Tort

Question 1

4 parts to committing a tort?

Answer 1

1. Was the C owed a duty of care;
2. Did D breach the duty (fell below standard of reasonable person etc)
3. Causation / remoteness of damage
4. Consider defences

Question 2

Establishing a duty of care, what are the steps?

Answer 2

1. Established duty situations (look to case law); or
2. Novel duty situations (look at Caparo v Dickman test).

Question 3

What are the common established duty situations?

Answer 3

• one road user to another: this would include driver to other drivers; driver to passenger; driver to pedestrian; cyclist to driver; cyclist to pedestrian
• doctor to patient
• employer to employee
• manufacturer to consumer
• tutor to tutee, teacher to pupil

(No pure psychiatric harm or pure economic loss)

Can establish duty NOT owed e.g no established general duty owed by the police to a suspect regarding the way in which the police conduct their investigation. This is considered in the case of Hill v Chief Constable of West Yorkshire [1989].

Baker v TE Hopkins & Son Ltd - motorists owe duty owed to rescuers

Question 4

What is 3 part Caparo test?

Answer 4

1. Is the foresight of harm reasonable;
2. Is there a relationship of close proximity; and
3. Is it fair, just and reasonable to impose a duty.

Question 5

What situations will Courts not impose duty?

Answer 5

• a negligent police investigation;
• a careless omission to act by a local authority;
• a negligent statement by a journalist causing economic loss; and
• psychiatric injuries caused by a major train crash.

Question 6

Case re foreseeability of harm?

Answer 6

Bourhill v Young [1943] - pregnant woman heard traffic accident, ran over to see and had miscarriage from shock. Harm was unforeseeable so no duty of care.

“is it reasonably forseeable that my actions harm victim”

Question 7

Fair just and reasonable?

Answer 7

Policy reasons - Hill v Chief Constable of West Yorkshire [1989] C sued D for failing to catch serial killer who killed their child. Court chose not to impose duty due to floodgates.

Question 8

What will Courts consider when taking into account if its fair, just and reasonable to impose a duty?

Answer 8

1. Will it open floodgates
2. Will it deter others from acting in anti-social way
3. Would it be in public’s best interest
4. Will it uphold the law
5. Will it use up scarce resources (e.g if someone doesn’t have insurance and will have hard time paying out of pocket).

Question 9

General rule: no duty of care for omissions

What are the exceptions? (2 of them but 2 parts to second 1)

Answer 9

1. Cannot make situation worse (case where wall eroded, counsel didn’t fix when they could, eventually fixed it, found no duty unless made it worse);
2. Special relationship i.e control over the other then positive duty to safeguard:
   - teacher to pupil
   - Employer to employee
   - Doctor to patient
   May be duty on person in control to stop hard to hird parties caused by person under control (think case where young offenders on trip damaged yacht and home office was liable). (Or think or student driver and driving instructor)

Question 10

What is the general rule re pure economic loss? Is it the same for consequential economic loss?

Answer 10

No duty imposed for pure. No special rules for consequential economic loss (economic loss arising out of damage).

Question 11

What is case of Murphy v Brentwood?

Answer 11

The key point in Murphy was that the defects in the house had become apparent before they caused any physical damage to any person or other property. The only thing suffering damage from the cracking and subsiding was the house itself. A claimant in that situation would incur the cost of repairs, or suffer a reduction in value of the property – and the court held that this amounted to pure economic loss. Essentially, the claimant had simply acquired something which was less valuable than the price he paid for it.

This case means the cost of a defective item is not recoverable i.e I bought hairdryer and it blew up. Cost of hairdryer not recoverable but any other property it damaged whilst blowing up is.

Question 12

What are the two types of economic loss?

Answer 12

• economic loss caused by damage to the property of a third party; or
• economic loss caused where there is no physical damage

Question 13

Can you recover economic loss that flows from damage to third party property?

Answer 13

No the loss needs to flow from damage to your own property. If borrow suit for wedding from your friend, fire burned suit so you have to hire one. The cost of hiring is pure economic loss.

Question 14

Economic loss where the loss is not connected to any damage:

1. Whats the situation with negligent actions?
2. Whats the situation with negligent statements?

Answer 14

1. negligent actions - no duty of care. Think case where research centre negligently released foot and mouth disease which infected local cattle and forced cattle markets to close. Local auctioneer lost money and sued centre. Negligent action caused no damage to auctioneer so no duty.
2. negligent statements - no duty unless special relationship. Often fiduciary. Case: Hedley Byrne v Heller originally but then later on Caparo v Dickman (accounts case and also case for testing if a novel duty arises)

Question 15

What is the case of Hedley Byrne v Heller (test for a special relationship)

Answer 15

The two elements to a special relationship under Hedley Byrne are:
(a) an assumption of responsibility by the defendant;
(b) reasonable reliance by the claimant.

Question 16

Expansion of special relationship test (with regards the first part of an assumption of responsibility) in Caparo for negligent statement?

Answer 16

The case of Caparo laid down the four criteria to be satisfied for a defendant to have assumed a responsibility towards a claimant:

1. The defendant knew the purpose for which the advice was required.
2. The defendant knew that the advice would be communicated to the claimant (either specifically or as a member of an ascertainable class).
3. The defendant knew that the claimant was likely to act on the advice without independent inquiry.
4. The advice was acted on by the claimant to its detriment.

Question 17

Negligent statement - will a duty of care be owed in respect of advice given in a social situation?

Answer 17

Generally no duty of care will be owed in respect of advice given in a
social situation because there is no assumption of responsibility. This is confirmed in the case of Chaudhry v Prabhakar [1989]. In this case duty was owed because:
1. the defendant had more experience and knowledge about cars than the claimant, and
2. the claimant had made it clear that she would be relying on his skill and judgment.
In those circumstances this was not simply advice given on a social occasion. The defendant had gone beyond this and had assumed a
responsibility to the claimant.

Question 18

Connection between Hedley and Caparo?

Answer 18

In order to have duty for PEL, there must be a special relationship between C & D. The test for the 2 elements of a special relationship are from Hedley (being (1) assumption of responsibility and (2) reasonable reliance on advice).

In order to establish if responsibility has been assumed look at Caparo

1. Know what advice for
2. Know advice communicated to D
3. Know will act on advice without independent inquiry
4. Acted on advice to detriment

Question 19

Extensions of Hedley principle?

Answer 19

1. Spring v Guardian Assurance plc - Duty of care owed by former employer to take care in providing reference to THIRD PARTY (not made to claimant)
2. White v Jones - Client instructed solicitor to prepare will, took to long and he died, beneficiaries lost out. Duty owed to benes. Bene did not rely on solicitor, but sufficiently close relationship none the less. Foreseeability of solicitors actions.

White also to do with NEGLIGENT SERVICES rather than STATEMENT (think professional services)

Question 20

Can D rely on exclusion notice (defence - first establish 1. duty 2. breach 3. causation. Then move to defence)? Need 2 things:

Answer 20

1. Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed.
2. The wording of the notice must cover the loss suffered by the claimant.
3. Cannot be excluded under the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015.

Question 21

What does UCTA say and who does it relate to?

Answer 21

B2B

1. Cannot exclude liability for personal injury or death
2. Must satisfy reasonableness test under s2 of UCTA

Requirement of reasonableness means that it should be fair and
reasonable to allow reliance on the exclusion notice, having regard to all the circumstances.

Elements:
1. Fair
2. Reasonable
3. Regard to all circumstances

Question 22

What does CRA say re limitation of liability

Answer 22

Consumer 2 Business - Defendant must be acting in Course of business
!

1. Cannot exclude liability for personal injury or death
2. Must satisfy fairness test under s62 of CRA

A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

Different to reasonable as has element of:
1. Unfair
2. Good faith
3. Imbalance of parties’ rights and obligations under the Contract

Question 23

Case law re fairness test under UCTA

Answer 23

Smith v Eric S Bush; Harris v Wyre Forest District Council [1989] - surveyor tried to exclude liability for any accuracy of survey or any responsibility. Did not pass fairness test.

Factors to consider:

1. Were the parties of equal bargaining power?
2. In the case of advice, would it have been reasonably practicable to obtain the advice from an alternative source taking into account considerations of cost and time?
3. How difficult is the task being undertaken for which liability is being excluded?
4. What are the practical consequences, taking into account the sums of money at stake and the ability of the parties to bear the loss involved, particularly in the light of insurance

(think: 1. parties bargaining power 2. cheap/easy tog et other advice 3. is it a hard or complex task 4. lots of money job / are they insured)

Question 24

What is the general rule for psychiatric harm? Does it relate to consequential psychiatric harm? What is pure psychiatric harm?

Answer 24

No duty of care for PPH (exceptions apply). No special rules for consequential.

PPH = psychiatric harm not caused by damage (similar to pure economic loss)

Question 25

What is a primary and secondary victim?

Answer 25

Primary:
1. In actual area of danger; OR
2. REASONABLY BELIEVED he was in danger.

Secondary:
Less closely involved in incident:
1. witnessed incident; or
2. feared for safety of another.

Question 26

What 3 factors are needed for a duty to be owed for PPH? Different types of victim?

Answer 26

1. Caused by sudden single shock (NOT drawn out events e.g watching mother slowly dying from cancer);
2. Inducing medically recognised psychiatric illness OR shock induced physical injury such as a miscarriage.

Rules different for different victims:

Primary Victim:

In addition to 2 criteria above, risk of PHYSICAL injury must be foreseeable, but the psychiatric harm need not be. PSYCHIATRIC INJURY NEED NOT BE FORSEEABLE! Examples:

• Page v Smith, victim in car crash. Physical injury was foreseeable but no physical injury, only psychiatric. As the physical injury could be foreseen there was a duty of care.
• Dulieu v White & Sons - Horse drawn carriage driven negligently in pub. Victim reasonably feared for her own safety (and was therefore a primary victim). Sudden shock caused a miscarriage. Physical injury was reasonably foreseeable BY HER so duty was owed for PPH.

Secondary victim:

In addition to 2 criteria above must satisfy ALCOCK CONTROL MECHANISMS.

1. PSYCHIATRIC HARM needs to be foreseeable (was it reasonably foreseeable that a person of normal fortitude would suffer a psychiatric illness);
2. Close ties of love and affection between actual victim (Presumption with husband, wife, parent, child. D can disprove if not actually close. If don’t fall into category but are v close C must prove);
3. Close proximity in space and time; Secondary victim must witness either the event OR the immediate aftermath (e.g case where saw children at hospital straight after. NOT for brother identifying remains in morgue 8 hours after);
4. Close proximity of perception; must witness with own sense and not on TV (if broadcasting channel broke ethics and broadcasting probs an intervening act). - EXCEPTION if watching the broadcast as bad as seeing the real thing (e.g watching kids in hot hair balloon take of and burn)

Big difference is need actual foresight of psychiatric harm for secondary victims.

Alcock case - victims who watched Hillsborough disaster tried to sue. No duty of care.

Question 27

What is the test for duty of care for rescuers suffering PPH?

Answer 27

No special test - treated in same way.

If they were a primary victim then needs to be 1.sudden event 2. Causes PPE or shock induced injury. And also need physical injury to be foreseeable.

Secondary? Alcock control mechanisms.

Professional rescuers like police treated in same way. Any rescuer, professional or not, is NOT expected to be more resilient.

Chawick v British Rail - man who lived near by came to train crash site, asking to crawl under debris due to small size and give injections to victims. Primary victim as in physical danger. No physical injury but PPH. Duty owed even though rescuer.

Question 28

What else is needed to recover for PPH apart from a duty of care?

Answer 28

1. Duty of care
2. breach of duty
3. Causation
4. Any defences

Have to show D fell below the reasonable standard of care, their negligence caused the damage (damage cannot be too remote). Usually duty of care & causation is disputed.

Egg shell skull rule - must take victim as you find them. For secondary victim, have to get over is PPH is foreseeable to person of reasonable fortitude. But can then rely on egg shell skull rule - even if harm is way more severe than normal person. EXTENT OF HARM NEED NOT BE FORSEEABLE.

Primary victim - just need physical injury foreseeable, then can rely one gg shell skull.

Question 29

The skilled defendant standard?

Answer 29

Fell below standard of reasonable person with that specific skill. May be able to rely on reasonable body of professional opinion that they were not negligent (Bolam v Friern).

Bolitho - if that body of prof opinion not reasonable or responsible then cannot rely. not capable of withstanding logical analysis?

Question 30

The under skilled defendant?

Answer 30

Nettleship v Weston 1971 - even if inexperienced still judged to same standard (learner driver held to same standard of reasonable driver).

Wisher v Essex Health - junior doctor still reasonable standard of doctor

Standard of care based on task carried out not their skill.

Wells v Cooper - doing odd jobs around the house expected to meet the standard of an amateur. E.g amateur carpenter. If carried out a job that should have been done by professional that is completely out of your capabilities you are negligent for attempting it.

Question 31

Summary of standard of care.

Answer 31

If you have special skill you are judged on reasonable person with that special skill. Think Consultant Surgeon or something.

If you carry out a task that requires a specific skill (such as doctor, lawyer, driver) by carrying out that task you are holding yourself out to have that skill. Therefore judged on basis of reasonable driver / lawyer / doctor. No allowances for inexperience.

If not holding yourself out to have a skill but still attempt something (like doing odd jobs in home) judged to lowest standard i.e amateur. So if completely out of skill set may be negligent for eve attempting.

Question 32

Special standard of care - children?

Answer 32

Held to standard of child that age.

Mullin v Richards - 15 year old girls sword fighting with rulers, one snaps and partially blinds the other. Did not fall below standard of 15 year old.

Younger the child the harder it is to fall below standard.

Children must be represented by litigation friend in Court - usually parent.

Question 33

What factors will the Courts consider when deciding if fell below the standard of reasonable care?

Answer 33

1. Magnitude of risk
2. Cost and practicalities of precautions
3. Defendant’s purpose
4. Common practice
5. Current state of knowledge

Question 34

Factors Court considers for breach of duty

Magnitude of risk?

Answer 34

• How likely D could cause injury (Bolton - cricket ground hit balls out of club, only 6 times in 30 years so no breach as accident forseeable but v unlikely. Fardon Harcout - **protect against reasonable probabilities not fanatstic probabilities ** 4 year old straying from school and walking in road causing lorry to swerve not fantastic. Justificable to not take steps to mitigate risks where risks of injury is small and personably person would.
• If injury caused then how serious? (greater chance of injury then more care - Paris v Sepney, didn’t give goggles to someone blind in one eye durign expeirent. Blind in both eyes. Small risk great injury).

Question 35

Factors Court considers for breach of duty

Cost and practicalities of precautions?

Answer 35

• Is cost and expenditure proportionate? Latimer - clsoing whole factory down because ran out of saw dust topoor on slippy floor not proportionate. Small risk of injury & large expenditure? Probs not. If large risk of injury and large expenditure then probs will.
• Court generally won’t allow lack of money as an excuse!

Question 36

Factors Court considers for breach of duty

Defendant’s purpose

Answer 36

• Saving a life, less likely to be liable
• Watt v Hertfordshire - fireman saving woman under lorry, carried equiptment in normal lorry as didn’t have truck, claiamnt got hurt but no breach of duty.
• Ambulances can still be liable

Question 37

Factors Court considers for breach of duty

Common practice?

Answer 37

May eb able to escape laibility if can show acted out of common practice (think of the Boham case where did not give D a muscle relaxant before shock therpay. Relied on reasonable body of professional opinion).

Question 38

Factors Court considers for breach of duty

Current state of knowledge?

Answer 38

• Was risk forseeable?
• can only mitigate what is forseeable
• Roe v Ministry of Health - woman paralysed as anaesthetic was contaminate through invisible crack. Hospital di not know about risk as risk of seepage not know at time. No breach. Could not reasonably be expected to take precautions.

Question 39

How to provde breach of duty?

Answer 39

1. Usually:
   * Witness of fact;
   * Expert evidence.
2. Rarely: Res Ipsa Loquitur (“the thing speaks for itself)
   * Can rarely be used if no evidence
   * Scott v London - bag of sugar loaded by hoist fell and injured claimant. Test:

(a) Thing causing accident under control of control (or caused by someone claimant controls)
(b) Accident would not normally occur without negligence
(c) C does not know how accident caused and no direct evidence of falling below breach.

It is rare the above is met, but if it is, the obligation will then be on D to provide a** reasonable explanation as to how the accident could occur without negligence. 2 possible routes:
1. Show how accident actually happened without D’s neggy;
2. If don’t know - show reasonable standard of care was used the whole time.**

Question 40

s11 Civil Evidence Act 1968?

Answer 40

If the D was convicted of the criminal offence is presumed to have committed the offence in civil proceedings. If convicted of careless codncut (e.g careless driving) claimant cant rely on this as evidence of breach.

Won’t work if D convicted of not having insurance !

Question 41

What are the 3 parts of causation?

Answer 41

1. Did negligence cause damage?:
   * Causation in fact NOT law like crim
2. Was there an intervening act?
3. Was the damage to remote?

Question 42

What are the different factors for causation of fact?

Answer 42

1. But for negligence, would damage have happened - Barnett case, patietn came into hospital unwell and died of arsenic poisioning. Even if hospital discovered it, would ahve died anyway. No causation.

Show on balance of probs negigence caused damage. If illness had 75% chance of killing anyway, doctor did not cause it. Case where baby had 5 different causes of blindness (one being negligent acts by doctor). No causation on BoP.

2. Multiple causes cases, D just needs to show negligence materially contributed. Guilty dust cases, 2 causes of illness. Employer materially contributed. Not on facts on baby blindess cause, didn’t show materially contributed simply shown tehre were many alternative causes and may be one of them. Have to shwo ACTUALLY materially contributed on balance of probs (not just one of many factors).

3.. (EXCEPTION) Material increase in risk of injury rather than actually contributing - very rare, only if scientific uncertainty. New case says probs only mesothelioma (cancer rare).

Usually BUT FOR, exceptionaly (if multiple contributing causes) no 2

RARELY 3. Only for the rare cancer.

Question 43

If a Claimant is injured more than once, can you claim against the second?

Answer 43

If in car accident that damages your car, but already got in a previous accident that damaged paint on car, cannot claim against second one (Performance Cars case). D only liable for what he makes worse.

Question 44

How are damages divided if more than one Defendant causing damage?

Answer 44

If the injury is easily split up the Court will apportion the damages between defendants (e.g Holtby v Brigham and Cowan (Hull) Ltd 2003 where employee worked for many different employers over the years and got asbestosis from being around asbestos - the court made each employer liable depending o how many years the claimant worked there.

Most cannot be divided in this way.

Question 45

What if multiple D’s but an indivisible injury?

Answer 45

Each person liable to pay all, Claimant can chose who to use and up to them to seek contribution from the other.

Civil liability (Contribution Act) 1978- court can apportion damage if between multiple people if they are responsible for damage, however, the damages recovered by claimant are not effected

Question 46

What are the different types of intervening acts?

Answer 46

1. Claimant’s own acts
2. Acts of third parties
3. Natural events “act of god”

Question 47

When does an act of a third party (1) break the chain (2) break the chain?

Answer 47

Does not break chain:

1. Instinctive intervention does not berak chain - think Scott v Shepard - light firework thrown into crowd, others threw it further along. Blew up in front of 3rd person. Did not break chain.
2. Forseeable consequences of negative act unlikely to break chain - car negligently blockd tunnel, police drove his car back through tunnel to tell people it was blocked. Collided with car. This act was NOT a forseeable consequence of the car blocking tunnel so did break chain.
3. Did the third parties just materially contribute to negligence rather than break chain? Rouse v Squires - lorry blocked two lanes of motorway (car A collided with the lorry. Mr Rouse got out to assist but another car (B) struck him and killed him. Car A and B were liable - the chain wasn’t broken as it was forseeable that other cars could come along and crash. Both cars
   materially contributed to the negligence.
4. Defendant was liable in Stansbie v Trojan (1948) defendant was redecorating for the claimant and left the house unattended - house owner had told him to ensure it was closed before he left - thief
   came in and stole items.Claimant was responsible as he did not take care to avoid thief’s getting in- the defendant had impliedly agreed to take responsibility to take care

Consider if there was implied or express responsibility to take care. Relationships between the parties is important.

Might break the chain:

1. If conduct of third party is RECKLESS or INTENTIONAL might break chain.Lamb v Camden London Borough Council (1981) defendants caused damage to claimants house, whilst being repaired squatters came in and caused damage - original defendants werent liable
2. Medical treatment only breaks chain if so grossly negligent it was disproportionate to neglgient act.

To decide if act is reckless/intentional or if materially contributed to neggy, consider if it was forseeable consequence of action that was also negligent and not instinctive.

Question 48

When does an act of a the claimant (1) break the chain (2) break the chain?

Answer 48

Breaks chain:

1. For a claimant actions to break the chain of causation they have to be entirely unreasonable.

McKew v Holland and Hansen & Cubitts (Scotland)Ltd (1969) defendant weekend claimant’s leg, claimant then walked down steep stairs without handrail, leg gave way and he hurt himself further. this broke the chain and the defendant wasn’t responsible.

Does not break chain:

1. If Claimant acted reasonably

Wieland v Cyril Lord Carpets Ltd (1969) claimant’s neck injured due to claimant couldn’t wear glasses with her neck brace and fell down the stairs and caused further injury - chain of causation not broken as the claimant had acted reasonably.

2. If D acted in careless manner usually just claim contributory negligence instead. Reduction in damages.

Question 49

What does it mean that the damage cannot be too remote? What is the test?

Answer 49

Damage cannot be too far removed from act i.e not too unusual and unexpected.

Test:

The Wagon Mound 1 - is the damage itself a kind that a reasonable person would foresee? If not then not recoverable.

Wagon mound case was D operated ship that negligently spilled oil in the water, claimant was a ship builder who owned wharf in harbour and its employees were using welding equipment on the water. Oil on water ended up igniting - the claimat’s wharf and a ship under repair were damaged. Court used this test and found defendant was not liable as damage was not forseeable.

Question 50

What are the two provisions to the usual remoteness of damage (Wagon Mound 1) test?

Answer 50

1. Similar in type rule
   * If C suffers injury that is forseeable it doesn’t matter the exact way the injury happened even if a bit weird. Hughes v Lord Advocate (1963) repairing a cable under ground, man whole left with parifin lamp around the site whilst employees went on tea break. 8 year old boy and 10 year old boy took lamps and went in the man hole - as they came out one of them knocked lamp into hole which caused big fire. The claimant then fell in the hole and suffered burns. didn’t matter that the way the burns happened were a bit odd - burns were forseeable when
   paraffin lamps are left around so the way in which the burns occurred didn’t matter.

When is similar in type test not satisfied? Termain v Pike - C worked on D’s farm, D allowed rats to negligently multiply and breed on farm. C came into contact with rats and goy rare disease from rat piss. Forseeable injury would have been from rat bites - not rare injury from piss. Loss too remote.

2. Egg shell skull rule
   * Take victim as you find them
   Robinson v post Office(1974) claimant suffered injuries to his leg as a result of negligence - got anti-tetanus shot and had a bad reaction. Defednant was liable for both the injury and the reaction -
   defendant ought to have reasonably foreseen claimant would need medical treatment, therefore, defendant was liable for the consequences of the treatment even if they were not forseeable as
   you must take the victim as they come.
   Also relates if victim say lost loads of money because they are a high earner! Or if refuse transaplant for religious reasons and dies.

Question 51

What are the defences?

Answer 51

1. Consent (volunatry assumption of risk) (complete defence)
2. Contributory negligence (partial defence)
3. Illegaility (complete defence)

Question 52

What is the defence of consent and when is it used?

Answer 52

Consent (volunatry assumption of risk) is a compelte defence.
1. STEP 1: Know about risks
2. STEP 2: Go on to consent to the risks (cannot just know about them).
* Consent given FREELY and WITHOUT DURESS
Road Traffic Act - cannot use consent as defence in road traffic.
RARE!
* Rarely works on employees as don’t really have freedom of choice.
Smith v baker (1891) man injured when heavy crane dropped load on him - carried on working knowing the risks involved.Court found he did not consent in law to the risk
* Rarely used on rescurers as not freedom of choice more of a moral obligation. TEST: Recuers not consented if:
(a) Rescuing person or property endangered by C;
(b) Acting under a social or moral duty; and
(c) Actions were reasonable and a probable consequence of the negligence. (i.e not anything out of pocket!)
Haynes v Harwood (1935) police offer chased defendants runaway horses with a van attached, got injured and sued, defence of consent failed as he was acting to rescue people from imminent danger.

Question 53

What is the defence of contributory negligence and when is it used? How does it relate to (1) Seatbelts (2) Crash helmets (3) Drunk Driving (4) Children (5) Rescuers (6) Employees (7) Dilemma cases.

Answer 53

Partial defence!
Test:
1. C must have acted carelessly; and
2. Carelessness contributed to damage.
Doesn’t have to be contribution to accident just needs to MAKE DAMAGE WORSE!!! Authority is Law Reform (Contributory Negligence) Act 1945.
Court can reduce damage as it seems “just and equitable” having regard to all circumstances.
Reeves v Metropolitan Police Commissioner [1999] 3 All ER 897,
the deceased hanged himself while in police custody. He was found 50% to blame and so only 50% of the damages were recoverable.

What will Court consider hen reducing damages?
1. Extent Court thinks just and equitable
2. Blameworthiness of parties
3. Causation: How much did careless contribute to the LOSS?

**Seatbelts **
If you don’t wear a seatbelt in an accident this can lead to contributory negligence:
* Froom v Butcher (1975) = scale of reductions when claimant doesn’t wear seals belt
* This case shows there needs to be a causal link established by defednant between not wearing a seatbelt and the injury (needs to actually cause injuries)

1. Claimant suffered injuries which would have been avoided had a
   seatbelt been worn. 25%
2. Claimant suffered injuries which would have been less severe had a
   seatbelt been worn. 15%
   **
   Crash helmet**
   In the case of Capps v Miller [1989] 2 All ER
   333, the Court of Appeal adopted the same tariff for failure to wear crash helmets as that laid down for seatbelts in Froom v Butcher. As for seatbelts, the defendant will need to establish the causal link between the lack of any crash helmet and the claimant’s injuries

Drunk driving
Passengers who accept lifts from a driver whom they know to be drunk, can expect to have their damages reduced if they are injured in an accident caused by the driver’s intoxicated state.
This principle applies even if the passengers were too drunk to appreciate the driver’s intoxication but knew that, by going out drinking together, they would later be driven home by the driver when the driver would be drunk. In other words, self-induced intoxication cannot be used as an excuse by claimants for failing to take reasonable care of themselves (Owens v
Brimmell [1997] QB 859).

How about if went out drinking thinking could get taxi back, but then couldn’t so drink drove?

Children
no age below which, as a matter of law, a child cannot be
contributorily negligent. However, the older the child, the more likely a court is to make a finding of contributory negligence.

Going v Thames (1966) - lorry stopped and signalled a girl to cross (13 years old) - she crossed and a car injured her. She was found not to have contributed negligently as she acted like a reasonable 13 year old - an adult might have done.
* If a child’s parents acted negligently, the child’s damages will not be reduced for this - child not identified with the parents negligence. D may seek contribution under Civil Liability (cont) Act.

Rescuers
Cont neg may work even though conent doesn’t.
Test:
1. Held to standard of reasonable rescuer (allowances made for emergencies);
2. Only cont neg if rescuer shows “wholly unreasonable disregard for their own safety”. Rare.
Think Baker v TE Hopkins case - contractors cleaning out well, told not to go in until petrol fumes cleared. Did, doctor rescued, all died including doctor. No cont neg.

Employees
Court considers all: how repetitive, dull, boring, noisy work is etc. We are only human after all! For example, more likely to find office workers guilty of cont neg than say construction workers in mine.

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Lord Atkin said:
I am of opinion that the care to be expected of the plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain, and manifold risks of factory or mine.

Dilemma cases
If claimant acting in *AGONY OF MOMENT *due to D’s neggy, not contributory negligence if acting with REASONABLE RESPONSE TO DANGER.

Jones v Boyce (1814-23) Claimant jumped off coach due to negligent driving and broke leg - this was considered reasonable

Sayers v Harlow (1958) - trapped in toilet, tried to climb out, couldn’t slipped and fell, court reduced her damages due to contributory negligence

The test for contributory negligence is whether the claimant has failed to take reasonable care for their own safety - tested by standards of reasonable person in the circumstances

Question 54

What is the defence of illegality and when is it used?

Answer 54

If C involved in illegal activities that DIRECTLY RELATED to harm then defence. Consider equitable maxim “No action arises from a disgraceful cause”.

Ashton v turner (1981) escaped from burglary but defendant’s driving caused crash and hurt claimant. Claimant sued but was found the defence of illegality applied.

Pitts v Hunt (1990) - motorcycle crash, passenger of motorcycle sued car and person driving bike. Bike guy and passenger had both been drinking and passenger encouraged bike man to drive recklessly - illegality defence applied.

Must be a very close connection with the criminal activity and the they injury suffered, damage arises directly out of crime.

Question 55

What are compensatory damages?

Answer 55

Measure of damages: put claimant in position as if tort had never been committed (unlike contract law which puts claimant in position as if contract had been performed correctly)

Question 56

What is mitigation of loss in PI?

Answer 56

Claimant must mitigate their loss, can’t claim for loss they could have stopped incurring
* If they lost their job and could work, they must look for another job
* claimant must not profit from the incident but also not be worse off
* Must take all reasonable steps to keep **loses to a minimum **

Question 57

What are general and special damages? What are the two types of damages in PI?

Answer 57

• Special = can physically calculate e.g loss of earnings pre-trial
• General = cannot calculate - court must determine

Pecuniary damages: Can put a financial value on e.g loss of earnings - can be pre or post trial but must be calculated in terms of money. How long expected to be off work. Even though cant work that out exactly so would be geberal damages, can put a monetary value.

Non-pecuniary damages: Not calculated by way of money e.g pain & suffering, loss of amenity. (General damages - cannot be calculated)

Question 58

How are medical expenses calculated?

Answer 58

• Pre trial = special damages
• Post trial = general damages - court will base on the annual cost of treatments year and number of years treatment will continue
• Can go private !! Doesn’t have to be NHS. But if NHS won’t get paid. Only losses actually suffered.

Law Reform (Personal Injuries) Act 1948 - claimant will not have failed to mitigate loss for using private health care instead of NHS

Question 59

How to caluclate loss of earnings pre trial?

Answer 59

• Special damages
• Calculate net earnings for the period which includes: deductions for pension contribution, tax, NI. Basically want the take home sum! Think figure in your payslip.
  Claimant should be put back in the position as if the tort never happened. Therefore if got regular overtime, bonuses, reduced mortgage or other perks, company car etc should be included.

Question 60

What is loss of amenity?

Answer 60

Loss of enjoyment in life.
* A more active person with more hobbies would probably get more
* West v Shepard (1964) - can get loss of amenity even if unconscious

Question 61

What is recoverable for pain and suffering?

Answer 61

• incurred as a result of injury, past/present/futureCovers shortened life expectancy
• Court usually gives one figure to include pain & suffering/loss of amenity
• Wise v Kaye (1962) can only recover for pain/suffering if you know about it e.g can’t recover for pain and suffering if unconscious for that period - could get loss of amenity

Question 62

How to calculate non-pecuniary damages?

Answer 62

Lawyers will often look to Judicial College Guidlines for Assessment of General Damages in Personal Injury Cases, Kemp on Damages etc to advise clients. Contains loads of cases.

Question 63

How to calculate loss of earnings post trial?

Answer 63

More complicated! Pecuniary but general damages as cannot be calculated. Will depend if C will ever work again or if just needs a bit of time off work.

Formula:
1. Multiplicand = net salary, take into account promotion if likely, no interest as can invest
2. Multiplier = How long can never work again (pre-accident like expectancy). Smaller if could work again in future. Important to be protected against inflation so add on “discount rate” set by Lord Chancellor (Damages Act 1996). Use Ogden tables that take into account discount rate and client’s age to work out the multiplier. Current discount rate is -0.25 which reflects low risk investment. Select correct multiplier from Ogden table.
3. Take away for contingencies of life such as redundancy (don’t want to overcompensate). COuld reduce multiplier

Question 64

Loss for reduced life expectancy?

Answer 64

Can be compensated for lost years if tort decreases your life expectancy - in order that those relying on you financially are supported (providing for dependants)
* Pickett v British Rail Engineering (1980) - could recover future loss if life expectancy shortened
* In these calculations, court works out how much they would have earns and deduct what they would have spent on themselves - 25% if married with dependant children and 33%for those with no dependants - different figures can be argued as these are averages but need evidence on if
claimant would spend more or less on themselves
* Only need to make this deduction when life expectancy is reduced

Question 65

Loss of earnings for children?

Answer 65

• difficult for courts to assess what they would earn
• Can take a national average or look at what parents earn and assume they follow similar path
• Can argue if child has shown any potential in an area of future employment - may be used to help assess future earnings

Question 66

Recovery of money for services provided to C?

Answer 66

• Claimant might need services due to negligence: help with housework, gardening laundry or nursing care
• Schneider v Eisovitch (1960) can recover this loss claimant can show the need for these services arises from the tort
• Must show costs are reasonable and in line with market rate
• Third party CANNOT recov er directly from D
• Claimant can cover cost if family member gave up employment to care for them - Housecroft v Burnett (1986) starting point to work out these costs is loss of earnings suffered by carer but cannot be more than commercial rate for providing these service

Question 67

Loss of potential earnings?

Answer 67

If at original job and there is a real risk claimant could lose job and be disadvantaged getting a new one due to disability then may be able to recover loss of earning potential (judge has to really be satisfied there is a risk of claimant losing job) - Smith v Manchester Corporation is where head of damage was established
* If the claimant has already been forced to leave job they would just claim loss of future earnings in the normal way

Question 68

Exceptions to over compensation rule?

Answer 68

Allowed to keep:
1. Insurance payout
2. Ill health pensions
3. Charity payments
This is for policy reasons.

Will be deducted state benefits payable due to harm caused by neggy, but to ensure D still pays the gov can force D to pay this sum to them. Social Security (Recovery of Benefits) Act (1977.

State benefits cannot be deducted from pain, suffering & loss of amenity.
Can be deducted for:
1. Compensation for lost earnings;
2. Compensation for cost of care;
3. Compensation for loss of mobility.

Question 69

What are the 2 statutory exemptions that damages should be paid in a singular lump sum?

Answer 69

1. Senior Courts Act 1981 - allows for award of provisional damages e.g if you might lose an eye. Chance of serious deterioration then prov damages would be awarded seperately.
2. In some cases the Damages Act 1996 allows the Court to award damages for PI as period payments rather than a lump sum.

Question 70

What are the relevant provs under the Law Reform (Miscellaneous Provisions) Act 1934?

Answer 70

Covers when C dies before compensation. Need not be death due to neggy. No new causes of action, estate just steps in and continues. Must already have valid claim.

Bereavement damages and DEFAMATION do not survive death of C.

• Claim against D made against estate
• Claim for C made on behalf of estate
• Funds received by estate due to death DO NOT IMPACT damages i.e insurance pay out, lump sum payment of pension (policy reasons)
• Any money state has to pay out because of death not taken into consideration accept reasonable funeral expenses can
  be claimed, provided they have been paid for by the estate

Question 71

Estate just stepping in!

What can the D get under the Law Reform (Miscellaneous Provisions) Act 1934?

Answer 71

Non-pecuniary losses:
1. Pain, suffering & loss of amenity which ENDS DATE OF DEATH!!!

Pecuniary losses:
1. Loss of income pre-death etc if in hospital (UP TO DATE OF DEATH)
2. Property damaged in neggy (say it was car accident and C’s car destroyed)
3. Medical and other expenses (end date of death)

MONEY GOES TO ESTATE AND PASSED DOWN IN WILL ON INTESTACY RULES.

C died after getting damages? NO CLAIM!!!!!!

Expenses of the estate consequent on death are not recoverable exception is reasonble funeral expenses - these can be claimed!!!!!!!!

Losses only up to date of death as its not a new cause of action, the estate is just stepping in.

Question 72

Can the dependants of the dead make a claim for their compensation under Law Reforms (Misc) Act?

Answer 72

No - can under Fatal Accidents Act.

Question 73

WHo and what can be claimed under the Fatal Accidents Act?

Answer 73

Creates a new cause of action. Sue for death of person relied on. Need to show if C did not die would have had valid claim against D.

In the 1976 act any defence that could have been relied upon to beat deceased claimant can now beat 1976 act claim - same with contributory negligence.

3 claims:
1. Claims for loss of dependancy;
2. Bereavement damages - only for spouse or if not married your parents.
3. Claim for funeral expenses if paid by D.

Question 74

Explain claim for loss of dependancy under FAA?

Answer 74

STEP 1

Must be either:

1. Civil partner or married (includes former civils & spouses)
2. Lived together for AT LEAST 2 years
3. Children (adopted, bio or just TREATED LIKE CHILD)
4. Parents, grandparents any other relatives (brother etc)

If don’t fall into above you CANNOT make claim.

STEP 2
Must be financially dependant, need a reasonable expectation of pecuniary benefit

‘Pecuniary benefit’ does not simply mean provision of money. Dependants can claim for the cost of replacing services which were provided by the deceased. This would cover, for example, child care, DIY, gardening and housework. Damages are awarded to compensate for the loss of pecuniary benefits from the deceased.
In essence, the court needs to look to the future and assess the future pecuniary benefits which the dependants would have received from the deceased.

Calculated using multipler-multiplicand calc.

How to calc
Multiplicand
* Deceased net annual earnings - money they spend on themselves (33% for married no dependants and 25% for married with dependants)
* Other factors can become part of multiplicand:
1. Perks of their job e.g company car
2. Services they provided (e.g cleaning,gardening)

Multiplier
How long dependency would last - probably until retirement for spouse but 18 for kids
* Have to make deductions like with a living claimant so use Ogden Table.
* Two factors not taken into account:
1. Remarriage or prospects of remarriage;
2. The likelihood the dependants will inherit money from the deceased

Likeliness of inheritance NOT taken into account. Likeliness of remarrying NOT taken into acc.

Question 75

How much are bereavement damages and how much can be claimed?

Answer 75

£15,120

1. Wife, husband or Civil P
2. the parents (or mother if illegitimate) of a minor who was never married
3. Cohabiting partner if:
   (a) Living in same house immediately before death - does not count if had fight and moved out
   (b) Living in same house for at least 2 years before that date
   (c) Living for whole of period as spouse.

Question 76

Can you claim funeral expenses under FAA?

Answer 76

Yes but only if paid by the dependants. If paid by the estate then claim under 1934 act.

Question 77

What are the employer’s 4 duties to take reasonable care for employee’s safety?

Answer 77

1. Take care to provide adequate plant & machinery (wilsons v clyde)
2. Take care to provide competent staff (wilsons v clyde)
3. Take care to provide safe system of work & supervision (wilsons v clyde)
4. Take care to provide safe place of work (Latimer v AEC)

These are non-delegable (i.e cannot say hired a third party to clean floor so their fault!)

Take reasonable steps

Question 78

What is the employer’s duty to provide competent staff?

Answer 78

• Incompetent staff not enough, employer need to have known (or reasonably ought to have known) about incompetent staff! Will not have duty of care otherwise.
• Harm suffered as a result of breach can also be psychological
• Rules on pure psychological harm do not count for employer’s liability

Hudson v Ridge Manufactoring (1957) - claimant injured by prank from colleague, colleague had done this before and was told of by employer - employer therefore knew about his antics which amounted to a duty of care

RULES ON PPH DO NOT APPLY TO EMPLOYER’S LIABILITY

Question 79

What is the employer’s duty to provide adequate plant & equiptment?

Answer 79

Employer has duty to provide all the necessary plant and equipment an **ensure it works to a reasonable standard **.

2 faactors:
1. When plant/material is inadequate;
2. Plant and material hasn’t been provided at all (overlaps with safe system of work).

Employee can sue employer instead of manufacturer of defective equiptment! The Employer’s Liability (Defective Equipment) Act 1969. Show:
1. Fault on part of third party (manufacturer or supplier); and
2. Causation.

Question 80

Includes stress

What is the employer’s duty to provide safe system of work and supervision?

Answer 80

Wide in scope!

Covers the physical layout of the workplace, the way things are done, provision of warning notices etc

Can claim for stress induced by unsafe system of work - although the employer must have known, or ought to have known, about the stress. The stress also must be directly related to the job and not a third party event etc like divorce.

This goes further than just a safe system of work, need to** take reasonable steps** to ensure it is complied with:
1. Training;
2. Supervision;
3. Monitoring op; and
4. Disciplinary action if not complied with.

Question 81

What is the employer’s duty to provide safe place of work?

Answer 81

Overlap between this common law duty in negligence and the statutory duty provided by the Occupiers’ Liability Act 1957. More onerous.

Differences:
1. Non-delegable unlike OLA
2. 1957 applies only to occupier props. SAfe system of work & supervision applies regardless of if at work. Think going somewhere not place of work.

Think of the physical premises

Question 82

Stress at work Hattan Control Guidelines on when a duty of care may be owed.

Answer 82

Is the injury of stress reasonably forseeable? Consider:

1. Nature & extent of work (obviously too demanding);
2. Signs from employees themselves - employer entitled to assume emplouee is up to standard of normal pressures of jon. Entitled to take what employee says at face value.

If stressed with work but don’t say anything then pressures of job will need to be so excessive that it alone makes future problems forseeable.

stress needs to be directly related to job

control mechanisms which apply to other claims for psychiatric harm (considered above in Chapter 5) have no role to play in claims for stress at work.

Question 83

In addition to the reasonable steps that need to be taken by employer for the 4 duties, what else needs to happen to have claim?

Answer 83

Breach of duty. Normal rules apply.

Paris v Stepney Borough Council (1951): to be in breach the risk must be known to the employer, may not be liable if employer does not know about the special circumstances. Unless risk of injury is very great. Non-delegable duty.

Causation. Consider but for test, intervening acts, remoteness of loss.

Defences: main ones usually consent & cont neg

Question 84

What is vicarious liability?

Answer 84

Not a tort - just a principle where you are liable for someone elses tort. Often in the contect of employer and employee. Liable in addition to employee. Jointly liable.

Question 85

What is the test for viarious liability?

Answer 85

1. Worker must be an employee;
2. Employee comitted tort;
3. In the course of their employment.

Question 86

TEST to work out if someone is an employee or a third party contractor? 5 criteria.

Answer 86

Employers and not responsible for independant contractor’s torts. Consider who has the business interest - are they paid a wage. Does employer have control of the work (if so then probs employee).

Catholic child welfare criteria:

1. Employer better means to compensated victim (insured liability);
2. Tort comitted due to activity carried out on behalf of the employer;
3. Activity carried out part of employer’s business activity;
4. By hiring employee to carry out task employer created the liability; and
5. Employer will (to a greater or lesser extent) have control over the employee.

Think: a. insurance; b. on behakf of employer; c. business acitivty of employer; d. employer hired them and created liability; e. lesser or more extent employer has control.

Question 87

What does it mean for an employee to act in the course of their employment?

Answer 87

Must be an authorised act even if dont in an unathorised manner. CANNOT be an unathorised act. Cannot be out of scope of employment. Was it benefitting employer’s business?:
1. Pushing thief to protect business property was acting in course of employment
2. A customer was rude so they were punched by staff. Unathorised. This was personal.

Consider: why act was done and the purpose:
1. Milkman wasn’t allowed to have people on his milk cart, let a little girl help with deliveries. Employer was liable.
2. A van driver could not have people in his van, gave someone a lift. Employer not liable.

If the prohibition is the manner in which the job is done then probs liable. If prohibiton is scope then probs not.

Question 88

Can an employer be liable for intentional torts? If so what is the test / guidance.

Answer 88

Employer can be liable for intentional torts (usually criminal offence such as fraud etc).

Lister principle - must be a close connection between the job the tortfeasor was empoyed to do and the intention tort (the case of lister was a warden that abused boys in a school. Found to be liable as close connection).

Guidance from case of Mohammud v Morrisons:

1. What is the nature of the tortfeasor’s job;
2. Is there a sufficiently close connection betweent the tort and the job to make it fair, just and reasonable to impose liability on the employer.

Mattis v Pollock – nightclub owner vicariously liable for conduct of doorman who stabbed customer in circumstances where doorman had been employed yo keep order. Employed due to aggressive behaviour history, encouraged to perform his duties in aggressive manner.

Question 89

What happens if the employee is “on a frolic of heir own”? Test?

Answer 89

If the employee is on a frolic of their own then may not be liable Often the case with driving - did they divert from route to go see a friend? Not liable.

The test:
1. Geographical divergence;
2. Divergence from task.

If doing a new route but he same journey may still be liable.

Question 90

Can the employer’s insurer (or an employee) seek an indemnity for the employee who comitted tort?

Answer 90

Yes - employer can claim indemnity from employee due to Lister v Romford. Similar clause in Civil Liability (Contribution) Act.

However, employers’ liability insurers have entered into an informal agreement nohho pursue indemnity claims unless evidence of collusion or wilful misconduct from employee.

Question 91

Occuiers liability - what do the two different acts do?

Answer 91

• Occupier’s Liability Act 1957 - this relates to lawful visitors
• Occupier’s Liability Act 1984 - this relates to trespassers

Under both acts duties are imposed on the “occupier” of the premises.

Question 92

What is an occupier?

Answer 92

Widely interpreted by the Courts:
1. Owner but not living their (think case where landlord of pub and brewery liable);
2. Tenant;
3. Degree of control over the premises - third party contractor could technically be an occupier (in addition to owner) whilst carrying out work as they have a degree of control over premises.

Question 93

Who is a visitor?

Answer 93

Anyone with express or implied permission to be there.
* If you let someone in your house, they have implied permission. But can’t venture off (e.g upstairs) without permissiom because will be trespasser. E.g in a shop you can’t go into unathorised areas.
* If you ask themto leave they must take direct route and not say stop at toilet
* If sales person walks up to hosue to communicate with owner butignores sign saying “No sales people” then trespassers
* Usually communicating with owner is implied consent unless sign
* Police using search warrant are not trespassers if have right under law
* Steal from shop? Exceeding permission

Question 94

What is the duty of care under the 1957 act?

Answer 94

Common duty of care as same duty to all visitors. Duty is: to take care as is reasonable to ensure the visitor is reasonably safe in using the premises for the purpose which they are permitted.

Standard of care of reasonable occupier. This standrad will be assessed in similar way to normal:
- Magnitude of risk
- Cost a practicality of precautions
- Nature of the visit
- Nature of dange
- Any warning of danger?

The type of visitor will also be important. If it is a child visitory, extra care will need to be taken. If it is a visitor with a special skill (mayeba contarctor) lesss care as risks will be part and parcel with job.

Note: don’t take reasonable steps to make premises safe, take take to keep vistors reasonably safe

Question 95

How does the duty to take care for a child visitor differ from an adult int eh 1957 act?

Answer 95

Children are expected to take less care than adults! 2 factors will effect the level of care that should be take:

Allurement
If there is a particuarly alluring danger, more care will need to be taken. Case where boy ate the enticing red berries from a tree in some public gardens and died of poisioning. Dad sued. The berries were alluring so tree should have been fenced off as the D knew they were poisionous. Need additional precautions.

Parental supervision
Case where young boy (5) fell in dep trench and broke his leg. Such a young boy should not have been running around unsupervised near a building site. It was found the D had taken reasonable rpecautions for a young child supervised by a parent or guardian. 2 factors to considers:
1. age of child
2. parental responsibility

corporation was entitled to assume a child of his age would be supervised by his parents.

Question 96

Which risks can skilled visitors be expected to be safeguarded from?

Answer 96

An occupier is entiteld to expect a skilled visitor to safeguad themselves against risks that are part and parcel against job (think window cleaner leaning on a loose handle and falling - this is a risk associated with his job). These are considered special risks.

Still need to safeguard against risks not associated with job (think of same window cleaner walks up defective stairs to clean inside windows). Occupier is not entitled to expect skilled visitor to safeguard against it.

Question 97

Can an occupier put up a warning notice to comply with the duty of care?

Answer 97

Warning notice to satisfy duty should not be mixed up with an exclusion notice. An exclusion notice simply limits / excludes liability and must therefore comply with reasonable/fairness tests of UCTA / CRA and will only be a potential defence. Whereas a warning notice will satisfy the duty of care.

Warning notice must b adequate to keep the visitor safe. This will depend on the facts of the case.

Factors to consider:

1. Adequately warn of danger - just saying “do not touch” isn’t enough. Have to actually warn of danger “do not touch - this is an electric fence that will shock you at 500v”;
2. What is the nature of the danger? Is it a hidden danger, if so the warning must be more specific!. Need not warn against all dangers, donot have to tell an adult not to drown in a pool;
3. Type of visitor - can the warning be reasonably expected to protect the visitor. Remember the duty is to protect visitor not keep premises safe. A child might not be able to read the notice -if there is a pond should probs have a barrier. What if the visitor cannot speak english, is there a translation?

Question 98

Can an occupier discharge duty using a third party contractor under the 1957 act.

Answer 98

Yes, 3 factors under the act are:
1. Was it reasonable to hire a contractor (rare to not be but the more skilled the work the easier it is);
2. Did the occupier take reasonable steps to ensure the contractor’s competency (if got references then probs fine); and
3. Did the occupier take reasonabel steps to check the contractors work (Haseldine v Daw & Son - if v technical work like fittign a lift can’t be expectd to check) But is expected to for things like cleaner cleaning ice of stairs (Woodward v Mayor of Hastings).

Discharging occupeirs duty by third party contractor ONLY relates to work of construction, maintenance or repair.

Question 99

Do caustion and remoteness of damage apply to the 1957 act?

Answer 99

Yes - applies to all torts.

Question 100

Defences for 1957 act?

Answer 100

1. Consent - same as common law:
   * Must be aware of the risks; and
   * Go on to consent to the risks.
   A sign saying “all visitors enter at own risk” does not explain the dangers so consent wouldn’t work;
2. Exclusion of liabilty (usually a notice). The usualy rules apply:
3. Reasonable steps to bring to C’s attention;
4. Wording of exclusion must cover the loss suffered; and
5. Fairness test for traders limiting neggy for consumers, reasonableness is business occupiers restricting liability for other businesses. Private occupiers DO NOT NEED TO USE CRA OR UCTA. I could therefore put a big sign outsde my house excluding liability.

For UCTA, may be a business delegate at a conference. Acting in course of a business? Then won’t be a consumer. A consumer is individuals acting for purposes that are wholly or mainly outside the individual’s trade, business, craft or profession.

Trader - person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf. Think person injuring themselves at tescos.

3. Contributory negligence.

Question 101

Who is oweda duty of care under the 1984 act?

Answer 101

Occupier & premises have same meaning.

Trespassers i.e do not have permission to be on premises:
1. Need not know they don’t have permission (e.g children)
2. Can exceed permission and become trespasser

Question 102

What is a premises for the occupier liability acts?

Answer 102

The premises is the area controlled by the occupier. This could be:

• open spaces of land
• fixed structures, such as an office block or factory
• moveable structures, such as staging or scaffolding, or portable caravans
• some transportation vehicles such as trains and ships

Question 103

Are there any conditions for duty to be imposed under 1984 act?

Answer 103

3 conditions must eb met for the duty to arise:
1. occupier must be aware or be reasonable expected to be aware of the danger;
2. know (or have reasonbale grounds to know) the trespasser is in the vicinity of the danger or may come into the vicinity of the danger; and
3. must be reasonable to expect occupier to offer protection from the risk.

Number 3, is it reaosnable to expect occupiers to protect from danger. Court will look at 3 factors:
1. Nature of danger - will someone die? Is it hidden?
2. Type of trespasser - Adult or child? Deliberate or accidental trespasser?
3. Practicalities of precautions - would it be proportionate to the danger? Difficult to reduce or remove danger.

Question 104

Apart from 3 conditions to impose duty under 1984 act, are there any other limitations?

Answer 104

There are 2:
1. 1984 act only concerned with the safety of the premises - not any activities. If someoen shot or jump into safe lake and drowned, it is the action that caused issue. 1957 act is concerned with the safety of visitors instead.
2. 1984 only confers duty in relation to personal injury or death (NOT damage to property).

omlinson v Congleton Council. Man divided into
shallow lake and was paralysed - swimming was prohibited & lake had lots of notices. No duty owed by occupier - the only risk was diving in and not premises itself).

1984 act is concerned with liability of state of premises (1957 is directed towards visitor’s reasonable safety rather than safety of premises).

Revill v Newbery[1996] 2 WLR 239. In this case the defendant fired a shotgun towards a trespasser intending to frighten him off. The trespasser was injured. The Court of Appeal held that the provisions of the 1984 Act were not applicable on these facts. The trespasser was injured by an ‘activity’, not the state of the premises, and as the 1984 Act did not regulate the ‘activity’ duty the trespasser had to look to common law negligence for a remedy

Question 105

If all the conditions are satisfied, what is the duty of care to the trespasser?

Answer 105

Duty to take such care as is reasonable to see that the trespasser does not suffer personal injury on the premises by reason of the danger incurred.

Question 106

Can you discharge your duty of care under the 1984 act with warning notices?

Answer 106

• Just as in 1957, can discharge the duty of care by warning trespassers
• Although warning, again, likely to be in adequate for children
• Where a warning is inadequate to protect trespasser a barrier or so must be put up (called discouragements)

Previous cases re children (Phipps v Rochester [allurements] and Glasgow Corporation v Taylor [parental responsibility]) are equally as applicable under 1984 act

Question 107

What defences are there to te 1984 act?

Answer 107

Can use:

1. Consent - (Ratcliff v McConnel (1999) defence of consent caused claim to fail as showed risk of diving into a partly drained pool with shallow water was accepted)
2. Contributory negligence

Cannot use:

1. Exclusion notice - Cannot exclude liability under 1984 - it is a safety net
2. Illegaility - CANNOT BE USED - woud thwart parliaments intentions as a safety net

Question 108

Damage caused by defective products lie in 3 areas of law?

Answer 108

1. Contract law;
2. Tort of negligence; and
3. Consumer Protection Act.

Question 109

Test for negligence of defective product.

Answer 109

Donoghue v Stevenson - NARROW test for duty of care from manufacturer to consumer:

1. Defendant is a manufacturer - wide, supplier if inspected tot est/inspect (case of car supplier for steering), or if supplier knows about defect,;
2. Defective item is a “product” - most items capable of having defects is a product. inc labels and packaging;
3. Claimant is a “consumer” - anyone D reasonably had in mind fwho could be injured by D’s neggy; and
4. No reasonable expectation of intermediate examination - in D v S glass bottle was dark so couldn’t inspect. Case of girl injuried by checmicals at school. Supplier liable not school - supplier received bottle that said “need to be tested before use” when it got to school did not have this sticker. Supplier had opportunity to inspect but didin’t so they have the duty of care. If inspection would not reveal defect no duty of care.

NOT PURE ECONOMIC LOSS i.e not replacing defective product. Only damage that arose.

Question 110

How do you prove a breach under Donoghue v Stevenson (i.e manufacturing process caused defect)?

Answer 110

Hard as don’t know what happenes in manufacturer process. Can’t use Ipsa Loquitur (i.e the thing speaks for itself) in defective product liability cases).

The claimant will need to prove certainf acts to the Court, who will in turn infer the breach from the facts.

Case authority Grant v Australian Kitting Mills. In this case the Claimant found sulphur in their underwear which caused injury. By proving that there was sulphur in the underwear and in the factory the Court could infer the breach. Mere possibility of intermediate tampering not enough to absolve liability.

Different to Ipsa Loquitur as have to prove some facts to Court - can’t simply just be that the thing happened (in this - prove sulphur in underwear or snail in drink).

Question 111

Causation & remoteness

Answer 111

Same rules - Case of Evans v Triplex windscreen shattered and injured claimant but could not prove negligence caused the defective windscreen as 12 months had passed since bought it

Question 112

Defences for defective product liability negligence?

Answer 112

1.Consent - If claimant knows about defect (and conduct indicates a willingess to accept risk this can lead to defence of consent) - not enough just to know about defect;

2. Exclusion of liability - UCTA CRA;
3. Cont neggy - may rely if not enough for consent.

Question 113

What statutory causes of action for defective products (different to common law neggy). Who can sue under it?

Answer 113

Consumer Protection Act 1987! Much wider scope than D v S. Claimant need not be someone who is forseeably injured from negligence. They simply need to establish the following test.

TEST:
1. Suffered damage;
2. Caused by a defect;
3. Defect was in a product.

Question 114

What is “damage” under the Consumaer Protection Act?

Answer 114

1. PI or death is limitless;
2. Damage to property must be more than £275;
3. Cost of defective product (PEL) not recoverable; and
4. Cannot be business property that is damage.

Question 115

How do the causation rules differ with negligence and CPA?

Answer 115

With negligence, need to show D’s breach of duty caused the damage. I.e in sulphur underwear case,sulphur in underwear and factory was sufficient for Court to infer the breach. Usual but for test.

By contrast, under CPA need to show the DEFECT caused the damage. No fault needed in manufacturing process so is wider. Example - in sulphur case wouldn’t need to show the sulphur was from factory who in turn fell below standard of care etc just need to show injury caused by sulphur. STRICT LIABILITY

Unknown if remoteness applies. Not mentioned.

Question 116

What type of defects count under CPA?

Answer 116

• Can’t be any defect - must be a defect that is unsafe i.e TEST: that the safety of the product is not as a persons generally are entitled to expect

Act sets out the following guidlines to consider:
1. Set up process & presentation of product inc packaging;
2. Expected use of product; and
3. Age of product.

A v National Blood Authority [2001] 3 All ER 289 the court decided that consumer expectations for blood products were that the blood would be free from viruses (such as hepatitis C). This meant the blood was defective within the meaning of the CPA 1987 even though the defendants showed that the risk of such a viral infection in blood was unavoidable at the time as there were no tests then available for this. This is much more onerous than the duty in negligence which is satisfied where a defendant takes all reasonable care.

Duty of care not breached for blood in neggy due to state of knowledge. But is for CPA. More onerous.

Product includes blood!

Question 117

Who is liable under CPA (4 people):

Answer 117

1. Producer (manufacturer) - usual D, product also includes individual components so if parts manufacturered by diff people can include producer of faulty component. Producer of end end product and part will both be liable;
2. Importer - if bring into UK;
3. Own-brander - puts name on product someone else produces then holds themselves out to be producer; and
4. Forgetful supplier - supplier only liable if cannot identify others in chain above.

Question 118

Defences under CPA (7)?

Answer 118

1. If can show the defect was a inevitable consequence of complying with legal requirements then absolved (e.g producing flour have to follow strict rules, but those rules meant the defect was inevitable);
2. D did not supply product to another (e.g item stolen from producer, thief’s child plays with toy. Not liable);
3. Defect did not exist when the product was supplied i.e if can show it was due to the way the C used the product or due to wear and tear;
4. Not supplied in course of business (e.g friend sold to friend);
5. Producer of component not liable of can show defect was due to the design of the whole product;
6. State of knowledge (mainly drugs, medicines etc) - held to highest knowledge in whole world, if could show no way to discover or foresee defect. Blood case - blood infection could be foreseen but nothing could be done. Not good enough; and
7. Contributory negligence.

CANNOT EXCLUDE LIABILITY a bit like 1984 OLA.

Question 119

What is tort of private nuisance and what are the 3 types of interference?

Answer 119

Stopping interference with an individual’s enjoyment of their land. Tort on physical property. 2 requirements:

1. Interference with C’s enjoyment of use of their land; and
2. The interference is unlawful.

Hunt v Wharf 3 types of interference:
1. Nuisance by encroachment onto land;
2. Nuisance by physical damage to land; or
3. Nuisance by interference with quiet enjoyment of land (sometimes called ‘personal comfort’ or ‘loss of amenity’).

For final one, can include things like smells, dust, vibration but also rights enjoyed over land like light acquired by prescription. Less likely to find number 3 over the above 2. Must materially interfere with quiet enjoyment. Not elegent or dainty modes of living.

What does not count:
1. Loss of a view from house;
2. Disruption to TV reception by new building (as this could easily apply to other modern luxuries)

Question 120

How will the Court decide if an interference is unlawful?

Answer 120

Unlawful means “unreasonable” or “substantial”. C is supposed to tolerate ordinary usages of mankind living in society (or a particular society). The exception to this is encroachment - always unreasonable.

Tort of private nusiance is not concerned if D’s conduct fell below standard of care. This is a tort on the land. The test is therefore Does D’s use of their land unreasonably interfered with C’s reasonable use of their land. Not about conduct. Court must balance the interests of the parties as both have a right to use their land and enjoy their land.

When balancing the interests betweent he parties the Courts will consider the following factors:

1. Duration and frequency of interference - some degree of continuity and frequency needed. Isolated incident not really enough;
2. Excessiveness of conduct & harm:
   (a) conduct - how far removed is it from “normal behaviour”. This is an objective test;
   (b) what is the extend of the harm done to the C? This is a subjective test. If complaining about noise late, but C doesn’t get back from work until late so doesn’t impact her probs won’t win.
3. Character of neighbourhood (only for personal discomfort not damage to land or encroachment);
4. Public benefit - not usually to decide in interference is unreasonable but may do for granting injunction;
5. Malic - silver fox case, shooting on purpose to annoy foxes on land.

When deciding if interference is unlawful courts will look at impact on a normal user of neighbouring and and will ignore abnormal sensitivities
* Robinson v Kilvert - heating in defendant’s cellar damaged brown paper drying - claimant’s paper was abnormally sensitive compared to normal paper so claim failed. If could show normal paper would be affected (eve to lesser degree) could recover full extent of loss even though loss would be more than normal paper.
* If can establish interference would impact normal user, can recover the full loss even if it is higher due to sensitivities - application of egg shell skull rule.

Another ex of egg shell skull rule: McKinnon Industries v Walker [1951] here the claimant grew sensitive orchids. The defendant’s business emitted fumes which
damaged the orchids. The fumes would have damaged ordinary, more robust plants. The claimant could, therefore, establish an actionable nuisance and recover for the damage to the orchids

Question 121

Who is liable in private nuisance?

Answer 121

• Whoever created nuisance (even if they don’t live in premises anymore);
• Occupier of land (even if they didn’t create nuisance); and
• Landlord.

Question 122

When is occupier liable for private nuisance?

Answer 122

• Liable for positive nuisance or failing to take steps (e.g fix a roof)
• Normal defendant
• Can be liable for nuisances of other people:
  1. Employee - vicarious liability rules;
  2. Nuisances created by independent contractor in circumstances where nature of contractors work carried a special risk of nuisance; and
  3. Nuisance by visitor/trespasser/previous occupier if current occupier continues the nuisance or adopted it **- Sedleigh-Denfield v O’Callaghan pipe was put on land without them knowing but
  occupiers used it so when it flooded and caused damage to neighbouring property they were liable, case found an occupier is liable for nuisance caused by third party if:
  a. Continue or adopt nuisance;
  b. Adopt nuisance if they make use of it; and
  c. Continue if they know about nuisance but don’t take reasonable steps to end it.
• When deciding reasonable steps Court will take finances into account

Question 123

When is landlord liable for private nuisance?

Answer 123

• Where let property to tenant generally not liable unless:
  1. Gave impliedly or expressly authorised to tenant to do nuisance - Tetley v Chitty - council let land to race course, impliedly authorise the noise (consider race course case);
  2. Nuisance started prior to tenancy and landlord knew about it or reasonably ought to have known about it; or
  3. Landlord promised to fix nuisance (or has right to do so) but didn’t.

Tenant will also be jointly liable

Question 124

Causation and recoverablity under private nuisance?

Answer 124

Causation / remoteness of damage:

• Claimant must prove unlawful interference caused damage - but for test (Barnett v Chelsea) and intervening acts
• Remoteness of damage test applies in the same way (was the kind of damage that occured reasonably forseeable to someone in D’s position?) - Wagon Mound Testin usual way.

Whats recoverable?

• Damage to land is obviously recoverable
• Loss of enjoyment of land is recoverable
• Hunter says personal injury is not as private nuisance relates to tort against land
• Damage to property may also not be recoverable although in some cases damage to property that flowed from the nuisance has been recoverable - was not specifically dealt with in Hunter (think consequential damage to prop?)
• In Hunter it was found if a claimant can prove recoverable damage then any consequential loss flowing from the nuisance is recoverable (e.g damage to property, loss of profit)

Rather than losses flowing from damage to prop or injury like normal tort, consider losses flowing from (1) damage to land (2) loss of enjoyment

Question 125

Defences for private nuisance (7)?

Answer 125

1. Prescription: continuing the nuisance for a period of at least 20 years against the claimant. The effect of prescription is that the defendant has ‘acquired’ the right to commit the nuisance (same as easement etc).
2. Statutory authority: most use to public authorities acting under statutory
   powers. An oil company is authorised by an Act of Parliament to construct an oil refinery in a particular location. Local residents complain about the noise and vibrations emitted from the refinery. The oil company is likely to be able successfully to plead statutory authority as a defence
3. Contributory negligence
4. Consent - claimant has specifically agreed to accept the interference,
   the claimant’s claim in nuisance will fail. Mike and Anne are neighbours. As a favour, Mike agrees to let Anne put her garden rubbish on his bonfire each week. If the smoke from Mike’s bonfires blows across Anne’s
   garden to such a degree as to constitute a nuisance, she would probably be met with the defence of consent
5. Act of god - not liable unless adopt or continue nuisance.
6. Necessity - TEST (must satisfy two parts);

(a) necessity exists because of an imminent danger to life and limb (or, in very limited circumstances, a threat to property);
(b) that the defendant’s actions were reasonable in all the circumstances.

Southport Corporation v Esso Petroleum [1956] AC 218, the defendant’s oil tanker ran aground and there was a danger that she might break up with the probable loss of the ship and the loss of the lives of her crew. In order to prevent this, the master discharged 400 tons of oil into the sea. The river estuary was polluted and the claimant corporation alleged
that the deposit of oil on the foreshore gave rise to a claim in nuisance. The House of Lords held that a nuisance had been committed but that the defence of necessity succeeded. The defendants were absolved of liability because life and limb were at risk.

Question 126

Ineffective defences to private nuisance?

Answer 126

1. Claimant “came to nuisance”: Coventry v Lawrence (2014) - If claimants use property in the same way as their predecessors then this defence would fail but it may succeed if build on land or changes the use of their
   property then claimant’s claim may fail due to this defence.
2. public benefit
3. Contributory actions of others (There are many stalls at a fair which have music playing. The combined effect of the music from all the stalls is to create a nuisance. Each stallholder who has music playing will be liable in nuisance.)
4. Planning permission - the mere granting of planning permission DOES NOT legitimise a nuisance. (Wheeler v Saunders [1995] 2 All ER 697, a farmer obtained planning permission to build a pig unit on their land. The owners of some holiday cottages on adjacent land complained of the smell and noise emitting from the pig unit. The farmer was not allowed to claim in their defence that they had planning permission.) But can chage character of neighberhood!

Question 127

Remedies for private nuisance?

Answer 127

1. Damages:
   * nuisance that has already occurred and is quantifiable e.g damage to property
   * Loss of enjoyment of land harder to quantify (look at loss of amenity)
   * Can sometimes be used for future loss where injunction too harsh
2. Injunction:
   * Prohibitory stops someone doing something
   * Mandatory injunction makes someoen take a positive step to rectify consequences (less likely)
   * Quia timet - Very exceptionally the Courts many order a prohibitory or mandatory injunction quia timet menaing the damage has not happened yet (like with the above) but it is almost certain. TEST:
   (a) C almost certain to incur damage without injunction;
   (b) Damage is imminent (going to occur VERY soon); and
   (c) D will not sotp actions without order of the Court.
   * Discretionary remedy
   * Damages must be inadequate
   * Can grant dmages instead where:
   * the harm suffered by the applicant is:
   ∘ small; and
   ∘ capable of being quantified in financial terms; and
   ∘ capable of adequate compensation by damages; and
   * it would be oppressive to the defendant to grant the injunction.
   Public importance may be a factor, planning permission may be a factor.
3. Abatement (self help).
   * Where claimant takes action on their own e.g cutting tree branches that hang over their fence
   * Would not have to inform neighbour as they do not have to go ont heir property
   * Would have to return tree branches that were cut

Question 128

What is the rule in Rylands v Fletcher?

Answer 128

1. D brings something onto their land for their own use exceptionally likely to cause mischief (need not eb dangerous just likely to cause mischief if escapes - water cattle, sewage, electricity, fumes). Defendant must recognise (or ought to reasonably) a high risk of mischief it there was an escape no matter how unlikely the escape was;
2. it escapes (move outside of D’s premises to somewhere cannot control). Tyres on fire case, fire spreadh but tyres didn’t;
3. represents a non natural use of the land (extraordianry or unusal to the standards of the day); and
4. Damage is forseeable OF THE RELEVANT TYPE (forseeability of TYPE of damage, Wagon Mound).

Question 129

Defences to Rylands v Fletcher?

Answer 129

1. Escape caused by the unforeseeable act of a stranger
2. Escape caused by an ‘act of God’ which could not have been reasonably foreseen
3. Statutory authority
4. Consent (voluntary assumption of risk)
5. Contributory negligence

Question 130

What is public nuisance?

Answer 130

• Crime that endanger life, health, properyt or comfort of public
• Public bodies usually enforce public nuisance
• Can give rise to individual tortious liability
• Factors:
  1. conduct materially affects the reasonable comfort and convenience of a class of her majesty’s subjects (needs to be representative cross section and not just say 3); and
  2. The claimant has suffered a particular harm (suffered harm over and above the rest of the class - PI can be recovered).

A car driver on the road next to the defendant’s golf course is struck by a golf ball hit from the thirteenth tee. Evidence shows that balls from the golf course frequently go over the highway from the thirteenth tee.
The car driver could bring a claim for their personal injury under the tort of public nuisance. The class of persons affected are highway users and the public’s right to use the highway has been affected. The claimant has suffered particular damage in the form of a personal injury.

In many cases both types of nuisance will be relevant in that a public nuisance that causes the claimant particular harm may give rise to a claim in private nuisance as interfering with the individual’s use and enjoyment of their land. The defences to private and public nuisance are essentially the same.