Tort Flashcards
1
Q
What is a trespass to land?
A
An unlawful direct interference with the claimant’s possession of land.
2
Q
Trespass of land is actionable per se, what does this mean?
A
The claimant does not need to show that any actual damage or injury to the land - the fact the claimant’s right has been infringed is sufficient.
3
Q
What must the relationship between the claimant and land in order to have a claim for trespass to land?
A
To bring an action for trespass to land, the claimant must have exclusive possession of the land.
4
Q
What is the definition of land in respect of trespass of land?
A
Trespass protects land and buildings erected on the land. This includes subsoil and airspace.
5
Q
What is direct interference for trespass of land?
A
Must be direct such as willingly driving over someone else’s land.
6
Q
Would vibrations class as interference of land with trespass?
A
No
7
Q
What is the element of intention of trespass of land?
A
Usually committed by an intentional act of interference however only the intention to enter the land. It is no defence to mistakenly think the land belonged to them.
8
Q
What are the 2 defences to trespass of land?
A
Lawful entry
Necessity
9
Q
What is the defence to trespass of land of lawful entry?
A
A defendant whose presence on the lane is lawful does not commit trespass.
10
Q
What is the defence of necessity to trespass to land?
A
It is a defence to trespass in land for the defendant to show that it was necessary to enter onto the land to preserve life or property.
11
Q
What are the 4 remedies for trespass to land?
A
- Damages
- Injunction
- Order of possession
- Self-Help
12
Q
What is the trespass to land remedy of damages?
A
As trespass is actionable per se, any trespass to land allows the claimant to recover at least nominal damages. If actual loss has been suffered, damages may be awarded to reflect this.
13
Q
What is the trespass to land remedy of an injunction?
A
An injunction can be granted to prohibit the defendant from continuing to trespass on the claimants land.
14
Q
What is the trespass to land remedy of order for possession?
A
If a claimant who is entitled to possession of the land has been dispossessed by the defendant, the claimant may bring an action to prove their title to the land and obtain an order from the court to recover possession.
15
Q
What is the trespass of land remedy of self-help?
A
A person who is entitled to possession of land may use reasonable force to remove a trespasser.
16
Q
What are the 3 categories of trespass to a person?
A
- Battery
- Assault
- False Imprisonment
17
Q
What is the offence of battery?
A
The intention of direct application of unlawful force to the claimants person.
18
Q
What is the definition of unlawful force with relation to the offence of battery?
A
Any unwanted physical contact. Even if the contact is to help the claimant, it can be battery if they have not consented. (e.g. unwanted medical attention)
19
Q
What is the exception to unlawful force in respect of the offence of battery?
A
Conduct which is generally acceptable in the ordinary conduct of everyday life does not amount to battery.
20
Q
What is the definition of direct contact regarding the offence of battery?
A
The application of force must be direct. Would also include claimants clothing.
21
Q
What is the definition of intention with regards to the offence of battery?
A
The act of applying force must be intentional. Involuntary action does not amount to battery. The defendant only needs to intend the application of force and not intend harm. Intention to apply force to one person maybe ‘transferred’ to another person.
22
Q
What is the offence of assault?
A
The intention act which causes the claimant reasonably to apprehend the immediate and direct infliction of unlawful force on their person.
23
Q
What is the definition intention regarding the offence of assault?
A
The defendant must have intended the claimant to apprehend the use of force.
24
Q
What is the definition of apprehension of force regarding the offence of assault?
A
The claimant must be aware of the threat of force - no assault is committed if the claimant is unaware of the threat.
25
Does the claimant need to be scared for the offence of assault to occur?
No, just for them to apprehend the force.
26
Does force need to be applied for an offence of assault to occur?
No, there can still be an offence if the defendant does not actually carry out the threat of force.
27
To what extent does the apprehension of force need to be for an assault offence to occur?
If the claimant is aware that the defendant is not capable of carrying out the threat of force, there is no assault.
28
Can words alone amount to an offence of assault?
Yes, provided they amount to an immediate threat of force.
29
What is the offence of false imprisonment?
The unlawful constraint of the claimant's freedom of movement from a particular place.
30
What is the definition of unlawful for the offence of false imprisonment?
Means the constraint must be unlawful. If the defendant can establish lawful grounds for detaining the claimant, this provides a defence.
31
What is the definition of intentional for the offence of false imprisonment?
The defendant's actions in constraining the claimant's freedom of movement must be intentional. However, the defendant need not intend the constraint to be unlawful.
32
What is the definition of the constraint on freedom of movement for an offence of false imprisonment?
Imprisonment refers to actions which deprive the claimant of free movement. There must be a complete constraint on the claimant's freedom of movement in every direction. If the claimant can move in one direction or are given a reasonable means of escape, there is no false imprisonment.
33
What is the definition of awareness of constraint for the offence of false imprisonment?
It is not necessary that the claimant know of the constraint, because the purpose of the tort is to protect the claimant's freedom of movement.
34
What are the 4 defences to trespass to a person?
1. Consent
2. Necessity
3. Self-Defence
4. Lawful arrest and lawful authority
35
What is the defence of consent regarding trespass to the person?
It is a defence to trespass to the person that the claimant consented to the contract.
36
What is the defence of consent to medical treatment?
An adult claimant who is of sound mind and full understanding is entitled to withhold consent to medical treatment even when it is necessary to save the claimant's life.
37
What is implied consent regarding the defence of trespass of the person?
The physical contact that takes place during sport would be battery were it not for the fact that participants are taken to impliedly consent to the contact which occurs when the sport is played within the rules of the game.
38
What are the limits to the defence of consent to trespass to the person?
The claimant's consent must not be induced by fraud, misrepresentation or duress.
39
What is the defence of necessity on trespass to the person?
May apply when the defendant acts reasonably to prevent harm.
40
What is the defence of self-defence to trespass on the person?
It is a defence to trespass for the defendant to prove they acted in self-defence. This can be when they are being or about to be attacked. The force used by the defendant in self-defence must be in proportion to the force used against them.
41
What is the defence of lawful arrest and lawful authority?
A person effecting the lawful arrest will have a defence to trespass to the person.
42
What remedies are available for trespass to the person?
If the claimant has not suffered any actual damage, the claimant may still recover an award of nominal damages. If actual damages have been suffered compensatory damages may be made to reflect this.
43
What is negligence?
A breach by the defendant of a legal duty to take care which causes damage to the claimant.
44
What are the elements to negligence?
- Defendant owed the claimant a duty of care
- Defendant breached that duty
- Defendant's breach caused damage to the claimant
45
What are examples of established duties of care?
Drivers, doctors, teachers, parents, solicitors, employers and manufacturers of products.
46
What are novel duty situations?
Situations whereby there is no previous authority establishing the existence of a duty of care.
47
What is the criteria to be met when determining whether a duty of care is owed?
1. Foreseeability - claimant must be a foreseeable victim
2. Proximity - There must have been a relationship of sufficient proximity between the claimant and defendant
3. Fair, Just and Reasonable - is it fair, just and reasonable in all circumstances to impose a duty of care.
48
What are the 4 exception to omission to act?
1. Special Relationships between Parties
2. Control
3. Liability for Actions of Third Parties Under Defendant's Control or Responsibility
4. Rescue Situations
49
Would a special relationship between parties create a legal duty to act?
Yes, a relationship can arise when the defendant has assumed responsibility towards the claimant.
50
When would control create a legal duty to act?
If the defendant exercises control over the claimant, this may create a duty on the defendant to take care for the claimant.
51
When would the liability for actions of third parties under the defendant's control or responsibility?
While a defendant generally does not owe a duty to exercise control over a third party to prevent them from causing harm to the claimant.
52
When would a rescue situation create a duty to act?
There is generally no duty to carry out a rescue however if a person does act in a rescue, they have a duty not to make the situation any worse.
53
Once a duty of care is established, how is determined what standard they are expected to meet?
The reasonable person test is used.
54
What is the reasonable person test?
The standard of care to be expected of a reasonable person in the defendant's position.
55
When must the breach be assessed?
After the event.
56
What are the 2 factors the courts will take into consideration when assessing breach?
1. Magnitude of risk
| 2. Practicability of Precautions
57
What is the magnitude of risk when assessing a breach?
The court will ask (1) how likely was it for harm to occur and (2) how serious is the potential harm?
If the activity carried out was low risk then they might not be able to prove they fell below the reasonable standard of care. The greater the potential harm from the defendant's activities, the more precautions the defendant is expected to take in order to meet the standard of reasonable care.
58
What is the practicability of precautions when assessing a breach?
In assessing whether the defendant fell below the reasonable standard of care, the court will balance the practicability of taking precautions against the risk in question.
59
What is social unity when assessing a breach?
When considering the precautions which the defendant ought to have taken to meet the standard of reasonable care, the court will also have regard to the social unity of the defendant's conduct.
60
What are the 3 particular types of defendants?
1. Under-skilled defendants
2. Skilled Defendants and Professionals
3. Children
61
How will the reasonable person test be interpreted for under-skilled defendants?
Cannot rely on their lack of skills to argue they were not in breach of duty
62
How will the reasonable person test be applied to skilled defendants and professional?
Defendants who exercised a particular skill or profession are required to meet the level of skill of a reasonably competent member of that profession. There is an additional duty to disclose certain risks associated with treatment.
63
How will the reasonable person test be applied to children?
There is no minimum age for liability however the defendant's age is relevant because the standard of care to be expected of a reasonable person in the defendant's position.
64
Who has the burden of proof for proving a breach of duty?
Claimant.
65
What is Res Ipsa Loquitur?
Usually the claimant will produce evidence to explain how the incident happened. The court can then assess the level of skill and care exercised by the defendant.
66
What are the 3 conditions which must be satisfied for Res Ipsa Loquitur to apply?
1. An absence of any explanation for how the incident occurred
2. The thing which caused the accident must have been under the control of the defendant
3. The accident must be such as would not normally happen if proper care had been taken.
67
Can criminal convictions be used to help the claimant prove a breach of duty?
Yes, if a person has been convicted of a criminal offence involving negligence.
68
What is the causation of damage in a negligence claim?
Damage is an essential element to a claim of negligence in tort. The claimant must show that the defendant's breach of duty caused loss. Carelessness without loss will not give rise to a claim.
69
What are the 3 stages when establishing the causation of damages?
1. Causation in Fact
2. No New Intervening Acts
3. Damage is Not Too Remote
70
What is causation in fact regarding negligence?
The claimant must prove that 'but for' the defendant's breach of duty, the claimant would not have suffered the loss.
71
What is the importance of no new intervening acts for establishing the causation of damages?
There must be no new acts which intervene between the defendant's breach of duty and the claimant's loss.
72
What is the importance of the damage not being too remote for causation of damages?.
The loss suffered by the claimant must be reasonably foreseeable consequence of the defendant's breach of duty.
73
Who holds the burden of proof for proving causation in fact?
The claimant.
74
What is the new modified test for causation in fact?
Material contribution - The claimant is required to prove that the defendant's breach made a material contribution to the claimant's loss.
75
What are divisible injuries?
Damages can be apportioned between the defendants according to the share if injury which each of them caused. This means the claimant can only recover a portion of their damages from each defendant, and so must sue them all if the claimant is to recover in full.
76
How do new intervening acts or events affect proving causation in fact?
When a new act has intervened between the defendant's original negligence and the claimant's ultimate injury, this new intervening act is said to break the chain of causation between the defendants initial negligence and the claimant's ultimate loss.
77
Who can perform an intervening act for this to break the chain of causation?
A third party, the claimant.
78
What is an intervening natural event?
A natural event may break the chain of causation and cut off the defendants liability for further damage.
79
What is the effect of remoteness of damage in negligence?
The defendant will not be liable if that damage is too remote a consequence of the defendant's act.
80
What is the test for remoteness of damage in negligence?
Reasonable foreseeability - Was the claimant's damage a reasonably foreseeable result of the defendant's negligence? If the answer is no, the damage was not reasonably foreseeable and the defendant is not liable for it.
81
What are the 2 exceptions to the reasonable foreseeability rule in the remoteness of damage for negligence?
1. Egg Shell Skull Rule
| 2. Similar in Type Rule
82
What is the Egg Shell Skull Rule?
Describes the situation in which the claimant suffers from a pre-existing condition which causes the effect of the defendant's negligence to be more extensive or severe than might have reasonable foreseeable.
83
What is the similar in type rule?
Describes a situation in which the claimant suffers the type of harm which would reasonably foreseeable, but the manner in which it occurs is unforeseeable.
84
What is contributory negligence?
A failure by the claimant to take reasonable care for their own safety which contributes to the harm suffered by the claimant.
85
Does the defendants negligence have to have contributed towards the happening of the accident?
No, just needs to contribute towards the damage suffered.
86
What are the consequences of contributory negligence?
A finding of contributory negligence does not defeat the claim entirely, rather, damages are to be reduced to such extent as the court considers just and equitable.
87
What is a defence to negligence?
Voluntary assumption of the risk. The claimant must have had full knowledge of the risk and the claimant must have freely and voluntarily assumed the risk.
88
How can a defendant exclude liability for negligence?
By displaying a notice to that effect.
89
Can illegality be a defence to negligence?
Yes, the claimant cannot recover damages for harm suffered whilst taking part criminal activity.
90
What are the elements for a successful claim for negligence - pure economic loss?
1. Duty of Care
2. Breach of Duty
3. Causation of Damage
91
What is negligence for pure economic loss?
Damage to property which does not belong to the claimant and the cost of damage suffered by the defective product which is acquired by the claimant and financial loss which does not flow from damage to the claimants person or property.
92
What is the general rule regarding pure economic loss?
There is no recovery however can be recovered by negligent statements if there is a special relationship between the claimant and defendant.
93
What are the 2 exceptions to no remedy being available in tort for pure economic loss?
1. Special relationship exception
| 2. Applies to provision of services
94
What is negligence regarding psychiatric harm?
Harm which is caused to the claimant without any physical impact. This can be caused to the claimant by the shock of being placed in danger by the defendant's actions, or by the shock of being placed in danger by the defendant's actions or by the shock of witnessing harm to other caused by the defendant's actions.
95
What are the types of victims of negligence?
1. Primary Victim
| 2. Secondary Victim
96
What is a primary victim of negligence?
Someone who is in the actual area of danger created by the defendant's negligent act
97
Who is a secondary victim of a negligence claim?
Someone who is affected by the defendant's negligent act, but is outside the actual area of danger. Typically, bystanders who witness the consequences of the defendant's negligence without themselves being in danger.
98
What are the 2 limits of duty of care for psychiatric harm?
1. Medically recognised condition - the duty of care in relation to pure psychiatric harm is limited in that the psychiatric harm must amount to a medically recognised psychiatric condition.
2. Sudden shock - the law draws a distinction between harm caused by a sudden shocking event and harm caused by exposure to shock over a period of time.
99
What elements must be present in employers liability?
Same as neglience:
Duty of Care
Breach of Duty
Causation of Damage
100
What is the scope of an employers duty of care?
Employer must take reasonable care for safety of employees including:
- Safe plant and equipment
- Safe place of work
- Competent fellow staff
- Safe system of work
101
To what extent does the requirement of competent fellow staff extend?
The employer must take reasonable care to ensure fellow staff are competent. An employee who is aware that an employee regularly engages in jokes or horseplay, but fails to take action, may be in breach if this conduct causes injury to a fellow employee.
102
Can the requirement for a safe system of work also extend to psychiatric harm?
Yes from stress. So long as it is reasonably foreseeable that the employee is at risk of harm caused by stress.
103
Can an employers reasonable care be delegated?
No, although the task can be.
104
What is the test for whether an employer has breached their duty?
Did the employer take such care as would be expected of a reasonable employer?
105
What are the 4 points that the courts will consider when deciding whether an employer breached their duty?
1. Common Practice
2. Employee's Individual Circumstances
3. Date of Knowledge of Risk
4. Latent Defects in Equipment
106
What would the courts consider in the element of common practice when determining whether an employer owed a breach of duty?
Common practice of other employers in the same field is relevant in determining whether the defendant employer has fallen below the applicable standard of care, but it is not determinative.
107
What would the courts consider in the element of Employee's individual circumstances when determining whether an employer owed a breach of duty?
The employer's duty is owed to each employee individually/ So, the individual circumstances of each employee are relevant to the precautions which the employer needs to take in order to meet the standard of reasonable care.
108
What would the courts consider in the element of date of knowledge of risk when determining whether an employer owed a breach of duty?
When a claim is brought in respect of an industrial disease, it will be relevant to consider the date at which the risk of the disease became known in the industry in question.
109
What would the courts consider in the element of latent defects in equipment when determining whether an employer owed a breach of duty?
An employer who had exercised reasonable care when purchasing the equipment from a reputable supplier would not be in breach of duty, and the injured employee would need to instead pursue a claim against the person who was at fault.
110
What effect does the Employers Liability (Defective Equipment) Act 1990 have?
This applies where an employee is injured in the course of employment by defective equipment provided by their employer.
111
What are the elements required for causation of damages for employers liability?
Usual rules apply:
1. Causation in Fact
2. No intervening acts
3. Damage not too remote
112
What defences are available for employers liability?
Voluntary assumption of risk - It is a complete defence that the claimant employee voluntarily accepted the risk of the defendant's negligence. The employee must have fully appreciated and voluntarily consented to the actual risk.
Contributory negligence - damages may be reduced when a claimant employee failed to take reasonable care for their own safety and this contributed to their injury.
113
What is vicarious liability?
The liability of one person for a tort committed by another (liability without fault)
114
What 3 issues are considered when considering the vicarious liability of employers?
1. Was a tort committed?
2. By an employee?
3. In the course of employment?
115
What will the courts consider when deciding whether a tort has been committed in vicarious liability of employers?
The claimant seeks to hold the employer liable for harm caused by another. Vicarious liability can only arise if that harm amounts to a tort against the claimant. It will be analysed to see whether all the elements of the torts are established.
116
What will the courts consider when deciding who is an employee when considering vicarious liability?
Economic Reality Test - apply the factors of control and integration as part of the wider test.
117
What factors are considered for the Economic Reality Test?
```
Personal service
Control
Ownership of tools
Chance of profit and risk of loss
Contractual provisions
```
118
What will the courts consider when deciding whether an action is in the course of employment when considering vicarious liability?
The court must be satisfied that there was a close connection between the tort and the work the employee was employed to do.
119
What are the 4 considerations regarding in the course of employment of vicarious liability?
Negligence of the Employee
Criminal Actions of Employees
Disobedience to Instructions
Deviations from an Authorised Journey
120
What is the outcome if an employee has been negligent in the course of employment?
An employee may remain in the course of employment even when they carry out the work they were authorised to do negligently.
121
Is it a defence that the tort committed by an employee for vicarious liability was a criminal defence?
No.
122
Is it a defence for an employer that the employee has not obeyed instructions regarding vicarious liability?
An employee may be forbidden to carry out certain activities and prohibition may limit the scope of employment, so breach would put the employee outside the scope of employment.
123
Is it a defence that the employee deviated from an authorised journey during vicarious liability?
An employee driving the employer's vehicle to do the job for which they are employed is clearly acting within the course of their employment.
124
Are independent contractors covered under vicarious liability?
No. However there is a third category made which is those who are not an employee but who have a relationship 'akin' to employment.
125
What factors would the courts take into account as to whether a relationship akin to employment is present?
The tort was carried out by the tortfeasor on behalf of the defendant
The tortfeasor's activity is an integral part of the defendant's business activity
The defendant created the risk of the tort by assigning the activity to the tortfeasor.
126
What is the second stage to show a relationship 'akin' to employment?
A connection is required - there must be a close relationship between the relationship and the tort committed.
127
When would an employer become personally liable for a tort committed by an independent contractor?
The employer is in breach of their own nondelegable duty of care
The employer is in breach of their own duty to take reasonable care in selecting a competent contractor.
128
What is the aim of damages?
To place the claimant, so far as money can do so, in the same position they would have been in had the tort not occurred.
129
What are pecuniary losses?
Money which the claimant has lost as a result of the injuries.
130
What are non pecuniary losses?
Pain and suffering.
131
How is loss of past income calculated?
Income between the injury and trial or settlement. Based on the claimant's net loss of wages so national insurance and tax are deduced from the claimant's gross pay, leaving a net figure on which the calculation is based.
132
How is loss of future income calculated?
Damages are awarded to compensate the claimant for loss of future income then awarded in one lump sum, assessed at the time of trial.
133
How will loss of future income be calculated if the claimant is unable to return to work?
Made by taking the claimant's pre-accident annual income and multiplying it by the number of years lost income. Downward adjustments are made to reflect the fact the claimant is getting the money in a lump sum in advance and the fact the claimant could have lost their job sometime in the future regardless of injury.
134
How will loss of future income be calculated if the claimant can return to limited work?
The same method is used to assess the lump sum. The difference between the claimant's original salary before the accident and new reduced salary after the accident is compared.
135
How will losses be calculated when the claimant has shortened life expectancy?
The claimant can recover damages for the income they would have earned during those 'lost years'.
136
Can past and future expenses be reclaimed?
Yes, and will be assessed the same way as loss of income.
137
What is loss of amenity?
The effects of the injury on the claimant's ability to enjoy life.
138
Will damages be awarded to cover loss of amenity?
Yes to cover both part and future pain and suffering. These are assessed by the court having regard to published guidelines which are based on awards in previous reported cases.
139
Can damages be awarded for damage to property?
Yes, if the property is destroyed, damages will be assessed based on the cost of replacement. If the property is damaged rather than destroyed, damages will be based on the decrease in value which is often equivalent to the costs of repair.
140
What are special damages?
Those which can be precisely calculated at the time of trial (or settlement) - loss of pass earnings and expenses
141
What are general damages?
Those which need to be assessed by the court. So, they include future loss of earnings and future expenses. Also include non-pecuniary damages for past and future pain and suffering.
142
If a claimant dies before completing the claim, what will be the course of action?
The estate will continue the claim. They can recover damages for pain and suffering and loss of amenity up to death and expenses and loss of earnings up to death.
143
Can damages be claimed for after death or the death itself?
No.
144
Is the cause of death taken into consideration when assessing damages?
No, death can be caused by tort in question or some unrelated cause.
145
Do defamation claims survive the claimant?
No.
146
What is the new cause that might arise when the claimant dies?
A claim for the benefit of the deceased's estate.
147
What can a deceased's estate claim for from a defendant?
Damages suffered by the dependants of the deceased and a claim for bereavement damages of a spouse or the parents of an unmarried minor child.
148
What is the requirement of a deceased's estate bringing a claim?
The claim would have been able to bring a claim had they survived.
149
Would contributory negligence be available as a defence in damages for dependants and bereavements?
Yes.
150
Are the funeral expenses recoverable by dependants of a deceased?
Yes if the tort has caused the victim's death.
151
What is the standard of liability owed to occupiers of a premises as defined by OLA 1957 and OLA 1984?
The condition of the premises must be safe for occupiers and not activities carried out on the premises.
152
To whom does the OLA 1957 created a duty?
Duty to visitors
153
To whom does the OLA 1984 create a duty?
Duty to persons other than visitors.
154
What is the definition of a visitor?
Someone whom the occupier has invited or permitted to be on their premises.
155
Can permission under the definition of visitor be limited?
Yes, if a person extends the scope of their permission they would become a trespasser.
156
Who is an occupier?
The person who has control over the premises. A person can be the occupier without being the owner if they have sufficient control.
157
Would an owner of a premises who has not retained control be classed as an occupier?
No.
158
In a landlord / tenant relationship, who would be classed as the occupier?
The tenant as the landlord has parted with control to the tenant.
159
What is the definition of premises?
Land, including any buildings on the land. 1957 Act also applies to any fixed or moveable structure.
160
What is the common occupiers duty to lawful visitors under 1957 Act?
An occupier of premises owes the same duty, the common duty of care to all his visitors.
161
What is the content of the occupiers duty to lawful visitors?
The common duty of care is a duty to take such care as reasonable under the circumstances to see that the visitor will be reasonably safe in using the premises for such purposes as they have been invited or permitted to be there,
162
What is the standard of care owed by an occupier to a visitor?
The same principles apply as in common law negligence, so the court will have regard to the magnitude of the risk of harm and the practicability of taking precautions, taking into account all the circumstances includes the degree of care that visitors themselves can be expected to take.
163
What are the 2 types of visitors covered by the 1957 Act?
Children
| Visitors entering premises in exercise of their calling
164
What does the 1957 Act provide regarding to children visitors?
An occupier should be prepared for children to be less careful than adults. So, to meet the standard of care, an occupier may be required to take more precautions to avoid harm to children than would be required for an adult visitor.
165
What does the 1957 Act provide for visitors entering premises in exercise of their calling?
An occupier may expect persons entering premises in the exercise of their calling to appreciate and guard against any special risk incidental to that calling.
166
What circumstances of discharging the duty owed to a visitor does the 1957 Act cover?
Warnings
| Independent Contractors
167
How does the 1957 Act confirm a warning can discharge an occupiers duty?
When damage is caused to a visitor by a danger of which they have been warned, the wanting is not to be treated, without more, as absolving the occupier from liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe.
168
How does the 1957 Act discharge an occupiers duty through independent contractors?
An independent contractor will need to carry out the work of construction, maintenance or repair on the premises. The occupier may discharge the duty providing the following are met:
- Occupier acted reasonable in entrusting the work to an independent contractor
- Occupier took such steps as they reasonably ought to be satisfied that the contract was competent and the work had been properly done.
169
In what circumstances can an occupier not exclude their duty?
Death or personal injury (only business occupier)
| For any other damage - unless reasonable (only business occupier)
170
How can an occupier exclude liability?
By either contract or non contractual notice.
171
What are the requirements if an occupier is to exclude liability through exclusion?
It must be clear the wording of the exclusion covers the damage in question and the exclusion must have been adequately brought to the attention of the claimant.
172
How must the occupier bring the exclusion to the attention of the claimant in a contractual exclusion?
The term excluding liability must have been incorporated into the contract by being brought to the attention of the visitor before the contract was made.
173
How must the occupier bring the exclusion to the attention of the claimant in a noncontractual exclusion?
Adequate steps must be taken to being it to the attention of the visitor before they encounter the risk for which liability is excluded. It is not necessary to show that the visitor was actually aware of the notice.
174
What are the 2 defences of liability with the exception of Notice and Statutory Controls?
Voluntary Assumption of Risk
| Contributory Negligence.
175
Who is a trespasser?
Someone who comes onto premises without the permission of the occupier. It also includes someone who enters the premises with permission but then exceeds the extent of such permission.
176
When is a duty owed to a trespasser?
The occupier is aware of the danger
The occupier is aware that the trespasser may come into the vicinity of danger
The danger is one against which it would be reasonable to expect the occupier to offer protection.
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What duty of care is owed to a trespasser?
To take such care to see that the trespasser does not suffer injury by reason of the danger concerned.
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How broad is the duty owed to a trespasser?
Only injury to person and does not cover damage to property.
179
How does the 1984 Act confirm the duty to a trespasser can be discharged?
By taking such steps as are reasonable to give a warning of the danger or to discourage the trespasser from incurring the risk.
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What are the defences available for a duty owed to a trespasser?
Exclusion of liability under 1984 Act - it is unclear whether duty can be excluded.
Voluntary assumption of risk
Contributory negligence
181
What are the benefits of a breach of contract claim over a tort claim?
Liability for breach of contract is strict however loss due to the damage of the goods themselves cannot be recovered as this is pure economic loss.
182
What are the benefits of a tort claim over a contract claim?
For a claim in contract there must be privity of contract however law of tort can provide a claim even when no claim in contract would be available.
183
To whom does a manufacturer owe a duty of care to?
The end consumer of the product.
184
When would it be reasonable for a duty to arise in tort by a manufacturer to the consumer?
When the manufacturer puts the product into circulation in the form which it is intended to reach the end consumer and there is no reasonable expectation of an intermediate examination of the product between leaving the manufacturer and reaching the customer.
185
Who is known as a consumer?
Anyone whom the manufacturer could reasonable foresee as likely to be affected by the defect in the product. This can be people who use and come into contact with the product.
186
Who is known as a manufacturer?
A person who manufacturers the product. Also extends to those who install and repair products.
187
How must a consumer prove negligence on behalf of the manufacturer?
Prove they fell below the reasonable standard of care however the courts can infer a breach from the existence of the defect.
188
What does the Consumer Protection Act 1987 create?
A regime of strict liability for damage caused by defective products.
189
When does the CPA apply?
When damage is caused by a defect in a product. It is not necessary to prove that the defect arose because of a fault on the part of the defendant.
190
Who can make a claim under the Consumer Protection Act?
Anyone who suffers damage caused by a defect in a product has a potential claim.
191
When would a person be liable under the Consumer Protection Act?
- Producer of a product
- Any person who held themselves to be a producer of the product
- Importer of the product.
192
Under the Consumer Protection Act, when would the supplier of a product be liable?
The person who suffered the damage may request the supplier to identify the producer
The request must be made within a reasonable time
It is not reasonably practicable for the claimant to identify those persons independently
The supplier fails to identify the producer.
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What is taken into account when deciding whether a product is defective?
- Instructions and warnings provided with the product
- The packaging and purpose for which the product was marketed
- What might reasonably be expected to be done with the product
- The time when the product was supplied
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What damage is excluded under the Consumer Protection Act?
- Damage to defective product itself cannot be recovered
- Damage to business property is not covered
- Property damage which does not exceed £275 cannot be recovered.
195
What are the 4 defences under the Consumer Protection Act?
- There was no defect when the product was first put into circulation
- The defendant did not supply the product in the course of business
- State of the Art (must show the state of scientific and technical knowledge when product supplied was not such that a producer of products of that type might be expected to have discovered the defect0
- Contributory Negligence
196
Can liability be excluded under the Consumer Protection Act?
No.
197
What is the definition of nuisance?
Type of harm, the invasion of either private property rights or public rights.
198
What are the 3 types of nuisance?
1. Private
2. Public
3. Statutory
199
What is the definition of public nuisance?
An unreasonable interference with the comfort and convenience of life of a class of the public
200
Who can sue for public nuisance?
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Individuals - individual member of the affected class if they suffered particular damage over and above the damage suffered by the class in general
Attorney General - can bring a claim on behalf of the affected class.
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201
What is the definition of private nuisance?
The unlawful interference with the claimant's use and enjoyment of the land.
202
When would an interference be unlawful for private nuisance?
When it is substantial and unreasonable. Also must be a continuing state of affairs (an isolated event is n to sufficient)
203
What damage is required for private nuisance?
Physical damage to the land
Amenity damage such as noise, dust and smells
Encroachment onto land
204
Who can be sued for private nuisance?
Creator of the nuisance
| Occupier of the land where the nuisance exists
205
What is the process where an occupier adopts a nuisance?
If they make use of the thing that constitutes a nuisance of their own use.
206
What is the process where an occupier continues a nuisance?
Once they know or ought to have known about it, they fail to take reasonable steps to deal with it.
207
Who can sue for private nuisance?
The claimant must have a proprietary interest in the land affected.
208
What factors are considered when deciding what is reasonable for private nuisance?
- Intensity and duration
- Character of neighbourhood
- Abnormal sensitivity
- Malice
209
How can the defendant's liability be limited for private nuisance?
Damage must be reasonable foreseeable.
210
What are the defences to nuisance?
Prescription - a prescriptive right can be obtained to carry on an activity if this has been carried out for 20 years and no action has been taken to stop it.
Statutory authority - where an actionable statutory arises from activity permitted by statute
211
Is planning permission a defence to private nuisance?
No.
212
If you purchase a plot of land and there is an existing nuisance next door, can you claim?
No.
213
What are the remedies for nuisance?
Injunction
Damages
Abatement = claimant can take steps to stop the nuisance.
214
What is the rule in Rylands v Fletcher?
Imposes a strict liability when there is an escape of a dangerous thing from the defendant's land in the course of a non-natural use of the land.
215
How is Rylands v Fletcher different to nuisance?
There is no requirement for a continuing state of affairs - can be an isolated event
216
What are the elements of Rylands v Fletcher?
Defendant brings something on their land which is likely to cause harm if it escapes
Defendant was engaged in a non-natural use of the land
The thing gathered on the land does escape and causes damage.
217
Does there have to fault on behalf of the defendant for the tort in the rule of Rylands v Fletcher?
No. There is strict liability
218
What are the defences to the rule in Rylands v Fletcher?
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Unforeseeable act of stranger
Act of God
Consent - claimant might have consented to the accumulation of the substance
Contributory negligence
Statutory negligence
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