Tort Flashcards
What case was the modern law of negligence established
Donoghue v Stevenson
What four things need to be established by the claimant for negligence
D owed claimant duty of care
D was in breach of duty of care
D caused damage
Damage was not too remote
What test is used to establish duty of care
Caparo test
What elements are in the caparo test
Harm was reasonably forseeable
There was a relationship of proximity
It’s fair just and reasonable to impose a duty of care
What is meant by breach of duty - negligence
Not caring for claimant
Vaughan v Menlove
What is meant by factual causation - negligence
Applying the but for test
Barnett v Chelsea & Kensington Hospital
What is remoteness of damage - negligence
The defendant is only liable for loss which was of a forseeable kind or if the loss was much greater than expected
Wagon mound no 1
When does the caparo test not need to be used
When there is already an established principle
Which cases link to the caparo test
Harm was reasonably forseeable - Bourhill v Young
Relationship of proximity - McLoughlin v O’Brian
Fair just and reasonable - hill v chief Constance of West Yorkshire police
What is proximity (caparo test) and who defined it
Proximity is a convenient shorthand for a relationship between two parties who owe each other a duty of care
Closeness between C and D in time and space and relationship
Lord Nicholls
What is the objective test
What would the reasonable competent person in D’s position have done
RISK OF HARM
REASONABLE PRECAUTIONS
SOCIAL UTILITY
What is risk of harm - objective test
Small risk & reasonable precautions = no breach
Large risk and no precautions = breach
Bolton v Stone
Explain reasonable precautions - objective test
Only reasonable precautions required
No duty to eliminate all risks
Latimer v AEC
What is meant by social utility - objective test
If D’s conduct is of to benefit the society there may not be a breach of this outweighs the risks
No breach of duty where D acts to prevent greater harm, if social utility of action outweighs risks
Watt v Hertfordshire
What is meant by remoteness of damages
The requirement damage must be of a foreseeable type
Claimant must demonstrate damage was not too remote
Also needed to claim under occupiers liability
Often viewed as an additional mechanism of controlling tortious liability - not every loss will be recoverable. D is only liable for losses which were a direct consequence of the breach of duty
The wagon mound no 1 - damage must be of a kind which was forseeable
What did the wagon mound test state about remoteness
Damage must be of a kind which was foreseeable
Thin Skull rule
What is the thin skull rule
Defendant must take their victims as they find them
e.g if vicrim is particularly vulnerable that results in them suffering greater damage, defendant remains responsible for full extent of injury
What act is occupiers liability under
Occupiers liability act 1957
What does occupiers liability mean
The duty owed by land owners to those who come onto their land.
The duty imposed on land owners can be extended beyond simple land ownership and duty’s can be transferred hence term occupiers liability and not owners liability.
A distinct form of negligence as must be duty of care, breach of duty, causation of damage
Rules of remoteness apply in same way as to negligence claims
Must ensure the visitors are reasonably safe
What comes under occupiers liability act 1957
Obligation on occupiers with regard to lawful visitors
What comes under occupiers liability act 1984
Liability on occupiers with regard to persons other than visitors
What are occupiers
The question of whether a particular person is an occupier is a question of fact and depends on the degree of control exercised. There may be more than one occupier
Wheat v E Lacon & Co
Describe occupiers liability act 1957
Occupiers must impose a common duty of care to lawful visitors. The act is not only land but also fixed and moveable structures including any vessel, vehicle or aircraft.
Protected damage includes death. Personal injury and damage to property
Describe lawful visitors - OLA 1957
Invitees - those who have been invited to come into the land and have express permission to be there
Licensees - those who have express or implied permission to be there
Those who enter to pursue a contract - eg cinema ticket
Those entering in exercising a right conferred by laws - eg entering to read gas metres
Describe implied licence at commen law -OLA 1957
In absence of express permission to be on land, a licence may be implied at common law where there exists repeated trespass and no action is taken by the occupier to prevent people coming on to the land.
Requires awareness of trespass and danger
Lowery v Walker
What is the allurement principle - OLA 1957
Courts are more likely to imply a license if there is something on the land which is particularly attractive and acts as an allurement to draw people on to the land
Taylor v Glasgow city council
What are non lawful visitors - OLA 1957
1957 act does not extend protection to
Trespassers
Invitees who exceeded their permission
Person on land exercising public or private right of way HOLDEN V WHITE
What is the common duty of care - OLA 1957
Common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there
TWO PARTICULAR SITUATIONS WHERE STANDARD VARIES
- occupier must make child reasonably safe as a child of that age
- may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it
Describe child visitors - OLA 1957
Courts will account child’s age and level of understanding a child of that age may have
Jolley v Sutton
What is common calling - OLA 1957
Applies where occupier employs expert to come on premises to undertake work.
Expert can be taken to know and safeguard themselves against any dangers that arose from the premises
Roles v Nathan
Describe warnings and warning signs - OLA 1957
Possible for an occupier to discharge their duty by giving a warning of the danger
Roles v Nathan
Warning must cover danger that arises
White v Blackmore
No duty is needed to warn against obvious risks
Describe dangers arising from actions undertaken by independent contractors - OLA 1957
S2 (4)(b) OLA 1957
Occupier not liable for dangers created by independent contractors if occupier acted reasonably in all the circumstances in entrusting the work to the independent contractor and took reasonable steps to satisfy himself that work was carried out properly and contractor was competent
Ferguson v Welsh
What are defences against occupiers liability act 1957
Volenti non fit injuria - common duty of care does not impose obligation on occupiers in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles
Contributory negligence - damages may be reduced under law reform act 1945 where visitor fails to take reasonable care for their own safety
Exclusion of liability - allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so
White v Blackmore
What comes under the occupiers liability act 1984
Occupiers
Trespassers
Preconditions
Duty
Discharge of duty
Defences
What is the description of the OLA 1984
Occupier owes a duty to persons other than his visitors to take such care as is reasonable in all the circumstances to see that they do not suffer injury on the premises
What is a trespasser - OLA 1984
Anyone who
Enters without in station
Whose presence is unknown by the occupier or known to the occupier but he has objected in a practical was such as locking a gate or giving a verbal warning
Pearson v Coleman brothers
What was said about trespassers in Wood v Leadbitter
A visitor who stays longer than they should becomes a trespasser
What is meant by exceeding the limits of permission
Exceeding permission
Limits as to area
Limits as to time
Limits as to purpose
Tomlinson v Congleton
What is meant by preconditions - OLA 1984
Claim must arise from dangerous state of the premises or things done or omitted to be done on them
Occupier owes a duty of care in respect of a fangs on his premises if
A) he is aware of the danger or has reasonable grounds to believe it exists
B) he knows or has reasonable grounds to believe someone else is in the bin city of the danger or may come into it
C) and the risk in one against which in all the circumstances of the case, he may reasonably be expected to offer the other some protection
Donoghue c Folkestone properties
Describe duty - OLA 1984
Duty to trespassers for injury in the premises by reason of any danger due to the state of the premises or things done or omitted to them
To take such care as in reasonable in all circumstances to see that the trespasser does not suffer injury on the premises because of the danger
Ratcliff v McConell
What is meant by discharging the duty
Has D taken reasonable care?
Likelihood of trespass
Cost and practicality of precautions
Visibility and attractiveness of any danger
Common sense
An occupier should not have to guard against an irresponsible minority
Platt v Liverpool city council
Explain reasonable steps to warn or discourage - OLA 1984
Occupier must be able to discharge his duty by taking steps as are reasonable in all circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk
Defences to OLA 1984
Contributory negligence - young v Kent county council
Consent - D owes no duty on respect of risks willingly accepted by trespasser
Remedies for OLA 1984
Damages for personal injury and death
Can not claim damages for loss to property
What is private nuissance
Concerned with protecting the rights of an occupier in respect of unreasonable interference with the enjoyment or use of his land
Generally neighbours
What is public nuissance
A crime but becomes actionable in tort law if the claimant suffers particular damage over and above the damage suffered by the public generally
What are some examples of public nuissance
Flooding
Smells
Cricket balls
Brothels
What must someone have to claim private nuissance
A claimant must have interest in the land in which he asserts his enjoyment t or use has been unreasonably interfered with
Malone v Laskey
Claimants right to enjoy land is deprived
Bury v Pope
What is meant by unlawful interference - private nuissance
Unreasonable use of land by defendant which leads to unreasonavle interference with claimants use or enjoyment of land
Courts account
Nature of locality
Duration
Sensitivity
Malice
What is meant by locality / neighbourhood
Reasonableness of use of land assessed with regard to natural or locality
Sturges v Bridgman
Planning permission may affect change of locality
Gillingham Borough council v Medway docks
What is meant by duration - pub nuissance
Nuisances consist of a continuing state of affairs
Claimant is seeking injunction to prevent continuance of nuissance
Longer the nuissance lasts greater the interference
Spicer v Smee
What is meant by sensitivity - pub nuissance
Claimant abnormally sensitive or their use of land is D will not be liable unless activity would have amounted to a nuissance to a reasonable person using the land in a normal manner
Robinson v Kilvert
What is meant by malice - pub nuissance
Where D acts out of malice, actions held are unreasonable
Christie v DAVEY
What are remedies of public nuissance
Damages
Abatement
Injunctions
What are defences of pub nuissance
Prescription not available
Harvey v Truro
Statutory authority not available
A-G v Burridge
What is tort under Rylands V fletcher
A form of strict liability in that the defendant may be liable in the absence of any negligent conduct on their part.
Imposing liability without proof of negligence is controversial and therefore restrictive approach
What are requirements of Rylands v Fletcher
Accumulation on the defendants land
A thing likely to do mischief if it escapes
Escape
Non-natural use of land
Damage not too remote
What is meant by accumulation R v F
D must bring hazardous material on to his land and keep it there
If thinf is already on land or there naturally no liability will arise
Rylands v Fletcher
Giles v Walker
What is meant by a thing likely to do mischief R v F
Thing need not be inherently hazzardous, it need only be a thing likely to cause damage if it escapes
Hale v Jennings Bros
What is meant by escape R v F
Must be an escape from defendants land. An injury inflicted by accumulation of hazzardous substance on land itself will not invoke liability
Ponting v Noamez
What is meant by non natural use R v F
Open fire in a domestic fire grate does not constitute as non natural
Sochacki v Sas
What is meant by remoteness of damage R v F
Subject to rules on remoteness of damage point established in Cambridge water case
What are defences R v F
Act of stranger - escape caused by stranger and D has no control, D escapes liability Box v Jubb
Wrongful act of third party - Rickards v Lothian
Act of God - Nichols v Marsland
Statutory authority - Green v Chelsea Waterworks
Consent / benefit - if claimant receives benefits from tbinf accumulated they may have consented to accumulation
Peter v prince of wales
What is vicarious liability
Claimant suffers loss or injury + employer / employee relationships + tort is committed within course of employment
= defendant liable for torts of employee
Who is the d responsible for in vicarious liability
Employees - employer responsible
Independent contractor - employer not responsible
How do we know if someone is an employee
‘The multiple’ test
Uber case
If told what to do and how to do it = employee
What are the three factors in the multiple test
Control - is the employer in charge of the worker and the work
Personal performance - is the work capable of being delegated
Express & echo publications v Taunton
Mutuality of Obligations - worker and employee owe obligations to each other
Carmichael v National power
6 traits of an employee
Premises and equipment supplied
Paid salary
Not personally affected by desicions
Pays tax as employee
Needs permission to delegate work
Described as employee on contract
Traits of independent contractor
Pays tax as self employed
Own premises of equipment
Paid commission
Personally affected by seismic ions
Can’t delegate work without permission
Not described as employee
What happens in vicarious liability if there is an employment relationship
Connection between tortious act and the relationship
What test is used to see if a tort is committed in course of employment
Tort is committed in course of employment if it is
a) a wrongful act authorised by the master or
b) a wrongful act and unauthorised mode of going some act authorised by the master
(Authorised act done in unauthorised way or authorised act done in forbidden way)
(Century insurance v NI road transport)
What if an act is unauthorised - VL
Not in course of employment - unless benefits employer
(Twine v Bean)
What is the enterprise risk
Various claimants V CCWS
Where D is in a position to use employee to further its business interests and has done so in a way created or significantly enhance the risk the victim would suffer wrong doing. They are likely to be held vicariously liable for tort in question
What is the lister test
Used to establish close connections between emoloyees torts and their job - makes it fair and just to hold D liable
What are general defences for tort
Contributory negligence
Consent
What act did contributory negligence fall under
Law reform (contributory negligence) act 1945
What did the law reform contributory negligence act 1954 state
D must establish contributory negligence
At C’s own behaviour fell below standard of a reasonable person
Was damage reasonably forseeable consequence of the breach
Where is contributory negligence seen
Where claimant partly to blame for incident occurring in first place
( Brannan)
Where claimants conduct made injuries or losses worse
(Froom v Butcher)
What is defence of consent
Volenti non fit injuria
He who consents cannot he regarded as having been done an injury
Consent applies where claimant knows there is a risk of defendant acting in a negligent way and freely consents to that risk
Morris v Murray
What are remedies in tort
Damages
Injunctions
What are the types of damages
Compensatory damages
Spexial damages
General damages
What is the aim of compensatory damages
To put C back into position they were in before tort took place
Not to punish D, sum awarded does not reflect D’s level of fault
What are special damages
Awarded for losses that can be precisely calculated
For precuniary losses
Incurred between incident and date of judgment
e.g repair costs
(Povey v Goveners of Rydal school)
What are general damages
Awarded for losses that cannot be precisely calculated
e.g pain, suffering, loss of amenity
What is future loss calculated
Future loss of earnings + cost of further medical care multiplied
Multiplier represents years claimant would have worked and earned a living but now isn’t able too
How is compensatory damages given
Damages act 1996
Parties can agree all or part of the sun will be awarded will be paid at periodical payments or at regular intervals
What is a structured settlement
May be fairer to claimant whose condition may deteriorate over time
May be fair to D if claimant condition improves and no longer requires same level of support
Courts no power to award structured settlement
What is mitigation of loss
C must keep his or her losses to a reasonable level
HL motor works LTD v Alwahabi
What’s an injunction
Court order to stop D doing something
If breached subject of order will be in contempt of court
Where are injunctions often used
Nuissance cases
Coventry v Lawrence
What is a mandatory injunction
Orders made force D to do something
e.g soundproof noisy factory
