paper 2 tort law

Question 1

Occupiers’ Liability to Lawful Visitors

definition

Answer 1

Loss or injury caused by the “state of the premises” of which D is the Occupier
Occupiers’ Liability Act 1957 – for Lawful Visitors

Question 2

step 1 OLA visitors

occupiers

Answer 2

The person in control of the premises - may be owner or tenant of premises (but doesn’t have to be)

Wheat v Lacon – there can be more than one occupier of the premises (in this case the manager and other employees in a pub)

If there is no one in control of the premises, then injured visitor/trespasser can’t make a claim

Question 3

step 2 OLA visitors

prermises

Answer 3

S. 1 (3) (a) Occupiers Liability Act 1957 – “fixed or moveable structure, including any vessel, vehicle and aircraft”.
Houses, offices, buildings, land

Question 4

step 3 OLA visitors

danger due to the state of the premises

Answer 4

Dean and Chapter of Rochester Cathedral v Debell – must be a real source of danger for Occupier to be under a duty to minimise the risk

Question 5

step 4 OLA visitors

lawful visitor

Answer 5

Invitees –people who have been invited to enter and have express permission to be there e.g. friends

Licensees – people who have express or implied permission to be on the land for a period e.g. customers, people carrying out work

Contractual Permission – e.g. someone who bought a ticket for an event

Statutory Right of entry – e.g. meter readers, police officers with a warrant

Question 6

step 5 OLA visitors

duty of care for lawful visitors

Answer 6

S.2(1) Occupiers’ Liability Act 1957 – occupier owes a lawful visitor the common duty of care

S.2(2) – Common duty of care - take such care as is reasonable in the circumstances to see that the visitor will be reasonably safe using the premises for the purpose for which he is invited to be there

Question 7

step 6 OLA visitors

breach of duty

Answer 7

Same for all lawful visitors – failure to reach the standard of the “reasonable man” – failure to guard against foreseeable risks
Apply the standard of the duty

Laverton v Kiapasha Takeaway Supreme – D – owned takeaway shop – fitted it with slip resistant tiles, mopped floor if it rained. C slipped and broke ankle on a rainy day – Ds not liable - Occupier doesn’t have to make property completely safe – only what is reasonable
Standard of Care can vary if C is:
Child
Tradesperson

Question 8

step 6 OLA vicitors

children - standard of care

Answer 8

Owed the common duty of care (S.2(1) and 2(2)

Plus additional duty – S.2(3) – occupier must be prepared for children to be less careful than adults – premises must be reasonably safe for a child of that age
Standard of care measured according to the age of the child

Glasgow Corporation v Taylor – occupier must guard against any allurement to a child – in this case berries were an allurement to young children

Jolley v London Borough of Sutton – if it is foreseeable that an allurement could pose danger, the damage or injury caused doesn’t have to be foreseeable (also relevant to causation)

Phipps v Rochester Corporation – if a child is very young, occupier not liable as he is entitled to expect that parents should not allow their young children to go to places which are potentially unsafe

Question 9

step 5 OLA visitors

trades people - standard of care

Answer 9

Owed the common duty of care (S.2(1) and 2(2))

But, S.2(3)(b) – occupier can expect a tradesperson will appreciate and guard against any special risks they should know about

Roles v Nathan – occupier will not be liable where tradespersons fails to guard against risks they should know about

Rule only applies when tradesperson injured by something related to his trade – if tradesperson injured by something different, occupier will still owe the common duty

Question 10

step 7 OLA visitors

causation

Answer 10

Breach must lead to the damage - same as normal negligence

barnett v chelsea and kensington hospital management committee

Question 11

occupiers liability for trespassers

definition

Answer 11

Injury on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them

Occupiers’ Liability Act 1984 – for Trespassers

Damages only available for personal injury (not property damage)

Question 12

step 1 OLA trespassers

occupiers

Answer 12

The person in control of the premises - may be owner or tenant of premises (but doesn’t have to be)

Wheat v Lacon – there can be more than one occupier of the premises (in this case the manager and other employees in a pub)

If there is no one in control of the premises, then injured visitor/trespasser can’t make a claim

Question 13

step 2 OLA trespassers

premises

Answer 13

S. 1 (2) Occupiers Liability Act 1984 as a “fixed or moveable structure”.

Question 14

step 3 OLA trespassers

danger due to the state of the premises

Answer 14

Look at facts – what is the danger?

Is the danger due to the state of the premises rather than C’s own foolishness?

Question 15

step 4 OLA trespassers

trespasser

Answer 15

Someone who has no legal permission to be there - not a lawful visitor under OLA 1957

Question 16

step 5 OLA trespasser

does d owe a duty of care

Answer 16

S.1(3) Occupiers’ Liability Act 1984 - Occupier Owes a Duty if:

He is aware or has reasonable grounds to believe the danger exists
Rhind v Astbury Water Park – Occupier not liable if he was not aware of the danger or had no reason to suspect the danger existed

He knows or has reasonable grounds to believe the other is or may come into the vicinity of the danger
Higgs v Foster – Occupier not liable if he had no reason to suspect the presence of a trespasser

In all circumstances he may be expected to offer some protection against the risk

Question 17

step 6 OLA trespasser

duty of care for trespassers

Answer 17

S.1(4) Occupiers’ Liability Act 1984 – take such care as is reasonable in the circumstances to see that is not injured by reason of the danger

Question 18

step 7 OLA trespasser

breach of duty

Answer 18

Failure to take reasonable care in the circumstances

Court more likely to side with D

The greater the degree of risk, the more precautions the occupier is expected to take. Consider:

The degree and obviousness of danger - Ratcliff v McConnell - Occupier not liable if the trespasser is injured by an obvious danger (19 year old student climbed fence of open air college swimming pool at night and dived into pool)

The practicality of taking precautions - Tomlinson v Congleton Borough Council – Occupier does not need to spend lots of money making the premises safe from obvious dangers

The age of the trespasser

Seriousness of injury

Reason for trespass

S.1(5) OLA 1984 – D will meet duty if he takes reasonable steps in the circumstances to give warning of the danger or discourage people from taking the risk

Question 19

step 8 OLA trespasser

causation

Answer 19

breach must lead to damage

Question 20

defences for occupiers liability to visitors

Answer 20

1. independent contractors
2. warning notices
3. exclusion clauses

Question 21

defences for occupiers liability to visitors

1. independent contractors

Answer 21

S.2(4) Occupiers’ Liability Act 1957 – If C is injured due to a workman’s negligent work, the occupier may have a defence and can pass liability on to the workman

3 requirements:
It was reasonable for the occupier to have given the work to the independent contractor

The contractor hired was competent to carry out the task

The occupier has checked the work has been properly done

If all 3 requirements satisfied, occupier has a defence and C will have to claim directly from the contractor

Question 22

defences for occupiers liability to visitors

1. independent contractors

A) Reasonable for the Occupier to have Given the Work to the Independent Contractor

Answer 22

The more complicated and specialist the work, the more likely it will be for the occupier to have given the work to a specialist

Haseldine v Daw and Son Ltd. – C killed when a lift plunged to the bottom of the shaft – the occupier was not liable as the repair/maintenance of the lift is a highly specialist activity and it was reasonable for him to give the work to a specialist firm

Question 23

defences for occupiers liability to visitors

1. independent contractors

B) The Contractor Hired was Competent to Carry Out the Task

Answer 23

Occupier should ask for references or recommendations or check with a trade organisation

Occupier should also check the independent contractor is properly insured – if contractor does not have proper insurance cover this is a fair indication he is not competent
Bottomley v Todmorden Cricket Club – club hired a stunt team for a firework display. C burnt and broke arm when stunt went wrong. Stunt team had no insurance – club still liable as they failed to exercise reasonable care to choose safe and competent contractors by not checking insurance

Question 24

defences for occupiers liability to visitors

1. independent contractors

C) The Occupier has Checked the Work has Been Properly Done

Answer 24

The more complicated and technical the work, and the less of an expert the occupier is, the more likely the occupier should employ an expert to carry out the work and check it has been properly done

Woodward v The Mayor of Hastings – child injured on school steps left icy after snow cleared off them. Occupiers liable as they failed to take reasonable steps to check the work was done properly and the danger should have been obvious to them – if the work is not complex, occupier should check himself
Haseldine v Daw and Son Ltd – if the work is complex the occupier is not required to check the work himself

Question 25

defences for occupiers liability to visitors

2. Warning Notices

Answer 25

Complete defence

Warning can be oral or written

S.2(4) Occupiers’ Liability Act 1957 – warning will be ineffective unless “in all the circumstances it was enough to enable the visitor to be reasonably safe”

Rae v Marrs (UK) Ltd. - If premises extremely dangerous or unusual, occupier may be required to erect barriers or additional warnings

Staples v West Dorset District Council - If the danger is obvious and the visitor is able to appreciate it, no additional warning necessary

Question 26

defences for occupiers liability to visitors

3. Exclusion Clauses

Answer 26

S.2(1) Occupiers’ Liability Act 1957 – occupier is able “to restrict, modify or exclude his duty by agreement or otherwise”

Within a warning, an occupier will be able to limit or exclude his liability for injury to visitors

Whether this will work as a defence for child visitor depends on the age and ability of the child to understand the effect of the exclusion
Will work for residential occupiers
Business Occupiers:
S.2(1) Unfair Contract Terms Act 1977 - Business occupiers cannot exclude liability for personal injury or death
Can still exclude liability for damage to property

Question 27

Defences to Occupiers’ Liability for Trespassers

Answer 27

Consent – allowed by S.1(6) Occupiers’ Liability Act 1984 – if trespasser appreciates the nature and degree of the risk – more than just its existence

Contributory Negligence – same as in negligence

Question 28

private nuisance

definition

Answer 28

– an unlawful indirect interference with a person’s use or enjoyment of land coming from neighbouring land

Concerns people living in proximity to each other - involves competing claims of people to do as they wish on their own land

Question 29

parties to the nuisance

Answer 29

C – must have an interest in the land – owner or tenant
Hunter v Canary Wharf Ltd. – members of a household who do not have an interest in the land cannot claim

D – the person causing or allowing the nuisance – does not need to have an interest in the land
Sedleigh Denfield v O’Callaghan – an occupier who knows of the danger and allows it to continue is liable even if he has not created the danger himself (a pipe laid by the national authority on D’s land which blocked and caused flooding to neighbouring land)
Leakey v National Trust – D can be liable where the nuisance is the result of natural causes which he is aware of but fails to deal with (large natural mound that slipped and damaged C’s cottage)

Question 30

private nuisance

unlawful use of the land

Answer 30

Not necessarily illegal but unreasonable in how it affects C

Courts must balance conflicting interests of neighbours, and they are expected to experience some “give and take”

Question 31

private nuisance

unlawful use of the land

Factors Affecting Reasonableness

Answer 31

Locality – character of the neighbourhood:
Residential/partly commercial/industrial;
Town/Country

Duration of Interference – likely to be continuous and at unreasonable hours of the day.
BUT – Crown River Cruises Ltd. V Kimbolton Fireworks Ltd. – short-term activity can amount to nuisance
De Keyser’s Royal Hotel Ltd. V Spicer Bros Ltd. – building work at night interfered with C’s sleep – temporary building work can amount to nuisance

C’s Tolerance
Heath v Mayor of Brighton – test of reasonableness is based on whether it would affect a person of normal tolerance
Robinson v Kilvert – if C is unduly sensitive, nuisance will not be found

Malice from D – a deliberately harmful act will normally be unreasonable and a nuisance
Christie v Davey – C was a music teacher, held musical parties and lessons in his house. D became annoyed and banged on walls with hands and trays, blew whistles and shouted – D’s deliberate and malicious behaviour amounted to nuisance

Question 32

private nuisance

types of interference

Answer 32

Loss of amenity – e.g.
Fumes drifting over neighbouring land
Smell from farm animals
Noise from children’s playground or motor racing circuit

Material Damage – dangerous state of affairs on D’s land causes physical damage to C’s land – e.g.
Tree roots causing subsidence
Fire
Cricket balls hit into a garden

Emotional Distress – e.g.
Thompson-Schwab v Costaki – running a brothel in a residential area was interference
Laws v Florinplace Ltd. – a sex shop in an area of shops, restaurants and housing was an interference

Can’t claim to protect a view, right to light, recreational facility
Hunter v Canary Wharf Ltd. – loss of a recreational facility (e.g. TV reception) not sufficient

Question 33

remedies for private nuisance

Answer 33

Injunctions
Probibitory Injunction – order of court to stop doing something

Mandatory Injunction – less common – order of court to carry out a certain action
E.g. install soundproofing, install extractor
Can be during a case – e.g disclose documents

Damages
Abatement – e.g. entering D’s premises to prevent further nuisance e.g. chop down overhanging branches

ADR – (not a remedy as such) – court encourage negotiation and mediation as it allows parties to come to a resolution with less confrontation – important as still have to live alongside each other

Question 34

private nusiance

deciding between injunction or damages

Answer 34

Kennaway v Thompson – injunctions can be granted in whole or part (possibly injunction for part of nuisance and damages for rest)

Social benefit – if D is providing a benefit to the community – more likely that C will be awarded damages rather than an injunction
Miller v Jackson – Injunction not an automatic right - if there is a social benefit to the activity, damages should be considered rather than injunction
Dennis v MoD – benefit to public should be a reason to award compensation to C rather than injunction
Coventry v Lawrence – damages should be considered as a remedy more often, especially where planning permission has been awarded or a public interest is involved – may lead to courts awarding fewer injunctions

Question 35

private nuisance

moving to the nuisance

not a defence

Answer 35

E.g. Miller v Jackson – can’t argue they moved near the cricket ground
E.g. Sturges v Bridgman – can’t argue he moved near the nuisance by building his consulting room near the factory