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Tort Flashcards

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1
Q

What is public nuisance?

A

Where a group of people is affected by the use of land in the locality

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2
Q

What’re the requirements for public nuisance?

A
  • Defined as where a group of people is affected by the use of land in the locality
  • Class of people - nuisance will more than likely affect more than 2 or 3 people, although there is no limit on the minimum - Attorney-General v PYA Quarries Ltd (1957)
  • Special damage - the person needs to show they have suffered special damage over and above the rest - Castle v St Augustine Links (1922)
  • Claimants can claim damages for personal injury due to a public nuisance - Corby Group Litigation v Corby Borough Council (2008)
  • This can also apply to damage to goods - Halsey v Esso Petroleum Co. Ltd (1961)
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3
Q

What are additional examples of public nuisance claims?

A
  • obstruction to a highway,
  • a picket line
  • projections over a highway such as clocks
  • hoarding or sign
  • noise and traffic disruption at a festival.
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4
Q

What was Lord Dennings definition on public nuisance?

A

‘A public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it but that it should be taken on the responsibility of the community at large’

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5
Q

What are the defences of public nuisance

A

Include consent and contributory negligence

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6
Q

What are the remedies of public nuisance?

A

Includes injunction and damages

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7
Q

What is the evaluation of public nuisance?

A
  • When cases are similar but have different key aspects to it, the judgement opens up the possibility that similar public nuisance actions may be brought against other councils and etc. the legal principles in a case may be of great use to those who might seek to take action in the future on related cases.
  • This might apply when premises are demolished or where brownfield sites are cleared and where there is potential for exposure of noxious substances into the atmosphere.
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8
Q

What is the difference between private and public nuisance?

A
  • Public nuisance
    -A class of people has to be affected, one of whom has to suffer special damage
    -Claimant does not have to an interest in land, Castle v St Augustine Links (1922)
  • It can arise from an activity not related to land
    -Injunction and property damage can be claimed and personal injury, if suffered
  • Private nuisance
    -Only one person, a neighbour, is affected
    -Claimant requires an interest in the land affected
    -Nuisance arises from defendant’s unreasonable use of land
    -Injunction and damages for property damage can be claimed
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9
Q

What is private nuisance?

A

Where an action will be taken because someone’s use or enjoyment of their property is affected by the unreasonable behaviour of a neighbour

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10
Q

How does private nuisance work?

A
  • Everybody has the right to use or enjoy their property as they wish, but if their behaviour is unreasonable, then there are grounds for legal action.
  • The claimant can either be the owner, tenant, or whoever has responsibility for the land. A child of the owner’s family who may have a legal interest in the property cannot be a claimant. - Hunter v Canary Wharf Ltd (1997)
  • The defendant is the occupier who will be held liable for the nuisance. When the occupier themselves are not the actual cause of the nuisance, they can still be held liable if they haven’t dealt with the problem - Sedleigh Denfield v O’Callaghan (1940)
  • A defendant can also be liable where the nuisance is a result of natural causes and hasn’t been dealt with - Leakey v National Trust (1980), Anthony v Coal Authority (2005)
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11
Q

What are the elements of private nuisance?

A
  • The tort must be unlawful (this is not illegal). Unlawful in this sense is where the court determines that the use of the land is unreasonable.
  • Despite the fact that there is obviously a certain amount of fault involved, the interference occurred doesn’t have to prove fault.
    Indirect interference - Hunter v Canary Wharf Ltd (1997)
  • The courts are however prepared to consider emotional distress - the running of a brothel in respectable area of London in Thompson-Schwab v Costaki (1956), the conversion of a shop in an area of shops, restaurants and housing was converted into a sex shop in Laws v Florinplace Ltd (1981)
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12
Q

What is indirect interference?

A
  • if the interference is obvious and direct, noise, smell, and so on, then the defendant can be found liable.
  • If however it is indirect, an obstructed view, light being blocked or even television reception being affected, then this is not enough - Hunter v Canary Wharf Ltd (1997)
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13
Q

How does reasonableness work in tort?

A

As tort is all about balancing competing interests of the claimant and the defendant, the court will take into account any relevant factors to decide whether the use of land by the defendant is unreasonable

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14
Q

What are the factors of reasonableness?

A
  • Malice
  • Sensitivity
  • The nature of the area
  • Time of day/week
  • Duration
  • Social benefit
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15
Q

How does ‘locality’ work as a factor of reasonableness?

A

what sort of an area is it? Is it purely residential, partly commercial or industrial?

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16
Q

How does ‘duration’ work as a factor of reasonableness?

A
  • A one-off noisy party may not be a nuisance, but regular late night parties could be.
  • In Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996) however, a 20 minute event was considered a nuisance
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17
Q

How does ‘sensitivity’ work as a factor of reasonableness?

A

Robinson v Kilvert (1889), or foreseeability - Network Rail Infrastructure v Morris (2004)

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18
Q

How does ‘malice’ work as a factor of reasonableness?

A
  • is the unreasonable behaviour spiteful?
  • Hollywood Silver Fox Farm v Emmett (1936)
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19
Q

How does ‘social benefit’ work as a factor of reasonableness?

A
  • is the defendant providing benefit to the community? - Miller v Jackson (1977)
  • The decision to close a smelly fish and chip shop in Adams v Ursell (1913) would however be unlikely to happen today as the court could simply make an order to install extractor fans
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20
Q

What are the defences of private nuisance?

A
  • Prescription
  • Moving to the nuisance
  • Statutory authority
  • Local authority
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21
Q

How does prescription work as a defence for private nuisance?

A
  • If the action has been carried on for at least 20 years and there has been no complaint in that time, the defendant might be able to use this defence.
  • The dispute must be between the same parties however - Sturges v Bridgman (1879)
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22
Q

Can you use moving to the nuisance as a defence for private nuisance?

A
  • The defendant may argue that the claimant is only suffering the nuisance as they have moved closer to the alleged problem, or moved into the area and there was no issue previously
  • This argument will not give a defence to the defendant
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23
Q

How does statutory authority and local authority work as a defence for private nuisance?

A
  • Statutory authority - defendant may argue that the nuisance is regulated and licensed by law - Allen v Gulf Oil Refining (1981), Marcic v Thames Water plc (2003)
  • If the permission is local authority, this can also be a justification for nuisance - Gillingham Borough Council v Medway (Chatham) Dock Co (1993)
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24
Q

What are the remedies of winning a private nuisance case?

A
  • After Coventry v Lawrence (2014) the Supreme Court has laid down new guidance as to the future of injunctions and the award of damages in nuisance:
  • An injunction could be the default order in a nuisance claim
  • The defendant may be able to argue an award of damages is a more suitable alternative
  • The Shelfer test should not be applied so rigidly
  • An injunction will not be automatically granted even if the Shelfer test is satisfied
  • Abatement may also be granted. This could involve the claimant entering the defendant’s property for instance to chop down overhanging branches. These would however need to be returned to the defendant
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25
Q

When evaluating private nuisance Why have the courts encouraged ADR more recently in neighbour disputes?

A
  • Because negotiation and mediation are very useful when dealing with neighbour disputes as they allow both parties to put their case and the parties themselves come to a resolution.
  • This is better than resorting to court actions as cases will often lead to confrontation between parties who still have to live alongside each other when the court case is finished
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26
Q

When evaluating private nuisance, what did the case of Hunter v Canary Wharf (1997) do and how?

A
  • It was decided after the case that loss of recreational facility could not be claimed for
  • This is because the HofLs confirmed that members of a household who do not have an interest in the land can’t claim
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27
Q

When evaluating private nuisance, why does it not seem fair that only those with an interest in the land can claim private nuisance?

A
  • Because it doesn’t give the ability for any member of the household who may be affected to claim
  • You don’t have a right to good television reception
  • You can’t take a case in public nuisance unless you’re the occupier, legal owner, landlord, etc.
  • You don’t have the right to a view
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28
Q

Why was McKenna v British Aluminium (2002) an unusual decision in relation to other private nuisance cases?

A
  • There were over 30 claimants, some included children, some who had no interest in the land affected
  • The restriction of only those who have an interest in the land affected could be overtaken by the establishment of a right under Article 8 of the European Convention on Human Rights, which states that everyone has the right to respect for his private and family life, his home and correspondence
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29
Q

What is the correlation between nuisance and negligence?

A
  • Nuisance deals with interference with enjoyment of land and is not designed to cover claims for personal injuries, which negligence does.
  • Nuisance protects interests for the enjoyment of land, negligence deals with a breach of duty of care which a person owes to another and which results in loss, injury or damage
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30
Q

What is negligence?

A

An act or a failure to act which causes injury or damage to another person or their property

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31
Q

What case is negligence defined it and what is the definition?

A
  • Blyth v Birmingham Waterworks Co. (1856)
  • ‘failing to do something which the reasonable person would do or doing something which the reasonable person would not do’
32
Q

How does negligence work in cases?

A
  • The claimant must provide evidence that the blame is on the part of the defendant
  • He must prove that the defendant owed him a duty of care, that he breached that duty and that breach caused reasonably foreseeable injury or damage
  • The judge must decide the level of fault based on the balance of probabilities
  • If the evidence provided by the claimant is not sufficient, he may be left without compensation
33
Q

How does duty of care work in cases?

A

In order to start a tort, a legal relationship must be established where a duty of care exists on the part of the defendant

34
Q

What started the modern law of negligence

A

The case of Donoghue v Stevenson (1932)

35
Q

What did Donoghue v Stevenson (1932) establish?

A
  • The ‘neighbour principle’
  • The person who is owed a duty of care by the defendant
  • It is not the person living next door (anyone you ought to have in mind who might potentially be injured by your act or omission)
36
Q

What is the Caparo test?

A
  • A 3-part test which replaced the neghbour principle:
    -Was the damage or harm reasonably foreseeable?
    -Is there a sufficiently proximate relationship between the claimant and defendant?
    -Is it fair, just and reasonable to impose a duty?
  • All three parts of the duty of care test must be met in order to satisfy the test
37
Q

Why is Caparo v Dickman (1990) significant?

A
  • The case refers to something called ‘stautory accounts’. These are the accounts that must be leglaly published by a company at the end of a financial year and sent to the shareholders and the Inland Revenue.
  • They are available to the public, but they only contain the broad overview, not the detail
38
Q

What did Robinson v Chief Constable of West Yorkshire (2018) do?

A
  • Established that the Caparo test only needs applying in new and novel cases and that the courts should generally establish a duty by looking at existing duty situations and ones with clear analogy
  • Changed the law
  • Old lady getting hit by 2 police officers chasing someone
39
Q

Since 2018 what is the new law on establishing negligence?

A
  • It’s now enough to establish a duty of care by simply looking at the facts of existing laws/ court decisions already there.
  • Caparo is only used when there is a rare or unusual case when questions might arise as to whether it is fair to establish a duty or not
40
Q

How do you judge damage or reasonably foreseeable harm in negligence?

A
  • First part of the duty of care test
  • Whether the injury or damage is reasonably foreseeable depends on the fact of the case e.g. Kent v Griffiths (2000)
41
Q

How does proximity of relationship work in negligence?

A
  • Second part of the duty of care test
  • Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship between the claimant and the defendant is sufficiently close or proximate
  • E.g. Bourhill v Young (1943)
42
Q

How does the third part of the duty of care test work?

A
  • In the final part of this test, it allows the courts to consider if, even though the harm was foreseeable and the parties were sufficiently close, there is no duty of care
  • The courts are often reluctant to find that it is ‘fair, just and reasonable’ to impose a duty of care on public authorities such as the police e.g. Hill v Chief Constable of West Yorkshire (1990)
43
Q

How does the objective standard of care and the reasonable person work in proving there was a breach of duty?

A
  • The claimant must prove firstly that a duty of care is owed and secondly that it has been breached.
  • The standard set is that the defendant who is alleged to have breached that duty of care can be regarded as the ‘reasonable person’
  • In other words there were no special circumstances that prevented him from doing the task competently.
44
Q

How is a breach of duty judged when relating to professionals?

A
  • Professionals are judged by the standard of their profession as a whole.
  • Bolam v Fiern Barnet Hospital Management Committee (1957)
  • In this situation we ask 2 questions (applies to all professionals):
    -Does the defendant’s conduct fall below the standard of an ordinary, competent member of the profession? If ‘no’ – then no breach of duty of care.
    -Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant? If ‘yes’ – then no breach of duty of care.
  • The approach followed in Bolam was altered by the Supreme Court in Montgomery v Lanarkshire Health Board (2015).
45
Q

What are the other breaches of duty and how does standard work in them

A
  • Learner drivers and claims
    -A learner is judged at the standard of the competent, more experienced driver.
    -Is this not unfair? - no, because the learner is
    -Covered by insurance. Nettleship v Weston (1971).
  • Children and young people
    -If the defendant is deemed to meet the standard of a child and not that of a reasonable adult, then they are not in breach of a duty of care.
    -Mullin v Richards (1998)
46
Q

What are risk factors in determining standard of care?

A

When the court considers whether there has been a breach of duty, it will take into account certain factors to decide whether the standard of care should be raised or lowered and ask the question: would the reasonable person take more or fewer risks in the same situation?

47
Q

What are the risk factors considered when the court considers whether there has been a breach of duty?

A
  • Has the claimant any special characteristics which should be taken account of? E.g. Paris v Stepney Borough Council (1951)
  • What is the size of the risk? - Where a risk a small, the defendants will not have to take as great a precaution. The principle that applies is that the higher the risk of injury, the greater the precautions that need to be taken to prevent injury
  • Have all appropriate precautions been taken? - The courts will consider the balance of the risk involved against the cost and effort of taking adequate precautions to eliminate the risk e.g. Latimer v AEC Ltd (1953)
  • Where the risks known about at the time of the accident? - Roe v Minister of Health (1954) - If the risk is not known about then chances are you will not be liable
  • Is there a public benefit to taking the risk? - Watt v Hertfordshire County Council (1954) - If the risk is the only option to avoid something more serious or worse and there’s still an accident then there’s no claim
48
Q

What is the third part of a negligence claim for the claimant to prove?

A
  • For the claimant to prove that the damage suffered was caused by the breach of duty and that the loss or damage is not too remote
  • Known as damage
49
Q

What is the difference between damage and damages?

A

Damage - The legal test of a loss to the claimant from a breach of duty

Damages - Compensation payable to the claimant who proves that the defendant is negligent

50
Q

What are the two parts to damage?

A
  • Causation - the idea that the breach of duty has caused the injury or damage being claimed (factual causation)
  • Remoteness of damage
51
Q

How does factual causation work in damage of a negligence case?

A
  • If it can be proved that but for the defendant’s action or omission injury or damage would not have occurred, then there is no need to find legal causation
  • Barnett v Chelsea and Kensington Hospital Management Committee (1969).
52
Q

How does legal causation work in damage for a negligence case?

A
  • As in criminal law, an intervening event can break the causation chain
  • Novus actus interveniens - in the chain of events leading from one accident, you have another
53
Q

How does remoteness of damage work in damage for negligence cases?

A
  • Remoteness of damage - The defendant is liable for the injury or damage that is reasonably foreseeable
  • The damage must not be too remote from the negligence of the defendant
  • Rule comes from a Australian case decided by the Privy Council (The Wagon Mound (1961))
  • The test for remoteness of damage is from this case and is that the injury or damage must be reasonably foreseeable
54
Q

How does types of injury to be foreseeable work in damage under negligence?

A
  • The defendant will also be liable if the type of injury reasonably foreseeable, even though the precise way in which it happened was not
  • Illustrated in Hughes v Lord Advocate (1963),
    Bradford v Robinson Rentals (1967)
55
Q

What does reasonably foreseeable mean?

A

Damage or injury, which a reasonable person should predict or expect from his actions

56
Q

What does ‘take your victim as you find him’ mean under damage of negligence cases?

A
  • The rule means that the defendant must take his victim as he finds them
  • If the claimant has a pre-existing condition that is made worse by an injury that was reasonably foreseeabe, then the defendant can also be held liable (the eggshell skull rule)
  • E.g. Smith v Leech Brain and Co. (1962)
57
Q

What is the process of what must be proved for negligence?

A
  1. Duty of care - reasonably foreseeable harm, proximity between parties, fair, just and reasonable to impose duty
  2. Breach of duty - defendant falls below standard of care appropriate to the degree of risk
  3. Damage caused - defendants breach causes damage, damage is reasonably foreseeable
58
Q

What is Res ipsa loquitur and how does it work?

A
  • The thing speaks for itself. The burden of proof shifts from the claimant to the defendant
  • In certain situations, the claimant may not know exactly what happened, only that a breach of care and negligence has occurred and that he has suffered an injury or damage. E.g. operation that has gone wrong.
  • In these situations, the claimant needs to prove on the balance of probabilities that:
    1. The defendant was in control of the situation which caused the injury.
    2. The accident would not have happened but for the defendant’s negligence.
    3. There is no other explanation for the injury.
  • If all three can be proved, then it’s up to the defendant to disprove the claim. Scott v London and St Katherine’s Docks (1865).
59
Q

When evaluating the tort of negligence what is the main problem?

A

The tort of negligence is a fault-based system with the claimant having to prove the fault causing problems

60
Q

When evaluating negligence when looking at the need to prove fault what are the problems this cause?

A
  • Cost
  • Delay
  • The need to use lawyers and
  • Confrontation between the parties
61
Q

Why is cost a problem in needing to prove fault when evaluating negligence?

A
  • Claims can incur costs for the claimant.
  • If there were no witnesses, special accident investigators or the police might have to be used.
  • Medical evidence for injury.
  • Valuations for property lost or damaged.
62
Q

Why is delay a problem in needing to prove fault when evaluating negligence?

A
  • Most defendants are covered by insurance.
  • Once an injury or damage has been reported, the insurance company takes over the case.
  • Insurance companies are often suspicious of false claims and will usually investigate to make sure it’s genuine. This can sometimes take a long time which can potentially lead to the claimant suffering more.
  • It can also take a long time to obtain all the evidence in a form to be presented to court.
  • 3 year limit after the accident to file a claim, 6 on damage to pottery.
  • No time limit when the case has to be completed, except for fast- track cases in County Court.
63
Q

Why is need for lawyers a problem in needing to prove fault when evaluating negligence?

A
  • In personal injury claims, a lawyer may be needed to convince the defendant or his insurance company that his client has a valid claim.
  • A lawyer will also be needed if settlement cannot be reached and the case goes to court. This can add to the cost and delay.
  • In a ‘no win no fee’ arrangement, the lawyer will ask for the payment of a premium. This can either be a pre-paid insurance policy taken out before the event or a an after the event policy when the insurance company will be approached to cover the costs of the claim.
  • Lawyers will only accept a ‘no win, no fee’ if they feel there’s more than a 75% chance of success.
64
Q

Why is confrontation between the parties for lawyers a problem in needing to prove fault when evaluating negligence?

A

These situations can often be quite confrontational which makes negotiation less likely, even more so if the case goes to court.

65
Q

When evaluating liability in negligence what is the view on judicial law making?

A
  • Tort law is for the most part not statutory and has developed from judicial precedent.
  • Sometimes judges are criticised for having a lack of understanding of the economic and social judgments that need to be taken in the area of torts.
  • However judges are usually restrained in their powers to develop rules of law and when Parliament does intervene, such as in The Compensation Act 2006, it’s not always well thought out.
  • The fact that Robinson now means that the Police owe a duty of care to the public supersedes the previous assertion that the Police could not be sued for negligence. This means that the Caparo Test no longer needs to be strictly applied, except in ‘novel’ situations.
66
Q

When evaluating liability in negligence what is the view on establishing the duty of care?

A
  • Allows the court to decide that, even though the harm is foreseeable and the parties are sufficiently close, whether it is fair, just and reasonable to do so
  • Robinson has significantly changed things here. Previously courts had been cautious here. E.g. Hill v Chief Constable of West Yorkshire. Duty of care could not be imposed on the police when they did not know the victim. Now as a result of Robinson, each case will have to looked at individually. (Courts are reluctant to find fair… when the defendant is public authority)
  • This approach was said to lead to resources being diverted away from reducing and investigating crime also to excluding liability has been criticised so the extent to which English Courts will continue to follow this approach is in doubt
67
Q

When evaluating liability in negligence what is the view on the policy?

A
  • Judges in the higher courts sometimes have to make policy decisions that go against precedent e.g. White v Jones (1995)
  • They will generally only do this if it’s to plug a gap in the law or to ensure a just and fair outcome.
  • The problem with this is that it creates uncertainty.
  • Clarity and predictability are the most important elements in the law so developing policy principles in this way can confuse and mislead people.
68
Q

When evaluating liability in negligence what is the view on changing the law?

A
  • Sometimes judges in appeal courts recognise that some long established principles are wrong, so they make a new principle.
  • The definition of a doctor’s duty of care in the Bolam case (1957) defined negligence in medicine for over half a century, but was changed in the Montgomery (2015) case.
  • Changing codes of practice in different professions, such as the medical profession may also influence this.
69
Q

What are ideas of reforms in the law of negligence?

A
  • When compensating accident victims to introduce a state-run benefit scheme which pays out compensation to victims of accidents without the need to prove how or why the accident happened (benefits would be that there’d be no need for insurance companies to be involved or to delay claims, no need to pay lawyers costs for either claimants or D therefore being cheaper and quicker pay outs)
  • No fault compensation scheme which covers injuries suffered in all sorts of areas, not just the work place or on the roads
  • Require every adult to have compulsory liability insurance which would pay out in the event of an accident
  • Dealing with issues of confrontation between the parties is to make greater use of out-of-court dispute resolving methods
  • Speeding up the court process by using online courts
  • Settling cases by ADR for it to be easier, less confrontational way
  • Imposed greater regulation on claims management companies to attempt to reduce the compensation culture
  • Raise the lower limit of personal injury claims to a minimum of £5k - reducing the number of whiplash claims
70
Q

What is a full defence?

A

Theres no liability, and the claim will be dismissed

71
Q

What is a partial defence?

A

Not full defence but will reduce liability

72
Q

What’re the 2 main defences in negligence

A
  1. Alleging the claimant is partly to blame for their injuries
  2. Alleging the claimant consented or agreed to accept a risk of harm
73
Q

What is contributory negligence?

A

This is only a partial defence, in other words, the defendant accepts liability but suggests the claimant is also partially to blame

74
Q

How does contributory negligence work?

A
  • This is set out in the Law Reform (Contributory Negligence) Act 1945
  • The judge will first of all set out the full amount of damages and then reduce it by the percentage he feels the claimantmight share responsibility
  • E.g. Sayers v Harlow Urban District Council (19580
  • Sometimes damages can be reduced by 100%, Jayes v IMI (Kynoch) Ltd (1985)
  • Damages can also be reduced if the claimant has played a part in the injury, i.e - not wearing a seatbelt, failing to wear a crash helmet in a motorbike accident etc.
  • E.g. O’Connell v Jackson (1972)
75
Q

What is consent (Valentin non fit injuria)?

A

A defence can also be raised if it can be proved that the claimant consented to the risk

76
Q

How does consent (volenti non fit injuria) work?

A
  • It must be demonstrated that:
    -There was knowledge of the precise risk involved
    -Exercise of free choice by the claimant
    -A voluntary acceptance of that risk
  • There must be a complete understanding of the nature of the risk for this defence to hold, simply knowing about a risk is not good enough
  • E.g. Stermer v Lawson (1977)
  • A defence will also fail if the claimant had no choice but to take the risk. Smith v Baker (1891)
  • In cases where a person has a duty to act, but is then injured, volenti cannot be used either. Haynes v Harwood (1935)
  • In medical negligence cases, volenti is very important. Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals (1985)
  • However if the claimant acts against employer’s orders or against statutory rules, then volenti can succeed. ICI Ltd v Statwell (1965)
  • If the claimant is unaware of the risk, or is judged to have simply made an error of judgement, then volenti will not help the defendant either
  • If the defence of volenti fails, then the defendant can still claim contributory negligence and have the amount of damages reduced

Law Mock 2024 (5 decks)

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