dangers of wet algae on high wall obvious, no warning notice necessary
Liability to trespassers 1984
traditionally no duty other than to not deliberately inflict injury Addie v Dumbreck
HoL Practice Statement introduce duty of ‘common humanity’ Herrington
When will the occupier owe a duty 1984
S3(1)
aware of danger and have reasonable grounds it exists
reasonable grounds to believe others in vicinity
risk is one where the occupier may reasonably be expected to offer protection
Cases involving adults 1984
Ratcliff occupier not required to warn of obvious dangers
Folkstone occupier no duty, did not expect trespasser to jump in the harbour at midnight
Foster despite danger, could not have anticipated a trespasser in the vicinity
Rhind occupier not liable if don’t know of danger
Cases involving children 1984
Coventry since child appreciated danger, no danger due to state of property
Baldacchinho injuries did not result from the state of the premises
Defences 1984
consent, contributory negligence
warning notice Westwood eventhough door should’ve been locked, warning notice sufficient
What is Private Nuisance?
a tort claim where use or enjoyment of property affected by unreasonable behaviour of a neighbour
What are the 2 main types of private nuisance?
loss of amenity nuisance and material damage nuisance
What does the claimant require in private nuisance?
interest in the land, unlawful interference, with the use or enjoyment, damage must be the type that is foreseeable
Who can bring an action in private nuisance?
a person with an interest in the land, owner or tenant, not family members Malone v Laskey. Hunter v Canary interference must be sufficient with no solution. Sedleigh Lord Wright ‘a balance has to be maintained between the right of an occupier to do what he likes with the land and the right of the neighbour to not be interfered’. can be liable where nuisance is a result of natural causes where aware and fails to deal with Leaky v National Trust, Anthony v Coal
Unlawful in private nuisance
unlawful if behaviour is unreasonable, doesn’t need to be illegal Sedleigh
Factor of reasonableness Locality
Sturges v Brigman ‘what would be a nuisance in Belgrave Square would not be so in Bermondsey’ Bamford v Turner cocks crowing in the morning more of a nuisance in a residential area
Factors of reasonableness Duration of interference
Crown v Kimbolton firework display lasting 20 minutes causing fire actionable nuisance despite being short term. De Keysers for entitlement to an action in negligence need not be permanent
Factors of reasonableness- Sensitivity of the claimant
Robinson if it can be shown claimant is particularly sensitive, action may not be nuisance
Factors of reasonableness- Malice
Hollywood deliberate, unreasonable acts are nuisance. Christie v Davie injunction granted against neighbour due to deliberate malicious behaviour as revenge
Factors of reasonableness- Social benefit
Miller v Jackson conflicting balance of interests, court decided community use of cricket ground overweighed use of private garden
Damage suffered must be foreseeable (private nuisance)
Cambridge Water v Eastern
no liability in private nuisance for personal injury Hunter v Canary
Defences to private nuisance
Prescription- at least 20 years no complaint- Sturges v Bridgman defence of prescriptive right to continue failed as the nuisance began when the consulting room was built. Statutory authority Allen v Gulf oil c brought an action in nuisance for smell, noise and vibration of an oil refinery, d’s act constructing authorised by act of parliament. Marciz v Thames Water through the failures of the defendant’s the claimant’s home became severely flooded, the Water Industry Act which governed the conduct of the defendants provided appropriate remedies and procedures and excluded a private action in nuisance
Remedies in Private Nuisance
Damages and Injunction COVENTRY V LAWRENCE an injunction is the default for a nuisance case
In deciding whether to use damages instead of injunction, the SHELFER TEST
Is the injury to the claimant’s right small
Can the injury be estimated in money
Would it be oppressive to grant an injunction
Damages used in TETLEY V CHITTY
What is Rylands v Fletcher
where a person’s property is destroyed by the escape of non-naturally stored material onto adjoining property
What are the 4 elements that must be proved for a successful claim in rylands v fletcher
- The bringing onto the land an accumulation or storage
- Of a thing likely to cause mischief if it escapes
- Which amounts to non-natural use of the land
- Which does escape and cause reasonably foreseeable damage to adjoining property
What are the facts of rylands v fletcher?
the bringing onto land and storage of water, large volume could do great damage if it escapes, storage amounted to non-natural use of land, when escaped caused considerable damage to the claimant
READ V LYONS a defendant to an action will either be an owner or occupier
The brining onto land
GILES V WALKER no liability when weeds spread onto neighbouring land as they naturally grew there
ELLISON V MINISTRY OF DEFENCE rainwater that accumulated naturally on an airfield didn’t lead to liability when it escaped and caused flooding on neighbouring land
The thing likely to do mischief if it escapes
this is a test of foreseeability. It is not the escape that is foreseeable but the damage HALE V JENNINGS occupied chair from chair-o-plane, owner of ride liable as risk of injury was foreseeable if chair came loose
Non-natural use of land
RICKARDS V LOTHIAN an
person blocked the plugs of D’s premises causing damage to the property below, D not liable as use of water in domestic pipes not non natural use of land
CAMBRIDGE V EASTON storage of chemicals in factory non-natural
Thing must escape and cause reasonable damage
READ V LYONS an escape means from a place a defendants has occupation or control to a place outside it
LMS V STYRENE storage of flammable items, recognisable risk
STANNARD tyres not in itself flammable but fire risk that if there is a fire would ignite
Defences for Rylands v Fletcher
Consent, act of stranger PERRY, act of god NICHOLS
Remedies for Rylands v Fletcher
TRANSCO V STOCKPORT damage to property must be proved. personal injury not within the scope of claim tort
What is an Order in Council Delegated Legislation?
(made by privy council)
Can be made on a wide range of matters especially: transferring responsibility between government departments, bringing actions into force such as emergencies- 9/11
What are Statutory Instruments Delegated Legislation?
made by government minister)
Given authority to make regulations for areas under their particular responsibility, there are 15 departments, over 3000 SI made yearly
What is By-Law Delegated Legislation?
By-Law (made by local authorities)
Made by local authorities covering their jurisdiction
What are controls by parliament delegated legislation?
Checks on the enabling act- sets out limits
amendment/ repeal
Affirmative (positive endorsement of both houses) and negative resolution (assumes the SI is acceptable, automatic if ) and joint select committee SIs
The Legislative and Regulatory Reform Act 2006- sets out procedure of making SIs which are aimed to repeal an existing law in order to remove a burden
What are judicial controls on delegated legislation?
Judicial Review
Procedural Ultra Vires (not followed procedure in enabling act Ayelsbury)
Substantive Ultra Vires (succeeded powers given by enabling act)
Unreasonable
What are the reasons for Delegated Legislation?
Detailed law
Expert Knowledge
Local Knowledge
Consultation
What are advantages of Delegated Legislation?
Saves Parliamentary time Access to technical expertise Allows for consultation Allows for quick law making Easy to amend
What are disadvantages of Delegated Legislation?
Undemocratic
Sub-delegation
Large volume and lack of publicity
Difficult wording
What is Precedent?
Refers to the source of law where past decisions of the judges create law for future judges to follow
Once there has been a decision on point of law, this becomes precedent for future cases
Original Precedent- if point of law has never been decided
Binding Precedent- earlier case and must be followed
Persuasive Precedent- not binding but may be considered
What are the hierarchy of the courts
Supreme–Court of Appeal–Divisional Courts–County Court–Magistrates
Courts and Precedent
Appellate Courts
Supreme Court: most senior national court, decisions bind all below, not bound by its own Colchester Estates
Court of Appeal: bound to follow supreme court, must follow own decisions
Divisional Court: bound by decisions of the Supreme and of Appeal and their own
Inferior Courts
Bound to follow above, unlikely a decision of an inferior court can create precedent
The Practice Statement
The Practice Statement 1966
Lord Chancellor in London Street Tramways
HoL to change law if they thought earlier cases were wrongly decided
Addie v Dumbreck trespassers cannot claim for injury, overruled Herrington
Judgements and Precedent
Judgements
Stare Decisis (stand by decision- encourages fairness and consistency)
Ratio Decidendi (reason for decision- Sir Cross sometimes hard to distinguish)
Obiter Dicta (rest of judgement- persuasive not binding)
Law Reporting
Follow-Overrule-Distinguish
Advantages of precedent
Certainty Consistency and Fairness Precision Flexibility Time solving
Disadvantages of precedent
Rigidity
Complex
Illogical distinctions
Slowness of Growth
What is the county court
200
Disputes over equitable matters such as trusts up to £350,000
Heard by circuit or district judge
How are cases started
Pre-Action Protocol
Parties give required info to each other, if fail to do so may be liable for certain costs
Which court to use
Small Claims track- £10k or less. Personal injury £1k or less
County Court- £100k or less. Personal injury £50k or less
High Court- over £100k. Personal injury over £50k
Small claims track
Usually heard in private but can be heard in an ordinary court, procedure allows District Judge to be flexible, cannot claim cost of lawyer, expected to represent themselves
Fast track cases
Pre-trial matters, heard within 30 weeks, heard by Circuit Judge, 1 expert witness allowed
Multi track cases
Deals with cases to suit their individual needs
In excess of £25k
Not subject to an exact limit
What is the Woolf reform?
improvements of cooperation between parties’ lawyers in mitigation and improving the number of cases that need to settle
What are advantages of the courts
Fair
Conducted by a legal expert
Enforcement easier
What are disadvantages of the courts
Time consuming
Costly
Complicated
Uncertainty
What are tribunals
Forum instead of court, enforce rights which have been granted through social and welfare legislation
Set up by the welfare state, reformed under Tribunal Act 2007 creating a unified structure of first tier to hear cases at first instance heard by tribunal judge deals with 600k cases annually. Upper tribunal divided into 4 chambers with further route to Court of Appeal
What is advantage of tribunal
Set up to prevent overloading of courts with cases of social and welfare rights
For the applicant it is cheap, quick, by experts and informal
What are disadvantages of tribunal
Lack of funding
More formal than ADR
Delays
What is negotiation
Private, quick, cheap
If not resolved can involve solicitor
Many cases that are not resolved quickly end up in an agreed settlement
What is mediation
A neutral mediator helps the party reach a compromise which is only suitable if there is hope the parties can cooperate
Must attend meetings before procedure, parties are in control of mediation runnings
