paper 2 tort law Flashcards

Question

defences for occupiers liability to visitors 2. Warning Notices

Answer 1

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

Answer 2

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

Answer 3

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

Answer 4

– 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

Answer 5

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)

Answer 6

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”

Answer 7

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

Answer 8

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

Answer 9

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

Answer 10

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

Answer 11

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