Tort

Question 1

list some established duty situations…

Answer 1

• 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

Question 2

explain the duty of care owed to a rescuer

Answer 2

Where a defendant’s actions have created a dangerous situation so that it is reasonably foreseeable that someone may attempt a rescue, the defendant owes a duty of care to the rescuer

Question 3

what is the test for establishing a duty of care in novel situations?

Answer 3

Caparo v Dickman:

1. reasonable foresight of harm to the claimant > Bourhill v Young
2. sufficient proximity of relationship between the claimant and defendant; and
3. that it is fair, just and reasonable to impose a duty > Hill v Chief Constable of West Yorkshire
   - note > can look at policy factors e.g public benefit

the court also noted that when considering novel duty situations, the law should only develop incrementally and by analogy to an established duty

Question 4

what is the general rule regarding liability for omissions?

what are the exceptions to the general rule?

Answer 4

• general rule = no liability for omissions > Stovin v Wise

EXCEPTIONS
- if someone decides to act, they have a duty not to make the situation worse > East Suffolk Rivers
Catchment Board v Kent and another

• the duty to act positively if a person has some sort of power or control over the other person or object:
• employer and employee;
• schools and children;
• parents and children;
• instructors and pupils.
• where one person has a relationship of control over another, they may have a duty to take positive action to prevent harm being caused to third parties > Home Office v Dorset Yacht Co Ltd

e.g. an instructor to make sure that a learner driver does not cause an accident or the duty of a teacher to prevent a pupil running into the road and causing a danger to drivers

Question 7

in establishing whether a D has breached their duty of care, the court looks at what the _______________ ought to have done

Answer 7

• reasonable person > Blyth v Birmingham Waterworks
• objective test > the courts do not take into account the personal attributes of each D

Question 8

explain the situations in which the ‘reasonable person’ test still applies when assessing breach but where special standards modify the test.

Answer 8

1. the skilled defendant
   - Bolam v Friern Hospital Management Committee
   - where a person exercises a special skill, that person is not judged according to the standard of the reasonable person in the street, but is instead judged according to the degree of skill or competence to be expected from a person who has that special skill
2. the under-skilled defendant
   - Nettleship v Weston > learner driver judged against the standard of a reasonable competent driver
   - Wilsher v Essex Area Health Authority > a junior doctor is expected to show the level of competence befitting a doctor holding the same post
   - if a defendant does not profess to have a particular professional skill, they may not be required to meet a higher professional standard
   - however, they must still meet the minimum standard required by the task undertaken
   - if they undertake a task which requires a special skill which they do not possess, that in itself is likely to be negligent
3. children
   - Mullins v Richards > a child defendant will be expected to show such care as can reasonably be
   expected of an ordinary child of the same age

Question 9

a child under 18 cannot be sued (or sue) unless he has _______ to represent them.

even then a decision should be made about whether there is any point suing a child if they have no money to pay the judgment.

Answer 9

adult - known as a litigation friend

Question 10

which factors are relevant when determining whether defendant has achieved the required standard of care?

Answer 10

1. magnitude of the risk
   - the greater the chances of the defendant’s activity causing injury to the claimant, the more precautions the defendant must take > Bolton v Stone
   - duty to protect against ‘reasonable probabilities not fantastic possibilities’
2. the seriousness of the harm
   - the more serious the possible harm to the claimant, the more care the defendant must take
   - Paris v Stepney Borough Council
3. cost and practicability of precautions
   - where the defendant would incur great expense which would produce only a very small reduction in risk, it will be reasonable for the defendant to do nothing
   - however great expense will not excuse a D where the risk of injury is great
   - Latimer v AEC
   - note, if the D’s failure to take reasonable care is attributable to his lack of resources, the courts will not allow the defendant to use this as an excuse
4. D’s purpose
   - If the defendant’s behaviour, therefore, is in the public interest, the defendant is less likely to be held liable in negligence
   - Watt v Hertfordshire County Council > if human life is at risk, the D MAY be justified in taking abnormal risks
5. common practice
   - MAY be able to escape liability if they can show that they complied with the accepted practice in their trade or profession > Bolam v Friern
6. the current state of knowledge
   - Roe v Ministry of Health > anaesthetic contaminated via invisible cracks, doctor uses the anaesthetic and paralyses the victim > D not in breach of duty

Question 11

where there are no witnesses and experts may not be of particular help in a very small number of cases, the circumstances in which the damage occurred
will be such that a court may be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what the defendant did or did not do.

the maxim res ipsa loquitur will assist the claimant (‘the thing speaks for itself’)

what are the three conditions for the maxim to apply?

Answer 11

1. The thing causing the damage must be under the control of the defendant or someone for whom the defendant is responsible.
2. The accident must be such as would not normally happen without negligence.
3. The cause of the accident is unknown to the claimant – so that the claimant has no direct evidence of any failure by the defendant to exercise reasonable care.

Scott v London and St Katherine Docks Co

The defendant then has to provide a reasonable explanation of how the accident could have occurred without negligence by either explaining how the accident happened or showing they had shown reasonable care and skill.

Question 12

what is the effect of effect of s 11 of the Civil Evidence Act 1968?

Answer 12

• a defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceedings, to have committed that offence
• the claimant can rely upon the conviction as evidence that this careless conduct did take place
• the claimant does not need to prove that behaviour again in the civil proceedings

e.g. a car accident occurs and the defendant is convicted of driving without due care and attention. The claimant in a subsequent civil claim can use this conviction as evidence that the defendant failed to take reasonable care when driving. This is because the criminal conviction is relevant to the claim in negligence.

However, this provision will not always be of assistance to the claimant. For example, if a driver is convicted of driving without insurance, this does not provide the claimant with any evidence that the defendant failed to drive carefully, as the criminal conviction is not relevant to the negligence claim

Question 13

what is the standard of proof in tort?

Answer 13

on the balance of probabilities

Hotson v East Berkshire Area Health Authority:
the claimant fell from a tree and was injured, but was then treated negligently by the defendant. There was a
75% chance that the claimant’s medical condition following the fall would have been the same irrespective of diagnosis and treatment. The claimant had therefore failed to satisfy the causation test, as there was only a 25% chance the defendant’s breach had caused his disability and this did not satisfy the balance of probabilities.

Question 14

explain factual causation

Answer 14

• the ‘but for’ test > But for the defendant’s breach of duty, would the harm to the claimant have occurred?
• Barnett v Chelsea and Kensington Hospital Management Committee

Question 15

how would a claimant go about proving causation where there are several possible causes of their injuries?

Answer 15

• Wilsher v Essex Area Health Authority:
• the claimant failed to establish that the defendant’s negligence was the cause of his damage because there were SEVERAL POSSIBLE ALTERNATIVE CAUSES of his blindness, only one of which was the defendant’s negligence
• The claimant could not prove that he had been harmed by the defendant rather than by one of the other causes.

However, it is sometimes possible for a claimant to prove that several causes have together contributed to his harm:
- the claimant need not show that the defendant’s breach of duty was the only cause of the damage to the claimant, or even the main cause
- the claimant simply has to show that it MATERIALLY CONTRIBUTED to the damage > Bonnington Castings Ltd v Wardlaw

Question 16

how would a claimant go about proving causation where they have been injured more than once?

Answer 16

• where one injury follows another and the two injuries do impact on each other
• Performance Cars v Abraham
• where a claimant (or his property) has already suffered damage, a later defendant who causes a subsequent injury should be liable only to the extent that he makes the claimant’s damage worse
• see divisible damages for how this effects how a D would pay damages

Question 17

if the defendant has only contributed towards the claimant’s injury, should the defendant pay damages which reflect the full extent of the harm suffered?

Answer 17

• Where the court has evidence which will enable it to divide up the injury suffered by the claimant, it will apportion the damages accordingly > Holtby v Brigham and Cowan (Hull) Ltd [2000] (court apportions damages to the length of time the C worked for D)
• the injuries are divisible
• note this is an important for a claimant because they may need to sue all Ds in order to recover damages in full
• note, most injuries cannot be divided up this way

Question 18

if two tortfeasors are liable to the claimant for the same injury in full, how should the court deal with damages as between the defendants
themselves?

note the difference between this and Holtby where the court divided up the damage so that each defendant was liable to the claimant only for the particular share of the damage which it caused

here we are talking about the D’s each being liable in full

Answer 18

• the injuries are indivisible
• the C is entitled to sue any and all of the Ds in full
• this is of benefit where one of the Ds is insolvent or untraceable
• Under the Civil Liability (Contribution) Act 1978, a person (D1) liable for any damage suffered by another person (C) may recover a contribution from any other person (D2) liable for the same damage.
• Although the court may apportion blame between the defendants, the apportionment does not affect the claimant as far as the enforcement of any judgment is concerned - so the C can go after any D in full - it would then be up to the D to seek contribution from the other D

EXAMPLE:

C is awarded damages of £20,000. D1 is found 90% to blame and D2 is found 10%
to blame.
* The total amount of damages C can recover is £20,000.
* C may enforce against D1 for the whole £20,000. However, D1 may seek a contribution from D2 for £2,000, ie 10% or
* C may enforce against D2 for the whole £20,000. However, D2 may seek a contribution from D1 for £18,000, ie 90%.

Question 19

how might the chain of causation be broken?

Answer 19

1. the instinctive interventions of a third party do not break the chain of causation > Scott v Shepherd
2. the negligent intervention of a third party
   - the chain of causation is unlikely to be broken by a negligent action of a third party which the defendant ought to have foreseen as a likely consequence of his negligence > Knightley v Johns
3. the conduct of a third party that is intentional or reckless is more likely to break the chain of causation
   - Lamb v Camden London Borough Council
4. actions of the claimant
   - where the claimant does something after the defendant’s negligent act which causes the claimant to suffer further harm
   - McKew v Holland & Hannen & Cubitts (Scotland) Ltd > to amount to a novus actus interveniens the claimant’s
   act has to be entirely unreasonable in all the circumstances to break the chain

• note the D may still raise a defence of contributory negligence

Question 20

is the chain of causation broken where a defendant negligently causes an injury to the claimant, which is then followed by negligent medical treatment?

Answer 20

• unlikely to break the chain of causation unless treatment is so grossly negligent

Question 21

explain remoteness of damage

Answer 21

• the general rule = if the damage is too remote, D will not be liable
• The Wagon Mound No.1 > Is the damage of such a kind that the reasonable person would have foreseen it? If not = too remote

THE SIMILAR TYPE RULE
- if the claimant suffers an injury of a type which was foreseeable, it does not matter that the precise way in which the claimant was injured was not foreseeable
- Hughes v Lord Advocate

EGG SHELL SKULL RULE
- Robinson v Post Office > This means that if the claimant suffers a particular disability or has a particular condition, they can recover in full from the defendant for their losses, even though the defendant could not have foreseen the full extent of the claimant’s loss.

Question 22

what is the general rule for pure economic loss

Answer 22

general rule = where a claimant suffers damage which is classed as pure economic loss, that loss is not recoverable

(unless falls into one of the limited situations)

note therefore that it is not that the D has no duty not to cause economic loss, it is that they only have a duty in limited situations

Question 23

explain the position on consequential economic loss

Answer 23

• the defendant owes a duty of care not to cause the claimant physical injury or property damage, so the defendant also owes a duty not to cause the consequential economic loss which follows from that injury or damage

note that there are no special rules regarding consequential economic loss

Question 24

which types of economic loss are pure economic loss and as a result cannot be recovered from the D?

Answer 24

1. economic loss caused by acquiring a defective item of property
   - Murphy v Brentwood DC
   - note you can still claim for personal injuries and consequential loss arising from the defective property
2. economic loss unconnected to personal injury to the claimant or physical damage to the claimant’s property
   - the D doesn’t have a sufficiently close relationship to the Claimant
3. economic loss caused by damage to the property of a third party
   - Spartan Steel & Alloys Ltd v Martin & Co > claimant was owed a duty of care for damage to property which it did own, and financial loss consequent on that damage because this was consequential loss
4. economic loss where there is no physical damage: actions
   - no duty of care > Weller & Co v Foot and Mouth Disease Research Institute
5. economic loss where there is no physical damage: statements (e.g. negligent statements)
   - unless special relationship > Hedley Byrne

Question 25

the general rule is that economic loss suffered by a claimant for a defendant’s negligent statements is not recoverable unless there was a special relationship

when would a special relationship arise?

Answer 25

• no duty of care unless special relationship > Hedley Byrne v Heller & Partners Ltd
• two elements of a special relationship:
  (a) an assumption of responsibility by the defendant
• Caparo laid down four elements for their to be a
  special relationship:
• The defendant knew the purpose for which the advice was required.
• The defendant knew that the advice would be communicated to the claimant (either specifically or as a member of an ascertainable class).
• The defendant knew that the claimant was likely to act on the advice without independent inquiry.
• The advice was acted on by the claimant to its detriment.
• James McNaughton Papers Group Ltd v Hicks Anderson & Co (a firm) > accountant not liable as wasn’t aware his accounts would be communicated to the claimant for the purpose of a takeover
  VS
• Morgan Cruicible v Hill Samuel Bank > the Court of Appeal > decided that in a contested takeover battle, if, after an identified bidder has emerged, the directors and financial advisers of a target company make express representations with a view to influencing the bidder’s conduct, they may owe a duty not to mislead
  him negligently. In this case the identity of the bidder is known and the nature of the transaction is known, so proximity of relationship can be established.
• Chaudhry v Prabhakar > a duty of care will not be owed in respect of advice given in a social situation, but the D was found liable in this case because they had more experience and knowledge about the subject matter and knew the C would rely on their skill and judgment

(b) reasonable reliance by the claimant

note there are some established situations where thre will be a special relationship

Question 26

case law has shown that there are some situtions where a special relationship is established and therefore

Answer 26

1. employer to employee
   - Spring v Guardian Assurance plc > negligent reference > able to claim for pure economic loss as the employer had assumed a responsibility to the claimant to take care in providing the reference
2. solicitor to client
   - White v Jones > negligent delay in will drafting meant again C was able to recover pure economic loss because the solicitor had assumed responsibility to the beneficiaries and to the testator to adequately draft the will
   - note the sol didnt make negligent statements > negligent services

Question 27

can a claimant rely on a claim in tort even though they also have a contract with the defendant for the professional services?

Answer 27

• Henderson v Merrett Syndicates
• can rely on a claim in tort even though they have a contract with the D if the duty in tort is consistent with the duties owed under the contract
• e.g. there was a duty to take reasonable care in both tort and contract

Question 28

in what situations may a D be able to exclude their liability?

Answer 28

• by relying on an exclusion notice
• can only rely on an exclusion notice:

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.

• the Ds ability to exclude liability is further limited by UCTA + CRA 2015
• for UCTA > D must have been acting in the course of business
• CRA > D must have been acting as a trader and the claimant must be acting as a consumer (if they are not acting as a consumer, UCTA may still apply)
• cant exclude liability for death or personal injury arising from negligence
• for any other loss/damage, the D can exclude their liability if it satisfies the requirements of reasonableness under s 2(2) of UCTA 1977 or fairness under s 62 of CRA 2015:
  i) reasonableness under UCTA = it should be fair and
  reasonable to allow reliance on the exclusion notice, having regard to all the circumstances
  ii) fairness under CRA = similar considerations to the above + requirement of good faith, taking into account any significant imbalance of the parties rights

Question 29

In Smith v Eric S Bush; Harris v Wyre Forest District Council, the House of Lords listed factors which should be taken into consideration when assessing reasonableness (UCTA) of exclusion notices.

what were the factors to take into consideration?

Answer 29

• Were the parties of equal bargaining power?
• 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?
• How difficult is the task being undertaken for which liability is being excluded?
• 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?

Question 30

as with pure economic loss, a defendant does not owe any duty of care to a claimant not to cause pure
psychiatric harm. why is this?

Answer 30

there is generally a lack of a sufficiently proximate relationship between a claimant who has suffered pure psychiatric harm, and a defendant who may have caused this type of loss

Question 31

Where a claimant has suffered pure psychiatric harm – ie without physical impact – the injury must be either…

Answer 31

• a medically recognised psychiatric illness; or
• a shock- induced physical condition (such as a miscarriage or heart attack).

cases of simple worry and anxiety will not suffice

note these are the same requirements for primary and secondary victims

Question 32

the house of lords in Page v Smith stated a primary victim is a person who….

and stated the test for primary victims is…

Answer 32

A primary victim is someone who was actually involved in the incident. So, a primary victim:
a) was in the actual area of danger; or
b) reasonably believed that he was in danger.

The requirements for a duty of care to be owed to a primary victim are:
i) primary victims are owed a duty of care in relation to their pure psychiatric harm, provided the risk of physical injury was foreseeable;
ii) for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.

Question 33

the house of lords in Page v Smith stated a secondary victim was a person who….

which case set down the test for secondary victims and what did it say?

Answer 33

A secondary victim is someone who is not involved in the incident in the same way. So a secondary victim:
a) witnesses injury to someone else; or
b) fears for the safety of another person

Alcock v Chief Constable of South Yorkshire Police - known as the Alcock control mechanisms:

1. It must be reasonably foreseeable that a person of normal fortitude in the claimant’s position
   would suffer a psychiatric illness.
2. The claimant must have a close relationship of love and affection with the person who is endangered by the defendant’s negligence.
   - parent/ child, husband/ wife and fiancé/ fiancée = presumption of close relationship of love and aff
   - if not in the above categories = must show relationship of love and aff
   - can adduce evidence to rebut the presumption e.g. if they werent close with the endangered
3. The claimant must be present at the accident or its immediate aftermath.
   - McLoughlin v O’Brian
   - through sight or hearing
   - not through third party
4. The claimant must see or hear the accident, or its immediate aftermath, with their own senses.
   - McLoughlin v O’Brian
   - note, in Alcock, Mr Alcock saw the body 8 hours after the incident = wasnt classed as immediate aftermath

Question 34

what is the courts position regarding secondary victims viewing the incident through the TV

Answer 34

Alcock > some of the victims families watched the Hillsborough events unfold on TV but no one on the broadcast was identifiable = couldn’t recover damages

However, Alcock noted that a live television broadcast might be sufficient to render the tortfeasor liable to claimants in shock if the ‘impact of the simultaneous television pictures would be as great, if not greater, than the actual sight of the accident’

Question 35

is there a special duty owed to rescuers (and those acting in the course of their employment)?

Answer 35

in White v Chief Constable of Yorkshire, police officers were involved in rescue activities at Hillsborough but weren’t actually in the area of danger > could they claim for psychiatric harm?

White = should be treated in the same way as any other victim who suffers only pure psychiatric harm. Therefore:
* If a rescuer has been in the actual area of danger, they are a primary victim. A duty of care is owed to a primary victim, provided there is a foreseeable risk of physical injury (even though the injury he in fact suffers is pure psychiatric harm).

• If a rescuer has not been in the actual area of danger so that they have not been exposed to any risk of physical injury, they will be classed as a secondary victim. They will be owed a duty of care only if they meet all of the tests laid down in Alcock.

Question 36

what is an employer’s common law duty?

Answer 36

• Wilsons & Clyde Coal Co Ltd v English > common law duty comprises of three separate duties to take reasonable steps tor provide:
  1. competent staff
  2. adequate material
  3. a safe system of work
  4. (added by Latimer v AEC) a safe place of work
• a proper system of work and supervision.
• Latimer v AEC added a 4th duty to the list being duty to take reasonable steps to provide:
• a safe place of work

Question 37

can employer say it escapes liability for negligence because it delegated its performance to someone else whom it reasonably believes is competent to perform it? e.g. an independent contractor

Answer 37

it is a non-delegable duty

so if a contractor negligently services a machine and the machine explodes injuring an employee, the employee’s course of action is against the employer
(but the employer might then make a claim against the contractor)

Question 38

explain an employers duty to provide competent staff

Answer 38

1. competent staff
   - Hudson v Ridge Manufacturing Co Ltd > claimant injured at work when fellow workman played prank on him > company new about the workman’s repeated pranking and had warned him someone would get hurt > employer liable > noted if the employer wasnt aware = not liable
   - The duty to provide competent staff will not therefore arise merely from the fact that a worker is incompetent. Rather, it arises where an employer knows, or ought to know, about the risk a particular worker is posing to fellow workers
   - the risk to the employee could be psychological as well as physical > Waters v Commissioner of Police for the Metropolis

Question 39

explain an employers duty to provide adequate materials

Answer 39

2. adequate material (ie plant, equipment and machinery)
   - interpreted widely by the courts
   - relevant where the employer doesn’t provide an adequate material and should’ve done
   - and where the employer does provide materials but they are not adequate
   - employee can sue employer for defective equipment > Employer’s Liability (Defective Equipment) Act 1969
   - The injured employee needs to establish two things:
   * fault on the part of the third party (most commonly the manufacturer of the equipment, but
   a supplier would also come within the statutory provision);
   * causation (ie that the fault of the third party caused the employee’s injury).

Question 40

explain an employers duty to provide a safe system of work

Answer 40

• widest so invoked most frequently
• includes the physical lay out, training, warnings, notices, safety equipment and the issue of special instructions, and where the employee suffers from stress
• It is not enough for an employer simply to devise a safe system; this duty also requires an employer to take reasonable steps to ensure that it is complied with. The steps which a reasonable employer would take to ensure the safe system is being implemented include:
• providing adequate training to employees in the operation of the new system;
• ensuring the employees are supervised, at least at the outset;
• monitoring the operation of the system to ensure it is being fully complied with; and
• taking disciplinary action against any employee who fails to comply with the system
• the duty requires the employer to continuously assess the risks inherent in its particular working environment

Question 41

explain an employer’s duty to provide a safe workplace

Answer 41

• fourth duty added by Latimer v AEC
• overlap with OLA 1957, however, the common law duty is more onerous than that imposed by OLA 1957:
  i) common law duty is non-delegable
  ii) General Cleaning Contractors v Christmas > confirmed that the common law duty to provide a safe system of work applies regardless of where the employees are at work
• This means an employer has to assess premises to which his employees are sent for dangers and then, if such dangers are found, devise and implement a system of work so as to eradicate or minimise those
  dangers.

Question 42

explain an employer’s duty for stress at work

Answer 42

• Walker v Northumberland County Council first established employer’s duties towards employees who have suffered stress at work
• Hatton v Sutherland laid down guidelines that were approved by Barber v Somerset County Council
• Hatton guidelines > whether injury to health through stress at work was reasonably foreseeable (known as the threshold question)
• in considering the threshold question, the court should consider:
  1. the nature and extent of the work done by the employee (eg was the workload obviously too demanding in terms of type or amount; was there a high degree of absenteeism or sickness in the relevant department, etc); and
  2. signs from the employee themselves. The Court stated that an employer is generally entitled to assume an employee was up to the normal pressures of the job and was entitled to take what an employee told it at face value.

note - if the employee’s stress is coming from external sources e.g. going through a divorce = outside work so outside the ambit of the common law duty

Question 43

explain how an employer breaches their common law duties to their employees

Answer 43

• Each of the duties owed by an employer requires the employer to take such steps as are reasonable
• same as the other areas of negligence > the court will look at all the circumstances of the case, including the magnitude of the foreseeable risk and also the
  cost and practicality of precautions
• the duty is owed to each individual employee > Paris v Stepney Borough Council (claimant had one eye, D shouldve done more to protect the good eye)
• health and safety at work = HSWA 1974 > breach is criminal offence but breach of these cannot be brought in civil claim
• HSWA = acts as guidance > precautions which are required by statutory health and safety regulations are likely to be regarded as a guide to the standard which a reasonable employer ought to meet

Question 44

The defence of consent (voluntary assumption of risk / volenti non fit injuria) operates as a ____________ defence for the defendant.

Answer 44

complete defence

preventing the claimant recovering at all for the defendant’s breach of duty

Question 45

which two things must a D establish for a defence of consent to succeed?

explain each

Answer 45

1. that the claimant had full knowledge of the nature and extent of the risk; and
   - must’ve had full knowledge of the nature and extent of the risk
   - simply knowing the risk exists = not sufficient
2. that the claimant willingly consented to accept the risk of being injured due to the defendant’s negligence
   - D must prove C freely consented to run the risk of injury
   - knowledge is not consent

> Dann v Hamilton:
- the claimant, knowing that the driver of a motor car
was under the influence of drink nevertheless chose to travel by the car and was injured
- while the claimant knew that the driver had been drinking so that there was a risk that he might drive carelessly, it could not be said that knowledge of the
risk was sufficient to imply consent to the risk

> Morris v Murray :
- The claimant must have realised how drunk the pilot was and thereby implicitly waived his right to damages

NOTE the consent must be given freely and voluntarily and not as a result of fear or duress

Question 46

which statutory provision deals with the defence of consent in the case of motor vehicles and what is its effect?

Answer 46

Section 149 of the Road Traffic Act 1988 applies to any motor vehicle where insurance for passengers is compulsory. Its effect is that any acceptance of risk by the passenger is invalid. The defence of consent cannot be relied upon against a claimant who was a
passenger in their vehicle.

Question 47

generally, does the defence of consent succeed in claims by employees against their employers?

Answer 47

• the defence of consent very rarely succeeds in these circumstances
• an employee acts under a duty and therefore has no real freedom of choice when carrying out a dangerous task requested by the employer
• if they do not carry out the task, they risk losing their job
• Smith v Baker > just because the claimant had continued to work, knowing the risks involved, it did not mean he had consented in law to the risk

Question 48

generally, does the defence of consent succeed in claims by rescuers?

Answer 48

• a rescuer usually doesn’t act voluntarily they often act under moral compulsion
• rescuers will not be said to have consented to the risk of injury if:
• they were acting to rescue persons or property endangered by the defendant’s negligence; and
• they were acting under a compelling legal, social or moral duty; and
• their conduct in all the circumstances was reasonable and a natural and probable consequence of the defendant’s negligence.
• Haynes v Harwood
  Note - Haynes demonstrates that the rules on rescuers apply equally to professional rescuers and to lay rescuers

Question 49

A defendant who is unable to escape liability by relying on any of the complete defences may, nevertheless, be able to raise the partial defence of contributory negligence.

contributory negligence comprises of two elements, what are they?

Answer 49

1. carelessness on the claimant’s part; and
2. that carelessness has contributed to the claimant’s damage.

Question 50

what is the effect of a finding for contributory negligence?

Answer 50

• partial defence
• Law Reform (Contributory Negligence) Act 1945
• the claimant’s damages are reduced to such extent
  as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage
• when making this assessment the court will take into account:
• culpability, ie the relative blameworthiness of the parties;
• causation, ie the extent to which the claimant’s carelessness has caused or contributed to the loss suffered.
• the relevant issue is not who caused the accident, but who caused the damage

Question 51

in the case of Froom v Butcher, the CoA handed down a scale of reductions to be made when a claimant fails to wear a seatbelt, what are the reductions?

Answer 51

note this scale is also applicable to a claimant’s failure to wear a crash helmet

Question 52

what is the court’s position on contributory negligence for drunk drivers?

Answer 52

• 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 applies even where the claimant was too drunk to appreciate the drivers intoxication but knew that by going out drinking together, they would later be driven home by the driver when the driver would be drunk > Owens v Brimmell

Question 53

explain the court position regarding children and contributory negligence

Answer 53

• Gough v Thorne > ‘(a) judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety.’
• The child must also be ‘blameworthy’
• the test = whether an ordinary child of the claimant’s age would have taken more care for his safety than the claimant did
• if v young child = unlikely to find CN
• in some situations an injury to a child may be due partly to the defendant’s negligence but also partly to the negligence of the child’s parents = the child’s damages cannot be reduced to account for the negligence of the parents (D could seek contribution from the parents under the Civil Liability (Contribution) Act)

Question 54

explain the position regarding contributory negligence of a rescuer

Answer 54

from Baker v TE Hopkins & Son Ltd :

• For the purposes of contributory negligence, a rescuer will be judged against the standard of the reasonable rescuer. Allowance will be made for the emergency situation in which many rescuers will find themselves.
• Only if a rescuer has shown a ‘wholly unreasonable disregard for his or her own safety’ is there likely to be a finding of contributory negligence. Such cases are likely to be rare in practice as the courts will always be reluctant to accept criticism of a rescuer’s conduct.

Question 55

explain the position regarding contributory negligence of employers

Answer 55

In Caswell v Powell Duffryn Associated Collieries Ltd 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.

courts will be less likely to make a finding of CN against a worker workman in a mine who is consistently exposed to danger so may take less care, than an office worker

Question 56

The defendant’s negligence may sometimes put the claimant in a situation of imminent danger, compelling the claimant to take some action to try to save themselves.

Would a D be successful in arguing contributory
negligence against a claimant who is injured while trying to save themselves?

Answer 56

> Jones v Boyce:
- D negligently drove a coach which caused the C to jump out and break his leg
- The court held that the method used by the claimant to try to save himself ‘in the agony of the moment’ was found to be a reasonable one, given the perilous situation in which he was placed
- no finding of CN even though, with hindsight, he would have been safer had he opted for the alternative course of action

> Sayers v Harlow UDC = example of where the claimant did not act reasonably

Question 57

The fact that the claimant was involved in an illegal enterprise at the time they were injured may sometimes provide the defendant with a defence. The maxim ‘ex turpi causa non oritur actio’ translates as ‘no action arises from a disgraceful cause’. (commonly referred to as the defence of illegality)

does this act as a complete defence for the D?

how does it work?

Answer 57

• operates as a complete defence for the defendant,
  preventing the claimant recovering at all for the defendant’s breach of duty
• Pitts v Hunt > The claimant’s case failed as the action by the claimant arose directly ex turpi causa, in that the reckless driving, which was the cause of the claimant’s injuries, was an inherent part of their joint criminal enterprise.
• For the defence of illegality to succeed there must be a very close connection between the illegal activity of the claimant and the injury which they suffer, so that the damage arises directly out of the illegal activity in such a way that it would be contrary to public policy to
  allow the claimant a remedy.

Question 58

what is the aim of damages in tort?

Answer 58

The aim of damages in tort is to put the claimant in the same position they would have been in if the tort had not been committed.

This means that the claimant should be no worse off because of the occurrence – but also no better off - note the claimant’s duty to mitigate their losses

Question 59

what is the difference between general damages and special damages?

Answer 59

• Special damages – those losses which are capable of being calculated precisely at the time of the trial and which are stated in the form of a calculation. This covers financial losses incurred before trial, such as loss of earnings.
• General damages – those losses which are not capable of being calculated precisely and are therefore left to the court to determine. They must still be stated but no definitive figure can be placed on them. This includes pain, suffering and loss of amenity and all
  losses incurred after the trial.

Question 60

in awarding damages for personal injury, the court considers two sub-categories. what are they?

Answer 60

pecuniary losses - calculated pre trial in monetary terms

non-pecuniary losses e.g. losses in the claimant’s personal injury
- loss of amenity
- pain and suffering

Question 61

explain damages for pain and suffering

Answer 61

• covers past, present and future pain, physical and
  mental anguish, the fear of future surgery, etc
• covers claimant’s anguish of knowing that their life expectancy had been shortened because of the accident
• If a claimant was unconscious they would not recover damages for pain and suffering for that period because they would not be aware of it and would fail the subjective test (however, they would still be able to claim for loss of amenity)

Question 62

explain damages for loss of amenity

Answer 62

• aims to compensate the claimant for the loss of the enjoyment of life, and it therefore covers a wide area of loss, eg loss of freedom of movement, loss of sight, loss
  of smell, loss of marriage prospects, inability to pursue hobbies, etc
• therefore follows that if a C was very active prior to the injury they will receive more than someone who wasnt
• this is an objective test > can claim for these damages regardless of whether they were conscious

Question 63

how does the court assess non-pecuniary losses?

Answer 63

looks at the facts in each individual case

Question 64

non-pecuniary damages e.g. damages for pain and suffering and loss of amenity are general damages.

why?

Answer 64

because they are not capable of being calculated precisely

Question 65

looking at pecuniary losses…

The claimant is able to recover any medical expenses that have been incurred. If the expenses are incurred pre- trial they will be __________ damages

if they are to be incurred post-trial they will be ___________

Answer 65

special damages - already incurred

general damages - yet to be incurred

Question 66

when might the C not be able to recover any damages for medical expenses?

Answer 66

when the claimant has received the medical treatment from the NHS

(In some circumstances, the defendant may be required to make a payment towards the costs of NHS medical treatment. However, this does not form part of
the claimant’s damages.)

note - a claimant who is treated by the NHS free of charge cannot recover what it would have cost them to have private treatment

Question 67

is a claimant compensated in the same way for private medical treatment?

Answer 67

• a claimant can choose to pay for private medical treatment
• this will not be seen as a failure to mitigate losses
• note a claimant who is treated by the NHS free of charge cannot recover what it would have cost them to have private treatment

Question 68

how does the court calculate damages for loss of earnings pre-trial?

Answer 68

• special damages
• It is necessary to ascertain net earnings, ie after deduction of tax, national insurance contributions, and pension contributions, because claimants should receive as compensation the same sum of money
  they would have taken home with them if they had been able to work
• if the claimant regularly earned overtime or bonuses, these should be included in the calculation
• any perks of the job which the claimant received, eg a company car, reduced rate mortgage, share options, should be included in the calculation.

Question 69

how does the court calculate damages for loss of earnings post-trial?

Answer 69

• general damages
• various formulas:

1. multiplicand
   - if the claimant would have had an increase in earnings due to, for example, promotion, and that increase was very likely to happen, the court can take that into account in assessing the amount of the claimant’s loss
   - the salary cannot be increased due to inflation (this is because the C can invest the salary in such a way to counter-act inflation)
   - gross salary minus tax, national insurance, and pension contributions = net annual loss (known as the multiplicand)
2. multiplier
   - court then needs to calculate how long the C will lose this money (the period of future loss)
   - if not expected to work again = this period will be based on the claimant’s pre- accident working life expectancy, ie the length of time he would have to work until normal retirement age (this is the multiplier)

Question 70

in what circumstances would a D be over-compensated for loss of future earnings?

Answer 70

if they received their full loss of future earnings at the date of the trial

this is because they would be able to invest that whole lump sum and allow it to earn interest

Question 71

in what circumstances would a D be under-compensated for loss of future earnings?

Answer 71

if the interest they receive on their damages does not protect them against the effects of inflation

the rate of interest that a claimant is expected to receive when investing their damages (known as the ‘discount rate’) is, therefore, a crucial consideration

The Lord Chancellor exercises powers under the Damages Act 1996 to set the discount rate. The current discount rate is minus 0.25%.
- the justification of this is that claimants are treated as risk averse investors

• use the ogden tables - find the appropriate multiplier based on the claimant’s age and discount ratew

Question 72

how does a court calculate loss of earnings where the injury has been so severe as to reduce the claimant’s life expectancy?

Answer 72

• Pickett v British Rail Engineering = claimants whose
  life expectancy had been shortened by the incident could recover loss of future earnings for lost years
• when the loss of earnings figure is calculated for the period after the claimant is expected to die, it is necessary to deduct the amount which the claimant would have spent on themselves from the multiplicand
• that deduction from the multiplicand is generally set at 25% for a person married with dependent children, and at 33% for those with no dependants

Question 73

how does a court calculate loss of earnings where the injury has been so severe as to reduce the child claimant’s life expectancy?

Answer 73

• there is nothing that prevents the court from awarding a child damages for future loss of earnings but this will be difficult to calculate
• different approaches the court might take:
  i) consider what the child’s parents earn and assume the child would reach a similar level
  ii) take the national average earnings and base the child’s earnings on those figures

Question 74

A solicitor is acting for a client who has been seriously injured. The client is about to be released from hospital to go home. The kind of help and services they might need includes:
* help with housework/ shopping/ gardening/ laundry etc;
* nursing care.

can a claimant recover these costs?

Answer 74

• can recover the costs of these services but has to be
  able to show that the need for the services follows from the injury caused by the defendant’s negligence
• these services may be provided by a carer or by a relative who gives up work = costs can be recovered in both situations however, the identity of the carer may affect the amount recoverable
• paid for professional nursing care > must show the costs were reasonable and in line with the usual market rate for such services
• where the C’s spouse or other relative > starting point is the loss of earnings suffered by the carer
• However, the costs cannot exceed the commercial rate for providing the services

Question 75

A claimant faces the risk that if they lose their job in the near future, they will be disadvantaged on the job market because of their disability (caused by D’s negligence) they may find it very difficult to get employment.

Alternatively, they may be able to get some employment but find that it is less well paid.

how does the court compensate a claimant in these cases?

Answer 75

• judge can award to compensate the C for these losses
• very speculative
• the judge must be satisfied that there is a real risk of the claimant losing their job (known as the Smith v Manchester Corporation award)
• not relevant where the C has already been forced to move to a lower paid job > the C would simply make a claim for their loss of future earnings

Question 76

if the damage includes damage to a C’s property, can the C recover pecuniary damages for things like clothing, jewellery, watches, spectacles, bags, shoes, etc?

Answer 76

• yes
• any reasonable loss incurred by the claimant as a result of the accident can be recovered

Question 77

there is an exception to the general rule that a C should not be over-compensated - there are some payments which a claimant is allowed to keep in full, even though they are an extra benefit which the claimant has received only because of the accident.

what are they?

Answer 77

• insurance payments;
• ill- health pensions;
• charitable payments. (This would include ex gratia payments made by the claimant’s employer, provided the employer is not the tortfeasor.)

Question 78

If the claimant receives State benefits as a result of an accident, some account must be taken of the receipt of these benefits.

On the one hand, if no account were taken and damages not reduced, the claimant would be over- compensated.

On the other hand, if State benefits reduced the damages which the defendant had to pay, the State would be bearing the costs of the defendant’s negligence.

what is the solution?

Answer 78

C still claims state benefits

the amount of these state benefits are deducted from the claimant’s damages

then the defendant is required to pay that amount back to the State

This is provided for by the Social Security
(Recovery of Benefits) Act 1997

note - no benefits are deductible from the claim for pain and suffering and loss of amenity

Question 79

Mandeep has a 10% chance of loss of sight in one eye. On the basis that loss of sight in one eye would be worth £30,000, if the court awarded her 10% of this, Mandeep would receive £3,000. However, if Mandeep does lose the sight in her eye, she will be undercompensated by £27,000. If Mandeep does not lose sight in her eye, she will have been over- compensated by £3,000.

how would the court deal with an award of damages here?

Answer 79

1. Section 32A of the Senior Courts Act 1981 allows for an award of provisional damages.

So, in this situation, because there is a chance of serious deterioration, a provisional damages award would be appropriate. At the trial, the court will assess damages on the basis that Mandeep will not lose the sight in her eye. The judgment will specifically provide that, in the event that Mandeep does lose the sight in her eye in the future, she will be entitled to further damages.

Question 80

is it true that damages can never be awarded for personal injury in periodic payments?

Answer 80

no - in some circumstances, s 2 Damages Act 1996, allows the court to award damages for personal injury as periodic payments rather than as a lump sum

watch out for an SBAQ saying they can ‘never’ be awarded periodically

Question 81

what happens if if a claimant dies before they have received an award of compensation?

Answer 81

• The Law Reform (Miscellaneous Provisions) Act 1934
• The 1934 Act does not create any new cause of action. It simply allows existing causes of action to continue after death
• all causes of action (except claims for defamation and bereavement damages survive the death of either the claimant or the defendant
• A claim by a claimant survives for the benefit of their estate.
• A claim against a defendant survives against their estate
• the receipt of insurance money payable on death, or a lump sum payment from a pension nor any funds the estate had to pay out on death = do not reduce the damages claimed by the estate (with the exception of that reasonable funeral expenses can be claimed, provided they have been paid for by the estate)

Question 82

what can a deceased claimant claim damages for?

Answer 82

Non- pecuniary losses
* Pain and suffering and loss of amenity. Naturally, these end at the date of death.

Pecuniary losses
* Damage to property, eg clothes or a car damaged in an accident.
* Medical and other expenses. Naturally, these will end at the date of death.
* Loss of income up to the date of death.

• Where the claimant’s death has been caused by the defendant’s tort, the claim for loss of income under the 1934 Act must end at the date of death.
• If the deceased claimant leaves dependent relatives, they would be compensated by a claim under the Fatal Accidents Act 1976

Question 83

how does the the Law Reform (Miscellaneous Provisions) Act 1934 affect court proceedings against a defendant, where the claimant has died?

Answer 83

1. where the claimant dies before any proceedings have been brought against the D, PRs will be entitled to bring a claim on the deceased’s behalf
2. if the claimant dies during proceedings, the PR can continue the proceedings on the deceased’s behalf

Question 84

what is the effect of the Fatal Accidents Act 1976?

Answer 84

• created a new cause of action as it allows dependants to sue for the death of the person on whom they were dependent
• in order to bring a claim under the 1976 Act claimants have to be able to show that, had the deceased survived, the deceased would have been able to bring a claim against the defendant themselves
• any defence that would’ve the original claim, will defeat this claim
• in the case of CN if the deceased’s own damages would have been reduced, damages under the 1976 Act will also be reduced

Question 85

what are the three claims that can be made under the Fatal Accidents Act 1976?

Answer 85

1. A claim on behalf of dependants for loss of dependency.
2. A claim for damages for bereavement – limited to certain persons only.
3. A claim for funeral expenses – if paid by the dependants.

Question 86

In order to claim damages for loss of dependency, a person must satisfy two requirements. What are they?

Answer 86

1. they must fall within the class of dependants as listed in the 1976 Act (it includes current and former married spouses/ civil partners, cohabitees who have lived together for at least two years, parents, children, siblings; the list is definitive, so that if a person does
   not fall within it, they cannot make a claim); and
2. they must have been actually financially dependent on the deceased (they must show that they had a reasonable expectation of pecuniary benefit from the deceased).
   - note ‘pecuniary benefit’ does not simply mean provision of money
   - dependants can claim for the cost of replacing services which were provided by the deceased e.g. child care, DIY, gardening and housework
   - remember this is for future losses (as C is deceased)

Question 87

in making a claim under the Fatal Accidents Act 1976, a dependent of the deceased can claim damages for loss of dependency.

how is this calculated?

Answer 87

MULTIPLICAND
- deceased’s net annual earnings minus what they would’ve spent on themselves
- the conventional deduction = 25% for a married person with children and 33% for a married
person without children
- note where the deceased’s children were no longer dependent on them at the time of death = conventional deduction is 33%

note the deceased may have contributed to the family’s wealth in other ways than the salary e.g. perks of the job or child care which will now need to be paid for - these contributions need to be taken into account

MULTIPLIER
- should be based on the period of loss to the dependant, ie on the period for which the dependency might have continued
- the longest possible period of dependency would be when the deceased wouldve stopped working
- if child = the period of dependency would be expected to cease when the child reached the age of 18 or ceased full- time education
- again, take the period of dependency and turn it into a multiplier via the ogden tables

Question 88

when making a claim under the Fatal Accidents Act 1976, which two factors are not taken into account when calculating the value of a claimant’s lost dependency?

Answer 88

• damages for a dependant spouse do not take into account their remarriage or prospects of remarriage;
• the fact that dependants are likely to inherit money from the deceased (under a will or on intestacy) is not to be taken into account.

Question 89

who are the only people who can claim damages for bereavement?

Answer 89

1. the wife, husband or civil partner of the deceased;
2. the parents (or mother if illegitimate) of a minor who was never married or a civil partner;
3. the cohabiting partner of the deceased, who:
   (a) was living with the deceased in the same household immediately before the date of the death; and
   (b) had been living with the deceased in the same household for at least two years before that date; and
   (c) was living during the whole of that period as the wife or husband or civil partner of the deceased.

note - children not on the list

Question 90

what is the amount for damages for bereavement?

Answer 90

• £15,120
• fixed sum
• only one award can be made per death so where
  both parents are entitled to claim, the award is split between them

Question 91

can a dependent make a claim for funeral expenses?

Answer 91

• yes can make a claim where the funeral expenses have been paid by a dependent
• via the Fatal Accidents Act 1976 (in addition to other claims via the act e.g claim for damages for bereavement)

Question 92

how does vicarious liability effect parties liability?

Answer 92

the employer is liable in addition to (not instead of) the employee

they are jointly liable

the claimant can sue both or either

Question 93

what are the three requirements of vicarious liability?

Answer 93

1. The worker must be an employee (or in a relationship akin to employment).
2. The employee must have committed a tort.
3. The employee’s tort must have been committed in the course of his employment.

Question 94

what is the difference between an employee and an independent contractor?

Answer 94

EMPLOYEE:
- carries out work just for one person (the employer)
- receives a wage but it is the employer who has the business interest

INDEPENDENT CONTRACTOR:
- carries out work for several people
- is in business on their own
- employer cannot be held vicariously liable for their actions

Question 95

An employer is vicariously liable for an employee’s torts only if they were committed __________________________

Answer 95

in the course of the employee’s employment

usually amounts to:
i) wrongful acts the employer has authorised
ii) wrongful and unauthorised modes of carrying out an authorised act

Question 96

An off- duty employee pushes away a man he sees trying to steal from his employer’s market stall.

is the employee committing a tort in the course of their employment therefore making the employer vicariously liable?

Answer 96

employer was vicariously liable

the court felt that as the man was protecting
his employer’s property, he had implied permission to push away the thief

Question 97

an employee, who was insulted by a customer and punched him in the face to retaliate

did the employee commit the tort in the course of their employment and therefore make the employer vicariously liable?

Answer 97

was not acting in the course of his employment

the retaliation was a personal act not authorised or connected with his employment

Question 98

An oil tanker driver decides to have a cigarette while unloading his tank of oil at a garage forecourt. He throws away the match he uses to light the cigarette, which causes a fire.

vicariously liable?

Answer 98

in the course of his employment

vicariously liable

Question 99

An employee in high spirits and larking about loses control of a wheelbarrow he is pushing, which then collides with a colleague injuring him.

vicariously liable?

Answer 99

the employee is doing his job (pushing the wheelbarrow) but in a careless way

likely to fall within course of employment and be vicariously liable

Question 100

will an employer be vicariously liable for acts of an employee that were expressly prohibited by an employer?

Answer 100

Rose v Plenty > where a prohibited act is done by the employee to further the employer’s business (despite the employer prohibiting it) the act is likely to fall within the course of employment so vicariously liable

contrasted with…

Twine v Bean’s Express > where the prohibited act did not further the employer’s business at all = not vicariously liable

Question 101

looking at vicarious liability and acts done in the course of employment…

what is the Lister principle?

Answer 101

• D ran a school for boys with emotional and behavioural difficulties. A warden employed by the defendant subjected the claimants to systematic sexual abuse.
• an employer could be vicariously liable for an employee’s intentional wrongful acts, even if those acts were committed for personal reasons and not for the benefit of the employer
• the key factor was the “close connection” between the employee’s role and the wrongful act
• in this case, the warden had been employed to care for the children, and the abuse occurred during the course of performing his duties, at the employer’s premises, while caring for the children.

Question 102

is an employer vicariously liable for torts committed when an employee is off on a frolic?

Answer 102

• need to consider:
  i) geographical divergence
  ii) departure from the task set

the greater the degree of departure from one or both of these the more likely the employee will be off on a frolic of their own, and thus the employer will not be VL

Question 103

what role does an employer’s indemnity have in cases of vicarious liability?

Answer 103

• in Lister it was established that if an employer (or their insurer) pays compensation for a tort for which they are vicariously liable, the employer has a common law right to seek indemnity from the employee who actually committed the tort
• there is also now a similar right contained within the Civil Liability (Contribution) Act 1978
• However, employers’ liability insurers have entered into an informal agreement not to pursue such claims for an indemnity unless there is evidence of collusion or wilful misconduct on the part of an employee.

Question 104

is vicarious liability a tort?

Answer 104

no - it is a principle under which people can be liable for the torts of other people

Question 105

which OLA applies to visitors and which applies to trespassers?

Answer 105

1957 = visitors (if you look at a 7 sideways it’s a V)
1984 = trespassers

Question 106

what are four elements of proving occupiers liability for visitors?

Answer 106

• 1957 act
• establish that they have suffered loss due to the state of the premises;
• identify the occupier;
• prove that they are a visitor;
• establish that the occupier failed to take reasonable care for the visitor’s safety.

Question 107

for the purposes of both the 57 and 84 acts, who is an occupier?

Answer 107

• interpreted widely
• an occupier is the one who the duties are imposed upon
• occupier = someone with ‘a sufficient degree of control over premises’
• Wheat v Lacon
• there can be more than one occupier for the same premises
• independent contractor, working on another person’s premises, could also constitute an ‘occupier’ while on the premises (along with the owner of the premises), having the required degree of control over the area where it is working

Question 108

who is a visitor for the purposes of the 1957 Act?

Answer 108

• persons who have express or implied permission to be on the occupier’s land
• this includes persons who enter under the terms of a contract and persons who enter in order to exercise any right conferred by law (e.g. police officer who enters a premises with a search warrant)
• a visitor who exceeds their express or implied permission will become a trespasser

Question 109

sales representative who walks up the front drive to a house, ignoring a large sign at the gate which states: ‘No canvassers or salespeople please.’

visitor or trespasser?

Answer 109

trespasser due to the sign

Question 110

what is the common duty of care owed to visitors by the occupier under the 1957 Act?

Answer 110

to take such care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which they are permitted to be there

note > the duty is to ensure the visitor is safe, not the premises are safe

• the occupier must meet the standard of the reasonably occupier (considering all the circumstances)
• the court will consider the following factors in deciding this:
• nature of the danger;
• purpose of visit;
• seriousness of injury risked;
• magnitude of risk;
• cost and practicability of steps required to avoid the danger;
• how long the danger had been on the premises;
• any warning of the danger;
• type of visitor

Question 111

the 1957 act specifies two types of visitors which require ‘special’ treatment. who are they?

Answer 111

1. CHILDREN
   - require a higher degree of care from the occupier
   - they cannot be expected to appreciate dangers which would be obvious to an adult
   - the occupier must do even more where the danger is an allurement to children > Glasgow Corp v Taylor
   - occupier has discharged their duty, if they make a premises safe for a child whom they reasonably expected to be accompanied by an adult > Phipps v Rochester
2. SKILLED VISITORS
   - an occupier can reasonably expect them to appreciate and guard against any risks which are part and parcel of their job
   - this has the effect of lowering the standard of care

Question 112

how can an occupier escape breach of duty to a visitor under the 1957 Act?

Answer 112

• adequate warning
• the warning given must be sufficient enough to enable the visitor to be reasonably safe (question of fact)
• need to consider:
  i) the nature of the warning
• was it a general warning or specific to the danger
  ii) the nature of the danger
• was it hidden or obvious
  iii) the type of visitor
• a written warning may not be sufficient for children
• there is no need to warn visitors of an obvious danger
  (eg the danger of drowning in a pond would be obvious to an adult visitor)
• also note the distinction between a warning sign and an exclusion sign

Question 113

an occupier may engage an independent contractor to complete works on their premises, which may have made it unsafe.

under the OLA 1957 an occupier will have discharged their common duty of care if they do what?

what is the consequence of this?

Answer 113

• the work must be ‘work of construction, maintenance or repair’
• if in all the circumstances, the occupier had acted reasonably in:

1. entrusting the work to an independent contractor; and
2. had taken such steps (if any) as they reasonably ought in order to satisfy themselves that the contractor was competent; and
   - e.g. asking for references or making enquiries with trade associations
3. had taken such steps (if any) as they reasonably ought in order to satisfy themselves that the work had been properly done
   - e.g. if the work completed is very technical in nature, the occupier cannot be reasonably expected to check it themselves > Haseldine v Daw & Son Ltd

• if injury then results from the faulty workmanship of the contractor, the occupier is not liable (instead the visitor must look to the contractor for recompense)

Question 114

which defences are applicable to the OLA 1957?

Answer 114

1. consent (voluntary assumption of risk/volenti non fit injuria)
   - e.g. if there is a warning
   - claimant must therefore know of the precise risk that causes the injury and show by their conduct that they willingly accepted the legal risk
2. exclusion of liability
   * Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed.
   * The wording of the notice must cover the loss suffered by the claimant.
   - also limited by UCTA and CRA > applicable to businesses/traders, not private occupiers
   - exclusion clauses can only be relied on where it is reasonable in all the circumstances for the occupier to rely on it
   - the court will have regard to bargaining power and the practical effect consequences for both parties
3. contributory negligence
   - partial defence

Question 115

under OLA 1984, who does an occupier owe a duty to?

Answer 115

• people other than visitors
• does not matter if the trespasser doesnt know they are trespassing
• can enter as a visitor and become a trespasser

Question 116

when does a duty arise under the OLA 1984?

Answer 116

• does not arise automatically, like it does with the 57 act
• The conditions are that an occupier must:
• be aware of the danger or has reasonable grounds to believe that it exists;
• know or has reasonable grounds to believe that the trespasser is in the vicinity of the danger concerned or that they may come into the vicinity of the danger; and
• be reasonably expected to offer the other some protection against the risk (considering all the circumstances of the case)

in deciding whether it wouldve been reasonable for an occupier to provide the trespasser with some protection, the court will consider:
i) the nature and extent of the risk
ii) the type of trespasser
iii) cost and practicality of precautions

• the act is concerned with liability due to the state of the premises > Tomlinson v Congleton BC
• the duty is only owed in respect of the injury > ‘anything resulting in death or personal injury’ (personal injury covers both physical and mental impairments) > doesnt cover damage to the trespasser’s property

Question 117

which factors will be taken into consideration when the court is assessing whether an occupier has breached their duty of care under the OLA 1984?

Answer 117

• The nature of the danger (ie hidden or obvious and the degree of danger).
• The age of the trespasser (ie adult or child).
• The nature of the premises (ie how dangerous are they? A private house? An electrified railway line?).
• The extent of the risk (ie is there a high or low risk of injury?).
• The cost and practicability of precautions (ie how easy would it be to remove or reduce the risk and what would such measures cost?).
• The nature and character of the entry (eg burglar, child trespasser or adult inadvertently trespassing).
• The gravity and likelihood of injury.
• The foreseeability of the trespasser (ie the more likely people are to trespass, the more precautions must be taken).

Question 118

can an occupier discharge their common duty of care to a trespasser by putting up a warning sign?

Answer 118

• yes, so long as the sign adequately warns of the danger
• a written notice is unlikely to be sufficient for children
• where a warning would be inadequate to protect a trespasser from danger, an occupier should therefore put an obstacle (eg a barrier which is too high for a child to climb) round the danger to prevent the trespasser coming into physical contact with the danger
• same principles regarding the higher standard of care for the protection of children in the OLA 1957 are applicable here

Question 119

can occupiers exclude liability under the 1984 act?

Answer 119

• unlike the 57 act, the 84 act is silent on the exclusion of liability
• unclear

Question 120

what additional defence may be available to an occupier under the 1984 act (other than consent, possibly exclusion and contributory negligence)?

Answer 120

illegality:
- trespass itself is not a crime
- some trespassers will enter onto land for some criminal purpose (e.g. burglary)
- if such a trespasser is injured in their attempt to
commit a serious crime and the occupier is found to have breached a duty owed under the1984 Act, if the defence of illegality applied, it would deprive the trespasser of a remedy.

Question 121

how can a defendant be found liable under negligence for defective products?

Answer 121

• under the narrow rule in Donoghue
• the claimant must show:
  1. the defendant is a ‘manufacturer’
• include any person who works in some way on a product before it reaches the consumer
• includes repairers, installers and on some rare occasions suppliers
• suppliers = if the circumstances are such that they ought reasonably to inspect or test the products which they supply (eg because the manufacturer has asked them to do so) or if they know of the defect/danger

2. the item causing damage is a ‘product’
3. the claimant is a ‘consumer’
   - not only the ultimate user of the product, but also anyone whom the defendant should reasonably have in mind as likely to be injured by the defendant’s
   negligence
4. the product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination (ie. telling someone to test a product)
   - a mere opportunity or possibility of intermediate examination will not be enough to exonerate a manufacturer
   - manufacturer must believe there is a likelihood of such examination taking place

• if the only loss is the defective quality of the product itself, the reduction in value of the product, or the cost of repairing the defect or of replacing the product would not be covered by the duty of care (as it is pure economic loss)
• manufacturer will be able to discharge duty with adequate warning

Question 122

which defences are available to a manufacturer under a product liability claim?

Answer 122

1. consent / volenti non fit injuria
   - knowledge of a risk is not on its own enough to amount to consent
   - difficult to prove
2. exclusion of liability
   - cant exclude death/personal injury under UCTA/CRA where liability arises in the course of business/trade
   - liability to non-consumers can be excluded if reasonable (UCTA) and fair (CRA)
3. contributory negligence

Question 123

how can a claimant make a claim for product liability under the Consumer Protection Act 1987?

Answer 123

• a statutory tort of strict liability
• provides additional course of action to negligence (but remember cant recover twice for the same loss)
• anyone who has suffered damage causes by a defect in a product can sue
• does not require a claimant to prove that the defect resulted from any fault or carelessness on the defendant’s behalf (liability is strict)

Question 124

what is meant by damage under the Consumer Protection Act 1987?

Answer 124

• claims for death and personal injury are without limit. - personal injury is defined as including ‘any disease and any other impairment of a person’s physical or mental condition’
• Damage to private property must exceed £275 before a claim for it can be brought.
• if the loss of or damage to private property exceeds £275, the full amount of the loss or damage is recoverable.
• Damage caused by a defective product to business property is outside the scope of the CPA 1987.
• The cost of repairing or replacing the defective product itself is not recoverable. This is regarded as being pure economic loss.

Question 125

what is meant by defect under the Consumer Protection Act 1987?

Answer 125

• unsafe
• when looking at the level of safety people should reasonably expect under the CPA, the following should be considered:
• the whole get- up and presentation of the product (including packaging, instructions, warnings);
• what the expected use of the product is;
• the age of the product in question.

Question 126

who are the four categories of potential defendants under the Consumer Protection Act 1987?

Answer 126

1. The producer of the product (ie the manufacturer)
   - product means the finished product and any component
   - e.g. an aircraft crashes due to faulty landing gear
   - both the manufacturer of the aircraft and the manufacturer of the landing gear could be sued
2. An ‘own- brander’
   - a person by putting their name or trademark on the product, holds themselves out as being its producer
   - e.g. Sainsbury’s own brand
3. An importer
4. A supplier, but only in limited circumstances outlined under the CPA 1987
   - essentially the ‘forgetful suppplier’
   - a supplier (eg retailer) is liable only where they are unable to meet a victim’s request to identify any of the people involved in the chain of supply (eg the wholesaler or the manufacturer)
   - otherwise suppliers are not liable under the CPA

Question 127

why is it more favourable for a claimant to make a claim for product liability under the Consumer Protection Act rather than under negligence?

Answer 127

• liability is strict under the CPA 1987 in that the defendant will be liable without proof of any fault on his part
• under the narrow rule in Donoghue v Stevenson,
  the claimant has to establish that the defendant had failed to reach the standard of care of the reasonable person in their position in order to prove breach of duty (and therefore negligence) on the defendant’s part.

Question 128

what defences are available to a defendant for a product liability claim under the Consumer Protection Act?

Answer 128

1. The defect was attributable to compliance with legal requirements
   - only if the defect was an inevitable result of compliance
2. The defendant did not supply the product to another
   e.g. someone breaks in
3. The defendant supplied the product otherwise than in the course of business e.g. friend selling to friend
4. The defect did not exist when the defendant supplied the product
5. A manufacturer of component parts is not liable for a defect in the finished product which is wholly attributable to the design of the finished product or to compliance with the instructions given by the manufacturer of the finished product
6. development risks
   - a defendant must prove that the state of knowledge,
   at the time the product was supplied, amongst producers of the product in question, was not such as to allow a producer of the product to discover the defect
   - a producer will only be able to rely on this if they could show that they could not have discovered the defect via any information accessible anywhere in the
   world

6 contributory negligence

7. exclusion of liability
   - under the CPA 1987, a defendant cannot exclude, limit or restrict their liability in any way.

Question 129

how would a claimant prove a breach of a manufacturer’s duty in a product liability claim when the claimant wasnt present when the product was manufactured?

Answer 129

• usually in negligence, where the facts are beyond the knowledge of the claimant, the claimant can be assisted in proving breach of duty by the maxim res ipsa loquitur (the thing speaks for itself)
• the maxim doesnt apply to product liability cases
• but the court are prepared to infer a breach
• if C can show some facts that may indicate something went wrong in the manufacturing process, the courts have been willing to infer a breach of duty
• D can rebut that inference by providing an alternative explanation