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SQE 1 - FKL1 > Tort > Flashcards

Tort Flashcards

1
Q

What is the sequence to determine whether a duty of care is owed?

A
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2
Q

What are the common duty of care precedents outlined in the materials?

A

Road users to other road users

Medical professionals to patients once accepted for treatment

Rescuers of somebody who did something stupid, and would know somebody would attempt to rescue them

Police from reasonable physical injury when carrying out an arrest

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3
Q

When is there duty of care for omissions?

A

statutory (occupiers liabilty)

contractual

sufficient control over claimant (parents, prisoners)

assumes responsibility (employment, teacher/pupil)

defendant creates the risk

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4
Q

Summarise the duty of care owed by emergency services

A

Ambulance: must respond to 999 within a reasonable time (no breach if triaged)

Fire: no duty to attend, but duty not to make worse if they do attend

Police: no duty to respond to calls, but they owe other duties (e.g., on arrest, when in custody)

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5
Q

What is the general rule in tort for failing to prevent a third party from causing harm to another?

A

No duty of care

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6
Q

In what 4 circumstances is there likely to be a duty of care for failing to prevent a third party from coming to harm?

A

Proximity between D/C

Proximity between D/third party

Defendant created danger

Risk was on D’s premises

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7
Q

Summarise the major caselaw principles for duty of care to third parties for sufficient proximity between D/C?

A

Sufficient proximity is when the claimant is an identifiable victim at risk over and beyond the public at large and the defendant has assumed responsibility for the claimants safety

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8
Q

Summarise the major case law principles for when there will be sufficient proximity between d/3rd party?

A

Where at the time of the harm committed, the 3rd party was under the care/control of defendant

E.G., supervisors, police custody, hospital custody

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9
Q

What is the key caselaw principle when establishing duty of care to 3rd parties when it is on D’s premises

A

They have to have known about the danger on their premises

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10
Q

What are the 3 key distinguishing factors when considering whether public bodies have a duty of care?

A

No duty of care is imposed if incompatible with the intentions of the statutory scheme

No DOC in relation to an omission to exercise powers granted to them

Statutory schemes may well expect resource allocation/policy matters would not give rise to a DOC

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11
Q

What 3 case examples were given for DOC for public bodies?

A

No duty to take children into state care

Policy considerations – floodgates

Operational errors (liable) vs policy errors (not liable)

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12
Q

What is the starting point for public body liability?

A

Same as for individuals

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13
Q

What are the 2 stages to determining breach of duty?

A

Standard of care

Did they fall below

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14
Q

What is the general rule for standard of care?

A

Reasonable person test (objective)

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15
Q

What is the standard set by?

A

Act not actor

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16
Q

What is the professional standard?

A

Reasonable professional in that field

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17
Q

Is there a lower standard for junior professionals?

A

No

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18
Q

What is the standard for children?

A

Reasonable standard for a child of their age

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19
Q

What adjustments to the standard can be made for disability

A

Circumstances which the defendant was reasonably unaware of

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20
Q

What is the Bolam test?

A

[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

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21
Q

What facts and circumstances are considered to determine whether standard of care was breached?

A

Likelihood of harm

Magnitude of harm

Practicality of precautions

Benefit of defendant conduct

Common practice

State of art at time of breach

Special rules for sport

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22
Q

To what degree must the breach be proven?

A

Balance of probabilities

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23
Q

Who has the burden to prove breach of DOC??

A

Claimant

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24
Q

What does the maxim res ipsa loquitur mean?

A

Facts speak for themselves

The ONLY plausible explanation for the claimants injuries is negligence

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25
Q

Who has the burden of proof to rebut a res ipsa loquitur case?

A

Defendant

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26
Q

What 3 conditions must apply for res opsa loquitur to be engaged?

A

Thing causing damage was under the control of the defendant or someone they are responsible for

Accident would not normally happen without negligence

Cause of accident is unknown to the claimant

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27
Q

Is ascertaining the standard of care a question of fact or law

A

Law

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28
Q

Is ascertaining whether the standard has been breached a question of fact or law?

A

Fact

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29
Q

What factors matter when determining whether someone/something is a responsible body of professionals

A

Not numbers of people in the body

But the merits of those people making up that body

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30
Q

When can a professional common practice still be deemed a breach by the courts

A

If it is illogical

Experts haven’t turned their minds to the comparative risks and benefits to reach a defensible conclusion

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31
Q

What is the current view on whether patients can expect state of the art treatment?

A

If it is very mainstream

Not if it is in some tiny obscure journal or is otherwise inaccessible

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32
Q

Does Bolam apply when looking at failure to warn of risks?

A

No

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33
Q

What risks do doctors have to warn of?

A

Material ones

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34
Q

What is the test for a material risk?

A

one which a reasonable person in the patient’s position would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to.

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35
Q

When can a doctor withhold information about a risk?

A

if they reasonably consider that its disclosure would be seriously detrimental to the patient’s health

in circumstances of necessity, for example where the patient requires treatment urgently but is unconscious.

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36
Q

That the Bolam test isn’t applicable for risk warnings has recently evolved… how?

A

A doctor now has the obligation to take reasonable care to advise the patient of any reasonable alternative or variant treatments.

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37
Q

What 2 types of causation are there?

A

Factual: Is there a link between breach and damage?

Legal: should the link be regarded as broken?

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38
Q

What is the starting point for factual causation?

A

But for

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39
Q

To what degree must the but for test be satisfied?

A

50%

Balance of probabilities

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40
Q

In clinical negligence cases, what is the other way that the but for test can be satisfied

A

Failure to advise on risks cases

If patient can prove they would not have had the treatment or would have deferred treatment had they been told of the risk

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41
Q

When will the courts depart from the but for test and what will they apply instead

A

If multiple causes operated together

Material contribution test

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42
Q

In what types of cases is the material contribution test often applied?

A

Industrial disease single agency

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43
Q

When has the ‘loss of chance’ argument been allowed to be applied?

A

In cases involving pure economic loss

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44
Q

When will there be sufficient causation for a disease caused by cumulation (e.g., non-tortious exposure and also tortious exposure)

A

Material contribution

More than negligible contribution to the loss

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45
Q

What is the material increase in risk test for?

A

Tortious and non-tortious exposure where you can’t be certain which exposure, if either, caused the breach (unlike cumulative where they both apply)

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46
Q

What is the material increase in risk test?

A

The breach materially increased the risk of injury

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47
Q

Where does the material increase in risk test apply e.g., what fields?

A

Basically only ever industrial disease with one causal agent

Basically always asbestos

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48
Q

What approach is taken by courts when multiple tortious factors have caused a loss?

A

Apportion liability between defendants

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49
Q

Can liability be apportioned for mesothelioma cases?

A

No, all defendants are jointly and severally liable

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50
Q

How is liability apportioned across two tortious events?

A

First D liable for initial injuries past point of second even

2nd D liable for additional losses

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51
Q

How is liability proportioned for a tort followed by a natural event?

A

Defendant liable for damage up to the natural event

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52
Q

How is liability proportioned for 2 defendants in a multiple sufficient causes case?

A

The first one is liable, because the liability already existed for the cure prior to the second thing causing the same loss

Only applies if loss is the same, and the cure has not been paid for yet

E.G., car hits car needs respray, before respray happens other car also hits it.. only 1 respray is required so only the OG D will pay

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53
Q

What are the 3 novus actus interveniens?

A

Acts of god

Highly unforeseeable acts of third parties

Acts of a claimant that are highly unreasonable

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54
Q

What is the test for remoteness?

A

Type of damage suffered must have been reasonably foreseeable

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55
Q

What happens if the specific damage suffered was not reasonably foreseeable?

A

Claimant will still succeed if the same type of damage was foreseeable

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56
Q

If the same type of damage was reasonably foreseeable then what 3 key points follow?

A

The way damage occurred does not need to be reasonably foreseeable

Claimant will success even if full extent of damage was not reasonably foreseeable

Defendant must take the claimant as they find them

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57
Q

Which case established reasonably foreseeability of damage?

A

Wagon mound 1

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58
Q

What approach will the court take when determining reasonable foreseeability in terms of narrow vs broad?

A

Generally they’ll go broad, especially for personal injury but will go narrow if the steps needed to prevent loss are egregiously onerous and its a small risk

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59
Q

What criteria need to be established to show the defence of consent?

A

Had capacity

Full knowledge of nature and extent (subjective)

Agreed to risk of injury (subjective)

Agreed voluntarily

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60
Q

What types of case can you never show defence of consent?

A

Motorists facing claims from passengers

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61
Q

What is needed to show consent for medical negligence?

A

Has to be an agreement to waive a claim for negligence

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62
Q

If a term limits/excludes liability for losses, does that mean the party has consented to those risks/losses?

A

No

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63
Q

To what degree must consent be proven?

A

Balance of probabilities

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64
Q

Will consent hold for suicide in police custody?

A

No, they have a duty of care to prevent it

Reduction for contributory negligence will apply

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65
Q

Will drunkenness negate capacity to consent?

A

Probably not unless they were like unconscious

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66
Q

Does knowing about a risk in advance imply consent?

A

No, unless it is something egregious like meddling with an unexploded bomb

Engaging in an intrinsically and obviously dangerous activity

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67
Q

How is consent impacted if it is an employee?

A

Because they have less power/fear of losing their job

Hard to imply they consented to a dangerous activity

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68
Q

What acts does statute prevent the defence of consent from working on?

A

Motorists facing claims from drivers

Unfair contract terms: restricting liability for death or PI resulting from negligence

Consumer rights: excluding liability for death or PI via negligence

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69
Q

What does the defendant need to show to establish contributory negligence?

A

Claimant failed to take reasonable steps for their own safety

Failure contributed to the claimants damage

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70
Q

When will the claimant be less likely to be at fault for failing to take reasonable steps?

A

Acted in an emergency

Are a child

Are a rescuer

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71
Q

What must the claimants failure contribute to, to establish contributory neglience?

A

The damage not the accident

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72
Q

What is the standard test to show whether a claimant failed to take reasonable steps for their own safety (contributory negligence)

A

Same degree of care as a reasonable and prudent person

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73
Q

What is the process for establishing defence of illegality?

A

Did claimant do illegal/gross immoral act?

IF YES

Apply Patel v Mirza Test
1. Is the purpose of the law that was broken enhanced by denying the claim?

  1. Other relevant public policy where denial would have an impact?
  2. Is denying the claim proportionate to the illegality?
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74
Q

What factors are potentially relevant when examining whether denying the claim is proportionate to the illegality under Patel v Mirza?

A

Seriousness of conduct and centrality to the tort

Marked disparity in parties respective culpability

Loss directly caused by illegal act, making it contrary to public good to avoid damages

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75
Q

What is the latin term for illegality defence?

A

Ex turpi causa non oritur actio

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76
Q

What is the latin term for consent defence?

A

Volenti non fit injuria

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77
Q

What do special damages cover?

A

Provable and quantifiable financial losses at the time of trial

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78
Q

What do general damages cover?

A

Future financial losses which cannot be specifically proven and non-quantifiable losses

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79
Q

What is the basic approach to calculating future losses?

A

Multiplier/multiplicand

Take expense and multiply by number of years it will continue to be suffered

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80
Q

What does the court take into account when calculating future losses?

A

Amount that could be accrued by investments so that the claimant is not over compensated

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81
Q

What things are deducted from damages?

A

State benefits

Contractual sick pay

Redundancy payment

Contributory negligence

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82
Q

What things are not deducted from damages?

A

Insurance pay-outs

Ill-health pensions

Sums from gifts or charity

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83
Q

What can a persons estate claim when they’ve died for negligence?

A

Only everything lost from the accident up to date of death

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84
Q

What can dependents claim under fatal accidents?

A

Any losses, including income

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85
Q

Who is a dependent for the purposes of fatal accidents?

A

Close blood relations, cohabiters for over 2 years

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86
Q

What duty does an employer owe?

A

Personal and non-delegable duty to take reasonable precaution to ensure an employees safety

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87
Q

What things do employers need to provide employees?

A

Safe/competent employees

Safe/proper plant and equipment

Safe premises

Safe system of work

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88
Q

What is the difference between employers primary liability and vicarious liability

A

Vicarious: sue employer for employees negligence

Employer: employee sues their employer

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89
Q

What is the overarching single duty that employers owe to employees?

A

Reasonable precaution to ensure employee safety while at work

All the particulars are just examples of that, not separate duties

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90
Q

Does an employer have to take individual characteristics/vulnerabilities of specific employees into account?

A

Yes

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91
Q

What must be established to show vicarious liability?

A

A committed a tort

A is D’s employee, or in a relationship akin to employment

Tort was committed in course of employment

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92
Q

What test is it to show that the tort was committed in the course of employment?

A

Sufficiently close connection

  1. What functions/field of activities did the employer trust to the employee
  2. Is there sufficient connection between the position in which the employee was employed and the wrongful conduct to make it just for the employer to be held liable
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93
Q

Why is vicarious liability strict liability?

A

Cause they are liable even if they weren’t at fault

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94
Q

What common factors from prominent case law will help establish that the tort happened during employment?

A

Doing an authorised thing in an unauthorised manner

Travelling for a lunch break is a reasonable thing in employment

Doing an unauthorised thing or prohibited thing but ‘for the employers business’ and in line with role

Travelling to work, when paid for travel time

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95
Q

What factors from caselaw make it less likely that the tort happened during employment?

A

Frolic of your own

Doing a prohibited act, that is not incidental to duties in an unauthorised manner

Deviating from the route/purpose of an employment related travel journey for an un-work-related purpose

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96
Q

Can an employer recover any of their losses when they lose a vicarious liability claim?

A

Possibly indemnity from the employee

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97
Q

What test is applied to decide whether there is an employer/employee relationship?

A

Multiple factors test aka economic reality test

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98
Q

What presumption arises when an employee is lended to another employer?

A

Rebuttable presumption that the employer who loaned the employee will be vicariously liable for their loaned employees torts

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99
Q

When is a worker definitely not an employee?

A

If they are carrying out their own independent business

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100
Q

What are the 3 parts to the multiple factors test??

A

Renumeration in exchange for personal service and mutual obligations

Control

All other contractual factors consistent with employment relationship

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101
Q

Will someone be an employee if they can choose to send somebody else in their place?

A

No, because employee duties are personal

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102
Q

Are 0-hour contract workers likely to be employees?

A

No, there is no mutual obligation to work or provide work

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103
Q

What are the ‘other factors’ which determine if somebody is an employee?

A

Tools/equipment provided by employer

Tax/PAYE

Employee integrated into organisation

Labelled as such

Benefits

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104
Q

What are the factors in the test you must consider when looking at whether it is fair, just and reasonable for this to be held as a relationship akin to employment?

A

Employer has more means to compensate

Tort committed while doing an activity on employers behalf

Torts activity is part of business activity of employer

By allowing tortfeasor to do the activity, employer created the risk of tort being committed

Tortfeasor to a greater or lesser degree was under the control of the employer

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104
Q

What is an actual victim?

A

Person suffering from psychiatric and physical harm

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105
Q

What is a primary victim?

A

Within danger zone, suffers a harm for reasonable fear for their own safety

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106
Q

What is a secondary victim?

A

Suffers a harm due to fear for someone else’s safety witnessing the event or immediate aftermath

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107
Q

What 2 types of psychiatric harm are recognised?

A

Diagnosed psychiatric condition

Shock-induced physical condition

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108
Q

Are bystanders and rescuers given special status under the psychiatric injury law?

A

No

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109
Q

Is reasonable fear objective or subjective?

A

Objective

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110
Q

What is the test to determine whether primary victims were owed a duty of care?

A

Whether physical injury was reasonably foreseeable

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111
Q

What happens if physical injury wasn’t foreseeable for an actual victim?

A

Consider precedents

Run Caparo

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112
Q

What is the likely outcome of running Caparo if physical harm was not foreseeable for an actual victim?

A
  1. Proximity is usually established because of geographic proximity (the actual victim was at the site)
  2. If defendant negligently/foreseeably put claimant in fear for safety, courts will likely find it fair/just and reasonable to impose DOC
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113
Q

What is the test in Page v Smith

A

If physical harm is foreseeable, psychiatric harm does not have to be as well in order for there to be a DOC

114
Q

What type of victim does the Alcock criteria apply to?

A

Secondary

115
Q

What are the Alcock criteria?

A

Was psychiatric harm reasonably foreseeable in a person of ordinary fortitude?

Was there a relationship of proximity between claimant and victim?

Was there proximity in time and space to the accident or its immediate aftermath?

116
Q

How does the thinskull rule operate for secondary victims?

A

If psychiatric harm was reasonably foreseeable for a person of normal fortitude

Additional harm suffered by a person with a mental weakness is then claimable also

117
Q

What is the test for proximity of relationship between claimant and victim?

A

Close ties of love and affection

118
Q

In what relationship is there a rebuttable presumption of close ties?

A

Husband/wife

Parent/child

Engaged couples

119
Q

What test satisfies the Alcock criteria for proximity in time and space to the accident?

A

Present or at its immediate aftermath

Seen or heard accident or aftermath with OWN SENSES

120
Q

Can you be a secondary victim for witnessing a negligent medical practice/crisis?

A

No

121
Q

Can you be a secondary victim for a big accident that happens in a medical setting?

A

Yes

122
Q

What other cases are there outside of the primary/secondary victim classification for psychiatric harm?

A

Assumption of responsibility

123
Q

When will a D owe a C a DOC not to cause psychiatric harm under assumption of responsibility?

A

If the D assumed a responsibility for the C to not have psychiatric harm

employer/employee
doc/pt
police/police informant

124
Q

What is the common context when assumption of responsibility applies for psychiatric harm?

A

Occupational stress claims

125
Q

What are the guidelines for occupational stress claims?

A

Psychiatric harm was or should have been reasonably foreseeable

Foreseeability depends on the relationship between characteristics of claimant and requirements made of them by employer

  • Nature/extent of work
  • signs of stress
  • size and scope of business, availability of resources
126
Q

Is pure economic loss recoverable in general negligence?

A

Yes

127
Q

What does pure economic loss include?

A

Economic loss not flowing from the damage

Economic loss flowing from damage to property of another

Costs of repairing/replacing defective items

128
Q

What is the general rule around recovering for pure economic loss?

A

No duty of care owed for PEL

129
Q

When does pure economic loss arise?

A

When there is no damage to property or injury to person

130
Q

What are the 3 common examples of PEL not flowing from damage to person or property?

A

Bad investment

Missed contractual opportunity

Lost an inheritance

131
Q

Why is PEL not usually available for defective items?

A

Cause theres usually a claim in contract

132
Q

What are the 3 exceptions to the rule that PEL is not recoverable?

A

PEL caused by negligent misstatements

Wills

References

133
Q

What is the common theme where PEL is recoverable for wills?

A

When a solicitor messes up a will like doesn’t register it on time and so a beneficiary misses out when they shouldn’t have

134
Q

What is the duty owed regarding references that can make PEL recoverable?

A

Duty to make an accurate reference

You’ve assumed responsibility by agreeing to do it

135
Q

What criteria need to be applied to claim PEL for a negligent misstatement?

A

Hedley Byrne v Heller

  1. Reasonable reliance
  2. Assumption of responsibility
  3. Special relationship of trust and confidence
136
Q

How many of the criteria in Hedley Byrne v Heller need to be satisfied to claim PEL for a negligent misstatement?

A

Only 1

137
Q

What 3 tests are used in to determine whether there was reasonable reliance under a negligent misstatement under Hedley?

A

(a) The claimant relied on the defendant’s advice.

(b) It was reasonable for the claimant to rely on the defendant’s advice.

(c) The defendant knew or ought to have known that the claimant was relying on their advice.

138
Q

What 4 factors have courts considered when assessing whether it was reasonable for D to rely on the statement in a PEL claim under Hedley?

A

(1) Special skill or knowledge held by the defendant (relative to claimant who was relying on their statement)

(2) Special skill or knowledge held by the claimant (e.g., they had higher or lower bargaining power)

(3) General context in which advice is given (social or professional)

(4) Other relevant general factors

139
Q

When could a friend end up having a DOC for PEL when providing advice in a social situation?

A

Had more knowledge

Held self out as giving considered advice

Took time over the advice (e.g., researching)

Claimant made clear she was relying on friends advice and it was important

140
Q

Is there a duty of reasonable care and skill for friends providing free services when they’re a professional?

A

Yes

141
Q

What is the test for whether there is voluntary assumption of responsibility in Hedley Byrne?

A

But for the absence of consideration, there would be a contract

142
Q

What are the 4 criteria in Caparo v Dickman for a defendant to have assumed responsibility towards a claimant (which can be used to satisfy voluntary assumption of responsibility under Hadley)

A

(1) The defendant must communicate the advice to the claimant (as an identifiable individual or as a member of an identifiable class) or know that it will be communicated to them;

(2) The defendant must know the purpose for which the claimant will use this advice;

(3) The defendant must know, or reasonably believe, that the claimant will rely on this advice without independent enquiry; and

(4) The claimant must have acted upon that advice to their detriment.

143
Q

When is there a special relationship of trust and confidence under Hedley?

A

arise where the party seeking advice was trusting the other to exercise such a degree of care as the circumstances required, where it was reasonable for them to do that, and where the other gave the advice when they knew or ought to have known that the enquirer was relying on them.

144
Q

Do disclaimers apply to PEL cases?

A

Yes

Unless protected under UCTA or Consumer Rights Act 2015

145
Q

What factors will be taken into account in a PEL case when deciding whether a disclaimer was unreasonable?

A

Bargaining power

Practicable to obtain advice from another source considering cost and time

How difficult was the task

What are the practical consequences of the sums of money at stake and ability of the parties to bear loss – insurance?

146
Q

Define private nuisance

A

Continuous activity or state of affairs causing substantial and unreasonable interference with a claimants land or enjoyment of it

147
Q

Who can bring a private nuisance claim?

A

Someone with legal interest in affected land

148
Q

Who can the claimant sue in a private nuisance claim?

A

Creator of nuisance

Occupier of land from where nuisance emanates

Owner of land from where nuisance emanates

149
Q

What third-parties can an occupier be liable for nuisances of?

A

Independent contractors

Predecessors in title

Trespassers

Visitors

Naturally occurring nuisances

150
Q

When will an occupier be liable for trespassers/visitors/predecessors in title nuisance?

A

If they continued or adopted the nuisance

151
Q

When is an occupier liable for naturally occurring nuisances?

A

If they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance

152
Q

Are landlords usually liable for private nuisance?

A

No, not unless the exception in Coventry applies

153
Q

What is the exception in Coventry denoting when landlords are liable for private nuisance?

A

If they actively/directly participate

Lease the property in circumstances where there was a high degree of probability of that specific nuisance

154
Q

What are the 4 elements which make up a private nuisance claim?

A

Indirect interference

Recognised damage

Continuous act

Unlawful interference

155
Q

What are recognised losses in private nuisance?

A

Physical damage to property

SPD (sensible personal discomfort)

156
Q

What constitutes an unlawful interference?

A

Unreasonable interference

157
Q

What is the courts approach to determining whether defendants use of land was reasonable or not?

A

Balance various factors

158
Q

What is an indirect interference?

A

Sounds

Smells

Fumes

Vibrations

159
Q

What is a direct interference?

A

Trespass

160
Q

Can indirect interference be caused by failure to act?

A

Yes, if it causes a loss

161
Q

Can a claimant claim for pI in private nuisance?

A

No, it is a tort against land not person

162
Q

How damaged must property be for a private nuisance claim to succeed?

A

More than de minimus

163
Q

How bad does SPD need to be to count as a recognised loss in private nuisance?

A

More than fanciful and must materially interfere with ordinary human comfort

164
Q

What claims should be made instead of private nuisance when the act is not continuous?

A

Negligence

Rylands

Public nuisance

165
Q

What are the exceptions to the continuous act rule to form a claim in private nuisance?

A
  1. Single incident caused by an underlying state of affairs
  2. Activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material
166
Q

What 5 factors will the court look at when deciding whether an interference was unreasonable?

A

Time and duration

Locality and character of neighbourhood

Abnormal sensitivity

Malice

Defendant has shown lack of care

Excessive behaviour

167
Q

When can locality and character of neighbourhood be taken into account?

A

Only if the loss is SPD

168
Q

How does planning permission effect locality and character of the area?

A

If planning permission was granted with intention to change the character of the area then there is no nuisance

Planning permission that doesn’t fundamentally change the nature of the locality – can still find private nuisance

Planning permission could help establish reasonableness of the nuisance i.e. authorised drilling with restrictions between certain hours

169
Q

How is abnormal sensitivity treated when deciding whether a nuisance is unlawful (unreasonable)

A

It will only be a nuisance if the reasonable occupier would also be effected… if you then suffer over and beyond an average person you can still claim

170
Q

How is malice treated when assessing whether private nuisance is unlawful/unreasonable?

A

No real justification for actions other than to annoy the claimant it will be nuisance

171
Q

How it lack of care treated for the purposes of private nuisance?

A

More likely to be a nuisance if the D didn’t take reasonable steps to minimise their annoyance

172
Q

How is excessive behaviour treated as a factor to establish private nuisance?

A

If it is truly absurd, e.g., hundreds of pet pheasants

173
Q

Is locality relevant to physical damage to property claims?

A

No

174
Q

What are the defences to private nuisance?

A

20 years prescription

Statutory authority

Consent

Contributory negligence

Act of 3rd party

Act of God

175
Q

What remedies are available for private nuisance?

A

Injunctions, damages, abatement

176
Q

What is the primary remedy for private nuisance?

A

Injunction

177
Q

When will damages be awarded for private nuisance?

A

Physical damage to property

178
Q

If it is against public interest to grant an injunction, and the loss is SPD, what will be awarded instead?

A

Damages

179
Q

When does the 20 year period start running to establish the defence of prescription against an actionable nuisance?

A

The date at which it became an actionable nuisance… e.g., when somebody moved in next door

180
Q

Does the nuisance have to be continuous over 20 years for the defence of prescription to apply?

A

No, just a sum total of 20 years

181
Q

When will the statutory authority defence against private nuisance operate?

A

If the nuisance is being exercised on statutory authority AND

all due care is being taken

AND

Nuisance is inevitable

182
Q

Can the defence of consent to nuisance be implied?

A

Yes, e.g., consent to colliery will be implied consent to coal dust

183
Q

How does the 3rd party defence against private nuisance operate?

A

You won’t be responsible for nuisance of a 3rd party unless you adopt or continue the nuisance

184
Q

Is it a valid defence to private nuisance to assert that the defendant moved to the nuisance?

A

No

185
Q

What is the remedy of abatement?

A

The C entering D’s property and removing the nuisance (e.g., cutting branches overhanging onto their property)

But they can’t remove anything from the land

186
Q

How is public nuisance defined?

A

Acts or omissions of the defendant that materially affect the reasonable comfort and convenience of a class of majesty’s subjects

187
Q

Who can sue in public nuisance?

A

Individual, Attorney General, local authority

188
Q

Who can be sued in public nuisance?

A

Owner, occupier, creator

189
Q

What are the elements to consider for public nuisance?

A

Act/omission, one-off or continuous, class of people, loss must materially affect the comfort and convenience of the class

190
Q

What are the defences to public nuisance?

A

Same as private but no prescription

191
Q

What are the remedies for public nuisance?

A

Same as private, but injunctions can only be granted when the claimant is the AG or local authority

192
Q

What does an individual need to show about themselves to be able to make a claim in public nuisance?

A

They suffered special damage over and above the rest of the class

Damage must be substantial

193
Q

What damage is recoverable in public nuisance?

A

Property damage

CEL

Personal injury

Pure economic loss

Material inconvenience

194
Q

In order to be a class for the purposes of public nuisance, they need to have suffered a common injury: define common injury

A

Same time, same location

Sending things in letters to different people which arrives at different times and locations won’t be a public nuisance

195
Q

What does Rylands v Fletcher protect against?

A

Isolated escape from the D’s land

196
Q

Who can claim under Rylands?

A

Someone with a proprietary interest in the land affected

197
Q

Who can be sued in Ryland v Fletcher?

A

The person who brought the thing onto the land

Person who has control over the land

198
Q

What losses are recoverable under Rylands?

A

Property damage and CEL

199
Q

What are the elements to a Rylands claim?

A

Brought onto land

Anything likely to do mischief if it escapes

It does escape

Escape caused foreseeable harm

Non-natural use of the land

200
Q

What are the defences in Rylands?

A

Same as private nuisance

20 years prescription

Statutory authority

Consent

Contributory negligence

Act of 3rd party

Act of God

AND ALSO:

Common benefit

Act/default of the claimant

201
Q

What are the remedies under Rylands?

A

Same as private nuisance:

Injunctions, damages, abatement

202
Q

If something is growing on the land, will it be brought onto the land to satisfy Ryland?

A

No

203
Q

How high is the threshold for ‘anything likely to do mischief’ to satisfy Rylands?

A

Exceptionally high risk of causing a danger if it were to escape

Not a pipe carrying water to flats

204
Q

Will a fire count as a thing brought onto land for Rylands?

A

No, not unless it was set on purpose

205
Q

Will fuel brought onto the land, which then catches on fire and spreads be deemed an escape?

A

Yea, the fuel is escaping with the fire

206
Q

Does the D need to have foreseen the escape to satisfy Rylands?

A

No, they only need to know that it ought reasonably to cause harm if it did escape

207
Q

Will the D under Rylands still be liable if they take reasonable steps to prevent the escape?

A

Yes, Rylands is an example of strict liability

208
Q

What is meant in Rylands by non-natural use of the land?

A

Non-ordinary

209
Q

What factor is commonly used in determining non-natural use of the land?

A

Quantity

E.G., even if industrial, is it particularly huge?

210
Q

When can common benefit be established as a defence in Rylands?

A

Claimant agreed to the material accumulation

Consent implied if substance was accumulated for the mutual benefit of C and D

211
Q

How does the Act of Claimant defence operate?

A

If the escape was caused by the claimant

212
Q

How does the act of a third party defence operate for Rylands?

A

Unforeseeable act of a stranger over whom they had no control

213
Q

What does OLA 1957 govern?

A

Occupiers to visitors

214
Q

What does OLA 1985 govern?

A

Occupiers to non-visitors

215
Q

What losses are recoverable under OLA 1957?

A

PI

Property damage

216
Q

Are visitors owed a DOC? How?

A

Yes, by statute under OLA 1957

217
Q

What is the definition of an occupier?

A

Sufficient degree of control over premises

*can be multiple

218
Q

What is the definition of premises?

A

Any fixed or moveable structure

219
Q

When would a loss on a property be more suitable for a general negligence claim than an OLA 57 claim?

A

If it relates to an activity on the premises as opposed to the state of the premises

220
Q

What exact DOC is owed by occupiers to visitors?

A

Such care as is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes which they were permitted to be there

*keep visitor safe not premises

221
Q

What 4 categories of occupier were given in Wheat?

A

Tenant, if landlord doesn’t live there

Landlord over common areas

Landlord remains an occupier if they give a license

If occupier employs independent contractors, they are still an occupier

222
Q

Can premises be a ladder?

A

Yes

223
Q

Who is a visitor under OLA 1957?

A

Express or implied permission

Lawful and contractual permission

224
Q

In what ways can express permission as a visitor be limited by notice?

A

Area

Time

Purpose

225
Q

What are examples of people with lawful authority to enter premises?

A

Gas officials

Police with warrant

226
Q

What law are those using a public right of way (footpath) covered under?

A

Only common law

227
Q

What law are those using a private right of way covered under?

A

OLA 1984

228
Q

What laws are those exercising their rights to roam covered under?

A

Owed a DOC under OLA 1984

Countryside and Rights of Way Act

229
Q

To whom is a higher standard of care required under OLA 1957?

A

Children and visitors with particular vulnerabilities

230
Q

When is a lower standard of care owed to visitors under OLA 57??

A

Persons exercising a right of calling

231
Q

How is breach of DOC analysed for OLA 57?

A

Same factors as negligence sequence

232
Q

When will an occupier not be in breach under OLA 57

A

If they warned the C of the danger and the warning was enough for the visitor to be reasonably safe

233
Q

When will an occupier not breach OLA 57 regarding building works?

A

Where they acted reasonably entrusting the work to the independent contractor

234
Q

What are the defences to OLA 57 breaches?

A

Volenti

Contributory negligence

Illegality

235
Q

Articulate the standard of care owed to visitors under OLA 57

A

A reasonable occupier

236
Q

What special considerations are given to children under OLA 57?

A

Allurements to children

They are not as smart as adults

Sometimes, particularly for young children, it should be assumed they are accompanied by an adult

237
Q

What special factors will be considered when looking at whether the standard owed was breached?

A

Cost of preventative measures

Resources available

238
Q

What must a warning contain to discharge liability under OLA 57?

A

What danger is

Where

How to avoid

239
Q

When can duty be discharged under OLA 57 for an independent contractor?

A

It was reasonable to hire an independent contractor

The choice of contractor was reasonable (e.g., checked qualifications)

They were supervised and the work was checked (to the extent the D was capable/had knowledge)

240
Q

How is causation and remoteness treated under OLA 57?

A

Once duty and breach are established, there is an assumption that causation and remoteness are also satisfied unless there is a glaring issue

241
Q

What losses are recoverable under OLA 1984?

A

PI only

242
Q

What is the standard of care expected of occupiers under 84?

A

Reasonable care to see that the entrant does not suffer injury by reason of danger concerned

243
Q

What factors are analysed when examining breach of duty?

A

Negligence factors

Age

Nature of danger

Nature of premises

Purpose of claimant

Foreseeability of trespassing

Whether sufficient warning of the danger was given

244
Q

What are the defences to claims under 84?

A

Consent

Contributory negligence

Illegality

245
Q

What is the definition of trespasser?

A

He who goes onto the land without invitation and whose presence is either unknown or if known is practically objected to

246
Q

What are the criteria under OLA 84 to establish whether a DOC is owed?

A
  1. Aware of danger and have reasonable grounds to believe that it exists
  2. Know or have reasonable grounds to believe that the other is in the vicinity of the danger concerned or that they may come into the vicinity of the danger
  3. Risk is one against which, in all circumstances, they may reasonably be expected to offer the other some protection
247
Q

What factors are analysed to determine whether it was reasonable to protect a trespasser against the risk?

A

Foreseeability

Seriousness

Costs

ETC

248
Q

Will a duty be owed to claimants choosing to engage in activities with inherent risks under OLA 84?

A

No

249
Q

Under OLA 84, what factors are considered to ascertain whether the standard of reasonable occupier was breached?

A

Negligence breach factors

Nature of danger (hidden/obvious/degree)

Child or adult

Nature of premises (e.g., building site)

Purpose of claimant (burglar or accident)

Whether occupier should have foreseen trespassing

250
Q

What warning notices will be sufficient under OLA 84?

A

Any notice to bring danger to attention, or discourage trespassing

Includes physical barriers like fences

251
Q

How are causation and remoteness treated under 84?

A

They are presumed satisfied

252
Q

Would a defence of illegality succeed under 84?

A

Probably not, because 84 is specifically designed to afford protections to people doing something illegal (trespassing)

253
Q

What liability can business occupiers exclude themselves from?

A

Everything except for

Non-consumer visitors death or personal injury

254
Q

What can traders exclude liability for under CRA 2015 (occupiers liability(

A

Can exclude liability for consumer losses if term and notice is fair

Cannot exclude consumer visitors death or PI

255
Q

What 4 restrictions apply to occupiers under 57 regarding their ability to restrict/exclude liability?

A

s3 OLA 57

Unfair contract terms 1977

Consumer rights 2015

Common law

256
Q

What does s3 OLA 57 say about ability to exclude/restrict DOC?

A

If an occupier is bound by contract to allow onto premises, you cannot exclude/restrict your DOC

It protects employees

257
Q

How does the CRA regulate excluding OLA 57?

A

When D is a trader and C is a consumer

Trader cannot exclude/restrict liability for PI/death from negligence

Can exclude other losses if term/notice is fair

257
Q

How does the UCTA 1977 treat attempts to exclude/limit occupiers liability 57?

A

B2B (e.g., person entering property to exercise business)

Cannot restrict death or PI from negligence

Can exclude other losses from negligence if reasonable

258
Q

When is a term attempting to exclude OLA 57 liability under CRA 2015 unfair?

A

If contrary to good faith, causes a significant imbalance in the parties rights and obligations to the detriment of the consumer

259
Q

How does common law protect against trying to exclude OLA 1957?

A

Restrictions are judged against the principle of common humanity

260
Q

How much exclusion/limitation of liability is allowed for OLA 84?

A

It is silent

Most likely, is that it would be the same as common law restriction

If it wasn’t excludable, the trespassers would be in a better position than visitors

261
Q

Who can claim under the consumer protection act 1987?

A

Anyone suffering damage from a defective product whether or not they purchased/used it

262
Q

What must the claimant show to claim under the Consumer Protection Act 1987?

A

Product was defective, was not such as persons are generally entitled to expect taking into account warnings, packaging and expected use

No need to show fault on the part of the defendant

263
Q

What avenues to a claim should a practitioner consider when presented with a defective product issue?

A

Negligence

Breach of contract

Consumer protection act

264
Q

What loss is claimable under the consumer protection act 1987?

A

Any damage caused wholly or partly by a defect in a product

265
Q

How is product defined under CPA1987?

A

Anything

Component parts

Electricity

Raw material

266
Q

How is a defect in a product defined?

A

Safety is not such as persons are generally entitled to expect

267
Q

What are people entitled to expect regarding products? What is considered to establish reasonable expectation?

A

Manner/purpose for which marketed, warnings and packaging

What might be expected to be done with the product

Time when the product was supplied by is producer to another (e.g., giving adult products to a child, product has deteriorated and got old over time)

268
Q

What types of damage can be claimed for defective products?

A

Death

PI

Loss or damages to property

269
Q

What are the limits on damage claims that can be brought for defective products?

A

Must exceed 275 excluding interest

Can’t claim property damage unless property is ordinarily intended for private use/occupation/consumption and intended by the person suffering the loss or damage mainly for his own private use/occupation/consumption

270
Q

Can you recover the cost of the lost defective product under CPA 1987?

A

No

271
Q

Who is liable for damage under CPA 1987?

A

Producer

Holding self out to be the producer

Person who imported the product

272
Q

How is a producer defined for CPA 1987?

A

Manufacturer

Person who won/abstracted the product

Person who carried out the process of giving the product essential characteristics

273
Q

Can business buying things claim under CPA?

A

No

274
Q

What are the 2 defences to CPA 87 claims?

A

Defect did not exist in the product at the relevant time

State of scientific and technical knowledge at the relevant time was not such that a producer of the products would have been expected to have discovered the defect while products were under their control

275
Q

Can exemption clauses for CPA 87 be upheld?

A

No

276
Q

What is the deadline to bring a CPA claim?

A

3 years from date of injury/damage

OR

3 years from date of knowledge

Long stop of 10 years after product was put into circulation

277
Q

What additional protections are offered under CPA, that aren’t offered in contract and negligence claims?

A
  1. Protection not limited to purchasers or product users
  2. No need for foreseeability of harm
  3. Slightly more relaxed causation criteria
278
Q

Do those repairing products owe DOC in negligence claims?

A

Yes

278
Q

What common precedent is used to establish DOC in negligence for bad products?

A

Donoghue and Stevenson

Snail in drink – DOC was owed to the friend who herself did not purchase the beer

279
Q

Is the loss of the product recoverable in negligence claims?

A

No that is PEL

280
Q

Is it more difficult to prove a breach for defect or design of the product?

A

Defect

281
Q

Do producers need to examine all their products?

A

No, they just need to examine a reasonable number

SQE 1 - FKL1 (12 decks)

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