Tort Flashcards
What precedent DOC do drivers owe?
-DOC to other road users not to cause them physical injury by careless driving
-DOC to pedestrians
What precedent DOC do police owe?
-Public: protect from reasonably foreseeable physical injury when carrying out an arrest
-Prevent someone in their custody causing harm to themselves
-Protect C against criminal C gives evidence about
What DOC do ambulance owe?
Respond to a 999 call within a reasonable time
What are the Caparo criteria?
(a) Foreseeability of damage/harm: reasonably foreseeable that D’s lack of care would cause C harm
(b) Proximity: relationship between C and D must be sufficiently close
(c) FJR to impose a duty (of a given scope on one party for the benefit of the other) in light of relevant policy considerations
What are relevant policy considerations in Caparo?
-Floodgates
-Insurance
-Crushing liability
-Deterrent
-Maintenance of high standards
-Defensive practices
-Impact on taxpayer (for public bodies)
-Public body can be held liable for operational matters, not policy matters
What are the 6 exceptions to the general rule that there is no duty on a mere failure to act (i.e., omission)?
(1) Statutory duty (e.g., OLA 1957)
(2) Contractual duty
(3) D has sufficient control over C
(4) D assumes responsibility for C
(5) D creates the risk through an omission
(6) Emergency services
What is required for D to create a risk through an omission?
(1) Know / ought to have known of the danger; and
(2) Failed to take reasonable steps to mitigate the danger
What are the 4 exceptions to the general rule that there is no duty on a failure to prevent a 3rd party causing harm to another?
(1) Sufficient proximity (special relationship) between D and C
(2) Sufficient proximity (special relationship) between D and 3rd party
(3) D created the danger
(4) Risk was on D’s premises
What are the requirements for the ‘sufficient proximity between D and C’ exception regarding 3rd parties
(i) C is an identifiable V at risk over and above the public at large; and
(ii) D has assumed responsibility, through their words/conduct, for C’s safety
What is the (objective) standard when considering a breach? (Normal + professional)
-D must behave as a reasonable person would in all the circumstances. What would the reasonable person have considered in the circumstances which D faced
-Professional: standard of the ordinary reasonable man exercising and professing to have that special skill
What are the 4 exceptions to the general rule re standard of care?
(1) Children: reasonable and careful child of D’s age carrying out the act
(2) Illness and disability
(3) Engaging in sport
(4) Acting in emergency
How does illness/disability affect standard of care?
-Aware of prior condition –> not good enough
-Unaware of prior condition –> judge against a reasonably competent driver who is unaware that he is suffering a condition that impairs ability to drive
How does engaging in sport affect standard of care?
-In sport, likely to take risks in heat of moment –> need reckless disregard for breach
-Depends on level of sport
-Would reasonable participant of D’s level have known that there was a significant risk that what they did could result in serious injury?
What are the 3 elements required for res ipsa loquitur (the facts speak for themselves)?
(1) The thing causing the damage was under control of D or someone they are responsible for;
(2) Accident would not normally happen without negligence; and
(3) Cause of accident is unknown to C (i.e., C has no direct evidence of D’s failure to take care)
What 6 factors need to be considered when deciding whether D has fallen below standard of care (non-medical cases)?
(1) Likelihood of harm
(2) Magnitude of harm
(3) Practicality of precautions
(4) Benefit of D’s conduct
(5) Common practice
(6) State of the art defence
Benefit of D’s conduct: when may risk taking be justified?
Aim of preserving/protecting life, limb or property
Benefit of D’s conduct: what does the court consider in terms of SARHA?
Whether:
(a) The person was acting for the benefit of (members of) society
(b) The person demonstrated a predominantly responsible approach towards protecting others’ safety/interest
(c) The alleged breach occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger
Common practice: what needs to be considered?
-Did D act in accordance with a practice usually followed by others in that field?
-Less weight given where there is less expertise/specialist knowledge involved in an area
-Ignore illogical common practices
What are the two limbs required for breach of professional cases?
Limb 1: has D acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art?
Limb 2: does the body of opinion have a logical basis (is it reasonable/ responsible)?
Bolam tested: what is meant by a responsible body?
Does not have to represent the majority of opinion, merely an acceptable one
How do we assess alternative/ variant treatments?
Use Bolam/Bolitho: obligation to take reasonable care to advise patients of any reasonable alternative/ variant treatments
(Note: treated differently to breach for failure to warn of risk of medical procedures)
What is required for Bolitho?
-Logical basis
-Experts had directed their minds to the question and reached a logically sensible conclusion
What is required for the state of the art defence?
-Doctors must do what is reasonable to keep up to date with new developments by going on professional development courses
-Doctors must keep up to date with changes recognised in mainstream literature and follow common practice, although they don’t necessarily need to be aware of content of more obscure journals
What is the test for material risk in the context of professional negligence?
(i) A reasonable person in the patient’s position would be likely to attach significance to (objectively); or
(ii) The doctor is or should be reasonably aware that the particular patient would be likely to attach significance to (subjectively)
How are breaches for failure to warn of risk of medical procedures assessed?
Medical professionals are under a duty to take reasonable care to ensure patient is aware of any material risks involved in any recommended treatment (i.e., Bolam does not apply)
Can withhold info as to risk if:
(i) Reasonably consider its disclosure would be seriously detrimental to patient’s health; or
(ii) Necessity
How is the ‘but for’ test adapted for clinical negligence?
C can prove that, on BOP, they would not have had the treatment or would have deferred it if they had been told of risks
What is the ‘but for’ test?
But for the negligent act/omission, on BOP, would C have suffered their losses at that time and in that way?
When is the ‘but for’ test used?
-Starting point
-Always used when dealing with (potentially) independent causes
What is the material contribution test?
On BOP, D made a material (i.e., more than negligible) contribution to causing loss
When is the material contribution test used?
(1) C’s loss has >1 cause; and
(2) Causes were acting together (cumulatively - sequential or simultaneous) to cause the loss
What is the material increase in risk test?
Breach made a greater than de minimis contribution to the risk?
When is the material increase in risk test used?
Industrial disease, single agency causes (i.e., one ‘causal agent’ involved e.g., asbestos or dust) where there is >1 potential cause of C’s loss
When is the loss of chance test used?
PEL
(Does not seem to apply to medical negligence or PI)
Act of God: when is causal chain broken?
Exceptional natural event (objective)
(Not broken if could have been foreseen and D should have taken them into account as events that were likely to happen)
Act of 3rd party: when is causal chain broken?
Highly unforeseeable: something that was very unlikely to happen as a result of D’s negligence
Act of 3rd party (medical treatment): when is causal chain broken?
So gross and egregious as to be unforeseeable
C’s act: when is causal chain broken?
Highly unreasonable
e.g., descend steep staircase without handrail with impaired mobility
However: CN is more likely (lower bar)
When is apportionment used?
Multiple tortious factors are known to have caused part of the loss; the courts divide liability between Ds reflecting each D’s respect fault
Apportionment: what happens in mesothelioma cases?
Any/all negligent employers who exposed C to asbestos are liable to C for whole sum of damages (but can recover contributions from each other)
Apportionment: what happens if D2 has not caused any additional damage?
D2 is not liable
Apportionment: who is liable (D1/D2) if there are 2 tortious events?
D1: liable for initial injuries past point of 2nd event
D2 (if found): liable for additional losses/damage
Apportionment: what happens if a tort is followed by a natural event?
D is liable for damage up to natural event
What is the test for remoteness?
Reasonable foreseeability: C can only recover if type of damage (or loss) suffered was reasonably foreseeable at the time D breached their DOC
Remoteness: how is PI treated?
PI is a single indivisible type of harm (incl. physical and psychiatric harm)
Remoteness: how is damage to property treated?
Can be subdivided into different ‘kinds’ of damage (e.g., damage by fire vs polluting)
Remoteness: what does not need to be foreseen?
-No need to foresee exact way damage occurs
-No need to foresee the extent of damage, incl. ‘thin skull rule’
What is the thin skull rule?
D must take V as they find them (incl. lack of funds)
What are the 4 elements for the defence of consent?
(1) Had capacity to give valid consent to the risks
(2) Had full knowledge of the nature and extent of the risks
(3) Agreed to the risk of injury due to D’s negligence
(4) Agreed voluntarily to the risk
Consent: what is required to have full knowledge of the nature and extent of the risks?
Subjective: did the particular C know the risk?
General knowledge will not suffice
Morris: C not so drunk as to be incapable of understanding nature and extent of risk; willingly embarked on flight knowing D was drunk and likely negligent
Consent: what is required for ‘agreed to the risk of injury due to D’s negligence’? Is it subjective or objective?
-Subjective
(1) Expressed agreement
(2) Implied agreement: knowledge of risk alone is not the same as consenting to it; can be established when risk of injury is so great that it is equivalent to ‘meddling with an unexploded bomb’; difficult to establish
Consent: how do employees establish ‘agreed voluntarily to the risk’?
Difficult to succeed: employees who know of risks of their job are not necessarily voluntarily running those risks, given they may have little real option if they wish to keep their jobs. But if the work was intrinsically dangerous, despite reasonable steps by employer to minimise risks, employees would be deemed to accept those risks
Consent: does an impulsive desire to save life equate to voluntary agreement?
No
How does statute negate consent (RTA; UCTA; CRA)
RTA: motorists facing claims from their passengers cannot use consent
UCTA (B2B)
-Ds cannot exclude/restrict liability for death/PI; other types of loss may be excluded s.t. reasonableness
-A person’s agreement to, or awareness of, a contract term or notice purporting to exclude/restrict liability for negligence will not of itself be taken as indicating voluntary acceptance of any risk
CRA (B2C):
-Traders cannot exclude/restrict liability for death/PI through negligence; for other damages, exclusion clause must be fair
-Voluntary acceptance of risk cannot be assumed merely because the consumer agreed/knew about the term
What are the 2 requirements for CN?
(a) C failed to take reasonable steps for their own safety
(b)This failure contributed to C’s damage
What is the basis of the defence of CN?
Just & equitable, having regard to C’s share in the responsibility for the damage
CN: what is the standard (to take reasonable steps for one’s own safety)?
Objective standard, although courts make allowances for children, the aged and infirm, emergency/ difficult dilemma, rescuers
CN: how are rescuers protected?
-Allowances for heat of moment
-However, cannot claim for injuries which are due to unreasonable response to the danger
-No CN if rescuer had negligently helped to create emergency in the 1st place
CN: what does C’s failure need to contribute to?
(a) Contributed to the damage (and not the accident which causes the damage)
What is the effect of CN? Is it a full or partial defence?
-Partial defence
-Deduction: reduced by % which is J&E (taking into account D/C culpability)
What are the 2 steps required for the defence of illegality?
Step 1: has C committed an illegal (or possibly grossly immoral) act at the time they suffered their loss caused by D?
Step 2: apply test in Patel, taking into account earlier decisions which turn on similar facts
Illegality: what are the 3 elements of the test in Patel?
(a) In favour of illegality defence: what was the underlying purpose of the prohibition transgressed and would that purpose be enhanced by denying the claim?
-Avoiding inconsistency in legal system
-Proper allocation of public resources
-Close connection between crime and tortious claim
-General deterrence of crime
(b) Against illegality defence: relevant public policy which may be rendered less effective by denying the claim (e.g., upholding DOCs and providing compensation for Vs of torts)
(c) Whether denying the claim would be a proportionate response to the illegality
-Seriousness of conduct
-Centrality of conduct to the tort
-Intentionality
-Marked disparity in parties’ respective culpability
What, in general terms, are the 2 types of remedies available?
-Injunctions
-Damages
What is the aim of damages?
Put C in position they would have been in but for D’s tortious acts, as far as possible
What are the 2 types of damages?
-General damages
-Special damages
What are the 2 elements to general damages?
-Future financial losses (cannot be specifically proven): one off and continuing
-Non-quantifiable losses: compensation for physical injury and PSLA
What are special damages? What are its 2 main elements?
Provable and quantifiable financial losses at time of trial
(1) Loss of earnings incurred pre-trial (net of tax; non-taxable)
(2) Expenses incurred in relation to medical care pre-trial
Employer’s primary liability: what are the characteristics of employer’s DOC?
Personal
Non-delegable
Not an absolute duty: reasonable only
Employer’s primary liability: what must employer take reasonable care to ensure? (4 elements)
(a) Safe and competent fellow employees
(b) Safe and proper plant and equipment
(c) Safe place of work/premises, incl. safe access an way out (extends to 3rd party premises, but less expected)
(d) Safe systems of work, with adequate supervision and instruction
What defence is often used for employer’s primary liability?
CN: evidence that employee failed to take care of their own safety
(Note: consent is difficult here)
What are the 3 elements required for vicarious liability?
(a) Party A has committed a tort
(b) Party A is an employee of Party B; or, failing that, Party A is in a relationship akin to employment with Party B
(c) The tort was committed in the course of Party A’s (quasi-)employment
VL: what test is used to determine whether Party A is an employee of Party B? What are its 3 elements?
Multiple factors (or ‘economic reality’) test:
(1) Renumeration in exchange for personal services and mutuality of obligation
(2) Control
(3) All other contractual factors consistent with an employment relationship
VL: what is the test for whether Party A is in a relationship akin to employment with Party B?
Is the relationship sufficiently analogous to employment to make it FJR to impose VL?
VL: what factors make it more likely for there to be a relationship akin to employment?
-Employer is more likely to have means to compensate C than tortfeasor (e.g., insurance)
-Tort has been committed as a result of an activity being undertaken by the tortfeasor on employer’s behalf
-Tortfeasor’s activity is part of the employer’s business activity
-By allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed
-Tortfeasor is essentially under employer’s control
VL: What test is used to determine whether the tort was committed in the course of Party A’s (quasi-)employment? What are its 2 elements?
Close connection test:
(i) Nature of the job: what functions (‘fields of activities’) have been entrusted by employer to employee?
(ii) Sufficient connection between position in which they were employed and their wrongful conduct to make it F&J for employer to be held liable
VL: what factors are considered in the ‘close connection’ test
-Tort occurred in working hours and/or on employer’s premises?
-Seamless episode?
-Doing something authorised but in an authorised manner?
-Incidental to work? Reasonably expected?
-Unauthorised/expressly prohibited act?
-New and independent journey?
What is a primary victim?
Suffers psychiatric harm as a result of reasonable fear for their own physical safety (i.e., reasonably foreseeable) (objective test)
What is required of DOC for a primary victim (3 elements)?
(1) Psychiatric harm is medically recognised (symptoms are insufficient)
(2) Psychiatric and physical injury are material
(3) Physical harm is reasonably foreseeable
What is a secondary victim?
Suffers medically recognised psychiatric harm due to fear for someone else’s safety, normally a close relative
Secondary victim: what are the 4 elements of the Alcock criteria
(1) Psychiatric harm is reasonably foreseeable (in a person of ordinary fortitude in same circumstances)
(2) Proximity of relationship between secondary victim and actual victim (close ties of love and affection): rebuttably presumed for parent/child, husband/wife, engaged (cannot claim if actual victim is D)
(3) Proximity in time and space (to the accident or its immediate aftermath): be present (in immediate aftermath) + see/hear it with their own senses
(4) Injury is the result of a sudden shock (cannot be a gradual realisation of what has happened)
What is the relevant DOC for occupational stress?
Not cause psychiatric harm where D has ‘assumed responsibility’ to ensure that C avoids reasonably foreseeable psychiatric harm
What is required for a successful occupational stress claim? (3 elements)
(1) Psychiatric harm to C was (or ought to have been) reasonably foreseeable to the employer
(2) Foreseeability depends on relationship between C’s characteristics and requirements made of them by employer (e.g., nature and extent of work being undertaken; signs of stress; size and scope of business and availability of resources)
What are the 3 types of PEL?
(1) Economic loss not flowing from damage to person/property (e.g., bad investment, loss of inheritance)
(2) Loss arising from damage to property of another
(3) Defective items/property (always had the good s.t. the defect)
PEL: what are the 3 elements to the reasonable reliance test?
(a) C relied on D’s advice (question of fact)
(b) It was reasonable for C to rely on D’s advice
(c) D knew or ought to have known that C was relying on their advice (question of fact)
PEL: what factors are considered when determining whether it was reasonable for C to rely on D’s advice?
(i) D’s special skill/knowledge
(ii) C’s special skill/knowledge
(iii) General context in which advice is given
(iv) Other relevant general factors (e.g., nature of advice, potential risk to C, availability/practicality of 2nd opinion)
PEL: what is the general rule when it comes to the general context in which advice is given? When is there an exception?
-General rule: duty only arises with statement made in ‘business connection’
-Exception: D has assumed responsibility for C
PEL: what are the 4 components of the voluntary assumption of responsibility test?
(1) D must communicate the advice to C (as an identifiable individual or as a member of an identifiable class) or know that it will be communicated to them
(2) D must know the purpose for which C will use this advice
(3) D must know, or reasonably believe, that C will rely on this advice without independent enquiry
(4) C must have acted upon that advice to their detriment
PEL: what are the 3 components of the ‘special relationship of trust and confidence between the parties’ test?
(1) Party seeking advice was trusting the other to exercise such a degree of care as the circumstances required;
(2) It was reasonable for them to do that; and
(3) The other party gave the advice when they knew or ought to have known that the enquirer was relying on them
PEL: what 2 circumstances is a duty automatically present?
(1) Solicitor owes a duty to beneficiary to achieve practical justice
(2) References: duty owed to subject of reference to provide an accurate reference (assume responsibility to C to exercise reasonable skill and care)
UCTA: what 4 factors are considered for a term/notice to be reasonable (in excluding liability for negligence)?
(1) Were parties of equal bargaining power?
(2) Would it have been reasonably practicable (for C) to obtain advice from an alternative source considering cost and time?
(3) How difficult was the task being undertaken by D?
(4) What are the practical consequences of upholding the disclaimer?
Public nuisance: who can sue?
(a) An individual: suffered ‘special damage’
(b) Local authority: suffered damage; protect inhabitants
(c) AG: on class’s behalf in their name + no individual action is possible/forthcoming
Public nuisance: can D be sued on behalf of a class?
By individual - no
By local authority / AG - yes
Public nuisance: when can an individual sue?
-Suffered over and above the rest of the class
-Special damage must be direct and substantial
-Incl. PI, property damage, loss of custom/business
Public nuisance: who can be sued?
Creator of the nuisance; or
Any person who is ‘responsible’ for the nuisance (e.g. an owner/occupier)
Nuisance: can the event be one-off or continuous?
Public: yes
Private: no
Public nuisance: what is a ‘class’?
-No exact number
-A representative cross-section of the class needs to have been affected
-Common injury
What is the basis of a public nuisance claim?
Materially affects comfort and convenience of life of a class of people (material = more than trivial)
What can be recovered in a public nuisance claim?
PI, property damage, CEL, PEL, inconvenience - must be reasonably foreseeable
Rylands v Fletcher: who can sue?
C must have a proprietary interest in the land affected
Rylands v Fletcher: who can be sued?
Creator of the nuisance: the person who brings, collects and keeps the ‘thing’ on the land; and/or
Any person with ‘control’ over the land (owner/occupier)
Rylands v Fletcher: what are the recoverable losses?
Property damage
CEL
(note: C must suffer some damage)
Ryland v Fletcher: 5 elements
(1) D (voluntarily) brings onto land and accumulates there
(2) For their own purposes, anything likely to do mischief (i.e., damage if it escapes)
(3) Escape
(4) Escape caused foreseeable harm
(5) Non-natural use of land
Ryland v Fletcher: ‘for their own purposes, anything likely to do mischief (i.e., damage) if it escapes’ - what is the threshold?
Very high: the thing that escapes must be reasonably recognised as having an exceptionally high risk of causing a danger if it were to escape?
The thing does not need to be dangerous in itself - only if it escapes
Ryland v Fletcher: what is the nature of the escape?
-The ‘thing’ brought onto the land must escape from the land over which D has control to land where they do not have control
-The escape can be slow and over a period of time
-The substance which D collected must escape (exception: a fire deliberately started by D)
Ryland v Fletcher: ‘escape caused foreseeable harm’ - what type of liability is this?
Strict liability: even if D has taken reasonable care to prevent the escape and damage, D will still be liable if they fulfil the requirements for operation of rule
Ryland v Fletcher: ‘escape caused foreseeable harm’ - what does this mean?
D need not have foreseen the escape, but must have known or ought reasonably to have foreseen that the ‘dangerous thing’ could, if it escaped, cause damage
Ryland v Fletcher: ‘non-natural use of land’ - what determines this?
What is ordinary: time, place, context of use of land
Use of land must be extraordinary and unusual according to the standards of the day
Substantial quantities
Ryland v Fletcher: what are the 7 defences?
(1) Common benefit
(2) C’s act
(3) Statutory authority
(4) Act of 3rd party
(5) Act of God
(6) CN
(7) Consent
Ryland v Fletcher: how does the common benefit defence work?
-No liability if C has agreed to D accumulating material
-Consent can be implied if substance has been accumulated for C&D’s common benefit
Ryland v Fletcher: how does the act of 3rd party defence work?
No liability if D can show the escape arose through the unforeseeable act of a stranger over whom they had no control
Ryland v Fletcher: how does the act of God defence work?
No liability when escape is caused by a natural occurrence which could not have been reasonably foreseen
Must not be realistically possible for a human to reasonably guard against or prevent the event by any amount of foresight, pains and care
What is the basis of a private nuisance claim?
Any continuous activity or state of affairs causing a substantial and unreasonable interference with C’s land or their use or enjoyment of that land
Private nuisance: who can sue?
Must have a legal (i.e., possessionary or proprietary) interest in the land
Private nuisance: who can be sued?
1) Creator of the nuisance
2) Occupier of the land from which the nuisance originates, even if they do not cause it, where the nuisance is
(i) Created by independent contractors;
(ii) Created by trespassers/ visitors/ predecessors in title; or
(iii) Naturally occurring
3) Owner of the land if landlord:
(i) Authorised it, by actively and directly participating in it; or
(ii) Leased the property in circumstances + a very high probability that leasing the land would result in that nuisance being created
Private nuisance: what loss is recoverable?
-Property damage (more than trivial)
-SPD (more than fanciful and materially interferes with ordinary human comfort)
-CEL
Reasonably foreseeable
Public nuisance: types of loss
-Property damage
-CEL
-Personal injury
-PEL
-Inconvenience (‘material’)
Reasonably foreseeable
Ryland v Fletcher: types of loss
-Property damage
-CEL
Does not need to be reasonably foreseeable; instead, needs to be reasonably foreseeable that, if it were to escape, it would do damage
Land-based tort: for which type of tort can SPD be recovered?
Private nuisance
Land-based tort: for which type of tort can both CEL and inconvenience be claimed for?
Public nuisance
Does nuisance need to be a continuous act for private nuisance?
General rule: yes
Exceptions:
(1) A single incident caused an underlying state of affairs
(2) An activity creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material
Private nuisance: which factors need to be balanced when determining whether the act is unlawful (i.e., unreasonable)?
-Time and duration
-Locality (SPD-only)
-Abnormal sensitivity
-Malice
-Lack of care
-Excessive behaviour
Private nuisance: which factor is only relevant for SPD?
Locality
What defences are available for private nuisance? How does this differ to public nuisance?
Public nuisance (i.e., statutory authority, consent, CN, act of 3rd party, act of God, necessity) + 20 years’ prescription
What defences are available for Rylands v Fletcher?
-20 years’ prescription
-Statutory authority
-Consent
-CN
-Act of 3rd party
-Act of God
-Necessity
-Common benefit
-Act or default of C
Private nuisance: what remedies are available?
-Injunction (full/partial)
-Damages (for any CEL; in lieu of injunction)
-Abatement
Private nuisance: when are damages an appropriate remedy?
Any CEL (in lieu of injunction)
Public nuisance: what remedy is available for local authority or AG?
Injunction
What are the most common remedies for the 3 types of land-based torts?
Private: injunction
Public: injunction
Rylands v Fletcher: damages
What is the nature of the automatic duty owed by occupier of premises to visitors?
DOC: take reasonable care to see that the visitor will be reasonably safe in using the premises for all purposes for which they were permitted by the occupier to be there
-Objective test
When does liability arise for DOC under OLA 1957?
-Automatic
-Can arise with an omission: occupier merely fails to protect a visitor from a danger on the premises
OLA 1957: when may person cease to be a visitor?
Person starts to pursue an activity unrelated to the purpose s/he was invited for
OLA 1957: how does someone become a visitor (4 methods)?
- Express permission and/or license to be on premises (unless limited by notice)
- Implied permission (unless limited by notice)
- Lawful authority
- Contractual permission (unless express provision to the contrary)
OLA 1957: how can express and implied permission be removed?
Limitation by notice
OLA 1957: what are the 3 requirements for a successful limitation by notice
(1) Area (need appropriate location of sign + make it very clear which areas are off limit)
(2) Time
(3) Purpose
OLA 1957/1984: who is an occupier?
Someone who has a sufficient degree of control over premises (does not need to be the owner; can be >1)
OLA 1957/1984: what are premises?
Wide definition - incl. ‘any fixed or moveable structure, including any vessel, vehicle or aircraft’
OLA 1957: who will a lower/higher standard of care apply to?
Lower: person enters premises in the exercise of their calling - appreciate and guard against any risks ordinarily incidental to their job
Higher: children and visitors with particular vulnerabilities
OLA 1957: what are the general rule and exceptions regarding children and standard of care?
General rule: children cannot be expected to appreciate dangers that would be obvious to adults –> more may be required of D, esp. where danger is an allurement to a child
Exception: can assume that the behaviour of very young children will be supervised by a responsible adult
OLA 1957: how can duty be discharged?
-Warnings
-Independent contractors
OLA 1957: what is required of warnings (3 elements)? When are warnings not required?
Make visitor aware of:
1) What the danger is
2) Where it is
3) How to avoid it
Given in terms which are comprehensible to a visitor
Not required for very obvious dangers
OLA 1957: how can duty be discharged through independent contractors?
Occupier acted reasonably in:
(1) Hiring an independent contractor (generally satisfied)
(2) Selecting the independent contractor (taken steps to check competency)
(3) Supervising and checking the work was properly done (more complex/technical work –> less reasonable for occupier to inspect it in person)
OLA: what defences are available?
-Consent
-CN
-Illegality
OLA 1984: which losses are/not recoverable
Recoverable: physical injury
Not recoverable: property damage
OLA 1984: who is a trespasser (or non-visitor)?
a) Goes onto land without invitation; and
b) Presence is
(i) Unknown to proprietor; or
(ii) If known, practically objected to
OLA 1984: when does DOC arise (3-stage test)?
(1) Aware of danger or have reasonable grounds to believe that it exists
(2) Knowledge that the other is in the vicinity
(3) Reasonable to protect trespasser against the risk
OLA 1984: what do ‘reasonable grounds’ constitute?
Requires actual knowledge of the facts which would lead a reasonable occupier to be aware of the danger
OLA 1984: what does ‘knowledge that the other is in the vicinity’ constitute?
D must have actual knowledge of:
1) C’s presence in the vicinity of the danger; or
2) Facts which would create a reasonable belief that there was another likely to be present
OLA 1984: what 4 factors need to be considered when deciding whether it is reasonable to protect trespasser against the risk?
- Was the danger obvious/hidden?
- Was there a risk of serious/minor injury?
- Is the trespasser a child/adult?
- Did they know they were trespassing?
OLA 1984: will a duty be owed where C freely chooses to engage in an activity that carries inherent risk?
Generally: no - occupiers are not expected to protect trespassers from obvious risks or self-inflicted harm
Exception: there was no genuine and informed choice by C e.g., C was an employee or lacked capacity (e.g., child unable to appreciate the danger)
OLA 1984: what is the standard of care?
That of a reasonable occupier: duty to take such care as is reasonable in all the circumstances to see that the entrant does not suffer injury on the premises by reason of the danger concerned
OLA 1984: what additional factors - in addition to the general negligence breach factors - are considered when determining whether D has fallen below standard of care? (5 to consider)
-Nature of danger (hidden/obvious and degree of danger)
-Child/adult C
-Nature of premises (level of danger e.g., building site)
C’s purpose (e.g., burglar vs trespassing by accident)
-Whether occupier could/should have foreseen trespassing
OLA: what is the difference between warning notices for 1957 vs 1984?
1984: easier to satisfy- no requirement that the warning must enable the entrant to be reasonably safe –> duty can be discharged by a notice posted on the premises which gives a simple warning of the danger
OLA 1984: what is required of warning notices?
Take reasonable steps to bring danger to C’s attention: satisfied if it sufficiently discourages C from trespassing (e.g., secures premises behind a locked gate)
What is the effect of s3 OLA 1957?
Occupiers cannot, by contract, exclude/restrict the common law duty of care which they owe to a 3rd party (i.e., stranger to the contract)
CRA: what is meant by a ‘fair’ term/notice
Contrary to the requirement of good faith, it causes a significant imbalance in parties’ rights and obligations under the contract to the detriment of the consumer
What does the common law restriction of common humanity achieve?
Min legal standard of care which can never be excluded by agreement/notice: would a conscientious person with D’s knowledge, skill and resources be reasonably expected to have done something which would have helped to avoid the accident? (Applies to 1957, and likely also 1984)
What is a defect?
Depends on what people are generally entitled to expect, which depends on all circumstances incl.
(i) Manner/purpose for which it has been marketed (incl. warnings)
(ii) What might reasonably be expected to be done with/in relation to the product
(iii) The time when the product was supplied by its producer to another
Relative bar: assessing expectations of a product vs negligence standard of reasonable care
Bar should be higher for assessing expectations of a product vs negligence standard of care. Also, do not require fault for negligence
What losses are covered for a product liability claim under CPA 1987?
-Death/PI
-Property damage (if >£275, excl. interest + ordinarily intended for private use / occupation / consumption)
-CEL
(Cannot claim for: PEL, loss of product itself, loss of any product supplied with the defective product as part of it)
CPA 1987: Who is liable for damage? (Product liability)
-If product was produced in UK: producer (or manufacturer or person who won/abstracted it or carried out process)
-If product was produced outside UK: importer
-Someone who supplied defective product if:
(i) The person suffering damage asks for details of the producer/importer within a reasonable time;
(ii) They cannot identify the producer/importer themselves; and
(iii) The supplier fails to identify that person
CPA 1987: who can bring a claim?
Anyone suffering damage as a result of the defect, limited to consumers
CPA 1987: what are the 7 available defences?
a. Not our fault: defect arose by complying with statutory requirements
b. Not right person to sue
c. Informal supply, not made for profit
d. Defect did not exist at time I supplied the product
e. Defect wasn’t known to science/tech at time (concerns only inability to discover, not fix)
f. Not my fault but those in the supply chain after me
g. CN
SCIPECS
Can liability be excluded/limited under CPA 1987?
No
CPA 1987: by when must a claim be brought?
Within 3 years from latter of:
(1) Date injury and/or damage occurred; or
(2) When C became aware or should reasonably have come aware of the damage
Long stop: 10 years after product was put into circulation by D
Negligence: claim for defective products - which losses can be claimed for?
-PI
-Property damage
-CEL
(Cannot claim for PEL for product itself)
Negligence: claim for defective product - who is DOC owed to?
-Users (not just final purchaser at end of supply chain)
-A party which comes into contact with product (and didn’t buy/use it)
Negligence: claim for defective products - who owes DOC?
-Manufacturer
-Repairer
-Suppliers/distributors, where they should have inspected the product and would have then discovered the defect (reasonability test)
Negligence: claim for defective products - what is the standard of care?
Standard of care to be expected of reasonably competent manufacturer
Negligence: claim for defective products - what is ‘intermediate inspection’ point
A manufacturer will be held liable if they have no reason to contemplate that an intermediate inspection will occur (if there is a warning to test the product or use it in a particular way, and C fails to carry this out, this may be sufficient to constitute a break in chain of causation)
Negligence: claim for defective products - available defences
-Illegality
-Consent
-State of the art
-CN
Negligence: claim for defective products - by when must a claim be brought?
PI: 3 years
PD: 6 years
Longstop: 15 years
Product liability: is liability strict?
CPA: yes - C must prove there is a product, and that the product was defective
Negligence: no - C must prove they were owed a DOC and that that was breached
