Tort (+ )

Question 1

Negligence sequence

Answer 1

C to prove:
Loss or damage
Duty
Breach
Causation
Remoteness

D to prove:
Defences

Question 2

Determining whether a duty of care is owed

Answer 2

is there a precedent making clear whether or not a duty is owed?

yes: apply precedent

no: analogy

Question 3

is there a precedent making clear whether or not a duty is owed? NO

Answer 3

x3: foreseable, promixity, fair/just/reasonable

consider whether duty should be imposed by analogy with existing cases

there will be no duty if harm was not reasonably foreseeable

consider proximity between C and D

consider what is fair, just and reasonable

duty to only develop the law incrementally

in practice, huge precedents!

Question 4

there is no duty owed in relation to omissions except

Answer 4

x6

where there is a statutory duty

where there is a contractual duty

where D has sufficient control

where D assumes responsibility

where D creates the risk

where the omission is a failure to prevent a third party from causing harm and
- there is sufficient proximity between C and D
- there is sufficient proximity between D and third party
- D creates the danger
- the risk is on D’s premises

Question 5

standard of care x3

Answer 5

the lower standard
- children (objective standard of child that age)
- illness/disability (if not aware of it at the time)

the ‘reasonable man’ test

the professional standard

Question 6

the reasonable man test

Answer 6

objective nature of the test
act, not the actor

lower and professional standard also

Question 7

factors relevant to breach

Answer 7

x5-8
x5: benefit practice practical harmx2

usual or common practice
likelihood of harm
magnitude of harm
practicality of precautions
benefit of D’s conduct
(sport
state of the art defence
breach / errors of judgement)

Question 8

breach equation

Answer 8

likelihood of harm x magnitude of harm

balanced against

cost of precaution + benefit of D’s conduct

Question 9

a doctor is not guilty of negligence if he

Answer 9

per responsible body (even if contrary opinion exists) BUT x2: logical basis + patient aware of any material risk/reasonable alternative

has acted per a practice accepted as proper by a responsible body of medical men skilled in that particular art… a doctor is not negligent, if he is acting following such a practice, merely because there is a body of medical opinion which takes the contrary view (Bolam)

two limitations

1 – court satisfied that they body of opinion relied upon can demonstrate that such opinion has a logical basis (Bolitho cf breach equation)

2 – when it comes to a doctor advising about risks, a doctor is under obligation to take reasonable care to ‘ensure that the patient is aware of any material risk involved in any recommended treatment, and or any reasonable alternative or variant treatment’ (subjective test)

Question 10

causation

Answer 10

factual causation AND legal causation

factual causation deals with establishing the link between the breach and the damage whereas legal causation involves considering whether there are any grounds upon which the link should be regarded as having been broken

Question 11

factual causation

Answer 11

BUT FOR the negligent act/omission, would C have suffered the loss?

No: factual causation is established

Uncertain: is the case one of CUMULATIVE CAUSES?

Yes: how likely is it that the injury would have occurred as a result of the non-tortious cause in any event?
- <50% = factual causation is established
- >50% = factual causation is not established
- no possible to say: was the breach a ‘more than negligible cause of the injury
– yes: factual causation established
–no: not established

No: did the tortious act/omission MATERIALLY INCREASE THE RISK of the injury
- yes: consider whether the fairchild/McGhee or loss of chance exceptions should apply
- no: factual causation is not established

Question 12

NAI

Answer 12

x3: god/natural (exceptional); claimant (highly unreasonable + after: eg ankle/leg); 3rd p (highly unforeseeable but medical: so gross/ egregious)

three types

acts of god: exceptional natural event

acts of third parties: high unforeseeable (but if medical: so gross and egregious test!)

acts of the claimant: high unreasonable and if occur AFTER the breach (If employer is negligent and employee breaks ankle but then employee does something so unreasonable then employee breaks leg then can can argue employer only liable for ankle not leg)

Question 13

But for test might not be satisfied where

Answer 13

there are multiple causes (eg 3 potential causes so cannot prove greater than 50% change that breach caused the loss)

Distinguish with causes that act independently and/or there is more than one cause!

Eg case law about premature baby that went blind
5 possible causes that were all equally probable
5 causes did not act together and only one cause was negligent

Question 14

material contribution test

Answer 14

multiple causes + causes act cumulatively

Esp in clinical negligence

Bonnignton: claimant exposed to negligent and non-negligent dust and both dust contributed to diseases so but for negligent dust would C suffered loss?

Experts could not say! Rather than let claim fail because no scientific answer, Court: negligent dust materially contributed and D liable for all the loss

Material contribution: more than negligible contribution

Question 15

material increase the risk test

Answer 15

Multiple causes but not cumulative (one causal agent!)

Single exposure to dust caused dermatitis but which dust caused it?

Liability if breach materially increased risk eg greater exposure = greater chance

Cases limited to industrial disease cases

Question 16

Not too remote even if

Answer 16

x3: not reasonably foreseeable way/extent + think skull

The precise way the damage occurred was not reasonably foreseeable

The full extent of the damage was not reasonably foreseeable

Thin skill rule! Not just physical eg also financial + beliefs

Question 17

remoteness test x2

Answer 17

Was the damage reasonably foreseeable?
- yes: not too remote

If no, was the damage of the SAME TYPE reasonably foreseeable? Narrow or broad construction
- yes: not too remote
- no: too remote (C will not recover re that damage)

Question 18

defences

Answer 18

for D to prove on balance of probabilities + x3

illegality

consent

contributory negligence

Question 19

illegality

Answer 19

Two steps
1: C illegal/grossly immoral act?
2: patel v Mizra x3: prohibition, policy, proportionate x4 (serious, central, intentional, disparity)

1) Has claimant has committed illegal or grossly immoral act?

2) Apply Patel v Mizra test x3
- Underlying purpose of prohibition, is purpose enhanced by denying the claim
- Relevant public policy on which denial of the claim may have an impact
- Denial of the claim is proportionate response to illegality (punishment is for criminal courts!)
–Seriousness of conduct
–Centrality to the tort: ie is there a causal link between illegality and the tort
–Whether it was intentional
–Disparity in parties respective culpability

Look into precedents!!

Question 20

consent

Answer 20

x4: capacity, knowledge, risk, voluntary

Consent: complete defence (x4)
Capacity
Full knowledge of nature and extent of the risk; subjective
Agreed (express — signed or implicitly — engage in dangerous activity) to risk of injury
Agreed voluntarily

Question 21

Contributory negligence

Answer 21

Contributory negligence: partial defence (x2)

1– C failed to take reasonable care for their safety
— special considerations for emergencies/difficult situations; age; rescuers, nature of duty

2 – And failure contributed to claimants damage
—contributing to accident which led to damage or contributing to damage

If established, C damaged reduced by a %

Question 22

Remedies

Answer 22

Put C in position they would have been in had tort not occurred: backwards looking

Question 23

Compensatory damages

Answer 23

Compensatory damages x2 (special v general)

Special damages: specifically provable and quantifiable (eg past expenses for treatment until date of trial/ earnings loss until date of trial )

General damages: future financial losses which cannot be specifically proven (medical expenses that have not been incurred after trial/ future loss of earnings)
Also include compensation for physical injury eg pain and suffering caused by broken arm
“Pain, suffering and loss of amenity” case law!

Deductions may be appropriate: sick pay, contributory negligence, state benefits

Question 24

Victims death

Answer 24

x2: estate on behalf + dependant for own loss

Law reform (miscellaneous provisions) act 1934
Deceased estate bring claim on behalf on deceased before their death
Bring claim that deceased would have brought

Fatal accidents act 1976
Allows claim by certain dependents of the deceased for their own losses caused by losing someone that they depended upon

Question 25

Employer’s liability vs vicarious liability

Answer 25

Employers liability
Principles of negligence where employee claims against employer
claimant must always be an employee of the defendant
Negligence in the work place: employee suing employer for breach of duty they owed to employee

Vicarious liability
Not a tort! But a MECHANISM that can be used by claimant to sue an employer for a tort that has been committed by one of the employer’s employees
Employer is not at fault, rather their employee is at fault

Question 26

Employer’s liability

Answer 26

C = employee + negligence sequence
single overriding duty: reasonable steps for employee safety x4: competent; systems; equipment; premises

Duty x4
Safe/competent employees
Safe/proper plant and equipment
Safe place of work/premises
Safe systems of work

Singly duty: take reasonable precaution to ensure an employee’s safety

Duty is personal and non delegable: regardless of who employer uses to carry out task; the ultimate responsibility is with employer

Negligence in work place so to establish employer’s primary liability need to go through sequence!

Have to ensure that claimant is an employee of defendant!

Question 27

Vicarious liability

Answer 27

Vicarious liability x3: tort A + employee of B + during

Tort has been committed by party A

Party A is employee of party B (or akin)
–Economic reality test! Ready mix concrete
–Paid in exchange of service/mutuality of obligations
–Party B had control over party A eg tasks
–All contractual factors are consistent with employment relationship
–If not employee or independent contractor then akin to employment test? x5
–Party B lent party A to another party: who is the employer?
—-General rule: original employer remains liable
—-Unless other employer had the most control + can also find dual liability!

Tort committed during course of employment: close connection test x2
–Nature of employees activities/job
–Sufficient connection between position of employee and wrongful conduct to make it just for employer to be liable

Question 28

Psychiatric harm

Answer 28

Type of loss in negligent claim — Not a tort!

Question 29

Psychiatric harm – approach

Answer 29

1) identify recognised psychiatric harm (fear, mental grief, distress does not count)

2) is a duty of care owed?

Question 30

Psychiatric harm – types of victims

Answer 30

Types of victim: actual, primary, secondary victims

Actual: physical and possibly psychiatric harm

Primary: suffer psychiatric harm as a result of reasonable fear for physical safety (objective)

Secondary: no physical but suffer psychiatric due to fear for someone else (not in danger zone)

Rescuers do not have special status! Only be primary victims if in reasonable fear of their safety

Actual and primary victims are smaller in numbers than secondary victims — fear about size of secondary means court takes a restrictive approach

Question 31

Psychiatric harm – method

Answer 31

actual (actual physical harm): sequence
primary (danger zone): physical harm RF + sequence
secondary (for other): x5: psy RF, prox x2, shock, FJR

Actual victim: apply usual sequence for negligence

Primary victim: starting point — establish that physical harm was reasonably foreseeable then sequence

Secondary victim: Alcock criteria x4-5
1 – Was psychiatric harm reasonably foreseeable? (Not enough that physical harm would be foreseeable)

2 – Is there proximity of relationships between the claimant and ‘victim’?
Presumed in certain relationships eg parent/child but can be rebutted
Not presumed (eg siblings) can in theory be rebutted but has not been successful

3 – Is there proximity in time and space?

4 – Was the psychiatric harm shock-induced?
As opposed to gradual realisation

5 – Is it fair, just and reasonable to impose a duty of care?
Eg policy considerations like floodgates

Short element in adapt: beyond primary and secondary victims considers psychiatric harm in assumption of responsibility cases

Question 32

Pure economic loss

Answer 32

Type of loss! Not a tort! Affects duty of care but still need to consider full sequence!!

Question 33

Pure economic loss
Definition x3 through examples:

Answer 33

Economic loss not flowing from damage to person or property (eg bad investment, missed contractual opportunity, loss of inheritance)

Loss arising from damage to property of another (eg auction could not run because of a cow disease)

Defective items: product that was always defective (property has not been damaged, rather it is not worth what you thought it was)

Question 34

economic loss
general rule + exceptions

Answer 34

General rule: no duty of care is owed in respect of pure economic loss (for acts!!)

Exceptions x3
1 – Wills: beneficiaries owed duty of care from solicitors (eg negligent drafting = loss of inheritance)
2 – References: person writing owes subject of reference an accurate reference
3 – Negligent misstatements (no duty of care owed for negligent acts casing PEL)

Question 35

economic loss tests

Answer 35

duty? x1/3: reasonable reliancex3; assume R; special R

Where there is no precedent, case law! Hedley Byrne v Heller: 3 tests

1– Reasonably reliance x3
Claimant must have relied on D advice (factual issue)
It was reasonable for C to rely on D advice (legal issue: eg disparity of knowledge/context)
D knew or ought to have known that C was relying on advice

2– Voluntary assumption of responsibility: but for the absence of consideration, there would be a contract

3– Special relationship of trust and confidence
The parties seeking advice trusted the other to exercise a degree of care and it was reasonable and they knew or ought to have known it would be relied upon

even if duty still need to consider rest of sequence! loss, breach, causation, remoteness…

Question 36

PEL – Where a claim is made by a third party who relies on advice prepared for a different person/purpose

Answer 36

1/3 tests + Dx3 (com, purpose, w/o) + Cx1 (detriment)

Rules of Hedley Byrne Heller + x4

D must communicate to third party (identifiable) or know that it would be

D must know the purpose

D must know that 3rd party would rely without independent enquiry

C acted upon advice to detriment (reasonable to expect D to protect C form that loss)

Question 37

PEL –Disclaimers

Answer 37

Disclaimers
Subject to UCTA 1977 (B2B) or CRA 2015
Only if reasonable or fair!

Question 38

land-based torts

Answer 38

completely different to negligence so no sequence

Question 39

Private nuisance
Who can sue?

Answer 39

Claimant must have a legal interest in land affected

Question 40

Private nuisance
Who can be sued?

Answer 40

x3

1) creator of nuisance

2) occupier of land where nuisance originates
For nuisance created themselves
For nuisance created by others eg contractors if reasonably foreseeable consequence of task
If created by trespasser then occupier can be sued if they continue or adopt nuisance

3) owner of land
Where land occupied by tenant, landlord not usually liable unless x2
– Created nuisance
– Or authorised: participating in it or leasing with high likelihood of nuisance

Question 41

Private nuisance
claim

Answer 41

x4: indirect, damage, continuous, unlawful

1) indirect interference
Eg smells, sounds, fumes, vibrations
Contrast with physical invasion (ie direct interference = trespass)

2) recognised damage (no PI or PEL)
Must be reasonably foreseeable
Physical damage to property or
sensible personal discomfort (SPD, S = relating to senses) or
SPD needs to materially interfere with ordinary human comfort
Consequential economic loss (not pure economic loss!)

3) continuous act
Ongoing, minor exceptions (adapt!)

4) unlawful interference (unlawful = unreasonable: balancing act between parties! And D cannot argue that C moved to the nuisance)
Time and duration
Locality (use of land but for physical damage, court will not consider locality + likely unlawful)
Abnormal sensitivity
Malice
Lack of care
Excessive behaviour
Public benefit

Question 42

Private nuisance
Defences

Answer 42

x7: necessity, prescription, statute, consent, 3rd, God, CI

Prescription: 20 years (that a claimant could have complained not how long activity has been going)

Statutory authority: authorised by statute and the nuisance was inevitable.

Consent: C must have specifically consented to the activity causing the nuisance (not enough to consent an activity of which the nuisance is a consequence)

Act of third party: no responsible + no adopt/continue

Act of God: unless adopt/continue

Contributory negligence: failure and failure contributed

Necessity

Question 43

private nuisance
remedies

Answer 43

Remedies (x3) — see adapt

Damages (rarely)

Injunction

Abatement — self help remedy, no need for court order but must give notice unless emergency

Question 44

Public nuisance
Who can sue?

Answer 44

Individual — if they have suffered special damage (over and above the class, or different loss and does NOT need to have an interest in the land!)

Local authority (if it has suffered in its own behalf or on the behalf of inhabitants)

Attorney general

Question 45

Public nuisance
Who can be sued?

Answer 45

Creating or responsible for nuisance
Losses to be recovered is wide: PI, property, CEL, PEL and inconvenience (ie SPD)

Question 46

Public nuisance
Claim

Answer 46

Claim x4
Act or omission

One-off event (no need for continuous act)

Class of his majesty’s subjects (no exact n, depends on facts, significant % of community)

Materially affects comfort and convenience (harm being caused to reasonable comfort and convenience to class: CEL, PEL, PI, property, SPD but must reasonably foreseeable)

Question 47

Public nuisance
Remedies

Answer 47

Remedies x2 (no abatement)

Damages (rarely)
Injunction

Question 48

Public nuisance
Defences

Answer 48

Defences x5 (no prescription)

Statutory authority:
Consent
Act of third party
Act of God
Contributory negligence

Question 49

Rylands v fletcher

Answer 49

who/sued: subset of private but only recover property damage and CEL
claim x5: brings; purpose; escape; foreseeable; non-natural
defences: private (but no prescription) + common benefit + claimant act/omit
remedies: private but damages most likely

Rule: protects against interference from defendant’s land due to an isolated escape

Who can be sued? Who can sue? Same as private

BUT only for loss of property damage and CEL

Claim x5
1) C BRINGS onto land + accumulates (not naturally occurring)
2) for OWN PURPOSES + something likely to do mischief (high threshold)
3) must be an actual ESCAPE (where D has control to where D no longer has control of land)
4) causes FORESEEABLE HARM (no need for escape to be foreseeable harm but rather the harm is if the escaped occurs)
5) NON-NATURAL use of land (D use had to be extraordinary and unusual re to standards of day)

Defences: same as private but
No prescription
and +2: common benefit + act or default of claimant

Remedies same as private nuisance (but damages most common since types of loss property/CEL)

Question 50

Trespass to land
Who can sue?

Answer 50

Anyone with a legal interest in land affected (own it or be in possession of it)
Demised/rented land: claimant is tenant or licensee in possession rather than land owner

Question 51

Trespass to land is actionable per se + notes

Answer 51

it does not require any actual damage!!

Note:
Trespass includes airspace! But statute so that aircraft reasonably above is not trespass
Below ground too! Unless absurd

Question 52

trespass to land

Answer 52

Claim x2

1– Direct and physical interference
Entering C’s lands
Remaining on C land when permission has been revoked
Doing something that is not permitted on C’s land
Placing objects on C’s land without permission

2– Interference was intentional
Must intend the direct action that results in the trespass but need not intend to trespass
Eg voluntarily hit tennis ball and accidentally goes on neighbour’s land is trespass as you intend to hit ball
Intention can be implied (case law)

Question 53

trespass to land
defences

Answer 53

x3

Permission/consent

Legal authority: eg policy

Necessity: to protect public or private interest

Question 54

Trespass to land
remedies

Answer 54

Remedies x5

Damages (most common)

Injunction

Re-entry (self help but only reasonable force)

Recovery of land (court order for D to be removed)

Mesne profit (D have made a profit/saved expenditure while wrongfully occupying land)

Question 55

Occupiers liability

Answer 55

Extension of negligence but based in statute

Loss caused by state of premises

Statute x 2: occupier’s liability act 1957 (visitors) AND occupiers liability 1984 (non visitors)

visitors
1 – occupier + premises + visitor = duty
2 – standard of care
3 – fall below standard?
warnings
causation/remoteness: assume unless
defence: consent + CI

non-visitors
1 – occupier + premises + visitor MIGHT = duty only for PI (not property)
2 – duty owed x3
3 – standard of care
warnings easier than visitors
causation/remoteness assumed
defence: consent + CI

Question 56

Occupiers liability – visitors

Answer 56

Duty (PI/property): occupier(s) + premises + visitor
standard: safety of visitor (not premises)+ objective + lower (skilled)/higher (children) + context (vulnerable)
below? equation
warnings x3: what, where, how
independent contractors: hire, select, supervise

1) Occupier + premises + visitor = duty owed in relation to personal injury and property damage
–Occupier
sufficient degree of control over premises to justify imposition of duty (wheat v lacon)
Can be more than one occupier: eg independent contractor and anyone living there at the time
–Premises
Broad definition!
Any fixed of moveable structure, including any vessel, vehicle or aircraft
–Visitor (by common law so defined by case law)
Express permission (can be limited! On the basis of certain conditions: area, time or purpose)
Implied permission: eg postman
Doctrine of allurement (not as relevant): children visitors as lured easily
Lawful authority: from statute eg medical professionals
Contractual permission

2) standard of care (s2(2) OLA 1957): D needs to do all that is reasonable so that visitor is reasonably safe
–Visitor (not premises) that must be safe
–Objective test: does not matter if D thought they did well
–Context: reasonable care depends on visitor concerned! Eg awareness of vulnerability!!
–Higher standard of care for children! s2(3)(a)
–Lower standard of care for occupiers that are skilled visitors s2(3)(b) eg electrician

3) below standard of care (same test as general negligence)
Likelihood of harm
Magnitude of harm
Practicality of precautions….

Warnings: effective if enables visitor to reasonably safe
Where danger is, what danger is and how to avoid it

Independent contractors
If D acted reasonably in entrusting work to the independent contractor x3: hiring, selecting, supervising

Causation and remoteness: assume caution and remoteness are made out unless seems otherwise

Defences x2
Consent
Contributory negligence

Question 57

Occupiers liability – non-visitors

Answer 57

1984: non visitors

Occupier + premises + non visitor MIGHT = duty owed in relation toPI only (not property of trespasser)

Occupier + premises = same as 1957

1 – Non visitor = on land with no invitation whose presence is unknown or if known objected

2 – Duty owed if x3: danger; vicinity; protection (obj)
Occupier/D are aware of danger or have reasonably ground to believe that it exists
Occupier/D knows or have reasonably grounds (eg facts) that someone is in the vicinity or may come into the vicinity
Occupier/D reasonably expected to offer some protection (objective)
Standard of care
s1(4): care as in reasonable in all circumstances that entrant does not suffer injury on the premises by reason of the danger concerned

3 – Below standard
Same as general negligence: eg likelihood and gravity of harm etc
Court unlikely to have the same expectations as for visitors

Warnings
s1(5) duty may be satisfied if occupier takes all reasonably steps to give warning or discourage
Easier to satisfy for non visitors than visitors (eg physical barriers can be enough for non visitors)

Causation and remoteness: assume okay unless issue arises

Defences x2 (adapt case law)
Consent
Contributory negligence

Question 58

Occupiers liability – Exclusion or limitation clauses

Answer 58

Exclusion or limitation classes — OLA 1957 (not OLA 1984 — the act is silent! But likely common law principle of common humanity)

s2(1)
Restrictions x4

s(3) OLA 1957:
occupier cannot by contract exclude common duty of care
So where an occupier is bound by contract to allow visitors to use or repair premises, the duty of care owed to visitor cannot be excluded or restricted by contract

UCTA 1977 (B2B)
Cannot exclude death or personal injury from their negligence
Can only excluded other types of loss if term/notice satisfy reasonableness

CRA 2015
Between consumer and trader
Like UCTA cannot exclude death or personal injury from their negligence
Can only excluded other types of loss if term/notice is FAIR

Common law
Common humanity principle
Minimum legal standard of care which can never be excluded by agreement or notice

Would conscientious person with D’s defendants knowledge, skill, resources be reasonably expected to have done something which would have avoid the accident rather than rely on exclusion or restriction

Question 59

Product liability
Two aspects

Answer 59

Two aspects: Consumer Protection Act 1987 and liability negligence

CPA and negligence not mutually exclusive but if both succeed claimant cannot be compensated twice

Question 60

Consumer Protection Act 1987

Answer 60

CPA 1987
Strict liability regime: parties liable without showing fault on their part

Definition from s2(1)
– Product
– With a defect
– Causes damage
– Persons as 2(2) who are liable

Question 61

CPA 1987 – product

Answer 61

any goods or electricity
Includes any component or raw materials comprised in another product
Sections 1(2) CPA 1987

Question 62

CPA 1987 – Defect

Answer 62

expectation of safety form consumer’s perspective: >reasonable care

Safety of product is not such as people generally are entitled to expect

So focus is at what people generally can expect: consumers perspective not manufacturer’s (does not matter that manufacturer took reasonable care!)

Higher standard than reasonable care!
A v National Blood authority

Relevant consideration include (s3(2))
Manner and purpose for which marketed
What might reasonably be expected to be done with it
Time of supply

Question 63

CPA 1987 – Damage

Answer 63

death, PI, CEL (not business)
no PEL
no product itself

Damage
Death , PI, any loss or damage to property (CEL too but not business use)

PEL not recoverable

Product itself not recoverable
s5(4): damage must exceed 275

Property is ordinarily intended for private use s5(3) = consumer protection (cannot recover for business as business cannot suffer personal injury or death)

Question 64

CPA 1987 – Persons liable for damage

Answer 64

Persons liable for damage s2(2)

The person who produced the product or held themselves out as the producer
Any person who has imported the product into the UK from outside the UK in the course of business

Producer
Manufacturer
Person who won/abstracted product (eg coal)
Person who carried out the process (neither manufactured or abstracted eg agriculture)

Supplier might be liable — If claimant asked details of producer within reasonable time and supplier failed to ID producer then claim can be brought

If more than one person liable: jointly and severally liable s2(5)

Question 65

CPA 1987 – defences

Answer 65

Defences x7: s(4)
comply, another, business, art, sub, CI, time

a) Defect attributable to compliance with statute or retained EU regulations

b) Person proceeded against did not at any time supply the product to another

c) Otherwise than in the course of business (?)

d) defect did not exist in product at relevant time

e) state of scientific knowledge at the relevant time could not have detected it (limited no fault defence where fault is caused by limited scientific knowledge)

f) defect due to subsequent product that product is found in
Importance of relevant time s4!

s6(4) contributory negligence is also a defence

Question 66

CPA 1987 – method

Answer 66

Product? Defective? Damage? Identify people liable? Defences? Limitation?

Question 67

CPA 1987 – prohibitions + limitations

Answer 67

Any attempt to exclude or limit liability is PROHIBITED s7

Limitation: claim must be brought within 3 YEARS of later date
– Date injury and/or damage occurred
– When claimant became aware or should have become reasonably become aware
– 10 YEARS after product was put into circulation by D: absolute defence

Question 68

product liability – Negligence (Donoghue v Stevenson case law)

Answer 68

not for PEL/product
legal causation re inspection!

Is a duty owed? Precedent! Manufacturer owes duty of care to user of product (not just end user/final purchaser) and manufacturer owes duty to a party that comes into contact with product (even if did not use or buy)

Breach, causation, remoteness, defences, remedies

General negligence: loss of product itself is PEL and generally not recoverable

Legal causation: where goods were going to be examined between manufacture and use by consumer then harm caused to consumer is not the manufacturer faults (NAI) yet there must be a reasonably probability of immediate inspection

Question 69

important note re psychiatric harm (actual, primary and secondary victim) AND PEL

Answer 69

don’t forget the rest of the cause of action: breach, causation, remoteness, defences, remedies

Question 70

Test for relationship akin to employment

Answer 70

SC held if tortfeasor is not carrying on their own independent business, question is if relationship is sufficiently analogous to employment to make it fair, just, reasonable to impose vicarious liability.

Useful to consider that a relationship is more likely to be akin to an employment relationship if:
x5: means, resulting, activity, risk, control

1 – The employer is more likely to have the means to compensate the claimant than the tortfeasor;

2– Tort committed as a result of an activity being undertaken by tortfeasor on employer’s behalf;

3 – The tortfeasor’s activity is part of the business activity of the employer;

4 – By allowing tortfeasor to carry on activity, employer created risk of tort being committed; and

5 – The tortfeasor is, to a greater or lesser degree, under the control of the employer.